Allahabad High Court
Ramesh Chandra Sharma vs Food Corporation Of India Thru. ... on 28 January, 2023
Bench: Ramesh Sinha, Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 1
Case :- SPECIAL APPEAL No. - 348 of 2017
Appellant :- Ramesh Chandra Sharma
Respondent :- Food Corporation Of India Thru. Its M.D./Chairman And 3 Others
Counsel for Appellant :- Sharad Bhatnagar
Counsel for Respondent :- Kamesh Gupta,Kamesh Gupta
Hon'ble Ramesh Sinha,J.
Hon'ble Subhash Vidyarthi,J.
C.M.A. No.79000 of 2019 (Application for condonation) and
C.M.A. No.79003 of 2019 (Substitution Application)
1. Heard Shri Sharad Bhatnagar, learned Counsel for the applicant/appellant and Shri Kamesh Gupta, learned Counsel appearing for the respondent.
2. On account of death of appellant on 18.12.2018, the legal heirs of appellant, namely, Smt. Manju Lata Sharma and Mayank Kumar Sharma have filed an application for substitution along with an application for condonation of delay. The same has been filed after serving a copy on learned Counsel for the respondent, to which he has no objection.
3. Cause shown by the applicant/appellants for the delay in filing the substitution application is sufficient.
4. Accordingly, the delay in filing the substitution application is condoned. The substitution application is, accordingly, allowed.
5. Learned Counsel for the applicant/appellant is directed to substitute Smt. Manju Lata Sharma and Mayank Kumar Sharma in place of appellant as appellant nos.1/2 and 1/3 during the course of the day.
Order on Appeal
6. The instant special appeal is directed against the judgment and order dated 20.07.2017 passed by an Hon'ble Single Judge dismissing Writ Petition No.2424 (S/S) of 1994.
7. The aforesaid writ petition had been filed challenging the order of removal of the appellant from his service. Initially, the appellant was removed from his service by an order passed by Senior Regional Manager of Food Corporation of India. The aforesaid removal order was set aside by means of a judgment and order dated 01.11.1991 passed by this Court in Writ Petition No.7240 (S/S) of 1991 on the ground that the Senior Regional Manager of the Corporation had no jurisdiction to pass the order of punishment as the Appointing Authority of the appellant was Zonal Manager. However, this Court had left it open to the Competent Authority to consider the matter and pass appropriate order, in accordance with law. Thereafter the Zonal Manager passed an order dated 21.03.1994, which was challenged by the appellant by filing Writ Petition No.2924 (S/S) of 1994.
8. The Hon'ble Single Judge held that the appellant had filed a detailed reply/representation and the Zonal Manager had passed the order after taking into consideration his reply and, therefore, the appellant was provided sufficient opportunity of hearing.
9. From a bare perusal of the material available on record, it is evident that initially, the proceedings for termination of the appellant's services were initiated by the Senior Regional Manager. Undisputedly, the Appointing Authority of the appellant is the Zonal Manager and the proviso appended to Rule 56 of the Discipline and Appeal Regulations of the Corporation provides that "the penalties of reduction in rank, compulsory retirement, removal from service or dismissal from service specified in clauses (v) to (ix) of Regulation 54 shall not be imposed on any employee by an authority lower than the appointing authority." Admittedly, Senior Regional Manager is an Authority lower than the Appointing Authority, which is the Zonal Manager. Therefore, the order passed by the Senior Regional Manager was set aside by means of the order dated 01.11.1991 passed in Writ Petition No.7240 (S/S) of 1991 while leaving it open to the Competent Authority to consider the matter and pass appropriate orders "in accordance with law".
10. Proceeding to consider the matter and to pass appropriate order in accordance with law, necessarily required initiation of disciplinary proceedings by the Competent Authority, i.e. the Zonal Manager. The Zonal Manager was required to give an opportunity of hearing to the appellant, which was not done in the present case.
11. The purpose of giving an opportunity of hearing is not to fulfill an empty formality. Its purpose to enable the person concerned to present his case before the Authority in order to enable the Authority to apply his mind to the facts of the case independently and to help him in arriving at a just conclusion.
12. No proceeding has been initiated by the Competent Authority, i.e. the Zonal Manager in the present case and no opportunity of hearing has been provided by the aforesaid Authority to the appellant. The Zonal Manager has merely stated in the order that the appellant had furnished his reply/representation dated 11.09.1990 and 14.10.1992, which had been submitted to the Senior Regional Manager and not to the Zonal Manager.
13. In Sarwan Singh Vs. Food Corporation of India & others, Civil Misc. Writ Petition No.2926 (S/S) of 1994, this Court held that "when this Court directs the Competent Authority to consider the matter and pass appropriate order, this Court could never have intended to give a go by to the basic principle of natural justice. The Zonal Manager who had passed the impugned order cannot merely act on the basis of record without hearing the appellant in respect of the matter in issue. As such he should have given notice to the appellant and heard the appellant either by way of representation or orally before making up his mind about the guilt as well as nature of punishment to be imposed."
14. The aforesaid judgment dated 16.02.2000 passed in the case of Sarwan Singh (supra) was challenged before the Hon'ble Supreme Court of India by filing Special Leave to Appeal (Civil) No.11707/2000 and the Hon'ble Supreme Court dismissing the aforesaid S.L.P. by means of order dated 12.03.2001 holding that the order under challenge did not warrant any interference. Therefore, we are of the considered view that the order passed by the Zonal Manager without giving an opportunity of hearing to the appellant, is unsustainable in law and is in violation of law laid down in Sarwan Singh (supra).
15. In view of the aforesaid discussion, we are unable to agree with the view taken by the Hon'ble Single Judge that adequate opportunity of hearing had been provided to the appellant.
16. Accordingly, the instant special appeal is allowed. The judgment and order dated 20.07.2017 passed by the Hon'ble Single Judge is hereby set aside and the writ petition is allowed, the order dated 21.03.1994 passed by the Zonal Manager, Food Corporation of India removing the appellant from the service of the Corporation is hereby quashed.
17. As the appellant has died during pendency of the writ petition and his heirs have been substituted in his place, there is no use in giving another opportunity to the Zonal Manager to proceed with the matter afresh and pass another order. Accordingly, it is provided that except for the back wages for the period the deceased- appellant did not remain in service, all other benefits payable consequent to quashing of the removal order dated 21.03.1994, would be paid to the heirs of the deceased-appellant, within a period of three months from today.
(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)
Order Date :- 28.01.2023
Anand Sri./-
