Amar Singh vs Food Corporation Of India And Ors.
2002 Latest Caselaw 196 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule.

2. With consent of learned counsel for the parties. the petitioner is taken up for final disposal.

3. The petitioner was employed with the respondent Food Corporation of India. An enquiry was held against the petitioner for charges that the petitioner had failed to maintain absolute integrity and due devotion to duty relating to stocks of local depot and loading of the same on train.

4. After due consideration of the facts and evidence on record the enquiry officer submitted a report dated 17.9.1987 holding the prosecution could not place their side of the case well ann since the shortage could be due to the act of others than the consignor or Charge Officer, the Charged Officer cannot be held guilty of the charge when the charge is not proved.

5. Disciplinary Authority thereafter proceeded to hold that charge was correctly proved and directed imposition of penalty of stoppage of three increments of pay with cumulative effect w.e.f. 1.1.1989.

6. The petitioner preferred an appeal against the said order but the same was dismissed by the Appellate Authority on 29.7.1989.

7. The petitioner preferred a review before the Managing Director on 18.10.1989. This review was dismissed only in the year 1999 vide order dated 29.6.1999.

8. Learned counsel for the petitioner has contended that the Disciplinary Authority has passed the order without giving any reasons whatsoever for differing with the view taken by the enquiry officer. It is further contended that no notice was issued nor was any opportunity given to the petitioner to explain his position in his defense before the Disciplinary Authority. The Appellate authority has also passed the order without any reasons and the revision was kept pending for prolonged period of 10 years. Mr. Sanghi, learned counsel for the petitioner has also relied on the judgment of the Supreme Court in Punjab National Bank & Others v. Kunj Behari Misra, , to contend that the procedure in the present case was totally contrary to the law laid down by the Supreme Court. Learned counsel referred to the Regulation 59 (2) of the FCI Staff Regulations, 1972 which are as under :

"59. Action on the Inquiry Report :

(1) The Disciplinary Authority, if it is not itself the Inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiry authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 58 as far as may be.

(2) The Disciplinary Authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such dis-agreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose."

9. Mr. Sanghi, learned counsel contended that this regulation 59(2) is identical to the regulation in the case of Pubjab National Bank case (supra) and referred to the same as regulation 7 at page 90.

10. Learned counsel for the respondent contended that though no reasons were given by the Disciplinary Authority in the order itself, the reasons can be found from the file. In the counter affidavit the same were not re-produce but in the additional affidavit dated 2nd February, 2002 copies of file are sought to be filed. It may be relevant to state that this additional affidavit has been filed without any leave having been sought from this Court.

11. I have heard learned counsel for the parties. There is no doubt that on the reading of the orders of the Disciplinary Authority and the Appellate Authority no reasons for differing with the finding of the enquiry officer can be found the same. It is also an admitted position that no opportunity was given to the petitioner by the Disciplinary Authority before taking different view from what was taken by the Enquiry Officer. The Supreme Court in the case in Punjab National Bank Case (supra) considered this aspect and recorded that admittedly regulation 7(2) {which is identical to regulation 59(2)} specifically states that when the disciplinary authority disagrees with the findings of the enquiring authority on any article of charge it was required to record its own tentative reasons for such disagreement and give hearing to the delinquent officer before it records its findings on such charge. After discussing various judgments the Supreme Court held as under :

"The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). as a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

12. In view of the aforesaid decision it cannot be doubted that he procedure followed by the disciplinary authority in the present case is contrary to the ratio of the judgment in the Supreme Court in Pubjab National Bank case (Supra). The consequence is that the order of appellate authority also must go.

13. In view of the aforesaid a writ of mandamus is issued quashing the impugned orders of disciplinary authority, appellate authority and also the decision of the reviewing authority.

14. Learned counsel for the petitioner states that case should not be remitted back to the disciplinary authority in view of the passage of time and inordinate time taken by the Chairman in rejecting his review petition which was filed on 18th October, 1989 and dismissed on 29th June, 1999. There is not doubt that there could hardly be any reason for keeping such a review application pending for a period of 10 years. This is also be appreciated in view of the fact the finding of the enquiry officer was in favor of the petitioner and the disciplinary and the appellate authority proceeded to differ form the same without recording any reasons. I am thus in agreement with the contention advanced by the learned counsel for the petitioner that this is not a case where a further opportunity should be given to the disciplinary authority to re-examine the case of the petitioner and pass a fresh order. Ordered accordingly.

15. Learned counsel for the respondent states that review sought by the petitioner was not a matter of right and the petitioner should have approached the Court immediately after the appellate authority order was passed. It is not disputed that this review petition was filed in 1989 and was decided in 1999. In view thereof it can hardly be contended that the petitioner should suffer for the delay and laches of the respondents.

16. Taking into consideration that the reviewing authority took 10 years period of time to reject review petition of the petitioner and kept the fate of the petitioner hanging for this period of time, the petitioner must be compensated with costs of Rs. 5000/- of the present proceedings. 1.

17. The writ petition stands disposed of.