Ved Prakash And O.S. Gautam vs The Food Corporation Of India
2005 Latest Caselaw 1263 Del

JUDGMENT

Sanjiv Khanna, J.

1. The present matter has been placed before us pursuant to the order passed by learned Single Judge (Pradeep Nandrajog, J) dated 15.3.2004 Learned Single Judge felt that this Court in the case of V.K. Ranade v. Food Corporation of India reported in 1998 IV AD (Delhi) 543 has not correctly interpreted judgment of the Supreme Court in the case of Surjit Ghosh v. Chairman and Managing Director, UCO Bank, . Relying upon two other judgments of the Supreme Court in case of State Bank of Patiala v. S.K. Sharma and Managing Director ECIL v. B. Karunakar , learned Single Judge, inter alia, held that mere infraction of a rule or violation of principles of natural justice would not result in disciplinary proceedings being set aside unless prejudice is caused. V.K. Ranade's case (supra) is also a decision by a Single Judge of this Court and pursuant to orders of the Hon'ble Chief Justice, the matter has been heard by us.

2. The petitioners herein-Mr. Ved Praksh and Mr. O.S. Gautam are the employees of the Food Corporation of India (hereinafter referred to as respondent, for short) and were holding substantive posts of Technical Assistant Grade II, at Kotkapura in Faridkot District, Punjab, during the period 1996-97 and thereafter at FSD Rampuraphul, Bhatinda, Punjab.

3. The Managing Director of the respondent vide memorandum dated 17th March, 1997 initiated common departmental proceedings against the two petitioners along with twenty one other employees. This was followed by another memorandum dated 8th April, 1997issued by the Managing Director of the respondent, with allegations of misconduct against the petitioners and others for accepting sub-standard rice at large scale at various centers in Faridkot, District, Punjab by recording fictitious analysis resultat the time of acceptance of the stocks. The said misconduct was detected upon surprise inspection conducted by the headquarters' squad.

4. The petitioners objected to the orders passed by the Managing Director of the respondent, inter alia, stating that they were category III officials and accordingly the Senior Regional Manager was their Disciplinary Authority and the Zonal Manager was their Appellate Authority, as per Appendix 11 of the Food Corporation of India Staff Regulations, 1971 (hereinafter referred to as `Regulations', for short). It was contended that the Managing Director of Respondent No. 1 has encroached upon the jurisdicion and power of Disciplinary Authority, thereby depriving the petitioners of the normal channel of appeal to the Appellate authority.

5. The petitioners have further alleged that in spite of these allegations, an Enquiry Officer was appointed and common enquiry was conducted against them and twenty one other officials by one Mr. R.S. Chadda, Joint Manager (Enquiry). The petitioners again raised objections before the said Enquiry Officer against holding of common enquiry but this was not accepted and the matter was left to be decided by the Disciplinary Authority after submission of the report.

6. The Enquiry Officer in his report gave findings in favor of the petitioners. However, the Managing Director of the respondent disagreed with the conclusions drawn by the Enquiry Officer and vide memorandum dated 28th September, 1999, sought comments from the petitioners. The petitioner No. 1, Ved Prakash submitted his reply. The Managing Director of the respondent, acting as the Disciplinary Authority, thereafter, proceeded to pass an order dated 15th January, 2001, against the petitioners and imposed major penalty of reduction in rank for a period of five years in exercise of powers conferred under clause 56 of the Regulations.

7. Aggrieved by the said order, appeals were filed by both the petitioners before the Chairman of the respondent-Corporation. The said appeals of the petitioners were dismissed by two separate orders dated 16th September, 2002 passed by the Chairman of the respondent acting as a Appellate Authority.

8. Against the orders passed by the Disciplinary Authority and the Appellate Authority, the petitioners have filed the present Writ Petition praying for issue of writ in the nature of certiorari for quashing of the orders dated 17th March, 1997, 15th January, 2002 and 16th September, 2002. It may be relevant to state here that it was by memorandum dated 17th March, 1997 that common proceedings were initiated against the petitioners along with 21 others.

9. Learned counsel for the petitioners, during the course of arguments has made two submissions. Firstly, he submitted that the petitioners being category III officials of the respondent-Corporation, the Managing Director has wrongly acted as their Disciplinary Authority and as per the service regulations, the Senior Regional Manager, an officer much lower in rank was their Disciplinary Authority. It is further submitted that the Zonal Manager was their Appellate Authority and he too is lower in rak than the Managing Director, who has acted as their Disciplinary Authority. Reliance has been placed upon two judgments namely Surjit Ghosh (supra) and V. K. Ranade (supra). It is argued on the basis of these judgments that when an authority higher tan the authority prescribed in the Service Regulations acts as a Disciplinary Authority, it results in discrimination and grave prejudice is caused to the employee concerned. Referring to the judgment in the case of V.K. Ranade (Supra), it is submitted on behalf of the petitioners that initiation and holding common departmental proceedings was/is contrary to law and has vitiated the entire proceedings. Learned counsel for the petitioners has also relied upon Circular No. 9 issued by FCI and it was submitted that even if common departmental inquiry proceedings were held, the report of the Enquiry Officer or a copy thereof should have been sent to the authorised Disciplinary Authority specified in the service Regulations, and the Managing Director of the respondent could not have acted as the Disciplinary Authority. It is further submitted that it is for the specified Disciplinary Authority mentioned in the Regulations to take action and the Managing Director could not have acted as the Disciplinary Authority.

10. The Learned counsel appearing for the respondent referred to Regulation Nos. 62 and 69 of the Service Regulations which permit and authorise holding of a common inquiry and has submitted that one of the employees out of the twenty three employees against whom proceedings had been initiated was a category I officer. The Disciplinary Authority in case of category I Officer was/is the Managing Director and, therefore, there was nothing wrong and illegal in the Managing Director acting as the Discipliary Authority for the petitioners also. It is also submitted that against the order of the Managing Director acting as a Disciplinary Authority, an appeal was maintainable before the Chairman, which appeal was in fact filed and dismissed. Accordingly, o prejudice was caused to the petitioners as the right of appeal was not affected or taken away by the Managing Director acting as the Disciplinary Authority.

11. As per the service regulation of the respondent-Corporation, Regulation 62 permits and allows initiation and holding of common proceedings. For the sake of convenience, the said clause is reproduced below:-

"62. Common proceedings :

1. Where two or more employees of the Corporation are concerned in any case, the Board or any other authority competent to impost the penalty of dismissal from service on all such employees, may make an order directing that disciplinary action again all of them may be taken in a common proceeding.

Note : If the authorities competent to impose the penalty of dismissal on such employees are different, an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with the consent of the others.

2. An order under sub-regulation (1) shall specify:

(i) the authority which may function as the disciplinary authority for the purpose of such common proceeding;

(ii) the penalties specified in Regulation 54 which such disciplinary authority shall be competent to impose;

(iii) whether the procedure laid down in Regulation 58 and Regulation 59 or Regulation 60 shall be followed in the proceeding.

12. As per the said clause, when two or more employees of the Corporation are involved in any case, the Board or any other authority competent to impose the penalty of dismissal from service on all such employees, can make an order directing common disciplinary proceedings against all of them. Note to Regulation 62 further states that if the authorities competent to impose the penalty of dismissal on such employees are different, an order for taking common disciplinary proceedings may be made by the highest of such authorities with the consent of other authorities.

13. Clause 62 of the aforesaid regulation further states that an order directing common department proceedings shall specify:

i) the authority which shall function as the disciplinary authority for the purpose of such common proceedings,

ii) the penalties specified in Regulation 54, which such disciplinary authority shall be competent to impose;

iii) whether the procedure laid down in regulation 58 and Regulation 59 or Regulation 60 shall be followed in the proceedings.

14. We do not think that there is any merit in the contention raised by the petitioners that there could not be a common departmental proceedings. Clause 62 of the Regulations permits and allows holding of common disciplinary proceedings.

It is also not difficult to comprehend the logic and the object behind the Regulation 62. There can be cases in which two or more officers may be involved in a matter and therefore it may be desirable and necessary to have common departmental proceedings. Common disciplinary proceedings will not only save time, effort and energy but it will also ensure just and fair decision, so that the guilty officer can be identified and officers are not able to escape by throwing blame on others. It may also be noted that it has not been argued before us that conditions specified in Regulation 62 have not been complied with.

15. It will be also relevant to state here that Regulation 62 specifically permits and allows common departmental proceedings and a higher Authority to act as a Disciplinary Authority, when common proceedings are initiated against several officers. Validity of Regulation 62 has not been challenged before us and therefore, the action of the respondent in initiating common proceedings and a higher authority acting as a Disciplinary Authority for all the delinquent officers against whom proceedings havebeen initiated cannot therefore, be faulted.

16. Almost similar controversy had also come up for consideration before the Supreme Court in the case of Balbir Chand v. Food Corporation of India and Ors. . The petitioners in the said case had also contended that common departmental proceedings under the FCI regulations were not justified as the same have caused prejudice. Rejecting the above contention, the Supreme Court held as under:-

"It is contended that when one delinquent officer seeks to summon another delinquent who is charged on the common cause of action or for the misconduct committed during the course of the same transaction or to summon more than one officer jointly, the petitioner should be given an opportunity of splitting up the matter and to contend that common enquiry has thereby caused grave prejudice to the petitioner denying him the opportunity to summon the officer to substantiate his defense. We find no force in the contention. It is seen that these are the only instructions in conducting the proceedings as guidelines. When more than one delinquent officers are involved, then with a view to avoid multiplicity of the proceedings, needless delay resulting from conducting the same and overlapping adducing of evidence or omission thereof and conflict of decisions in that behalf, it is always necessary and salutary that common enquiry should be conducted against all the delinquent officers. The competent Authority would objectively consider their cases according to rules and decide the matter expeditiously after considering the evidence to record findings on proof of misconduct and proper penalty on proved charge and impose appropriate punishment on the delinquents. If one charged officer cites another charged officer as a witness, in proof of his defense, the enquiry need not per se be split up even when the charged officers would like to claim an independent enquiry in that behalf. If that procedure is adopted, normally all the delinquents would be prone to seek split up of proceedings in their/his bid to delay the proceedings, and to see that there is conflict of decisions taken at different levels. Obviously, disciplinary enquiry should not be equated as a prosecution for an offence in a criminal court where the delinquents are arrayed as co-accused. In disciplinary proceedings, the concept of co accused does not arise. Therefore, each of the delinquents would be entitled to summon the other person and examine on his behalf as a defense witness in the enquiry or summon to cross-examine any other delinquent officer if he finds him to be hostile and have his version placed on record for consideration by the disciplinary authority.

Under these circumstances, the need to split up the cases is obviously redundant, time-consuming and dilatory. It should not be encouraged. Accordingly, we do not find any illegality in the action taken.

17. In fact, we find that the case of Balbir Singh's (supra) is also a complete answer to the other contentions raised by the petitioners. The Supreme Court in the case of Balbir Singh (supra) has also examined and distinguished the earlier decision in the case of Surjit Ghosh (Supra). It was held by the Supreme Court as under:

"The learned counsel for the petitioner has raised the contention that since the petitioner was required to be dismissed by the disciplinary authority namely, Zonal Manager, who alone is competent to remove him the order of dismissal passed by the Managing Director is bad in law. In support thereof, he placed reliance on a judgment of this Court in Surjit Ghosh V Chairman and Managing Director, United Commercial Bank1. It is an admitted position that as a joint enquiry was conducted against all thdelinquent officials, the highest in the hierarchy of competent authority who could take disciplinary action against the delinquents was none other than the Managing Director of the Corporation. In normal circumstances the Managing Director being the appellate authority should not pass the order of punishment so as to enable the delinquent employee to avail of right of appeal. It is now a well 'settled legal position that an authority lower than the appointing authority cannot take any decision the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action. On that basis, it cannot be said that there will be discrimination violating Article 14 of the Constitution or causing material prejudice. In the judgment relied on by the counsel, it would appear that in the Rules, officer lower in hierarchy was the disciplinary authority but the appellate authority had passed the order removing the officer from service. Thereby, the appellate remedy provided under the Rules was denied. In those circumstances, this Court opined that it caused prejudice to the delinquent, as he would have otherwise avails of the appellate remedy and his right to consider his case by an appellate authority on question of fact was not available. But it cannot be laid as a rule of law that in all circumstances the higher authority should consider and decide the case imposing penalty as a primary authority under the Rules. In this case, a right of second appeal/revision also was provided to the Board. In fact, appeal was preferred to the Board. The Board elaborately considered the matter through the Chairman. It ino violative of Article 14 of the Constitution."

18. It is, therefore, clear from the above observations made by the Supreme Court that the decision in the case of Surjit Ghosh (supra) is to be applied when a delinquent officer is deprived of his right to approach a higher forum by way of appeal. It cannot be universally applied in all cases, when the right to appeal is still available and is not destroyed or taken away. Reference in this regard may also be made to Regulation 69, which provides for appeal against the order of the disciplinary authority. Regulation 69 is as under:-

"69. Appellate Authorities:

An appeal against an order imposing any of the penalties made by the disciplinary authority shall lie to the appellate authority specified in this behalf in Appendix 2 or to any other authority (not lower in rank than the appellate authority specified inAppendix-2) empowered in this behalf by a general or special order of the Board. In other cases, an appeal lies to the authorities next higher to the authority passing the oder."

19. As per last part of Regulation 69 an appeal lies to the authority next higher to the authority passing the order of punishment. Appendix II specifically states that the Chairman is the Appellate Authority in respect of orders and penalties passed by the Managing Director acting as the Disciplinary Authority. An appeal was therefore maintainable before the Chairman against the order passed by the Managing Director acting as a Disciplinary Authority. In the case of the petitioners there is thereforno violation of Regulation 69 as has been suggested by the petitioners. The right of appeal given to the petitioners was protected and in fact exercised by them. No prejudice has been caused to the petitioners.

20.In view of the aforesaid, we feel that the decision of the Supreme Court in the case of Surjit Ghosh (supra) which has again been followed in the case of Electronics Corporation of India v. G. Muralidhar , is clearly distinguishable and not applicable to the facts of the present case and the decision of the Supreme Court in the case of Balbir Chand (supra) is applicable. It may also be noted that in the case of Balbir Chand (supra) the Supreme Court was speciically dealing with the Regulations in question as applicable to the employees of the FCI, the respondent-Corporation. We may also note that in the case of Balbir Chand (supra) reference was also made to the circular No. 9 dated 13.5.80 to contend that even if common proceedings were held, the prescribed Disciplinary Authority as per Appendix II should have taken the decision against the charged employee. This contention was rejected by the Supreme Court holding, inter alia, that the said circular is we rely a guideline and does not in any manner curtail the right of the authorities to initiate common proceedings and a higher authority from acting as Disciplinary Authority of all the delinquent officers against whom common proceedings had been initiated.

21. In view of the aforesaid, we do not find any merit in the writ petition and the same is dismissed. However, the parties are left to bear their own costs.