Abhey Ram vs Food Corporation Of India & Anr.
2009 Latest Caselaw 653 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 1070/2001

                    Judgment delivered on: February 26,2009

Abhey Ram                             ..... Petitioner

              Through:       Mr. Gulab Chandra, Advocate for petitioner.


                            versus


Food Corporation of India & Anr.                 ..... Respondents

              Through: Mr. Jagat Singh, Advocate for respondent.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may                Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                      Yes

3.     Whether the judgment should be reported                   Yes
       in the Digest?


KAILASH GAMBHIR, J. (Oral)

*

1. By way of the present petition filed under Article 226 of

the Constitution, the petitioner seeks issuance of appropriate writ to

quash the order passed by the Managing Director on 25.5.2000, under

Regulation 56 of the FCI (Staff) Regulation, 1971, whereby the

petitioner was held guilty and an order to recover Rs.55,800/- from

the petitioner was passed. The petitioner also assails the order of the

Chairman, FCI dated 11.10.2000 under Regulation 72 of the FCI

(Staff) Regulation, 1971 whereby appeal of the petitioner from order

dated 25.5.2000 of the Managing Director was dismissed.

2. The brief facts of the case relevant for deciding the

present petition are as under:

The petitioner Mr. Abhey Ram was working as District

Manager, FCI at Kurukshetra between the period 9.9.91 to 19.10.93.

A memorandum dated 20.8.99 was received by him whereby he was

charged that while he was functioning as a Distt. Manager

(Kurukshetra) he did not act in the best interest of the Corporation

and resultantly FCI suffered losses to the tune of Rs.1,39,500/- upto

3.11.95. The FCI had entered into a lease agreement for the

purpose of setting up a district office at Kurukshetra on 31.10.85 at

the rent of Rs.1.25 per sq. feet for 3100 sq. feet area (Rs.3875 p.m.)

contrary to the legal opinion. The permission for extension of lease

was sought from District Office, Kurukshetra w.e.f. 4.11.90 to 3.11.95.

Due to non-renewal of the lease agreement w.e.f. 3.11.90, the owner

demanded a hike in rent from Rs. 1.25 per sq. feet to Rs.2 per sq. feet.

The petitioner approached the Regional Manager in this regard who

discussed the same with the Zonal Manager (North), who concurred

that the Corporation should accede to the request of the owner and

therefore, entered into a fresh lease with hiked rate. The petitioner

was thus blamed for the said hike in rent and therefore for the loss

occasioned to the FCI for paying rent @Rs.2 per sq. feet. In reply to

the said memorandum petitioner made a representation to the

Executive Director. On 27.3.2000 petitioner received a memorandum

whereby respondent no.2 informed about initiation of departmental

proceedings against him under Regulation 60 of FCI (Staff)

Regulation, 1991. On 25. 5.2000 petitioner was held guilty under the

said proceedings and an order was also made for recovery of Rs.

55,800/- from him by respondent no.2. Aggrieved with the same the

petitioner preferred an appeal to the respondent no.1, which was

dismissed. Challenging the said order the petitioner preferred the

present petition.

3. Counsel for the petitioner submits that the penalty of

Rs.55,800/- was wrongly and illegally imposed upon the petitioner as

on the relevant date, when the lease with the landlord was to be

extended, the petitioner was not posted as District Manager, FCI,

Kurukshetra. The contention of the counsel for the petitioner is that

the lease with the landlord for premises bearing No. 16, Sector-13,

Urban Estate, Kurukshetra which was under lease with FCI was

initially valid for a period of five years w.e.f. 04.11.1985 to 3.11.1990.

The Regional Office, Haryana vide letter No. B/4/9/79/1808 dated

10.4.1991 granted permission for extension of the lease period w.e.f.

4.11.1990 to 3.11.1995 whereafter the landlord had given a notice for

increase in the rent from 1.25 per sq. feet to 2/- per sq. feet. Counsel

further submits that the enquiry was also held against Mr. Nityanand,

Regional Manager for the same charges but he was burdened to pay

only 10% of the total loss i.e. Rs.30,950/- and upon preferring an

appeal he was completely exonerated while in the case of the

petitioner punishment of 40% of the loss i.e. Rs.55,800/- was imposed

and upon preferring an appeal his appeal was dismissed by the

Appellate Authority. Counsel thus submits that once the charge

against both the officials were the same the appellate authority

committed error in taking two different views holding the appellant

liable to pay the said penalty while reducing the penalty amount of the

Nityanand, Regional Manager up to 10% of the total loss. Counsel

thus submits that the penalty imposed by the respondent is absolutely

illegal.

4. Mr. Jagat Singh, counsel for the respondent, on the other

hand, submits that the petitioner was the concerned officer posted at

Kurukshetra being in charge of that area in his capacity as a District

Manager and he had recommended the enhancement of the rent from

Rs.1.25 per sq. feet to Rs.2/- per sq. feet ignoring the terms of the

lease deed. Mr. Jagat Singh further submits that it was for the

petitioner to have persuaded the landlord to the terms of the lease

deed instead of recommending the enhancement in the rate of rent

which led to the loss of Rs.1,39,500/- to FCI. Counsel thus submits

that the order passed against the petitioner is legal and justified.

5. I have heard counsel for the parties and perused the

record.

6. Indisputably, the initial five years of lease came to an end

on 3.11.1990 and on the expiry of the said period the petitioner was

not holding the charge of District Office as he was posted there only

from 9.9.1991 till 19.10.1993. Primarily, it was the duty of the

District Manager who was posted on the relevant date when the lease

period came to an end as it is then only the steps were required to be

taken by the lessee to seek renewal of the lease period. The

petitioner entered the scene much later, after the expiry of the lease

period and taking advantage of the situation, the lessor demanded

enhancement in the rent since the lease was not renewed. The

petitioner accordingly recommended the enhancement of the rent

from Rs.1.25 per sq. feet to Rs.2/- per sq. feet in conformity with the

demand raised by the landlord. Disciplinary proceedings on account

of the loss sustained by the FCI due to enhancement in the rent were

initiated against the petitioner as well as Mr. Nityanand, Regional

Manager, FCI. The main allegation against the petitioner is that he

ignored the legal opinion of the empanelled advocate despite the

same being brought to his notice by the District Office. The

Disciplinary Authority thus felt that the loss of Rs.1,39,500/- was due

to the lapse of the petitioner. It was also observed by the Disciplinary

Authority that the payment towards the increased rent was agreed to

the detriment of the interest of the Corporation and there was no

compulsion for the petitioner to have agreed for the increase in the

rate of rent when the legal opinion was to the contrary.

7. It is not in controversy that the disciplinary proceedings

were also initiated against Shri Nityanand, the then Regional Officer,

Haryana, and as against him penalty of 10% of the total loss was

imposed although the charges against him were also identical. It is

also not in dispute that the appellate authority vide orders dated

17.10.2000 had completely exonerated the said Nityanand while the

appeal filed by the petitioner was dismissed by the Appellate

Authority. Once charges against the petitioner as well as the said

Nityanand were almost identical therefore no separate penalties could

have been awarded by the Disciplinary Authority and no different

decision could have been taken by the Appellate Authority in the order

passed by the Appellate Authority. In this regard, the Division Bench

of this court dealing with a similar issue, in Union of India Vs.

Tejvir Singh -2006 (132) DLT 104 observed as under:-

4. We have heard learned Counsel for the parties who have taken us through the inquiry proceedings and the evidence recorded. We are, prima facie, of the view that evidence as recorded is indicative of these two having taken an active role in the misconduct, and thereforee, it cannot be said that they should not have been awarded punishment different from others who have been given reduction in rank/pay.

Be that as it may, the petitioner was not Incharge of the District on

the relevant date when the decision was required to be taken by the

lessee for the extension of the lease period. The petitioner was posted

at the place later i.e. on 9.1.1991 and therefore, I do not find that the

blame for the loss as occasioned to the respondent FCI could have

been fastened upon the petitioner. No doubt the petitioner should

have taken care to respect the legal opinion given by the counsel

representing the FCI and should have also taken a prior permission

before taking a decision to enhance the rent but in any event of the

matter the petitioner cannot be held responsible for the loss caused to

the respondent.

8. In the light of the above, the petition is allowed. The order

dated 25.5.2000 of the Disciplinary Authority and order dated

11.10.2000 of the Appellate Authority are set aside. The respondent

is directed to pay back the amount recovered from the petitioner

within a period of one month.

With these directions, the petition is disposed of.

February 26, 2009                          KAILASH GAMBHIR, J.
pkv