Asha Ram vs The Food Corporation Of India
2010 Latest Caselaw 5541 Del

R-114
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 02.12.2010
                  Judgment Delivered on: 06.12.2010

+                        RSA No.168/2002

ASHA RAM                                 ...........Appellant
                   Through:    Mr.R.K.Kapoor, Advocate.

                   Versus

THE FOOD CORPORATION OF INDIA   ..........Respondents
             Through: Mr.P.L.Chopra, Advocate.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                  Yes

     3. Whether the judgment should be reported in the Digest?
                                                                Yes
INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

13.8.2002 which had endorsed the finding of the Trial Judge dated

15.1.2002 whereby the suit of the plaintiff Asha Ram had been

dismissed.

2. The plaintiff was appointed as an Assistant Manager with the

Food Corporation of India (FCI). His contention was that he was

illegally removed from his services. Charge sheet had been issued

by the Senior Regional Manager who was below the rank of

Appointing Authority; he had no jurisdiction to issue the charge

sheet on a major penalty against the plaintiff. The Zonal Manager

was the Appointing Authority as also the Disciplinary Authority; he

alone could have issued the charge-sheet. In July 1994 one

Technical Assistant namely Bhim Sen working under the plaintiff at

the Food Storage Depot, Bhadaur had applied for his leave RSA No.168/2002

between 20.7.1994 to 27.7.1994. Tej Singh, another Technical

Assistant also applied for a six day casual leave w.e.f. 21.7.1994 to

23.7.1994 and then from 25.7.1994 to 27.7.1994. Subsequently

their leaves were recommended. To protect the interest of the

Corporation in the absence of the aforestated technical assistants,

the plaintiff made a local arrangement and on 21.7.1994 deputed

Mahesh Kumar a Technical Assistant, Grade-I to look after the

works at Bhadaur in addition to his duties at Tapa in order that the

work of Bhadaur did not suffer. This arrangement was made by

the plaintiff with a prior intimation to the District Manager.

Mahesh Kumar joined duties at Bhadaur on 21-22.7.1994. In this

period Mahesh Kumar offered to accept agency mill rice at Food

Storage Depot Bhadaur for delivery and 103 consignments were

accepted by him; this was done by Makesh Kumar at his own level

without the knowledge of the plaintiff. On this information

Inspector of Food and Civil Supply suspecting the rice to be sub-

standard took samples of this rice which had been accepted by

Mahesh Kumar. Manohar Lal on the directions of the District

Manager had proceeded to Bhadaur for drawing the samples. He

had submitted a false reported against the plaintiff. This was with

a malafide intention. All this happened in the absence of the

plaintiff who was busy over his own work. Plaintiff in fact gained

knowledge about this fact from other sources. Complaint was filed

against the plaintiff. Plaintiff was placed under suspension vide

suspension order dated 3-5.9.1994. This order was passed by

defendant no.3 who had no jurisdiction to do so. Enquiry was

conducted whereby the plaintiff was dismissed. The present suit

was accordingly filed praying that the enquiry proceedings i.e. RSA No.168/2002

enquiry report dated 19.5.1995 and the penalty imposing dismissal

of service of the plaintiff dated 15.1.1995 be declared null and void

and he be re-instated with all back wages.

3. Defendant had contested the suit by filing written statement.

It was stated that the plaintiff was involved in the various vigilance

cases. These had been concealed by the plaintiff; plaintiff had not

availed of the remedy before the appropriate forum; he could not

have filed a suit straightway. Reliance had been placed upon

Regulation 57(2) of the Food Corporation of India (FCI) (Staff)

Regulations 1971; it was stated that the defendant no.3 was

competent to issue the charge sheet as also to pass the suspension

order. It was stated that the plaintiff had intentionally permitted

the two Technical Assistants to go on leave in order that he could

avail services of Mahesh Kumar to accept sub-standard rice from

the rice miller at Bhadaur. This was in collusion with Mahesh

Kumar; this had caused loss to the rune of Rs.1.64 crores to the

department. Enquiry was conducted within the ambit of Rules and

Regulations of defendant no.1.

4. On the pleadings of the parties eight issues had been framed.

Issue nos.5,6 and 7 are relevant and were disposed of by a common

discussions. They read as follows:

"................

v. Whether there exists any cause of action in favour of the plaintiff and against the defendant for the purpose of the present suit? OPP vi. Whether the plaintiff is entitled for the relief of declaration as claimed as per the prayer clause? OPP vii. Whether the plaintiff is entitled for the consequential relief of reinstatement with back wages as claimed as per the prayer clause? OPP ................ "

RSA No.168/2002

5. The trial judge held that under Regulation 57(2) defendant

no.3 the Senior Manager was competent to issue charge sheet as

also suspension order. The penalty of removal of services was in

proportion to the charges established against the plaintiff. Plaintiff

had been granted ample opportunity to cross-examine the

witnesses in the enquiry proceedings; enquiry was in accordance

with the principles of law. No bias had accrued to the plaintiff.

Suit of the plaintiff was dismissed.

6. In appeal the impugned judgment dated 13.8.2002 had

confirmed this finding.

7. This is a second appeal. It was admitted and three

substantial questions of law were formulated on 02.7.2003; which

were thereafter amended on 19.11.2008; they inter alia read as

follows:

"1.Whether chargesheet and inquiry were issued/conducted by a competent authority and whether Regulation 57(2) of the Food Corporation of India (staff) Regulations, 1971 was properly applied in this behalf?

2. Whether the punishment imposed upon the appellant was disproportionate?

3. Whether there was violation of principles of natural justice?"

8. Learned counsel for the appellant has urged that the first

substantial question of law has to be addressed and if this finding

is in his favour the other two questions need not be answered. It is

pointed out that Rule 57(2) of the FCI Regulations did not permit

the Senior Manager to issue charge sheet or to place the plaintiff

under suspension. This had vitiated the entire proceedings.

Reliance has been placed upon AIR 1969 Assam & Nagaland High

Court Manihar Singh Vs. Supdt. Of Police, Shilong to substantiate

his submission that framing of charges, holding of an enquiry into RSA No.168/2002

them, the suspension of the civil servant during the enquiry, the

notice to show cause, are all steps in the exercise of the

disciplinary powers; all these steps are required to be taken by the

disciplinary authority and not by his delegate. It is submitted that

in view of the ratio of the judgment of the Apex Court reported in

1999- (003)-SCC-0422-SC Babu Verghese & Ors. Vs. Bar Council of

Kerala & Ors., the Supreme court had clearly held that the basic

principle of law has long been settled that when a particular act is

prescribed under any statute, that act must be done in that manner

or not at all. In this case the Rule 57(2) of the Regulations of the

FCI have not been adhered to. Reliance has also been placed upon

AIR 1989 SC 1582 Marathwada University Vs. Seshrao Balwant

Rao Chavan to point out that the power to regulate work and

conduct of officers cannot include the power to take disciplinary

action for their removal.

9. Arguments have been countered. Attention has been drawn

to the provisions of Rule 54 and 57(2) of the FCI Regulations 1971.

10. Relevant it would be to extract the said Rules. They read as

follows:

"54. Penalties:

Notwithstanding anything contained in any other regulation, and without prejudice to such action to which an employee may become liable under any other regulation or law for the time being in force, the following penalties may (for good and sufficient reasons and as hereinafter provided) be imposed on any employee of the Corporation.

             Minor Penalties
             (i)       censure;
             (ii)      withholding of his promotion;
             (iii)     recovery from his pay of the whole or part of any

pecuniary loss caused by him to the Corporation by negligence or breach of orders;

             (iv)      withholding of increments of pay;
RSA No.168/2002

              Major Penalties
             (v)          reduction to a lower stage in the time-scale of pay

for a specified period, with further directions as to whether or not the employee of the Corporation will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;

(vi) reduction to a lower time-scale of pay or post which shall ordinarily be a bar to the promotion of the employee to the time-scale of pay or post from which he was reduced, with or without further directions regarding conditions of restoration to the post from which the employee of the Corporation was reduced and his seniority and pay on such restoration to the post;

             (vii)        compulsory retirement;
             (viii)        removal from service which shall not be a

disqualification for future employment under the Corporation;

(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Corporation.

57. Authority to institute proceedings:

(1) The Board or the authority specified in Appendix 2 in this behalf or any other authority (higher than the authority specified in Appendix 2) empowered in this behalf by general or special order of the Board may:

(a) institute disciplinary proceedings against any employee of the Corporation;

(b) direct a disciplinary authority to institute disciplinary proceedings against any employee of the Corporation on whom that disciplinary authority is competent to impose under these Regulations any of the penalties specified in Regulation 54.

(2) A disciplinary authority competent under these regulations to impose any of the penalties specified in clauses (i) to (iv) of Regulation 54 may institute, disciplinary proceedings against any employee of the Corporation for the imposition of any of the penalties specified in clauses (v) to (ix) of Regulation 54 notwithstanding that such disciplinary authority is not competent under these regulations to impose any of the latter penalties."

RSA No.168/2002

11. Rule 57(2) clearly states that a disciplinary authority who is

competent under these regulations to impose a penalty specified in

Clause (i) to (iv) of Regulation 54 may institute disciplinary

proceedings against any employee of the Corporation for major

penalty which is specified in Clause (v) to (ix) of Regulation 54.

This is accompanied by the rider which is a non-obstante clause

stating that this power is available to this disciplinary authority

notwithstanding that this disciplinary authority is not competent

otherwise under these regulations to impose this latter penalty i.e.

the major penalty. Meaning thereby that the disciplinary authority

who is not competent to impose the major penalty under Rule 54

may still be competent to institute disciplinary proceedings against

such an employee.

12. Circular No.16 dated 09.1.1989 has further clarified Rule

57(2). A distinction between the institution of the disciplinary

proceedings against an employee for imposition of a major penalty

and the actual imposition of a major penalty had been drawn. The

aim of the circular as is clear from the para 4 was to clarify this

position with regard to initiation and the final disposal of the cases

started under the provisions of Regulation 57(2). Clause (4) reads

as follows:

"4. Where a lower authority such as the District Manager/Regional Manager feels that proceedings for major penalty against a Class-

III/II employees are called for, such an authority may himself frame the charge memo, sign the same and issue it to the delinquent official concerned. Such an authority may also proceed to examine the reply received from the official concerned and appoint an Inquiry Officer as well as a Presenting Officer, if necessary. On completion of the inquiry, the authority who ordered the inquiry should examine the proceedings and if he comes to the conclusion that only a minor penalty is called for, he will award the same and close the case at his own level. However, RSA No.168/2002

if on examination the proceedings, comes to the conclusion that the case deserves a major penalty, he will pass on the proceeding to the competent authority i.e. Regional Manager/Zonal Manager for further disposal."

13. The clarification made in this Circular has answered the

query raised by the learned counsel for the appellant. The

submission of the learned counsel for the appellant that a circular

cannot substitute the provision of a Regulation which has a

statutory force is without any merit; this circular has only clarified

what is contained in Regulation 57(2); it has cleared the ambiguity

if any.

14. Rule 57(2) thus gave power to the Senior Regional Manager

(who in this case was defendant no.3) to issue the charge sheet as

also to place the plaintiff under suspension which was in

accordance with the aforenoted rules. There is no violation of the

same. The judgments relied upon by learned counsel for the do not

come to his aid.

15. The facts adduced before the Enquiry Officer which had led

him to impose a major penalty upon the plaintiff had been

appreciated and re-appreciated by the two fact finding Courts

below i.e. the Court of Civil Judge and Court of the Additional

District Judge. Both had found no merit in the contention raised; it

was held that a fair opportunity had been granted to the

plaintiff/delinquent to present his case. He had himself cross-

examined the witnesses.

16. These Articles of Charge has been leveled against the

delinquent; they read as follows:

"Article-I That he allowed leave to the two TA's posted at FSD

RSA No.168/2002

Bhadaur to make room for Sh.Mahesh Kumar TA-I, to accept the rice at Bhadaur who was deployed from Tapa to lookafter the work of the TA's during their leave period. He did not obtain approval of the Distt.Manager for making this arrangement for which he was not competent as TA/DA was involved. This was done in collusion with Sh.Mahesh Kumar TA-I who accepted BRL rice valuing Rs.1.64 crores at FSD Bhadaur.

Article-II That from 22.7.94 to 27.7.94, 103 rice consignments consisting of 25650 bags pertaining to agency milling valuing Rs.1.64 crores falling beyond rejection limit were accepted under his direct supervision with malafide intention to derive monetary gains for himself and in lieu thereof he gave undue favour to the Rice Millers in the matter of acceptance of their substandard rice. Thus he put the corporation to huge pecuniary losses. Article-III That he failed to exercise effective supervisory checks rather he in connivance with Sh.Mahesh Kumar TA-I, sent improved samples to the DFSC Lab.Barnala after a gap of 16 to 20 days to further has vested interests. Thus he committed a fraud against the corporation with predetermined idea."

17. Report of Enquiry Officer is dated 19.5.1995, Article-I stood

fully proved excepting cost of BRL rice. Article-III was partly

proved; it was proved that the delinquent Asha Ram had failed to

exercise effective supervisory check on Mahesh Kumar when the

latter accepted rice at Bhadaur; this was all the more necessary

when permanent staff posted at Bhadaur had been sent on leave by

him and Mahesh Kumar had been detained temporarily to look

after this work. The act of the plaintiff in permitting the technical

assistants to go on leave to avail the services of Mahesh Kumar

whose act of acceptance of sub-standard rice and not exercising

the due supervisory control over him were serious charges calling

for the major penalty of dismissal of service of the plaintiff.

RSA No.168/2002

18. In (1975) 2 SCC State of A.P.Vs. Chitra Venkata Rao the

Supreme Court had held:

"..........The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court..........."

19. A Court does not sit in an appeal over the finding of an

Enquiry Officer; only if the findings of the Enquiry Officer are

perverse and opposed to the principles of natural justice is an

interference called for. No such case is made out. This has been

held by both the Courts below.

Substantial questions of law are answered accordingly. There

is no merit in the appeal; it is dismissed.

(INDERMEET KAUR) JUDGE DECEMBER 06, 2010 nandan

RSA No.168/2002