Food Corporation Of India vs Brs Panwar
2012 Latest Caselaw 4500 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    LPA No.535 of 2012 & CM No.12485 (Stay)

%                            DECISION DELIVERED ON: 30th July, 2012.

       FOOD CORPORATION OF INDIA                             . . . Appellant

                           through :          Mr.    Kamal       Sawhney,
                                              Advocate.

                                 VERSUS

       BRS PANWAR                                       . . .Respondent

through: Nemo.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI (Acting Chief Justice)

CM No.12486/2012 (Exemption) Allowed, subject to just exceptions.

CM stands disposed of.

CM No.12487/2012 (Delay) For the reasons stated in this application, delay in filing the appeal is condoned.

CM stands disposed of.

LPA No.535 of 2012 & CM No.12485 (Stay)

1. This is the second LPA impugning orders dated 04.8.2011 passed by the learned Single Judge allowing the writ petition of the respondent herein. At the time of hearing of the said writ petition, the appellant had remained absent. On the first occasion, LPA No.50/2012 was disposed of vide orders dated

31.1.2012 permitting the appellant to file an application under Order IX Rule 13 of the Code of Civil Procedure. Following is the operative portion of the said order:

"2. We are of the opinion that it would be appropriate for the appellant to file an application under Order IX Rule 13 of the CPC for setting aside of the order as the appellant contends that there was sufficient cause for non-appearance and in that application the appellant can also point out such errors which according to the appellant have crept in the order."

2. The appellant thereafter moved an application before the learned Single Judge giving its reason for non-appearance when writ was argued. This application, however, has been dismissed vide orders dated 30.3.2012 holding that the appellant has not been able to give satisfactory explanation for non-appearance when the matter was heard by the learned Single Judge on 20.7.2012. It is further observed by the learned Single Judge that though the appellant had alleged before the Division Bench that there was certain error in the orders dated 04.8.2011, no such factual mistakes or errors are mentioned in the application. This order is also challenged in the present appeal.

3. In the aforesaid circumstances, we would first advert to the validity of the orders dated 30.3.2012. The ground for non- appearance of the counsel on 20.7.2011 before the learned Single Judge as given in the application was that the Advocate who was appearing for the appellant and entrusted with the matter was depanelled from the list of empanelled Advocates. He was, therefore, not appearing in the matter and this fact was not known to the Regional Office and therefore, steps

could not be taken to engage any counsel. The learned Single Judge held that it was hardly a satisfactory explanation.

4. We agree with the learned Single Judge. On our pertinent query to the learned counsel, he informed that the Advocate who was entrusted with the aforesaid case was depanelled sometime in April, 2010. We fail to understand as to why the appellant could not make any alternate arrangement for almost fifteen months as the case was heard finally only on 20.7.2011. For this inaction, it is the appellant who is to be blamed. We would also like to point out that the learned counsel for the appellant had made a submission at the bar that the Advocate who was depanelled had not returned the file. However, this appears to be after-thought plea, as no such averment was made in the application filed before the learned Single Judge. Further, in these circumstances, it was for the appellant to take steps to retrieve that file, which was not done.

5. Faced with the aforesaid situation, the learned counsel for the appellant vehemently argued that the impugned judgment dated 04.8.2011 is clearly erroneous, as it proceeds on the basis that the inquiry was conducted against the respondent, but no opportunity was given to the respondent to contest the said inquiry. His submission was that it is factually incorrect inasmuch as in the present case, the inquiry was dispensed with invoking the provisions of Regulation 63 of the Food Corporation of India (Staff) Regulations, 1971. Clause (ii) of Regulation 63 is invoked. This Regulation reads as under:

"63. Special procedure in certain cases:

Notwithstanding anything contained in Regulation 58 to Regulation 62:

(i) where any penalty is imposed on an employee on the ground of conduct which has led to his conviction on a criminal charge, or

(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these regulations.

(iii) where the Board is satisfied that in the interest of security of the State, it is not expedient to hold any inquiry in the manner provided in these regulations."

6. In the present case, the admitted facts are that the respondent was served with charge sheet on 15.5.2001. He was to retire on 31.7.2001. Even before he could reply to the said charge sheet, another charge-sheet was issued on 23.7.2011 and he was asked to furnish reply to the same within 10 days. Duration of 10 days was expiring on 02.8.2011 and before that the respondent was retiring on 31.7.2011. The respondent was asked to inspect the relevant documents on 25.7.2011 and to furnish a reply within four days thereafter, i.e., by 29.7.2011. In any case, even before the expiry of 29.7.2011, impugned order was passed on 27.7.2011 stating that inquiry was not reasonably practicable and on the premise that the charges were proved, the Disciplinary Authority passed penalty order. In such circumstance, on the face of it, such an order is erroneous, illegal and unjustified. Learned Single Judge has, therefore, rightly set aside this order.

7. At the end, Mr. Sawhney, learned counsel for the appellant submitted that since there was very serious charge against the appellant, the appellant should have been given an opportunity

to hold an inquiry. However, that is impermissible in the given case. As pointed out above, the respondent had retired on 31.7.2011. At that time, there was no provision or Rules and Regulations of the appellant for continuing the inquiry even after the retirement. We are informed that such a provision is introduced by way of Amendment carried out in 2011 vide Notification No.97 dated 15.5.2007. It is not retrospective. Moreover, no such request or prayer was even made at any stage. We are conscious of the fact that the charge against the respondent was serious. However, that would not mean that the appellant could resort to short-cut procedure unwarranted under law and hold the respondent guilty without giving him any opportunity. Such a situation has been created by the appellant of their own for which they are to be blamed.

8. This appeal is accordingly dismissed as devoid of any merits.

We, however, make it clear that since the penalty imposed upon the respondent is set aside on technical grounds, the outcome of the writ petition or this appeal would not weigh in favour of the respondent in the criminal proceedings, which we are informed, are pending against the respondent. We are also informed that action is taken against some other officers. This order would not inure to their benefits as well.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE JULY 30, 2012 pmc