Ram Naresh vs Fci& Ors.
2013 Latest Caselaw 5069 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 1516/1999
%                                                    6th November, 2013

RAM NARESH                                                 ......Petitioner
                          Through:       Mr. K.C.Mittal and Ms. Anjali Nehra,
                                         Advocates.


                          VERSUS

FCI& ORS.                                                  ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. For the sake of convenience, the legal heirs of the petitioners

are referred to as the petitioners for the purpose of this judgment. Petitioner,

by this writ petition impugns the orders passed by the departmental

authorities; of the disciplinary authority dated 12.8.1998 and the appellate

authority dated 19.12.1998; whereby the petitioner has been imposed the

penalty of dismissal from services.

2. Petitioner was employed as an Assistant Manager (Quality

Control) with Food Corporation of India (FCI)-respondent no.1. Petitioner

was issued the charge-sheet dated 16.7.1996 making allegations against him

of receiving sub-standard rice, and not giving the necessary quality control

certificates, and dispatching the sub-standard rice to two destinations at

Sagar and Avadi. Petitioner is charged with connivance with the other

officials and causing loss of crores of rupees to the respondent no.1. The

statement of article of charges against the petitioner reads as under:-

"STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI RAM NARESH, ASSISTANT MANAGER (QC), FCI, SAFIDON.

" That Shri Ram Naresh, while posted and functioning as Assistant Manager (QC) Safidon during the year 1996 failed to maintain absolute integrity and devotion to duty inasmuch as that he allowed acceptance of substandard/BRL rice in connivance with Technical Assistants, posted under him as well as the Millers, putting FCI to huge losses.

During joint analysis of the remanant stocks available in six stocks at Safidon as on 19/20.6.96 (out of which the rice had been dispatched to Sagar ex-Safidon on 17/18.6.96)the stocks were found to be beyond rejection limit in respect of brokens, dehusked, chalky, damaged and discoloured grains. Because of disturbing joint analysis results, it was decided to go for disturbing joint analysis results, it was decided to go for joint inspection of the stocks at destination i.e. Sagar as SRM, Bhopal confirmed on telephone on 20.6.96 that rice specials has been received at Sagar and same is being unloaded. In order to confirm acceptance of BRL rice at dispatching and and its subsequent despatches it was decided to conduct joint inspection of the Safidon stocks at destination report i.e Sagar.

The joint sampling/analysis of the stocks received at Sagar revealed that all the 29 samples drawn and jointly analysed were found behond rejection limit in respect of broken and dehusked grains (Broken ranging from 34% to 52% against the rejection limit of 24% and dehusked grains ranging from 20% to 42% against the rejection limit of 13%).

Apart from this, a quality complaint has also been received from Avadi vide telegram No.QC.5(2)/96 dated 19.6.96 revealing that the rice stocks dispatched ex-Safidon to Avadi on 6/7.6.96 were beyond rejection limit in respect of brokens (ranging from 25% to 32% against the rejection limit of 24%), apart from being dull is appearance and non- homogenous nature.

From aboveincidences it is very obvious that Shri Ram Naresh had given free hand to tech. staff to accept BRL rice stocks from Rice Millers against monitary consideration and he had been an active member of entire episode of acceptance of large scale BRL rice at Safidon for which destination have sent As amount to crores of rupees.

Shri Ram Naresh, Asstt. Manager (QC) also failed to issue quality certificate in respect of any consignment of rice, procured at Safidon during his stay at the centre, though such certificates were required to be issued on day-to-day basis.

Thus, Shri Ram Naresh, Asstt. Manager (QC), Safidon functioned is a manner unbecoming of an officer of FCI is connivance with the Technical staff posted under him as well as the Millers of Safidon, by putting FCI to incur huge losses. He thereby violated Regulation 31 and 32 of FCI (Staff) Regulations, 1971."

3. Common proceedings were conducted against the petitioner and

several other employees/officers of respondent no.1. All the charge-sheeted

officials including the petitioner appeared in the departmental proceedings.

Departmental proceedings were contested and evidence was led by both the

parties. The enquiry officer thereafter gave a detailed report running into as

many as 79 pages holding that the charges against the officials including the

petitioner stand proved. There were a total of six officials against whom

enquiry proceedings were conducted and all of them have been held guilty

as per the report of the enquiry officer dated 9.3.1997.

4. Before turning to the arguments urged on behalf of the

petitioner, it is necessary at this stage to set down the scope of hearing of a

petition under Article 226 of the Constitution of India challenging the orders

passed by the departmental authorities. It is settled law that this Court does

not sit as an Appellate Court to re-apprise the findings of facts and

conclusions of the departmental authorities. This Court can only interfere if

there exists perversity of findings or violation of any rule of the employer-

organization or the proceedings of the departmental authorities violate the

principles of natural justice. In the present case, the writ petition has been

argued on all the three grounds of perversity of findings, violation of

principles of natural justice and violation of rules of the employer-

organization.

5. The following arguments have been urged on behalf of the

petitioners for impugning the orders passed by the departmental authorities:-

(i) Rule 62 of the FCI (Staff) Regulations, 1971) has been violated

because consent was not taken of all the disciplinary authorities with respect

to all the officers for taking departmental action. It is argued that consent is

required to be taken with respect to holding of common proceedings from all

the disciplinary authorities with respect to each of officer concern.

(ii) Petitioner is not liable to give the quality control certificates and in

fact only the Technical Assistants were to give the quality control

certificates. Petitioner in fact had complained against the Technical

Assistants earlier in April, 1996 itself with respect to their committing

negligence by accepting sub-standard rice, but no action was taken against

these Technical Assistants and hence petitioner cannot be held to be guilty.

As a continuation of this argument, it is also contended that principles of

natural justice have been violated by the department for not filing this

telegram of April, 1996 in spite of being called for by the petitioner.

(iii) The petitioner stands discharged with respect to the dispatch to Avadi

inasmuch as the enquiry officer's report itself states this position and hence

petitioner is exonerated to this extent.

(iv) Petitioner was, on many of the days, either on tour or on leave, and

therefore, for the dispatches or receipt of such days, petitioner cannot be

held guilty of having received and dispatched sub-standard materials.

(v) There is violation of principles of natural justice and hence the orders

of the departmental authorities are bound to be set aside because petitioner

wanted three witnesses to be examined on his behalf, however, only two

witnesses were examined and third witness Sh. N.P.S. Rana (Assistant

Manager) was not examined whose evidence was very relevant and material.

(vi) No personal hearing was given by the disciplinary authority and hence

the order of the disciplinary authority violates the principles of natural

justice.

6(i) So far as the first argument is concerned, this issue has already

been decided against the petitioner in terms of the order dated 7.7.1997

passed by the Supreme Court in Civil Appeal No. 4379/1997 titled as Food

Corporation of India & Ors. Vs. Satish Kumar wherein the Supreme Court

has negated the contention that the consent has to be taken of all the

disciplinary authorities with respect to every officer at the stage of

commencement of the enquiry. Supreme Court has held that the consent is

only required at the stage of passing of the order of punishment by the

disciplinary authority and not at the stage of commencement of the

departmental action as was sought to be argued by relying upon Regulation

62. Following portion of the order of the Supreme Court makes this clear :-

"It is clear from Clause (1) of Regulation 62 read with the Note appended thereto that in a case like the present where the authorities competent to impose the penalty of dismissal on such employees are different, an order for taking disciplinary action as a result of the common proceedings has to be made by the highest of such authorities with the consent of the others. To this extent the direction given by the High Court in the

impugned judgment is contrary to and in conflict with Regulation 62. The same has, therefore, to be modified accordingly.

Accordingly, the appeals are allowed and the High Court's direction is modified by clarifying that the action on the Inquiry Officer's report would be taken in accordance with the requirements of Regulation 62 inasmuch as the order for taking disciplinary action would be made by the highest of such authorities with the consent of the others.

The appeals are allowed to this extent."

(ii) The first argument therefore urged on behalf of the petitioner is

rejected that consent of all the disciplinary authorities with respect to all the

officers against whom common proceedings were to be taken was to be

taken at the stage of commencement of the departmental action, and it is

held that there was no requirement to take consent at the stage of

commencement of the departmental action.

7(i) The second argument which is urged on behalf of the petitioner

is by placing reliance upon the circular of the respondent dated 21.11.1995

and para 14 thereof. This para-14 reads as under:-

"14. Since the acceptance of the depot level by the TA is final and binding, therefore, quality certificate/acceptance note/analysis report will be signed by TA himself and payment will be made by the Distt. office only."

On the basis of the aforesaid paragraph, it is argued that petitioner had

no duty to issue quality control certificates.

(ii) The second argument urged on behalf of the petitioner once

again is misconceived and rejected for the reason that respondent no.1 has

rightly in the counter-affidavit referred to para 20 of the subject circular

which states that even the Assistant Manager (QC) continues to have

responsibility for checking the stocks although, not the entire stock but the

limited percentage as specified in para 20. This para 20 reads as under:-

"20. For proper supervision and checked, concerned AM(QC) will ensure minimum25%, DM(QC) 10% and the Distt. Manager 5% checks of the consignments as accepted by TA at the depot, SRM, RM, JM(QC) and DM(QC) posted in the Region will also ensure timely inspection of the stocks being procured in their Region."

(iii) Therefore, the argument urged on behalf of the petitioner that

petitioner was not at all responsible for quality control certificates and did

not have to check the quality of stocks is a misconceived argument and

rejected. To the extent of percentages of the stock as mentioned in para 20

of the circular dated 21.11.1995, petitioner had to issue QC certificates and

before that checking of stocks also as per the percentages specified in the

circular had to take place.

8. The related argument urged on behalf of the petitioner that

petitioner had made a complaint against two Technical Assistants way back

in April, 1996, and which telegram ought to have been allowed to have been

filed which would have shown that the petitioner was not to be held guilty, is

again an argument without merit because the fact that Technical Assistants

were guilty cannot mean that the petitioner was also not guilty in not

complying with the requirements of para-20 of the circular dated

21.11.1995. This argument therefore urged on behalf of the petitioner is also

rejected.

9. The next argument which was urged on behalf of the petitioner

was that petitioner should be held not guilty with respect to the Avadi

consignment inasmuch as the enquiry officer's report itself exonerates the

petitioner. The argument urged on behalf of the petitioner is not a correct

argument because petitioner has only given selective portions of the enquiry

officer's report and when we see the complete paragraph with respect to the

Avadi dispatch, it becomes clear that there were charges with respect to 8

other wagons as regards dispatches made to Avadi which have not been

dropped, and therefore it does not lie in the mouth of the petitioner to say

that with respect to all dispatches at Avadi, charges were dropped.

10. The argument urged then on behalf of the petitioner that the

petitioner has not been given any personal hearing by the disciplinary

authority and therefore principles of natural justice are violated, is once

again an argument without merit because admittedly, there is no rule of the

respondent no.1 which is pointed out to this Court which states that personal

hearing has to be granted. Once, there is no rule requiring personal hearing

and the petitioner did make a representation in writing against the report of

the enquiry officer to the disciplinary authority and which was duly

considered, it cannot be said that the principles of natural justice have been

violated. The enquiry officer's report is a detailed report and which was

drawn up after oral arguments were heard of all the parties and also

submissions of all the parties were taken into consideration. Once there is

no rule of the organization of personal hearing, there is no requirement that

the petitioner should be personally heard inasmuch as no judgment to this

effect is cited before this Court. Since there was no rule requiring personal

hearing, it cannot be said that petitioner had to be heard personally by the

disciplinary authority failing which principles of natural justice would be

violated. It may be noted that petitioner after the enquiry officer gave his

report on 9.3.1997 was given a show cause notice dated 23.7.1997 by the

disciplinary authority inviting his comments to the enquiry officer's report

and the petitioner gave his representation in terms of his written

representation dated 8.8.1997. It is also not disputed that petitioner received

the enquiry officer's report before making his representation dated 8.8.1997.

Accordingly, I hold that there is no violation of principles of natural justice

as is argued on behalf of the petitioner.

11. Petitioner thereafter argued that he was on leave on various

dates or on official tour on other dates and therefore qua those dates

petitioner cannot be held guilty. In my opinion, this argument is also

without merit and it has been rightly answered on behalf of respondent no.1

in the counter-affidavit as under:-

"2(i) Averments made in para 2(i) are factually not correct and hence denied. The petitioner was charge sheeted for functioning in a manner unbecoming of an officer of the FCI in connivance with the Technical Staff posted under him at Safidon as well as millers by putting FCI to incur huge losses in so doing he had violated the Regulations 31 and 32 of the FCI(Staff) Regulations, 1971. The Technical Staff are supposed to accept the stocks whether AM(QC) is on duty, tour or leave. But it was the primary duty of the petitioner to check the stocks accepted by the TAs as per circular. It has been observed that the petitioner was on tour to Distt. Office on 4.6.96 and 7.6.96 and came back to his Hqrs. i.e. Safidon on the same day. He had further gone to Distt. Offic. Karnal on 17.6.96 and returned to Safidon on the same day. He was on leave on 10th & 11th June, 1996. The above position did not preclude him from checking the quality of stocks accepted when he was on tour or leave for short duration. The petitioner was duty bound to have checked 25% of the stocks immediately on return from tour/leave which he failed to do . Therefore, the plea of the petitioner that he was not responsible for acceptance of BRL stocks during his tour/leave period cannot be accepted.

2(k) In reply to para 2(k) it is stated that the tour/leave of the petitioner is a matter of record. The petitioner was on tour/leave on the following dates:-

27th, 28th May, 1996, 4th, 7th 10th, 11th, and 17th June, 1996.

It has been submitted by the petitioner that on 17.6.1996, the petitioner was on tour to Rohtak Karnal and he returned back to Safidon on the same day. The dispatch to Sagar took place on 17.6.1996 and continued up to midnight of 17th June, 1996. Hence even though the petitioner was on tour on 17th June, having come back in the evening and in view of the fact that the despatches continued into the late hours, the petitioner cannot say that the despatches to Sagar were not in the presence. Further the petitioner being the supervisory officer and available during the dispatch, was duty bound to supervise the despatches. He cannot, therefore, take the plea as a convenient after thought that he was not present during the despatches to Sagar. It is further stated that even though the Technical Asstts purchased the huge quantity of BRL rice stocks, the petitioner cannot escape from the responsibility being a supervisory officer, as it is his duty to supervise 25% of the accepted stocks by the subordinate staff. The contention of the petitioner that he could not supervise the purchase made by the TAs as he was on tour/leave cannot be accepted as this averment is frivolous and hence denied. It is his primary duty to supervise/inspect the purchase made by the TAs. and there is no provision in the FCI for making alternative arrangements when an officer will be on short leave/tour." (underlining added)

12. It may noted that the enquiry proceedings were conducted with

respect to the dispatch of huge quantity of stocks, and merely because on

some days petitioner was on leave or was on tour cannot take away the

overall responsibility of the petitioner for checking of the stocks, and which

was his responsibility in terms of para-20 of the circular dated 21.11.1995 as

reproduced above. Also, the respondent no.1 has rightly stated in the

counter-affidavit that petitioner after coming back from tour had enough

time to check the stocks which were loaded and dispatched till around

midnight. I would like to state that I do not find any perversity in the

findings and existence of which is a sine qua non for interfering with the

findings of the departmental authorities and this Court cannot sit as an

Appellate Court to change the findings merely because another view is

possible. On the conspectus of the facts of the case petitioner cannot

absolve himself of responsibility of accepting and dispatching of sub-

standard stocks. Various facts, documents witnesses etc etc have been

considered for holding the petitioner guilty and exercising of jurisdiction

under Article 226 of the Constitution of India, I do not sit as an Appellate

Court to change the findings where two views are possible. This argument

urged on behalf of the petitioner is also therefore rejected.

13. So far as the argument of the petitioner of non-examination of

the third witness Mr. Rana is concerned, the same is without merit because a

reference to Para 2(i) of the petition shows that except averring that evidence

of Mr. Rana was material and petitioner is prejudiced no material particular

are given how the testimony of Mr. Rana was material and how the

petitioner is prejudiced. Also the respondent no.1/FCI has rightly countered

by stating the following in the counter-affidavit.

"2(f) That in reply to para 2(f) as per inquiry report, the petitioner had produced three defence witnesses and the Inquiry Officer allowed only two witnesses i.e. S/Shri Rajinder Singh, AG-III and Sunil Kumar Thukral, TA-I of Distt. Office, Rohtak, and the witness of Sh. N.P.S.Rana OM(QC) may not have been considered relevant by the I.O. because there was a separate DM(QC) for Rohtak Distt. and Shri Rana was not concerned with the quality aspects of Rohtak Distt. in which Safidon falls. When substandard stocks were accepted under the supervision of Shri Ram Naresh, Sh. R.G.Sharma was the DM(QC)."

14. In view of the above, I do not find any merit in any of the

arguments urged on behalf of the petitioner. The writ petition being without

any merit is accordingly dismissed, leaving the parties to bear their own

costs.

NOVEMBER 06, 2013                           VALMIKI J. MEHTA, J.
ib