Delhi High Court
Sh. Harish Kumar Sharma vs Food Corporation Of India And Anr. on 22 November, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.7328/2013
% 22nd November, 2013
SH. HARISH KUMAR SHARMA ..... Petitioner
Through: Mr. Avanish Kumar, Advocate.
Versus
FOOD CORPORATION OF INDIA AND ANR. ...Respondents
Through: Mr. Rajeshwar Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition impugns the order dated 5/10.4.2013
dismissing the second representation of the petitioner for reconsideration
of his pre-mature retirement vide order dated 14.2.2006.
2. The impugned order dated 5/10.4.2013 notes two important
points. First is that there is no provision for second representation/review
in case of pre-mature retirement. Second is that there are as many as 22
charges against the petitioner (12 major and 10 minor) and which talk of
grave fraud and huge loss to the respondent no.1 on account of petitioner
wrongly purchasing food grains which were not as per standards.
W.P.(C) No.7328/2013 Page 1 of 5
3. Since the order dated 5/10.4.2013 is a short order, I would like
to reproduce the same and which reads as under:-
" ORDER
Whereas Sh. Harish Kumar Sharma, ex-TA-I was prematurely
retired from the services of the Corporation under Regulation 22(2)
of FCI (Staff) Regulations, 1971 vide order dated 14.02.2006 by
GM, Punjab.
Whereas against the said order, petitioner submitted a
representation dated 01.03.2006 to the Executive Director (North).
The representation of the petitioner was placed before the Review
Committee duly constituted under the Chairmanship of Executive
Director (North) in accordance with the instructions on the subject.
Whereas after considering the relevant facts of the case, the
Committee rejected the representation of Sh. Harish Sharma.
Aggrieved petitioner filed WP(C) 6380/2012 in the High Court of
Delhi. It was directed by the Hon'ble Court to respondent No.2 i.e.
Chairman & Managing Director, FCI vide order dated 08.10.2012 to
decide the petitioner dated 09.01.2007.
Whereas the petition dated 09.01.2007 has been examined and it
is observed that the petitioner has been prematurely retired under
Regulation 22(2) of FCI (Staff) Regulations as per the GOI and FCI
instructions, there is no provision for consideration of second
representation/review in case of premature retirement under
Regulation 22(2) of FCI (Staff) Regulations.
However, on examining the case, it emerges that the competent
authority i.e GM, Punjab while passing order dated 14.02.2006 for
premature retirement of Sh. Harish Kumar Sharma under regulation
22(2) also directed that the pending proceedings under major and
minor penalty cases in respect of which charge sheets have already
been issued to him, shall continue for recovery of the losses. It also
appears from the order dated 14.02.2006 that gratuity of Sh. Harish
Kumar Sharma has also been forfeited.
W.P.(C) No.7328/2013 Page 2 of 5
Whereas, there was no provision in the Staff Regulation for
continuation of disciplinary proceedings after retirement, Regulation
60(A) which provides for disciplinary proceedings after the
retirement of the employee was incorporated in the FCI (Staff)
Regulations vide Notification No.97 dated 15.05.2007.
WHEREAS, it is also evidence that the official has been prematurely
retired from the services of the Corporation after considering the
instructions on the subject and after following the due procedure.
The screening committee has considered all the aspects and
observed that the official belongs to Quality control cadre and the
incumbents operating this cadre have a pivot role to play in
procuring the food grains meant for human consumption under
public distribution system by the poor consumers. The Government
of India incurs huge expenditure to make the food grains available to
the consumer in the deficit states in every corner of the country. By
virtue of the post which the official has been holding, his basic duty
was to accept the food grain strictly confirming to the laid down
specifications preserve it properly in the godowns till its dispatch to
the deficit states. But perusal of his past record and performance
indicates that he repeatedly indulged into malpractices and utterly
failed to discharge his assigned duties in as much as he played a
havoc with the precious food grains by way of acceptance/dispatch
of stocks not confirming to the specifications with malafide
intentions, thereby causing colossal loss to the corporation for which
he has been charge sheeted in 12 major, 10 minor penalty cases i.e.
total 22 cases, out of which he has been imposed penalties in 3
cases. 10 major and 9 minor penalty cases were still pending against
him at the time of premature retirement. Despite imposition of
penalties and affording adequate opportunities, he has not improved
his performance/conduct. By doing so, he has tarnished the image
of the Corporation in the eyes of the public and brought disrepute to
the organization. Therefore, continuation of petitioner would be
detrimental to the interest of the Corporation.
Whereas, it emerges from record that the decision of premature
retirement of Sh. Harish Kumar Sharma does not suffer from any
infirmity. However, after the said premature retirement order dated
14.02.2006, the employer-employee relationship got severed and as
W.P.(C) No.7328/2013 Page 3 of 5
a result any penal action taken on the charge sheet thereafter is
legally not sustainable.
Therefore, any penalty imposed on the petitioner including forfeiture
of gratuity after the date of order of premature retirement i.e.
14.02.2006 is non-est in law and is hereby declared null and void.
Sd/-
(DR. AMAR SINGH)
Chairman and Managing Director"
4. Powers under Article 226 of the Constitution of India are
extraordinary powers. The object of exercise of powers is to do justice. In
a case like the present where there are allegations of huge loss to the
respondent no.1/FCI and as many as 22 cases have been chargesheeted
against the petitioner order of premature retirement of the petitioner passed
on 14.2.2006 cannot in any manner be held to be illegal or malafide. I may
also note that because the impugned order notes that there is no provision
for review/second representation and therefore this writ petition filed in the
year 2013 really challenging the order passed way back in February, 2006
is misconceived. Review petition is barred by delay and laches because
challenge really is laid to the original order passed on 14.2.2006, and in the
year 2013 that order cannot be challenged.
5. I may note that I put it to the counsel for the petitioner to
show me any averment in the writ petition that rules/regulations of
respondent no.1 provide for a second representation/review however
W.P.(C) No.7328/2013 Page 4 of 5
counsel for the petitioner has failed to point out any such pleadings. In any
case, I do not think that in the present case there can be successful
challenge to the premature retirement inasmuch as 22 charges against the
petitioner were issued and as detailed in the impugned order.
6. I may however clarify that I have not observed one way or the
other on the merits of the chargesheet and disciplinary proceedings will be
decided uninfluenced by the observations made in the present judgment.
7. Writ petition is accordingly dismissed, leaving the parties to
bear their own costs.
NOVEMBER 22, 2013 VALMIKI J. MEHTA, J.
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