K.K.Tamrakar vs F.C.I. & Ors.
2023 Latest Caselaw 199 MP

                                                                     1


           IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT JABALPUR
                                                            BEFORE
                      HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                   ON THT 4TH OF JANUARY, 2023
                                 WRIT PETITION NO. 2531 OF 2001

BETWEEN:-

KRISHNA KUMAR TAMRAKAR, AGED ABOUT 54
YEARS, SON OF LATE SHRI B.L. TAMRAKAR,
ASSISTANT MANAGER (ELECTRICAL), FOOD
CORPORATION OF INDIA, REGIONAL OFFICE,
BHOPAL,   RESIDENT    OF  HIGH-4/1,  FCI
APARTMENT, GITANJALI COMPLEX, SOUTH T.T.
NAGAR, BHOPAL, DISTRICT BHOPAL, M.P.

                                                                                                                ......PETITIONER

(BY SHRI HARE KRISHNA UPADHYAY - ADVOCATE)

AND

1.       FOOD CORPORATION OF INDIA, THROUGH
         THE MANAGING DIRECTOR, 16-20, 12
         KHAMBA LANE, NEW DELHI - 1.

2.       ZONAL MANAGER, FOOD CORPORATION
         OF INDIA, ZONAL OFFICE, MISTRY
         BHAWEAN, D.W. ROAD, MUMBAI 20.



                                                                                                         .....RESPONDENTS
(BY SHRI MUKESH KUMAR AGRAWAL - ADVOCATE)
................................................................................................................................................
           This petition coming on for hearing this day, the court passed the
following:
                                                                    ORDER

This petition is under Article 226 of the Constitution of India questioning the validity of the order dated 28.12.1992 (Annexure P/4) passed by the Disciplinary Authority whereby penalty of withholding of one increment with cumulative effect has been imposed on the petitioner. The said order was assailed by the petitioner by filing an appeal, but the Appellate Authority also dismissed the same affirming the order passed by the Disciplinary Authority.

2. The challenge is made solely on the ground that the Enquiry Officer after conducting regular departmental enquiry submitted report before the Disciplinary Authority giving clean chit to the petitioner finding that the charges levelled against him were not found proved, however the Disciplinary Authority showing disagreement with the finding given by the enquiry officer passed order of punishment inflicting penalty of withholding of one increment with cumulative effect.

3. Learned counsel for the petitioner submits that as per the settled principle of law when finding of Enquiry Officer does not suit to the Disciplinary Authority and if he shows disagreement with the same, it is obligatory for him to assign reason and record its own finding, communicate the same to the delinquent so as to take his stand in his defence, but the Disciplinary Authority did not do so and pass the final order. Although in the order he assigned reason for his disagreement but according to learned counsel for the petitioner that does not fulfill the requirement of law and as such the order passed by the Disciplinary Authority is not sustainable in the eyes of law as the same has been passed in violation principles of natural justice. Counsel submits that an appeal was preferred by the petitioner assailing the order of disciplinary authority but the same was also dismissed by the appellate authority

vide order dated 30.03.2000 (Annexure P/12). He submits that while dismissing the appeal the Appellate Authority has not considered the aforesaid aspect of the matter and reiterated the same reason, which has been assigned by the Disciplinary Authority and passed the order. He further submits that a review was also preferred by the petitioner but the same was also dismissed vide order dated 28.08.2000 (Annexure P/15).

4. The respondents have submitted their reply in which they have taken a stand that not giving any opportunity of hearing by the Disciplinary Authority to the delinquent showing its disagreement with the finding given by the Enquiry Officer does not vitiate the order passed by the Disciplinary Authority because the punishment given was nothing but a minor penalty and that can be done even without issuing show cause notice to the delinquent. As per the stand taken by the respondents, Regulation 54 of the Food Corporation of India (Staff) Regulations, 1971 (For short 'Regulations, 1971') clearly states that withholding of increment with or without cumulative effect comes within the purview of minor penalty and therefore the ground taken by the petitioner is without any substance and as such petition deserves to be dismissed because scope of interference in a matter of disciplinary enquiry is very limited. The finding given by the Disciplinary Authority and also by the Appellate Authority cannot be interfered with unless there is any violation of principles of natural justice in a decision making process or the order suffers from competence or a disproportionate punishment is inflicted than that of the charges levelled.

5. Considering the submission made by the learned counsel for the petitioner and from perusal of the record, it is apparent from the order of Disciplinary Authority itself that the enquiry report was in favour of the

delinquent (petitioner) and he was not found guilty of the charges levelled against him, however the Disciplinary Authority had shown his disagreement with the same and without assigning any reason had passed the order without giving an opportunity to the petitioner to submit his stand in respect of the reason for disagreement shown by the Disciplinary Authority.

6. Learned counsel for the petitioner has also submitted that the stand taken by the respondents that the punishment of withholding of one increment with cumulative effect is a minor punishment is also not correct because in view of the judgment passed by the Supreme Court in the case of Kulwant Singh Gill vs. State of Punjab reported in 1991 SCC Supl. (1) 504, withholding of increment with cumulative effect is a major penalty. Further the Supreme Court in the case of M.P. State Agro Industries Development Corporation Ltd. And Anr. vs. Jahan Khan- Appeal (civil) 4041-4042 decided on 05.09.2007 has observed that the penalty of stoppage of three increments with cumulative effect is a major penalty and cannot be inflicted without holding a regular departmental enquiry because it has a perpetual effect on the entire tenure of service of the employee and further the Allahabad High Court in the case of M.N. Panday Vs. Managing Director, Food Corporation of India reported in (1987) 54 FLR 3949 (All H.C.) dealing with the same provision i.e. Regulation 54 of the Regulations, 1971 has held that withholding of increment with cumulative effect is a major penalty and even otherwise the Supreme Court in the case of S.P. Malhotra vs. Punjab National Bank and others reported in (2013) 7 SCC 251 has also held that withholding of increment with cumulative effect is a major penalty. Counsel has submitted that even otherwise once a regular departmental enquiry was conducted and Enquiry Officer submitted the

report of the enquiry giving clean chit to the petitioner and the Disciplinary Authority disagreed with the said report then he was under an obligation to assign reason with his own finding and supply the same to the delinquent so as to take his stand to defend himself but that was not done and therefore as has been held by the Supreme Court in the case of S.P. Malhotra (supra), the order of Disciplinary Authority is liable to be set aside as the same has been passed in violation of principles of natural justice. It is apt to mention the view taken by Supreme Court in the case of S.P. Malhotra (Supra) in paragraphs 13 to 20, which are quoted hereinbelow:

13. In ECIL, only the first issue was involved and in the facts of this case, only second issue was involved. The second issue was examined and decided by a three-Judge Bench of this Court in Kunj Behari Misra Punjab National Bank v. Kunj Behari Misra wherein the judgment of ECIL has not only been referred to, but extensively quoted, and it has clearly been stipulated that wherein the second issue is involved, the order of punishment would stand vitiated in case the reasons so recorded by the disciplinary authority for disagreement with the enquiry officer had not been supplied to the delinquent and his explanation had not been sought. While deciding the said case, the Court relied upon the earlier judgment of this Court in Institute of Chartered Accountants of India v. L.K. Ratna.

14. Kunj Behari Misra itself was the case where the disciplinary authority disagreed with the findings recorded by the enquiry officer on 12-12-1983 and passed the order on 15-12-1983 imposing the punishment, and immediately thereafter, the delinquent officers therein stood superannuated on 31-12-1983. In Kunj Behari Misra this Court held as under :

"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own

findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer.

The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

(emphasis supplied)

15. The Court further held as under : (Kunj Behari Misra case SCC p. 97, para 21) "21. Both the respondents superannuated on 31-12-1983. During the pendency of these appeals, Misra died on 6-1-1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings."

16. The view taken by this Court in the aforesaid Kunj Behari Misra case has consistently been approved and followed as is evident from the judgments in Yoginath D. Bagde v. State of Maharashtra, [(1999) 7 SCC 739 : 1999 SCC (L&S) 1385 : AIR 1999 SC 3734] , SBI v.

K.P. Narayanan Kutty [(2003) 2 SCC 449 : 2003 SCC (L&S) 185 : AIR 2003 SC 1100], J.A. Naiksatam v. High Court of Bombay [(2004) 8 SCC 653 : 2004 SCC (L&S) 1190 : AIR 2005 SC 1218], P.D. Agrawal v.

SBI [(2006) 8 SCC 776 : (2007) 1 SCC (L&S) 43 :

AIR 2006 SC 2064] and Ranjit Singh v. Union of India [(2006) 4 SCC 153 : 2006 SCC (L&S) 631 : AIR 2006 SC 3685] .

17. In Canara Bank v. Debasis Das [(2003) 4 SCC 557 : 2003 SCC (L&S) 507 : AIR 2003 SC 2041] this Court explained the ratio of the judgment in Kunj Behari Misra, observing that it was a case where the disciplinary authority differed from the view of the inquiry officer.

"26. ... In that context it was held that denial of opportunity of hearing was per se violative of the principles of natural justice." (Debasis Das case [(2003) 4 SCC 557 : 2003 SCC (L&S) 507 : AIR 2003 SC 2041] , SCC p. 578, para 26)

18. In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL [ECIL v. B.

Karunakar, (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] .

19. The learned Single Judge has concluded the case observing as under:

"The whole process that resulted in dismissal of the petitioner is flawed from its inception and the order of dismissal cannot be sustained. I am examining this case after nearly 23 years after its institution and the petitioner has also attained the age of superannuation. The issue of reinstatement or giving him the benefit of his wages for during the time when he did not serve will not be appropriate. The impugned orders of dismissal are set aside and the petitioner shall be taken to have retired on the date when he would have superannuated and all the terminal benefits shall be worked out and paid to him in 12 weeks on such basis. There shall be, however, no direction for payment of any salary for the period when he did not work."

20. As the case is squarely covered by the judgment of this Court in Kunj Behari Misra, we do not see any reason to approve the impugned judgment rendered by the Division Bench. Thus, in view of the above, the appeal is allowed. The judgment and order of the Division Bench [Punjab National Bank v. S.P.

Malhotra, LPA No. 2028 of 2011, order dated 25-9- 2012 (P&H)] is set aside and that of the learned Single Judge [S.P. Malhotra v. Punjab National Bank, Civil

Writ Petition No.1201 of 1988, decided on 20-5-2011 (P&H)] is restored. No costs.

The Division Bench of Allahabad High Court also in the case of V.K. Pathak vs. Food Corporation of India-Civil Misc. Writ Petition No. 25844/2001 decided on 05.10.2020 dealt with the Regulation 59 of Regulations 1971 and very specifically observed as under:-

Regulation 59 of the Regulation 1971 deals with action on the inquiry report. Regulation 59 is quoted below:- "59. Action on the inquiry report:

(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 58 as far as may be.

(2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such dis-agreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clause (i) to (iv) of Regulation 54 should be imposed on the employee, it shall, notwithstanding anything contained in Regulation 58, make an order imposing such penalty.

*(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in clause (v) to (ix) of Regulation 54 should be imposed on the Corporation employee, it shall make an order imposing such penalty and it shall not be necessary to give the Corporation employee any opportunity of making representation on the penalty proposed to be imposed.

*(5) The disciplinary proceedings shall come to an end immediately on the death of the charged employee. No

disciplinary proceeding under the FCI (Staff) Regulations can, therefore, be continued after the death of the concerned charged employee."

Regulation 59 sub clause (2) provides that disciplinary authority shall, if it disagrees with the findings of the inquiring authority on the article of charges, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. The issue, which has been raised, is that in the event the disciplinary authority intends to proceed under Regulation 59(2) of the Regulation 1971 disagreeing with the findings of the Inquiry Officer whether opportunity is to be given to the delinquent or not. The judgment of the Apex Court in Yoginath D. Bagde's case (supra), relied by the counsel for the petitioner, is a complete answer to the aforesaid issue. Paragraph 28 of the said judgment is quoted below:-

"28. In view of the provisions contained in the statutory Rule extracted above, it is open to the Disciplinary Authority either to agree with the findings recorded by the Inquiring Authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Inquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Inquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the Rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the Rules are

in this regard silent and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the Inquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be `not guilty' by the Inquiring Authority, is found `guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded."

The Apex Court in the aforesaid judgment has categorically laid down that when the rules are in this regard silent "opportunity of hearing" have to be read into the rule and it is incumbent upon the disciplinary authority to give opportunity if it intents to disagree with the findings of the Inquiry Officer. The judgment in the case of Punjab National Bank and others vs. Kunj Behari Misra (supra) also lays down that principles of natural justice has to be read in Regulation 7(2) of the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977, which regulations were pari materia to the Regulations 1971. Following was laid down by the Apex Court in paragraphs 18 and 19 of the said judgment:-

"18. Under Regulation - 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed

before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (supra)."

7. Having considered the arguments advanced by the learned counsel for the parties and after perusal of record and as per the view taken by the Supreme Court and High Court as well, I am of the opinion that the order of Disciplinary Authority is not sustainable in the eyes of law because the same has been passed in violation of principles of natural justice and as per the law laid down by the Supreme Court in the case of S.P. Malhotra (supra), it is obligatory on the part of the Disciplinary Authority to give an opportunity to the delinquent before passing order to go through the reason for disagreement with the finding of the Enquiry Officer and submit his stand and if that has not been done the principles of natural justice is violated. The order of Disciplinary Authority is therefore liable to be set aside because it has been passed in violation of principles of natural justice in a decision making process. The order of the Disciplinary Authority since has been considered to be bad in law, the subsequent orders passed by the Appellate Authority as well as the Reviewing Authority are also liable to be set aside because the Appellate Authority has not considered this aspect and has not given any finding thereof.

8. In view of the foregoing discussion, this petition is allowed. The order dated 28.12.21992 (Annexure P/4) is set aside and as a consequence of setting aside the basic order of punishment, the orders dated 30.03.2000 (Annexure P/12) passed by the Appellate Authority

and order dated 28.08.2000 (Annexure P/15) passed by the Reviewing Authority also stand set aside.

9. Since the learned counsel for the petitioner has informed that the petitioner has already retired from service in the month of December, 2006, therefore, in the opinion of this Court, at this stage it is not proper to remit the matter back to the authority to reconsider the fact that the petitioner is required to know the reason for disagreement with the finding of the Enquiry Officer and he should be issued a show cause notice. Accordingly, at the end, the respondents are directed to calculate all the benefits, which could be granted to the petitioner in pursuance to setting aside the orders of Disciplinary Authority, Appellate Authority and the Reviewing Authority within a period of three months and after calculating actual amount of arrears it be paid to the petitioner. However, there shall be no order as to costs.

(SANJAY DWIVEDI) JUDGE

Raghvendra

RAGHVENDRA SHARAN SHUKLA 2023.01.10 10:45:51 +05'30'