Madhya Pradesh High Court
Shyam Dariyani vs Food Corporation Of India & Ors. on 13 June, 2023
Author: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
WRIT PETITION No. 6924 OF 2000
BETWEEN:-
KUMARI BHARATI DARYANI, D/O LATE
SHRI SHYAM DARYANI, AGED ABOUT 16
YEARS, MINOR THROUGH HER MOTHER
SMT. ASHA DARYANI, WD/O LATE SHRI
SHYAM KUMAR DARYANI AGED ABOUT
40 YEARS, R/O HOUSE NO.411/7, CIVIL
LINES, SAUGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ABHISHEK SINGH- ADVOCATE)
AND
1
FOOD CORPORATION OF INDIA
THROUGH ITS MANAGING DIRECTOR,
16-20, BARAKHAMBA LANE, NEW
DELHI.
2 ZONAL MANAGER (WEST) FOOD
CORPORATION OF INDIA MISTRY
BHAWAN, II FLOOR, DINSHAW WACHA
ROAD, CHURCH GATE, MUMBAI.
3 SENIOR REGIONAL MANAGER FOOD
CORPORATION OF INDIA, CHETAK
BUILDING, M.P. NAGAR, BHOPAL
(MADHYA PRADESH)
4
SMT. LATA DARYANI, WD/O LATE SHEI
SHYAM KUMAR R/O QUARTER NO.248,
SECTOR-C, SHAHPURA, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJAY GUPTA - GOVERNMENT ADVOCATE)
2
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ORDER RESERVED ON : 03.02.2023
ORDER PASSED ON : 13.06.2023
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This petition having been heard and reserved for order coming
on for pronouncement this day, this Court passed the following order:-
ORDER
The present petition is preferred under Article 226/227 of the
Constitution of India seeking following reliefs:
(i) to issue a Writ/Writs, Order/Orders/,
direction/directions quashing the impugned order
dated 6.9.97 passed by the respondent No.3 (P-
1).
(ii) to issue a Writ/Writs, Order/Orders,
direction/directions quashing the impugned order
dated 15.2.1999 (Annexure P-2) passed by the
appellate Authority (Respondent No.1).
(iii) to issue a commd to the respondents to
restore all due increments entitled by the
petitioner and to pay him arrears with interest.
(iii) to grant any other relief as deemed fit and
proper by this Hon'ble Court.
2. Precisely stated facts of the case are that petitioner (Since
deceased represented through his legal representative) was working as
Assistant Grade-I in the contract section in the office of Senior
Regional Manager, Food Corporation of India, Bhopal at the relevant
point of time from July 1992 to December 1992. He was
chargesheeted for the allegation that he had to keep the file related to
the H&T of contractor - Indarlal Belani and file was missing.
Petitioner could not produce the file and no trace of the file was made
available. Thus, he failed to maintain devotion to duty inasmuch as he
could not keep the file in safe custody and it was found missing.
3. Petitioner denied the charge and departmental enquiry was
conducted under Regulation 58 of the Food Corporation of India
(Staff), 1971. Petitioner participated in the departmental inquiry.
Inquiry Officer found the inquiry partly proved against the petitioner
to the extent that he was not found responsible for missing of the said
file but he acted negligently in so far as he did not keep an eye on the
movement of that particular file and did not bring to the notice of his
superiors about non-return of the file despite considerable lapse of
time.
4. On the basis of inquiry report, competent authority after
considering the inquiry report and the response of the petitioner found
him guilty of misconduct and awarded the penalty of reductions of
three stages in the time-scale of pay for a period of five years with
further directions that he would not earn any increments during the
period of such reduction. However, after expiry of such period, the
reduction would not have the effect of postponing his future
increments of pay.
5. Petitioner preferred appeal before the appellate authority also
passed the impugned order dated 15.02.1999 and affirmed the order
dated 06.09.1997 passed by the Competent Authority. Therefore,
petitioner has preferred this petition.
6. Learned counsel for the petitioner vehemently argued the case
and submitted that no charge with regard to the negligence on
movement of the particular file was framed against the petitioner and
once he was exonerated from the charge of responsibility for missing
the file then authorities have committed illegality in inflicting
punishment to the extent referred above. He relied upon the judgment
of the Hon'ble Apex Court in support of his submission, M.V. Bijlani
Vs. Union of India, (2006) 5 SCC 88.
7. It is further submitted that at the relevant point of time,
petitioner was on leave and was not responsible for such act. To
bolster his submission, he relied upon the cases of UCO Bank and
others Vs. Rajendra Shankar Shukla, (2018) 14 SCC 92 and Union
of India and others Vs. P. Balasubrahmanayam, (2021) 5 SCC 662.
8. Learned counsel for the respondents opposed the prayer and
sought dismissal of the instant writ petition on the ground that
petitioner being Assistant Grade-I (M) was working in the Contract
Section for the period July, 1992 - December, 1993 and during that
period petitioner was in possession and charge of file relating to the H
& T Contract of Indarlal Belani, in the Rampur Depot of the
respondent FCI at Jabalpur. Being custodian of the record and file
relating to the contract, particularly the contract of said Indarlal
Belani, he was fully responsible to upkeep of the same. The aforesaid
file of the H & T Contract of Shri Belani was containing the security
deposited by the said contractor and the said file was missing due to
which the said contractor drew the security amount/deposit of Rs.One
Lac and this caused loss to the respondents. Petitioner at the relevant
point of time or thereafter never informed the fact of missing of file
and record of the contract of the aforesaid contractor Belani. In this
case of forged drawl of security amount by the said contractor, a CBI
Enquiry was held and on investigation the CBI, Jabalpur had
recommended for taking departmental action against the petitioner for
major penalty.
9. Therefore, in the aforesaid facts and circumstances, the
petitioner was charged on 06.07.1996 by serving a charge-sheet and a
departmental enquiry was held against him. He submitted his reply to
the charge-sheet by denying the charges and allegations made against
him. Thereafter, the enquiry proceedings were held by the duly
appointed enquiry and presenting officer in which the petitioner was
given full and proper opportunity of hearing, by supplying him all the
relevant documents and record. During the course of enquiry, he also
produced his evidence and examined the witnesses led by the
prosecution. After completion of the enquiry as per law and rules,
Enquiry Officer came to the conclusion that petitioner was negligent in
his act as he did not keep an eye on the movement of the particular file
and did not bring the same into the notice of superior authorities in due
course of time.
10. Disciplinary authority considered the record of the enquiry as
well as the enquiry report at length and thereafter, decided to impose
the penalty on petitioner and petitioner was duly noticed to show cause
on the proposed penalty by supplying him the enquiry report
submitted by the Enquiry Officer and thereafter, considered his
explanation and all relevant documents on record passed the impugned
order dated 06.09.1997 and penalty as referred above was imposed.
Appeal was preferred by the petitioner and it was duly considered and
the appellate authority thereafter, passed the impugned order dated
15.02.1999 Annexure P-2. All submissions of the petitioner were met
and thereafter, impugned orders were passed.
11. Learned counsel for the respondent/State opposed the prayer
and sought dismissal of the instant writ petition with cost.
12. Heard the learned counsel for the parties and perused the
documents appended thereto.
13. This is the case where petitioner is before this Court after
suffering at the hands of a competent authority and thereafter,
appellate authority. In the case in hand, CBI enquiry was held because
of the sensitive nature of allegations and thereafter, it appears that
petitioner was chargesheeted.
14. Charge against the petitioner as was under:-
"That Shri Shyam Daryani was functioning
as AG I (M) in Contract Section in the office of
SRM, FCI, Bhopal during July, 92 to Dec. 93 and
as he was responsible for the safe custody of the
files etc. kept with him.
That the file No.S&C/13(141)/89 related to
the H&T Contractor Shri Inderlal Balani attached
to Rampur Depot Jabalpur was kept in the
contract section of O/o SRM, FCI, Bhopal and
thus Shri Shyam Dariyani was custodian of this
file.
That the funning Vol.III of this file was
found missing from the contract section of SRM
office Bhopal during Oct.93 and Shri Dariyani
could not produce the file, and no trace of this file
was there since April, 93 from the custody of Shri
Daryani.
Thus, Shri Shyam Dariyani by his above
acts in the capacity of public servant failed to
maintain devotion to duty in asmuch as he could
not keep the file in safe custody and it was found
missing.
Shri Shyam Dariyani by his abo e acts
exhibited lack of devotion to duty and integrity,
practice of wilful negligence whereby acted in
such a manner which is unbecoming of a
corporation employee and thereby violated
Regulation 31, 32-A of FCI (Staff) Regulations
1971.
15. Perusal of the charge indicates that it was widely and luculently
explained. Enquiry Report submitted by the enquiry officer on 18/23-
06-1997 filed as Annexure P-5 indicates that a detail enquiry was held
in which the evidence was led and the witnesses were examined by the
parties and thereafter, enquiry report found charges are partly proved
against the petitioner. Although he was not found responsible for
missing of the said file purportedly because of lack of eyewitness
account but certainly once the file was in the charge of the petitioner
therefore, allegation regarding negligence was found proved.
16. This itself indicates the fairness of enquiry and the disposition
of the enquiry officer. Once the charge was specific in nature, then
lighter offence can always be included into the ambit of Enquiry
Officer to hold an Charged Official (C.O.) guilty of misconduct as per
the charge framed. Here, perusal of the charge indicates that it includes
lack of devotion to duty and integrity, practice of willful negligence
and unbecoming of a corporation employee. Therefore, no interference
can be made in the well reasoned orders passed by the respondents.
17. Even otherwise, it is the decision making process and not the
decision itself which can be subjected to judicial review by this Court
under discretionary jurisdiction under Article 226/227 of the
Constitution of India. Guidance given by Apex Court in the case of
Union Of India & Anr. Vs. K.G. Soni, (2006) 4 SCC 794 is worth
consideration in this regard.
18. The judgments relied upon by the petitioner are of no avail
because in case of M.V. Bijlani (supra), case moves in different
factual realm. In that case, disciplinary proceeding was initiated five
years after the employee handed over the charge and charges were
vague in nature. Disciplinary authority proceeded on a wrong premise
and Enquiry Officer made adverse comments about the correctness or
otherwise of the statements made by the witnesses examined on behalf
of the department. In-fact, observation made in the said judgment in
para 25 supports the cause of respondents in the present case. The said
paragraph is reproduced below for ready reference and convenience:
25. It is true that the jurisdiction of the court in judicial
review is limited. Disciplinary proceedings, however,
being quasi-criminal in nature, there should be some
evidences to prove the charge. Although the charges in a
departmental proceedings are not required to be proved
like a criminal trial, i.e., beyond all reasonable doubts, we
cannot lose sight of the fact that the Enquiry Officer
performs a quasi-judicial function, who upon analysing
the documents must arrive at a conclusion that there had
been a preponderance of probability to prove the charges
on the basis of materials on record. While doing so, he
cannot take into consideration any irrelevant fact. He
cannot refuse to consider the relevant facts. He cannot
shift the burden of proof. He cannot reject the relevant
testimony of the witnesses only on the basis of surmises
and conjectures. He cannot enquire into the allegations
with which the delinquent officer had not been charged
with.
19. Similarly, other two judgments relied upon by the petitioner are
of no avail. Judgment in respect of P. Balasubrahmanayam (supra)
deals with respect to Proportionality/Quantum of punishment and here
it appears that respondents instead of taking harsh action like
removal/dismissal/compulsory retirement etc gave punishment which
is proportionate to the misconduct.
20. In cumulative analysis, no case for interference is made out
under limited jurisdiction of Article 226/227 of the Constitution of
India in such matter where two departmental authorities already taken
a view.
21. Resultantly, petition sans merits, is hereby dismissed.
Ashish* (Anand Pathak)
ASHIS
Digitally signed by ASHISH
CHAURASIA
DN: c=IN, o=HIGH COURT OF
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st=Madhya Pradesh,
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cn=ASHISH CHAURASIA
Date: 2023.06.13 20:02:21 -07'00'
