Manipur High Court
Dr. S. James vs The Chairman & Managing Director on 10 January, 2023
SHAMURAILATPAM Digitally signed by
SHAMURAILATPAM SUSHIL SHARMA
SUSHIL SHARMA Date: 2023.01.12 13:39:49 +05'30'
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IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No.581 of 2020
Dr. S. James, aged about 61 years, S/o Late S.
Manikchan, resident of Riha Village, P.O. and P.S. Litan,
District Kamjong, Manipur, presently residing at Peace
Valley, Mantripukhri, Imphal East.
... Applicant.
-Versus -
1. The Chairman & Managing Director, Food Corporation
of India, Headquarters,16-20, Barakhamba Lane, Dew
Delhi-110001.
2. The General Manager(Pers.& Estt.),Food Corporation
of India,Headquarters,16-20, Barakhamba Lane, New
Delhi-110001.
3. The Executive Director(NE),Food Corporation of India,
Zonal Office (NE), NE Zone, G.S. Road, Ullubari,
Guwahati-781007.
4. The Deputy General Manager(Region), Food
Corporation of India, Regional Office, Old Assembly
Office Complex,Imphal-795001.
--- Respondent Nos.2 and 3 are impleaded
vide order dated 19-04-2021 in WP(C))
No.581 of 2020.
... Respondents.
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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WP(C) No. 465 OF 2021
Dr. S. James, aged about 61years, S/o Late S. Manikchan,
resident of Riha Village, P.O. and P.S. Litan, District
Kamjong, Manipur, presently residing at Peace Valley,
Mantripukhri, Imphal East.
... Petitioner.
-Versus -
1. The Food Corporation of India, represented by the
Chairman and Managing Director, Food Corporation of
India, Headquarters, 16-20, Barakhamba Lane, New
Delhi-110001.
2. The Executive Director(NE),Food Corporation of India,
Zonal Office, NE Zone, G.S.Road, Ullubari, Guwahati-
781007.
3. The Deputy General Manager (Region), Food
Corporation of India, Regional Office, Old Assembly
Office Complex, Imphal-795001.
...Respondents.
M.C. (WP(C)) No. 134 OF 2021
Ref:- W.P. (C) No. 581 of 2020
Dr. S. James, aged about 61 years, S/o Late S. Manikchan,
resident of Riha Village, P.O. and P.S. Litan, District
Kamjong, Manipur, presently residing at Peace Valley,
Mantripukhri, Imphal East.
... Applicant.
-Versus -
1. The Food Corporation of India, represented by the
Chairman & Managing Director, Food Corporation of
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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India, Headquarters,16-20, Barakhamba Lane, New
Delhi-110001.
2. The Executive Director(NE), Food Corporation of India,
Zonal Office, NE Zone, G.S.Road, Ullubari,Guwahati-
781007.
3. The Deputy General Manager(Region),Food
Corporation of India, Regional Office, Old Assembly
Office Complex,Imphal-795001.
..... Respondents Nos.1 and 2 are impleaded
vide order dated 19-04-2021 in (WP(C))
No.581 of 2020.
... Respondents.
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners :: Dr. S. James-in-person
For the Respondents :: Mr. D. Julius Riamei, Advocate
Date of Hearing and
reserving Judgment & Order :: 24.11.2022
Date of Judgment & Order :: 10.01.2023
JUDGMENT AND ORDER
(CAV)
W.P.(C) No.581 of 2020 has been filed by the
petitioner to quash the order dated 29.9.2020 issued by the first
respondent and to direct the respondents to pay the gratuity
amount of Rs.20 lakh to the petitioner and also pay full salary
of September, 2020, including the retirement benefits.
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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2. W.P.(C) No.465 of 2021 has been filed by the
petitioner to set aside the order dated 24.06.2021 passed by the
first respondent and to direct the respondents to pay arrears of
salary, retirement and pension benefits etc. as admissible
consequent to the period from 10.2.2020 to 30.9.2020 together
with interest.
3. As the grounds raised and the points for
determination are similar, both the writ petitions were heard
together and are being disposed of by this common order.
4. W.P.(C) No.581 of 2020:
The case of the petitioner is that he is a retired
Deputy General Manager (General) from the service of Food
Corporation of India with effect from 30.9.2020. When he
retired from service on superannuation, the Chairman and
Managing Director, FCI Headquarters, New Delhi had issued
the impugned order dated 29.9.2020 under Regulation 60(60-
A) of FCI (Staff) Regulations, 1971 regarding withholding the
payment of gratuity as admissible under the Payment of
Gratuity Act, 1972. By the same order, it has been stated that
a sum of Rs.20 lakh to be kept on withheld from the gratuity
account of the petitioner.
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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4.1. According to the petitioner, during his service
period in the FCI, he never committed any act of misconduct for
which the penalty was imposed. If there were any fault on his
part regarding drawing of his monthly pay and allowances, the
concerned authorities should have informed him in time to
rectify the mistakes committed, if any. That was not done by the
concerned authorities. Therefore, the concerned authorities are
not permitted to take advantage of their own mistakes by issuing
the memorandum of charge-sheet on the day of superannuation
of the petitioner and the salary of the petitioner, including all
service retirement benefits after his superannuation, have not
been paid by the authorities of the FCI.
4.2. Resisting the writ petition, the respondents filed
affidavit-in-opposition stating that the impugned memorandum
dated 29.9.2020 was issued to the petitioner by FCI
headquarters for violation of conduct rules on non-declaration
of immovable property in his service book although they were
recorded in some of the annual property returns filed by the
petitioner himself. It is stated that the petitioner was placed
under suspension with effect from 21.10.2019 to 30.9.2020 and
the same was revoked and the period of suspension was
treated as period spent on duty vide order dated 29.9.2020 and
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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order dated 20.11.2020. Besides the suspension, the petitioner
was also imposed a penalty of reduction to a lower time scale
of pay by three stages with cumulative effect with effect from
10.2.2020. The reduction of pay will have effect on his pension
and terminal benefits vide order dated 13.2.2020.
4.3. It is stated that even though the suspension period
was regularized, the petitioner's salaries could not be released
earlier without pay fixation and giving effect to the penalty order.
Pay fixation was done by the controlling office on 22.1.2021 and
challenging the penalty order dated 13.2.2020, the petitioner
has filed appeal petition. The petitioner also filed W.P.(C)
No.371 of 2020 and his appeal was restored in the year 2021.
Challenging the pay fixation order dated 22.1.20201, the
petitioner has filed W.P.(C) No.106 of 2021. Despite informing
the petitioner to submit the prescribed pension claim form under
DCPS, he has not submitted the same till date.
4.4. It is also stated that arrears of salary for
suspension period amounting to Rs.11,19,033/- after giving
effect to the penalty order and pay fixation was released on
29.1.2021 and the gratuity and leave encashment payments as
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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per the revised pay fixation order have been paid to the
petitioner on 16.2.2021.
5. W.P.(C) No.465 of 2021:
The case of the petitioner is that while the
petitioner was in service, disciplinary proceedings was initiated
against him and after inquiry and based on the inquiry report,
the Managing Director of FCI imposed a punishment - reduction
to a lower time scale of pay by three stages with cumulative
effect with effect from 10.2.2020 and the reduction to time scale
of pay will have effect on his pension and terminal benefits -
vide order dated 10/13.2.2020. Aggrieved by the said order,
the petitioner has preferred appeals dated 20.3.2020 and
19.1.2021 to the appellate authority and, by the order dated
24.6.2021, the appellant authority rejected the appeal petitions
without considering the order dated 19.4.2021 passed in
W.P.(C) Nos.106 of 2021 and 371 of 2020. Challenging the
order dated 24.6.2021, the writ petition has been filed.
5.1. Resisting the writ petition, the respondents filed
counter stating that the effect of reduction to lower time scale of
pay by three stages with cumulative effect would be for
indefinite period, hence, pay fixation to this effect was done by
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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the Zonal Officer, Guwahati vide office order dated 22.1.2021.
The reduction in the basic pay of the petitioner was effective
from 10.2.2020 as specified in the penalty order dated
13.2.2020 and it will have cumulative effect which means the
reduction shall not be restored at any point of time in future
unless modified by the appellate authority. By the order dated
22.1.2021, the basic pay of the petitioner was reduced from
1,09,090/- to Rs.99,820/- in the time scale of Rs.80,000 -
2,20,000/-.
5.2. It is stated that pursuant to the order passed in
W.P.(C) No.371 of 2020 and 106 of 2021, the appeals preferred
by the petitioner were rejected by the Chairman, FCI after
affording reasonable opportunity to the petitioner. Unless the
petitioner submits all requisite documents/certificates, the
monthly pension could not be completed. Since the appeals of
the petitioner have been disposed of, the petitioner may submit
necessary papers as per the pay fixation order dated 22.1.2021.
6. Assailing the impugned order in W.P.(C) No.465
of 2021, Dr. S. James, the petitioner appearing in person
submitted that the impugned order has been passed without
considering the two appeals filed against the order dated
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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10/13.2.2020 imposing the penalty on the petitioner. He would
submit that the impugned rejection order has been passed by
the Chairman, FCI hurriedly without giving any meaningful and
reasonable consideration, which is in complete disobedience
and disregard of the order passed by this Court in W.P.(C)
Nos.371 of 2020 and 106 of 2021.
7. The main argument of the petitioner is that the
disciplinary authority (Managing Director of FCI) and appellate
authority (Chairman of FCI) both were administered by the
same person, namely Shri D.V.Prasad at the time of personal
hearing of the petitioner through virtual hearing held on
3.5.2021 for the appeal dated 20.3.2020 and 19.1.2021 of the
petitioner. He further submitted that the same officer issued
charge sheet and also presided over in the departmental
proceedings/hearing/appeal proving as personal bias and
departmental bias against the petitioner, which is also nullifying
the principles of natural justice.
8. The petitioner then submitted that the penalty did
not clarify the particular period of completion of such penalty
though the commencement or effect of the penalty mentioned
with effect from 10.2.2020 as well as the order of pay fixation
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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dated 22.1.2021 issued by the Zonal Office (NE), Guwahati
while fixing the new pay fixation of the petitioner, which is
culpable lapses in exercise of powers conferred upon the
Managing Director, FCI, Headquarters, New Delhi under
Regulation 56 read with Regulation 54 of FCI (Staff)
Regulations, 1971.
9. The petitioner urged that the penalty imposed
upon the petitioner does not commensurate with the gravity of
the misconduct committed by the petitioner and the same is
disproportionate to the gravity of the charges levelled against
the petitioner and, hence, the same is arbitrary and violation of
Article 14 of the Constitution of India.
10. The petitioner further submitted that the imposition
of penalty of reduction to a lower time scale of pay by three
stages with cumulative effect from effect from 10.2.2020 and
the reduction of time scale of pay will have effect on his pension
and terminal benefits. As such, the payment of gratuity,
encashment of EL, HPL has been paid at the reduced amount
based on the reduced rate of basic pay at Rs.99,820/- with
effect from 22.1.2021 in spite of paying the existing actual rate
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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of basic pay of Rs.1,09,090/- which the petitioner was drawing
in the month of January, 2020.
11. The petitioner contended that the respondents
have not paid the following retirement benefits till date:
(i) Last location TA grant for retirement
benefit from Imphal to petitioner's
home town.
(ii) FCI post-retirement medical scheme
medical benefit @ Rs.18,000/- per
year OPD for prolong diseases.
(iii) IPD & OPD medical treatment benefits
as per the FCI Hq. Circular.
(iv) Rs.5000/- as memento on the day of
the petitioner's retirement
(v) FCI defined contribution pension
scheme.
(vi) Employees' Pension Scheme, 1995.
12. The petitioner contended that on the date of
retirement, no disciplinary proceeding was pending against him.
Further, he had already submitted the prescribed pension claim
forms along with all enclosures well in advance in 12 months
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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prior to the date of retirement to the Deputy General Manager
(Region), FCI, Imphal.
13. The petitioner added that the amounts already
paid for EL and HPL including gratuity on 16.2.2021 were not
fully paid to him, inasmuch as the wrongful calculations of such
EL, HPL and gratuity was made on the basis of the penalty
dated 13.2.2020 and also inappropriate order of pay fixation
dated 22.1.2021. He urged that those already paid EL
encashment, HPL and gratuity and other retiral benefits would
be calculated through the existing basic pay of Rs.1,09,090/- of
the petitioner as already drawn on 31.1.2020 in the scale of pay
Rs.80,000-2,20,000. Thus, re-submission of the prescribed
pension claim forms as stated by the respondents is not
necessary, nor any pension has been paid to the petitioner till
date.
14. Per contra, Mr. D. Julius Riamei, the learned
counsel for the respondents submitted that the writ petition,
being W.P.(C) No.465 of 2021, is not maintainable as the
petitioner has approached this Court without exhausting the
alternative remedy available under law and that the order dated
24.6.2021 in no uncertain terms stated that a statutory review
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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shall lie to the Board of Directors, FCI within 45 days from the
date of delivery of the impugned order.
15. The learned counsel further submitted that the
effect of reduction to lower time scale of pay by three stages
with cumulative effect would be for indefinite period. Hence, pay
fixation to this effect was done by the zonal office and reduction
in basic pay was given effect from 10.2.2020 as specified in the
penalty order dated 13.2.2020 and it will have cumulative effect
which means the reduction shall not be restored at any point of
time in future unless modified by the appellate authority.
16. The learned counsel next submitted that pursuant
to the direction of this Court in W.P.(C) Nos.371 of 2020 and
106 of 2021 dated 19.4.2021, the appeals of the petitioner dated
20.3.2020 and 19.1.2021 were considered and rejected after
affording reasonable opportunity to the petitioner through video
conference by the Chairman, FCI, as the petitioner has failed to
submit convincing facts.
17. The learned counsel then submitted that the
gratuity was held up on the day of the retirement of the petitioner
due to pending disciplinary proceedings and as per Regulation
60-A(iii), the disciplinary authority has empowered to withhold
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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payment of gratuity for ordering recovery from the gratuity of the
whole or part of any pecuniary loss caused to the FCI, if the
employee is found in a disciplinary proceedings or judicial
proceedings to have been guilty of offence or misconduct as per
the Payment of the Gratuity Act, 1972.
18. This Court considered the rival submissions and
also perused the materials available on record.
19. Before adverting to the case canvassed by both
parties, the following facts emerge from the pleadings:
On 23.2.2018, the petitioner was issued a
show cause notice for the alleged
irregularities committed by him.
On 11.10.2018, disciplinary proceedings
were initiated against the petitioner by the
disciplinary authority, wherein seven
charges were framed against the
petitioner.
On 22.1.2019, an Inquiry Officer was
appointed.
On 09.8.2019, the Inquiry Officer
submitted his report and on 18.12.2019,
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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inquiry report was served on the petitioner
and he had also submitted his
representation.
On 06.1.2020, another disciplinary
proceedings was initiated for the
misconduct and misbehaviour in
connection with the allegation of criminal
case registered against him.
On 13.2.2020, a penalty of reduction to a
lower time scale of pay by three stages
with cumulative effect with effect from
10.02.2020 was awarded and the
reduction to time scale of pay will have
effect on his pension and terminal benefits
also.
On 20.3.2020, the petitioner filed an
appeal before the Chairman, FCI against
the penalty imposed on 13.2.2020.
On 10.7.2020, the petitioner filed W.P.(C)
No.371 of 2020 pending statutory appeal.
On 29.9.2020, another disciplinary
proceedings was initiated against the
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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petitioner and charges framed for not
noting down of property transaction in his
service records.
On 29.9.2020, the suspension of the
petitioner was revoked in view of his
superannuation.
On 30.9.2020, the petitioner retired on
superannuation.
On 28.10.2020, the petitioner was
imposed a penalty of censure on the
disciplinary proceedings initiated by
Memorandum dated 29.9.2020."
20. Assailing the impugned Memorandum dated
29.9.2020, the petitioner has filed W.P.(C) No.581 of 2020. On
a perusal of the impugned Memorandum, it is seen that as the
petitioner failed to note down the property transaction as
reflected in annual property record for the year 1997 to 2000,
2002, 2003, 2007, 2010 to 2012, 2014 and 2016 and vide
another order dated 29.9.2020, the respondent authorities
withheld the gratuity. Thus, in W.P.(C) No.581 of 2020, the
petitioner prayed for setting aside the impugned order dated
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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29.9.2020 and also to direct the respondents to pay the gratuity
amount of Rs.20 lakh to him and also other retirement benefits.
21. Challenging the impugned order dated 24.6.2021
passed by the appellate authority, the petitioner has field
W.P.(C) No.465 of 2021 on the following grounds:
(i) The impugned order dated 24.6.2021 passed
by the Chairman of FCI is based on
misconceived facts, frivolous and not bona
fide both on facts and law. The penalties
prescribed under the heading major penalties
under Regulation 60 and 54 of FCI (Staff)
Regulations, 1971 also do not prescribed
reduction to a lower time scale of pay by three
stages with cumulative effect with effect form
10.2.2020 and the reduction of time scale will
have effect on his pension and terminal
benefits also and/or recovery either wholly or
partially from the retirement benefits of a
retired employee who retired on 30.9.2020
A.N., as the officer order dated 22.1.2021
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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was issued after three months and 21 days
later than the date of retirement.
(ii) Despite having knowledge of the order dated
19.4.2021 passed by the High Court, the
Chairman/Appellate Authority of FCI has
passed the impugned order dated 24.6.2021
not considering the merit of the appeals dated
20.3.2020 and 19.1.2021 filed by the
petitioner against the order dated
10/13.2.2020 imposing penalty to the
petitioner.
(iii) Rule 34 of CCS (Pension) Rules, 1972
provides that the pension of an employee
shall be calculated on the basis of the
petitioner's last 10 months average pay and
the average emoluments shall be determined
with reference to the emoluments drawn by a
Government servant during the last ten
months of his service. Average emoluments
will be calculated on the basis of pay drawn
by the employee during the last 10 months
prior to retirement drawing pay in IDA scale
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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will be taken into account for calculation of
average emoluments. Therefore, reducing to
a lower time scale of pay by three stages with
cumulative effect with effect from 10.2.2020.
The reduction of time scale of pay will have
effect on his pension and terminal benefits
also.
(iv) As per Rule 50(5) of CCS (Pension) Rules,
the emoluments for the purpose of gratuity
admissible under the rule shall be reckoned
in accordance with Rule 33, provided that if
the emoluments of the Government servant
have been reduced during the last 10 months
of his service, otherwise than as a penalty,
average emoluments as referred to in Rule
34 shall be treated as emoluments. Such
abnormal and major penalty under
Regulation 56 read with Regulation 54 of FCI
(Staff) Regulations, 1971 would not be
justified when there are no proceedings
under Regulation 58 or criminal proceedings,
pending against the employee.
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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(v) Under Regulation 72(3) of the FCI (Staff)
Regulations, 1971, in an appeal against any
other order specifies in Regulation 68, the
Appellate Authority or the Chairman of FCI
shall consider all the circumstances of the
case and make orders as it may deem just
and equitable.
(vi) Under Regulation 74(4) of the FCI (Staff)
Regulations, 1971, powers similar to those
specified in Clause (1) may be exercised by
the Chairman in respect of orders passed by
authorities subordinate to them that is
Managing Director, FCI. Therefore, there is
no reason to submit further statutory appeal
for review which shall never lie with the Board
of Directors as it is clearly mentioned in
Regulations 72(3) and 72(4) clarifies the
Chairman/Appellate Authority has been
empowered to consider any type of appeal at
his level only for Category-I Officer or Deputy
General Manager. The regulation clearly
provides that in case of a Deputy General
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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Manager or Category-I Officer, the Chairman
of FCI is the competent authority to pass final
order of appeal preferred by the petitioner.
(vii) Shri Vineet Parkash, Presenting Officer has
not given any opportunity to the petitioner or
charged official for inspection of originals of
the documents listed which the Presenting
Officer produced documents 1 to 20 on the
basis of deposition of six witnesses of the
charge sheet, which the Presenting Officer
presented to the Inquiry Officer. The
Presenting Officer did not raise any
anticipation for proper remedial cause of
defence action during the departmental
proceedings held on 6.3.2019, 8.5.2019,
9.5.2019, 15.5.2019 and 16.5.2019 at FCI,
Zonal Office (NE), Guwahati, who had
collected the document and recorded the
statements of witnesses which have been
relied upon during and in the final report of
the Inquiry Officer, has resulted in depriving
the petitioner of his valuable right to cross-
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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examine the officer who had conducted the
preliminary enquiry, vitiate the entire enquiry
proceedings, being contrary to the provisions
as contained in Rule 14(11)(i) of CCA Rules,
1965.
22. As many as 7 charges were framed against the
petitioner and the Inquiry Officer found Charges-I and III as
"proved" and the other charges "not proved". The disciplinary
authority, upon going through the charge-sheet and inquiry
report, imposed the following penalty on 10/13.02.2020:
"reduction to a lower time scale of pay by
three stages with cumulative effect with effect
from 10.02.2020. The reduction to time scale
of pay will have effect on his pension and
terminal benefits also."
23. Aggrieved by the imposition of penalty, the
petitioner has filed appeal petitions. By the impugned order
dated 24.6.2021, assailed in W.P.(C) No.465 of 2021, the
appellate authority has rejected the appeal petitions. The
operative portion of the appellate order reads thus:
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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".... I am in agreement with the observations
of Disciplinary Authority that the standard
procedure has not been followed during
purchase of books and it is a deemed act of
self-advocacy and such a purchase is
tantamount to benefitting himself only.
It is observed that the appellant failed to put
any new convincing fact in the instant appeal
petitions and he cannot escape from his
culpability in the matter. In view of position
narrated above, I am of the opinion that the
appellant has rightly been held responsible in
the matter. The penalty imposed upon him
by the disciplinary authority is commensurate
to the charges levelled against him. The
contentions raised by the appellant in his
appeal petitions are devoid of merit. The
appeal petitions are liable to be rejected.
NOW, THEREFORE, I, ATISH CHANDRA,
CHAIRMAN, FCI being the appellate
authority, in exercise of the powers conferred
under Regulation-72 of FCI (Staff)
Regulations, 1971, hereby "reject" the appeal
petitions of Dr. S. James Singh, Ex-DGM
(Genl.).
In case the appellant is aggrieved by the
above decision, a statutory review shall be
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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with the Board of Directors, FCI, within 45
days from the date of delivery of this order."
24. The petitioner contended that the disciplinary
authority and the appellate authority both were administered by
the same person - Shri D.V. Prasad at the time of personal
hearing of the petitioner through video-conference held on
3.5.2021 at 2.00 P.M. for the appeal petitions submitted by the
petitioner as well as the same officer had also issued charge-
sheet and also presided over in the departmental
proceedings/hearing/appeal. The aforesaid argument made by
the petitioner has not been controverted by the respondent
authorities.
25. Regulation 69 of the FCI (Staff) Regulations, 1971
provides:
"An appeal against an order imposing any of
the penalties made by the disciplinary
authority shall lie to the appellate authority
specified in this behalf in appendix 2 or to any
other authority (not lower in rank than the
appellate authority specified in Appendix-2)
empowered in this behalf by a general or
special order of the Board. In other cases,
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an appeal lies to the authorities next higher
to the authority passing the order."
26. On a perusal of Appendix-2, it is clear that in
respect Category-I officers in FCI, the appointing authority is
"Managing Director"; the authority competent to relax age limit
and qualifications is "Chairman"; the authority competent to
impose penalties is "Managing Director" and the appellate
authority is "Chairman".
27. Under Regulation 72(3) of FCI (Staff) Regulations,
1971, for consideration of appeal, it is stated that "in an appeal
against any other order specifies in Regulation 68, the appellate
authority or Chairman of FCI shall consider all the
circumstances of the case and make orders as it may deem just
and equitable".
28. Since the jurisdiction of the disciplinary authority -
Managing Director - and the appellate authority - Chairman -
were exercised by the same person, namely Shri D.V. Prasad
at the time of personal hearing of the petitioner through virtual
hearing of the appeal petitions held on 3.5.2021 at 2.00 P.M.
and the same officer had issued the charge-sheet and also
presided over the departmental proceedings and also the fact
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remains that there is no contra material produced by the
respondents, this Court is of the view that there is a clear bias
attributable to the disciplinary authority and the appellate
authority.
29. The learned counsel for the respondents
submitted that the High Court is not justified in interfering with
the conscious decision taken by the disciplinary authority while
imposing the punishment in exercise of powers under Article
226 of the Constitution of India.
30. On the other hand, the petitioner argued that
Courts will interfere with the findings in the disciplinary matters,
if principles of natural justice or statutory regulations have been
violated or if the order is found to be arbitrary or based on
extraneous consideration and bias. It is also the submission of
the petitioner that judicial power vests with the Courts to
interfere with the decisions of the disciplinary and appellate
authorities. This Court finds some force in the submission made
by the petitioner. On a threadbare analysis of the case put forth
by both sides, this Court is of the view that principles of natural
justice and the statutory regulations have been violated in this
case.
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31. The petitioner also contended that the penalty
order dated 10/13.2.2020 is unfair and biased because the
penalty order is actuated by mala fide and that the allegations
of mala fide have two facets - one malice in law and the other
being malice in fact. According to the petitioner, the impugned
penalty order is based upon malice in fact, as it is an action
taken by the respondent FCI.
32. While imposing penalty, the disciplinary authority,
namely Shri D.V. Prasad, Managing Director of FCI, arrived at
a finding that the Charging Officer is guilty of the charges to the
extent discussed in the order and, accordingly, imposed penalty
in exercise of powers conferred under Regulation 56 read with
Regulation 54 of FCI (Staff) Regulations, 1971. The disciplinary
authority also held that the reduction to time scale of pay will
have effect on his pension and terminal benefits also.
33. At this juncture, it is apposite to mention that Rule
34 of CCS (Pension) Rules, 1972 provides that pension of an
employee shall be calculated on the basis of the last ten months
average pay. Average emoluments will be calculated on the
basis of the pay drawn by the employee during the last ten
months prior to retirement drawing pay and IDA will be taken
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into account for calculation of the average emoluments.
Therefore, as rightly argued by the petitioner, reducing to a
lower time scale of pay by three stages with cumulative effect
with effect from 10.2.2020 and the reduction of time scale of pay
will have effect on his pension and terminal benefits is not
justified when there are no proceedings under Regulation 58 or
criminal proceedings pending against the petitioner. Further,
the contention of the respondents that reduction of lower time
scale of pay by three stages with cumulative effect for indefinite
period is admittedly disproportionate to the charges levelled
against the petitioner. The contention of the respondents that
the penalty imposed means that the reduction shall not be
restored at any point of time in future is too harsh and
excessive, and the same is unsustainable under law.
34. Under Regulation 72(3) of the FCI (Staff)
Regulations, 1971 while considering the appeal petitions, the
appellate authority ought to consider all the circumstances of
the case and make orders as it may deem just and equitable.
However, in the case on hand, the appellate authority has not
considered the appeal petitions of the petitioner in proper
perspective and erred in rejecting the appeal petitions.
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35. At this stage, the learned counsel for the
respondents submitted that in view of the statutory review
available against to the order dated 24.6.2021, the writ petition
is not maintainable. The argument of the learned counsel for
the respondents cannot be countenanced for the reason that
under Regulation 74(4), powers similar to those specified in
Clause (1) can be exercised by the Chairman in respect of
orders passed by the authorities subordinate to them i.e.
Managing Director. Therefore, there is no reason to submit
further statutory appeal for review. Further, in an appropriate
case, in spite of availability of the alternative remedy, the High
Court may still exercise its writ jurisdiction in the following three
contingencies:
(i) Where the writ petition seeks enforcement
of the fundamental rights;
(ii) Where there is failure of principles of
natural justice; or
(iii) Where the orders or proceedings are
wholly without jurisdiction or the vires of
the Act is challenged.
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Prima facie, the instant case attracts applicability
of the second contingency. As held supra, in the case on hand,
not only violation of natural justice, but also violation of statutory
regulations while imposing penalty on the petitioner by the
disciplinary authority, which was erroneously affirmed by the
appellate authority. Therefore, this Court is of the view that the
writ petitions of the petitioner are very well maintainable.
36. It is settled law that the Court may interfere where
the authority held the proceedings against the delinquent officer
in a manner inconsistent with the rules of natural justice or in
violation of statutory rules prescribing the mode of inquiry or
where the conclusion or finding reached by the disciplinary
authority is based on no evidence. If the conclusion or findings
be such as no reasonable person would have ever reached, the
Court may interfere with the conclusion or the finding, and
mould the relief so as to make it appropriate to the facts of that
case.
37. In view of the Regulations of FCI (Staff)
Regulations, 1971 and the discussions held supra, this Court is
of the view that the penalty imposed by the disciplinary authority
is disproportionate to the misconduct proved and when the
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petitioner challenged finding/order of the disciplinary authority
by way of appeal petitions, the appellate authority has failed to
consider the same in accordance with law. That apart, the
same officer who issued the charge-sheet also presided over in
the department proceedings, which proves personal bias on the
petitioner. Moreover, the petitioner has been subjected to
reduction to a lower time scale of pay by three stages with
cumulative effect with effect from 10.02.2020 and such
reduction of time scale of pay will have effect on his pension
and retirement benefits of the petitioner. The said penalty
imposed on the petitioner is in contravention of the retirement
policy of the Food Corporation of India and, as such, such
financial deduction and financial constraints would definitely
cause immense hardship to the petitioner and his family
members.
38. Despite having knowledge of the order dated
19.4.2021 passed by this Court in W.P.(C) Nos.106 of 2021 and
371 of 2020, the Chairman/Appellate Authority has passed the
impugned order dated 24.6.2021 by not considering the merit
of the appeal petitions of the petitioner preferred against the
order of penalty dated 10/13.2.2020. A prima facie case has
been made out by the petitioner that the Appellate Authority
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without giving any meaningful and/or reasonable consideration
and in total disobedience of the direction/order dated 19.4.2021
passed by this Court in the above referred writ petitions has
rejected the appeal petitions. For all the reasons stated above,
this Court is of the view that the orders of the disciplinary
authority as well as the appellate authority, which are impugned
in W.P.(C) No.425 of 2021 are not legally sustainable in the eye
of law.
39. The petitioner admitted that by the office order
dated 12.2.2021, the competent authority had accorded
sanction of Rs.17,04,620/- towards payment of gratuity and also
paid Rs.5,73,206/- towards EL encashment and Rs.3,04,331/-
towards half pay leave. However, it is the submission of the
petitioner that post-retirement medical scheme for self and
spouse, employees pension scheme, subsistence allowance
from October, 2019 to August, 2020 have not been paid to him.
40. At this stage, the petitioner urged that the gratuity,
encashment of EL, HPL have been paid at the reduced amount
based on the reduced rate of basic pay. Since the petitioner is
entitled to draw the gratuity on the actual rate of basic pay @
Rs.1,09,090/-, the calculation made by the respondent
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authorities on the reduced rate of basic pay @ Rs.99,820/- with
effect from 22.1.2021 is unacceptable and, therefore, a
direction may be issued on the respondents to pay the gratuity
at the existing actual rate of basic pay which the petitioner was
drawing in the month of January, 2020.
41. In reply, Mr. D. Julius Riamei, the learned counsel
for the respondents submitted that the effect of reduction to
lower time scale of pay by three stages with cumulative effect
would be for indefinite period. Hence, the period of completion
of penalty has not been specified in the order dated 13.2.2020.
Therefore, the respondents are right in disbursing the payment
of gratuity at the reduced rate of basic pay @ Rs.99,820/-.
42. As stated supra, the petitioner was imposed a
penalty of reduction to a lower time scale of pay by three stages
with cumulative effect with effect from 10.2.2020, which means
the petitioner has to be paid at the reduced scale of pay with
effect from 10.2.2020 to 30.9.2020 with three times reduction of
annual increments in his pension, including all other retirement
benefits with its monetary effect from 10.2.2020 till the date of
his retirement. However, as could be seen from the penalty
order, it did not clarify the particular period of completion of such
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P a g e | 34
penalty, though commencement of the penalty order was with
effect from 10.2.2020 as well as the order of pay fixation order
dated 22.1.2021 while fixing the new pay fixation of the
petitioner.
43. Aggrieved by the penalty order, earlier, the
petitioner has filed W.P.(C) No.371 of 2020 questioning the said
order and during the pendency of the said writ petition, an order
dated 22.1.2021 was issued fixing the penalty etc. Being
aggrieved by the same, W.P.(C) No.106 of 2021 came to be
filed by the petitioner. By the common order dated 19.4.2021,
this Court disposed of the writ petitions and the operative
portion of the order reads thus:
"[3] When these matters are taken up for
consideration, in compliance with the earlier
order dated 6-4-2021, it has been submitted
by Shri D. Julius Riamei, learned counsel for
the FCI that the two statutory appeals
preferred by the petitioner before the
respondents and in particular, the Chairman
and Managing Director, FCI, respondent
No.2 herein can be disposed of within three
months from today and that the personal
appearance of the petitioner before the
appellate authority may be required to which
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it has been submitted by the petitioner in
person that since he has been waiting for the
last more than six months, two appeals can
be disposed of within two months. Keeping
in mind the COVID-19 pandemic prevailing in
the country, three months' time as
contended by the learned counsel appearing
for the FCI is quite reasonable and
accordingly, these two writ petitions stand
disposed of with the direction that the
statutory appeals dated 20-03-2020 and 19-
01-2021 preferred by the petitioner shall be
considered and decided by the appellate
authority, the Chairman & Managing Director,
FCI within a period of three months from
today. In case the personal appearance of
the petitioner before the appellate authority is
not possible because of COVID-19
pandemic, it is open to the appellate authority
to adopt any other methods like video
conferencing, webinar, etc. so that the
appeals can be disposed of without fail,
within the time granted by this Court."
44. By the impugned order dated 24.6.2021, the first
respondent rejected the appeal petitions. The petitioner
challenged the impugned order dated 24.6.2021 contending
that the penalties prescribed under the heading - major
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penalties under Regulation 60 and 54 of FCI (Staff) Regulations
also do not prescribe deduction to a lower time scale of pay by
three stages with cumulative effect with effect from 10.2.2020
and the reduction of time scale will have effect on his pension
and terminal benefits also and/or recovery either wholly or
partially from the retirement benefits of a retired employee who
retired on 30.09.2020 A.N. as the office order was passed on
22.1.2021 after three months and 21 days later than the date of
retirement i.e. 30.09.2020. This Court in the earlier paragraphs
of this order held that the penalty imposed on the petitioner by
the disciplinary authority and the rejection of the appeal
petitions by the appellate authority are erroneous. Since the
penalty imposed on the petitioner is found to be
disproportionate, the pay fixation order dated 22.1.2021 is also
legally not sustainable.
45. The petitioner urged only the basic pay taken by
the respondent authorities for calculating the gratuity by stating
that the retirement benefits like gratuity, EL encashment and
HPL etc. is by fixing his salary on the existing pay of
Rs.1,09,090/- and not at the reduced basic pay of Rs.99,820/-.
Further, by way of filing MC (WP) No.134 of 2021, the petitioner
claims release of his retirement benefits with the last existing
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basic pay at the rate of Rs.1,09,090/- admissible from
01.2.2020.
46. Section 6 of the Payment of Gratuity Act, 1972
stated that - Notwithstanding anything contained in sub-section
(1) -
(a) The gratuity of an employee, whose
services have been terminated for
any act, wilful omission or
negligence causing any damage or
loss to, or destruction property
belonging to the employee shall be
forfeited to the extent of the damage
or loss so caused;
(b) The gratuity payable to an
employee may be wholly or partially
forfeited-
(i) If the services of such employee
have been terminated for his
riotous or disorderly conduct or any
other act of violence on his part, or
(ii) If the services of such employee
have been terminated for any act
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which constitutes an offence
involving moral turpitude, provided
that such offence is committed by
him in the course of his
employment.
47. Section 4 of Payment of Gratuity Act provides that
(1) Gratuity shall be payable to an employee on the termination
of his employment after he has rendered continuous service for
not less than five years. -
(a) On his superannuation, or
(b) On his retirement or resignation, or
(c) On his date or disablement due to accident
or disease.
48. Pending writ petitions, payment of gratuity,
encashment of EL, HPL have been calculated on the reduced
rate of basic pay by the respondent authorities themselves. In
view of the finding arrived at by this Court that the penalty
imposed on the petitioner is disproportionate and the appellate
authority erred in rejecting the appeal petitions of the petitioner,
the reduced rate of basic pay adopted by the respondent
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authorities and paid certain amounts to the petitioner is
unacceptable.
49. Admittedly, the basic pay of the petitioner while
issuing the order dated 22.1.2021 is at Rs.1,09,090/-. As per
the penalty order, the punishment is reduction to a lower scale
of pay by three stages for a period of 8 months with effect from
10.2.2020 to 30.9.2020. The penalty order dated 10/13.2.2020
did not clarify the particular period of completion of such penalty
though commencement of the penalty order mentions with
effect from 10.2.2020 as well as the order of pay fixation order
dated 22.1.2021 while fixing the new pay fixation of the
petitioner, which are culpable lapses in exercise of powers
conferred upon the Managing Director, FCI, Headquarters
under Regulation 56 read with Regulation 54 of the FCI (Staff)
Regulations. Therefore, as rightly argued by the petitioner, it is
the clear instance of deliberate miscarriage of justice while
issuing penalty order as well as pay fixation dated 22.1.2021.
50. As stated supra, the petitioner has been subjected
to reduction to a lower time scale of pay by three stages with
cumulative effect with effect from 10.02.2020 and such
reduction of time scale of pay will have effect on his pension
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
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and retirement benefits in contravention of the retirement policy
of the FCI and such financial deduction and financial constraints
have caused not only hardship to the petitioner but also
deprived of in getting the entitled payments.
51. The petitioner claims the following outstanding
dues and pension, which had remained due and payable with
effect from 30.9.2020:
(a) Last location to home town TA grant from
Imphal to Riha Village, Phyngyar Sub-
Division, Kamjong District.
(b) FCI post-retirement medical scheme
medical benefits as admissible per year
OPD for prolong diseases.
(c) IPD & OPD medical treatment benefits as
per FCI HQ Circular.
(d) Rs.5,000/- as memento on the day of the
petitioner's retirement day.
(e) FCI-Defined Contribution Pension
Scheme.
(f) Employees' Pension Scheme, 1995.
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52. The respondent authorities filed affidavits detailing
the payment of retirement benefits payable to the petitioner. As
could be seen from the material papers, by the office order
dated 12.2.2021, the competent authority had accorded
sanction of Rs.17,04,620/- towards payment of gratuit;
Rs.5,73,206/- towards leave encashment of 145.5 days of EL
and Rs.3,04,331/- towards HPL of 154.5 days of HPL was
approved and the said sum has been paid to the petitioner vide
cheque dated 16.2.2021. It is stated that the petitioner is entitled
for FCI post-retirement medical schemes for self and spouse.
53. According to the petitioner, the petitioner had
already submitted the prescribed pension claim forms well in
advance prior to the retirement and release of pension and
other retiral benefits would be calculated through the existing
basic pay of Rs.1,09,090/- of the petitioner as already drawn on
31.1.2020 in the scale of pay of Rs.80000-220000. Therefore,
re-submission of prescribed pension claim forms are not
necessary.
54. In reply, Mr. D. Julius Riamei, the learned counsel
for the respondents submitted that the petitioner was requested
through various correspondences to submit the dully filled
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DCPS pension forms, however, he has failed to submit the
same for the reasons best known to him.
55. Payment of monthly pensions could not be
completed unless the petitioner submits pension forms in
prescribed forms and all the requisite documents so as to
enable the department to process the pension papers. Since
petitioner pleads that he is suffering a lot from financial
constraints without getting pension, he is directed to submit the
prescribed pension forms, if not already submitted, to the
respondents as expeditiously as possible enabling them to
process the pension papers.
56. For the foregoing discussions, this Court is
inclined to pass the following orders:
(i) These writ petitions are allowed.
(ii) The impugned orders assailed in W.P.(C)
No.581 of 2020 and W.P.(C) No.465 of 2021
are set aside.
(iii) The respondent authorities are directed to
settle the eligible pending retirement benefits
to the petitioner, including pension and arrears
of salary, if any.
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(iv) The respondent authorities are directed to
disburse the eligible pending retirement
benefits at the last existing basic pay @
1,09,090/- as admissible with effect from
01.01.2020 till 30.09.2020.
(v) The said exercise shall be completed within a
period of eight weeks from the date of receipt
of a copy of this order.
(vi) There will be no order as to costs.
(vii) In view of the disposal of the writ petitions, MC
(WP) No.134 of 2021 in WP (C) No.581 of
2020 is closed, as no deliberate delay on the
part of the respondent authorities in settling the
outstanding dues payable to the petitioner.
JUDGE
FR/NFR
Sushil
WP(C) No. 581 of 2020, WP(C) No. 465 of 2021 and MC(WP(C)) No. 134 of 2021
