A. Anandan vs The Chairman, Food Corporation of India and Others

K. Chandru, J.—I have heard Mr.K.Subramanian, learned Senior Counsel appearing for Mr.S.Punniyakotti, counsel for the petitioner and

Mr.P.D.Audikesavalu, learned Counsel appearing for the respondents and have perused the records.

The petitioner challenges the order dated 06.7.2006 wherein and by which the fifth respondent appellate authority converted the punishment of

removal from service imposed on him to that of compulsory retirement from the service with effect from 11.8.1999. The petitioner was employed

as Assistant Grade I in Zonal Office of the Food Corporation of India [for short, ''FCI'']. Due to agitation conducted by the SC / ST Employees

Association demanding for implementation of the post based roster system, certain unpleasant events took place in the office of the respondent

Corporation. By an order dated 30.7.1999, the petitioner was transferred to the Karnataka Region. There was en masse transfer of 46 employees

from Chennai Region to other places and the petitioner was the Chairman of the FCI SC / ST Employees'' Welfare Association, South Zone,

Chennai. From November 1999 to May 2000, the transferred employees started a series of demonstration in front of the Zonal Office of the FCI.

On 15.5.2000, the second respondent filed a Civil Suit before the Original side of this Court being C.S. No. 368 of 2000 against 21 employees

out of 46 employees, who were transferred, seeking for an injunction restraining the transferred employees from holding any demonstration and

also for recovery of a sum of Rs.10,01,000/- by way of damages from those workmen for loss of reputation. The petitioner was not personally

issued with the transfer order. However, a public notice dated 01.11.2000 was published in ''The Hindu'' newspaper and it was intimated in that

notice that the petitioner was transferred by order dated 30.7.1999 and that he was relieved on 10.8.1999. He did not join even after lapse of 2-

1/2 years in the place of posting and when registered letter dated 17.10.2000 was sent to him, he neglected to report at the new place of posting

and that he was also issued with a show cause notice as to why his services should not be terminated in terms of Regulation 19 of the FCI Staff

Regulations 1971 [for short, ''Regulations'']. Again, by a public notice published in:''The Hindu'' dated 03.12.2000, a show cause notice was

issued to the petitioner. Once again, by a public notice dated 21.12.2000, the impugned order of termination was passed against the petitioner,

which was also published in ''The Hindu'' dated 18.01.2001. Thus, the impugned order came to be passed based upon the Regulation 63(ii) read

with Regulation 56 of the Regulations.

Regulation 63(ii) of the Regulations reads as follows:

Notwithstanding any contained in Regulation 58 to Regulation 62:

(i) ....Omitted....

(ii) Where the disciplinary authority is satisfied for the reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry

in the manner provided in these regulations.

Regulation 56 of the Regulations reads as follows:

Disciplinary authorities:

The Board or the authority specified in Appendix 2 in this behalf or any other authority (higher than the authority specified in Appendix (2)

empowered in this behalf by a general or special order of the Board, may impose any of the penalties specified in Regulation 54 on any employee.

It is needless to state that Regulation 63(ii) is akin to the provision enshrined to Article 311(2)(b) of the Constitution of India. In fact, the said

provision, viz., Article 311(2)(b) came to the considered by the Supreme court in Union of India and Another Vs. Tulsiram Patel and Others, . The

relevant passage found in paragraph 130 reads as follows:

Pare 130: The condition precedent for the application of clause is the satisfaction of the disciplinary authority that it is not reasonably practicable to

hold the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is that the words used are not reasonably practicable and not

impracticable. According to the Oxford English Dictionary practicable means Capable of being put into practice, carried out in action, effected,

accomplished, or done; feasible. Webster''s Third New International Dictionary defines the word practicable inter alia as meaning possible to

practice or perform: capable of being put into practice, done or accomplished: feasible. Further, the words used are not not practicable but not

reasonably practicable. Webster''s Third New International Dictionary defines the word reasonably as in a reasonable manner: to a fairly sufficient

extent. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so.

It is not a total or absolute impracticability which is required by Clause (b). What is requisite is that the holding of the inquiry is not practicable in

the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not

be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably

practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or

intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government

servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of

his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an

atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or

is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual

may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is

generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311

makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry

lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department''s case against the

government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the

court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also

the order imposing penalty. The case of Arjun Chaubey v. Union of India is an instance in point. In that case, the appellant was working as a senior

clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the

appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly relating to the Deputy Chief

Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent

served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his

explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial

Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order

holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the

disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief

Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter.

Para 131: It was submitted that where a delinquent government servant so terrorizes the disciplinary authority that neither that officer nor any other

officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself

shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried

out by senior officers should be paralysed because a delinquent government servant either by himself or along with or through others makes the

holding of an inquiry not reasonably practicable.

Per contra, Mr.P.D.Audikesavalu relied upon the judgment of the Supreme Court reported in Ajit Kumar Nag Vs. General Manager (P.J.),

Indian Oil Corporation Ltd., Haldia and Others, wherein the Tulsi Ram Patel''s case (cited supra) was considered and explained. He relied upon

the following passages found in paragraph 50 and 51 of the judgment, which read as follows:

Para 50: ...The power was exercised by the disciplinary authority under the second proviso to Article 311(2). Reiterating the principles laid down

in Tulsi Ram Patel and upholding the action, the Court observed that there are circumstances in which such a drastic action is called for. The Court

noted that it was not possible to enumerate the cases in which it would not be reasonably practicable to hold inquiry under Article 311(2), but

certain illustrative cases have been highlighted which included activities of terrorising, threatening or intimidating witnesses who might be giving

evidence against a civil servant or threatening, intimidating or terrorising disciplinary authority or his family members or creating an atmosphere of

violence or general indiscipline and insubordination. The Court also indicated that though it was a mandate of the Constitution to record reasons in

writing for dispensing with an inquiry, it was not necessary that such reasons should find place in the final order or they should be communicated to

the delinquent. It was no doubt emphasised that it would be better if such reasons are recorded in the order itself and communicated to the

delinquent officer. Regarding suspension of a civil servant, the Court opined that it is not necessary that the civil servant should be placed under

suspension until such time the situation is improved and it becomes possible to hold inquiry against him. According to the Court, it would be difficult

to foresee how long the situation would last and when normalcy would return or be restored.

Para 51: The Court then said: [SCC p. 272, para 6(69)]

In certain cases, the exigencies of a situation would require that prompt action should be taken and suspending a civil servant would not serve the

purpose and sometimes not taking prompt action might result in the trouble spreading and the situation worsening and at times becoming

uncontrollable. Not taking prompt action may also be construed by the troublemakers as a sign of weakness on the part of the authorities and thus

encourage them to step up their activities or agitation. Where such prompt action is taken in order to prevent this happening, there is an element of

deterrence in it but this is an unavoidable and necessary concomitance of such an action resulting from a situation which is not of the creation of the

authorities.

But after referring to those decisions, the conclusion of the Supreme Court in the Ajit Kumar Nag''s case (cited supra) is found in paragraph 53

of the judgment, which reads as follows:

Para 53: We have also gone through the decision of the learned Single Judge as well as of the Division Bench. It is clear from the record of the

case that the writ petition was filed by the appellant immediately after the order of dismissal was passed against him and the learned Single Judge

considered the legality of the order. The learned Single Judge perused the relevant record produced at the time of hearing and noted that the

alleged incident did take place. All persons requested for taking a strong action against the petitioner (the appellant herein) and no lenient view was

called for. Even after the sons of Parul Jana came down from the 1st floor and informed the petitioner that their mother''s condition was stable, the

petitioner continued the agitation. Being an employee of the Corporation, the petitioner had no business to lead an unruly mob resulting in damage

to property and assaulting the hospital staff who were on duty and were treating patients including a patient having cardiac treatment.

Para 54: The learned Single Judge, therefore, concluded:

If such discipline is not considered to be grave, I do not know what more should be appropriate to justify the order of dismissal.

Para 55: When an intra-court appeal was filed against that order, the Division Bench again considered the contentions raised by the appellant.

Dealing with the argument that the documents were not given, it was submitted on behalf of the Corporation that no such prayer was made. The

Court, therefore, observed relying on a decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan that no prejudice had been

caused to the appellant. The Court examined the report and perused the record. It was disclosed from the material placed before the Court that

there was a situation which created disorder in the establishment for which the police had to be called for and the General Manager (PJ) in charge

had to rush late at night. People were frightened and there was ultimatum by staff members due to which there was a possibility of break down of

the entire system. The Division Bench, therefore, stated: These are situations with which the person at the spot has to deal with. The authority on

the spot is the best judge of the situation prevailing. It is he who has to assess the situation and take steps. In the light of prevailing circumstances,

the Division Bench observed, the action could not be termed as illegal, unlawful or perverse. Regarding plea of mala fide, the Court noted that

adequate material had not been placed on record which would go to show that the order was malicious or mala fide. The Division Bench,

therefore, dismissed the appeal.

Para 56: In our view, neither the learned Single Judge nor the Division Bench has committed any error of law and/or of jurisdiction which deserves

interference in exercise of discretionary jurisdiction under Article 136 of the Constitution. As is clear, the situation has been created by the

appellant. It was very grave and serious and called for immediate stern action by the General Manager. Exercise of extraordinary power in

exceptional circumstances under Standing Order 20(vi) in the circumstances, cannot be said to be arbitrary, unreasonable or mala fide. It is well

settled that the burden of proving mala fide is on the person making the allegations and the burden is very heavy. (vide E.P. Royappa v. State of

T.N.) There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be

remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof

of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa v. State of Maharashtra (SCC p. 802, para 2): It (mala fide) is the last

refuge of a losing litigant.

Therefore, one has to look into the circumstances where the discretion found in Regulation 63(ii) is available and where the disciplinary authority

was satisfied in invoking Regulation 63(ii) of the Regulations. In the present case, immediately after the dismissal, the petitioner filed a writ petition

before this Court in W.P.No. 39971 of 2005 and this Court, by an order dated 15.12.2005, directed the respondent to treat it as Review Petition

under Regulation 74 of the Regulations and to dispose of the same on merits. It is pursuant to this order, the impugned order dated 06.7.2006 was

passed by the fifth respondent converting the punishment of removal from service to one of compulsory retirement.

In the present case, it must be seen that the show cause notice was published in The Hindu daily newspaper in the business page on

01.11.2000. It was stated that the petitioner should report to the Bangalore Office within 3 days failing which disciplinary action will be taken

against him and since he had not reported, he was asked to show cause as to why his services should not be terminated under Regulation 19 of the

Regulations. Regulation 19 deals with termination of services of the employee by giving 90 days notice or pay and allowances in lieu of notice.

Thereafter, the final show cause notice was published again in The Hindu newspaper dated 03.12.2000 in which it is stated that the petitioner had

violated Regulation 17 read with 32A(6 and 20) of the Regulations. While Regulation 17 deals with transfer, 32-A describes various misconducts.

Regulation 32-A(6) deals with wilful insubordination or disobedience of any lawful order of the superior and 32-A(20) deals with wilful absence

from duty after expiry of joining time on transfer. It was stated in that show cause notice that the petitioner was not receiving any lawful orders of

the competent authority and that he was not taking cognizance of fresh notice. It was not possible for the competent authority to have any kind of

enquiry or proceeding as per the Staff Regulations. Therefore, the special procedure found in Regulation 63 of the Regulations was invoked.

Thereafter, final dismissal order was also published in The Hindu newspaper dated 18.01.2001 wherein the dismissal order dated 21.12.2000 was

published. The following portion found in the dismissal order can be usefully extracted.

WHEREAS it is not possible to communicate with him either in person or post and he is continuously denying to receive the lawful orders of the

Competent Authority and even not taking cognizance of the Press Notification, thus it is not possible for the Competent Authority to have any kind

of enquiry or proceedings as per FCI Staff Regulations, 1971 compelling the Competent Authority to invoke special provisions under Regulation-

63 of FCI Staff Regulations, 1971.

AND WHEREAS inspite of having been given repeated opportunity of being heard and fully notified, the said official has deliberately and

intentionally failed and / or neglected to show cause for his non-compliance with the Competent Authority''s Order No. 267/99 E.I. Dated

30.7.1999. In view of the above, the undersigned being the Disciplinary Authority impose the penalty of REMOVAL FROM SERVICE of the

Food Corporation of India with effect from 11.8.1999 F/N under Regulation 63(ii) read with 56 of the FCI (Staff Regulations, 1971).

Therefore, from the beginning to the end, the respondent FCI has been conducting all the proceedings only through notifications advertised in

the newspaper. In view of the above, two questions arise for consideration. (1) Whether the circumstances mentioned in the dismissal order

existed on facts; and (2) Whether the reasons recorded in dispensing with the enquiry as per Regulation 63(ii) of the Regulations is available in the

present case. In order to answer the first question, it must be seen whether the procedure for serving notice on employees as found in Staff

Regulations, has been followed or not.

Regulation 75 of the Regulations deals with service of orders and notices and the same is as follows:

Miscellaneous:

Service of Orders, Notices, etc.:

The following procedure shall be followed by the Corporation while serving orders, notices, etc. on Corporation''s employees:

(i) Every order, notice and other process made or issued under these Regulations shall, as far as possible, be delivered or tendered to the

employees concerned in person;

(ii) Where such order, notice or other process cannot be served personally as at (i) above, the notice etc. shall be served on such employee by

Registered Post acknowledgment due at the address of the employee available with the Corporation at the office where the employee was last

working or, if he is on leave, as per his leave application particulars, if any, and

(iii) If the notice sent by the Registered post is returned unserved, it should be published in the Local / Regional Language Newspapers and All

India Newspapers, as appropriate and upon such publication, it shall be deemed to have been personally served on such employee.

Regulation 75(iii) clearly states that if any employee for whom notice is sent by registered post returned unserved, it should be published in the

local / regional language newspaper and in addition to that, an All India Newspaper as appropriate and upon such publication only, it can be

deemed to have been personally served on such employee. Nowhere the respondent FCI had complied with the Regulation 75(iii) of the

Regulations. The only option open to the FCI is to publish either in the local or in the regional language newspaper and All India Newspaper and it

does not talk about publication in any English newspaper, which is neither the local nor regional language. Therefore, the fault is on the FCI taking

advantage of the deemed service provided under Regulation 75(iii) of the Regulations. The basis on which the show cause notice was issued and

the removal order do not exist, as admittedly, the publication was done only in English newspaper.

Then the next question arises as to whether the circumstances of the present case warranting the disciplinary authority to be satisfied that it was

not reasonably practical to hold an enquiry in the manner provided under the Regulations. In fact, as can be seen from the passage found in the

dismissal order extracted above, the only ground on which Regulation 63(ii) was invoked was that it is not possible to communicate the petitioner

either in person or by post. That cannot be a ground to dispense with the enquiry because Regulation 75 of the Regulations provides that if an

order is not able to be communicated, it provides for a method and mode of service of other means and as found earlier, that method or mode was

not followed in the present case. Secondly, it is not the case where it was reasonably practical to hold an enquiry because there was no such

activities of terrorising, threatening or intimidating witnesses, who may give evidence against the employees and there was no atmosphere of

creating violence as found in Tulsi Ram Patel''s case (cited supra). Even the factors found in Ajit Kumar Nag''s case as found in paragraph 53 of

the said judgment extracted above, the workmen taking an unruly mob resulting in damage to property and assaulting hospital staff does not exist in

the present case. Even in Ajit Kumar Nag''s case, the Supreme Court has cautiously held that exercise of extraordinary power in exceptional

circumstances cannot be said to be arbitrary, unreasonable or mala fide.

In the present case, the charge against the petitioner was that he did not report in the transferred place and the defence of the petitioner was

that the transfer order was not served on him. This does not involve in any complicated question to be answered by examining several witnesses

and a simple enquiry by the FCI would have been sufficient. If for some reason, the petitioner had not participated and avoid receiving of notice,

Regulation 75 of the Regulations takes care of the situation and inspite of such deemed service of notice, the petitioner was not willing to appear,

then it would have resulted in ex parte enquiry in which evidence could have been recorded and the matter could have been disposed of. On the

contrary, the respondent FCI on a thorough misunderstanding of the law on the subject, went on an quixotic way of interpretation in Regulation

63(ii) of the Regulations indulging in several paper publications in English newspaper thereby spending considerable amount of money on

newspaper advertisement. The discerning intention seems to be to discredit the petitioner than to comply with the statutory Regulations made in this

behalf. In these circumstances, this Court has no hesitation in setting aside the impugned order and allow the writ petition.

In the light of the above, the writ petition shall stand allowed and the impugned order stands set aside. The petitioner is eligible for

reinstatement in service with all consequential benefits. However, this will not prevent the respondents taking any further action in terms of the

statutory Regulations framed by the FCI, if the circumstances of the case so warrant. However, there will be no order as to costs.