AI Structured Summary
Not yet generated for this judgment
Judgment
Sheema Ali Khan, J.—The petitioners are aggrieved by order, dated 29.6.2000 passed by the District Manager, Food Corporation of India, Chapra (hereinafter referred to as ''(he Corporation'') and the order of the Senior Manager, dated 26.12.2000 and the orders affirming the aforesaid two orders passed by the Zonal Manager East or the Corporation by which the review application was dismissed. By the aforesaid orders the petitioners were imposed penalty in a departmental proceeding.
There are two petitioners before this Court and except for only a few variations in the dates, the cases of the two petitioners are same.
The petitioners were working as Depot Incharge. Petitioner No. 1 was Assistant Grade I (D) and petitioner No. 2 was Assistant Grade II (D) at Hajipur during the relevant period and they were in-charge of the Storage Depot of the Corporation at Hajipur. The petitioners were issued a show cause notice on 21.4.1999 and 16.10.1999 respectively from the District Manager of the Corporation at Chapra to show cause on an alleged misconduct relating to entry in the receipt account of rice consignments. It was alleged that there was an abnormal shortage of rice in the consignment which was received in the Corporation''s Depot and the percentage of loss was 4.13. Petitioner No. 1 was given seven days time to show his cause. Similarly petitioner No. 2 was given the same amount of time to reply to the show cause as to why a departmental proceeding should not be initiated against them.
The petitioners submitted their reply on 14.5.1999 and 12.11.1999 respectively. On 12.11.1999 itself the petitioners received a charge-sheet and it was indicated that petitioner No. 1 was responsible for a shortage of which the value was Rs. 1,68.427.60 and Rs. 56,143.20. The petitioners were required to show cause as to why pecuniary loss caused to the Corporation should not be recovered from the salary of the petitioners. Again the petitioners were given seven days time to file their reply. The petitioners filed their reply on 4.12.1999 and 3.12.1999 respectively.
Learned Counsel for the petitioners has submitted that the entire proceedings were held in a perfunctory manner and from the very facts it appears that the initial show cause filed by the petitioners were not considered before issuing the charge-sheet. As may be noted, the show cause petitioner No. 2 was filed on 12.11.1999 and the charge-sheet was also issued on 12.11.1999 itself which would indicate the mechanical manner in which the authorities have acted. The order of punishment of petitioner No. 1 is being quoted below:
As per the opinion given by the Advocate, F.C.I., Chapra, it has been decided that Rs. 5,300.00 will be deducted from your salary per month during your service period and the rest amount of penalty which cannot be adjusted during your service period that amount will be deducted from the amount of Gratuity. P.F. or any arrear etc., payable to you.
Similarly the order of punishment of petitioner No. 2 reads as follows:
As per the opinion given by the Advocate, F.C.I., Chapra, it has been decided that Rs. 5,600.00 will be deducted from your salary per month in nine instalment and rest balance amount Rs. 5,743.20 in 10th and final instalment.
Learned Counsel appearing on behalf of the Corporation has submitted that the petitioners were punished in terms of Regulation 54 and it is the common ground that both the petitioners were proceeded in terms of Regulation 60 of the Food Corporation of India (Staff) Regulation, 1971. Regulation 54 enumerates the minor penalties which are as follows:
(i) ''Censure'';
(ii) With holding of his pro-notion;
(iii) Recovery from his salary of whole or part of any pecuniary loss caused by him to the Corporation by negligence or breach of orders;
(iv) Withholding of increments of pay.
The procedure adopted was under regulation 60 which may also be reproduced below:
Procedure for imposing minor penalties.--(1) Subject to the provisions of sub-regulation (3) of Regulation 59, no order imposing on an employee any of the penalties specified in Clauses (i) to (iv) of Regulation 54 shall be made except after;
(a) informing the employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-regulations (3) to (23) of Regulation 58, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the employee under Clause (a) and the record of inquiry, if any held under Clause (b) into consideration;
(d) recording a finding oh each imputation of misconduct or misbehaviour.
(2) Notwithstanding anything contained in Clause (b) of sub-regulation (1), if in a case it is proposed, after considering the representation, if any, made by the employee under Clause (a) of the sub-regulation, to withhold increment of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to the employee or to withhold increments of a pay for a period exceeding 3 years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-regulations (3) to (23) of Regulation 58 before making any order imposing on the employee any such penalty.
(3) The record of the proceedings in such cases shall include:
(i) a copy of the intimation to the employee of the proposal to take action against him;
(ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him;
(iii) his representation, if any;
(iv) the evidence produced during the inquiry;
(v) the findings on each imputation of misconduct or misbehaviour; and (vi) the order oh the case together with the reasons therefor.
Mr. Prabhakar Tekriwal appearing for the respondent-Corporation submits that the petitioners were awarded minor punishment of recovery of whole or part of the pecuniary loss caused to the Corporation following the procedures under regulation 60 of the Staff Regulations. Learned Counsel further submits that in terms of sub-regulation of Regulation 60 an enquiry was required to be held only in case it was proposed to award the punishments as indicated in that regulation. But in this case the punishment being recovery of the pecuniary loss caused to the Corporation, it was not required to hold a detailed departmental enquiry.
Learned Counsel for the petitioner submits that the order of punishment in the case of both the petitioners would amount to a major punishment and affects valuable rights and no punishment can be imposed without holding a full-fledged enquiry. In this case as observed earlier, the entire proceeding was conducted hurriedly and the order issuing the charge-sheet was in fact, at least in the case of petitioner No. 2, issued on the same date i.e. 12.11.1999 which actually shows complete non-application of mind. The order imposing punishment for that matter is also infirm, inasmuch it has been issued only on the basis of the opinion given by the Advocate and withholding a full-fledged enquiry. The order of punishment also reflects that the authority has not applied its own mind. Even in a case where minor penalty is imposed in accordance with the regulations, it is, required that the authority should give reasonable opportunity to make a representation. The purpose of giving an opportunity to make a representation is not to throw it in the dust bin but the least that is required of the authority is that it should be considered before further action is taken. In this case, however, the action did not show that the authorities concerned even bothered to go through the representation before issuing the charge-sheet.
It is well settled law the pension is not an ax gratia payment and that pension includes gratuity, in view of the laws laid down by the Supreme Court in Nakara''s case and the case of Deokinandan Prasad Vs. The State of Bihar and Others, it has been held that the pension is a property and it obviously cannot be denied without proper show cause. It cannot be varied or reduced to the disadvantage of the person concerned without observation of the principles of natural justice.
Let me now consider sub-regulation (2) of Regulation 60 wherein the provisions states, that withholding increment of pay, if such withholding was likely to adversely affect the amount of retirement benefits payable to the employee, or (ii) withholding of pay for a period of existing three years, (iii) withholding increments of pay with cumulative effect for any period, makes it obligatory upon the competent authority to hold a departmental proceeding in terms of Regulation 58 of the Staff Regulation. The punishments of deduction of large amount of money of Rs. 1,38,427.60 and Rs. 56,143.20 respectively appears to be a severe punishment and the order of punishment specifically states that it is recoverable from pension/gratuity of the employees-petitioners. It would appear quite anomalous that education of such large sum from an employee''s retiral dues may be made as recovery for pecuniary loss allegedly caused by the concerned employee without following the provisions of sub-regulation (2) of Regulation 60. This Court would have considered whether sub-regulation (3) of Regulation 54 would include also the recovery from retiral dues of the employees. The sub-regulation speaks of recovery from part of the pay. It does, not speak of recovery from ''PAY AND RETIRAL DUBS'' and as such it cannot be said that the procedure for imposing minor punishment under regulation 61 could be invoked. In a case like the present one where the punishment includes recovery from pay and retiral dues, it would require a full-fledged departmental enquiry.
Even otherwise the procedure envisaged in Regulation 61 may dispense with the detailed enquiry into the charges, nevertheless it would provide that the delinquent must be given a reasonable opportunity of making such representation as he might wish to make against the proposed punishment and there should be some indication that the representation/show cause of the petitioners has been considered by the employer. In this case it appears that the authority had made up their mind to punish the petitions and, therefore, without even considering the representation, the charge-sheet was issued.
From the manner in which the authorities proceeded against the petitioners, it is evident and I accordingly conclude that the orders, dated 29.6.2000 contained in Annexures 5 and 5/A and 26.12.2000 (Annexure 6) are bad in law and stand quashed because of the reason that (i) the petitioners were not given a reasonable opportunity for making their representation against the proposed punishments to be awarded to them in connection with the alleged charges, and (ii) that the concerned authorities had made up their mind to award punishment to the petitioners and the issuance of the show cause memo was mere formality, arid (iii) the order of punishment envisages recovery from the pay as well as retiral dues does not come within the definition of minor punishment.
A question now arises whether the matter must be allowed to rest here or whether it should remain open to the Corporation to proceed against the petitioners without any deductions from their retiral dues. The answer to that question will depend upon the statutory provisions governing the employees of the Corporation which must be analogous to Rule 43(b) of the Bihar Pension Rules or Rule 9 of the Central Civil Pension Rules.
I am not inclined to make any conclusive pronouncement on this issue and I leave the matter open to the Corporation. If the Corporation feels satisfied that there are sufficient statutory provisions for proceeding against the petitioners for withholding their pension either wholly or in part, it will be open to them to proceed in accordance with law. But in any event the Corporation must make up its mind and take a final decision in this regard within three months from the date of receipt/production of a copy of the order in the office of the Senior Regional Manager of the Corporation. In case no show cause notice is issued to the petitioners, within three months from the date of receipt of this order in the office of the Senior Regional Manager, it would be presumed that the Corporation has decided for any reason, not to proceed against the petitioners in the matter and the retiral dues will be paid to them in accordance with law.
In the result, this writ petition is allowed, subject to the aforesaid observations and directions. There shall be no order as to costs.