Kuppuswamy vs The District Manager, Food Corporation of India and Others

Srinivasan, J.—This writ petition is for issue of certiorarified mandamus calling for the records of the 4th Respondent relating to his Review Order No. V and S/5(42)/88 dated 7.3.1989 and quash the same as illegal and consequently issue directions to the Respondents to refund the amount recovered from the Petitioner and the deductions effected and to pay full salary with allowances as per last pay drawn in January, 1986 with periodical increments increase in D.A., A.D.A., etc.

The Petitioner was appointed as Watchman in 1978 by the Food Corporation of India. He was posted as such in SROL. Godowns storage Complex I, Thanjavur. A memorandum was issued to him on 29.1.1985 by the District Manager, Food Corporation of India directing him to explain as to why disciplinary action should not be taken against him for certain negligence in his duly Which led to shortage or missing of three polythene film rolls. He submitted his explanation on 3.2.1986 and thereafter, a memorandum of charges, was framed and issued to him on 22.2.1986. There were three articles in the memorandum of charges. The first was that two F.C.I. locks of Navthal seven lever used at Godown No. 9, SC-1, FCI. Thanjavur had been physically removed and replaced by other locks with the inscription of CWC engraved on them between 7 p.m., on 28.12.1985 and 10.30 a.m., on 29.12.1985 when the Petitioner was on duty for the second shift between 2 p.m. and 10 p.m. on 28.12.1985 at the main gate and the third shift between 10 p.m. and 6.00 p.m. on 28/29.12.1985 in Godown No. 9. The second article was that it was found by the Assistant Manager (Depot), in a physical verification that three polythene new film rolls worth Rs. 3,500/- were missing from Godown No. 9 while the Petitioner was the Watchman on duty on the dates referred to above. The thrid article was that the Petitioner while working in the SROL, godown had in his statement dated 3.1.1986 stated that he left the duty spot and came to main gate for taking his night food and he had slept there itself, and in his explanation dated 3.2.1986 he has stated that he deserted the duty post as he was shivering from cold. The memorandum of charges was accompanied by the statement of imputations of misconduct/misbehaviour in support of charge as well as a list of documents by which the charges were to be proved. Item No. 9 in the list of documents was Petitioner''s explanation dated 3.1.1986 and 3.2.1986. The list of witnesses was also appended to the memorandum of charges.

The Petitioner filed a statement on 6.3.1986 that he had already set out his defence in detail on 3.2.1986 while replying to the memo, dated 29.1.1986 while replying to the memo, dated 29.1.1986. He added that it was due to his incapacity to withstand the shivering and nervous disorder, which was vouchsafed by the certificate i.e., out patient slip of R.M. Hospital Thanjaviir. He could not bear the pain of penalisation and prayed for handling the subject in a human manner so as to wriggle out from the impact of charge sheet.

An enquiry was held and the Enquiry Officer gave his report on 10.11.1987. The Regional Manager passed an order of punishment on 13.1.1988. The Regional Manager accepted the findings of the Enquiry Officer and awarded a penalty of reduction in present pay of the Petitioner to the minimum of pay scale applicable to the post of Watchman with immediate effect for the rest of his service in the Corporation besides recovery of 1/4th of loss of Rs. 3,500/- suffered by the Corporation in ten equal monthly instalments. The order also said that the period of suspension from 22.1.1986 to the date of receipt of revocation dated 15.2.1986 is regularised as "non-duty" without pay and allowances other than subsistence allowance already paid to him.

Along with the copy of the order, a true copy of the findings of the Regional Manager, was also served on the Petitioner. It is seen there from that the Regional Manager relied on the admission made by the Petitioner that he left the duty spot during the duty period and remained at the main gate.

Aggrieved by the said order, the Petitioner filed an appeal to the Zonal Manager through the Regional Manager on 4.2.1988. The appeal was disposed of by the Senior Regional Manager who called for a report from the Regional Manager on the ground raised in the appeal. The appeal was dismissed by order dated 28.6.1988. The Senior Regional Manager held that there were good and sufficient reasons for imposing penalty on the Petitioner and there was no need to interfere with the same.

The Petitioner applied to the Zonal Manager again for review of the order on 21.7.1988. The Zonal Manager considered the matter on review and passed an order 7.3.1989. He held that the Petitioner was fully responsible for the theft in the godown and deserved to be punished severely. But taking into account the length of service which the Petitioner had rendered and the fact that he was a Class IV staff, the Zonal Manager viewed his review petition on humanilcrian grounds and modified the penalty. By the said modification, the reduction of pay to the minimum time scale of pay was reduced to a period of five years with further direction that during the said period the Petitioner will not earn any increment and after expiry of the penalty period, the same will not have the effect of postponing his future increment of pay. In other respects, the order passed by the Regional Manager was left unaltered.

Thereafter, the Petitioner has approached this Court with this writ petition with the prayer already referred to. It is contended by Learned Counsel for the Petitioner that the Regional Manager has not followed the procedure prescribed by the regulations inasmuch as he has not forwarded a copy of the report of the Enquiry Officer to the Petitioner and called for a representation from him before passing an order of penalty. He relied on Regulation 59 of the Staff Regulations. It is rightly pointed out by Learned Counsel for the Respondents that the Regulation relied on by the Petitioner''s counsel was amended in 1979 effective from 2.1.1979. After the amendment, there is no provision in the Regulations requiring the disciplinary authority to send a copy of the report of the Enquiry Officer to the delinquent and called for a representation from him. Clause 4 of Regulations 59 (after amendment) reads thus:

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

The Regulation is quite clear and it says expressly that it is not necessary to give the employee any opportunity of making representation on the proposed penalty by the disciplinary authority. Learned Counsel submitted that this Court has taken the view that even if the Regulations do not provide for furnishing of such report to the employee concerned, it is but fair that a copy of the report should be furnished to the employee by the disciplinary authority. I do not agree. After the amendment of Article 311 of the Constitution of India, the Supreme Court has considered the position in several matters and ruled that after the amendment of Article 311(2) of the Constitution, there is no necessity for giving a second opportunity to the employee concerned vide Union of India and Another Vs. Tulsiram Patel and Others, . It is not necessary to dilate further on the subject when the relevant Regulation is express in this aspect of the matter, that the authority is not bound to give a copy of the report to the employee. At any rate, the employee cannot make complaint to this Court that the procedure prescribed by the Regulations has not been followed inasmuch as a copy of the report is not furnished to him before the order of penalty was made.

The second contention of Learned Counsel is that as a matter of fact there could not have been any theft of film rolls on the dates mentioned in the charge memo. It is also staled that the police authorities could not find any footprints inside the godown when they visited the place immediately after the complaint was lodged with them which would show that no stranger could have entered the godown on the date on which the alleged theft has taken place. This is a contention of fact which ought to have been raised before the fact-finding authorities. In the memorandum of appeal forwarded by the Petitioner to the appellate authority, there is no whisper about this aspect of the matter. Hence, it is not open to the Petitioner to raise this contention in this writ petition. Moreover, Learned Counsel for the Respondents draws my attention to a copy of the extract from the stock register for the relevant dates included in the typed set of papers filed by him. At page 43 of the typed set of papers, the entries made between 1.4.1985 and 25.12.1985 are found. It is seen there from that while on 24.12.1985, the number of film rolls in stock was 14 and 2 more rolls were received thereafter plus a part of a roll making a total of 16 rolls plus a part as on 26.12.1985. Hence, there is no merit in the contention that the charge that out of 16 film rolls, there were stolen and only 13 were found in the godown after the relevant date is false, is unsustainable.

The third contention of Learned Counsel is that the appellate authority is bound to consider the appeal on merits and on the matters set out in the relevant Regulation. In the present case, the appellate authority called for a report from the Regional Manager on the matters set out in the appeal. The relevant part of the Regional Manager''s report as extracted in the appellate authority''s findings reads thus:

I am aware of this case right from its inception. The grounds on which I had come to a conclusioin to award the said penalty were well brought out in my descriptive notes recorded on note pages 32-38. I have nothing to add further. The very fact that FCI locks were replaced by CWF locks is enough to penalise the Watchman on duty directly connected. Their involvement can never be ruled out in the face of any amount of oral deposition by any employee. I reiterate that the penalty awarded by me in respect of Shri S. Kuppuswamy and G. Murugaian was the minimum that I could think of.

After extracting the same, the appellate authority merely added "I agree" and signed the findings. Learned Counsel submits that Regulation 72 which provides for an appeal against an order of the disciplinary authority requires that the appellate authority shall consider (a) whether the procedure laid down in the Regulations had been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions under these Regulations or in the failure of justice; (b) whether the findings of the disciplinary authority were warranted by the evidence on record; and (c) whether the penalty imposed is adequate, inadequate or severe. Clause 3 of Regulation 72 provides that the appellate authority shall consider any appeal against any order specified in Regulation 68, all the circumstances of the case and make such orders as it may deem just and equitable.

There is considerable force in the contention of Learned Counsel that the appellate authority''s order does not disclose by itself whether he considered the matters set out in Regulation 72. It cannot be said that the order of the Appellate Authority is in conformity with Regulation 72 of the Staff Regulations.

However, Learned Counsel for the Respondents points out that there was a further review by the Petitioner to the Zonal Manager under Regulation 74 and in that review, the entire matter has been considered afresh by the Zonal Manager and an order has been passed. It is submitted that the order passed by the Zonal Manager in the review petition gets merged with the order of the appellate authority and it is no longer open to the Petitioner to challege the order of the appellate authority by pointing out the infirmity therein. Regulation 74 which enables the reviewing authority to confirm, modify or set aside the order or confirm, reduce or set aside the penalty imposed by the order or merit for fresh consideration or pass such further orders as it may deem fit. Clause 2 of Regulation 74 provides that no proceeding for review shall be commenced until after the expiry of the period of limitation for an appeal or the disposal of the appeal, where any such appeal has been preferred and under Clause 3, an application for review shall be dealt with in the same manner as if it were an appeal under these Regulations. Thus, a reading of Clauses 2 and 3 of Regulation 74 shows that normally a review is entertained against the order imposing penalty if there is no appeal and after the expiry of the period of limitation of the appeal and even if there is an appeal after the disposal of the appeal, the reviewing authority can review the order of the disciplinary authority imposing the penalty and also holding the employee to be guilty. Thus, the purpose of the appeal is equally served by the application for review. Particularly, Clause 3 makes it clear that the application for review is to be dealt with in the same manner as an appeal. In this case, the reviewing authority has considered the records and entire evidence thereon before passing an order on the review petition. No complaint has been made against the order of the reviewing authority as such that he has not applied his mind to the matters on record. It is seen from the order of the reviewing authority that he has referred to the admission made by the petition that he stayed away from the duty spot on the night of 28/29.12.1985 and also his deposition during the enquiry that he left the duty spot. The reviewing authority has rejected the contention on the Petitioner that he was not aware as to whether the godown was locked with FCI locks or CWC locks. The fact that the reviewing authority has reduced the punishment awarded to the Petitioner also shows that he has independently applied his mind to the evidence or record and come to an independent conclusion. Hence, the complaint as against the order of the appellate authority cannot be sustained in this writ petition. The ends of justice have been met fully in view of the proceedings of the reviewing authority and the order passed by him.

14, Learned Counsel for the Petitioner relies on a judgment of a Division Bench of the Andhra Pradesh High Court in Senior Regional Manager, F.C.I. Hyderabad and Anr. v. Ganpath Rao(1984 1 All Ind. SLJ 45). The Bench has held that when an appeal is preferred and that too a first appeal against an order of the disciplinary authority, it is incumbent upon the appellate authority to consider the several factors mentioned in Clauses (a) (b) and (c) of Regulation 72 of the Staff Regulations and record a finding thereon. The writ petition in that case was filed as against the appellate authority''s order. There was no further petition for review by the employee in that case. Hence, the Court was concerned only with the appellate order and it took the view that the said order did not satisfy the requirements of Regulation 72. The proposition laid down by the Bench will not have any application in the present case in view of the facts already stated.

The last contention of Learned Counsel is that the order passed against the Petitioner is violative of Article 14 of the Constitution. It is submitted that the proceedings were initiated against four persons who were Watchmen of the godown. With reference to one Murugaiyan the order of punishment was passed initially and it was challenged by him in W.P. No. 6320 of 1988. this Court set aside the order of punishment on the ground that the disciplinary authority had not recorded any reasons for disagreeing with the findings given by the Enquiry Officer, In that case the findings given by the Enquiry Officer were in favour of the employee but the disciplinary authority held against the employee without recording any reasons for taking a different view. Hence authority and remitted the matter for fresh consideration. Thereafter, the said employee was exonerated after the examination of the case by the disciplinary authority. Obviously, the disciplinary authority agreed with the findings of the enquiry officer on the second occasion and exonerated the employee.

Learned Counsel submits that when another employee who was also a Watchman during the relevant period has been exonerated, if is not open to the authorities to punish the Petitioner herein. Reliance is placed against the judgment of this Court in K. Kannan (minor) rep. by his father and natural Guardian K. Kandasamy v. The Central Board of Secondary Education rep. by its Deputy Secretary and Anr. (1992 T.L.N.J. 158). It relates to a discipoliary proceedings taken against a student in an educational institution. Charges were framed against two students. One of them turned up for the enquiry, while the writ Petitioner failed to attend the enquiry. The educational institution punished the writ Petitioner while the other student was let off. The Court held that the principles of Article 14 of the Constitution were offended and quashed the order passed against the writ Petitioner in that case. Reference was made to the decision in Karuppannan y. Tamil Wadu Water Supply and Drainage Board (1992 1 M.L.J. 303) wherein it was held that when disciplinary proceedings were taken against certain persons, it cannot be proceeded against one alone and that if it is so done, it is discriminatory and offends Article 14 of the Constitution.

The principle laid down can be applied if the contents of the charge and the facts are identical in the case of both the employees. In the present case, the facts are not identical. In the case of Murugaiyan who was exonerated, he was in charge of Godown No. 8. There was no theft or removal of locks in godown No. 8: The enquiry officer in the case of Murugaiyan filed a report to the effect that it would take normally 15 minutes for Murugaiyen to go round godown No. 8 and as such, he could not have seen the theft committed in godown No. 9. that report of the enquiry officer was based on the evidence of the witnesses adduced in the course of enquiry. Only on that basis, this Court held that when the disciplinary authority refused to accept the finding of the enquiry officer, it right to have recorded the reasons therefor. In the present case, it is relevant to note the difference in facts. According to him, he went to the main gate for taking his night meals and after taking food, he slept there itself. Even that by itself would constitute misconduct on his part. When there is an admission on the part of the Petitioner that he was not in the duty spot during the duty hours, it cannot be said that his case stands on the same pedestal as that of Murugaiyan. Hence, the principle of equality dealt with by Article 14 of the Constitution will have no application in the present case. There is no question of violation of Article 14 of the Constitution of India. The ruling in Kannan''s case (1992 L.N.J. 153) will have no bearing in the present case.

In the circumstances, the contentions put forward by Learned Counsel for the Petitioner are rejected. The writ petition is dismissed. Having regard to the fact that the Petitioner is only a Watchman, there will be no order as to costs.