Managing Director Food Corporation Of India & Others vs Sureshanand Sharma

Ramesh Ranganathan, CJ

The application to condone the delay in preferring this appeal is not opposed by Sri J.S. Bisht, learned counsel for the respondent and the delay is, therefore, condoned.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 703 of 2007 dated 28.03.2019. The respondent herein filed WPSS No. 703 of 2007 seeking a writ of certiorari to quash the impugned orders dated 23.02.2007, 06.04.2004 and 7/8.08.2003 passed by respondent nos. 1, 2 & 3 respectively.

Facts, to the limited extent necessary, are that the respondent-writ petitioner was functioning as an Assistant Depot Manager at the godown of the Food Corporation of India at Rishikesh; the third respondent-General Manager passed an order on 7/8.08.2003 directing that a sum of Rs. 1,00,000/- be deducted from the salary of the petitioner at Rs. 5,000/- per month.

Aggrieved thereby, the respondent-writ petitioner preferred an appeal to the second respondent who, by order dated 06.04.2004, dismissed the appeal. The respondent-writ petitioner, thereafter, filed a review application before the Managing Director (the first respondent) who, by the order impugned in the writ petition dated 23.02.2007, dismissed the review application filed by the respondent-writ petitioner. Aggrieved by the orders passed by the Reviewing Authority, the Appellate Authority and the Disciplinary Authority, the respondent-writ petitioner invoked the jurisdiction of this Court.

In the order under appeal in WPSS No. 703 of 2007 dated 28.03.2019, the learned Single Judge, after referring to the Regulation 74 of the Food Corporation of India (Staff) Regulations, opined that the Board of Directors was competent to take a decision on the review application filed by an employee; the Managing Director could not have decided the review field by the respondent-writ petitioner; when a Statute requires a thing to be done in a particular manner, the same must be done in that manner or not all; if the petitioner had addressed the review to the Managing Director, it was incumbent upon him to forward the same to the Board of Directors; and, since the same has not been done, the order passed by the Managing Director, on the review petition of the petitioner, deserved to be quashed. The writ petition was allowed, the order passed by the Managing Director in the review petition was quashed, and the Board of Directors were directed to consider the review petition filed by the petitioner, and pass an appropriate order in accordance with the law within a period of eight weeks. The learned Single Judge made it clear that, since he had not considered the challenge made by the petitioner to the orders passed by the Disciplinary Authority and the Appellate Authority, it was open to the petitioner to challenge the same, in case the review was decided against him.

The appellants herein, thereafter, filed an application seeking review of the order passed by the learned Single Judge; and, by order in Review Application No. 325 of 2019 in WPSS No.703 of 2007 dated 27.04.2019, the learned Single Judge observed that the review application had been filed by another counsel; and, since the no objection certificate of the earlier counsel had not been taken by the review applicants before filing the review application, he was not inclined to entertain the review application in view of the law laid down by Supreme Court in Tamil Nadu Electricity Board and another vs. N. Raju Reddiar and another: AIR 1997 (SC) 1005. The review application was dismissed. Aggrieved by both the original order in WPSS No. 703 of 2007 dated 28.03.2019, and the order passed in Review Application No. 325 of 2019 in WPSS No. 703 of 2007 dated 27.04.2019, the Food Corporation of India is now in appeal before us.

Sri A.S. Rawat, learned Senior Counsel appearing on behalf of the appellants, would submit that Regulation 74 of the Food Corporation of India (Staff) Regulations, provides for review; while Sub-Regulation (1) thereof confers power on the Board of Directors to review any order made under the Regulations, Regulation 74 (4) confers power, among others, on the Managing Director similar to those specified in Clause (1); the attention of the learned Single Judge was not drawn to Regulation 74 (4); and, based merely on Regulation 74 (1), the learned Single Judge had set-aside the order passed by the Managing Director dismissing the review petition filed by the respondent-writ petitioner.

On the other hand, Sri J.S. Bisht, learned counsel for the respondent-writ petitioner, would submit that, in view of the non-obstante clause in Regulation 74 (1), the power of review could only have been exercised by the Board of Directors; even otherwise, in terms of Regulation 74 (4), the Managing Director can only review the order passed by an authority sub-ordinate to him; the Executive Director (Appellate Authority) is not an officer sub-ordinate to the Managing Director; no interference is, therefore, called with the order under appeal; since the review petition was dismissed by the learned Single Judge, and an appeal has now been preferred against both the orders, the validity of the order passed in the review petition cannot be examined, since the said order was passed in terms of the law declared by the Supreme Court.

Before examining the rival contentions, it is necessary to refer to Regulations 74 (1) and (4) of the Food Corporation of India (Staff) Regulations which read as under:

Review

(1) (Notwithstanding anything contained in these regulations, the Board may, at any time either on its own motion or otherwise, call for the records of any inquiry and review any order made under these regulations), and

(a) confirm, modify or set-aside the order: or

(b) confirm, reduce, enhance or set-aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or

(c) Remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or

(d) pass such other orders as it may deem fit;

(4) Powers similar to those specified in Clause (1) above may be exercised by the (Chairman), Management Director, Executive Director (Zone) and Deputy General Manager (Region)/Deputy General Manager in respect of orders passed by authorities subordinate to them.

It is no doubt true that Regulation 74 (1) starts with a non-obstante clause, and confers power on the Board, notwithstanding anything contained in the Regulations, at any time, either on its own motion or otherwise, to call for the records of any inquiry and review any order made under the Regulations. The power of review conferred on the Board, in Regulation 74 (1), extends to reviewing any record of inquiry or any order made under the Regulations. Regulation 74 (4) also confers a power of review, among others, on the Managing Director. The said power of review, under Regulation 74 (4), is however circumscribed, and can be exercised by the Managing Director only in respect of orders passed by authorities sub-ordinate to him. In effect, while the Board of Directors, of the Food Corporation of India can review any order passed under the Regulations in view of Regulation 74 (1), the Managing Director can, in terms of Regulation 74 (4), review only an order passed by an authority sub-ordinate to him. In the present case, while the original order of punishment was passed by the General Manager Region (the third respondent), the appeal preferred thereagainst by the respondent-writ petitioner was dismissed by the Executive Director (Zone).

The question which would necessitate examination is whether the Executive Director (Zone) can be said to be an officer sub-ordinate to the Managing Director, for it is only then could the Managing Director have exercised the power of review against the appellate order passed by the Executive Director (Zone). While the hierarchy of officers, in the Food Corporation of India, has not been furnished, the statement showing the competent authority in appendix-2 of the Staff Regulations does indicate that the Executive Director is an officer sub-ordinate to the Managing Director. While the petitioner, no doubt, falls in category (3) for whom the Disciplinary Authority is the General Manager, for officers in category (2), (both for Zone and Head Quarters), the Disciplinary Authority is the Executive Director (Zone) and the Appellate Authority is the Managing Director. For officers in category (1) while the Disciplinary Authority is the Managing Director, the Chairman of the Food Corporation of India is the Appellate Authority. Since an appeal is provided, for officers in category (2) against the order passed by the Executive Director, to the Managing Director, and since an Appellate Authority would, ordinarily, only be an officer superior in rank to the Disciplinary Authority, it does appear that the Executive Director is an officer sub-ordinate to the Managing Director. Consequently the Managing Director was entitled to exercise the power of review, in terms of Regulation 74 (4), against the appellate order passed by the Executive Director.

As the Managing Director had the power to review the appellate order passed by the Executive Director under Regulation 74 (4), we are satisfied that the learned Single Judge was in error in holding otherwise, evidently, because Regulation 74 (4) was not brought to his notice.

Sri J.S. Bisht, learned counsel for the respondent-writ petitioner, would submit that the respondent-writ petitioner had challenged the order of punishment as well as the appellate order in the writ petition filed before the learned Single Judge; and the learned Single Judge had, however, confined his examination only to the question whether the Managing Director had the power to review any order made under the Regulations. We find considerable force in this submission of the learned counsel for the respondent-writ petitioner and, since all other contentions urged by the respondent-writ petitioner in the writ petition have not been examined, we restore the Writ Petition to file.

Since the writ petition relates to the year 2007, and all matters relating to the year 2014 and prior thereto have been identified for expeditious disposal, we have no reason to doubt that, on a request being made by Sri J.S. Bisht, learned counsel for the respondent-writ petitioner, the learned Single Judge would consider hearing and deciding the writ petition with utmost expedition.

Since the order under appeal itself is being set-aside, and the writ petition is being restored to file, it is unnecessary for us to examine the validity of the order passed by the learned Single Judge in the review application. The Special Appeal is, accordingly, disposed of. No costs.