Narain Mahto and Others vs Food Corporation of India and Others

A.K. Ganguly, J.—This writ petition has been filed by the seven Petitioners challenging, inter alia, the orders of dismissal passed against them including the appellate order and also the order passed on review petition by the appellate authority.

The facts of the case are as follows--

All the Petitioners were employees of Food Corporation of India (hereinafter called the said Corporation). They were all charged in a criminal case u/s 120-B of the Indian Penal Code for having committed an offence which is punishable u/s 409 of the Indian Penal Code arid Section 5(2) of the Prevention of Corruption Act. They were further charged under Sections 409 and 477-A of the Indian Penal Code read with Section 5(1)(c) and 5(1)(d) and Section 5(2) of the Prevention of Corruption Act. By a judgment dated 13.8.1983 passed by the Special Judge (C.B.I.), North Bihar, Patna in Special Case No. 16 of 1977 all the Petitioners were convicted and sentenced to undergo rigorous imprisonment for one year each under each of the four counts. It is not in dispute that against the said judgment and order of conviction and sentence, the Petitioners filed appeal before, this Court and also before the Supreme Court but they have not succeeded in achieving the order of acquittal.

On the ground that Petitioners have been convicted and sentenced to undergo rigorous imprisonment for various terms, Respondent No. 2, the Senior Regional Manager, Food Corporation of India, Patna on 12.1.1984 passed identical order of dismissal against the Petitioners from service in exercise of the power Conferred under the F.C.I. Staff Regulation, 1971. The operative portion of the said order of dismissal is set out below:

Now, Therefore, the undersigned in exercise of powers conferred by Section 54 of F.C.I. (Staff) Regulation of 1971 Sub-section (ix) read with Department of Personnel and Administrative, Reforms, Government of India O.M. No. 371/3/74-AVD III dated 19.9.1975 hereby dismiss Shri Narain Mahto from the services of Food Corporation of India with effect from the date of issue of this order.

Against the said order of dismissal, the Petitioners filed a writ petition before this Court which was numbered as C.W.J.C. No. 530 of 1984 but the same was withdrawn by the Petitioners in view of the fact that the impugned order is appealable under Regulation 7 of the F.C.I. Staff Regulation, 1971. Thereafter the Petitioners preferred an appeal against the impugned order of dismissal and the said appeal was also dismissed as would appear from paragraph 8 of the amendment petition filed by the Petitioners. After dismissal of the appeal, the Petitioners filed a review petition before the appellate authority, inter alia, on the ground that in view of the subsequent instruction issued by the Food Corporation of India dated 25th September, 1979 it was provided that an employee who is sought to be punished by the Corporation on the ground of conduct which has led to his conviction on a criminal charge should be given an opportunity by the disciplinary authority of being heard to explain his conduct. Further contention raised by the learned Counsel for the Petitioners is that in view of the said Circular they were entitled to be heard by the disciplinary authority before the disciplinary authority passed the order of dismissal. The said stand taken by the Petitioners in the review petition was not considered by the appellate authority and by an order dated 30th March, 1988 passed in respect of the Petitioners, the said review petition was rejected. Those orders have been challenged before this Court by filing an amendment petition.

When the matter was heard before this Court, the only point which was canvassed is that the disciplinary authority ought to have heard the Petitioners before passing the order of dismissal in order to give the Petitioners an opportunity to explain their conduct.

Learned Counsel for the Petitioners submitted that this requirement is inherent and mentioned in the Circular which has been issued by the F.C.I, authorities themselves as would appear from the circular dated 25th September, 1979.

Learned Counsel for the Respondent authorities have, however, submitted that the Petitioners got sufficient opportunity at the stage of defending themselves in the criminal trial and as such no further notice was required to be given to them. Learned Counsel for the Respondents further submitted that the said requirements for giving them an opportunity arose in view of the decision of the Supreme Court in the case of The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, . Learned Counsel further submitted that the said decision in the case of T.R. Challappan (supra) has subsequently been overruled by the Constitution Bench judgment of the Supreme Court in the case of Union of India and Another Vs. Tulsiram Patel and Others, . Apart from the aforesaid contention, no other point has been raised by the learned Counsel for the parties.

It appears from a perusal of F.C.I. Staff Regulations, 1971 (hereinafter referred to as the said Regulations) that Regulation 54 provides for imposition of penalty both minor and major and Sub-clause (ix) of Regulation 54 provides for imposition of dismissal from service which shall ordinarily be a disqualification for future employment under the Corporation. In the impugned order it has been stated that the aforesaid penalty is being imposed in exercise of power conferred by Section 54(ix) of the said Regulation. This is obviously an error. Regulation 54(ix) of the said Regulation does not authorise any person to impose the penalty in question. As is clear from perusal of the said Regulation that such power is given under Regulation 63 of the said Regulation. The said Regulation is set out below:

Special procedure in certain cases.--Notwithstanding anything contained in Regulation 58 to Regulation 62:

(i) where any penalty is imposed on an employee on the ground of conduct which has led to his conviction on a criminal charge, or

(ii) where the disciplinary authority is satisfied for 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.

(iii) where the Board is satisfied that in the interest of security of the State, it is not expedient to hold any inquiry in the manner provided in these regulations,

the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.

It is clear from perusal of the said Regulation 63 that the penalty should have been imposed upon the Petitioner in exercise of powers under Regulation 63(i) of the said Regulation. Therefore, it is clear that while passing the impugned order of dismissal, the appointing authority has passed the same casually and without properly adverting to the different Clauses of the said Regulation. But since it is well settled that mere quoting of a wrong section or wrong provision will not vitiate the exercise of the power, if the authority exercising such power is competent enough to pass the impugned order, the reference to a wrong provision does not matter. The principle is that if the source of power is there, reference to a wrong section or wrong Clause of the Section will not vitiate the exercise of power. Reference in this connection may, be made to the decision of the Supreme Court in the case of H.L. Mehra Vs. Union of India (UOI) and Others, . It has not been argued in this case that passing of the impugned order of dismissal was beyond the competence of the Senior Regional Manager of the Respondent Corporation. Therefore, having regard to the ratio of the decision in the case of H.L. Mehra (supra), this Court cannot invalidate the impugned order.

The other point which has been canvassed, namely that the right of getting an opportunity of hearing before passing of the order of dismissal is no longer available to the Petitioner in view of the subsequent decision of the Supreme Court in the case of Tulsi Ram Patel (supra).

The right of getting an opportunity of hearing by the authorities concerned before passing of the order of dismissal flows from the decision of the Supreme Court in the case of T.R. Challappan (supra) but since the decision in the case of T.R. Challappan (supra) has been expressly overruled by the subsequent Constitution Bench judgment of the Supreme Court in the case of Tulsi Ram Patel, this Court is unable to accept, the said contention made by the Petitioners.

Therefore the contentions raised in this writ petition fail and no relief can be granted to the Petitioners. This writ petition is, therefore, dismissed. There will be no order as to cost.