Nathuram vs Food Corporation of India and Another

R.S. Jha, J.

The petitioner who was employed as Assistant Grade II in the establishment of the respondent-Corporation, has filed this petition being aggrieved by the order of his removal from service dated 25-3-1986 and the order dated 16-2-1995 dismissing his appeal.

Before we advert to the facts necessary for adjudication of the present petition, it is necessary to take note of the fact that the petitioner was suspended while performing his duties as Depot Incharge, Ashoknagar Depot in Gwalior region. Subsequently, his order of suspension was revoked and he was posted at Jabalpur and thereafter at Balaghat. The impugned order of removal from service was issued while the petitioner was working at Balaghat and his appeal has been decided by the appellate authority at Bhopal, however, the petitioner had filed a writ petition which was registered as W.P. No. 521/95 before the Gwalior Bench of this Court assailing the order of his removal as well as the appellate order. This writ petition was dismissed on 30-9-96 recording a finding that the Gwalior Bench had no jurisdiction to hear the petitioner''s case but while doing so the learned single Judge also recorded findings on merits and, therefore, the petitioner had filed an appeal against the order of the learned single Judge which was registered as L.P.A. No. 407/96 and was decided on 29-4-97 and while the order in respect of jurisdiction was upheld, the findings recorded by the learned single Judge on merits of the case were directed not to come in the way of the petitioner if he presents a fresh petition before the main seat of the High Court at Jabalpur which had jurisdiction to entertain the petition and it is pursuant to the aforesaid observations of the Division Bench that the petitioner has filed the present petition.

The facts necessary for adjudication of the issues raised before this Court by the petitioner are that the petitioner, while working as Depot Incharge, at Ashoknagar, was suspended and served with a charge sheet on 12-10-84 wherein charges of misappropriation of 31.25.500 quintals of sugar between January, 1984 to April, 1984; misappropriation of five bags from the railway rake, received on 14-1-84 and production of false certificate in that respect; misappropriation of Rs. 20,500/- withdrawn as labour advance; issuance of two false gate passes for two trucks and threatening of the Assistant Manager, K.C.Yadav, during suspension were levelled against the petitioner. After due enquiry an enquiry report was submitted by the enquiry officer who found all the charges proved against the petitioner and thereafter the disciplinary authority i.e. Senior Regional Manager passed orders of removal of the petitioner from service on 25-3-86. The petitioner filed an appeal against the order of removal before the Zonal Manager which was also dismissed by the impugned order dated 16-2- 95. Being aggrieved by the aforesaid, the petitioner has filed the present petition before this Court.

The petitioner has assailed the impugned orders on two grounds, firstly, that during the pendency of the disciplinary proceedings the Food Corporation of India (Staff) Regulations 1971 which have been framed u/s 45 of the Food Corporations of India Act, 1964 was amended with effect from 31-1-86 and the petitioner''s disciplinary authority was redesignated as Regional Manager/Joint Manager in place of Senior General Manager and his appellate authority was redesignated as the Zonal Manager/Senior Regional Manager in stead of the Senior Regional Manager and, therefore, on the date the impugned order of removal from service was issued i.e. 25-3-86, the petitioner''s disciplinary authority was the Regional Manager and not the Senior Regional Manager and in such circumstances the impugned order of removal from service deserves to be quashed as the impugned order, in fact, has been issued by the appellate authority and has resulted in depriving the petitioner of a right of appeal and in support of this submission the learned Counsel for the petitioner has relied upon the judgment of the Supreme Court in Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank, and others, .

The second contention of the learned Counsel for the petitioner is that the disciplinary authority has failed to take into consideration the fact that the receipt-invoice of the railways dated 14-1-84 indicates that there was shortage of five bags of sugar in the rake received by them on 14-1-84 and, therefore, the charge against the petitioner regarding misappropriation of these five bags is misconceived inasmuch as these five bags of sugar were, in fact, misappropriated and misplaced by the railways and for such act of the railways the petitioner cannot be punished. It is submitted that as the authorities have failed to take into consideration all these facts, the impugned order suffers from perversity and deserves to be set aside.

Per contra, the learned senior counsel appearing for the respondents, submits that disciplinary proceedings were initiated by the Senior Joint Manager who was the disciplinary authority at the relevant time and though the Food Corporation of India (Staff) Regulations 1971 was amended with effect from 31-1-86 i.e. just about two months before the issuance of impugned order of removal by the Senior Regional Manager, no prejudice was caused to the petitioner as he was allowed the right to appeal before the Zonal Manager which was entertained and decided by the said authority and in such circumstances the impugned orders cannot be said to have caused any prejudice. The learned Counsel for the respondents, in support of his submissions, has relied upon the judgments of the Supreme Court in Balbir Chand Vs. Food Corporation of India Ltd. and others, and Goa Shipyard Ltd. v. Babu Thomas (2007) 10 SCC 662.

As far as the second contention of the learned Counsel for the petitioner regarding second charge relating to five bags of sugar is concerned, it is submitted by the learned senior counsel appearing for the respondents that it is apparent from a perusal of the enquiry report as well as the orders of the disciplinary authority and the appellate authority that the petitioner failed to produce any document before the enquiry officer to establish the aforesaid submissions. It is further submitted that in view of the positive findings recorded by all the authorities against the petitioner in respect of charge No. 1 and charges No. 3 to 5, even if a contrary finding could not have been recorded by the authority in respect of the second charge, it would have not made any difference on the ultimate result and the consequent order of removal of the petitioner.

I have heard learned Counsel for the parties at length and perused the record.

There is no dispute in respect of the factual aspect of the case to the extent that the Food Corporation of India (Staff) Regulations 1971 was amended with effect from 31-1-86 and the disciplinary authority was changed from Regional Manager to the Senior Regional Manager. In the case of Surjit Ghosh (supra) the regulations prevailing in the establishment of the United Commercial Bank prescribed the disciplinary authority as Divisional Manager or the AGM (Personnel) and the appellate authority as Deputy General Manager or any other officer of the same rank with a further right of review to the General Manager but in case of the petitioner therein the action was taken against him by the Deputy General Manager who was his appellate authority as a result of which the appellant was denied the right to appeal and also the right of review which lay only against an appellate order and in such circumstances the Supreme Court held that the action of the authorities of the United Commercial Bank resulted in discrimination and caused serious prejudice to the petitioner therein by depriving him the right to appeal and review.

In the case of Balbir Chand (supra) wherein the present respondent i.e. Food Corporation of India was a party, the impugned order was passed by the Managing Director though the regulations prescribed the Zonal Manager as a competent authority and in such circumstances the law laid down by the Supreme Court in Surjit Ghosh (supra) was pressed into services but the Supreme Court taking into consideration the fact that the order of punishment was issued by a higher authority and that the petitioner had filed an appeal and availed of that remedy, held that no discrimination or prejudice was caused to him and dismissed the petition.

Similar view has been taken by the Supreme Court in the case of Goa Shipyard (supra) and the order of the High Court allowing the petition on the basis of the aforesaid preliminary contention was set aside and the matter was remanded back for adjudication on merits to the High Court in the following terms :

Mr Rao next referred to the amended CDA Rules wherein it has been provided that for all officers up to and inclusive of Manager, the disciplinary authority who can impose major penalties is the General Manager/Functional Director and the appellate authority is the Chairman & Managing Director. According to Mr Rao, since the order of dismissal has been issued by the Chairman & Managing Director who is an appellate authority, the respondent has been deprived of his right of appeal to the Chairman & Managing Director. According to him, under the amended CDA Rules the appellate authority is the Chairman & Managing Director but as the major penalty has been imposed by the Chairman & Managing Director, he cannot act as an appellate authority and therefore the respondent has lost one form of remedy available to him. We are unable to countenance to this submission. The respondent was not denied the right of appeal. Undisputedly, the respondent filed an appeal before the Board of Directors, as the order of dismissal was passed by the CMD, and the Board of Directors considered his appeal and by a detailed order dismissed the appeal on 27-9-1997. In fact, the Board of Directors independently considered the appeal and while dismissing the appeal held that Charges (ii), (v), (x)(a), (x)(b), (xi) and (xiii) are not fully or entirely proved and confirmed the dismissal order on Charges (i), (vi), (vii), (x)(c) and (xii). The appeal was considered independently by the appellate authority and a detailed order passed after application of mind. In such circumstances, we are clearly of the view that no prejudice whatsoever has been caused to the respondent as he availed an opportunity of an appeal before the Board of Directors as an appellate authority.

Mr Rao invited our attention to the decision of this Court rendered in Surjit Ghosh v. Chairman & Managing Director, United Commercial Bank where this Court observed as under: (SCC p. 477, para 6)

However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned.

In our view, this decision would be of no help to the respondent''s case on facts. As already noticed in the present case, the respondent in fact, had availed the remedy of appeal and filed the appeal before the Board of Directors. That apart, the decision in Surjit Ghosh has been distinguished by this Court in Balbir Chand v. Food Corporation of India Ltd. It was pointed out as under: (SCC pp. 373-74, para 3)

The learned Counsel for the petitioner has raised the contention that since the petitioner was required to be dismissed by the disciplinary authority, namely, Zonal Manager, who alone is competent to remove him, the order of dismissal passed by the Managing Director is bad in law. In support thereof, he placed reliance on a judgment of this Court in Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank. It is an admitted position that as a joint enquiry was conducted against all the delinquent officials, the highest in the hierarchy of competent authority who could take disciplinary action against the delinquents was none other than the Managing Director of the Corporation. In normal circumstances the Managing Director being the appellate authority should not pass the order of punishment so as to enable the delinquent employee to avail of right of appeal. It is now a well-settled legal position that an authority lower than the appointing authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action. On that basis, it cannot be said that there will be discrimination violating Article 14 of the Constitution or causing material prejudice. In the judgment relied on by the counsel, it would appear that in the Rules, officer lower in hierarchy was the disciplinary authority but the appellate authority had passed the order removing the officer from service. Thereby, the appellate remedy provided under the Rules was denied. In those circumstances, this Court opined that it caused prejudice to the delinquent as he would have otherwise availed of the appellate remedy and his right to consider his case by an appellate authority on question of fact was not available. But it cannot be laid as a rule of law that in all circumstances the higher authority should consider and decide the case imposing penalty as a primary authority under the Rules. In this case, a right of second appeal/revision also was provided to the Board. In fact, appeal was preferred to the Board. The Board elaborately considered the matter through the Chairman. It is not violative of Article 14 of the Constitution.

The High Court had allowed the respondents'' writ petition by upholding the preliminary contention that the CMD did not have the authority and jurisdiction to pass the order of dismissal. It did not consider the several contentions raised by the respondent on merits. In the view that we have taken, the decision of the High Court dated 25-11-2003 on the preliminary contention cannot be sustained. We, therefore, set aside the order of the High Court dated 25-11- 2003 which allowed Writ Petition No. 414 of 1997 on a preliminary ground. Consequently the writ petition shall stand restored to the file of the High Court. The High Court shall now consider the other contentions raised by the respondent-writ petitioner other than the issue answered by this Court.

In the instant case Regulation 56 and Appendix 2 of the Regulation of 1971 prescribe the disciplinary authority and Regulations 67 and 69 provide for filing of an appeal and prescribe the appellate authority, while Regulation 74 provides for filing of a review before the Board. In the instant case on the date the disciplinary proceedings were initiated the Senior Regional Manager was competent to take up the proceedings against the petitioner and impose all the penalties but just two months before the order of removal was passed, the Regulations were amended with effect from 31-1-86 prescribing a lower authority i.e. Regional Manager, as the disciplinary authority as a result of which the order of removal in the petitioner''s case was issued by an authority higher in rank than the disciplinary authority prescribed in the Regulations. Apparently, the petitioner did not take up this issue before the appellate authority but availed of the remedy of appeal before the Zonal Manager and was permitted to do so and the appeal was ultimately decided by the impugned order dated 16-2-95. Although the remedy of review under Regulation 74 before the Board of the respondents was available to the petitioner, but he chose not to avail the same and opted for filing of a writ petition against the order of the disciplinary authority and the appellate authority.

In view of the aforesaid admitted facts it is apparent in the instant case that though the order of removal was passed by an authority higher than the one prescribed in the Regulations as on the date the order was issued, no prejudice or discrimination resulted therefrom as the petitioner successfully availed of the remedy of appeal and even though the remedy of review was also available to him, he chose not to avail the same and in such circumstances the impugned orders of the disciplinary authority and the appellate authority cannot be held to be either discriminatory or prejudicial to the interest of the petitioner as has been held by the Supreme Court in the cases of Balbir Chand (supra) and Goa Shipyard (supra). In the facts and circumstances of the case the reliance placed by the petitioner on the judgment in the case of Surjit Ghosh (supra) is misconceived in view of the subsequent judgments of the Supreme Court wherein the judgment in the case of Surjit Ghosh (supra) was considered and distinguished and as the facts in the present case are totally different.

In view of the aforesaid discussion, I am unable to agree with the learned Counsel for the petitioner as far as his first contention is concerned.

The contention of the petitioner against the impugned orders on merits also do not warrant consideration in view of the fact that there is concurrent findings of the disciplinary authority as well as the appellate authority in respect of all the five charges levelled against the petitioner whereas the petitioner in the present petition has only taken up the issue against charge No. 2 regarding five bags of sugar. From a perusal of the record it is apparent that the disciplinary authority and the appellate authority have applied their minds to charge No. 2 and have recorded a finding against the petitioner on account of the fact that no document in support of his case was produced by him before the enquiry officer.

In such circumstances, it cannot be said that the findings recorded by the disciplinary authority and the appellate authority suffer from any perversity, manifest illegality or unreasonableness warranting interference of this Court in concurrent findings as held by the Supreme Court in the case of Yoginath D. Bagde Vs. State of Maharashtra and Another, .

Resultantly, as I do not find any merit in the petition, the same is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.