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Judgment
P. Jyothimani, J.—This writ petition is directed against the proceedings of the second Respondent dated 14.7.2003 addressed to the first
Respondent, the consequential proceedings of the first Respondent dated 17.7.2003 and the subsequent order passed by the first Respondent
dated 24.7.2003, dismissing the Petitioner from the services of the first Respondent/Food Corporation of India.
2.1. The writ Petitioner has joined in the services of the first Respondent/Corporation as Technical Assistant (Analyser) on 30.9.1965 and was
promoted as Assistant Manager (Quality Control) in the year 1977. On his application, the Petitioner was directly recruited as Deputy Manager
(Administration) in the year 1986 and was promoted as Joint Manager in the year 1993 and in the year 2001, he was promoted as Manager,
which post is equivalent to the post of Deputy Zonal Manager, governing the southern States, having office at Chennai.
2.2. The Petitioner was issued a charge memo dated 28.2.2003, which was subsequently amended on 28.4.2003. The charges relate to the
purchase of Aluminium Phosphide and as to whether the purchase was under the running rate contract and also about the calling for fresh tender,
apart from the method of ascertaining the quality of purchased items. The Petitioner has submitted his explanation on 17.4.2003 denying the
charges. Six articles of charges were framed and the Enquiry Officer, in the enquiry conducted, in which the management has examined only one
witness even though five witnesses were cited, has concluded that charges under articles 1, 3 and 5 are not proved and charges under articles 2, 4
and 6 are proved.
2.3. It is stated that after the report of the Enquiry Officer was received, the first Respondent has sent a communication to the second Respondent
on 9.7.2003 seeking its approval to dismiss the Petitioner and it is stated that the second Respondent has granted such approval on 14.7.2003,
without giving opportunity to the Petitioner. On 17.7.2003, the first Respondent has issued a second show cause notice along with the report of the
Enquiry Officer seeking comments of the Petitioner for disagreeing with the report of the Enquiry Officer in respect of the charges concluded as not
proved, by also enclosing the impugned communication of the second Respondent dated 14.7.2003, however without supplying the letter of the
first Respondent dated 9.7.2003 addressed to the second Respondent seeking approval of the proposed action of dismissal. It is stated that even
the impugned communication of the second Respondent dated 14.7.2003 was given in the form of a xerox copy.
2.4. It is stated that the Petitioner has ultimately submitted his explanation on 20.7.2003 and thereafter, the first Respondent has passed the
impugned order of dismissal on 24.7.2003, seven days prior to the date of superannuation of the Petitioner, viz., 31.7.2003. The impugned
proceedings are challenged by the Petitioner on various grounds, including:
(i) that the conduct of the first Respondent in seeking approval from the second Respondent for dismissing the Petitioner is alien to the service
regulations;
(ii) that the report of the Enquiry Officer ought to have been submitted to the Petitioner at the first instance asking his comments for disagreeing
with the report of the Enquiry Officer in respect of the charges concluded as not proved by the Enquiry Officer, viz., charges under Articles 1, 3
and 5, which has not been done;
(iii) that even if the second Respondent has no role to play in respect of the disciplinary action to be taken against the Petitioner by the first
Respondent, the second Respondent ought to have put the findings of the Enquiry Officer to the Petitioner, which is the basic requirement of the
principles of natural justice;
(iv) that the enquiry proceedings are not in conformity with the statutory requirements, especially when the Enquiry Officer himself is a peer, viz., he
is a Manager from the Personnel and Establishment Division holding an equal rank to that of the Petitioner, and therefore, appointing him as
Enquiry Officer itself is against convention;
(v) that by writing a letter on 9.7.2003 to the second Respondent seeking his approval to dismiss the Petitioner from service, the first Respondent,
even before completing the disciplinary proceedings, has arrived at a conclusion which is a predetermined notion;
(vi) that while amending the charges no opportunity was given to the Petitioner; and
(vii) that the Enquiry Officer has himself cross-examined the Petitioner in a lengthy manner and therefore, the enquiry itself has become perverse.
3.1. In the counter affidavit filed by the first Respondent, it is stated that the writ petition is not maintainable and as against the order of dismissal
the Petitioner has got a right of appeal and review under the Food Corporation of India Staff Regulations, 1971, which is statutory in nature.
3.2. It is also denied that the first Respondent has already predetermined the issue. It is stated that the first Respondent has only followed the
direction of the Apex Court in forwarding the tentative views to the second Respondent for its advice and after receiving the advice from the
second Respondent, as per the procedure, the report of the Enquiry Officer, the disagreement memo containing reasons for disagreement and the
advice given by the second Respondent were furnished to the Petitioner calling upon him to submit his explanation and that is to afford one more
opportunity to the Petitioner to submit his representation.
3.3. It is stated that the view sent by the Disciplinary Authority to the second Respondent was only tentative and not final and that cannot be said
to predetermined. It is also stated that it is mandatory on the part of the first Respondent to consult the second Respondent before issuing show
cause notice, as per the Circular dated 11.8.1999 of the second Respondent.
3.4. It is stated that the purchase of additional quantity of Aluminium Phosphide at Rs. 244/-per Kg. was ordered during 1999-2000, despite
confirmed expected escalation in the cost in the subsequent tender dated 14.8.2000 in view of the enhanced excise duty from 8% to 16%; and that
the Dealing Assistant while putting up the proposal for floating a tender has proposed to request the supplier to supply the same quantity at the
same rate and terms and conditions of the existing RCC which was expiring on 26.4.2000, since it was advantageous to the Corporation as there
was going to be hike in excise duty from 8% to 16%, and in spite of it the Petitioner has not agreed to the proposal of the Dealing Assistant and
recommended for floating of fresh tender and because of that the Corporation was bound to bear the excess cost of Rs. 61/-per Kg. in the
purchase of Aluminium Phosphide as against the existing rate of Rs. 244/-per Kg. and thus, by recommending a higher rate of Rs. 305/-per Kg.,
he has overruled the observations of Associate Finance to purchase the chemical for the existing rate running contract at Rs. 244/-per Kg.
3.5. It is stated that the Enquiry Officer, after conducting detailed enquiry, has concluded that the Petitioner was guilty in respect of charges under
articles 2, 4 and 6, while holding charges under articles 1, 3 and 5 not proved. After examining the report of the Enquiry Officer, the Disciplinary
Authority has sent the same to the second Respondent along with his tentative views for second stage advice as per the procedure and thereafter,
the disagreement memo and second stage advice of the second Respondent along with the copy of the report of the Enquiry Officer were
forwarded to the Petitioner seeking explanation and on receipt of the representation, the entire issue was examined and the entire proceedings
were completed within a period of five months and there was no victimisation.
3.6. It is also reiterated that the Food Corporation of India Staff Regulations, 1971 provides for procedure for preferring an appeal and review
petition against penalties imposed by the disciplinary authority and that the established procedures were followed and the Disciplinary Authority has
decided the quantum of punishment commensurate with the misconduct that resulted in loss and therefore, there is no need to interfere with the
same.
4.1. Mr. V. Prakash, learned Senior Counsel appearing for the Petitioner would submit that there was no finding of loss in the disciplinary
proceedings and the Petitioner has served for 38 years in the Food Corporation of India without any blemish. He submitted that in spite of the fact
that the criminal complaint which has been registered by the Central Bureau of Investigation before the Principal Sessions Judge, CBI Cases,
Chennai in R.C.2A of 2003 was withdrawn by the Executive Director and the criminal case was closed as per the order dated 14.2.2005 made in
Crl.M.P. No. 485 of 2004 finding that there was no evidence for prosecuting the Petitioner and if at all there was any fault, it can be only a
irregular conduct, especially when there was no loss caused to the Food Corporation of India by the conduct of the Petitioner, the payment of
gratuity to the Petitioner has been withheld, even though there is no wilful omission on the part of the Petitioner.
4.2. It is his submission that there has been a contradictory stand taken between the original and amended charges and that the finding for the
purpose of differing from the report of the Enquiry Officer, who has found charges under articles 1, 3 and 5 not proved, is totally perverse. It is
also his submission that the enquiry itself has not been conducted by the Enquiry Officer in a manner known to law and the Petitioner was not given
an opportunity to cross-examine the witness and that the Enquiry Officer himself has cross-examined the delinquent officer.
4.3. It is his submission that the second show cause notice was only an illusion and that the first Respondent has decided pre-emptively and has not
conducted the enquiry with an open mind and therefore, the proceedings are violative of the principles laid down by the Supreme Court in
Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., .
4.4. It is also his submission that the enquiry proceedings have not been conducted in the manner known to law, the Enquiry Officer has not
examined documents through witnesses, and that while five witnesses were shown as prosecution witnesses, only one witness was examined and
he happens to be the Investigating Officer and for the purpose of substantiating his contention that there is a procedural flaw vitiating the entire
disciplinary proceedings, he would rely upon the judgments in Roop Singh Negi Vs. Punjab National Bank and Others, , Anil Kumar Vs. Presiding
Officer and Others, , A.V.S. Perumal v. Vadivelu Asari AIR 1986 Mad 341, and State of Uttaranchal and Others Vs. Kharak Singh, .
5.1. On the other hand, it is the contention of Mr. R. Muthukumarasamy, learned Senior Counsel appearing for the first Respondent that the
procedure has not been violated and it is his contention that there is no predetermination of the issue, since the disciplinary proceedings have been
completed at the earliest point of time and as per the procedure, the Central Vigilance Commission has to be consulted and therefore, the proposal
sent to the Central Vigilance Commission is only tentative in nature and that cannot be said to be the conclusive decision. He would further submit
that even the view of the Central Vigilance Commission have been communicated to the Petitioner and that shows the transparency in the
proceedings.
5.2. He would rely upon the circular of the Central Vigilance Commission dated 28.9.2000 and submit that the decision is procedural and not
predetermined and it is his submission that the final order, in fact, has been passed independently. It is submitted that seeking advice of the Central
Vigilance Commission is not alien and he would rely upon the decision in Sunil Kumar Banerjee Vs. State of West Bengal and Others, and submit
that what was done was strictly as per the circular of the Central Vigilance Commission.
5.3. It is his submission that even by applying the judgment in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , there is no
prejudice caused to the Petitioner by the procedure followed by the Enquiry Officer and the documents were all marked through one witness, who
happens to be the Investigating Officer, which according to the learned Senior Counsel cannot be said to be either illegal or perverse, especially
when the genuineness of the documents was not disputed by the Petitioner at all.
5.4. It is his submission that the Petitioner having participated fully in the enquiry, cannot now go back to challenge the procedure followed therein.
It is his case that the charges have been established on fact and therefore, the judgment of the Supreme Court in State of Uttaranchal and Others
Vs. Kharak Singh, is not applicable and according to him, there is substantial compliance of natural justice.
I have heard the learned Senior Counsel for the Petitioner and the learned Senior Counsel for the first Respondent and given my anxious thought
to the issue involved in this case.
The charges framed against the Petitioner by the first Respondent are as per the Food Corporation of India Staff Regulations, 1971. The
following were the six articles of charges framed originally against the Petitioner:
Article I. In spite of the fact that it was specifically pointed out, the advantage of ordering additional quantities on the existing contract price was
intentionally not availed of. On the contrary to this, request was placed on West Zone to place a further order as per their running rate contract.
Article II. The Zonal Office appears to have exceeded its delegated powers and the proposal was not at all examined from this angle. The
proposal was also processed without adequate budget provision.
Article III. The tender notice did not indicate the quantities required.
Article IV. Initially the bids which were required to be submitted in the tender form, duly filled and signed, were not in the proper form and were
without EMD. Instead of rejecting the bids as was recommended, it was decided to call the parties for negotiations.
Article V. Requirement of chemicals appears to have been estimated/assessed on an unscientific basis.
Article VI. Terms of the contract were effectively modified/altered so much so that it was decided that the samples would be tested in FCI''s own
lab instead of an independent laboratory. The analysis of the samples, so received, in ZO lab also did not appear to be proper and both the
decisions of in house analysis and the method of analysis using gas flow meter, were not approved by the competent authority.
The charges are relating to causing loss to the extent of Rs. 3.57 Crores to the Corporation while purchasing excess quantity of Aluminium
Phosphide by violating the norms and the said charges are supported by the statement of imputation in respect of each of the charges. The
amended charges by way of corrigendum came to be issued on 28.4.2003 in order to arrive at the loss caused to the Corporation as Rs. 3.569
Crores. The Petitioner has submitted his explanation to the charges on 17.4.2003.
A reference to the report of the Enquiry Officer shows that the enquiry was conducted by Manager (Personnel and Establishment), Food
Corporation of India, Head quarters, and he has caused the hearing on 10.6.2003 and straightaway allowed the Presenting Officer to produce 53
original documents relied upon by the Investigating Officer and not denied by the defence and exhibited all the said 53 documents. One M.L.
Batra, Deputy Manager (Vigilance) (Retired), produced by the Presenting Officer was identified as P.W.1. It is also seen that on the side of the
defence ten documents were exhibited and four witnesses, viz., M/s. K.S. Murthy, T.V. Venkataraman, K. Parasivam and C.S. Shivanna, were
produced. The report of the Enquiry Officer reveals that P.W.1, who was produced before the Enquiry Officer, being a Vigilance Officer of the
Corporation, was the Investigating Officer, who investigated the purchase of chemicals in the South Zone, and the defence witnesses were all
examined in detail before the Enquiry Officer, and apart from them the Petitioner, being the delinquent officer, was examined as the fifth defence
witness. Since the said prosecution witness himself was the Investigating Officer, the Petitioner has opposed the procedure and directed his report
as an Investigating Officer to be furnished to him, before the prosecution witness is examined.
In the report of the Enquiry Officer there is no material to show that the said P.W.1 has proved the charges and it appears that by consent all the
documents were exhibited and with that various questions were put to the defence witnesses by the Presenting Officer as well as the Enquiry
Officer. In fact, during the course of enquiry, the Petitioner has raised a crucial issue that the charges have not been corroborated by evidence by
prosecution witness in the oral enquiry and only by production of documents everything was concluded without corroborating the charges and in
effect, the Enquiry Officer has acted as a prosecutor. The Petitioner has raised a specific point, as it is found in the report of the Enquiry Officer, as
follows:
The onus of proving the charges lies with the Prosecution. The charges must be corroborated by evidence in an oral inquiry. If mere production of
documents alone will suffice, the purpose of oral inquiry itself is defeated. In this enquiry the Prosecution just presented the documents and did not
corroborate charges. In effect the Prosecution has expected the Inquiry Officer to act as Prosecution. This is not valid.
Even as per the details given in the report of the Enquiry Officer, it is not seen anywhere that the prosecution witness has corroborated the case
by proving the charges. On the other hand, the Enquiry Officer has relied upon various questions and answers put to the defence witnesses. While
analysing the evidence, the Enquiry Officer has more curiously stated as follows:
Before analysing evidence adduced by both Prosecution and Defence side during enquiry proceedings on each article of charge, it is necessary to
comment on the claims from both sides on availing adequate opportunity for natural justice. Prosecution has dropped all listed prosecution
witnesses except producing Shri M.L. Batra as PW-1 on the grounds that all prosecution documents were authenticated by the Defence/CO
during inspection of listed documents on 23.5.003. PO submitted a representation during regular hearing on 10.6.2003 to produce all 53
prosecution documents as listed in Annexure-III of the charge-sheet straightaway on the basis of certificate issued by the CO on dated 23.5.2003
certifying authenticity of the documents. PO has also pleaded that Shri M.L. Batra was the Chief witness as he has collected all prosecution
documents during the investigation of the matter being a member of the Team. On the other side CO has stated that he has not been provided
adequate opportunity to cross examine the witnesses listed in Annexure-III as the witnesses have been dropped by the PO even though the
witnesses dropped were present during the inquiry at the venue of the inquiry and claimed exoneration on such grounds. CO has also stated that
Presenting Officer has relied upon the documents and the custodian of such documents have not been produced for cross examination and,
therefore, he has been denied of the reasonable opportunity of cross examination to defeat himself. He has also not been provided with the
preliminary inquiry report, and therefore, he has invited attention to Case Laws for exoneration.
Therefore, as admitted by the report of the Enquiry Officer, the Enquiry Officer was conscious that the documents were not produced through
P.W.1, who happens to be the Investigating Officer by himself in respect of the charges, and no other prosecution witness was examined and the
Petitioner was not allowed to cross-examine even the said P.W.1. The only point which has been concluded by the Enquiry Officer is that there
was no objection for producing of 54 documents on the side of the delinquent officer and the delinquent officer was also allowed to exhibit ten
documents and therefore, all the documents were analysed by the Enquiry Officer, who has ultimately come to a conclusion that charges under
Articles 1, 3 and 5 are not proved, while charges under Articles 2, 4 and 6 are proved.
In State of Uttaranchal and Others Vs. Kharak Singh, , the Supreme Court while reiterating the nature of enquiry to be conducted in
disciplinary proceedings, after discussing various judgments on the issue, has laid down the following principles:
From the above decisions, the following principles would emerge: i) The enquiries must be conducted bona fide and care must be taken to see
that the enquiries do not become empty formalities. ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if
the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after
the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some
other officer. iii) In an enquiry, the employer /department should take steps first to lead evidence against the workman/delinquent charged, give an
opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead
any evidence and asked to give any explanation about the evidence led against him. iv) On receipt of the enquiry report, before proceeding further,
it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the
enquiry officer to enable him to offer his views, if any.
By applying the dictum laid down by the Supreme Court to the contents of the report of the Enquiry Officer, which is no doubt exhaustive in its
nature, it shows that the prosecution has not proved the case cogently by producing documents through witnesses and placing such witnesses to be
cross-examined on the side of the delinquent. In the absence of following such crucial method, which is the crux and basis of the concept of
principles of natural justice, any amount of reasoning given by the Enquiry Officer regarding each and every one of the instance in so many pages is
not going to validate the proceeding.
The Disciplinary Authority having cited many prosecution witnesses, has chosen to drop everyone of them after the documents were exhibited
and Investigating Officer was produced as P.W.1, and he was apparently not allowed to be cross-examined by the Petitioner. This certainly is a
procedure alien to the concept of principles of natural justice. I am of the considered view that even if P.W.1, being the Investigating Officer who
has investigated the affairs earlier, has been allowed to be cross-examined by the Petitioner, the same would not have improved the position of the
prosecution in proving the case at the initial stage.
After the enquiry was completed, it appears that the Disciplinary Authority, viz., the first Respondent, based on the Vigilance Manual, has sent
its proposal to the second Respondent/Central Vigilance Commission for its views. Admittedly, that is stated to be as per the circular issued by the
Government of India, Central Vigilance Commission dated 28.9.2000, which enumerates consultation of Central Vigilance Commission in respect
of the disciplinary proceedings, which contemplates two stages of consultation. One is at the time when the charges were to be framed and the
second stage being after the enquiry is completed before passing the order of punishment. The said circular stipulates that as far as the first stage is
concerned, it is open to the department to communicate the proposal to the delinquent, which is not mandatory, for the reason that ultimately after
the charges are framed, the delinquent is going to give his detailed reply. Therefore, in respect of that, there are no inroads made into the concept
of the principles of natural justice. But as far as the second stage is concerned, it shows that when the department sends its proposal, which is
tentative in nature, and such opinion is obtained from the Central Vigilance Commission, the same has to be furnished to the delinquent necessarily
so as to enable the delinquent to submit his explanation along with the report of the Enquiry Officer and that is borne out by the circular dated
28.9.2000, which is as follows:
No. 99/VGL/66
Government of India
Central Vigilance Commission
Satarkta Bhavan, Block ""A"",
PO Complex, I.N.A.,
New Delhi-110 023
Dated the 28th September 2000
To
All Chief Vigilance Officers of Ministries / Departments of Government of India / Nationalised Banks / PSUs / Autonomous Bodies, Societies, etc.
Subject:- Consultation with the CVC - Making available a copy of the CVC''s advice to the concerned employee.
Sir,
Para 3.6 (iii), chapter XI and para 8.6, Chapter XII of the Vigilance Manual, Vol.I, provide that advice tendered by the Central Vigilance
Commission is of a confidential nature meant to assist the disciplinary authority and should not be shown to the concerned employee. It also
mentions that the Central Vigilance Commission tenders its advice in confidence and its advice is a privileged communication and, therefore, no
reference to the advice tendered by the Commission should be made in any formal order.
The Commission has reviewed the above instructions in view of its policy that there should be transparency in all matters, as far as possible. The
Commission has observed that the Hon''ble Supreme Court had held a view in the case - State Bank of India Vs. D.C.Aggarwal and another Date
of Judgment: 13.10.1992 - that non-supply of CVC''s instructions, which was prepared behind the back of respondent without his participation,
and one does not know on what material, which was not only sent to the disciplinary authority but was examined and relied, was certainly violative
of procedural safeguard and contrary to fair and just inquiry. Further, the Hon''ble High Court of Karnataka at Bangalaore, in writ Petition
No.6558/93, has also observed that if a copy of the report (CVC''s advice) was furnished to the delinquent officer, he would have been in a
position to demonstrate before the disciplinary authority either to drop the proceedings or to impose lesser punishment instead of following blindly
the directions in the CVC''s report.
The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e. first stage advice is obtained on the investigation
report before issue of the charge sheet, and second stage advice is obtained either on receipt of reply to the charge sheet or on receipt of inquiry
report. It, however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned
employee, in any case, gets an opportunity to represent against the proposal for initiation of departmental proceedings against him. Therefore, a
copy of the Commission''s first stage advice may be made available to the concerned employee along with a copy of the charge sheet served upon
him, for his information. However, when the CVC''s second stage advice is obtained, a copy thereof may be made available to the concerned
employee, along with the IO''s report, to give him an opportunity to make representation against IO''s findings and the CVC''s advice, if he desires
to do so.
In view of the position stated above, para 3.6 (iii), Chapter XI and para 8.6, Chapter XII of the Vigilance manual, Vol.I, and also para 2 of the
Commission''s letter No.6/3/73-R dated 20.08.1973 may be treated as deleted.
Para 12.4.4 of Special Chapter on Vigilance Management in Public Sector Banks and para 22.6.4 of the Special Chapter on Vigilance
Management in Public Sector Enterprises envisage that the inquiring authorities, including the CDIs borne on the strength of the Commission,
would submit their reports to the disciplinary authority who would then forward the IO''s reports, along with its own tentative views to the
Commission for its second stage advice. The existing procedure in this regard may broadly continue. The disciplinary authority may, after
examination of the inquiry report, communicate its tentative views to the Commission. The Commission would thereafter communicate its advice.
This, along with the disciplinary authority''s views, may be made available to the concerned employee. On receiving his representation, if any, the
disciplinary authority may impose a penalty in accordance with the Commission''s advice or if it feels that the employee''s representation warrants
consideration, forward the same, along with the records of the case, to the Commission for its reconsideration.
Thus, if on receipt of the employee''s representation, the concerned administrative authority propose to accept the CVC''s advice, it may issue
the orders accordingly. But if the administrative authority comes to the conclusion that the representation of the concerned employee necessitates
reconsideration of the Commission''s advice, the matter would be referred to the Commission.
It was in compliance of the said circular, the opinion was obtained from the second Respondent and the opinion of the second Respondent as
well as the report of the Enquiry Officer, with a disagreement memo disagreeing with the report of the Enquiry Officer in respect of the three
charges concluded as not proved were sent to the Petitioner seeking explanation. This, in my considered view, cannot be said to be opposed to
procedure. In fact, the Petitioner has given his second explanation on 20.7.2003 and ultimately, the first Respondent has passed the impugned
order dated 24.7.2003 dismissing the Petitioner from service.
A reference to the proceedings of the first Respondent dated 9.7.2003, a copy of which is produced in the typed set of papers produced by
the first Respondent, shows that what the first Respondent has informed to the second Respondent was that there are certain grounds for the
purpose of disagreeing with the findings of the Enquiry Officer in respect of charge under Article v. and no tentative decision was taken for
imposing any punishment. The letter of the first Respondent dated 9.7.2003 is as follows:
No.Vig.21(157)/2002-SZ 9 July 2003
The Director
Central Vigilance Commission
Satarkata Bhawan, GPO Complex
Block-A, INA
New Delhi
Sub: Complaint against FCI officials of South Zone in the matter of purchase of Chemicals.
Please refer to the endorsement on our letter of even number dated 3.6.2003 addressed to the Director, Central Bureau of Investigation, New
Delhi, on the subject cited above. As mentioned in para 2 on page 2 of thereof, major penalty action has been initiated against Shri R.Balakrishnan,
Manager (Operations)/Deputy Zonal Manager (South), FCI, Chennai, as pr advice of the CVC conveyed in OM No.002/FDC/006 dated
5.2.2003. The Inquiring Authority appointed in the case has submitted his inquiry report. On examination of the same report, it has been observed
that out of six articles of charge, four viz. Article I, II, IV and VI have been proved while two viz. Article III and V have not been proved. Further,
it has been observed that while there is no sufficient reason to differ with the findings of IO in respect of Article III, adequate grounds are there to
disagree with his findings with regard to Article V.
The matter is, therefore, referred to the CVC for second stage advice. Following documents are enclosed herewith:
Copy of the charge sheet issued to the officer vide memo of even number dated 28.2.2003
Copy of the Inquiry Report dated 5.7.2003
Disagreement memo to be served upon the officer enabling him to make a representation.
Recommendation of the disciplinary authority relating to imposition of penalty upon the officer.
A copy of the self-contained investigation report along with the copies of all relied upon documents has already been forwarded to CVC vide this
office letter of even number dated 8.7.2002.
An urgent action is requested as the officer is due for retirement on 31.7.2003.
This issues with the approval of the Managing Director.
Therefore, as far as the reference to the Central Vigilance Commission is concerned, I am of the firm opinion that there is no procedural
irregularity.
But the fact remains that the enquiry conducted by the Enquiry Officer has not been done in the manner known to law, especially in respect of
the documentary evidence and as to how the same has to be proved in disciplinary proceedings.
In Roop Singh Negi Vs. Punjab National Bank and Others, , the Supreme Court has held that the decision of the enquiry authority must be
based on certain legal evidence and that even though the provisions of the Indian Evidence Act do not apply in strict sense, the principles of natural
justice requires that the documents must be proved in the manner known to law and mere production is not sufficient in the circumstance when the
documents only were produced as evidence collected and they were not proved through witnesses in the manner known to law. It is relevant to
reproduce paragraphs 14 and 15 of the said judgment, which are as follows:
Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges
leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into
consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer
against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said
documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by
the Enquiry Officer on the FIR which could not have been treated as evidence.
We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported
confession made by the Appellant before the police. According to the Appellant, he was forced to sign on the said confession, as he was tortured
in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been
brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no
indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not
have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
Ultimately, the Supreme Court has held that suspicion alone is not sufficient, unless it is substituted by legal proof, as follows:
.... A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a
departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also
surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by
any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
In cases where the disciplinary authority proposes to disagree with the view of the Enquiry Officer, which is certainly inherent, the proper
procedure is that the intention to differ from the view of the Enquiry Officer must be placed before the delinquent, asking the delinquent to submit
his further explanation in respect of those charges in which he was exonerated, and this certainly is the continuation of the principles of natural
justice and it is not merely a second opportunity and is a mandatory requirement and such mandatory requirement cannot be said to be a
convenient theory and cannot be dispensed with on the ground that non following of such procedure is not prejudicial to the interest of the
delinquent officer. A Division Bench of this Court, to which I am a party, in V. Arul Kumar v. Housing and Urban Development Corporation
Limited (HUDCO), rep. by its Board of Directors and others 2009 (3) CTC 388, has held as follows:
It is not in dispute that the Disciplinary Authority is entitled to differ from the view of the Inquiry Officer. The principles of natural justice start at
the time when the original charges are framed against the delinquent officer, for which the delinquent officer has submitted his explanation, and the
said concept continues at the time of conducting inquiry by the Inquiry Officer, in which witnesses are examined. After appreciation of evidence,
when the Inquiry Officer finds the delinquent officer not liable in respect of charges 1, 2, 4 and 5 and finds that he is liable only in respect of charge
No. 3, it is clear that in respect of those charges, in which the delinquent officer was exonerated, there was no sufficient proof or evidence to
implicate him. Now, if the Disciplinary Authority wants to differ in respect of the charges, which were exonerated by the Inquiry Officer, giving of
further notice to the delinquent officer asking him to submit further explanation in respect of those charges in which he was exonerated is certainly
the continuation of the principles of natural justice and it is not merely a second opportunity. There is no doubt in our mind that, in such
circumstances, conferring of an opportunity to the delinquent officer is not only in compliance of the principles of natural justice, but the same is a
mandatory requirement, failing which it would mean that without giving opportunity, the Disciplinary Authority would impose punishment in respect
of charges, regarding which, after full-fledged inquiry and appreciation of evidence, the Inquiry Officer found on fact that charges 1, 2, 4 and 5
stood not proved.
In such circumstances, in our considered opinion, it can never be said that conferring of an opportunity is only a matter of convenience and not
of legal necessity, under the guise that non giving of such opportunity has not caused any prejudice to the delinquent officer. Non conferring of such
opportunity certainly causes great prejudice to the delinquent officer, since he loses a very vital opportunity to explain to the Disciplinary Authority
not only about the correctness of the finding arrived at by the Inquiry Officer exonerating him, but also explain to the Disciplinary Authority various
grounds against the charges levelled against him. In such view of the matter, it is not possible to accept the view of the learned Single Judge that no
prejudice has been caused to the delinquent officer and therefore, non giving of an opportunity by the Disciplinary Authority, while differing from
the finding of the Inquiry Officer, does not vitiate the disciplinary proceedings.
On the facts of the present case, even if it is admitted that the delinquent officer has not denied or even consented for the marking of 54
documents, that itself is not sufficient unless the contents of the said documents are proved in connection with the charges framed against the
Petitioner. The entire analysis of the report of the Enquiry Officer shows that the prosecution witness has not proved the contents of the documents
exhibited with consent, but the Enquiry Officer has chosen to analyse the defence witnesses for the purpose of arriving at a conclusion, which, in
my considered view, cannot be said to be a proper method for arriving at a conclusion and the same is opposed to the basic principles of letting in
evidence and arriving at a proof. Even though it is true that in departmental proceedings the provisions of the Indian Evidence Act do not apply in
strict sense, there must at least be a semblance of applicability of principles of law, which is the basis of the concept of natural justice.
Therefore, while concluding that by referring to the Central Vigilance Commission there is no illegality committed by the first Respondent, I am
of the considered view, that the enquiry conducted by the Enquiry Officer, on the face of it, is not in accordance with law. The contention of the
learned Senior Counsel for the first Respondent as if no prejudice was caused to the Petitioner has no meaning. While it is true that the tentative
finding by the first Respondent while referring to the Central Vigilance Commission would not vitiate the proceedings, the basic factor which has
vitiated the entire disciplinary proceedings is the manner in which enquiry was conducted by the Enquiry Officer. If the manner in which enquiry
was conducted itself is not in accordance with law, then the subsequent proceedings which have been conducted legally are not going to validate
the unlawful act.
For the reasons aforesaid, the writ petition is allowed and the order of dismissal passed by the first Respondent stands set aside. It is now
stated that the Petitioner has already reached the age of superannuation. Therefore, the first Respondent is directed to settle the pensionary benefits
due to the Petitioner within a period of twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, W.P.M.P. Nos.
25990 of 2003 and 11419 of 2004 are closed.
After delivery of the order, it is stated by the learned counsel for the petitioner that the job held by the petitioner is not a pensionary job.
The said statement is recorded and that portion of the order directing to pay pensionary benefits shall stand deleted.