IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 356 of 2002
Reserved on: July 20, 2011
Decision on: August 4, 2011
B.R.S. PANWAR ..... Petitioner
Through: Mr. Chetanya Siddharth, Advocate
versus
FOOD CORPORATION OF INDIA & ORS. ..... Respondents
Through: None.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in Digest? No
JUDGMENT
04.08.2011
1. The Petitioner, who was working as an Assistant Manager (QC) with Respondent
No. 1 Food Corporation of India („FCI‟), challenges an order dated 27th July 2001
passed by the Disciplinary Authority („DA‟) agreeing with the report of the Inquiry
Officer („IO‟) and imposing the penalty of recovery of Rs. 28.68 lakh from the
terminal benefits of the Petitioner and dismissing him from service.
2. What stands out about the entire disciplinary proceedings is the manner in which the
FCI went about conducting it. The Petitioner was to retire on 31st July 2001. The FCI
appears to have waited till about two months prior thereto to initiate the proceedings in
respect of certain events which took place in May 1998. One charge sheet was served
on the Petitioner on 15th May 2001. Even before he could reply to the said charge
W.P. (C) 356/2002 Page 1 of 6
sheet a second one was issued to him on 23rd July 2011 and he was asked to furnish a
reply “within ten days”. A copy was marked to the District Manager, FCI, Hissar with
the following note:
“The District Manger, FCI, Hissar. He is requested to serve the
memorandum upon the official concerned under dated
acknowledgment which may be sent to this office immediately. If
the CO requests for inspection of documents relevant to this case
he be allowed to inspect the same with specific directions to do so
within two days of the receipt of the memo and submit reply within
four days thereafter, without fail. The reply of CO be forwarded
immediately. If the CO does not submit reply within the stipulated
period as above, necessary intimation to this effect must be given to
this officer immediately after the expiry of this period. The details
report/forwarding letter by which the dated acknowledgment of the
CO regarding delivery of memo as well as his reply invariably be
signed by him. The bio-data of the official may also be sent on the
prescribed proforma especially mentioning the basic pay being
drawn presently.”
3. To say that failure to submit any reply to the above charge sheet amounted to an
admission by the Petitioner reflects the mindset of the Respondent. The Petitioner was
directed to inspect the relevant documents by 25th July 2011 and to furnish a reply
within four days thereafter, i.e. by 29th July 2001. In any event, prior to 29th July 2001
no order on the said charge sheet could have been passed. Yet on 27th July 2001 itself
the DA passed an order holding the Petitioner guilty. The only reason given for this
extraordinary hurry is that a notice of preliminary hearing could not be served on the
Petitioner as he was on medical leave. The IO opined that the Petitioner had not
submitted any documentary proof of his having been admitted to a hospital. The DA
concluded that “it is prima facie unbelievable that the C.O. is inflicted with all manner
of infirmities only at this stage when inquiry against the charges had to be conducted
W.P. (C) 356/2002 Page 2 of 6
in a time bound manner keeping in view the date of his retirement.” Consequently,
Regulation 63 of the Food Corporation of India (Staff) Regulations, 1971 was invoked
and everything averred in the charge sheet was accepted. It is remarkable that the DA
had failed to notice that the memorandum dated 23rd July 2001 gave the Petitioner six
days‟ time to submit a statement of papers after inspection of documents. The said
letter was asked to be given to him through the District Manager, FCI, Hissar for
inspection and offer his reply within six days that expired on 29th July 2011 and yet
the DA passed the order removing the Petitioner from services on 27th July 2001 itself.
4. The Petitioner has placed on record medical records which support his case of
having been unwell during the period in question. Clearly, the Petitioner was not even
given a chance to place the above documents on record.
5. The counter affidavit offers no explanation for the extraordinary procedure adopted.
It is only stated that the medical records produced appear to be backdated. It is further
contended that the Petitioner was actually served with the first charge sheet on 15th
May 2001 but no reply had been filed. It appears that there were two charge sheets
issued, one on 15th May 2001 and the second one on 23rd July 2001. It is stated that the
second charge sheet dated 23rd July 2001 was for a minor penalty whereas his
dismissal was based on the earlier charge sheet issued on 15th May 2001. It is stated
that the Petitioner had avoided the enquiry on a false pretext.
6. The order of the DA however does not make such distinction. The narration of facts
in the impugned order only states that the notice of preliminary hearing could not be
served on the Petitioner. A disciplinary proceedings was initiated against the Petitioner
alongwith six other officers, one Mr. P.R. Sharma, AM (D) was appointed as
W.P. (C) 356/2002 Page 3 of 6
Presiding Officer („PO‟) but he declined to continue as such when he was pressurized
to complete the enquiry before 31st July 2001 and another PO, namely, Mr. M.B.
Singh, AM (QC) was appointed in his place. By an order dated 15th/16th July 2001 the
IO had in fact fixed 6th August 2001 for hearing and yet on 27th July 2001 itself the
DA passed the impugned order.
7. Even on merits, it appears that the Petitioner was in Narwana on departmental duty
till May 1998 and no accusation has been made against him during that time for
having accepted any sub-standard food articles. It appears that no effective
opportunity was given to the Petitioner to defend himself. To saddle the Petitioner
with the entire loss of Rs. 28.68 lakhs allegedly suffered by the FCI appears to be
arbitrary and disproportionate. The extraordinary hurry shown by the FCI in fast
tracking the enquiry proceedings violated the right of the Petitioner to effectively
defend himself in the enquiry proceedings. The impugned order of the DA dated 27th
July 2001 is stated to be bad in law.
8. It is not denied in the counter affidavit that the report of IO was not furnished to the
Petitioner and no opportunity to show cause was granted to him prior to the imposition
of the penalty. Learned counsel for the Petitioner has placed reliance on the decisions
of the Supreme Court in Managing Director, ECIL v. B. Karunakar 1993 (4) SCC
727, Disciplinary Authority v. Shanti Prasad Goel 1998 (7) SCC 84 and Kumaon
Mandal Vikas Nigam Limited v. G.S. Pant 2001 (1) SCC 182.
9. The only explanation given in the counter affidavit is that since the Petitioner did
not file any reply to the charge sheet and failed to cooperate in the enquiry
proceedings, the dismissal order was passed in accordance with the rules. This can
W.P. (C) 356/2002 Page 4 of 6
hardly be an explanation for not furnishing to the Petitioner a copy of the report and
seeking his explanation before imposing a major penalty of removal from service. The
failure of the FCI to follow the basic procedure in imposing a major penalty is fatal to
the proceedings.
10. Considering that the Petitioner had no effective opportunity of defending himself
in the enquiry, the resultant failure to follow the procedure in accordance with law
vitiates the impugned order of the DA. The Petitioner has pointed out that as regards
his unauthorized absence from 5th to 30th July 2001 the order dated 31st July 2001
directed that pay and terminal benefits for this period not be given to him. This still
does not justify the denial of an opportunity to the Petitioner to defend himself against
the charge sheet served on him on 15th May 2001.
11. For all the aforementioned reasons, the impugned order dated 27th July 2001,
passed by the DA removing the Petitioner from his services is hereby set aside. It is
further directed that the Petitioner would be given all consequential benefits as if he
had not been removed from service by the impugned order and retired in the normal
course on 31st July 2001. The terminal and other benefits now be released to the
Petitioner by the Respondent together with salary for the month of July 2001 and other
increments which had been withheld on account of the impugned order together with
his leave encashment, gratuity, CPF and other benefits within a period of twelve
weeks from today. In case of failure to do so, the Petitioner would be entitled to penal
interest @ 9% per annum on the said amount for the period of delay. The
consequential orders dated 22nd January 2003 and 25th February 2003 seeking to
recover the penalty amount of Rs. 28.68 lakhs from the Petitioner are also quashed.
W.P. (C) 356/2002 Page 5 of 6
12. The writ petition is allowed in the above terms, with costs of Rs. 5,000/- which
will be paid by the Respondents to the Petitioner within four weeks.
S. MURALIDHAR, J
AUGUST 4, 2011
rk
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