Court No. - 14 Case :- SERVICE SINGLE No. - 4289 of 1996 Petitioner :- Mrs.Veena Satsangi Respondent :- F.C.I. & Others Petitioner Counsel :- B.Godiyal,R.K Sinha Respondent Counsel :- Alka Varma,A.K. Singh Hon'ble Bala Krishna Narayana,J.
Heard Sri P.K. Sinha, learned counsel for the petitioner and Smt. Alka Verma,
learned counsel for the opposite party.
By means of this writ petition the petitioner has prayed for quashing the order
dated 8th November, 1993 passed by the Senior Regional Manager, Food
Corporation of India. Lucknow, opposite party No. 3 (Annexure No. 3) to the
writ petition by which the penalty of removal from service was imposed upon
the petitioner and the order dated 26.02.1996 passed by the opposite party No.
2 by which the appeal preferred by the petitioner against the order of the
disciplinary officer has been dismissed (Annexure No. 3).
Brief facts of the case as stated in the writ petition are that the petitioner while
working as Cashier, Assistant Grade-I (Accounts) in the Food Corporation of
India, was served with article of charges dated 19.6.1987 (Annexure No. 9 to
the writ petition).
The charges against the petitioner mentioned in the articles of charge were
follows:-
(1) Petitioner failed to maintain honesty, sincerity, devotion and integrity and
faithfulness. The petitioner failed in discharging her duties as cashier which
resulted in misappropriation of Rs. 5 Lacks and also tampered with the
original records of F.C.I. funds/accounts being the custodian and destroyed
and tampered the same with an intention to avoid detection of the said mis-
appropriation and thus actively connived in this mis-appropriation,
(2) The petitioner failed to maintain the reconciliation of cash and bank
accounts during 1983-84 and failed to get the required insurance policy
executed for case in transit and cash in chest during the period when the mis-
appropriation of Rs. 5 Lacs took place and as such no claim could be
preferred with the insurance company and
(3) the petitioner claimed false conveyance charges for her to and fro journey
from office to State Bank of India, Kanpur and from bank to office on
21.8.1983 when there was no transaction on that day being Sunday.
Since the petitioner was not supplied the copies of the documents referred to
in the articles of charge upon which the opposite parties proposed to rely for
proving the charges against the petitioner, the petitioner in order to file an
effective reply to the charge sheet moved an application before the A.M.
(Vigilance) F.C.I. Lucknow on 16.10.1987 (Annexure No. 13-A) with a
prayer for being supplied with the certified copies of the 42 documents
including 24 documents, which were mentioned in Annexure No. 3 to the
articles of charge. When the petitioner’s application dated 16.10.1987
remained unattended the petitioner made a similar request vide application
dated 5.12.1987 filed before the Enquiry Officer. The Enquiry Officer by his
order dated 19.10.1987 declined to issue the copies of the additional
documents, which were not listed in the charge sheet and which were required
by the petitioner for the reason that the petitioner had failed to mention the
custodian of most of the documents and to disclose their relevancy in the said
application. The order further mentioned that the documents mentioned at
serial No. 26, 27 and 28 of the list appended to the petitioner’s application
were not listed and hence not allowed and documents at serial No. 39 and 35
were not allowed being investigation reports. The petitioner’s claim that she
subsequently moved another application before the Enquiry Officer disclosing
therein custodian of the documents copies whereof were demanded by the
petitioner, but the copies were not issued to the petitioner as such the
petitioner could not file his reply to the charge sheet. The petitioner’s request
for being proved assistance of a legal practitioner was also declined. The
petitioner’s case further is that the petitioner appeared before the Enquiry
officer on 27.6.1990, but the Enquiry officer on the said date neither made
any inquiry, nor permitted the petitioner to cross examine Sri Ashraf Ali, who
was present before the enquiry officer and who had proved the documents
upon which the opposite parties proposed to rely for proving the charges
against the petitioner. After 27.6.1990 neither the disciplinary Authority, nor
the Enquiry Officer gave any information to the petitioner of the date on
which the Enquiry Officer proposed to hold the enquiry.
Petitioner was served with a copy of the enquiry report dated 19.8.1990
holding the petitioner guilty of all the charges made against her. Upon
receiving the enquiry report, the petitioner moved an application before the
opposite party No. 4 demanding copies of 45 documents, which had been
sought by her vide her earlier applications and which were in the custody of
the Vigilance Branch Office Kanpur, so that she may be able to at least file an
effective objection against the findings of the enquiry officer (Annexure 19)
but even the said application of the petitioner did not receive any response and
the disciplinary authority accepted the findings recorded by the enquiry
officer in his report to be correct and without giving any further opportunity to
the petitioner to file her objection against the report of the enquiry officer,
imposed the penalty of removal from service on the petitioner vide order
dated 8th November, 1993.
It has also been stated in the writ petition that along with the petitioner three
other officers of the Corporation namely Sri Puran Singh, Assistant Manager
Accounts, Sri R.P. Dubey, Assistant Manager Compilation and Sri Ajit
Kumar Saxena, Assistant Cashier were also proceeded against departmentally
on the same charges as the petitioner and although they were also found guilty
in the respective departmental enquiries conducted against them, Sri Puran
Singh and Sri R.P. Dubey were let off with minor punishments, while the
petitioner was visited with a major penalty and this conduct of the opposite
parties was clearly discriminatory being violative of Article 14 of the
Constitution of India. Since the petitioner had been removed from service on
the basis of ex parte inquiry conducted in gross violation of principles of
natural justice without following the proceeding prescribed under Rules and
without giving the petitioner adequate opportunity to show cause the
petitioner preferred departmental appeal before the opposite party no. 1,
which has also been dismissed by him by a non-speaking and cryptic order.
In the counter affidavit filed on behalf of the opposite parties, it has been
stated that the petitioner was chargesheeted for three specific charges along
with Sri R.P. Dubey, Sri Puran Singh and Sri Ajit Kumar Saxena. The articles
of charge for which the petitioner was chargesheeted were different from
those of Sri Ajit Kumar Saxena. The enquiry against the petitioner was
initiated under Regulations, 1958 of the F.C.I. (Staff Regulations), 1975. All
the delinquent officers were individually charegesheeted and separate enquiry
proceedings were conducted against them and their cases were decided by
their respective disciplinary authorities by imposing penalty proportionate to
their guilt, likewise the petitioner was also chargesheeted individually and her
case decided separately. However, the petitioner being the custodian of the
record and the cashier and the prime accused in the case she in connivance
with Sri Ajit Kumar Saxena misappropriated huge amount of the corporation.
Petitioner’s involvement in the case was established beyond doubt during the
course of inquiry on the basis of and from the documents available on the
record. Sri Puran Singh and Sri R.P. Dubey were also punished and visited
with the punishment of reduction in two stages in scale of pay of Assistant
Manager for a period of 2 years w.e.f. 1.5.93 and deprived of their normal
increments. The penalty imposed on Sri Puran Singh and Sri R.P.Dubey is
also a major penalty. The petitioner being cashier was entrusted with the duty
of maintaining cash Book as well as other related documents. The keys of the
cash were also kept with her. The entire work of cashier was being performed
by her. Cheques amounting to Rs. 10,000/- and Rs. 30,000/- were prepared on
18.6.1983 and 20.8.1983 respectively. The said cheques then were placed
before the Assistant Manager (Finance) i.e. Sri Puran Singh, who signed the
same for being drawn from the bank. After obtaining the said cheques from
the said officers interpolations were made by the petitioner and cheque
amounting to Rs. 10,000/- was altered in such a manner that the amount was
changed to Rs. 2,10,000/- while the cheque amounting to Rs. 30,000/- was
altered and the same was made for a sum amounting to Rs. 3,30,000/-. During
the course of enquiry it was found that the charges levelled against the
petitioner were proved and it was held that the said alternations in the cheques
had been made by her. Thus the charge against her, being grave in nature and
the same having been found to be established in the enquiry, the order of
removal from service was passed so far as the petitioner was concerned. It
cannot be said that Sri Purna Singh was awarded minor punishment while the
petitioner was visited with major penalty. There is absolutely no
discrimination between the petitioner as well as Sri Puran Singh, Sri Ajit
Kumar Saxena, A.G.-III was also chargesheeted and after the charges against
him had were found to be proved he has also been dismissed from the
services. The petitioner was given full opportunity to make inspection of
listed documents and photo copies of documents were also furnished to her,
which she acknowledged on 18.10.1989. The Disciplinary Authority
appointed an employee of the Corporation as presenting officer therefore, the
petitioner was not allowed to arrange legal practitioner as her defence
assistance. It is evident from the record that the inquiry against the petitioner
was conducted in a fair manner and in accordance with Regulations and there
was sufficient material on record which indicates that the petitioner did not
attend the inquiry proceedings deliberately and failed to cross examine the
witness examined on behalf of the corporation for proving the charges against
her. The inquiry officer in his report dated 21.7.1990 copy whreof is on record
of the writ petition had already recorded that the petitioner did not attend the
enquiry proceedings regularly and avoided to avail the opportunity given to
her for defending herself. The Inquiry Officer also recorded in his report the
reasons for conducting the enquiry proceedings ex-parte. Since the petitioner
was allowed to inspect the prosecution documents photocopies whereof were
also given to the petitioner therefore, there was no necessity to supply the
documents relied upon by the corporation to the petitioner along with the
inquiry report. The appeal of the petitioner has been rightly dismissed by the
appellate authority. Preliminary objection was also raised at the time of the
final hearing of the writ petition that the writ petition was liable to be
dismissed on the ground of availability of alternative remedy to the petitioner
of filing a revision before the higher authority against the orders of the
Disciplinary Authority and Appellate Authority.
Rejoinder affidavit has been filed by the petitioner denying the averments
made in the counter affidavit and reiterating and re-affirming the contents of
the writ petition.
The impugned orders have been challenged by the petitioner mainly on the
grounds that no reasonable opportunity was not afforded by the petitioner to
defend herself as she was neither supplied with the documents, which were
necessary for filing a proper reply to the chargesheet, nor she was permitted to
cross examine, Sri Ashraf Ali who was examined as only witness on behalf of
the corporation to prove the documents on the basis of which the corporation
proposed to prove the charges against the petitioner and as such the petitioner
could not submit her reply to the charge sheet. The impugned order of the
Disciplinary Authority imposing the punishment of removal from service of
the petitioner was violative of Articles 14 and 16 of the Constitution of India,
as two other officers of the corporation, who were charged with the same
misconduct as the petitioner and found guilty in the respective inquiries
conducted against them were awarded minor punishments, enquiry Officer
was biased and the inquiry was not conducted in a fair manner.
Learned Counsel for the petitioner lastly submitted that the petitioner had
challenged the order of the Disciplinary Authority before the Appellate Forum
on elaborate grounds based on factual, legal and constitutional requirements,
which were ignored or violated by the Enquiry Authority and by the
Disciplinary Authority, the Appellate Authority by his order dated 8.11.1993,
which contains a simple narration of official version, dismissed the
petitioner’s appeal without touching or analyzing the grounds raised in the
memorandum of appeal and without any application of mind. The petitioner
had challenged the validity of the order of the disciplinary authority before the
appellate forum on seven grounds as would be apparent from the perusal of
the memorandum of appeal copy whereof has been filed as Annexure 20 to
the writ petition. However, the appellate authority has failed to test and
examine the legality of the order of the disciplinary by examining and
analysing the grounds raised by the petitioner in the memorandum of appeal
which has rendered the order of the appropriate authority wholly
unsustainable in the eyes of law.
Smt. Alka Singh, learned counsel for the corporation submitted that the
impugned orders do not suffer from any illegality or infirmity warranting any
interference by this court under Article 226 of the Constitution of India. She
further submitted that the inquiry against the petitioner was conducted fairly
and in accordance with the rules and the petitioner was afforded full
opportunity to defend herself. The petitioner deliberately did not file any reply
to the charge sheet and despite being given full opportunity the petitioner
failed to cross-examine Sri Ashraf Ali and as such she can not be given any
benefit of her own acts and omissions. The petitioner was dismissed from
service after all the charges made against her found to be proved before the
disciplinary authority. The appellate authority rightly dismissed the
petitioner’s appeal after considering the grounds on which the petitioner had
challenged the order of the disciplinary authority.
I have carefully examined the submission made by the learned counsel for the
parties and have also perused the record.
The first issue which needs consideration in the present case is that whether
the appellate authority exercised its power in accordance with law or not. For
this purpose, it will be necessary to examine the law laid down by the Apex
Court with regard to the manner in which an Appellate authority is expected
to exercise its power.
The Apex Court in the case of Narinder Mohan Arya Vs. United India
Insurance Co. Ltd. and others, reported in (2006) 4 SCC 713 while
considering the powers of the appellate authority under Rule 37 of the
General Assurance (Conduct, Discipline and Appeal) Rules, 1975 held as
hereunder:-
” The order of the Appellate Authority demonstrates total non-application of
mind. The Appellate Authority, when the Rules required application of mind
on several factors and serious contentions have been raised, was bound to
assign reasons so as to enable the writ court to ascertain as to whether he had
applied his mind to the relevant factors which the statute requires him to do.
The Expression “consider” is of some significance in the context of the Rules.
The Appellate Authority was required to see as to whether (I) the procedure
laid down in the Rules was complied with; (II) the enquiry officer was
justified in arriving at the finding that the delinquent officer was guilty of the
misconduct alleged against him; (III) whether penalty imposed by the
disciplinary authority was excessive:”
In Apparel Export Promotion Council Vs. A.K. Chopra, reported in (1999)
1 SCC 759 the Apex Court observed as under:-
“………in case an appeal is presented to the Appellate Authority, the Appellate
Authority has also the power/ and jurisdiction to re appreciate the evidence
and come to its own conclusion, on facts, being the sole fact-finding
authorities.”
In R.P. Bhatt Vs. Union of India, reported in (1986) 2 SCC 651 the Apex
opined:
“4. The word ‘consider’ in Rule 27(2) implies ‘ due application of mind’. It is
clear upon the terms of Rule 27(2) that the Appellate Authority is required to
consider (1) whether the procedure laid down in the Rules has been complied
with; and if not, whether such non- compliance has resulted in violation of
any provisions of the constitution or in failure of justice; (2) whether the
findings of the disciplinary authority were warranted by the evidence on
record; and (3) whether the penalty imposed is adequate; and thereafter pass
orders confirming, enhancing, etc. the penalty, or may remit back the case to
the authority which imposed the same. Rule 27(2) casts a duty on the
Appellate Authority to consider the relevant factors set forth in clauses (a), (b)
and (c) thereof.
5. There is no indication in the impugned order that Director General was
satisfied as to whether the procedure laid down in the Rules had been
complied with; and if not, whether such non compliance had resulted in
violation of any of the provisions of the Constitution or in failure of justice.
We regret to find that the Director General has also not given any finding on
the crucial question as to whether the findings of the disciplinary authority
were warranted by the evidence on record. It seems that he only applied his
mind to the requirement of clause (c) of Rules 27 (2) viz. whether the penalty
imposed was adequate or justified in the facts and circumstances of the
present case. There being non- compliance with the requirements or Rule
27(2) of the Rules, the impugned order passed by the Director General is
liable to be set aside.”
Similar view was taken by this Court in the case of Kaushlesh Narain Singh
and others Vs. Upper Aayukt, Pratham Mandal, Allahabad and others,
reported in (2003) 4 UPLBEC 3149 (Alld.)
There can not be any dispute about the fact that the Appellate Authority
having been conferred the appellate powers under a statute performs judicial
functions. For arriving at any conclusion it is necessary that after noting the
arguments, reasons may be given for either accepting or rejecting the same as
it is only the process of thought which can make the conclusion so arrived to
become a subject matter of scrutiny by a higher forum and thus in the event of
arriving at a conclusion there is no process of reasoning, no thought in respect
of the matter in issue has been expressed on the arguments so advanced, it can
not be said to be an order in the eye of law.
I have carefully gone through the memorandum of appeal and the order of the
appellate authority and I am constrained to observe that the petitioner had
challenged the order of the disciplinary authority on several grounds, but the
appellate authority has failed to consider and examine even a single ground
and has failed to apply its mind to the facts and the arguments and in a most
cursory manner he had dismissed the appeal. There is nothing in the order of
the appellate authority which may give slightest indication that the grounds on
which the petitioner had challenged the order of the appellate authority have
been considered by the appellate authority.
As the order of the appellate authority has been found to be faulty for the
reasons indicated hereinabove this court does not propose to go into the merits
of the various submissions advanced by the learned counsel for the petitioner
on the basis of which he had tried to demonstrate that the order passed by the
disciplinary authority is liable to be set aside as it is the function of the
appellate authority first to deal with the same and record reasons and finding
upon it is to be judged by this court.
For the aforesaid reasons, the writ petition is partly allowed. The order dated
8.11.1993 passed by the opposite party no. 2 is hereby quashed. The
petitioner’s appeal stands revived. The matter is remitted back to the appellate
authority/opposite party no. 2 with the direction to decide the petitioner’s
appeal afresh in accordance with law and in the light of the observations made
hereinabove within a period of two months from the date of production of
certified copy of this order.
Order Date :- 22.1.2010
R.C.