JUDGMENT
Nisith Kumar Batabyal, J.
1. The petitioner was appointed as Senior Assistant Manager (G) on 19.3.1973 of FCI. A xerox copy of the letter of appointment dated 9.1.1973 has been annexed with the writ petition and marked with the letter ‘A’. On 6th October, 1975 the service of the petitioner was confirmed and on June 10, 1976 he was promoted to the post of Deputy Manager (G). In October, 1978, he was reverted from the post of Deputy Manager (G) to the post of Senior Assistant Manager (G). He gave a representation. But the petitioner was served with a letter of termination of his service dated 15.11.1978 by the respondent No. 1 without giving him an opportunity of being heard. Against that order, the writ petitoiner filed a writ application before the High Court at Delhi. By the order dated 12.11.1982 the Hon’ble Single Judge, Delhi High Court quashed the order of termination with liberty to FCI to initiate a departmental proceeding. Thereafter a departmental proceeding was initiated against the petitioner on the following charges :
(a) that the petitioner had applied for the post of SAM(G) against reserved quota as a schedule caste candidate by enclosing an Indian postal order of Rs. 2.50 p. ;
(b) in the seniority list as well as in the promotional panel the petitioner was shown as a schedule caste incumbent although the petitioner did not belong to the schedule caste community and thereby contravened Regulations 31 and 32 read with 32A of the FCI (Staff) Regulation, 1971.
The Enquiry Officer submitted his report on 20.9.1988 completely exonerating the petitioner. The true copy of the report is annexed with the writ petition and marked with the letter ‘D’. Thereafter a second enquiry was directed and the second enquiry was completed on 30th August, 1991 but still FCI authorities kept silent over the matter. Thereafter the petitioner was compelled to file another writ petition before the Calcutta High Court. In that case the Hon’ble Justice S. Chatterjee was pleased to dispose of the writ petition on 13.5.1992 directing the concerned authorities to dispose of the proceeding and to communicate the reasoned order thereof to the petitioner within two months from the date of the order.
2. Copy of the letter of the learned Advocate of the petitioner communicating the said order to the respondent concerned is annexed with the writ petition and marked with the letter ‘J’.
3. On 22.6.1992 the writ petitioner received the impugned order of the Managing Director of the FCI whereby the petitioner was dismissed from service with immediate effect. Copy of the impugned order has been annexed with the writ petition and marked with the letter ‘K’.
4. According to the writ petitioner the order is illegal, invalid and violative of the principles of natural justice as no opportunity was given to the writ petiitoner in terms of the rules of the FCI (Staff) Regulation, 1971. The said order is also vitiated by bias on the part of the authority. It has been further alleged that the Executive Committee of the Board of Directors was the Appointing Authority of the petitioner and the Managing Director of the Corporation was not the Appointing Authority and hence the order of dismissal passed by the Managing Director is illegal, invalid and without jurisdiction.
5. Thus being aggrieved by and dissatisfied with the impugned order the petitioner has come before this Court for the following reliefs, inter alia :-
(a) Declaration to the effect that the Regulation 69 (4) of the FCI (Staff) Regulation, 1971 is bad, void, illegal and ultra vires the provisions of Articles 14, 16, 21 and 300A of the Constitution of India;
(b) A writ in the nature of Mandamus commanding the respondents, their servants and agents to rescind, cancel and/or withdraw the order of dismissal issued in June, 1991 being Annexure ‘K’ to the writ petition and further commanding them to forbear from giving any effect or further effect to the same;
(c) A writ of and in the nature of Certiorari directing the respondents, their servants and agents to transmit the relevant records, papers to this court for being conscionable justice and other reliefs.
A rembling affidavit-in-opposition has been filed on behalf of the F.C.I.
6. In the affidavit-in-opposition filed on behalf of the F.C.I. the material allegations made in the writ petition have been denied. It is not denied that the petitioner joined the service of the F.C.I. on 19th March, 1973 as Senior Assistant Manager(G) under the Joint Manager (Port Operation, Calcutta). It is also not disputed that on 10th June, 1976 the petitioner was promoted to the post of Dy. Manager(G) and ultimately joined at the Regional Office, Lucknow in the promoted post on November 8, 1976. Ultimately, a complaint was received from the all India Schedule Castes and Schedule Tribes, Government Employees Co-ordination Council being Annexure ‘B’ to the A/O against the petitioner stating that though the writ petitioner did not belong to the Scheduled Caste or Schedule Tribe, the writ petitioner had applied as a candidate of SC category for getting his initial appointment with the F.C.I. Ultimately the matter ended in a chargesheet. The Inquiry Officer under the rules held an inquiry but the report went in favour of the writ petitioner. Therefore the matter was placed before the Disciplinary Authority who for reasons given in his order dated 19th June, 1992 has dismissed the writ petitioner from service (vide paragraph 12 of the A/O at page 18). It has been stated there that the order of dismissal was served upon the writ petitioner on 22nd June, 1992 and the order of the Managing Director was passed on 19th June, 1992, This was due to clarical oversight. It has also been stated in the A/O that the order of dismissal has been passed by the Competent Authority.
7. In the affidavit-in-reply of the writ petitioner the material allegations made in the A/O have been denied. It has been asserted that the impugned order was the product of non-application of mind and that the said order was arbitrary, mala fide and vitiated by error apparent on the face of the record. It was further stated that the order was passed by an authority which was lower in rank than the appointing authority and hence the order of dismissal was bad in law.
8. The impugned order of dismissal in this case has been challenged on the two fold grounds that the decision of the Domestic Tribunal is arbitrary, perverse, mala fide and vitiated by an error apparent on the face of the record and that the order of dismissal was signed by an authority below the appointing authority. It has been argued on behalf of the F.C.I. that the finding of facts made by the Domestic Tribunal cannot be interfered with in a petition under Article 226 of the Constitution unless there are very exceptional grounds which are not present in this case. It has also been argued on behalf of the respondent, F.C.I. that the Domestic Authority was competent under the Rules of the F.C.I. to issue the order.
9. Mr. Susanta Banerjee, learned Advocate for the petitioner has attacked the impugned order as vitiated by an error apparent on the face of the record and arbitrary and mala fide. In spport of his contention he has cited several decisions of the apex court of our country.
10. The learned Advocate for the writ petitioner has first referred to the principles laid down in Mukunda v. Bangshidhar . In that case it was laid down that under Article 226 of the Constitution of India a finding of fact of a Domestic Tribunal cannot be interfered with. The High Court in the exercise of its special jurisdiction does not act as a court of appeal. It interferes only when there is a jurisdictional error apparent on the face of the record committed by the Domestic Tribunal. It is true that a finding based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice, may be said to suffer from an error of law. The next case cited by Mr. Banerjee is P.D. Khandekar v. Bar Council of Maharashtra and Ors. . In that case their Lordships held that the Supreme Court would not, as a general rule, interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures and surmises. Finding in such Disciplinary proceedings must be sustained by a higher degree of proof than that required in Civil Suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution. There should be convincing preponderance of evidence. Mr. Banerjee thereafter referred to a decision of the apex court of our land in Maharashtra State Board Secondary and H.S. Education v. K. S. Gandhi and Ors., . In that case Their Lordships, in paragraph 37, of the reported judgment have laid down that the strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In the considered view of Their Lordships, an inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases, the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstntial, from which the inferences can be made the method of inference fails and what is left is more speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which an inference could be drawn. The standard of proof is not proof beyond reasonable doubt “but” the preponderance or probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.
11. The impugned order marked Annexure “K” in the penaltimate paragraph, it has been stated as follows :-
“In view of the circumstantial evidence discussed in detail about the undersigned cannot agree with the Enquiry Officer and must hold that the chargesheet has been proved. Considering the seriousness of the chargesheet, the undersigned can only order that Shri Dey may be dismissed from service”.
12. The chargesheet against the writ petition is as follows vide page 48 of the annexed petition :-
“An advertisement was published in the leading newspaper of the country during December, 1971 inviting applications for the posts of 3 Dy. Manager(G) and 9 SAM (G) in the F.C.I. In response to the above advertisement, Shri N. K. Dey applied for the post of SAM (G) against reserved quota as a SC candidate. Along with his application, he enclosed an Indian Postal Order No. E-214455 for Rs. 2.50p. only as the prescribed fee, required to be furnished by SC/ST candidates, while applying for the post of SAM(G). After scrutiny all the documents furnished by Shri Dey and following the selection procedure for appointment, Shri Dey was selected for the post of SAM(G) as a SC candidate against the reserved quota for the category of candidates and accordingly an offer for appointment was sent to him. Shri Dey having accepted the offer of appointment joined the Corporation as SAM(G) on 19th March, 1973 at J. M. (PO) Calcutta in modification of his original posting order at RO, Patna.
In the seniority list as well as in the promotion panel for DM(G) maintained by the Corporation, Shri Dey was shown as SC. He was promoted as DM(G) in 1976. Later on, after appointment and joining of the duties, it was brought to the notice of the Corporation that Shri Dey did not belong to SC community.
Shri Dey as, therefore, by mis-representing the facts and declaring himself initially as belonging to SC community fraudulently managed to get an appointment as SAM(G) against reserved quota and as thus contravened Regulations 31 and 32 read with 32A of the FCI (Staff) Regulations, 1971″.
13. From above it is clear that the first part of the charge related to securing the appointment by the writ petitioner as SAM(G) as a SC candidate by mis-representing the facts and declaring himself as belonging to the SC community and the second part of the charge is relating to the securing of promotion as DM(G) as a SC candidate in 1976. At page 101 of the Annexure to the writ petition, the Managing Director as Disciplinary Authority has come to the following conclusion about the promotion quota :-
“……….It is not very clear from the record against which quota he was promoted as Deputy Manager(G) but as the undersgned has mentioned before he is clearly mentioned as a Schedule Caste Officer in the proposal for promotion to the level of Deputy Manager(G).”
14. It clearly shows that the Disciplinary Authority was not sure from the materials before him against which quota the writ petitioner was promoted as Deputy Manager(G); therefore, the charge that the writ petitioner secured his promotion from the Schedule Caste quota falls through.
15. The first charge that the writ petitioner secured the initial appointment by falsely posing as SC candidate was found to be not established by the Inquiry Officer. When the matter came up before the Disciplinary Authority, the said authority found the charges proved on circumstantial evidence. Admittedly there was no direct material bearing on the point before the Disciplinary Authority. The Schedule Caste certificate without which the claim of a candidate to be treated as an SC candidate is not entertained at all is missing. At one place of the impugned order it has been observed by the authority concerned that there can be no doubt that the document was missing but the charged Officer would be the only beneficiary. The oblique comment made by the authority concerned is irrelevant and immaterial. From the material on record it has come out that some papers of the office were missing during shifting of the office records from one place to another. The possitive facts from which the inference has been drawn by the Disciplinary Authority are the entries in the Docketing Register for application received for the post of SAM(G) and the fact that he paid Rs. 2.50p. in Indian Postal Order along with his application. According to the authority concerned the advertisement inviting applications specifically required that all the candidates except SC/ST candidates were to submit their applications along with a Postal Order of Rs. 10/- and the SC/ST candidates were required to submit a Postal Order of Rs. 2.50 p. for each candidate. It appears that the writ petitioner gave the explanation that he was a refugee coming from the then East Pakistan. He sent the application along with the Postal Order of Rs. 2.50 p. only.
16. The main question before this court is not re-appreciation of the evidence or the materials on record. The simple question is whether there was an error apparent on the face of the record in law about the inference drawn by the concerned authority. In cases of fraud there is seldom direct evidence to establish the fraud. Only the circumstantial evidence can furnish the proof. But Their Lordships of the Supreme Court have sounded a note of caution by stating that an inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. There must be evidence, direct or circumstantial, to deduce necessary inferences in proof of the facts in issue. There can be no inference unless the objective facts, direct or circumstantial, are there from which to infer the other fact which is sought to be established. It has already been noted above that there is no direct evidence in this case against the writ petitioner. According to the authority concerned, the case against the writ petitioner has been established on circumstantial evidence. The circumstances are as already stated above. An explanation has been given by the writ petitioner for sending the Postal Order of Rs. 2.50p. Certainly the application fee cannot be the criterion for determining the SC/ST status of candidate. For the verification of the claim of a candidate as belonging to a reserved class there is a stipulation that certificate issued by specified authorities only can be accepted as criterion for such claims. Therefore, the logic that simply because a Postal Order of Rs. 2.50 p. was sent along with the application cannot be a circumstantial evidence leading to the reasonable inference that the candidate concerned cannot but have claimed as a SC/ST candidate. Thus in the absence of any direct evidence on the point and in view of the lack of a reasonable inference from the established fact, it can be said that the so-called circumstantial evidence is a mere conjecture or a speculation. This is an error apparent on the face of the record in law.
17. The other point which has been argued by the learned advocate for the writ petitioner is that the petitioner was appointed by the Executive Committee of the Board of the F.C.I. and no order of dismissal is legally valid if the same is made by an authority lower than the rank of the appointing authority. In the instant case the impugned order of dismissal was passed by the Managing Director of the F.C.I. who is lower in rank than the appointing authority of the petitioner. This contention of the Learned Advocate for the writ petitioner has been challenged by the Learned Advocate for the F.C.I. A copy of the offer of appointment for the post of S.A.M.(G) in the F.C.I. dated 3-11-1972 has been marked as Annexure “A” to the writ petition, this was issued by the Senior Assistant Manager (EI) for Personnel Manager. This offer was accepted by the writ petitioner. Therefore, it can be said that the petitioner got the appointment from the Personnel Manager and not from the Executive Committee as claimed by him. There was an amendment of the F.C.I. Staff Regulations, 1971 in 1984 which was given force with immediate effect from 16th October, 1987 so it did not have any retrospective effect. Under Rule 54 of the Staff Regulations 1971, major penalties like reduction to a lower stage, in the time scale of pay, compulsory retirement, removal from service and dismissal from service can be imposed on any employee of the Corporation. Under Rule 56 of the said Rules, the Board or the authroity specified in appendix II or any other authority empowered by a general or special order of the Board may impose any of the penalties specified in Regulation 54 on any of the employee. Under the proviso to Rule 56, the penalties of reduction in rank, compulsory retirement removal from servise or dismissal from service specified in classes (V) to (IX) of Regulation 54 shall not be imposed on any employee by an authority lower than the appointing authority.
18. Under the explanation to Rule 56 the appointing authority in relation to an employee for the purpose of the Regulation has been defined. Under that explanation the ‘appointing authority’ is the authority who appointed the employee to the post or grade as the case may be or whichever authority is higher. In the unamended Rule of 71 the appointing authority with regard to category I Officer (Officers other than heads of division) was the Executive Committee; so, though the offer of employment was sent by the Personnel Manager actually the appointing authority was the Executive Committee. Under Section 14 of the Food Corporation’s Act, 1964 the Executive Committee consists of (a) Chairman of the Board, (b) Managing Director, and (c) Three other Directors, one of whom shall be a non-official. The Chairman of the Board of Directors shall be the Chairman of the Executive Committee. The Executive Committee was subject to the control of the Board of Directors of the Corporation. Under the amended Rule the Managing Director was made the appointing authority of category-I officer vide Annexure “F” to the A/O. But as per Rule 56 explanation of the Staff Regulations, 1971 the appointing authority would be either the authority empowered to make the appointments to the post or grade which the employee for the time being held or the authority which appointed the employee to such post or grade as the case may be whichever authority was the higher authority. Therefore, it is obvious that though the Managing Director was empowered under the post amendment Rules to make appointments to Grade-I post but he could not act as the Disciplinary Authority in the case of the writ petitioner whose appointing authority was the Executive Committee of which the Managing Director was one of the members. Therefore, the Managing Director was not authorised under the regulations to issue the order of dismissal of the writ petitioner.
18. In view of the discussions made above, I hold that the writ petition succeeds in part. Declaration as prayed for in prayer (a) of the writ petition is refused. The impugned order marked Annexure “K” to the writ petition is quashed. All interim orders are vacated.
19. In the circumstances of the case, no order is made as to costs.
20. All parties to act on a signed copy of the operative portion of the judgment on the usual undertaking.