Madhya Pradesh High Court
Gaurav Soni vs Union Of India on 27 February, 2020
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1 WP No.11983/2019
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
W.P. No.11983/2019
(Vikas Sahu Vs. Union of India & Others)
&
W.P. No.11990/2019
(Amarchand Meena Vs. Union of India & Other)
&
W.P. No.11994/2019
(Amit Kumar Shrivas Vs. Union of India & Others)
&
W.P. No.11984/2019
(Gaurav Soni Vs. Union of India & Others)
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Shri Siddharth Gulatee, Advocate for the petitioner.
Shri S.K. Rao, Learned Senior Advocate along with Shri Mukesh
Agrawal, Advocate for the respondents No.2 & 3.
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ORDER
(Passed on this the 27th day of February, 2020) This order shall also govern the disposal of this batch of petitions as in all the petitions the petitioners have challenged the validity of the charge-sheet dated 03.06.2019 passed by the respondent No.2- General Manager of Food Corporation of India, FCI Regional Office, Chetak Building, Zone-II, MP Nagar Bhopal. 2
2. For the sake of convenience, the facts as narrated in W.P. No.11983/2019 are being taken into consideration.
3. In brief the facts of the case are that the petitioner is presently posted as the Technical Assistant Grade-II with the Food Corporation of India (FCI) in the Madhya Pradesh region and admittedly, his services are regulated by Food Corporation of India (Staff) Regulations, 1971 (hereinafter referred to as 'the Regulations') made in exercise of the powers conferred under Section 45 of the Food Corporation of India Act, 1964.
4. The case of the petitioner is that the Government of India has issued the guidelines for Pradhanmantri Aasha Scheme to provide Minimum Support Price (hereinafter, as 'MSP') for food grains to be purchased from farmers. For its proper implementation, as per Chapter II, Clause (C) (ii), the Central Nodal Agency respondent No.1 the Department of Agriculture, Co-operation & Farmer Welfare, Krishi Welfare, Krishi Bhawan, New Delhi, was to appoint their state/primary agencies by entering into an MOU. Clause (C) (vi) further provides that the Central Agency (FCI) shall provide technical support to the State Agency. Thus, based upon the guidelines dated 11.10.2018, the respondent No.2 General Manager of Food Corporation of India, FCI Regional Office entered into an agreement with the MP State Civil Supplies Corporation Ltd. which 3 WP No.11983/2019 was supposed to act as the State Government Agency or State Level Supporter (SLS). The said agreement between the FCI and MP State Civil Supplies Corporation Ltd. was entered into on 25.10.2018 which also provided that the entire duty to carry out the procurement at the procurement point or Mandi would be of the State Level Agency or SLS and it was also provided that the FCI can depute the officials for supervising the work of SLS to ensure quality check.
5. The case of the petitioner is that for the implementation of the aforesaid scheme, the agents/workers/employees of the SLS completely failed to discharge their duties and obligations under the agreement as the surveyors and the agents appointed by the SLS were not in a position to carry out their work at the procurement centre. In this regard certain complaints were also made.
6. The further case of the petitioner is that he was appointed and was working as the Technical Assistant-II (TA-II) at District Office Sagar now Divisional Office Sagar and while being posted at Sagar, he was served with transfer order dated 03.11.2018 whereby he was posted at Damoh for procurement work, thereafter the petitioner was also posted at another place on 16.11.2018.
7. The case of the petitioner is that while the aforesaid scheme was not properly implemented by the State Government as also by the FCI, the FCI with malafide intention and with a view to 4 make the petitioner a scapegoat alleged certain irregularities in the discharge of his duties which, ultimately led to his suspension on 11.02.2019, however, the aforesaid order of suspension was revoked by the respondent on 05.03.2019 only but on 03.06.2019, to the utter surprise of the petitioner a charge-sheet was issued to him allegedly, for committing serious lapses/misconduct in terms of the Regulations. The aforesaid charge-sheet was issued along with Article of charges, Statement of imputation of misconduct and list of witnesses for committing serious and grave misconduct under Regulation 58 of the Regulations.
8. Shri Gulati, learned counsel for the petitioner has vehemently argued before this Court that the charge-sheet is liable to be quashed as on a bare perusal of the documents on record clearly establishes that even assuming the same to be true, no charge as alleged is made out. Apart from that, the main contention of the learned counsel for the petitioner is that while issuing the statement of imputation of misconduct the respondents have already decided the case against the petitioner and the penalty against him is now only a foregone conclusion.
9. Counsel has also drawn the attention of this Court to the statements of the imputation of misconduct and has also relied upon 5 WP No.11983/2019 the decision of the Supreme Court in the Case of Siemens Ltd. vs. State of Maharashtra & Others reported as (2006) 12 SCC 33.
10. Counsel has also relied upon a recent decision rendered by the Co-ordinate Bench of this Court reported as 2019 SCC OnLine MP 295 in the case of Kanta Yogesh Sadarang vs. State of M.P. in W.P. No.2492/2019 decided 14.02.2019.
11. Shri Rao, Sr. Advocate, assisted by Shri Agrawal, learned counsel for the respondents No.2 & 3 on the other hand, has opposed the prayer of the petitioner and has submitted that the petitioner has committed serious lapses/misconduct in terms of the Regulations and has been rightly issued the charge-sheet. It is further submitted that the article of charges, statements of imputation of misconduct and list of witnesses have been issued in accordance with the Regulation 58 of the Regulations and thus, it cannot be said that the respondents have already decided the case of the petitioner as the department proceeding is already under way and an ample opportunity would be given to the petitioner to contest the case. It is further submitted that otherwise also the petitioner has submitted a brief denial of the charges leveled against him and has not represented or preferred an appeal to the disciplinary authority against the said charge-sheet and has directly approached this Court under Article 226 of the Constitution of India which cannot be 6 allowed as has been held repeatedly by the Supreme Court in catena of judgments. In support of his submissions counsel has also relied upon the following judgments:- Secretary, Ministry of Defence & Others vs. Prabhash Chandra Mirdha reported as (2012) 11 SCC 565, State of Orissa & Another vs. Sangram Keshari Misra & Another reported as (2010) 3 SCC 311, T.N. Godavarman Thirumalpad vs. Union of India & Others reported as (2020) 13 SCC 316, Union of India & Others vs. Upendra Singh reported as (1994) 3 SCC 357, State of Uttar Pradesh vs. Brahm Datt Sharma & Another reported as (1987) 2 SCC 179, Brij Mohan Singh Chopra vs. State of Punjab reported as (1987) 2 SCC 188, UOI & Another vs. Ashok Kacker reported as 1995 Supp (1) SCC 180, Damu Ganu Bendale vs. Arvinda Dhondu Talekar & Another reported as 1995 Supp(1) SCC 182, Executive Engineer, Bihar State Housing Board vs. Ramesh Kumar Singh & Another reported as (1996) 1 SCC 32, UOI & Another vs. Kunisetty Satyanarayana reported as (2006) 12 SCC 28 and Siemens Ltd. vs. State of Maharashtra & Another reported as (2006) 12 SCC 33.
12. Heard counsel for the parties and perused the record.
13. On perusal of the record it is found that as per the memorandum of issuance of charge-sheet dated 03.06.2019, the petitioner along with the other 3 technical assistants (who are also 7 WP No.11983/2019 the petitioners in other connected petitions) have been issued the charge-sheet under Regulation 58 of the Regulations which provides for procedure for imposing major penalties. In the statement of articles of charge against the officials deputed at Damoh Revenue District under DO Sagar for pulse procurement as many as 7 articles of charges have been framed alleging various irregularities and illegalities committed in respect of procurement of the pulses. A Statement of Imputation of Misconduct or misbehavior in support of the said articles of charges framed against the officials deputed at Damoh Revenue District have also been filed to which the counsel for the petitioner has drawn the attention of this Court, the conclusion of each of the statement of Imputation of Misconduct or misbehavior read as under:
"Article-I conclusion- For the above irregularities/negligence/shortcomings, the above mentioned officials are directly responsible. As during Pulse procurement operations they were not performing/complying/following the instructions given in PSS guidelines as well as in the agreement, also elaborated during the training/briefing on Pulse procurement on 13.01.2018 at FCI RO Bhopal.
Article-II conclusion- These officials deliberately tried to create their right from the start knowing fully well the consequences of their actions.
By their various acts of omission, these officials have put at risk public exchequer to the tune of Rs.80 Crores (Approx.) 8 Article-III conclusion- Total procurement stood at 12872.47 MT whereas in the extended period till 25.01.2019, the figure went up to 25298.75 MT. However, no figures were reported by these officials after 19.01.2019 clearly indicating malafide on their part.
Article-IV conclusion-....................
Article-V conclusion- In view of the above, it is clear that the above mentioned officials have shown gross insubordination by disobeying official orders/ the orders of the superior officers.
Article-VI conclusion- ..................
Article-VII conclusion- From the above, it is apparent that the above mentioned officials have shown gross negligence by such activities by putting the image and financial interest of the corporation at stake. The above acts of serious omissions on the part of the charged officials indicates their disclaim for compliance of rules and regulations of the Corporation.
Thus, the above mentioned officials have acted in a manner prejudicial to the interest of Corporation and thereby made themselves liable for disciplinary action for violating Regulations, 31, 32 & 32-A of the Food Corporation of India (Staff) Regulations, 1971."
14. A perusal of the aforesaid conclusions made in the statements of Imputations of Misconduct prima facie led us to believe that the respondents have already decided the case of petitioner as submitted by the petitioner however, at this juncture it would also be necessary to see the exact procedure for imposing the 9 WP No.11983/2019 major penalties under the Regulations. Para 3 & 4 of Regulation 58 which are relevant, read as under:-
"58. Procedure for imposing major penalties:
(1)...............
(2)...............
(3) Where it is proposed to hold an inquiry against an employee of the Corporation under this regulation and Regulation 59, the disciplinary authority shall draw up or cause to be drawn up:
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain:
(a) a statement of all relevant facts including any admission or confession made by the employee.
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered to the employee a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the employee to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person."
(emphasis supplied) 10
15. It is apparent from the aforesaid provisions that a statement of Imputation of Misconduct or misbehavior in support of each article of charge shall also contain a statement of all relevant fact including any admission or confession made by the employee, accompanied by a list of documents by which and a list of witnesses by whom the articles of charges are proposed to be sustained. This Court is of the considered opinion that firstly, the substance of imputation of misconduct or misbehavior into definite and distinct articles of charge has been issued to the petitioner as per Sub-clause
(i) of Clause 3 of Regulation 58 and secondly, along with the same, as per Sub-clause (ii) of Clause 3 of Regulation 58 there is also a statement of imputation of misconduct or misbehavior taking into account the statements which have already been made by the petitioner to the respondent.
16. Thus, on the aforementioned backdrop it cannot be said that if the respondents have dealt with the statement already given by the petitioner in the course of the initial enquiry to the respondent, it amounts to prejudging of the case of the petitioner and on the contrary, it would allow the petitioner to submit his written as also to produce the witnesses by taking clue from the aforesaid statement of imputation of misconduct or misbehavior. In view of the same, this Court finds that the aforesaid statement of imputation 11 WP No.11983/2019 of misconduct has been issued by the respondents in accordance with the Regulation 58 and more particularly para 3 of the Regulation 58 which makes it mandatory for the respondent to take into account any admission and confession made by the employees prior to issuance of charge-sheet.
17. The judgments cited by the counsel for the petitioner are of no avail to him as in none of the aforesaid judgments the Regulation 58 of the Regulations like in the present case, where a statement of imputation of misconduct is also required to be made by including any admission or confession of the employee, fell for consideration.
18. The Supreme Court in the case of Secretary, Ministry of Defence & Others vs. Prabhash Chandra Mirdha reported as (2012) 11 SCC 565 in para 8 to 12 has held as under:-
"8. The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide: The State of M.P. v. Bani Singh, State of Punjab v. Chaman Lal Goyal, Registrar, Coop. Societies v.12
Sachindra Nath Pandey, Union of India v. Ashok Kacker, Prohibition & Excise Department v. L. Srinivasan, State of A.P. v. N. Radhakishan, Food Corporation of India v. V.P. Bhatia, Supt. of Police v. T. Natarajan, M.V. Bijlani v. Union of India, P.D. Agrawal v. SBI and Govt. of A.P. v. V. Appala Swamy).
12. Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
(emphasis supplied)
19. So far as the judgment relied upon by the counsel for the petitioner in the case of Siemens Ltd. (Supra) the Supreme Court in Para 9 has under as under:-
"Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma, Special Director v. Mohd. Ghulam Ghouse and Union of India v. Kunisetty Satyanarayana, but the question herein has to be considered from a 13 WP No.11983/2019 different angle, viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose (See K.I. Shephard v. Union of India). It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show-cause notice."
(emphasis supplied)
20. Under the peculiar facts and circumstances of the case, this Court is of the considered opinion that of the statement of imputation of misconduct which has been issued to the petitioner under Regulation 58, would not be considered as a ground that the respondents have already made up their minds regarding the liability of the petitioner.
21. So far as the merit of the charge is concerned, there appears to be many disputed questions of facts hence this Court is not inclined to interfere with the same at this stage of the proceedings as the petitioner will have ample opportunity to contest the matter in the departmental enquiry itself.
22. In view of the same, the petition being devoid of merit is hereby dismissed. However, it is also observed that although the petitioner has already submitted his reply in the aforesaid departmental enquiry, however, he is at liberty to file a fresh reply within a further period of three weeks which shall be taken into 14 consideration by the respondents while proceeding further and it goes without saying that the petitioner shall be given due opportunity of hearing and to lead his evidence before the final order is passed.
23. Accordingly, the petition stands disposed of. No costs.
(Subodh Abhyankar) Judge 27/02/2020 sjk Digitally signed by SHARAN JEET KAUR JASSAL Date: 2020.02.29 16:51:42 +05'30'