Calcutta High Court (Appellete Side)
Pankaj Kumar Sarkar vs Food Corporation Of India & Ors on 21 February, 2020
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1 38 21.02.2020
W.P. 1688(W) of 2015 AN Ct. No. 14 with CAN 4839 of 2019 Pankaj Kumar Sarkar
-vs.-
Food Corporation of India & Ors.
Mr. Pankaj Kumar Sarkar (in person) ... for the petitioner Mr. Kamal Kumar Chattopadhyay ... for the FCI In departmental proceedings conducted by the FCI, the writ petitioner was awarded minor penalty of reduction in two stages in time scale of pay for a period of three years without cumulative effective vide order dated 27.08.2006.
Challenging the said final order and the departmental proceedings, the writ petitioner filed W.P. 1312(W)/2006 that was allowed vide judgment and order of a Single Bench of this Court dated 21.06.2007. The entire enquiry was quashed and the penalty order was set aside.
On an appeal being preferred by the F.C.I., the employer herein, a Division Bench vide judgment and order dated 02.04.2008 passed in A.P.O. 322/2007 set aside the judgment of the Single Bench and dismissed the writ application. The entire enquiry and punishment order were upheld by the Division Bench of this Court. The petitioner thereafter took voluntary retirement from the F.C.I. which was allowed on 16.03.2009.
The instant writ application has been filed by the writ petitioner for disclosure of the result of the D.P.C. held on 22.08.2006 2 that was kept in a sealed cover and consequent pay re-fixation as on 01.01.2009. He has also prayed for re-fixation of his retirement benefits after being granted promotion with effect from 01.01.2009.
The writ petitioner filed CAN 4839 of 2019 inter alia contending that the penalty imposed on the petitioner ought to have come to an end on 31.12.2008 and that his retiral benefits ought to be recalculated thereafter after applying notional promotion.
Reliance is made in CAN 4839 of 2019 of certain documents relating to his departmental enquiry wherefrom the petitioner would seek to canvass that the entire enquiry stood vitiated.
In substance, (a) the writ petitioner seeks to firstly reopen the entire enquiry and the final order against him; (b) seek the benefit of D.P.C. in which he participated pursuant to leave granted by the Single Bench in W.P. 1312(W)/2006.
In support of his contention as regards reopening of the final order, the writ petitioner would rely upon a decision of the Hon'ble Supreme Court in the case of State of Odisha & anr. vs. Mamata Mohanti delivered on 09.02.2011 in Civil Appeal No. 1272/2011.
The writ petitioner also relies upon a decision of the Hon'ble Supreme Court in the case of Nand Kishore vs. State of Punjab reported in JT 1995 (7) Supreme Court 69.
The petitioner further relies upon a decision of the Hon'ble Supreme Court in the case of F.C.I. vs. Sarat Ch. Ghosh dated 21.05.2014 delivered by the Hon'ble Supreme Court in Civil Appeal No. 7201-7202/2008.
3
Let us take the first argument of the petitioner and the judgments relied upon.
It is clear from the facts narrated hereinabove that the order of punishment imposed on the petitioner pursuant to departmental proceedings has been upheld by the Division Bench of this Court in its judgment delivered on 02.04.2008 in A.P.O. 322/2007 (supra).
The question of the departmental proceedings being reopened either on the basis of some internal notings in the Vigilance File of the petitioner or any discovery of new material, does not and cannot arise.
The decision of the Hon'ble Supreme Court in the case of Mamata Mohanti (supra) relied on by the petitioner is more generic in nature. The facts of the case of Sarat Ch. Ghosh (supra) are not before this court and no parallel can be drawn therefrom to benefit the petitioner.
In so far as the case of Nand Kishore (supra) the principle of res judicata is elaborately addressed therein. However, the facts of the case must be noticed. The petitioner therein was an employee of the State of Punjab and was compulsory retired after completion of 10 years of service on 06.01.1961.
The applicable rules came to be reconsidered by the Hon'ble Supreme Court and the legality thereof was left open for consideration after the decision of the Hon'ble Supreme Court in the case of M. R. Deka reported in AIR 1964 Supreme Court 600. In the said case, the service rules themselves had come to be questioned by the Hon'ble Supreme Court and hence it is in that context that the 4 petitioner Nand Kishore (supra) was held not to have been bound by the earlier decisions rendered in the context of the service rules prevailing in the year 1961. The said decision is distinguishable and cannot come to the aid of the petitioner in the facts and circumstances of the case as already narrated hereinabove.
The only ground on which the petitioner invites this court to revisit the departmental proceedings is discovery of certain notings in a Vigilance File relating to the petitioner and in the context of disciplinary proceedings initiated against another senior employee, one Abdul Rab. The records indicate that the proceedings against the said Abdul Rab have been continued and the same cannot have any bearing on the case of the petitioner. The Order of punishment imposed on the petitioner having been upheld by a Division Bench of this Court and the service rules remaining unchanged and no allegation of fraud in conduct of the Disciplinary Proceedings having been established, the order of punishment cannot be reopened. The first argument of the petitioner therefore fails and is rejected.
In so far as the second limb of the petitioner's argument that he is entitled to be given the benefit of the D.P.C. held in the year 2006 in which he was allowed to participate by this court in W.P. 1312(W)/2006, this court notes that the said final judgment in the said writ petition itself has been set aside by the Division Bench of this Court. The writ petition itself came to be dismissed by the Division Bench of this Court.
Hence, the benefit of any order passed by a Single Bench can no longer accrue to the petitioner. The question of any benefit from the sealed cover procedure adopted in the promotion process in 5 which the petitioner participated pursuant to orders passed by the Single Bench of this court cannot be allowed to the petitioner.
Let us now come to the third limb of the petitioner i.e. the recalculation of his terminal benefits. The punishment of reduction of pay scale by two stages for a period of three years without cumulative effect under normal circumstances, would have stopped applying on and from 01.09.2009.
By reason of the fact that the writ petitioner's relationship with the employer having come to an end on 16.03.2009, when the petitioner was allowed to retire voluntarily his terminal benefits can only be calculated based on his scale of pay as prevailing on 16.03.2009. The petitioner cannot claim any benefit of employment thereafter. It is, therefore, wholly irrelevant as to whether the order of punishment stood completed on and from 01.09.2009.
There is yet another angle from which the matter has to be viewed. By reason of acceptance of his application for voluntary retirement and the petitioner having taken the service benefits thereafter, he is estopped from claiming any benefits contrary to the acceptance of the voluntary retirement.
Since the petitioner is not a pension optee and has received his entire retirement dues, since after 16.03.2009, the petitioner is even otherwise not entitled to any further benefit.
With the above observations, the instant writ application must fail and is hereby dismissed. In view of the above, the application being CAN 4839 of 2019 is also disposed of.
There will be no order as to costs.
6Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Rajasekhar Mantha, J.)