Allahabad High Court
Gyan Prakash Nigam vs F.C.I.Thr. M.D.And 3 Ors. on 8 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 658
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20/Reserved/AFR Case :- SERVICE SINGLE No. - 298 of 2007 Petitioner :- Gyan Prakash Nigam Respondent :- F.C.I.Thr. M.D.And 3 Ors. Counsel for Petitioner :- A.K.Verma Counsel for Respondent :- A.K.Singh,Kamesh Gupta,Mohammad Raza Khan Hon'ble Rajnish Kumar,J.
1. Heard, Shri Gyan Prakash Nigam, petitioner-in-person (here-in-after referred as petitioner) and Shri Mohammad Raza Khan, learned counsel for the respondents.
2. The petitioner has preferred the present writ petition challenging the punishment order dated 18.12.2006 passed by opposite party no.3.
3. As borne out from the pleadings after due selection the petitioner was appointed as Assistant Grade-III (Ministerial) in the year 1972 by the Senior Regional Manager, Regional Office, FCI, Lucknow. The petitioner was promoted as Assistant Grade-II (Ministerial) on 24.07.1976 and Assistant Grade-I (Ministerial) in the year 2001. The petitioner was working in Movement Section, District Office, FCI, Kanpur at the relevant time.
4. The memo dated 17.08.2006 with imputation of misconduct under Regulation 60 of the Staff Regulations, 1971 was issued to the petitioner by the opposite party no.3. The charge, in respect to which an inquiry was contemplated against the petitioner, is extracted below;
"The report of Committee was submitted as dated 8.6.2005 but said Shri G.P.Nigam Assistant Grade-I (M) connived with the then District Manager, Kanpur who did not take any action on the Report of Committee and the report was forwarded to Regional Office, Lucknow in August, 2005 i.e. after a gap of two months for taking action at Regional Office level although he was empowered to take action on promotion of departmental labourers upto the 20.6.2005. The above shows that said Shri G.P.Nigam, AG-I(M) showed lackadaisical attitude towards his allotted duties and FCI had to incur a large sum towards court cases and Rs.42,670.20 as a traveling expenses of officers/staff due to his misconduct.
Shri G.P.Nigam, AG-I(M) thus contravened Regulation 31 and 32 read with 32-A of FCI (Staff) Regulations, 191."
5. The aforesaid memo alongwith imputation of misconduct was served on the petitioner on 21.08.2006. The petitioner was required to submit his representation against the charge within fifteen days of the receipt of the same. The petitioner made a request vide letter dated 26.08.2006 to the opposite party no.3 for inspection of the records relating to the charges to enable him to get necessary copies after inspecting the relevant records. Instead of permitting the petitioner to inspect the records a reminder letter dated 08.09.2006 was issued by the Area Manager, FCI, District Office, Kanpur asking the petitioner for furnishing the reply, which was received by the petitioner on 11.09.2006. The petitioner again made a request through letter dated 12.09.2006 to the Area Manager, District Office, Kanpur. The petitioner was informed by the letter dated 04.10.2006 by the Manager (Vigilance) on behalf of Area Manager for submitting his reply after inspection in the concerned section.
6. The petitioner wrote a letter dated 04.10.2006 with a request to inform the name of the persons, who have the custody of the documents, name of office with place to which he can visit for inspection of records/documents and obtain legible photocopies of the documents. In response thereto a letter dated 18.10.2006 was written by the Area Manager to the petitioner which was received by him on 19.10.2006. By the said letter the petitioner was afforded one last opportunity to submit his reply within ten days after inspecting the records and it was also informed that there is no provision for supply of photocopies of the documents in charge sheet containing minor charges. The petitioner again wrote a letter dated 19.10.2006 with a request to inform the name of the persons who have the custody of charge sheet related documents with name of the office and place to which he may visit for inspection of records/documents, ancillary records/documents so that proper reply can be given by him.
7. Thereafter the impugned punishment order dated 18.12.2006 was passed stating therein that no reply against the charges levelled in the memorandum of charges has been submitted by the charged officer. The petitioner has been awarded a penalty of reduction by two stages for two years without cumulative effect alongwith recovery of Rs.21,000/- in twenty one installments. Therefore, the petitioner has approached this court challenging the punishment order dated 18.12.2006 by means of the present writ petition.
8. Submission of the petitioner is that the show cause notice dated 17.08.2006 alongwith imputation of misconduct was issued to the petitioner and he was granted fifteen days time to submit his representation but the documents in support of imputation of charges were not supplied to the petitioner and despite repeated requests the documents were neither provided nor the petitioner was allowed to inspect the relevant records, therefore, the punishment order has been passed without affording reasonable opportunity to make a representation. The petitioner further submitted that despite repeated requests made by the petitioner he was not informed about the office where the documents are available and the name of the person to whom he can contact to inspect the records, so he was not in a position to inspect the records and submit his reply/representation. Therefore there is violation of Regulation 60 (1)(a) of the Food Corporation of India (Staff) Regulations 1971 (here-in-after referred as Regulations 1971) which provides for giving a reasonable opportunity of making representation against the proposed action.
9. He further submitted that even if the reply was not submitted by the petitioner the respondents were required to hold an inquiry as per Regulation 60(1)(b) of the Regulations 1971 and after considering the representation, if any, submitted under clause (a) and record of inquiry held under clause (b) and recording the findings about the imputation of conduct or misbehaviour, punishment order could have been passed under Regulation 60(1)(c) and (d) of the Regulations 1971. The Regulation 60 provides that subject to the provisions of Sub-regulation (3) of Regulation 59 no order imposing on an employee any of the penalties specified in clause (i) to (iv) of the Regulation 54 shall be made, but the said Regulations have not been followed, therefore, the impugned order has been passed without following the procedure as prescribed.
10. The petitioner further submitted that the charge levelled against the petitioner itself is not sustainable because it is factually incorrect. The charge is that the report of the Committee was submitted as dated 08.06.2005 but the petitioner in connivance with the then District Manager, Kanpur forwarded the report to the Regional Office, Lucknow in August 2005 i.e. after a gap of two months for taking action at Regional Office level which showed lackadaisical attitude towards his allotted duties and FCI has to incur a large sum towards court cases due to his misconduct, but no court case was filed after the report dated 08.06.2005. The case filed by the employees had already been disposed of on 05.04.2005 and in compliance thereof the Area Manager, FCI, Kanpur had constituted a Committee of three Assistant Managers on 1/2.6.2005, which had given its report on 08.06.2005, therefore, the imputation of misconduct or misbehaviour was against the record.
11. Lastly the petitioner submitted that the action was taken against the petitioner in a malafide and biased manner by Mr.S.S.Bhatoa, the General Manager against whom the petitioner had levelled allegations of malafides in writ petition no.4191 (SS) of 2006 filed by the petitioner challenging the transfer order dated 3/4.02.2006 and the transfer order was stayed by the Hon'ble Court.
12. On the basis of above, the petitioner submitted that the impugned punishment order dated 18.12.2006 is liable to be quashed and the writ petition is liable to be allowed.
13. The petitioner, in support of his submissions, has relied on the following judgments:-
(i) Union of India and others Versus Upendra Nath Tiwari and another;2012(3)ADJ 357(DB).
(ii) State of U.P. Versus Shatrughan Lal and another;AIR 1998 SC 3038.
(iii) Food Corporation of India and others Versus Sarat Chandra Goswami;2014 AIR SCW 3594.
(iv) Ratna Bhattacharya Versus Union of India and others;2013 Lab.I.C.638 (Calcutta High Court).
14. Learned counsel for the respondents vehemently opposed the submissions made by the petitioner. He submitted that the petitioner was afforded reasonable opportunity to inspect the documents and the records time and again, but he himself had not availed the opportunity to inspect the documents. Once the opportunity for inspection of the documents was allowed there was no requirement of providing the copies of the documents for minor punishment. He further submitted that the petitioner had never disclosed the documents which he wanted to inspect, therefore, the allegation levellved by the petitioner that no opportunity has been afforded is false and not tenable.
15. It has further been submitted that the petitioner himself was posted in the concerned department; I.R. Section, where the documents were available but only to linger on the proceedings the petitioner had repeatedly written letters to know the department and the persons to whom he may contact. Since the petitioner had not submitted his reply to the show cause notice, even after affording sufficient opportunity, the punishment order was passed in accordance with law and the concerned Regulations and there is no illegality in it. He further submitted that the petitioner has filed the present writ petition without availing the alternative remedy of appeal under Regulation 68 of the Regulations 1971, therefore, this writ petition itself is not maintainable. Learned counsel for the respondents has relied on a judgment of Hon'ble Apex court rendered in the case of Kulwant Singh Gill Versus State of Punjab;1991 Supp (1) SCC 504.
16. Refuting the submissions of learned counsel for the respondents the petitioner submitted that he was not posted in the I.R. Section at the relevant point of time as he was transferred to Coordination Section on 28.09.2005. Thereafter to Movement Section on 21.08.2006 while show cause notice was issued on 17.08.2006. Therefore the contention of the respondents that he was in the same section is false. He further submitted that the show cause notice was issued to the petitioner from the Regional Office, Lucknow without annexing any document while in the punishment order it has been mentioned that the records must have been available in the I.R. Section of District Office, Kanpur while it was never informed to the petitioner.
17. I have considered the submissions of the parties and perused the records.
18. The alternative remedy is not an absolute bar for entertaining the writ petition under Article 226 of the Constitution of India as held by Hon'ble Apex Court and this court. This rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law, as held by Hon'ble Supreme Court in State of U.P. Vs. Mohd. Nooh; AIR 1958 SC 86. The alternative remedy will not operate as a bar in at least three contingencies, namely, when the writ has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged as held by Hon'ble Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai; (1998) 8 SCC 1.
19. One of the ground in the present writ petition is violation of regulation by not giving reasonable opportunity of making representation in violation of principles of natural justice. Therefore, looking to the facts and circumstances of the present case, ground taken and time elapsed since passing of the impugned order dated 18.12.2006, I examined the arguments raised by the parties on merits.
20. The petitioner was working as Assistant Grade-I (Ministerial) while he was issued a memo dated 17.08.2006 with statement of imputation of misconduct under Regulation 60 of the Regulations 1971 by the opposite party no.3. It was provided in the memo that the petitioner may submit his representation against the proposed charge. It was further provided that if he wants to peruse the records then he may inspect the same within five days of receipt of memorandum and thereafter within ten days he may submit his representation. If the representation is not submitted within fifteen days of the receipt of memo it would be presumed that he has to say nothing against the proposal and exparte order would be passed against him.
21. Perusal of the memo dated 17.08.2006 and the annexed statement of imputations of misconduct or misbehaviour does not disclose the documents to be relied or any evidence in support of the allegation. An opportunity was given to the petitioner to inspect the documents, if he so desire.
22. It appears that since no documents or evidence was mentioned in the statement of imputation of misconduct or misbehaviour, the petitioner had made a request to the General Manager vide letter dated 26.08.2006 to show him relevant record/ancillary record for the purpose of inspection, as proposed by him and to provide certified copies/true copies of the documents/records, which he would disclose at the time of record inspection. But instead of informing the place and the person, having the custody of the concerned records, the petitioner was issued a reminder letter dated 08.09.2006 and 04.10.2006 to submit the reply. It was mentioned in the letter dated 04.10.2006 that the petitioner has been permitted to inspect the documents in the memo itself by the General Manager and the petitioner may inspect the documents in the concerned section and submit the reply. But the concerned section and the name of the person, having custody, was not informed. Therefore, the petitioner again wrote a letter dated 04.10.2006, but no name of the person having the custody of documents and the name of documents and the name of the office with place to which he may visit for inspection of records/documents was give to the petitioner. The reply of which was given vide letter dated 18.10.2006 affording last opportunity to submit reply within ten days after inspecting the concerned documents. But the person having the custody of documents and place/department was not informed to the petitioner. However, it was mentioned in the letter that there is no provision of providing the photocopies of the documents in the charge sheet for minor punishment. The petitioner again wrote a letter dated 19.10.2006 with same request for inspection of records. It appears that no reply was given and the punishment order was passed. Therefore it is apparent that the documents in support of statement of imputation of misconduct were neither provided to the petitioner nor the name of the person having custody of documents and place was informed to the petitioner so he could not inspect the documents and submit the reply.
23. The petitioner was already transferred from the concerned I.R. Section, therefore, even if the records were in the same section, the contention of the respondents that he was posted in the same section therefore he could have inspected the same is false, misconceived and baseless and not acceptable.
24. The Regulation 60(1)(a) provides that no order imposing on an employee any of the penalties specified in clauses (i) to (iv) of Regulation 54 shall be made except after informing the employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal. But since the petitioner was neither provided the relevant documents nor allowed to inspect the records by informing the name of the person and place of records, therefore, the petitioner was not afforded reasonable opportunity of making a representation in accordance with the regulation and in violation of principles of natural justice.
25. Regulation 60 is reproduced as under:-
"60. Procedure for imposing minor penalties:
(1) Subject to the provisions of Sub-regulation (3) of Regulation 59, no order imposing on an employee any of the penalties specified in clauses (i) to (iv) of Regulation 54 shall be made except after:
(a) informing the employee in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in Sub-regulation (3) to (23) of Regulation 58, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the employee under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or misbehaviour.
(2) Notwithstanding anything contained in clause (b) of Sub-regulation (1), if in a case it is proposed, after considering the representation, if any, made by the employee under clause (a) of the sub-regulation, to withhold increment of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to the employee or to withhold increments of a pay for a period exceeding 3 years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in Sub-regulation (3) to (23) of Regulation 58 before making any order imposing on the employee any such penalty.
(3) The record of the proceedings in such cases shall include:
(i) a copy of the intimation to the employee of the proposal to take action against him,
(ii) a copy of the statement of imputations if misconduct or misbehaviour delivered to him;
(iii) his representation, if any;
(iv) the evidence produced during the inquiry;
(v) the findings on each imputation of misconduct or misbehavior; and
(vi) the orders on the case together with the reasons therefore."
26. So far as the submission of the petitioner that even if the reply was not submitted by the petitioner, the disciplinary authority was required to hold the inquiry under Regulation 60(1)(b) is misconceived because it is in the discretion of the disciplinary authority to make an inquiry if he is of the opinion that such inquiry is necessary. Therefore, the further submission that the order could have been passed only after considering the representation under Regulation 60(1)(a) or enquiry under Regulation 60(1)(b) is also misconceived because the representation and record of inquiry were to be considered if the representation has been submitted and/or an inquiry has been held in the discretion of the disciplinary authority. However, in any case, the order of punishment could have been passed only after recording the findings on each imputation of misconduct or misbehavior under Regulation 60(1)(d).
27. The perusal of the impugned punishment order dated 18.10.2006 shows that the same has been passed without recording any finding on the imputation of misconduct or misbehaviour, therefore, the order is non speaking and without assigning any reason.
28. The Division Bench of this Court in the case of Union of India and others Versus Upendra Nath Tiwari and another; 2012 (3) ADJ 357 (DB), relying upon a judgment of Hon'ble Apex court, has held in paragraph 13 as under:-
"13. From the aforesaid it is crystal clear that in case a document is forming the basis of a charge-sheet, then a copy thereof is to be supplied to the delinquent so that he can effectively reply to the charge-sheet and by not doing so, a grave miscarriage of justice has resulted in favour of the respondent, vitiating the said inquiry."
29. The Hon'ble Apex Court, in paragraph 4 of State of U.P. Versus Shatrughan Lal and another; AIR 1998 SC 3038, has held as under:-
"4. Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (See;Chandrama Tewari v. Union of India, 1987 (Supp) SCC 518: AIR 1988 SC 117;Kashinath Dikshita v. Union of India, (1986) 3 SCC 229: AIR 1986 SC 2118; State of Uttar Pradesh V. Mohd. Sharif, (1982) 2 SCC 376: AIR 1982 SC 937)."
30. The Hon'ble Apex Court in the case of K.L.Shinde Vs. State of Mysore (1976) (3) SCC 76 held that whether a delinquent had a reasonable opportunity of effectively defending himself is a, question of fact depending on circumstances of each case and no hard and fast rule can be laid in that behalf.
31. Since the petitioner was not afforded opportunity to inspect the records by not informing the name of the person having the custody of the records and the place/department, therefore, the petitioner was not afforded reasonable opportunity to make a representation and affording opportunity to inspect the records, if required, in the memo and in the letters written to the petitioner is nothing but an eye wash, as it can not be an effective opportunity.
32. Coming to the next submission of the petitioner that even if the petitioner had not submitted the representation, the respondents were required to hold the inquiry under Regulation 60(1)(b) and if the same was not required, it was obligatory on the disciplinary authority to record the finding to this effect. I am of the view that opinion is required to be formed and reasons to be recorded for holding an enquiry or not. But neither the inquiry was held nor any opinion was formed and reasons were recorded as to why no inquiry was required.
33. The Hon'ble Apex Court, in the case of Food Corporation of India and others Versus Sarat Chandra Goswami; 2014 AIR SCW 3594, after considering the Regulation 60 of the Regulations 1971 held in paragraph 9 as under:-
"9. It is necessary to hold an inquiry in a particular case or not. Since such an opinion is assailable in a legal forum, it has to be founded on certain objective criteria. It must reflect some reason. It can neither be capricious or fanciful but demonstrative of application of mind. Therefore, it has to be in writing. It may be on the file and may not be required to be communicated to the employee but when it is subject to assail and, eventually, subject to judicial review, the competent authority of the Corporation is required to satisfy the Court that the opinion was formed on certain parameters indicating that there was no necessity to hold an enquiry. Penalty imposed without forming opinion about necessity of inquiry is liable to be set aside."
34. In view of above I am of the view that since no opinion was formed and no reasons were recorded regarding holding or not holding of the inquiry, therefore the impugned order is vitiated on this count also.
35. Thus I am of the considered opinion that the impugned punishment order has been passed not only in violation of rule of audi alteram partem but in flagrant violation of the Regulation 60 of the Regulations 1971 also.
36. Now adverting to the imputation of misconduct against the petitioner. It is apparent from the imputation of misconduct, annexed with the memo dated 17.08.2006 that on account of a number of representations for promotion which were lying in the file unattended, the implementation of promotion orders dated 02.12.2004 and 03.12.2004 were stopped vide order dated 06.12.2004 by the District Manager, F.C.I., Kanpur and the same were kept in abeyance till further orders. Therefore two writ petitions bearing No.7476 of 2004 and writ petition no.407 of 2005 were filed before the High Court at Lucknow and at Allahabad respectively. Thereafter as per directions of the court vide order dated 05.04.2005 the Area Manager, FCI, Kanpur constituted a Committee of three Assistant Managers on 1/2.06.2005. The Committee submitted its report on 08.06.2005 which appears to have been forwarded to the Regional Office, Lucknow in August 2005 i.e. after a gap of two months for taking action, therefore, the memo dated 17.08.2006 was issued to the petitioner with the imputation of misconduct to the effect that the petitioner connived with the then District Manager, Kanpur, who did not take any action on the representation of Committee and the report was forwarded to the Regional Office after a gap of two months, which shows lackadaisical attitude towards his allotted duties and F.C.I. had to incur a large sum towards court cases and Rs.42,670/- as a travelling expenses of officers/staff due to his misconduct. Thus the petitioner contravened Regulation 31 & 32 read with 32-A of F.C.I. (Staff) Regulations 1971. But neither in the imputation of misconduct nor before this court the respondents have disclosed as to which court cases were instituted after submission of the report dated 08.06.2005 or on account of the alleged delay of two months in forwarding the report to the Regional Office.
37. As disclosed by the petitioner in the rejoinder affidavit the Committee report dated 08.06.2005 was received by the petitioner on 04.07.2005 and on the same date it was sent to the Regional Office and no court cases were filed after submission of the report dated 08.06.2005, but nothing has been brought before the court to controvert the same. Therefore the statement of imputation of misconduct or misbehaviour is factually incorrect, therefore it could not have been issued against the petitioner so it is not sustainable as it shows total non application of mind. Therefore, the allegation of the petitioner that it was levelled by the then General Manager in a malafide and biased manner seems to be true.
38. The Hon'ble Apex Court in the case of U.P. Government Vs. Sabir Hussain;1975 (4) SCC 703 held that the broad test of reasonable opportunity is, whether in the given case, the show cause notice issued to the delinquent servant contained or was accompanied by so much information as was necessary to enable him to clear himself of the guilt.
39. The law relating to minor penalty discussed by Hon'ble Apex Court in Kulwant Singh Gill Versus State of Punjab; 1991 Supp.(1) SCC 504, relied by learned counsel for the respondents, is not disputed. But in the present case the petitioner has not been afforded reasonable opportunity to make representation and no opinion has been recorded in terms of relevant service regulation for holding enquiry or not and even the charge is factually not correct as discussed above. Therefore the respondents are not entitled for any benefit from it in the present case.
40. In view of above I am of the considered opinion that the impugned order dated 18.12.2006 is not sustainable at all in the eyes of law and it is liable to be quashed.
41. The writ petition is allowed. The impugned order dated 18.12.2006, passed by the General Manager, Food Corporation of India, Regional Office, Lucknow contained in annexure no.1 to the writ petition is hereby quashed. The petitioner is entitled for all consequential service benefits.
42. No orders as to costs.
Order Date :-08.03.2019 (Rajnish Kumar,J.)
Banswar