Punjab-Haryana High Court
R.S.Panwar vs Food Corporation Of India And Others on 8 March, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
REGULAR SECOND APPEAL NO.400 OF 2008 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: MARCH 08, 2010
R.S.Panwar
.....Appellant
VERSUS
Food Corporation of India and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr.Pritam Saini, Advocate,
for the appellant.
Mr. K. K. Gupta, Advocate,
for the respondents.
****
RANJIT SINGH, J.
Food Corporation of India as well as retired Assistant Manager of the Corporation are in separate Regular Second Appeals before this Court to impugn the same judgment. Accordingly, these two Regular Second Appeal Nos.400 of 2008 R.S.Panwar Vs. Food Corporation of India, New Delhi and others), and 1898 of 2009 ( Food Corporation of India, New Delhi and others Vs. R.S.Panwar) are being disposed of together through this common order.
REGULAR SECOND APPEAL NO.400 OF 2008 :{ 2 }:
R.S.Panwar, Assistant Manager in F.C.I had filed a suit impugning the penalty of demotion awarded to him to the post of Assistant Manager at the lowest grade and so also recovery of Rs.50,000/- imposed on him. The plaintiff had joined the F.C.I as Assistant Grade I in 1970 was promoted as Assistant Manager on 5.5.1976 and as District Manager on 27.7.1993. F.C.I had advertised some tenders for handing over of transport contract on 27.1.1995. The tenders were opened and financial soundness and business competence of all the parties were to be verified. Tender submitted by one Pala Ram and Company was rejected being invalid for want of earnest money. Matter was referred to D.M., Rohtak to verify the financial soundness and business competence of all the parties to be done within a week. When no report was received, the plaintiff statedly sent telegraphic reminders on various dates. Ultimately, the status and business competence of the parties were received on 7.3.1995, which was after 30 days, it was reported that M/s Vinod Kumar and Company was not financially sound. M/s Ram Kishan and Company, Jind, though was reported to be financial sound but this was subject to verification of the property from Punjab. Dharambir was found not financial sound. Bhonsle Labour and Transport Company was found not having experience of S.T.C work and was also not financial sound. Prem Chand was also not found financial sound and the same was the case of M/s Labour Nandini Company. Prem Chand and Company and Ramesh and Company were found financially sound.
Due to this incomplete information, the validity of the contract, which was upto 12.3.1995, had to be extended upto REGULAR SECOND APPEAL NO.400 OF 2008 :{ 3 }:
30.4.1995 and the parties were informed accordingly. Reminders were again sent to D.M., Rohtak. Ultimately, D.M., Rohtak, sent a report on 6.4.1995 but the same, as per the plaintiff-appellant, was put up to him only on 21.4.1995. As per the plaintiff, the file was withdrawn without his knowledge on 24.4.1995. The Committee ultimately was constituted to finalise the tender. The plea accordingly is that appellant-plaintiff can not be held responsible for delay, if any.
Records reveal that a lot of complaints were received that respondent No.4 had favoaured a particular party while awarding the tender for handling the transport contract, although lower rates were quoted by other parties. Matter was referred to the Vigilance Wing of F.C.I. ultimately, leading to issuance of memo of charge sheet to the plaintiff-appellant on 18.5.1996. He was accused of delaying the finalisation process, leading to loss of Rs.16,65,570/- to the Corporation and was accordingly charged under Regulations 31 and 32 of the F.C.I (Staff) Regulation, 1971.
The plaintiff-appellant had submitted reply to the charge sheet. The same was considered unsatisfactory. Enquiry Officer was appointed to go into the allegations, who submitted the report on 24.5.1996. On 4.10.1996, the plaintiff-appellant was asked to give his comment on the enquiry report, which he submitted on 10.10.1996. The same was also found unsatisfactory and accordingly he was imposed the punishment of demotion to the Post of Assistant Manager to the lowest grade applicable to the said post with immediate effect, coupled with recovery of Rs.50,000/- as a token for the loss caused to the Corporation.
The plaintiff filed an appeal against the said order on the REGULAR SECOND APPEAL NO.400 OF 2008 :{ 4 }:
ground that the punishment was not in accordance with law. The appeal was rejected on 9.5.1997 and accordingly the orders were challenged through the civil suit.
When put to notice, the respondent Corporation filed a written statement. It is pointed out that the tenders were originally valid for acceptance upto 12.3.1995 and were extended upto 27.3.1995. Thereafter, telegram was issued to all the valid tenders to extend the period of their acceptance upto 15.4.1995. In response, only three parties i.e. M/s Ram Kishan and Company, M/s Bhonsle Transport Company and M/s Jind Transport Company furnished their willingness to keep the offer open upto 15.4.1995 and for finalisation of the contract upto 31.5.1995. It is further pointed out that the plaintiff-appellant knew that his junior was proceeding on casual leave after 15.4.1995. The plea that letter from D.M., Rohtak, dated 6.4.1995 was not put up to the plaintiff is contested by pointing out that the entire correspondence received in the Section was first put up before the D.M. It is also submitted that even if this was not put up to him, he could have asked for the same, which will show the negligence on his part. As a result of this, the second lowest party withdrew its offer of extension of acceptance of the tender by not extending the date of acceptance of tender, leading to huge loss to the Corporation. The evidence also showed that the parties were not informed of the extension of period of the acceptance of offer and only one party, namely, M/s Ram Kishan and Company had extended the period upto 30.4.1995. On the basis of pleadings, the suit was tried on following issues:-
"1. Whether the orders dated 8.11.1996, 9.12.1996 and REGULAR SECOND APPEAL NO.400 OF 2008 :{ 5 }:
9.5.1997 passed by the defendants as illegal, null and void? OPP
2. Whether the plaintiff is entitled for the declaration as prayed for?OPP
3. Whether the present suit is not maintainable?OPD
4. Relief."
The suit was dismissed by the Trial Court. The First Appellate Court after making detailed reference to the scope of judicial review in such like matters, rejected the plea that the finding is based on no evidence was not made out. It has rightly been observed that the Civil Court can only interfere if any violation of the procedure is made out in conducting enquiry, which could not be pointed out.
The submission that the misconduct would not fall within the purview of Regulation 32-A can not be accepted in view of the far reaching different facet of the misconduct defined under the said Regulation. Acting in a manner prejudicial to the interest of the Corporation, neglect of work or negligence in the performance of duties including malingering or slowing down of work and any act unbecoming of an employee of the Corporation are some of the acts of omission or commission, which are to be treated as a misconduct under Regulation 32-A. The allegation made against the appellant- plaintiff would certainly be covered by the above noted facets of misconduct defined as such under Regulation 32-A. Having held so, the Court also went ahead to see if the punishing authority could direct recovery of the sum of Rs.50,000/- as a punishment. In this regard, reference is made to Regulation 54, which provides the REGULAR SECOND APPEAL NO.400 OF 2008 :{ 6 }:
penalties, which can be imposed. This regulation makes a provision for award of minor as well as major penalties. Recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of order is one of the minor penalties, which can be awarded. Reduction to lower stage of time scale of pay is a major penalty. The first Appellate Court rightly applied the ratio of law laid down in Union of India Vs. S.C.Parashar, 2006 (3) SCC 167, where it is held that order imposing penalty in an amalgam manner imposing minor penalty as well as major penalty would be illegal and without jurisdiction. The principle of law as settled in Abdul Kareem Vs. Canara Bank, 1997 (2) SCT 739 and Ashok Kumar Sapra Vs. Union of India, 1986 (1) SLR 556 is also the same. It appears that recovery of the loss was never intended to be imposed as a penalty and was awarded only as a token compensation, it can not be taken as a punishment. The major penalty imposed in this regard was rightly retained.
The counsel appearing for F.C.I in support of his appeal will submit that the punishing authority was fully empowered to award both the penalties. The counsel would further contend that recovery of Rs.50,000/- as imposed was a token compensation for the loss caused and as such, could be so imposed, it being not a punishment. In support of his submission, he has relied upon an order in W.A. No.980 of 2007, decided on 15.4.2008 by the High Court of Madras in the case of Food Corporation of India and others Vs. S.Nayagam and another, (W.A.No.980 of 2007). In this case, a penalty of recovery of Rs.50,000/- was imposed after holding enquiry. Subsequently, however, it was decided to review the aforesaid REGULAR SECOND APPEAL NO.400 OF 2008 :{ 7 }:
penalty in exercise of powers conferred under Regulation 74(4) of the F.C.I. Staff Regulation 1971. The recovery of the loss as ordered was considered inadequate keeping in view the gravity of charges. A show cause notice was issued, asking the employee as to why the recovery should not be enhanced beside imposing other penalty contemplated under Regulation 54. After considering the explanation, the employee was reverted to the post of Assistant Grade III (General) and was also debarred for promotion for a period of five years, besides other punishments. Initially, he filed a writ petition, which was dismissed, directing him to file departmental appeal, which he did. The said appeal, however, was rejected. This order ultimately he challenged, when the Single Judge came to conclude that order enhancing the punishment on the suo-motu revision is not permissible since already a punishment of penalty of Rs.15,000/- was imposed. While taking this view, reliance was placed on the judgment of the Supreme Court in S.C.Parashar's case (Supra). The case was then taken in appeal, where it was pleaded that Regulation 54 would not bar imposing of penalty mentioned therein. No doubt in this case, the Division Bench ultimately viewed that there is no legal prohibition in the F.C.I Staff Regulation that person can be visited with more than one penalty. However, the question in the present case to be seen is whether major penalty can be combined with minor penalty. Even otherwise, the recovery, as ordered, has not been formally worded to take it as a minor penalty. The Hon'ble Supreme Court in the case of S.C.Parashar (supra) had observed as under:-
"The penalty imposed upon the respondent is an amalgam of REGULAR SECOND APPEAL NO.400 OF 2008 :{ 8 }:
minor penalty and major penalty. The respondent has been inflicted with three penalties: (1) reduction to the minimum of the timescale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341-89p. i.e. Rs.18,585-47p. On account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of timescale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clauses (iii) and (iii)
(a) thereof. The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law.
Though informally worded, but recovery of Rs.50,000/- as a compensation for the loss caused is a minor penalty under Regulation 54 of the F.C.I. Regulations which authorises recovery of loss or part of loss. Reduction to lower stage in time scale is a major penalty under said Regulation 54. Thus, major and minor punishments were imposed in amalgam which would not be legally permissible as per the above referred ratio of law in S.C.Parashar's case (supra).
Both the appeals are, therefore, dismissed.
March 08, 2010 ( RANJIT SINGH ) khurmi JUDGE