Kerala High Court
K.G. Vijayan vs The Dist. Manager, Food Corpn. Of India ... on 6 August, 1992
Equivalent citations: AIR1994KER52, AIR 1994 KERALA 52
ORDER P.K. Shamsuddin, J.
1. In this Original Petition, petitioner challenges the disciplinary proceedings against him, which culminated in the removal of petitioner from service and also the orders in appeal and revision therefrom.
2. Petitioner was served with a memorandum dated 1-4-1985 by the District Manager, 1st respondent herein, informing him the proposal to hold an enquiry under Sub-section (5) of Regulation 58 for imposing a major penalty. The articles of charges with statements of imputation and list of documents and witnesses were also forwarded along with the memorandum. It is the case of petitioner that he filed a detailed reply, denying the imputations made against him. Thereafter, another memorandum was issued by 2nd respondent, on 5-9-1985, containing identical charges and imputations as made by District Manager. An enquiry under Regulation 58(5) was also proposed. Petitioner filed a written statement denying the charges. The Senior Regional Manager appointed Sri A.N. Sivadas, Deputy Manager (Enquiry) as Enquiry Officer. Before the Enquiry Officer, witnesses were examined and documents were produced and an enquiry report was submitted by the Enquiry Officer finding guilty of the charges levelled against the petitioner. The 2nd respondent after considering the enquiry report, passed Ext. P1 order removing the petitioner from service. Aggrieved by Ext. P1 order, petitioner preferred Ext. P2 appeal. That was disposed of by 3rd respondent, confirming the order passed by the 2nd respondent. Petitioner thereupon preferred a review Ext. P4, which was disposed of by Ext. P5 by 4th respondent confirming the orders of the lower authorities. Petitioner averred that the orders Exts. P1, P3 and P5 are illegal and without jurisdiction and are liable to be set aside on the grounds mentioned in the O.P.
3. A counter-affidavit has been filed by 2nd respondent on behalf of all the respondents, where the allegations of procedural irregularities and other infirmities raised on the grounds in the O.P. have been denied.
4. In this original petition, learned Counsel mainly raised two points: (1) The enquiry report was not furnished to the petitioner and no opportunity was given to the petitioner to make a representation against the facts stated in the report and therefore the final order Ext. P1 issued by 2nd respondent removing petitioner from service is illegal; (2) there is violation of Regulation 72 of Staff Regulations, 1971 in disposing of the appeal and also the provisions contained in Regulation 74 in disposing of the review and therefore the orders Exts. P3 and P5 are liable to be set aside.
5. In support of his first contention, learned Counsel for the petitioner placed before me a decision of the Supreme Court in Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 471. In that case, the report of enquiry was not furnished to the delinquent before the final order was passed. Dealing with the question, the Supreme Court observed as follows:--
"We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter."
Certainly, the observations contained in the above passage supports the contention raised by learned Counsel for the petitioner. However, the dictum laid down therein was doubted by a Constitutional Bench of the Supreme Court in Managing Director, Electronic Corporation of India v. B. Karunakar (JT 1992 (3) SC 605), where it was pointed out that in Kailash Chander Asthana v. State of U. P., JT 1988 (2) SC 291 : (AIR 1988 SC 1338), it has been observed by a Bench of three Judges that the question of furnishing a copy of the report of enquiry in disciplinary proceedings held after Forty-second Amendment does not arise. The Supreme Court observed that there is a seeming conflict as to the entitlement of a copy of the enquiry report to the delinquent officer. Accordingly, the matter was referred to a larger bench without expressing any opinion. In view of this, I do not think that I should set aside Ext. P1 order for the reason that the enquiry report was not furnished to the delinquent before Ext. P1 order was passed.
6. However, the second contention raised by learned Counsel for petitioner appeared to me more substantial and sustainable. Regulation 72(2) of the Staff Regulations, 1971 reads as follows:--
"(2) In the case of an appeal against an order imposing any of the penalties specified in Regulation 54 or enhancing any penalty imposed under the said Regulation, the appellate authority shall consider --
(a) where the procedure laid down in these regulations has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions under these regulations or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; pass orders --
(i) confirming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case ....."
Learned Counsel, based on this provision, submitted that though the appellate authority considered the evidence, there is no application of mind in regard to Clauses (a) and (c) and, therefore, Ext. P3 order is bad. In view of Clause (3) of Regulation 74, the same principles are applicable in disposing of the review, but that has not been done by the reviewing authority.
7. Learned Counsel also invited my attention to two decisions of the Supreme Court, where somewhat similar question was considered. In R.P. Bhatt v. Union of India (AIR 1986 SC 1040), the scope of provisions contained in Rule 27 of Central Civil Services (Classification, Control and Appeal) Rules, 1965, came for consideration of the Supreme Court. In para 3 of the judgment, Rule 27(2) has been extracted by the Supreme Court, which contains identical provision as is contained in Regulation 72 of the Staff Regulations, 1971. The Supreme Court made the following observations, on the question of compliance with Regulation 27(2):--
"The word 'consider' in R. 27(2) implies 'due application of mind: It is clear upon the terms of R. 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate and thereafter pass orders confirming, enhancing, etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in Clauses (a), (b) and (c) thereof.
5. There is no indication in the impugned order that the Director-General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director-General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of Clause (c) of R. 27(2), viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of R. 27(2) of the Rules, the impugned order passed by the Director-General is liable to be set aside."
A similar question was considered in Ram Chander v. Union of India (AIR 1986 SC 1173), where similar provision contained in Rule 22(2) came up for consideration of the Supreme Court. Quoting with approval the passage from R. P. Bhatt's case (supra), the Supreme Court said that the word 'consider' in Regulation 27(2) implies 'due application of mind'.
8. In the light of the principles enunciated in the above decision, it has to be held that in passing Exts. P3 and P5 orders, the authorities have not applied their mind to the requirements of Regulations 72(2) and 74(3). Accordingly, I quash Exts. P3 and P5 and direct the Appellate Authority to consider the matter afresh in accordance with law and in the light of the observations contained in this judgment. There will be adirection to dispose of Ext. P2 within a period of six months from the date of receipt of a copy of this judgment. Petitioner will be given an opportunity of being heard before the appeal is disposed of.
Original Petition is disposed of as above.