Delhi District Court
Shri Mela Ram Sethi vs Food Corporation Of India on 29 April, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 503/2000 & Suit No. 233/03
Unique ID No. 02401C0049462000
Unique ID No. 02401C0308712003
MEMO OF PARTIES IN SUIT NO. 503/2000
Shri Mela Ram Sethi
Presently Employed as Asstt. Manager (D),
Food Corporation of India,
SKRK, Distt. Ferozpur, Punjab
...........Plaintiff
VERSUS
1. Food Corporation of India
(A Statutory Body Constituted Under F.C.I. Act 1964),
Through its Managing Director
1620, Barakhamba Lane, New Delhi - 110001
2. The Zonal Manager (North)
Food Corporation of India, Ansal Bhewani
New Delhi - 110008
3. Regional Manager,
Food Corporation of India,
Regional Office (Punjab), Chandigarh
4. The District Manager,
Food Corporation of India,
Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 1/51
Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors.
149, Sant Lal Road, Ferozpur Cantt.
District Ferozpur (Punjab)
..........Defendants
MEMO OF PARTIES IN SUIT NO. 233/03
Shri Mela Ram Sethi
Presently employed as
Asstt. Manager (D), Food Corporation of India,
FSD Ferozpur, Distt. Ferozpur, Punjab
............Plaintiff
VERSUS
1. Food Corporation of India,
(A Statutory Body Constituted under F.C.I. Act 1964),
Through Its Managing Director
1620, Barakhamba Lane, New Delhi 110001
2. The Zonal Manager (North)
Food Corporation of India,
A2, A2B, Sector 24, Noida (U.P.)
3. Shri O.P. Garg, Inquiry Officer,
FCI, Regional Office (Punjab), Chandigarh
........Defendants
Date of institution of the Suit (503/2000): 18.12.2000
Date of institution of the suit (233/03): 04.09.2003
Date on which judgment was reserved: 15.04.2014
Date of pronouncement of Judgment: 29.04.2014
BOTH SUITS FOR DECLARATION AND INJUNCTION AND
CONSEQUENTIAL RELIEF
Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 2/51
Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors.
JUDGMENT:
1. This common judgment shall decide the two suits of the plaintiff i.e. suit no. 503/2000 and the suit no. 233/03.
Facts of the case no. 503/2000
2. The plaintiff had initially filed the suit for declaration and injunction seeking inter alia the declaration that he became the regular/permanent Assistant Manager (Depot) in the defendant corporation w.e.f. 31.12.1999 and is entitled to placement of his seniority in the said cadre for future promotions to the post of Deputy Manager and the impugned order dated 29.12.1999 issued by the defendants and extension of probation period after 31.12.1999 is illegal, arbitrary, unjustified and unsustainable in law being in contradiction of FCI (Staff Regulations) 1971 and circulars issued from time to time by the defendant corporation along with the consequential relief of permanent injunction and mandatory injunction. On 22.12.2000 the counsel for defendants no. 1 and 2 placed on record an office order dated 21.12.2000 whereby probation of the plaintiff had been terminated and he had been reverted to the post of Assistant GradeI with immediate effect. It was observed by this court that the main relief of the plaintiff was with regard to the extension of the period of probation from 31.12.1999 to 31.12.2000 and the plaintiff had sought the relief by way of injunction for restraining the defendants from reverting the plaintiff Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 3/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. from the present post. It was observed that the office order dated 21.12.2000 had been passed after filing of the present suit and after appearance of the counsel for defendant therefore the office order dated 21.12.2000 was kept in abeyance however without prejudice to the rights of the defendant and subject to the outcome of the application U/o 39 R 1 & 2 CPC. Thereafter, the plaintiff moved an application U/o VI R 17 CPC which was allowed vide order dated 18.05.2001 whereby the plaintiff was allowed to add the further prayer of declaration for setting aside the impugned order dated 21.12.2000.
3. The plaintiff's case as per the amended plaint is that the defendant no. 1 is a statutory corporation established by Act of Parliament known as Food Corporation Act, 1964 for the smooth distribution and storage of food stuff in various parts of the country. The defendant had divided various parts of the country in different zones for the purpose of carrying out its duties and obligations. The North zone of the Food Corporation of India covered the states of Punjab, Rajasthan, Uttar Pradesh, Jammu & Kashmir, Union Territory of Chandigarh and New Delhi. The administrative control of the north zone was vested in the Zonal Manager (North) and the defendant no. 2 was holding its office at New Delhi. The defendant corporation in exercise of its power vested by virtue of Section 45 of the Food Corporation India Act, 1964 had framed rules and regulations known as FCI (Staff Regulations) 1971 to govern Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 4/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. the service conditions of its officials and employees.
4. The defendant corporation had further divided its various zones into regions. Different regional cadres controlled the regions. Defendant no. 3 Regional Manager was the further controlling authority for the purpose of smooth carrying out of administrative functions while defendant no. 2 was the District Manager under whom the plaintiff was posted at the time of filing of the suit.
5. The plaintiff was initially appointed by the defendant corporation in its north zone against the post of Assistant GradeIII (AGIII) in the year 1970 and was promoted to AGII in the year 1971. Thereafter, he was promoted to the post of AGI in the year 1978. After rendering more than 28 years of service with the defendant corporation, the plaintiff was promoted to the post of Assistant Manager (Depot). Vide office order dated 30.12.1998 and as per regulation 15 of the FCI (Staff Regulations) 1971 the plaintiff was put on probation for a period of one year which could be extended for a further period not exceeding one year in special circumstances and after complying with the procedure laid down in various rules and regulations, and circulars issued from time to time by the defendant corporation.
6. The plaintiff in pursuance to the office order dated 30.12.1998 issued by the defendant no. 2 and communicated to the plaintiff by defendant no. 4 vide Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 5/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. office order dated 31.12.1998 joined/resumed his duties as Assistant Manager (Depot) on 31.12.1998 itself at FSD, Zira (Firoz Pur) and completed his probation period of one year on 31.12.1998. During the period of his holding the said office as Assistant Manager (Depot) w.e.f. 31.12.1998 to 31.12.1999 the plaintiff was not apprised of any deficiency in the performance of his duties as Assistant Manager (Depot) however the defendant corporation maliciously and vexatiously without assigning any reason extended the period of probation of the plaintiff for one year w.e.f. 01.01.2000 vide the impugned order dated 29.12.1999 on the false ground that the plaintiff had not completed his official probation period satisfactorily.
7. The plaintiff contends that the impugned order dated 29.12.1999 was contrary to the circulars issued by the defendant corporation from time to time which circulars had a binding effect as held by the Hon'ble Delhi High Court in the case of Pritam Singh Vs. FCI 1984 (3) SLR 181. The plaintiff contends that the first circular dated 21.08.1971 clearly shows that in the event of extending the probation period such an order must be passed four weeks before the date of completing the initial period of probation, whereas the impugned order dated 29.12.1999 was issued just a day before the completion of the probation period. The plaintiff further submits that the circular dated 16.06.1977 issued by the defendant corporation on the subject of appointment Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 6/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. of probation further makes it obligatory upon the FCI that if the work of an official on probation is not found satisfactory such an official should be shifted from the seat after completion of half year of probation. The probationer should be further informed of his deficiency and thereafter, the report from the second seat has to be obtained and if it is not satisfactory during the second half for a period of four months, the probationer is to again be shifted to a third seat and report from the third seat is to be obtained before extending the period of probation. In the present case however the plaintiff was never shifted from the seat on the ground of unsatisfactory work nor was he further intimated of any deficiency in the performance of his official duties as AM(D) during the first year of his probation. It was submitted that the defendant corporation in their office circular dated 08.03.1979, circular no. 16 of 03.03.1982 and circular no. 6 of 24.01.1984 took a serious view for not complying with the aforesaid circulars having force.
8. The plaintiff further submits that on 13.11.1997, the defendant corporation vide circular no. 40 of 1997 further directed for compliance of their earlier circular and clarified that extension of probation period for the second year shall only be when a complaint under investigation was pending within one year period of probation. It was contended that in the present case there was no complaint about the work and conduct of the plaintiff during the period from Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 7/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 31.12.1998 to 31.12.1999 and thus the probation period of the plaintiff could not have been extended. The plaintiff has further quoted the judgment i.e. J.B. Sreeramapurty Vs. FCI 1981 (2) APLJSL 36 and states that it was held in the same that when the first year of probation was satisfactorily completed from the date of appointment, the employee became a regular employee under the corporation.
9. The plaintiff contends that he represented to the defendant that the extension of his probation period vide the impugned order dated 29.12.1999 was illegal, unjustified and contrary to the regulations and circulars mentioned above and the plaintiff requested for his confirmation against the permanent post of AM(D) w.e.f. 01.01.2000. While the plaintiff was pursuing the matter with various officials of the defendant corporation the plaintiff came to the zonal office on 15.12.2000 to process his representations but was intimated that his extended probation period was also not satisfactory therefore he would be reverted/reduced in rank to the post of AGI on completion of the stipulated period on 31.12.2000. The plaintiff was further intimated that there were some departmental inquiries pending against the plaintiff while he was working as AGI therefore he was bound to be reverted from the post of AM (D) which he had been holding since 31.12.1998. The plaintiff raised objection but inspite of repeated requests and representations, the defendants were determined to Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 8/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. impose major penalty of reduction in rank upon the plaintiff on or before 31.12.2000 which was illegal and unjustified. There was immediate threat of reduction in rank from the AM (D) (category C) to the post of Assistant GradeI (category D) thus the plaintiff claimed that he had no other alternative, efficacious remedy.
10. It is the further case of the plaintiff that the present suit was filed on 18.12.2000 and the defendants were served on 21.12.2000 but sought an adjournment for 22.12.2000 and in the evening of 21.12.2000 the defendants maliciously, vexatiously and with ulterior motive to obstruct the administration of justice passed the impugned order dated 21.12.2000 reducing the plaintiff in rank from the post of AM(D) categoryC, to AG CategoryD without giving opportunity to the plaintiff. The impugned order dated 21.12.2000 was contended to be a nullity and non existent and unenforceable in law because the same had been passed by the authority subordinate to the competent authority under the FCI (Staff) Regulation, 1971. The plaintiff had not been provided any opportunity before passing of the impugned order which was a major penalty in terms of the regulation 54 and could not be imposed without complying with the mandatory procedure laid down in regulations 58 to 71 of the said regulations. Thus the suit no. 503/2000 was filed by the plaintiff seeking the following reliefs Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 9/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors.
"a) Pass a decree of declaration in favour of the plaintiff and against the defendants , declaring that the plaintiff became a regular/permanent Asstt.
Manager (Depot) w.e.f 31.12.1999 and is entitled to the placement of his seniority in the said cadre for future promotions to the post of Deputy Manager and the impugned order bearing no. PF/M207/EI/NZ dated 29.12.1999 issued by the defendants for extension of probation period after 31.12.1999 is illegal, arbitrary, unjustified and is unsustainable in law being in contravention of the FCI Staff Regulation, 1971 and the circulars issued from time to time by the defendant Corporation and is, thus, not binding upon the plaintiff;
b) Pass a decree of perpetual injunction in favour of the plaintiff against the defendants restraining the defendants, its officials, agents, employees from reverting/reducing in rank the plaintiff from the post of Asstt. Manager (d) to the post of Asstt. Grade I or to any other lower post in contravention of the mandatory provisions of the FCI Staff Regulation, 1971, (especially Regulation 58 to Regulation 70) and the circulars issued from time to time by the defendant Corporation;
c) Pass a decree of mandatory injunction directing the defendant and its officials not to revert/reduce in rank the plaintiff from the post of Asstt. Manager (D) to the post of the Asstt. Grade I or any other lower post in the lower time scale and allow him to perform his regular duties as Asstt. Manager (D) which Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 10/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. he is performing at present and allow him to draw the salary prescribed to the said post of Asstt. Manager;
d) Award costs of the suit in favour of the plaintiff and against the defendants."
11. In the amended written statement filed by the defendants, preliminary objections were taken. It was contended that the plaintiff had not come to the court with clean hands. There were nine vigilance cases pending/contemplated against the plaintiff and in six cases the plaintiff had been penalized and in only two cases the plaintiff had been exonerated. One vigilance case under major penalty was still pending against the plaintiff. The plaintiff had intentionally not disclosed this fact. It was averred that the plaintiff has no locus standi to file the suit. The plaintiff had concealed the relevant rules and circulars concerning the probation and promotion of the employees involved in vigilance cases. As per circular no. 20 of 1990 of the defendants, in case a probationer was involved in vigilance cases or a complaint under investigation was pending within one year period of probation even though the probation report was found satisfactory, formal orders for extension of probation beyond one year could be passed by the competent authority immediately after the completion of the first year and communicated to the employee concerned. Further, the plaintiff had not disclosed that as per regulation 54 of FCI (Staff Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 11/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. Regulations)1971, the termination of service or reversion to a lower category or post of an employee appointed or promoted on probation either during or at the end of probation was not a penalty. The plaintiff had got no right to claim confirmation after promotion to a higher post during the probation period unless the plaintiff had been confirmed by the department and having satisfactorily completed his probation period as per regulation 15(4) of the FCI (Staff Regulations) 1971.
12. The defendants on merits, did not deny the plaintiff's appointment and subsequent promotion to the post of Assistant Manager (Depot) vide office order dated 30.12.1998 on probation. It was also not denied that the plaintiff joined on 31.12.1998 at FSD, Zira, Firozpur as Assistant Manager (Depot) vide order dated 30.12.1998. It was however denied that the plaintiff had completed his probation period of one year satisfactorily. It was averred that the work and conduct of the plaintiff was not found satisfactory therefore the probation period was extended vide order dated 29.12.1999 which was in consonance with the relevant rules as contained in circular no. 20/1990 dated 23.05.1990. The relevant portion of the said circular was reproduced in the written statement.
13. The defendants further contended that in view of circular 40 of 1997 dated 13.11.1997 an employee could not be confirmed in a position if there was Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 12/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. a vigilance case pending against him. It was submitted that during the official probation period the plaintiff was involved in six vigilance cases. As such the probation period of the plaintiff was extended in view of circular 20 of 1990. Even during the extended period, the plaintiff was involved in three more vigilance cases out of which one major penalty case was still pending. It was denied that the defendant maliciously and vexatiously extended the period of probation of the plaintiff for another one year w.e.f. 01.01.2000. It was denied that the order dated 29.12.1999 was contrary to the circular issued by the defendants from time to time and all the circulars as mentioned in para 9 of the plaint were stated to be not applicable to the facts of the case. It was submitted that no representation against extension of probation vide order dated 29.12.1999 to the post of AM(D) was received from the plaintiff. It was denied that the plaintiff was informed that he would be reverted /reduced in rank to the post of AGI and it was only an apprehension of the plaintiff. It was submitted that all promotees promoted against the permanent post were placed on probation for a period of one year which could be further extended by another year and this condition was stipulated in the promotion order dated 30.12.1998 in respect of the plaintiff. It was denied that the reduction in rank was a major penalty. It was submitted that the order dated 21.12.2000 of reversion of the plaintiff had been kept in abeyance as per the directions of the Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 13/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. Court. It was submitted that the plaintiff had filed the suit with the sole motive that no order in respect of reversion was passed before expiry of 31.12.2000 and the plaintiff may be presumed to be confirmed as Assistant Manager after 31.12.2000. It was denied that the impugned order dated 21.12.2000 was a nullity or had been passed by an authority subordinate to the competent authority. It was prayed that the plaintiff's suit be dismissed.
13. In the replication the plaintiff submitted that at the time of promotion to the post of Assistant Manager, the plaintiff was found eligible for promotion and this was done after consideration of his previous record by the DPC which was considered before recommending the plaintiff for promotion to the post of Assistant Manager. In a similar situation i.e. in the case of Sh. B.N. Singh, the General Managing Director of the defendant had held that the vigilance cases if any pertaining to the period prior to the date of promotion had no relevance and could not come in the way of regularization of the probationer. The regularization of the probationer had to be according to the work of the individual employee after his promotion and not considering any incident relating to the period prior to his promotion. It was submitted that no vigilance case had been pending or communicated to the plaintiff pertaining to the period when the plaintiff had been working as assistant manager during initial period of promotion as assistant manager. The contents of the written statement were Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 14/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. denied and those of the plaint were reiterated.
Facts of the case no. 233/03:
14. The latter suit was filed by the plaintiff against the three defendants as mentioned in the memo of parties therein. The case of the plaintiff is basically that after filing of the suit no. 503/2000 wherein interim order had been passed staying the operation of the order dated 21.12.2000, which order was still existing at the time of filing of the later suit since the defendant corporation could not succeed in reverting the plaintiff from the post of Assistant Manager (Depot) to the post of AGI by illegal means the defendant corporation issued a false charge sheet bearing no. FZR6852/7930 dated 07.12.2000 containing false and frivolous allegations that the plaintiff while working as AM(D) did not get proper/specific quality complaint from the technical staff posted in the depot.
15. The plaintiff avers that on receipt of the false and frivolous charge sheet the plaintiff refuted all the allegations and submitted that in terms of the circular issued by the defendant corporation, the allegations contained in the charge sheet did not pertain to the duties of the plaintiff and the plaintiff having been employed as AM(D), it was the responsibility of the technical staff which fact had been admitted by the defendant in its office memo no. 9552 dated 04.07.2003 however the defendant corporation in order to penalize the plaintiff Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 15/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. and circumvent the judicial proceedings and the interim order passed in the prior suit i.e. suit no. 503/00 maliciously and vexatiously appointed defendant no. 3 as an inquiry officer. The defendant no. 3 without complying with the mandatory provisions in Regulations 58 to 71 of the FCI (Staff Regulations) 1971 conducted a sham inquiry and gave his adverse and perverse impugned finding dated 26.02.2002. The defendant no. 3 also violated the principles of natural justice so much so that the documents placed on record before the defendant no. 3 were ignored while giving the impugned finding dated 26.02.2002. The defendant no. 3 failed to appreciate that it was the responsibility of the technical staff to check and maintain the quality of the paddy procured by the defendant corporation as was evident from the check out quality list produced by the plaintiff before the defendant no. 3. The defendant no. 3 further failed to consider that the defendant corporation had itself admitted in a circular issued by it that there was heavy rainfall in the year 19981999 and there was no proper storage arrangement for the paddy procured in high quantity from the farmers and it was not on account of any negligence of performance in the duties by the plaintiff.
16. The plaintiff contended that the defendant no. 3 further failed to consider that for the period to which the charges pertained the plaintiff was not working at Guru Harsahai Centre and was therefore not responsible for the Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 16/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. preservation of the stock and thus allegations contained in the memo of charge sheet dated 07.12.2000 were vague, indefinite and full of contradictions with factual errors. The defendant corporation was determined to penalize the plaintiff for challenging his extension of probation period in contravention of its circular and FCI (Staff Regulations) 1971 therefore the defendant no. 2 without affording any opportunity as required under the service conditions had contemplated to impose the major penalty of reduction in rank from the post of Assistant Manager Depot which could not be implemented as its order dated 21.12.2000 was stayed by the court. The impugned charge sheet dated 07.12.2000, the appointment of defendant no. 3 as inquiry officer and the impugned finding dated 26.02.2002 of the defendant no. 3 and the proposed action of the defendant corporation of imposing a major penalty of reduction in rank from the permanent post of Assistant Manager (Depot) in category B to the lower post of AGI in category C were therefore liable to be declared null and void and could not be enforced against the plaintiff to circumvent the judicial proceedings in suit no. 503/2000. The findings of defendant no. 3 were perverse and againt the principles of natural justice and the impugned charge sheet dated 07.12.2002 issued by the Senior Regional Manager was issued by an incompetent authority since the competent authority was the defendant no. 2 Zonal Manager and was unsustainable in law Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 17/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. and liable to be declared null and void. Therefore the plaintiff has sought the following reliefs through the suit no. 233/03 "a) Pass a decree of declaration in favour of the plaintiff and against the defendants, declaring that the impugned charge sheet bearing no. Vig.21 (FZR6852) 2000/7930 dated 07.12.2000 issued by Senior Regional Manager of the defendant no. 3 on the aforesaid false and frivolous charge sheet and any subsequent action thereon by the defendants is illegal, arbitrary, unjustfied and unsustainable in law, therefore, the aforesaid impugned charge sheet dated 07.12.2000 along with impugned finding dated 26.02.2002 be declared null and void and unenforceable against the plaintiff.
b) Pass a decree of perpetual injunction in favour of the plaintiff against the defendants restraining the defendants, its officials, agents, employees from reverting/reducing in rank the plaintiff from the post of Asstt. Manager (D) to the post of Asstt. Grade I on the basis of the impugned finding dated 26.02.2002 of defendant no. 2 till the final disposal of the suit.
c) Award costs of the suit in favour of the plaintiff and against the defendants."
17. A joint Written statement was filed by the defendants no. 1 and 2. No written statement was filed by defendant no. 3.
18. In the written statement filed by defendants no. 1 and 2, preliminary Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 18/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. objections were taken. It was contended that the court did not have the jurisdiction to try and entertain the suit as no cause of action had arisen in Delhi. It was submitted that the plaintiff was posted at Firozpur and vigilance inquiry against the plaintiff had been conducted and completed at Chandigarh. The order of penalty against the plaintiff had been passed by the Zonal Manager (North) of Food Corporation of India situated at Noida (U.P.). The plaintiff had not disclosed that he was involved in a number of vigilance cases. The plaintiff and six other officials at Guru Sahai Centre in Firozpur were charge sheeted under major penalty vide memo dated 07.12.2000. The charges were framed against the plaintiff and Sh. O.P. Garg Additional District & Sessions Judge (Retired) was appointed as Inquiry Officer to conduct the departmental inquiry against the plaintiff as well as other officials involved in the case. The said inquiry officer conducted the departmental inquiry against the plaintiff and other officials strictly as per the procedure envisaged in the FCI (Staff Regulations) 1971. The plaintiff had participated in the inquiry proceedings and was given full opportunity of hearing. The plaintiff cross examined the prosecution witnesses and also produced his evidence in the said inquiry. The plaintiff also submitted his written brief in his defence. The said inquiry officer after hearing the plaintiff and perusing the record of the inquiry proceedings as well as evidence had given a detailed inquiry finding. Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 19/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. The plaintiff was duly supplied the report of the inquiry officer for making necessary representation against the the said findings to the competent authority. The Zonal Manager (North) FCI at Noida after considering the charge sheet, inquiry report, representation of the plaintiff and all materials on record imposed the penalty of reversion from the post of AM(D) to AGI (D) for a period of one year upon the plaintiff vide order dated 01.02.2003 after which his suitability for promotion may be assessed under regulation 56 of FCI (Staff Regulations) 1971. The said order was duly sent to the plaintiff as per rules and also posted at his residence.
19. The defendant further contended that the suit of the plaintiff was not maintainable and was premature as the plaintiff had the efficacious remedy of appeal under the Regulation 68 of the FCI (Staff Regulations) 1971. Under the said Regulation, the plaintiff had a right to file an appeal against the order of the disciplinary authority to the Managing Director FCI, New Delhi which the plaintiff had not filed till date. In the reply on merits it was submitted that the defendant no. 2 was holding his office at Noida (U.P.) and not at Delhi. It was denied that a false and frivolous charge sheet had been issued. Basically the averments raised in the plaint were denied. It was contended that the report of Bhanwar Singh DM(QC) indicated lapses on the part of the depot as well as technical staff for which they were proceeded against departmentally and the Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 20/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. role of each official had been examined and they were accordingly proceeded against for causing huge losses to the defendant corporation. It was contended that after adopting the proper procedure penalties had been imposed upon the five other officials involved in the case i.e. reversion to a lower post for a period of two years including the plaintiff and Sh. Mahabir Prasad, TAIII was imposed with the penalty of reduction to the minimum scale applicable to the post for period of two years. Thus there was no prejudice against the plaintiff and plaintiff had been penalized on account of his omissions and commissions. The said case had nothing to do with the earlier pending case in court. It was submitted that the Senior Regional Manager of the FCI was a competent authority for initiation of disciplinary proceedings against the plaintiff as per regulation 57(e) and 58 of FCI (Staff Regulations) 1971.
20. In the replication the plaintiff denied that the court did not have jurisdiction to entertain the suit. It was submitted that the head office as well as the zonal office were at Delhi and the impugned contemplated action was to be taken at Delhi and the plaintiff was working in the North Zone of the defendant corporation therefore the court had jurisdiction to try the suit.
21. It was stated that the depot staff could not be held responsible for quality aspects of the stock at the time of acceptance or during storage since the Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 21/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. maintenance of stocks in good condition was mainly the work of quality control staff and reference was made to an order dated 09.05.2003 issued by the Managing Director of the defendant no. 1 to Sh. Des Raj Mehta. It was submitted that the defendant corporation had issued a booklet in the year 1999 containing the duties and normal functions of the depot staff and nowhere in the functions of the depot staff was it mentioned that quality of the stock would be the responsibility of the depot staff. The plaintiff who was working as Assistant Manager Depot could not be held liable for misconduct attributed to him vide memo dated 07.12.2000 therefore issuance of charge sheet dated 07.12.2000 pertaining to charges not related to the functions of the plaintiff as AM(D) was without jurisdiction and defendant no. 3 had no jurisdiction to hold any domestic inquiry on the said charges. It was denied that any penalty had been imposed or communicated to the plaintiff of his reversion from the post of AM(D) for a period of one year vide order dated 02.09.2003 and it was submitted that the plaintiff had placed on record his joining report dated 26.09.2003 after availing medical leave to the post AM(D) which had been accepted by his District Manager therefore it was wrong to say that the plaintiff stood reverted on 02.09.2003. The contents of the plaint were reiterated while those of the written statement were denied.
Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 22/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. Order on Clubbing:
22. On 23.03.2005, the application of the plaintiff for consolidation of the suits nos. 503/2000 and 233/03 was allowed and it was held that the prior instituted suit i.e. 503/2000 would be treated as the main suit, joint issues would be framed in the said suits and evidence necessary to decide both the suits would be allowed in the said case. Further, the documents filed in both the cases were to be jointly read for the purpose of disposal of both the cases.
Issues:
23. On 28.04.2005 the following issues were framed for both the suits
1. Whether the suits of the plaintiff are barred on account of territorial jurisdiction? OPD
2. Whether the suit of the plaintiff is not maintainable and premature being not efficacious remedy? OPD
3. Whether the plaintiff is entitled for a decree of declaration as prayed in para (a) in suit no. 503/2000? OPP
4. Whether the plaintiff is entitled for the decree of permanent injunction as prayed in para (b) in suit no. 503/2000? OPP
5. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed in para (c) in suit no. 503/2000? OPP
6. Whether the plaintiff is entitled for the decree of declaration as prayed in Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 23/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors.
para (a) in suit no. 233/2003? OPP
7. Whether plaintiff is entitled for the decree perpetual injunction as prayed in para (b) in suit no. 233/2003? OPP
8. Relief.
Evidence:
24. The plaintiff in evidence examined himself as PW1 and thereafter closed PE. The defendant in evidence examined Smt. Meera Giani as DW1 and Sh.
Umesh Kumar Kakkar as DW2 and thereafter closed DE.
Final Arguments:
25. Final arguments were advanced by counsel for the parties upon conclusion of the trial. It was apprised by counsel for the parties that the plaintiff had already retired from the service and had got all the benefits.
However, it was contended by counsel for the defendant that the same had been granted subject to an undertaking given by the plaintiff pertaining to the same b eing granted dependent upon the decision/out come of the present suit.
26. I have heard the final arguments advanced by counsel for the parties and perused the record.
Findings:
27. My issue wise findings are as follows Issue No. 1 Whether the suits of the plaintiff are barred on account of Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 24/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. territorial jurisdiction? OPD
28. The defendants have not raised the issue of territorial jurisdiction in suit no 503/2000 and this issue has been raised in the latter suit i.e. 233/03. It was argued by Ld. Counsel for the defendants that as regards the suit no 233/03, no part of the cause of action had arisen in Delhi as the plaintiff at the relevant time was posted at Ferozpur and vigilance inquiry against the plaintiff had been conducted and completed at Chandigarh ; the order of penalty against the plaintiff had been passed by the Zonal Manager, North of the defendants at Noida. On the other hand, Ld. counsel for the plaintiff referred to Ex PW 1/1 the office order dated 30.12.1998 by which the plaintiff had been promoted as Assistant Manager (Depot) which was issued by the Zonal office, North and argued that at the relevant time, it was situated at Delhi; she also referred to Ex PW 1/3 office order dated 27.12.1999 whereby the period of probation of plaintiff was extended which was issued from the Zonal office(N) New Delhi. The basic argument of the plaintiff thus was that a part of the cause of action arose at Delhi and that at the relevant time the Zonal manager, North of the defendant was situated in Delhi.
29. The argument of the counsel for the plaintiff regarding issuance of the circulars Ex PW 1/1 & Ex PW 1/3 is relevant only for proving that in the first suit i.e. Suit no 503/2000 a part of the cause of action arose in Delhi which as I Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 25/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. have already observed in the beginning is not even disputed by the defendants in that suit. It is in the suit no 233/03 that the territorial jurisdiction is disputed. Noteworthy is the fact that as per the memo of parties filed by the plaintiff in the suit no 233/03, the office of the Zonal Manager, North i.e. the defendant no 2 therein is mentioned by the plaintiff himself as being situated at Noida, Uttar Pradesh. Thus to the knowledge of the plaintiff, at the time when the latter suit i.e. suit no 233/03 came to be filed, the office of the Zonal Manager, North had shifted to Noida.
30. The cause of action is pleaded by the plaintiff in para 21 of the suit no 233/03 to have arisen when the impugned charge sheet no FZR/6852 dated 07.12.2000 was served upon the defendant, again when the defendant no 3 was appointed Inquiry officer; on 26.02.2002 when the impugned findings were given by the defendant no 3 and lastly on 02.09.2003 when defendant no 2 on the basis of findings given by the defendant no 3 contemplated imposition of major penalty of reduction in rank from the permanent post of AM(deport). Further, as regards the territorial jurisdiction, the plaintiff pleads in para no 22 of the said suit no 233/03 that the cause of action accrued at Delhi, the defendant holds its office at New Delhi and impugned orders were issued from New Delhi. These are the plaintiff's own pleadings and have to be read in conjunction. The impugned charge sheet dated 07.12.2000 Ex PW 1/9 on the basis of which the Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 26/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. cause of action is alleged to have firstly arisen was issued to the plaintiff admittedly by the defendant corporation's regional office at Chandigarh and not from the Delhi office of the defendant's corporation. The inquiry officer conducted the inquiry proceedings at Chandigarh, which is discernible from the inquiry report dated 26.02.2002 of the inquiry officer Ex PW 1/10. Further, the perusal of the order of the Zonal Office North dated 01/02.09.2003 Ex DW 2/4A shows that the letterhead itself mentions the address of the defendant's Zonal Office i.e. Zonal Office, North, Noida. Thus, the impugned order of the defendant no. 2 was issued from the Noida office of the defendant no. 2. It is crystal clear that no part of the cause of action for the latter suit no 233/03 has arisen at Delhi and merely the fact that the principal office of the defendant corporation is situated in Delhi is not sufficient at all to confer jurisdiction on the Delhi courts. In the case of a corporation it is the place where the subordinate office, within the local limits of which a cause of action arises which is the relevant place for filing the suit and not the principal place of business as held by the Hon'ble Supreme Court in Patel Roadways Limited Bombay Vs Prashad Trading Company AIR 1992 SC 1514. The impugned charge sheet and consequent findings were issued from Chandigarh while the order of the Zonal Manager, North was passed from Noida; the Delhi office of the defendant corporation does not come into the picture at all (in the latter suit no 233/03) Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 27/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. therefore it was the courts of Chandigarh (Punjab) or Noida, U.P. which had the territorial jurisdiction to try the suit no 233/03. The first few paragraphs of the plaint in suit no 233/03 are identical to the pleadings in the earlier suit i.e. 503/2000 and in para 2 of the plaint the plaintiff contends towards the end that the administrative control of the North Zone was vested in the Zonal Manager, North i.e. the defendant no 2 holding its office at New Delhi, though in the memo of parties, the plaintiff has himself given the address of defendant no 2 as Noida, Uttar Pradesh. Thus, at the relevant time of issuance of the impugned order Ex. DW2/4A by the defendant no. 2 the plaintiff knew that the office of the defendant no. 2 was in Noida, U.P. and not at Delhi, and the order Ex DW 2/4A has in fact been issued from Noida and not from Delhi. It is thus held that this court does not have the territorial jurisdiction to try and entertain the latter suit i.e. the suit no 233/03. The suit no 503/2000 however is within the territorial jurisdiction of this court as the relevant orders pertaining to extension of probation Ex PW 1/3 and order dated 21.12.2000 purporting to terminate his probation and reverting him to the post of Assistant Grade I (Depot) were issued from Delhi thus a part of the cause of action arose at Delhi. It is held thus that the suit no 503/2000 is not barred on account of territorial jurisdiction and the Delhi courts having the jurisdiction to try the suit no. 503/2000 but the latter suit i.e. suit no 233/03 is barred on account of territorial jurisdiction. Issue Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 28/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. is decided accordingly.
Issue No. 2 Whether the suit of the plaintiff is not maintainable and premature being not efficacious remedy? OPD
31. Again this issue pertains to the suit no 233/03, wherein the specific objection is taken by the defendants 1 & 2 in para 5 of the preliminary objections in their written statement that the plaintiff's suit is not maintainable and is premature as the plaintiff had an efficacious remedy of appeal under Regulation 68 of Food Corporation of India (Staff Regulations) 1971. No such plea has been taken in suit no 503/2000. Ld. Counsel for the defendant placed reliance on the Staff Regulations 1971, copy of which was filed on the record and pointed out rule 68 pertaining to orders against which appeals lie, which includes an order imposing any of the penalties specified in Regulation 54, whether made by the disciplinary authority or by an appellate or reviewing authority and the contemplated action of reversion in rank of the plaintiff is a major penalty as specified in Rule 54. Further reference was made by counsel for defendants to Rule 70 which provided for the period of limitation for appeal to be 45 days from the date on which a copy of the order appealed against was delivered to the appellant, though the proviso also provides that the appellate authority may entertain the appeal after expiry of the said period if it is satisfied that the appellant had sufficient cause for not performing the appeal in time. Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 29/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors.
32. Ld. Counsel for the plaintiff argued that the plaintiff had sought relief of urgent nature since imposition of penalty of reversion by the defendants was imminent. It was further argued by counsel for the plaintiff that the jurisdiction of the civil courts was not barred under the provisions of the FCI Act or the Staff Regulation rules and Ld. Counsel for the plaintiff referred to 2013(4) RAJ 70(DEL) titled Bata India Limited Vs A.M. Turaz & Ors. wherein it was observed in relation to the Cinematography Act 1952 that there was no provision in the said act which excluded the jurisdiction of the civil court to try & entertain a civil suit. It was held therein that it was a settled legal position that a provision of law ousting the jurisdiction of the civil court must be strictly construed and exclusion of the jurisdiction cannot easily be inferred unless such exclusion is either explicitly expressed or clearly implied.
33. The counsel for the plaintiff also placed reliance on the judgment delivered by the Hon'ble CAT, Jabalpur, in the case titled Union Of India Vs Jai Prakash ATR 1988(2) CAT 224 wherein the petitioner's claim for medical reimbursement had been rejected by the department and a civil suit was filed for recovery of the amount which was decreed, the appeal was transferred to the CAT. An argument had been raised in that case that a departmental appeal could have been preferred which was not done therefore the suit could not be filed. This argument was rejected and it was held that exhausting of Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 30/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. departmental or other remedy was necessary only in the case of writ petitions or applications filed under section 19 of the Administrative Tribunal Act 1985, but in case of civil suits there was no such restriction.
34. In the present case also no express or implied bar to the jurisdiction of the civil court in the FCI Act or Regulations was pointed out by the counsel for the defendants, the contention only being that there was a provision for appeal which had not been availed by the plaintiff and therefore the suit was premature. Once there is no express or implied bar to the jurisdiction of the civil court to entertain the suit for declaration of the impugned charge sheet being null and void then on the ground that the plaintiff had not preferred an appeal against the said order of the disciplinary authority it cannot be said that the suit is not maintainable due to the existence of the remedy of appeal, which was a remedy available in the alternative to the plaintiff. It is a different issue that the scope of interference by the courts is very limited in such cases as the present, but the fact remains that such suits are not barred merely for the reason that an appeal was not preferred under the rules to the Managing Director. This issue is thus decided against the defendants.
Issues No. 3, 4 and 5 (3) Whether the plaintiff is entitled for a decree of declaration as prayed in para (a) in suit no. 503/2000? OPP, (4) Whether the plaintiff is entitled for the decree of permanent injunction as prayed in para (b) in suit no. 503/2000? OPP and (5) Whether the plaintiff is entitled for the decree of mandatory injunction as prayed in para (c) in Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 31/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. suit no. 503/2000? OPP
35. These issues are taken up together being interconnected. The admitted facts are that the plaintiff was promoted to the post of Assistant Manager (Depot) vide officer order dated 30.12.1998 Ex. PW1/1 (also relied on by the defendants as Ex. A in the evidence of DW1) on probation for a period of one year and the plaintiff joined as Assistant Manager (Depot) on 31.12.1998 at FSD, Zira, Firozpur. The impugned order dated 29.12.1999 by virtue of which the period of probation was extended for another year w.e.f. 01.01.2000 is Ex. PW1/3 (also relied on by the defendants and exhibited as Ex. 'C' by DW1). The contents of this admitted document i.e. the office order Ex. PW1/3 are extremely relevant and the main body of the said order is reproduced hereunder " WHEREAS Shri Mela Ram Sethi (DOB 04.4.47) who joined as Asstt. Manager (Depot) on 31.12.98 (A/N) on promotion as placed under probation for a period of one year. He has not completed the probation period satisfactory.
NOW THEREFORE his probation period is hereby extended for a period of one year w.e.f. 01.01.2000 by the Competent Authority in terms of Regulation 15(2) of FCI (Staff) Regulations, 1971."
36. Ex. PW1/3 does not state the reason for extension of the probation period as being the pendency of vigilance cases against the plaintiff; the rather Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 32/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. cryptic reason given is simply that he had not completed the probation period satisfactorily. Of course, the Staff Regulations, 1971 provide in Regulation No. 15 (2) in regard to probation that the appointing authority may in his discretion extend the period of probation by a further period not exceeding one year, however this discretion cannot be exercised arbitrarily and capriciously by the defendant corporation. In Gul Raj Rajgumal Vs. Food Corporation of India III (1991) CSJ (HC) 139 it was observed by the Hon'ble Delhi High Court that the question is that normally when is the occasion to extend probation; possibly it may be that the appointing authority is not fully satisfied with the work and conduct of the officer during the initial probation period and it wants to give him further opportunity to show his worth. It was held that if that be so, it would be a prerequisite that at the time of probation there is some material before the appointing authority which enables it to exercise its discretion as to whether there should be extension of probation or confirmation or reversion.
37. The defendants in the present case have not even pleaded what was the material before the appointing authority, let alone prove the same, on the basis of which the impugned order Ex. PW1/3 was passed. In fact, while in Ex. PW1/3, it is only stated that the plaintiff's performance was not satisfactory, in the written statement the stand taken is not only that the performance was not satisfactory, but also that there were vigilance cases pending against the Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 33/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. plaintiff and the probation period was extended in view of the circular no. 20 of 1990 due to involvement of the plaintiff in the said vigilance cases. The defendants in the written statement have not bothered to plead and specify the reasons and the basis for finding the work of the plaintiff unsatisfactory let alone prove this allegation in evidence. Further, the plaintiff has exhibited a copy of an order dated 11.10.2002 Ex. PW1/16 vide which the reversion order of Sh. Desha Ram AM (D) reverted on account of pendency of disciplinary proceedings was withdrawn by the defendant corporation and a copy of an order dated 11.10.2002 vide which the reversion order passed against Sh. Shyam Lal AM(D), on account of pendency of disciplinary proceedings and department enquiry who the plaintiff deposed, was also working on the same terms and conditions as the plaintiff was withdrawn was exhibited as Ex. PW1/17. Further, a copy of order dated 28.07.1998 vide which in the case of Sh. C.B. Bhatnagar, his order of reversion was withdrawn by the defendant corporation was exhibited as Ex. PW1/18. Though the defendants objected to exhibition of these documents being photocopies, however these are documents naturally expected to be in the possession of the defendant and plaintiff has exhibited the notice to produce as Ex. PW1/21 as per which the production of the aforesaid orders was sought but the defendants apparently did not produce originals, further the plaintiff's counsel put these documents to Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 34/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. the defendants' witness DW2 in his cross examination dated 01.10.2013 who admitted that Ex. PW1/16, Ex. PW1/17 and Ex. PW1/18 had been issued by the department of the defendants though he deposed that he had no knowledge regarding withdrawal of reversion of the said persons namely Sh. Desa Ram, Shyam Lal and Sh. C.B. Bhatnagar. The said office orders Ex. PW1/16 to Ex. PW1/18 as such being admitted to be issued by the defendants, and no question or suggestion regarding their genuineness being raised by the defendants during cross examination of PW1, the contents of the said orders can safely be considered in evidence.
38. Vide all the aforesaid office orders i.e. Ex. PW1/16 to Ex. PW1/18 the reversion orders of the said employees namely Sh. Desa Ram, Sh. Shyam Lal and Sh. C.B. Bhatnagar which had been passed due to pendency of disciplinary proceedings had been withdrawn (without prejudice to the disciplinary proceedings in the cases of Sh. Desa Ram and Sh. Shyam Lal). In the case of Sh. C.B. Bhatnagar, it was noted that the only ground for reverting of the official was the pendency of vigilance cases and since no other material had been made available to the appellate authority to comment upon the performance of the officer, the order of reversion solely on the ground his suspected involvement in vigilance cases was not correct and in the case of Sh. C.B. Bhatanagar, the order of extension of probation period was also in issue, Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 35/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. and it was noted in the said order Ex PW1/18 that it was wrong to connect the case of confirmation with the pending vigilance cases especially when his th probation reports i.e. 2 of 3 were satisfactory & 4 was never written, therefore he should have been confirmed to the post. The defendant corporation has nowhere explained or sought to argue that the plaintiff's case stood on a different footing than that of Sh C.B. Singh. If that be the case then it would be a discriminatory act on the part of the defendant corporation to extend the period of probation of the plaintiff on account of pendency of vigilance inquiry while withdrawing such orders qua another employee on the ground that linking the pendency of vigilance inquiry with the case of confirmation was not correct. The guidelines, rules and policies are to apply uniformly to all the employees of a statutory corporation therefore if in the case of Sh CB Singh, the case of confirmation was not linked to the pendency of vigilance inquiry against the said official, then in the case of the plaintiff also it could not be so done, and would amount to discrimination against the plaintiff. This is especially so since the defendant corporation in its order extending the probation period of the plaintiff did not even care to mention the reason for extension of probation to be pendency of vigilance inquiries but only claimed the reason to be the probation not having been completed satisfactory.
39. Pertinently DW 1 was put the question in cross examination Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 36/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors.
"Q. Whether you are aware of instruction of CMD of FCI that pending vigilance cases should not come in the way of regularization of the employees? To which the response of the witness was as follows :
"This circular has a prospective effect and pertains probably to the year 2003 and the reversion of the plaintiff was done in 2000."
Apart from DW 1 merely being unsure of the answer she was giving, this testimony of DW1 is also beyond the pleadings, since the defendants have not taken this defence anywhere in the written statement the testimony of the defendant's witness on this score must be discarded. Thus the reason for extension of probation period being of vigilance inquiry is discarded as being an afterthought and discriminatory.
40. Coming to the other reason provided by the defendants for extending the probation being the probation not being completed satisfactorily, it is noteworthy that the defendants have not elaborated in their pleadings, regarding the reasons apart from the pendency of the vigilance cases, for the same not being completed satisfactorily, nor have the defendants deposed in evidence regarding the material on the basis of which they concluded that the plaintiff had not completed the probation period satisfactorily. Further, the plaintiff has taken a specific stand in the plaint that the order for extension of probation was passed in violation of the various specific circulars of the defendant corporation. Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 37/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. DW 1 was crossexamined by Ld. Counsel for plaintiff in this regard. DW 1 in her crossexamination deposed that the promotion from the post of AGI to the post of Assistant Manger was on the basis of seniority with bench mark 'good criteria' and plaintiff was promoted to the post of AM on the basis of the said criteria in 1998. A particular portion of the crossexamination of DW 1 which was highlighted during final arguments by Ld. Counsel for the plaintiff and is very relevant is reproduced hereunder:
"It is correct that the working of a probationer is supervised in the initial period of six months. It is correct that if the working of an employee is not satisfactory in the initial period of six months, his seat is changed and is placed under another officer. It is correct that if his work is not satisfactory for another three months his seat is again changed. Again said I cannot endorse this three months period without seeing the circular."
41. Thus, very vital admissions were elicited by the plaintiff during the deposition of the defendant's witness DW1. It has been admitted by DW1 that the seat of an employee is changed if his working is not found satisfactory but DW 1 in evidence admitted that the seat of the plaintiff was not changed. The act then of extending the period of plaintiff's probation without following its own circular by the defendant corporation was illegal and malafide. Also, the malafide in this act of extending the plaintiff's probation period is brought out in Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 38/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. the further testimony of DW 1 wherein through she denied the suggestion that show cause notice was given to the probationer however she deposed that only the remarks were communicated to him if his work was not found satisfactory for the first six months of the probation period and she admitted that the plaintiff was never informed about any short comings. DW 1 also affirmed in her cross examination that the extension of probation if any had to be intimated to the employee one month before the expiry of the probation period and admitted that the plaintiff was not intimated one month before the expiry of the probation period regarding extension of his probation period.
It is also pertinent to note that the plaintiff had referred to various circulars in the subparas of the paragraph 9 of his plaint, in relation to which the above mentioned questions were put to DW 1 and in the written statement, the defendants had not denied the existence of the circulars but had merely claimed that they were not applicable to the plaintiff. Neither in the pleadings nor through the evidence have the defendants been able to prove that the said circulars, which admittedly were not complied by the defendants in the plaintiff's case while extending his probation, were not applicable to the plaintiff. The defendants have neither pleaded nor proved that they communicated the remarks to the plaintiff regarding the work of the plaintiff not being satisfactory in the first six months and adverse inference must be drawn against the Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 39/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. defendants that in fact they did not communicate the remarks to the plaintiff, which is in contravention to their own admitted practice and had resulted in affording no chance to the plaintiff to improve his work/performance in the areas which were allegedly not satisfactory. Infact, DW 1 also admitted that there was no penalty/allegation against the plaintiff before his promotion.
42. Thus it is clear that the defendants without following the procedures as provided in their own circulars and regulations and apparently without any material on the basis of which to conclude about the work/performance of the plaintiff, arbitrarily extended the period of probation of the plaintiff. Such an arbitrary and illegal act on the part of the defendants has resulted in violation of the principles of natural justice and must be set aside by this court. Consequently the order dated 21.12.2000 imposing the major penalty of reduction in rank (it being a major penalty under the Staff Regulations, since the extension of probation has been held to be null and void, thus the plaintiff was not a probationer as on 21.12.2000) which was passed without the following the proper procedure contemplated under the regulations is also liable to be declared null & void. Accordingly the plaintiff is held entitled to the relief of declaration against the defendants in suit no 503/2000 as sought in the prayer clause(a) therein. The plaintiff is also held entitled to the relief of permanent injunction as sought in prayer clause(b) therein however only to the extent that Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 40/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. the defendants in suit no 503/2000 are restrained from reverting/reducing in rank the plaintiff from the post of Assistant Manager, Deport to the post of Assistant Grade I or to any other lower post under the garb of the impugned order dated 21.07.2000 and in contravention to the mandatory provisions of FCI staff regulations 1971 & circulars issued by the defendant corporation from time to time. The plaintiff is also granted mandatory injunction directing the defendant's and its officials not to revert/reduce the plaintiff from the post of Assistant Manager(Depot) to the post of Assistant Grade 1 or any other lower post in the lower time scale, in pursuance to the declaratory relief granted in suit no 503/2000. In so far as the relief of mandatory injunction concerning allowing the plaintiff to perform his regular his duties as Assistant Manager, is concerned this relief has admittedly become infructuous and Ld. Counsel for the plaintiff had not pressed this relief during the course of final arguments being infructuous as the plaintiff had already retired and Ex PW1/A is the order dated 08.12.2008 vide which plaintiff was deemed to have retired we.f. 30/14/07. Issues 3,4 & 5 are decided in favour the plaintiff accordingly as above. Issues No. 6 and 7 (6) Whether the plaintiff is entitled for the decree of declaration as prayed in para (a) in suit no. 233/2003? OPP and (7) Whether plaintiff is entitled for the decree perpetual injunction as prayed in para (b) in suit no. 233/2003? OPP
43. These issues pertain to the latter suit i.e. the suit no 233/03. Now, the Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 41/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. wellsettled law is that the civil court does not sit in appeal or reappreciate the findings of the inquiry officer, it is only in cases where there has been a gross violation of the principles of natural justice or bias that the civil court can step in. In the present case, the plaintiff has averred that the defendant corporation only to penalize the plaintiff and circumvent the judicial proceedings and the interim order passed in the prior suit no. 503/2000 maliciously charge sheeted the plaintiff. The plaintiff has not been able to substantiate this allegation through any cogent evidence, either by pleading about any specific incident of vitiation of the inquiry proceedings or of bias by the defendant no 3 inquiry officer or the defendant corporation. Admittedly the chargesheet Ex PW 1/9 was issued to the plaintiff and admittedly the plaintiff participated in the proceedings of inquiry and led evidence therein. Ex DW 2/2 comprises the record of the inquiry proceedings and the findings recorded by the inquiry officer defendant no 3. In Ex DW 2/2 it is clearly noted that evidence of behalf of Sh M.R.Sethi (the plaintiff herein) was conducted, who had apart from leading his evidence in defence also cross examined the prosecution witnesses Ex DW 2/2 further notes that the written briefs were filed on behalf of the prosecution and defence which were considered by the defendant no 3 herein alongwith the evidence. It is a relevant fact that the plaintiff's argument that he was not responsible if any stock become unmillable because it was affected by Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 42/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. incessant rains during September 1998 & October 1998 had been considered and the inquiry officer defendant no. 3 had rejected it on the ground that he was responsible for this lapse being supervisory officer and he was responsible to protect the paddy. Further, it was observed that it was the duty of the official to lodge a formal complaint under the rules but the official did not lodge it. Ex. DW 2/3 are the written arguments which were filed by the plaintiff before the inquiry officer which have apparently been considered by the inquiry officer in his report. The plaintiff has not specified the material particulars as to which specific mandatory provisions had not been followed by the defendant no. 3 when in fact the plaintiff was given a full opportunity to be heard.
44. The plaintiff in his crossexamination while admitting that he had replied to the charge sheet and led evidence there volunteered that the inquiry officer had already made up his mind to hold the plaintiff guilty. Further, in response to the question of the defendants as to whether the plaintiff had raised these objections earlier before any forum, the plaintiff answered that he had not raised these facts before any form except the court as nobody was there to listen to him.
45. PW 1 in his evidence also admitted that he was given a copy of the findings report and also admitted that thereafter the competent authority had taken action against him. PW 1 admitted that he was represented by a defence Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 43/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. counsel before the inquiry officer. DW 2 was the defendant's witness who was really not able to depose about the minute details of the case stating that he did not remember whether the plaintiff was posted as Assistant Manager (Depot) at Guru Harsahai Centre, Firozpur when the paddy was received however he did depose that the charge of the paddy was under the control of AM (Depot). DW 2 was also shown a booklet titled 'Functions of Depot Staff' which was admitted by him to be issued by the department of the defendant no 1 and was exhibited as Ex DW 2/P1. DW 2 was also asked to point out from the booklet Ex DW 2/P1 as to where it was mentioned that the duty of the AM(Depot) was supervision of stocks to which the witness responded that Ex DW 2/P1 were the general guidelines and wherever there was a shortage of staff during procurement season then the AM (Depot) had to perform both the duties, he pointed out to the provision no. 2.1.5 wherein one of the duties of the Assistant Manager (Depot) is mentioned as follows "2.1.5 To supervise, direct, guide and coordinate the work of operations, movement, and office staff in the depot."
46. It may be that the aforesaid provision does not explicitly mention the duty of the AM (Depot) being supervision of stocks however as prescribed in Rule 2.1.1 of Ex DW 2/P1 itself, the Assistant Manager (Depot) is the controlling authority of the depot administration and as the controlling authority he would Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 44/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. necessarily be the person responsible for the overall depot functioning including supervising the stocks and the quality control department. DW 2 in fact has while admitting in his evidence that the duty to check the quality of the stock was of the quality control depot however volunteered that AM (Depot) was the authority of the depot and in case the quality control depot was not doing it duties properly the AM (D) could direct it to perform its duties effectively. Again, while DW 2 admitted that it was the work of the quality control staff to check the stock both at the time of acceptance and despatch the witness volunteered that however AM (Depot) was the supervisory head.
47. DW2 admitted in evidence that after carrying out the inspection it was the AM(QC) who used to prepare and send the report and that at the time of acceptance of stock, the Depot staff could not be held responsible for the quality aspects of the stock but he denied the suggestion that the depot staff could not be held responsible for quality aspects of the stock during storage. As I have already observed earlier, the plaintiff as the AM (D) was the controlling authority of the depot at the relevant time and would have the necessary duty of being the overall supervisor. In fact, the inquiry officer in his report held that plaintiff being supervisory officer was responsible to protect the paddy. The plaintiff also stated that for the period to which the charges pertained the plaintiff was not working at Guru Harsahai Centre. The official Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 45/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. records speak for themselves. The period to which the charge sheet pertains is crop year 199899. Now judicial notice can be taken of the fact that in India, crop year is from July to June. Thus the specific period to which the charge sheet pertains is July 1998 - June 1999.
48. In the inquiry report Ex. DW2/2, it has been observed by defendant no. 3 that the plaintiff has joined FSD Harsahai on 24.02.1999 and took over charge on 03.03.1999 and worked at the centre up to 25.09.1999. The argument that he could not be held responsible for the paddy being rendered unmillable as the stock was received prior to his tenure and during his tenure he had made maximum efforts for preserving the stock have been considered and rejected by the defendant no. 3 with reasons in the inquiry report in paras 20 and 21 of the report and in para 23, the defendant no. 3 inquiry officer held that the log books showing covering and uncovering could not give any benefit to the official (referring to the plaintiff) since they were not properly maintained. This observation was made by the Inquiry Officer after considering the evidence, therefore the mere fact that DW2 was not able to produce the log books pertaining to covering/uncovering for the relevant period in the present case really is of no consequence. Further, reappreciation of the evidence led before the inquiry officer by the Civil Court is not permissible.
49. In Ex. DW2/4A, the defendant no. 2 held that though the prosecution Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 46/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. had not been able to clearly pinpoint the negligence of the plaintiff in the matter of preservation of the stocks yet DCC in a separate investigation for identifying the negligence had found him responsible for lack of proper protection of the stocks which added to further deterioration of the stock, and this part of the charge had not been refuted by him during the entire course of inquiry proceedings. Penalty of reversion from the post of AM(D) to AGI (D) for a period of one year was thereafter passed. No malafides or non adherence to the principles of natural justice are borne out from the record of the proceedings before the inquiry officer defendant no. 3 and his findings and the consequent order by defendant no. 2. The plaintiff admittedly did not prefer an appeal against this order under Rule 68 of the Staff Regulations and while nonfiling of appeal under the Rules does not make the present case not maintainable however at the cost of repitition it must be stressed that the scope of interference by the civil court in such cases is extremely limited. The Civil Court cannot assume the role of an Appellate Authority sitting in appeal over the findings of the inquiry officer/disciplinary authority. No ground for judicial review of the findings either of the inquiry officer who gave a fair opportunity of defence to the plaintiff and gave his findings as per the material on record and the consequent order of the defendant no. 2 is made out as plaintiff has failed to prove that the same were biased or there was violation of Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 47/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. the principles of natural justice so as to render the proceedings a nullity. Ex. DW2P2 order dated 07.05.2008 of the Managing Director of the defendant corporation does not aid the plaintiff's case since it pertains to a separate incident i.e. incident for the period 19992001 when plaintiff was working at Ferozepur unit and not to the incident in dispute. The plaintiff has failed to establish that the action taken was out of vengeance or to the circumvent the judicial orders in suit no. 503/00 which is entirely separate from the issuance of charge sheet against the plaintiff, the inquiry proceedings and the order passed by the defendant no. 2 thereafter challenged in the present case. Further, it is not the case that only the plaintiff had been singled out and imposed major penalty, the defendants no. 1 and 2 in their written statement in para 17 stated specifically that penalties had been imposed upon five other officials involved in the case i.e. reversion to lower post for a period of two years and the sixth official Sh. Mahavir Parshad TAIII was imposed with the penalty of reduction to the minimum scale applicable to the post for a period of two years. In the replication to the same in para 17, the plaintiff only gave a general denial and submitted that penalty imposed against the technical staff (QC) had no relevancy with the alleged contemplated penalty against the plaintiff. Thus, impliedly the plaintiff admitted the fact that others charged, albeit belonging the Quality Control Department had also been awarded major Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 48/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. penalties for the incident.
50. The plaintiff has failed to prove that impugned chargesheet dated 07.12.2000 and the impugned finding dated 26.02.2002 given by defendant no. 3 are illegal, arbitrary or not sustainable in law.
51. The plaintiff is thus not entitled to the relief of declaration as sought in suit no. 233/2002. The relief of permanent injunction as sought in prayer clause (b) being a relief consequential to the relief of declaration is also declined.
Issues No. 8 Relief
52. Consequent to my findings on issues particularly issues no. 3, 4 and 5 above, the suit no. 503/2000 of the plaintiff stands decreed as follows; the plaintiff is held entitled to a declaration that the plaintiff became a regular/permanent Assistant Manager (D) w.e.f. 31.12.1999 and is entitled to placement of his seniority in the said cadre for future promotions to the post of Deputy Manager and the impugned order bearing no. PF/M207/EI/NZ dated 29.12.1999 issued by the defendants for extension of probation period after 31.12.1999 is illegal, arbitrary, unjustified and unsustainable in law being in contravention of the FCI Staff Regulations 1971 and the circulars issued from time to time by the defendant corporation and not binding on the plaintiff. The plaintiff is further entitled to the relief that order dated 21.12.2000 is illegal, Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 49/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. arbitrary and unjustified and the plaintiff is entitled to continue to hold the post of Assistant Manager (D) which post the plaintiff is holding on permanent basis from the date of his appointment 31.12.1998. The plaintiff is further held entitled to the decree of permanent injunction however only to the extent of restraining the defendants, their agents, officials, employees from reverting/reducing in rank the plaintiff from the post of Assistant Manager (D) to the post of Assistant Grade I or any other lower post under the garb of impugned order dated 21.12.2000 and in contravention to the mandatory provisions of the FCI Staff Regulations 1971 and circulars issued from time to time by the defendant corporation. The plaintiff is further entitled to the relief of mandatory injunction directing the defendant and its officials not to revert/reduce in rank the plaintiff from the post of Assistant Manager (D) to the post of Assistant Grade I or any other lower post; in so far as the relief of mandatory injunction concerning allowing the plaintiff to perform his regular duties is concerned, this relief has admittedly become infructuous and is dismissed as not pressed being infructuous. The suit no. 503/2000 accordingly stands decreed in favour of the plaintiff and against the defendants in the said suit in the aforesaid terms. The suit no. 233/2003 however is dismissed and plaintiff is held not entitled to the reliefs sought against the defendants in the said suit particularly in view of the discussion on issues 1, 6 and 7 above. Of Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 50/51 Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. course, the reliefs granted to the plaintiff in suit no. 503/2000 have to be read in conjunction with and subject to, the findings in case of suit no. 233/03. Parties to bear their own costs in both suits i.e. suit no. 503/2000 and 233/2003. Copy of the judgment be placed in both the files.
Common decree sheet be accordingly prepared.
Thereafter both the files be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 29.04.2014 Civil Judge - 10 (Central)
29.04.2014
Suit No.503/00 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors. 51/51
Suit No. 233/03 Sh. Mela Ram Sethi Vs. Food Corporation of India & Ors.