CWP No.3062 of 1988 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No.3062 of 1988 Date of decision November 23, 2011 V. K. Soni, 4 Rani Ka Bagh, Neqar State Bank, Amritsar ....... Petitioner Versus The Food Corporation of India through its Managing Director, Bara Khamba Lane, near Cannaught Circus, New Delhi. ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. D. S. Nalwa, Advocate for the petitioner. None for the respondents. **** 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No K. Kannan, J (oral). 1. The petitioner challenges the order of removal passed by the authorities constituted under the Food Corporation of India for proof of alleged charges issued against the petitioner. The petitioner challenges the validity of the order essentially on two grounds: i) the enquiry officer's report is vitiated by the fact that for proof of the alleged charge the enquiry officer relied on the so called persistent conduct of the past as regards the very same charges attributed to the petitioner; ii) the disciplinary authority that passed the order of removal had not the competency to pass such an order. 2. The charges against the petitioner were that he was unauthorizedly on leave from 18.4.1981 to 21.2.1984 and that he had forged the signatures of the Assistant Manager, Administration as though he had made a recommendation for his representation for a transfer. The CWP No.3062 of 1988 2 enquiry officer, while dealing with these charges observed that the petitioner was persistently absent even in the past and that he was also known to be involved in forging signatures on several earlier occasions as well. Learned counsel would argue that the findings were clearly perverse for he had allowed the so called past conduct of the petitioner to colour his thinking and his inference for the proof of charges. If ever past conduct of such persistent behaviour of absence or fabrication of documents were however put to the petitioner to make possible for a refutal or tender appropriate evidence in support of his own conduct, learned counsel would refer me to regulation 58 clause 23(i) which sets out the manner of proceedings after the conclusion of the enquiry which should contain the following:- 23(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain: a) the articles of charge and the statement of the imputations of misconduct or misbehaviour: b) the defence of the employee in respect of each article of charge; c) an assessment of the evidence in respect of each articles of charge; d) the findings on each articles of charge and the reasons therefor. Explanation: If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.” The explanation is to the effect that findings on the articles of charges shall CWP No.3062 of 1988 3 not be recorded unless the employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself on the particular charges attributed to him. 3. According to the learned counsel that the alleged past conduct of persistent absence without authorization or the alleged forgeries in the past as making possible an inference that the particular charges attributed to him also ought to have been true, then such a conclusion was clearly vitiated. I would uphold the contention and find that while a past conduct could be relevant in situations where even apart from a charge, the issue is of one appropriate punishment. The past conduct could be used by an authority provided the same is put to the employee before the decision is taken. Past conduct could either come for reduction or could be an aggravating factor for the ultimate punishment to be given. It would come for a reduction of punishment if the reference is to the said past good conduct. On the other hand, if a past conduct were to precipitate in the maximum punishment as an aggravating factor then it shall be necessary for the authority to give notice of the reliance on the materials for taking a decision for the punishment. In either case the past conduct will be relevant only for the issue of punishment and cannot support an inference of the proof of charges themselves. That will be a dangerous approach for an enquiry officer to take. It will amount to excising all objectivity involved in a case and would give rise to a predisposition of the enquiry officer of what a delinquent could have done in his perspective. It will defeat the purpose of the enquiry itself for an enquiry officer need not give even a show cause notice but may simply draw inference from the past conduct that the particular conduct attributed in the charge must be taken as established. I therefore find that the enquiry was vitiated and it cannot be supported. 4. The second objection which the petitioner's CWP No.3062 of 1988 4 counsel submits is that the authority did not have the power to pass such an order. It is not expressly taken in the writ petition. Such a power exists with the Senior Regional Manager as per clause 11 in the conduct Rules but it stipulates that Board resolution is necessary. There is no specific contention that such a resolution had not been passed. I would therefore not countenance such a contention. The impugned order would require to be set aside on the first objection itself. For the reasons cited above, the writ petition is consequently allowed. 5. The charge against the petitioner was rather serious that even apart from absence from duty he was said to have forged a document. The event related to the period 1984 and the enquiry officer was supposed to have conducted the enquiry in the year 1985. Much of evidence could have been lost or the feasibility of allowing for the continuance of the enquiry and retaining the petitioner in duty could not be a matter of course. The counsel for the petitioner states that he would have been superannuated if he had been in service. The petitioner cannot therefore claim the benefit of reinstatement. However, the petitioner shall be treated as having continued in his employment and notional salary may be calculated insofar as they are relevant for terminal benefits. The terminal benefits that have accrued, if he had been in service would be calculated and the amount shall be paid within twelve weeks with interest at 6% from the date when he would have retired if he had continued in service. 6. The writ petition is disposed of accordingly. (K. KANNAN) JUDGE November 23 , 2011 archana CWP No.3062 of 1988 5