^'^.^ ^" ':< HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. N0. 321 OF 2001 WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA PETITIONER : RBSPONDENTS Ratneshwar Banerjee aged 50 years son of late Shri M.N.Banerjee, occupation-F.C.I. Employee (suspended), R/o C/7 Sector II, Awanti Vihar, Opposite - Dr.Saxena, Ravigram Raipur, Tahsil and District Raipur (Chhattisgarh) VERSUS 1. Food Corporation of India, Through : Its Chairman, Head Office - Bara Khamba Lane, Khadya Sadan, New Delhi. 2. Senior Regional Manager, Food Corporation of India, Regional Office ~ at Chetak Building, M.P. Nagar, Bhopal (MP). 3. District Manager, Food Corporation of India, Madina Manzil, Kucheri Chowk, Jail Road, Raipur, Tahsil and Distt. Raipur (CG) Present: Petitioner in person. Mr. B.P. Gupta, counsel for the respondents. ORDER (Passed on^April 2008) Dhirendra Mishra, J The petitioner was working as AG-I (PP) in the office of District Manager, F.C.I., Raipur (CG). He was served with a charge-sheet dated 29.6.2000 (Annexure P/l) by respondent No.2 for accepting levy rice exceeding rejection limit. Another charge-sheet dated 17.10.2000 (Annexure P/41) was issued to the petitioner for various irregularities committed by him in accepting levy rice from the rice millers and third charge-sheet dated 1.12.2000 (Annexure P/46) was issued on the allegations that he allowed false payments to the rice millers against the rice stocks, which were not purchased at all and he prepared documents in connivance with the rice millers; he lodged complaint directly to the police authorities without informing his controlling officer with a purpose of concealing the facts of false payments to mislead the higher authorities and purchased a car without disclosing the financial source properly for taxi purposes in his own name. The petitioner was also put under suspension vide order dated 28.7.2000 and by the said order his Headquarters was fixed at Vidisha and he was directed not to leave Headquarters without prior permission of respondent No. 2. 2, Initially, the petitioner filed this writ petition for quashing of the charge-sheet of Annexure P/l and also the order of Annexure P/15 dated 16.12.2000 whereby the respondent No. 2 after considering reply of the petitioner to the charge-sheet of Annexure P/l, to be unsatisfactory, held that he is responsible for purchase of BRL Lots as well as Lot No.16 and imposed penalty of withholding two increments without cumulative effect for the year 1.1.2001 and 1.1.2002 and recovery of Rs.7373.14 in 20 installments from the salary. The petitioner has also prayed for quashing of charge-sheets dated 17.10.2000 of Annexure P/41 and 1.12.2000 of Annexure P/46 as the same have been issued malafidely and illegally as well as quashing of suspension order dated 28.7.2000 (Annexure P/36). ^ ~-(.~ '"7 3. Vide IA No.409/01 dated 6.3.2001, the petitioner proposed amendment in the writ petition and also filed documents from Annexures P/71 to P/93 along with the amendment application. In the meanwhile, the respondents conducted departmental enquiry for the charge-sheet dated 1.12.2000 and the petitioner was dismissed vide order dated 29.3.2001. The petitioner moved IA No.629/01, for amendment in the writ petition annexing the documents from Annexures P/94 to P/108 along with the amendment application. IA No. 629/01 was allowed on 17.4.2001 and the petitioner was allowed two days? time to incorporate the amendment. The petition was admitted on 26.4.2001 and notices were directed to be issued to the respondents. 4. The petitioner has challenged the disciplinary proceedings against him on the following grounds:- (i) that he was not paid one month U/D salary and subsistence allowance at Vidisha where he joined on 17.11.2000 after suspension; he returned Raipur as he could not stay at Vidisha due to paucity of fund; his representations for subsistence allowance and other dues were not considered and therefore, he could not participate in the departmental enquiry; (h) the explanations submitted by the petitioner in reply to the charge-sheet were also not considered; (iii) that the charges were vague, not specific and general in nature and while issuing the charge-sheet the facts and circumstances existing then, were not considered; (iv) that the petitioner had addressed various complaints of corruption against the respondents No. 2 & 3 to the Chairman- cum-Managing Director and therefore, the respondent No.2 issued charge- sheets malafidely against him; (v) that, apart from issuing the charge- sheets, First Information Report was also lodged against the petitioner and others by the respondent No. 3. The petitioner has categorically alleged bias, malafide and revengeful action on affidavit and the respondents have not cared to rebut the allegations made in the affidavit despite directions by the High Court in this regard; (vi) that while issuing the charge-sheet of Annexure P/l, the petitioner was not supplied with the list of documents, list of witnesses, by whom the articles of charges were proposed to be sustained, in violation of regulation 58(3) of the Food Corporation of India (Staff) Regulations, 1971 (for brevity 'the Regulations, 1971?); (vii) no enquiry officer was appointed for conducting enquiry for charges of Annexure P/l; suspension of the petitioner by respondent No. 1 is illegal and without jurisdiction, the enquiry officer was appointed on the date when the charge- sheet was served to the petitioner, without even waiting for reply of the petitioner to the charge-sheet of Annexure P/41; and that the enquiry for charge-sheet dated 1.12.2000 has been _ .-/ ^^ initiated malafidely for satisfying the personal grudge against the petitioner. 5. Reliance is placed on the judgments in the matters of State of Puntab Vs. V.K. Khanna and others1, Khardah Co. Ltd. Vs Their Worfcmen2, and Transfjart Commissioner, Madras-5_ Vs. A. Radha Krishna Moorthitf3. 6. On the other hand, the respondents in their return have taken a preliminary objection to maintainability of the petitioner on the grounds, (i) that this petition is directed against the charge-sheet dated 29.6.2000 (Annexure P/l) and order dated 16.12.2000 of imposing penalty (Annexure P/15), charge-sheet dated 17.10.2000 (Annexure P/41) and charge-sheet dated 1.12.2000 (Annexure P/46) and thus, this petition is against the different causes of action and hence, liable for dismissal for misjoinder of different causes of action. The order of dismissal dated 29.3.2001 (Annexure P/94) was passed in reference to charge-sheet of Annexure P/46 dated 1.12.2000, it has no connection with the charge-sheets of Annexures P/1 Ss P/41 and therefore, challenge to the said charge-sheets cannot be clubbed with the dismissal order. The minor penalty has already been imposed vide order dated 16.12.2000 for charge-sheet of Annexure P/1 and thus, from perusal of the above facts, the present petition suffers from misjoinder of different causes of action and the same is liable for dismissal on this ground alone. 7. The petitioner was suspended on 28.7.2000 and his Headquarters was fixed at Vidisha under the territorial jurisdiction of Sagar (Madhya Pradesh). Thus, cause of !AIR 2001 SC 343 2 AIR 1964 SC 719 3 1995(1) SCC 332 ...^StS.-^- action, if any, arose to the petitioner, is within the territorial jurisdiction of Madhya Pradesh and no cause of action accrued to the petitioner within the jurisdiction of this Court. 8. Charge-sheet dated 1.12.2000 (Annexure P/46) is annexed with detailed imputation of charges, list of documents and list of witnesses. The charges were specific and clear, the petitioner did not move any application after receipt of the charge-sheet for supply of documents; he filed detailed reply to the charge-sheet vide Annexure P/47 on 3.1.2001. Since the reply was filed beyond the period of 10 days, the competent authority appointed enquiry officer. After filing reply to the charge-sheet, the petitioner did not participate in the enquiry proceedings, though he was informed by the enquiry officer vide notice dated 27.2.2001 (Annexure P/4) that the enquiry is to be held from 7th March 2001 to 9th March 2001 and notice was received by the petitioner on 1st March 2001. He addressed a letter of Annexure P/5, the contents of which renect the conduct of the petitioner. After the statements of witnesses of management were recorded, the petitioner was afforded an opportunity of submitting his written brief. Since the petitioner refused to acknowledge the letter dated 12.3.2001 of the presenting officer, the enquiry officer submitted his enquiry report on 18.3.2001 vide Annexure P/99. The enquiry report was again sent by the competent authority to the petitioner calling upon his comments/objections either against the procedure of enquiry or against the findings of the enquiry officer. However, the petitioner refused to accept the enquiry report and did not submit any representation/reply. After enquiry, it is established that the petitioner submitted false analysis report by fabricating the supporting documents, such as acceptance of levy rice $.s ' 1 to the tune of 280 bags, though the material was never received and the F.C.I. had to pay price of Rs.2,37,000/, he purchased a car valuing Rs.2,96,620/-without approval of the competent authority; no enquiry has been conducted for charge-sheet of Annexure P/41 as the petitioner was already dismissed in pursuance of charge-sheet of Annexure P/46/71. 9. So far as entitlement of the petitioner to get subsistence allowance is concerned, Headquarters of the petitioner was fixed at Vidisha after suspension, subsistence allowance was duly prepared by District Manager, Sagar and sent to Vidisha through demand drafts, however, the same was returned from Vidisha vide Annexure R/11. The allegations of malafide against the disciplinary authority and the enquiry officer, have been denied. It has been specifically stated by way of additional submission that the petitioner was served with the charge-sheet under regulation 60 of the Regulations, 1971 vide Memo dated 29.6.2000 for accepting the rice stock beyond specific limit while working as AG-I(PP) at Dhamtari in the year 1999-2000. The disciplinary authority after considering the facts of the case, relevant records and reply of the petitioner, held the charges proved and imposed penalty of withholding of two increments without cumulative effect. The second charge-sheet pertained to charge memorandum of Annexure P/41. However, the enquiry remained inconclusive due to dismissal of the petitioner in another case on the basis of charge-sheet dated 1.12.2000 (Annexure P/71) under regulation 55 of the Regulations, 1971 for false payments to rice millers in respect of rice stocks, which were not purchased at all. 10. The respondents have also averred that the petitioner had filed writ petition no. 5050/00 in the High Court of MP challenging the order of suspension of Annexure P/36 dated 28.7.2000. However, the said petition was dismissed with an observation that the Headquarters at Vidisha, is at a distance of 50 km from Bhopal, the venue of enquiry, therefore, there appears no ground which calls for interference and the regulation provides for appeal against the order of suspension and the petitioner has not exhausted that remedy. The M.C.C.No. 927/00 for review of the order dated 4.9.2000 passed in W.P.No.5050/00 was also dismissed on 18.10.2000. The petitioner had also filed a public interest petition bearing W.P.No.348/97 seeking direction of CBI enquiry against the officers of the respondents. 11. Learned counsel for the respondents submitted that the petitioner by order of Annexure P/36 was suspended and his Headquarters was fixed at Vidisha and the aforesaid order clearly mentions that he shall be entitled for subsistence allowance, which he shall be getting from District Manager, Sagar. However, the petitioner left his Headquarters without information/permission and did not receive the subsistence allowance, which was duly prepared for payment. He also did not participate in the enquiry proceedings, which were ultimately conducted in his absence for the charge-sheet dated 1.12.2000. The petitioner has made bald ,allegations against the disciplinary authorities/ enquiry officer. He has also imputed them with malafides. However, they have not been arrayed as respondents in this petition and therefore, the ground of malafide is not available to the petitioner. The enquiry was conducted under regulation 58 after issuing charge-sheets in accordance with law; the enquiry officer vide his enquiry report (Annexure P/99) dated 18.3.2001 after considering the S:.n- documentary and oral evidence produced by the prosecution, has held the charges leveled against the petitioner, vide Articles I, II, III, IV 65 V mentioned in the charge-sheet, as proved. The disciplinary authority after extending an opportunity to the petitioner of making representation against the finding of the enquiry officer, considering the fact that the petitioner did not submit any written representation against the enquiry report and also considering the enquiry report and other relevant papers connected therewith, agreeing with the finding of the enquiry report, imposed a penalty of dismissal from services of the Corporation on the petitioner. The punishment imposed upon the petitioner is commensurate to the gravity of the charges, which have been held proved against the petitioner. The departmental enquiry has been conducted strictly in accordance with law, the petitioner was afforded sufficient opportunity of hearing, however, he did not avail the opportunity and therefore, ex-parte evidence was recorded during enquiry. 12. Reliance is placed on the order dated 6th February 2006 passed by this Court in W.P.No. 2607/1990 in the matter of R.M. Dewanaan VsJPood Corporation of Indiaand others. 13. I have heard both the parties and have perused the material available on record. 14. As already mentioned hereinabove, the first charge- sheet of Annexure P/ 1 was issued to the petitioner for accepting the levy rice exceeding the rejection limit, resulting in pecuniary loss to the Corporation. The petitioner submitted his reply vide Annexure P/9. The disciplinary authority vide its order dated 16.12.2000 after considering reply of the petitioner, held that the 10 explanation is not found satisfactory and imposed a penalty of withholding two increments without cumulative effect and recovery of Rs.7373/-. The petitioner was suspended vide order dated 28.7.2000 and his Headquarters was fixed at Vidisha under the District Manager, Sagar and he was directed not to leave the suspension headquarters without prior permission of the disciplinary authority. It was also mentioned in the above order that the petitioner shall be paid subsistence allowance as per rules. The petitioner filed a writ petition No. 5050/00, before the High Court of MP, which was dismissed on 4.9.2000 with an observation that the venue of enquiry is Bhopal and the Headquarters of the petitioner has been fixed at Vidisha, which is at a distance of 50 km, though liberty was reserved to the petitioner to pursue the remedy available under the regulations against the order of suspension. His review petition against the above order was also dismissed. Thereafter, the petitioner preferred an appeal (Annexure P/37) against the order of suspension under Section 68 of the Regulations, 1971 and the same was also dismissed by the appellate authority vide order of Annexure P/38. 15. The second charge-sheet dated 17.10.2000 was issued to the petitioner vide Annexure P/41. However, the enquiry is yet to commence in pursuance of this charge-sheet. 16. The charge-sheet dated 1.12.2000 (Annexure P/46) under regulation 58 of the Regulations, 1971 was issued to the petitioner along with the statement of article of charges, statement of imputation of misconduct and/or misbehaviour in support of article of charges with list of documents by which the article of charges framed against the petitioner, were proposed to be sustain^d, irc& 11 €-S and the list of witnesses proposed to be examined during enquiry, was served upon the petitioner. He was called upon to submit his reply within 10 days of the receipt of the memorandum along with written submission of his defence and whether he desires to be heard in person. The petitioner submitted a detailed reply to the above charge-sheet vide Annexure P/47 dated 3rd January 2001 and denied the charges mentioned in Article-I regarding allowing false payments to the rice milers towards the stocks, which were never purchased and preparation of forged documents in connivance with the rice millers and imputed malafides on the competent authority. In respect of reply to Article-II of the charges wherein he was charged with lodging complaint directly to the police authorities without informing his controlling officer, he made counter charge against the disciplinary authority, who did not take any action for the irregularity and imputed various serious allegations against the disciplinary authority. However, he admitted that he did not give prior intimation regarding purchase of car and explained the source of money, through which the car was purchased. In reply to Article-IV of the charges regarding absence from Headquarters Vidisha during suspension period, he submitted that he was not paid subsistence allowance during suspension period and therefore, he could not stay in the Headquarters due to financial hardship and returned to Raipur. In reply to Article-V that he gave statement before the media without prior permission of the competent authority and thereby tarnished the image of FCI, he did not specifically deny the above charge and made allegations against two Assistant Managers (Procurement) that he has recorded their confession of misappropriating rice, 12 17. From the documents filed by the petitioner himself, it transpires that the petitioner was directed by the disciplinary authority as also the enquiry officer to join his suspension Headquarters at Vidisha or appear before the Chief Medical Officer, Raipur with medical certificate, he was also directed to get subsistence allowance from the District Manager, Sagar after submission of necessary certificates; the enquiry officer and the presenting officer were appointed for conducting enquiry against the petitioner on 2.1.2001 vide orders of Annexure P/79 85 P/80 and the petitioner was served with the notice informing that the date of enquiry is 18th January 2001 and regular hearing in the enquiry would commence from 23rd January 2001. The enquiry was held on 23"-d, 24th and 25th January 2001. However, the petitioner remained absent. Finally, the petitioner was directed to remain present for regular hearing of the enquiry to be held on 7th, 8th and 9th March 2001 vide order dated 27^ February 2001 (Annexure R/4). However, the petitioner vide his reply dated 9.3.2001 (Annexure R/5) categorically declared that he shall not hereinafter accept any communication and not attend any enquiry unless they send his money and dues. He also used abusive and defamatory language against the disciplinary authority and other senior officers of the Corporation posted at Mumbai, Bhopal, Sagar and Raipur. In the aforesaid circumstances, ex-parte enquiry was conducted against the petitioner by the enquiry officer, who submitted his report of Annexure P/99. During enquiry all the documents cited in Annexure R/3 to the charge-sheet were duly exhibited; the presenting officer produced 10 prosecution witnesses, who exhibited the documents filed by the prosecution and the enquiry officer referring to the statements of the witnesses examined by the prosecution, held that the 13 ^^- analysis report was given under the handwriting and signature of the petitioner. After evaluating the evidence adduced by the prosecution, in detail, with reasoning it has been held that the consignment for which the analysis report was prepared, was not received in the depot and this document is a forged and fabricated and thus, Article-I of the charges is proved. Similarly, the investigating officer after due analysis of the evidence of PW-2, PW-6, PW-8 and relevant documents, held that the petitioner lodged complaint on 17.7.2000 directly to the police authorities without informing his controlling officer in order to conceal the facts of false payments and thereby, misled the higher authorities, violating the conduct rules. The Article-III of the charges regarding purchase of car by the petitioner without intimation and sanction, was also held to be proved relying upon the documentary evidence of Ex.P/16, P/17, P/18 & P/19 and the evidence of PW-5, PW-6 and it has been concluded that the petitioner failed to disclose the financial source properly and he purchased the car without prior sanction of the competent authority. Article-IV regarding not joining his suspension Headquarters from the date of suspension and leaving the Headquarters afterjoining on 17.11.2000, for one day, without seeking prior permission of the controlling officer, has also been held to be proved. Likewise, Article-V of the charges regarding making statement before the Press, T.V. without permission of the competent authority has also been held to be proved. 18. The petitioner has vehemently argued that the successive charge-sheets were issued to him by the disciplinary authority as he had lodged several complaints of corruption against him. The disciplinary authority as also the enquiry officer have acted^ 14 malafidely, his request for transferring the enquiry to some other State and for changing the enquiry officer, was not considered, though the same were based on documentary evidence as the petitioner had lodged several written complaints against them in the past before the superior authorities. After the petitioner was put under suspension, his Headquarters was fixed at Vidisha, which is a distant place as the petitioner was residing at Raipur at the relevant time; he was not paid subsistence allowance and salary due to him and because of financial crunch, he could not stay at his suspension Headquarters. Though the disciplinary authority directed him to remain at the Headquarters during suspension and should not leave the Headquarters without prior permission of the disciplinary authority, however, during suspension the petitioner could not be directed to remain in the Headquarters and all these acts of the respondents go to show that the disciplinary authority and the enquiry officer were actuated with malice. 19. In the matter of V.K. Khanna1 the charge-sheet was issued against the petitioner, who was the then Chief Secretary of the State of Punjab imniediately after change in government after election for malafidely issuing two notifications for empowering the CBI to enquire into the matters in gross violation of the established norms and procedure, particularly when the elections were on. Shri V.K. Khanna challenged the charge-sheet before the Central Administrative Tribunal, however, the Tribunal dismissed his petition with an observation that he shall have full opportunity to reply to the charge-sheet and all the points available to him, may be agitated before the enquiry officer. Shri Khanna took the matter to the High Court where his petition was allowed. The Special Leave Petition was filed by the 15 :,% State of Punjab against the order of the High Court and the Hon'ble Supreme Court while dismissing the appeal of the State has observed thus:' "33. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings. 34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an enquiry officer to substantiate the frame of mind of the authorities and thus depicting bias what bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply — is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the