IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.20896 of 2003 R.Balakrishnan .. Petitioner Vs. 1. Food Corporation of India rep. by its Managing Director Head Quarters, New Delhi 16-20, Barakhamba Lane New Delhi – 110 001. 2. Central Vigilance Commission rep. by its Director Satarkta Bhavan, GPO Complex Block 'A', INA New Delhi. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records in connection with the office memorandum of the second respondent bearing No.002/FDC/006, dated 14.7.2003 addressed to the first respondent and the consequent proceeding of the first respondent dated 17.7.2003 bearing No.Vig.21(157)/2002-SZ and the consequential dismissal order of the first respondent dated 24.7.2003 bearing Vig.21(157)/2002-SZ communicated to the petitioner on 25.7.2003 and quash the same. For Petitioner : V.Prakash, Sr.Counsel for Mr.K.Ramkumar For Respondents : Mr.R.Muthukumarasamy Senior Counsel for Mr.A.S.Thambusamy for 1st respondent ORDER This writ petition is directed against the proceedings of the second respondent dated 14.7.2003 addressed to the first respondent, the consequential proceedings of the first respondent dated 17.7.2003 and the subsequent order passed by the first respondent dated 24.7.2003, dismissing the petitioner from the services of the first respondent/Food Corporation of India. https://hcservices.ecourts.gov.in/hcservices/ 2.1. The writ petitioner has joined in the services of the first respondent/Corporation as Technical Assistant (Analyser) on 30.9.1965 and was promoted as Assistant Manager (Quality Control) in the year 1977. On his application, the petitioner was directly recruited as Deputy Manager (Administration) in the year 1986 and was promoted as Joint Manager in the year 1993 and in the year 2001, he was promoted as Manager, which post is equivalent to the post of Deputy Zonal Manager, governing the southern States, having office at Chennai. 2.2. The petitioner was issued a charge memo dated 28.2.2003, which was subsequently amended on 28.4.2003. The charges relate to the purchase of Aluminium Phosphide and as to whether the purchase was under the running rate contract and also about the calling for fresh tender, apart from the method of ascertaining the quality of purchased items. The petitioner has submitted his explanation on 17.4.2003 denying the charges. Six articles of charges were framed and the Enquiry Officer, in the enquiry conducted, in which the management has examined only one witness even though five witnesses were cited, has concluded that charges under articles 1, 3 and 5 are not proved and charges under articles 2, 4 and 6 are proved. 2.3. It is stated that after the report of the Enquiry Officer was received, the first respondent has sent a communication to the second respondent on 9.7.2003 seeking its approval to dismiss the petitioner and it is stated that the second respondent has granted such approval on 14.7.2003, without giving opportunity to the petitioner. On 17.7.2003, the first respondent has issued a second show cause notice along with the report of the Enquiry Officer seeking comments of the petitioner for disagreeing with the report of the Enquiry Officer in respect of the charges concluded as not proved, by also enclosing the impugned communication of the second respondent dated 14.7.2003, however without supplying the letter of the first respondent dated 9.7.2003 addressed to the second respondent seeking approval of the proposed action of dismissal. It is stated that even the impugned communication of the second respondent dated 14.7.2003 was given in the form of a xerox copy. 2.4. It is stated that the petitioner has ultimately submitted his explanation on 20.7.2003 and thereafter, the first respondent has passed the impugned order of dismissal on 24.7.2003, seven days prior to the date of superannuation of the petitioner, viz., 31.7.2003. The impugned proceedings are challenged by the petitioner on various grounds, including: (i) that the conduct of the first respondent in seeking approval from the second respondent for dismissing the petitioner is alien to the service regulations; (ii) that the report of the Enquiry Officer ought to have been submitted to the petitioner at the first instance asking his comments for disagreeing with the https://hcservices.ecourts.gov.in/hcservices/ report of the Enquiry Officer in respect of the charges concluded as not proved by the Enquiry Officer, viz., charges under Articles 1, 3 and 5, which has not been done; (iii) that even if the second respondent has no role to play in respect of the disciplinary action to be taken against the petitioner by the first respondent, the second respondent ought to have put the findings of the Enquiry Officer to the petitioner, which is the basic requirement of the principles of natural justice; (iv) that the enquiry proceedings are not in conformity with the statutory requirements, especially when the Enquiry Officer himself is a peer, viz., he is a Manager from the Personnel and Establishment Division holding an equal rank to that of the petitioner, and therefore, appointing him as Enquiry Officer itself is against convention; (v) that by writing a letter on 9.7.2003 to the second respondent seeking his approval to dismiss the petitioner from service, the first respondent, even before completing the disciplinary proceedings, has arrived at a conclusion which is a predetermined notion; (vi) that while amending the charges no opportunity was given to the petitioner; and (vii) that the Enquiry Officer has himself cross- examined the petitioner in a lengthy manner and therefore, the enquiry itself has become perverse. 3.1. In the counter affidavit filed by the first respondent, it is stated that the writ petition is not maintainable and as against the order of dismissal the petitioner has got a right of appeal and review under the Food Corporation of India Staff Regulations, 1971, which is statutory in nature. 3.2. It is also denied that the first respondent has already predetermined the issue. It is stated that the first respondent has only followed the direction of the Apex Court in forwarding the tentative views to the second respondent for its advice and after receiving the advice from the second respondent, as per the procedure, the report of the Enquiry Officer, the disagreement memo containing reasons for disagreement and the advice given by the second respondent were furnished to the petitioner calling upon him to submit his explanation and that is to afford one more opportunity to the petitioner to submit his representation. 3.3. It is stated that the view sent by the Disciplinary Authority to the second respondent was only tentative and not final and that cannot be said to predetermined. It is also stated that it is mandatory on the part of the first respondent to consult the second respondent before issuing show cause notice, as per the https://hcservices.ecourts.gov.in/hcservices/ Circular dated 11.8.1999 of the second respondent. 3.4. It is stated that the purchase of additional quantity of Aluminium Phosphide at Rs.244/- per Kg. was ordered during 1999-2000, despite confirmed expected escalation in the cost in the subsequent tender dated 14.8.2000 in view of the enhanced excise duty from 8% to 16%; and that the Dealing Assistant while putting up the proposal for floating a tender has proposed to request the supplier to supply the same quantity at the same rate and terms and conditions of the existing RCC which was expiring on 26.4.2000, since it was advantageous to the Corporation as there was going to be hike in excise duty from 8% to 16%, and in spite of it the petitioner has not agreed to the proposal of the Dealing Assistant and recommended for floating of fresh tender and because of that the Corporation was bound to bear the excess cost of Rs.61/- per Kg. in the purchase of Aluminium Phosphide as against the existing rate of Rs.244/- per Kg. and thus, by recommending a higher rate of Rs.305/- per Kg., he has overruled the observations of Associate Finance to purchase the chemical for the existing rate running contract at Rs.244/- per Kg. 3.5. It is stated that the Enquiry Officer, after conducting detailed enquiry, has concluded that the petitioner was guilty in respect of charges under articles 2, 4 and 6, while holding charges under articles 1, 3 and 5 not proved. After examining the report of the Enquiry Officer, the Disciplinary Authority has sent the same to the second respondent along with his tentative views for second stage advice as per the procedure and thereafter, the disagreement memo and second stage advice of the second respondent along with the copy of the report of the Enquiry Officer were forwarded to the petitioner seeking explanation and on receipt of the representation, the entire issue was examined and the entire proceedings were completed within a period of five months and there was no victimisation. 3.6. It is also reiterated that the Food Corporation of India Staff Regulations, 1971 provides for procedure for preferring an appeal and review petition against penalties imposed by the disciplinary authority and that the established procedures were followed and the Disciplinary Authority has decided the quantum of punishment commensurate with the misconduct that resulted in loss and therefore, there is no need to interfere with the same. 4.1. Mr.V.Prakash, learned Senior Counsel appearing for the petitioner would submit that there was no finding of loss in the disciplinary proceedings and the petitioner has served for 38 years in the Food Corporation of India without any blemish. He submitted that in spite of the fact that the criminal complaint which has been registered by the Central Bureau of Investigation before the Principal Sessions Judge, CBI Cases, Chennai in R.C.2A of 2003 was withdrawn by the Executive Director and the criminal case was closed as per the order dated 14.2.2005 made in Crl.M.P.No.485 of 2004 https://hcservices.ecourts.gov.in/hcservices/ finding that there was no evidence for prosecuting the petitioner and if at all there was any fault, it can be only a irregular conduct, especially when there was no loss caused to the Food Corporation of India by the conduct of the petitioner, the payment of gratuity to the petitioner has been withheld, even though there is no wilful omission on the part of the petitioner. 4.2. It is his submission that there has been a contradictory stand taken between the original and amended charges and that the finding for the purpose of differing from the report of the Enquiry Officer, who has found charges under articles 1, 3 and 5 not proved, is totally perverse. It is also his submission that the enquiry itself has not been conducted by the Enquiry Officer in a manner known to law and the petitioner was not given an opportunity to cross-examine the witness and that the Enquiry Officer himself has cross-examined the delinquent officer. 4.3. It is his submission that the second show cause notice was only an illusion and that the first respondent has decided pre- emptively and has not conducted the enquiry with an open mind and therefore, the proceedings are violative of the principles laid down by the Supreme Court in Managing Director, ECIL, Hyderabad v. B.Karunakar, AIR 1994 SC 1074. 4.4. It is also his submission that the enquiry proceedings have not been conducted in the manner known to law, the Enquiry Officer has not examined documents through witnesses, and that while five witnesses were shown as prosecution witnesses, only one witness was examined and he happens to be the Investigating Officer and for the purpose of substantiating his contention that there is a procedural flaw vitiating the entire disciplinary proceedings, he would rely upon the judgments in Roop Singh Negi v. Punjab National Bank and others, [2009] 2 SCC 570, Anil Kumar v. Presiding Officer and others, [1985] 3 SCC 378, A.V.S.Perumal v. Vadivelu Asari, AIR 1986 Madras 341, and State of Uttaranchal v. Kharak Singh, [2008] 8 SCC 236. 5.1. On the other hand, it is the contention of Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the first respondent that the procedure has not been violated and it is his contention that there is no predetermination of the issue, since the disciplinary proceedings have been completed at the earliest point of time and as per the procedure, the Central Vigilance Commission has to be consulted and therefore, the proposal sent to the Central Vigilance Commission is only tentative in nature and that cannot be said to be the conclusive decision. He would further submit that even the view of the Central Vigilance Commission have been communicated to the petitioner and that shows the transparency in the proceedings. https://hcservices.ecourts.gov.in/hcservices/ 5.2. He would rely upon the circular of the Central Vigilance Commission dated 28.9.2000 and submit that the decision is procedural and not predetermined and it is his submission that the final order, in fact, has been passed independently. It is submitted that seeking advice of the Central Vigilance Commission is not alien and he would rely upon the decision in Sunil Kumar v. State of West Bengal, AIR 1980 SC 1170 and submit that what was done was strictly as per the circular of the Central Vigilance Commission. 5.3. It is his submission that even by applying the judgment in Managing Director, ECIL, Hyderabad v. B.Karunakar, AIR 1994 SC 1074, there is no prejudice caused to the petitioner by the procedure followed by the Enquiry Officer and the documents were all marked through one witness, who happens to be the Investigating Officer, which according to the learned Senior Counsel cannot be said to be either illegal or perverse, especially when the genuineness of the documents was not disputed by the petitioner at all. 5.4. It is his submission that the petitioner having participated fully in the enquiry, cannot now go back to challenge the procedure followed therein. It is his case that the charges have been established on fact and therefore, the judgment of the Supreme Court in State of Uttaranchal v. Kharak Singh, [2008] 8 SCC 236 is not applicable and according to him, there is substantial compliance of natural justice. 6. I have heard the learned Senior Counsel for the petitioner and the learned Senior Counsel for the first respondent and given my anxious thought to the issue involved in this case. 7. The charges framed against the petitioner by the first respondent are as per the Food Corporation of India Staff Regulations, 1971. The following were the six articles of charges framed originally against the petitioner: "Article I. In spite of the fact that it was specifically pointed out, the advantage of ordering additional quantities on the existing contract price was intentionally not availed of. On the contrary to this, request was placed on West Zone to place a further order as per their running rate contract. Article II. The Zonal Office appears to have exceeded its delegated powers and the proposal was not at all examined from this angle. The proposal was also processed without adequate budget provision. Article III. The tender notice did not indicate the quantities required. https://hcservices.ecourts.gov.in/hcservices/ Article IV. Initially the bids which were required to be submitted in the tender form, duly filled and signed, were not in the proper form and were without EMD. Instead of rejecting the bids as was recommended, it was decided to call the parties for negotiations. Article V. Requirement of chemicals appears to have been estimated/assessed on an unscientific basis. Article VI. Terms of the contract were effectively modified/altered so much so that it was decided that the samples would be tested in FCI's own lab instead of an independent laboratory. The analysis of the samples, so received, in ZO lab also did not appear to be proper and both the decisions of inhouse analysis and the method of analysis using gas flow meter, were not approved by the competent authority." The charges are relating to causing loss to the extent of Rs.3.57 Crores to the Corporation while purchasing excess quantity of Aluminium Phosphide by violating the norms and the said charges are supported by the statement of imputation in respect of each of the charges. The amended charges by way of corrigendum came to be issued on 28.4.2003 in order to arrive at the loss caused to the Corporation as Rs.3.569 Crores. The petitioner has submitted his explanation to the charges on 17.4.2003. 8. A reference to the report of the Enquiry Officer shows that the enquiry was conducted by Manager (Personnel and Establishment), Food Corporation of India, Head quarters, and he has caused the hearing on 10.6.2003 and straightaway allowed the Presenting Officer to produce 53 original documents relied upon by the Investigating Officer and not denied by the defence and exhibited all the said 53 documents. One M.L.Batra, Deputy Manager (Vigilance) (Retired), produced by the Presenting Officer was identified as P.W.1. It is also seen that on the side of the defence ten documents were exhibited and four witnesses, viz., M/s.K.S.Murthy, T.V.Venkataraman, K.Parasivam and C.S.Shivanna, were produced. The report of the Enquiry Officer reveals that P.W.1, who was produced before the Enquiry Officer, being a Vigilance Officer of the Corporation, was the Investigating Officer, who investigated the purchase of chemicals in the South Zone, and the defence witnesses were all examined in detail before the Enquiry Officer, and apart from them the petitioner, being the delinquent officer, was examined as the fifth defence witness. Since the said prosecution witness himself was the Investigating Officer, the petitioner has opposed the procedure and directed his report as an Investigating Officer to be furnished to him, before the prosecution witness is examined. 9. In the report of the Enquiry Officer there is no material to show that the said P.W.1 has proved the charges and it appears that https://hcservices.ecourts.gov.in/hcservices/ by consent all the documents were exhibited and with that various questions were put to the defence witnesses by the Presenting Officer as well as the Enquiry Officer. In fact, during the course of enquiry, the petitioner has raised a crucial issue that the charges have not been corroborated by evidence by prosecution witness in the oral enquiry and only by production of documents everything was concluded without corroborating the charges and in effect, the Enquiry Officer has acted as a prosecutor. The petitioner has raised a specific point, as it is found in the report of the Enquiry Officer, as follows: "The onus of proving the charges lies with the Prosecution. The charges must be corroborated by evidence in an oral inquiry. If mere production of documents alone will suffice, the purpose of oral inquiry itself is defeated. In this enquiry the Prosecution just presented the documents and did not corroborate charges. In effect the Prosecution has expected the Inquiry Officer to act as Prosecution. This is not valid." 10. Even as per the details given in the report of the Enquiry Officer, it is not seen anywhere that the prosecution witness has corroborated the case by proving the charges. On the other hand, the Enquiry Officer has relied upon various questions and answers put to the defence witnesses. While analysing the evidence, the Enquiry Officer has more curiously stated as follows: "Before analysing evidence adduced by both Prosecution and Defence side during enquiry proceedings on each article of charge, it is necessary to comment on the claims from both sides on availing adequate opportunity for natural justice. Prosecution has dropped all listed prosecution witnesses except producing Shri M.L.Batra as PW-1 on the grounds that all prosecution documents were authenticated by the Defence/CO during inspection of listed documents on 23.5.003. PO submitted a representation during regular hearing on 10.6.2003 to produce all 53 prosecution documents as listed in Annexure-III of the charge-sheet straightaway on the basis of certificate issued by the CO on dated 23.5.2003 certifying authenticity of the documents. PO has also pleaded that Shri M.L.Batra was the Chief witness as he has collected all prosecution documents during the investigation of the matter being a member of the Team. On the other side CO has stated that he has not been provided adequate opportunity to cross examine the witnesses listed in Annexure-III as the witnesses have been dropped by the PO even though the witnesses dropped were present during the inquiry at the venue of the inquiry and claimed exoneration on such grounds. CO has also stated that Presenting Officer has relied upon the https://hcservices.ecourts.gov.in/hcservices/ documents and the custodian of such documents have not been produced for cross examination and, therefore, he has been denied of the reasonable opportunity of cross examination to defeat himself. He has also not been provided with the preliminary inquiry report, and therefore, he has invited attention to Case Laws for exoneration." 11. Therefore, as admitted by the report of the Enquiry Officer, the Enquiry Officer was conscious that the documents were not produced through P.W.1, who happens to be the Investigating Officer by himself in respect of the charges, and no other prosecution witness was examined and the petitioner was not allowed to cross- examine even the said P.W.1. The only point which has been concluded by the Enquiry Officer is that there was no objection for producing of 54 documents on the side of the delinquent officer and the delinquent officer was also allowed to exhibit ten documents and therefore, all the documents were analysed by the Enquiry Officer, who has ultimately come to a conclusion that charges under Articles 1, 3 and 5 are not proved, while charges under Articles 2, 4 and 6 are proved. 12. In State of Uttaranchal v. Kharak Singh, [2008] 8 SCC 236, the Supreme Court while reiterating the nature of enquiry to be conducted in disciplinary proceedings, after discussing various judgments on the issue, has laid down the following principles: "15. From the above decisions, the following principles would emerge: i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. iii) In an enquiry, the employer /department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the https://hcservices.ecourts.gov.in/hcservices/ disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any." 13. By applying the dictum laid down by the Supreme Court to the contents of the report of the Enquiry Officer, which is no doubt exhaustive in its nature, it shows that the prosecution has not proved the case cogently by producing documents through witnesses and placing such witnesses to be cross-examined on the side of the delinquent. In the absence of following such crucial method, which is the crux and basis of the concept of principles of natural justice, any amount of reasoning given by the Enquiry Officer regarding each and every one of the instance in so many pages is not going to validate the proceeding. 14. The Disciplinary Authority having cited many prosecution witnesses, has chosen to drop everyone of them after the documents were exhibited and Investigating Officer was produced as P.W.1, and he was apparently not allowed to be cross-examined by the petitioner. This certainly is a procedure alien to the concept of principles of natural justice. I am of the considered view that even if P.W.1, being the Investigating Officer who has investigated the affairs earlier, has been allowed to be cross-examined by the petitioner, the same would not have improved the position