- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5082 OF 2002 Shri.D.N.P.Sinha. ...Petitioner. VS. 1.Food Corporation of India and others. ...Respondents --- Mr.K.S.Bapat i/b. M.S.Topkar, for Petitioner. Mr.P.M.Pradhan, for Respondent nos.1 to 3. CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. V.M.KANADE, JJ. V.M.KANADE, JJ. DATED: 20th February,2008. DATED: 20th February,2008. DATED: 20th February,2008. P.C. P.C. P.C.: 1. By this petition, the petitioner challenges the order dated 2.1.2002 passed by the Managing Director of Food Corporation of India, imposing punishment of withholding of three increments with cumulative effect on the petitioner as also the order passed by the Chairman of Food Corporation of India dated 27.5.2002 dismissing the appeal filed by the petitioner and confirming the order passed by the Managing Director of Food Corporation of India. - 2 - 2. The facts that are material and relevant are that the petitioner was working as regional manager at regional office, Bhopal, Madhya Pradesh of Food Corporation of India. A chargehseet was served on him which contained two charges. Charge no.1 is related to awarding of four contracts by the petitioner, one was the contract for transport of food-grains within the revenue district of Shahadol, second was in relation to Chhindwara, third was in relation to Bishampur and fourth was in relation to Mandla. Charge no.2 is not relevant for the purpose of this petition because the inquiry officer has held that Article II of the chargesheet was not proved by the evidence produced during inquiry. The disciplinary authority has also not disturbed that finding. The petitioner denied all the charges, a departmental inquiry was held, the inquiry officer submitted his report. It is only the operative part of the report of the inquiry officer which is relevant which reads as under:- "111. IN view of what has been stated in paras 96 onwards and the evidence produced before me, I - 3 - conclude that:- i) Article-I was proved only to the extent that the CO’s stand in the matter of award of H & T Contract for Chhindwara opened on 18.6.96 was not rational consistent, which contributed greatly to award of that contract at a higher rate @ 688% ASOR to 2nd lowest tenderer instead of it being awarded to lowest tenderer @ 663% ASOR which would obviously have caused financial loss to the Corporation. His nothings are indicative of lack of application of mind and failure to promote and take care of the interests of the Corporation. However, there is no direct evidence to say that his actions were prompted by dishonesty or lack of integrity. The available evidence proves violation of Regulations 31(b), 32 and 32 A(5) on the part of CO, Shri.D.N.P.Sinha. - 4 - ii) Article II of the Charge sheet was not proved by the evidence produced during inquiry." It is clear from the conclusion of the Inquiry officer quoted above that the inquiry officer held that there was irregularity involved in awarding contract in relation to Chhindwara only. In other words the inquiry officer did not find any irregularity or illegality in awarding of contract in relation to Shahadol, Bishampur and Mandla. After the copy of the inquiry report was made available to the petitioner, the petitioner submitted his explanation dated 31.7.2001 only in relation to the charge which was held to be proved against him by the inquiry officer. The disciplinary authority imposed punishment by order dated 2.1.2002. It is last two paragraphs of that order are relevant, they read as under:- " AND WHEREAS, I have gone through the entire record submitted during the inquiry proceedings by the prosecution as well as by the defence and had found that the charge established against him is - 5 - that the changed his stand and recommended lowest tender be ignored in the matter of awarding of Bishrampet contract. Again it is apparent that his recommendation who was the number two in the region does not stand upto sound reasoning and possibly the recommendation was based on extraneous consideration. Such conduct on his part is unbecoming of a senior officer of the Corporation which needs to be taken serious note of. The undersigned is hereby of the opinion that a penalty of withholding of three increments with cumulative effect is warranted to meet the ends of justice. Now therefore, the undersigned in exercise of the powers conferred under Regulation 56 read with Regulation 54 and 59 of FCI (Staff) Regulations, 1971 orders to impose a penalty of withholding of three increments with cumulative effects - 6 - upon the said SH DNP Sinha, JM(C), Zonal Office (West), FCI, Mumbai with immediate effect." Perusal of the above quoted portion from the Managing Director’s order shows that though the inquiry officer has held that there was no irregularities involved in awarding Bishampur contract, the disciplinary authority imposed punishment by holding that there is irregularity or illegality involved in awarding Bishampur contract. According to the petitioner, the order of the disciplinary authority is illegal because as the disciplinary authority awarded punishment basing on that part of the charge which has been held by the inquiry officer not to have been proved, it is necessary for the disciplinary authority to issue show cause notice to the petitioner to show cause as to why the disciplinary authority should not disregard the finding of the inquiry officer that there is no irregularity or illegality involved in awarding Bishampur contract and hold that Bishampur contract was irregularly awarded. The petitioner therefore, filed an appeal before the Chairman. Perusal of the memorandum of appeal shows that this contention was specifically raised in the memorandum of appeal that - 7 - the disciplinary authority was not justified in imposing punishment without issuing show cause notice on that part of the charge which has been held not to have been proved by the inquiry officer. The appeal was decided on 27.5.2002. The appellate authority dismissed the appeal without giving any reason for dismissing the appeal. That is how the petitioner has approached this Court. 3. We have heard the learned Counsel appearing for both the sides. It is clear from the articles of charge that article no.1 related to allotment of four contracts. It is clear from the finding recorded by the inquiry officer that awarding of contract in relation to Chhindwara was irregular. The inquiry officer did not hold that there is any irregularity in awarding other contracts. In our opinion, therefore, if the disciplinary authority wanted to disregard the finding of the inquiry officer that there was no irregularity or illegality involved in awarding of Bishampur contract, it was necessary for the disciplinary authority to issue show cause notice to the petitioner, to give him an opportunity of being heard, and thereafter, to record a contrary finding and impose punishment; that admittedly has not been done. In our opinion, therefore, the order - 8 - imposing punishment violates the principles of natural justice. The appellate authority could have considered this ground, but the appellate authority has dismissed the appeal without giving any reasons. The order of the appellate authority clearly suffers from non application of mind. 4. Taking overall view of the matter therefore, in our opinion, the following order would meet the ends of justice:- . Rule in the petition is made absolute in terms of prayer clause (a). However, the disciplinary authority shall be free, if so advised, to impose punishment on the basis of the charge which has been held to be proved by the inquiry officer. . No order as to costs. 5. A grievance is made by the petitioner thathe is retired and this order will have impact on his pension. In this view of the matter therefore, if the disciplinary authority wants to take any action pursuant to the liberty granted, it shall take action as expeditiously as possible within a period of six months from today. If the action is not taken within - 9 - six months from today, the liberty granted will stand exhausted. (D.K.Deshmukh, J.) (V.M. Kanade, J.) ---