IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1267/2001 Reserved on.17.5.2007 Decided on.14.6.2007 B.R. Verma …Petitioner. Versus Food Corporation of India and another. …Respondents Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. Shrawan Dogra, Advocate For the respondents Mr. H.K. Bhardwaj, Advocate. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the disciplinary proceedings were initiated against the petitioner vide memorandum dated 19.2.2001. The gist of the charge levelled against him was that he was responsible for issuing wheat stored at Kangra Depot which was of non-issuable quality which has allegedly tarnished the image of the Corporation. He filed a short reply to the memorandum. The disciplinary authority had appointed one Sh. Ishwari Prashad, Manager (Inquiry) as Inquiry Officer on 16.3.2001. The Inquiry Officer had fixed 27.3.2001 as the date of the commencement of the inquiry. The petitioner had attended the proceedings on 27.3.2001 and thereafter the next date given by the Inquiry Officer was April 9, 2001, on which date he was required to give the list of defence documents to be relied upon and the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 name of the Defence Assistant to defend him. A new Inquiry Officer Sh. A.C. Saluja was appointed vide order dated 23.3.2001 in place of Sh. Ishwari Prashad. He fell ill on 11th April, 2001 and the Medical Officer advised him different tests and also rest for ten days on 11.4.2001. The tests as advised by the doctor were conducted on 12.4.2001. He received notice dated 3.4.2001 on 16.4.2001 wherein the new Inquiry officer had fixed April 12th and 13th, 2001 as the dates for hearing. He represented to the new Inquiry Officer to postpone the hearing fixed for 17.4.2001 and fixed another date taking in view his ill health. He had also made a representation to the authorities to permit him to visit Shimla. The matter was in between adjourned from 17.4.2001 to 23.4.2001. He remained as an indoor patient with effect from 22.4.2001 to 26.4.2001. He was admitted to Mahindra Hospital, Green Park, New Delhi where he was kept in the ICU. He had made a representation to the new Inquiry officer Sh. A.C. Saluja that in view of his ill health he would not be able to attend the hearing fixed for 23.4.2001. The Inquiry Officer had abruptly returned the inquiry file to the disciplinary authority showing his inability to complete the inquiry proceedings before 30.4.2001. He received order dated 30.4.2001 whereby penalty of reduction in rank by one stage was imposed upon him for the alleged misconduct for which inquiry was incomplete. He had to retire on the same day i.e. 30th April, 2001. He filed the statutory appeal against the imposition of penalty vide order dated 30.4.2001 on 13.6.2001. The appellate authority had rejected the appeal without a speaking order on 20.8.2001, the copy of which was received by him on 19.11.2001. Mr. Shrawan Dogra, Advocate appearing on behalf of the petitioner had strenuously argued that there was no occasion for the respondents to initiate the disciplinary proceedings against the petitioner in view of Annexure P-5 and P-6 whereby the food was found suitable for distribution 3 under the public distribution system. Mr. Dogra had further submitted that once the inquiry had been initiated, the same could not have been dropped abruptly resulting in imposition of penalty of reduction in rank by one stage by invoking Regulation 63 of the Food Corporation of India (Staff) Regulations, 1971. He had also contended that the imposition of penalty of reduction in rank by one stage was disproportionate to the alleged misconduct and the entire exercise undertaken by the respondents by initiating the disciplinary proceedings thereafter abruptly dropping the same and then invoking the Regulation 63 of the Food Corporation of India (Staff), 1971 is bad with factually as well as legal malafide. Mr. H.K. Bhardwaj, Advocate appearing on behalf of the respondent-corporation had supported the order of imposition of penalty dated 30.4.2001 as well as the appellate order dated 20.8.2001. He had also contended that the inquiry was to be dropped due to non-cooperative attitude of the petitioner. I have heard the parties and perused the record. Before the rival submissions made by the parties are considered it would be apt to note a few important Regulations framed under section 45 of the Food Corporation Act, 1964 with the previous sanction of the Central Government called the “Food Corporation of India (Staff) Regulations, 1971 (hereinafter called as the Regulations). Section 4 of the Regulations deals with the conduct Regulations. Section 5 deals with the discipline and appeal Regulations. Regulation 54 provides for penalties. The following are the major penalties which can be imposed upon the employees of the Corporation: (i) “reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or 4 not the employee of the Corporation will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; (ii) Reduction to a lower time-scale of pay or post which shall ordinarily be a bar to the promotion of the employee to the time-scale of pay or post from which he was reduced, with or without further directions regarding conditions of restoration to the post from which the employee of the Corporation was reduced and his seniority and pay on such restoration to the post; (iii) Compulsory retirement; (iv) Removal from service which shall not be a disqualification for future employment under Corporation; (v) Dismissal from service which shall ordinarily be a disqualification for future employment under the Corporation.” Regulation 57 provides that the Board or the authority may institute disciplinary proceedings against an employee of the Corporation and direct a disciplinary authority to institute proceedings against any employee of the Corporation on whom that disciplinary authority is competent to impose under these Regulations any of the penalties specified in Regulation 54. The detailed procedure for imposition of major penalty is provided under Regulation 58. Regulation 59 deals with action on the inquiry report. Regulation 63 deals with special procedure in certain cases and the same is reproduced as under: “Notwithstanding anything contained in Regulation 58 to Regulation 62: 5 (i) where any penalty is imposed on an employee on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these regulations. (iii) Where the Board is satisfied that in the interest of security of the State, it is not expedient to hold any inquiry in the manner provided in these regulations, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.” The combined reading of the Regulations suggests that a detailed procedure has been prescribed for imposition of minor as well as major penalties upon the employee of the Corporation. In the present case the petitioner had been served with a charge- sheet to which he had filed a reply. The Inquiry Officer was appointed and thereafter a new Inquiry Officer was also appointed. He had attended the proceedings on 27.3.2001 as directed by the Inquiry Officer and had been seeking permission of the higher authorities to reach Shimla. He fell ill on 11th April, 2001 and the Medical Officer had advised him rest of ten days and also advised to undergo certain tests which he had undergone on 12.4.2001. He had made a request to the Inquiry Officer that he was not in a position to attend the proceedings on 12/13th April, 2001 and the same be adjourned. The proceedings were adjourned to 17.4.2001. Since the petitioner made a representation on 16.4.2001 to postpone the hearing from 17th April, 2001, the proceedings were postponed to 6 23.4.2001 but in the meantime the petitioner was admitted in Mahindera Hospital, New Delhi on 22.4.2001 where he remained as an indoor patient in ICU up to 26.4.2001. It was in these circumstances that the petitioner could not attend the proceedings. It is evident from the medical slips placed on record along with tests conducted upon the petitioner that he was not in a position to attend the proceedings being fixed frequently. The Inquiry Officer should have continued with the inquiry despite the petitioner’s date of retirement i.e. 30th April, 2001. The procedure in the case was that the petitioner was to be suspended on 30th April, 2001 and thereafter proceedings could have been continued. There is no bar to continue the proceedings once initiated after serving memorandum upon the petitioner. Though Rule 9 of CCS (Pension) Rules, 1972 may not be stricto sensu applicable to the employees of the Corporation but the principles contained therein could be invoked by the respondent- corporation whereby it is stipulated that if the disciplinary proceedings are instituted while the Government servant is in service before his retirement shall after the retirement of the Government servant, be deemed to be proceedings under that rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. The Supreme Court in State of Punjab Vs. Khemi Ram, 1969 (3) SCC 28 has held as under: “There can be no doubt that if disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of 7 suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein. That such a course was adopted by the Punjab Government by passing the order of suspension on July 31, 1958 cannot be gainsaid.” The respondent-corporation instead of invoking Regulation 63 (ii) should have continued the disciplinary proceedings and if it was expedient could put the petitioner under suspension and concluded the inquiry. The petitioner had to retire on 30th April, 2001 and the disciplinary proceedings had been initiated by serving a memorandum on him on 19.2.2001. As per the charge-sheet the wheat was not fit for human consumption but it is evident from Annexures P-5 and P-6 that the same wheat has been made available to the Flour Mill after certifying its fitness by the High Power Committee constituted by the Corporation. In these circumstances even the disciplinary proceedings should not have been commenced against the petitioner who was on the verge of retirement. The petitioner had an absolute right to defend himself as per the Regulations of the Board before the imposition of major penalty. The disciplinary proceedings initiated were dropped abruptly resulting in imposition of penalty of reduction in rank by one stage. The question which requires the consideration of this Court is: Whether in the facts and circumstances mentioned hereinabove, the corporation could invoke sub Regulation (ii) of Regulation 63 of the Special Regulations of dispensing with the inquiry and impose major penalty upon the petitioner? The reasons assigned for dispensing with the inquiry are reproduced as under: 8 “AND WHEREAS the preliminary hearing was held by Shri Ishwari Prasad on 27.3.2001 and subsequently the succeeding to Shri A C Saluja fixed the regular hearing on 12 and 13.4.2001. Although Shri b.R. Verma attended the preliminary hearing, he avoided regular hearing on 12.4.2001 by submitting a medical certificate dated 11.4.2001 from Dr. K. Tandon, Medical Officer, FCI, RO New Delhi. Dr. Tandon had advised rest to the CO for 10 days i.e. upto 20.4.2001. Shri Verma again avoided the inquiry refixed for 23.4.2001 by intimating the IO that he has been admitted in Mohindra Hospital Green Park New Delhi on 22.4.2001 and still under treatment. No medical certificate was, however, enclosed. Accordingly, the IO returned the charge memo and other connected papers vide his letter dated 23.4.2001 and reported that CO again failed to appear and instead sent a letter stating that he is admitted in a hospital in Green Park. All efforts for early completion of inquiry have thus been frustrated by the illness of the CO and there seems to be no possibility of completing the inquiry before the date of CO’s retirement i.e. on 30.4.2001. AND WHEREAS the undersigned has carefully perused the charge sheet issued to Shri Verma and the relevant record pertaining to its service and subsequent efforts to conduct an inquiry. There is no doubt that the CO has been consistently evasive and uncooperative in the matter of holding an enquiry. It is prima-facie unbelievable that the CO is inflicted with all manner of infirmities only at this stage when the enquiry against the charges had to be conducted in a time bound manner keeping in view the date of his retirement. The record clearly 9 indicates that efforts have been made to delay the entire process of enquiry by not accepting notices and thereafter taking the excuse of ill health. In the process, the CO had adopted dilatory tactics such as payment of advance TA and other irrelevant procedural formalities. In these circumstances when the CO is retiring at the end of this month and failure to proceed with the process of enquiry is only on account of the dilatory tactics adopted by him, the undersigned has no doubt that it is necessary and desirable to invoke the provisions of Regulation 63 in deciding this case. AND WHEREAS on the merits of the matter, it is clear that this is a case of negligence and supervisory lapse on the part of the CO. The stocks in question were barely 500 tonnes or so and there appears to be no reason why these could not be kept free from infestation. Even if the cover fumigation was not initially feasible on account of over crowding, surely it was not impossible to decongest the godown and undertake the necessary operations so that the health of the stocks could be maintained. While this is foremost the responsibility of the officers on the spot, yet the supervisory lapse on the part of the Distt. Manager is quite clear and obvious. It is also not believable that the CO was unaware of the condition of the stocks. In that case, there was no occasion to issue the stocks for PDS. The fact that this has been done indicates carelessness and callousness on the part of the CO which has contributed to tarnishing the image of the Corporation and shaking the faith of the public in PDS. In these circumstances, it is difficult to take a lenient view of the matter and the 10 undersigned accordingly orders that Shri Verma be reduced in rank by one stage. This court is of the firm opinion that the reasons assigned in order dated 30th April, 2001 for dispensing with the inquiry are neither cogent nor convincing. The petitioner had been making representations to the Inquiry Officer that he was not in a position to attend the proceedings due to his illness. He had remained in ICU from 22nd April, 2001 to 26th April, 2001. The necessary slips have been placed on record by the petitioner along with prescription. The petitioner had undergone the tests as advised by the doctor. The doctor had advised the petitioner rest for ten days. The petitioner had started participating in the proceedings but due to ill health was not in a position to continue the same. In these circumstances the disciplinary authority could not come to the conclusion that the petitioner was avoiding the inquiry by adopting dilatory tactics. The contents of order dated 30th April, 2001 definitely cast stigma upon the petitioner. The petitioner has been held negligent by the disciplinary authority without affording opportunity of being heard. Once the inquiry had been initiated the same should not have been dropped abruptly and thereafter invoke Regulation 63 of the Regulations. It will be pertinent to reproduce sub Regulation (ii) of Regulation 63 which reads as under: “where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these regulations.” It will also be apt to reproduce the language employed in Article 311 (2) proviso (b) of the Constitution of India as under: 11 “311 (2) (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonable practicable to hold such inquiry.” It is evident from the phraseology employed in Regulation 63 (ii) of the Regulations as well as Article 311 (2) proviso (b) of the Constitution of India that they are similar. True it is that Article 311 of the Constitution will not apply to the employees of the respondent-Corporation but the principles contained therein will apply to the employees of the respondent- corporation. The interpretation given by the Supreme Court to Article 311 (2) proviso (b) of the Constitution will be applicable to Regulation 63 (ii) of the Regulations as well. The Hon’ble Supreme Court has held in Union of India V. Tulsi Patel, (1985) 3 SCC 398 as under: “The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that “it is not reasonable practicable to hold” the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are “not reasonably practicable” and not ‘impracticable’. According to the Oxford English Dictionary ‘practicable’ means “Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible”. Webster’s Third New International Dictionary defines the word ‘practicable’ inter alia as meaning “possible to practice or perform: capable of being put into practice, done or accomplished: feasible”. Further, the words used are not “not practicable” but “not reasonably practicable”. Webster’s Third New International Dictionary defines the word ‘reasonably’ as “in a reasonable manner: to a fairly sufficient extent”. Thus, 12 whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonable practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or though others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of 13 Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent Northern Railway, Varanasi. The Senior Commercial officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscip0line mostly relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed on order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant 14 with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following there upon would both be void and unconstitutional. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the 15 disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case