C.W.P. No.18432 of 2002 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.18432 of 2002 Date of Decision.23.12.2011 Bhopal Singh s/o late Sh. Chhuttan Singh Tyagi .....Petitioner Versus Food Corporation of India through its Chairman, H.No.16-20, Barakhamba Road, New Delhi and others .....Respondents 2. C.W.P. No.14738 of 2005 R.S. Latamba s/o late Sh. Sadhu Singh .....Petitioner Versus Food Corporation of India through its Chairman, H.No.16-20, Barakhamba Road, New Delhi and others .....Respondents Present: Mr. Jasdeep Singh Wasu, Advocate for the petitioner. Mr. K.K. Gupta, Advocate for respondents in C.W.P. No.14738 of 2005. Mr. V. Ramswaroop, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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. 1. Both these writ petitions concern the action terminating the services of the respective petitioners by the Food Corporation of India for alleged misconduct during their respective services as employees of the Food Corporation of India resulting in huge monetary loss. Before the arguments got under way, learned counsel appearing for the petitioner referred me to the manner of disposal of yet another case in C.W.P. C.W.P. No.18432 of 2002 -2- No.2603 of 1988 relating to yet another employee Sone Lal. Their contention was that their case must be similarly treated as Sone Lal's case. I had directed the counsel to argue the case on merits as well since there were some important differences that compelled the different result in Sone Lal's case. It would be necessary to spell out the decision of the Supreme Court in Sone Lal's case to stave off the contentions of the petitioners that the said case did not conclude the issue regarding the competency of the officer to pass the order of punishment and it was confined to the particular facts of the case. 2. In Sone Lal's case, the case related to a challenge of order of compulsory retirement by way of punishment for alleged misconduct resulting in deficiency of stocks and causing loss to the Food Corporation of India. The writ petition had been ordered finding that the order of removal was made by a person, who was lower in rank than the appointing authority and therefore the order was vitiated. This order was confirmed in LPA without further going to the merits of the contentions relating to the justification for removal. In a further Special Leave Petition to the Supreme Court at the instance of the Food Corporation of India, the Hon'ble Supreme Court held that the finding that the Disciplinary Authority that ordered the punishment was lower in rank was erroneous. In that case, the order promoting Sone Lal as Technical Assistant Grade-I by an authority equivalent in rank to the Deputy Zonal Manager was contended to be a person, who was above the rank of Senior Regional Manager and consequently, the order of removal of the employee from service by the Senior Regional Manager was found to be a person lower in rank than the appointing authority. The Hon'ble C.W.P. No.18432 of 2002 -3- Supreme Court held that the order promoting Sone Lal as Technical Assistant Grade-I had been recommended by the Zonal Promotion Committee and the mere mention of the designation of Zonal Manager, North in the office order of promotion could not lead to the inference that the officer had been promoted by the Zonal Manager. The Court took note of the fact that on the recommendation of the Zonal Promotion Committee headed by the Deputy Zonal Manager did not require any approval from the Zonal Manager. The Supreme Court reasoned that the Zonal Promotion Committee was the final authority for making promotion within Category III and Zonal Manager had nothing to do with regard to the promotions made by the Committee. The Court, therefore, held that the Senior Regional Manager, Food Corporation of India was competent to impose the penalty of compulsory requirement. Out of these two cases, in C.W.P. 18432 of 2002, the promotion order had been issued by the Deputy Manager, Administration purporting to act on behalf of the Zonal Manager (North) on 11.04.1978. In C.W.P. No.14738 of 2005, the promotion order has been issued on 04.05.1972 by the Deputy Manager, Administration for the Zonal Manager. 3. In the order of the petitioner in C.W.P. No.18432 of 2002, it bears out clearly that he was one of the several officers appointed on the same day about which a reference has been made even in the decision of the Supreme Court in FCI Vs. Sone Lal referred to above. As per Regulation 56 Appendix II, the Senior Regional Manager was the competent authority to make appointment/promotion to the post of Technical Assistant Grade I. It bears out from the judgment of the Hon'ble Supreme Court that the petitioner-Bhopal Singh was also a party C.W.P. No.18432 of 2002 -4- before the Supreme Court in SLP No.18505 of 2004 and the counsel was actually adopting the arguments advanced on behalf of the counsel for Sone Lal. The issue framed before the Supreme Court was whether the Senior Regional Manager, Food Corporation of India was competent to impose the penalty of compulsory retirement on the respondent under Regulation 56 of the Food Corporation of India Regulations, 1971. The Supreme Court found fault with the initial observations of the Single Judge and the Division Bench that the files had been put to the Zonal Manager only for the purpose of retention of Technical Assistant Grade I selectees within Punjab in promoted capacity. If the Senior Regional Manager/Regional Manager/Zonal Manager was each competent to impose any of the penalties, namely minor as well as major, the Senior Regional Manager was not only the appointing authority for the post held by the petitioners but also competent to act as a disciplinary authority for the purpose of Regulations 56, 57, 58 and 59 for imposing major penalties. The Supreme Court was accepting the contention made on behalf of the Food Corporation of India that the promotion orders were issued from Regional Office because seniority list of Group/Category II were being maintained on zonal basis in respect of the regions under the North zone and the Senior Regional Manager, who himself was equal in rank to the Deputy Zonal Manager was competent to initiate the proceedings and impose penalty. The findings of the Supreme Court that mere mention of the designation of Zonal Manager (North) could not lead to an inference that promotion had also been made by that officer is binding as far as this Court is concerned in the manner of interpretation of Regulation 56 and how the orders came to be passed. It C.W.P. No.18432 of 2002 -5- is not, therefore, possible to reopen the issue on the competency of the Senior Regional Manager to impose the penalty. I will, therefore, reject the contention made on behalf of the counsel for the petitioners that the orders were vitiated and the person that passed the order was lower in rank to the person, who had appointed the petitioners. 4. When the Hon'ble Supreme Court allowed the Special Leave Petition and directed a fresh disposal, the Supreme Court was actually remitting the case in C.W.P. No.18432 of 2002 specifically for consideration on merits. The order passed by the Division Bench had been set aside and it was still not open for the petitioners to urge the very same contentions, which have been concluded by the Supreme Court. 5. In C.W.P. No.18432 of 2002, the charge against the petitioner was that the rice assignments bearing No.2038 and 2059 delivered at Markfed godown, Amloh on 13.03.1995 had been misappropriated as per the details of entries made in Depot Master Ledger in 16/18.05.1995 and sealing of the entry in Master Lodger by the internal PV Squad of the District Office on 16.05.1995. On physical verification and weighment of stocks, it was noticed that there had been an overall shortage of 913 full bags and storage loss from 3.3.8% to 5.4%. On 100% weighment of stocks at the stores, the storage loss had been far above the admissible percentage of loss. The petitioner Bhopal Singh was charged to be responsible for the loss of the stocks. The Enquiry Officer had found the charges as established and before visiting him with punishment, the punishment authority had served with notice of the Enquiry Officer's report and called upon him to give his objections. In his objections, he C.W.P. No.18432 of 2002 -6- had stated that the physical verification alleged to have been conducted was at the time when he was not present at Amloh and there were other staff members responsible for shortages noticed in the charge-sheet. His contention was that the stocks for the year 1993-94 and 1994-95 had been received even before he joined on 15.03.1995 and as soon as he joined, he noticed the malpractices, which were brought to the notice of the District Manager, Patiala through various communications and it was only at his initiative that physical verification itself had been arranged. The disciplinary authority however held that the case of the prosecution was based on irrefutable evidence, which came in evidence through P1 to P3 and the documents had been spoken to by witnesses PW1 to PW3. The disciplinary authority had noted that Bhopal Singh had remained posted at Amloh Depot at the relevant time and the two rice assignments bearing contract Nos.2038 and 2059 had been shown as received in Markfed Godown on 13.03.1995 but the said consignments had not been stacked nor accounted in the depot record. Bhopal Singh however had issued clearance which came on record as P-2/6 dated 24.08.1995 and it was a matter of intrigue as to how he did not notice that the consignments had not been actually delivered. The notional entries in the Master Ledger were themselves a cover up and he was acting in connivance with one Latamba, who is the petitioner in C.W.P. No.14738 of 2005. The Disciplinary Authority, therefore, found that the charge No.1 relating to the misappropriation and forging of the Master Ledger entry had been established. 6. As regards the Article No.2, which was with reference to overall shortage of 913 full bags and storage loss from 3.38% to 5.4%, the C.W.P. No.18432 of 2002 -7- report of the squad itself was a clear proof of the charge against the officers itself. The Disciplinary Authority found that being a Supervisor Incharge Bhopal Singh was responsible for the loss. The Enquiry Officer had observed that Bhopal Singh had actually been hand in gloves with his subordinates and the misappropriation of huge quantity of stocks, fabrication and manipulation of depot records put the interest of the Corporation in total jeopardy. As regards this last observation referring to Bhopal Singh being in connivance with others to misappropriate huge quantity of stocks, learned counsel for the petitioner would argue that this was not at all a subject of charge and the findings of the Disciplinary Authority were clearly vitiated as being alien to the charges. I cannot accept this contention since it was not really any charge. It was an inference of what articles of charges already were. If article No.1 of the charge was that there had been misappropriation since the entries relating to rice consignments in contract Nos.2038 and 2059 were only papers entries when the stocks had not really accounted for in stocks, the obvious inference was that there had been misappropriation. If Bhopal Singh was seen to be acting with others and the Disciplinary Authority said that he had acted in connivance with others and when the charge again was that the Master Ledger entries were mere paper entries, it was another way of saying that there was a fabrication and manipulation of depot records. I would find these observations to be merely affirmation of the articles of charges levelled against the petitioner and therefore, I will not find the order to be vitiated only on this account. 7. Learned counsel for the petitioner would also contend that the C.W.P. No.18432 of 2002 -8- orders were seriously vitiated by the fact that the Appellate Authority was merely reproducing the reasonsings found in the order and did not advert to the grounds of objections raised. According to him, the very purpose of preferring the appeal was lost, if the objections on the Disciplinary Authority's finding were not considered by the Appellate Authority. Learned counsel refers to a decision of the Hon'ble Supreme Court in Ram Chander vs. Union of India and others AIR 1986 SC 1173, which dealt with the case of disposal of appeal by the Railway Board against the order of the General Manager. The Supreme Court was considering the case of removal from service of a person, who had 24 years of service and for single lapse, he was punished with removal from service. Dealing with Article 22.2 of the Railway Servants (Discipline and Appeal) Rules, 1968, which in express terms required the Railway Board to record its reasoning on three aspects stated therein. The court held that the Appellate Authority should not only give a hearing to the Government servant concerned but also pass orders dealing with the contentions raised by the delinquent in appeal. The Supreme Court was actually considering the effect of Rule 22.2 of the Railway Servants Rules, which set out three matters to be considered before passing an order. The points for consideration under Rule 22 are: (a) whether the procedure laid down under the Rules had been complied with and if not, whether such non-compliance had resulted in the violation of any provisions of teh Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by any evidence on the record; (c) whether the penalty or the enhanced penalty were adequate, inadequate or severe. The second component of C.W.P. No.18432 of 2002 -9- Article 22.2, after a consideration of the above three factors is that it could either confirm, enhance, reduce or set aside the penalty or remit the case to the authority, which imposed the penalty. The Supreme Court was, therefore, dealing with the issue of the manner of disposal by the Appellate Authority. It may be taken as a general proposition of law that wherever the appeal remedy is provided, the Appellate Authority is bound to examine the merits of the contentions, which are sought to be urged and it cannot mechannically reproduce what the disciplinary authority held. To that extent, a mere affirmation by the Appellate Authority without any form of reasoning by the Appellate Authority would always be legally suspect. 8. I have examined the grounds of appeal to see whether there is anything substantial made that have not been specifically considered by the Appellate Authority. The petitioner in C.W.P. No.18432 of 2002 has a grievance that penalty order was bad because the main charge, which had been proved against him was totally different from the charges levelled against him. I have already referred to this aspect and I have observed that the inferences made of the petitioner acting in connivance with others, manipulating and fabricating documents and committing misappropriation were verily the purport the charges brought through articles 1 to 3. I do not, therefore, find that there is any merit in the contention that the disciplinary authority was finding the petitioner guilty of a charge,which was not put against him. The petitioner had referred to an issue of bias against the officer who had himself processed and constructed the case of the prosecution working for the Food Corporation of India, Regional Office. C.W.P. No.18432 of 2002 -10- This I find to be an objection not even taken before the Enquiry Officer nor even stated at the time when the Enquiry Officer's report was put to the petitioner to state his objections. The issue of alleged bias of the Enquiry Officer cannot be taken up at the first time in appeal. 9. It has been held in Sunil Kumar Banerjee Vs. State of West Bengal (1980) 3 SCC 304 that the fact that the preliminary investigation report was prepared by the person who was also later appointed as enquiry officer can not constitute any bar or give rise to presumption of bias. The third ground of appeal is that the person, who passed the order of punishment was not competent to pass the order. We have already examined this contention and that has been concluded by the decision of the Hon'ble Supreme Court. The fourth objection was that 29 documents had been asked for by the petitioner from the Enquiry Officer, which had not been supplied to him and therefore, there had been serious prejudice in the right of his defence. Even now at the time when the arguments were presented before me, the learned counsel was not prepared to give any details of what the documents were and how the non-supply of copies of documents had prejudiced him. I cannot go into a roving enquiry of how a prejudice could have been caused without the petitioner clearly making out a justification for such a contention in his grounds. The other ground of appeal by the petitioner had been that the rice consignments for contract Nos.2038 and 2059 had been received in depot on 13.03.1995 while he had himself joined only on 15.03.1995 and as such no responsibility could be fixed on him. That precisely was the issue that if some consignments had not arrived at all and not reflected in the stocks but entered in the C.W.P. No.18432 of 2002 -11- book, the petitioner on taking charge on 15.03.1995 ought to have known that there was a mismatch between what was entered in the books and what was not physically available. The inspection itself had been made only subsequently and till after the inspection was done, the petitioner had not given any complaint of such a serious lapse. As a person, who had joined immediately after the alleged receipt of rice consignments, he ought to have known the status of such consignments and if he had not known, that was a ground to allow a charge that he had himself been responsible. 10. There is a further grievance of the petitioner that the physical verification of the stocks itself had been ordered by the District Manager only at the instance of the petitioner. Bhopal Singh would refer to the fact that he had sent notice on 29.06.1995 and 09.08.1995 that accounting of stocks at depot were not alright and that he had requested for an investigation to be done. If the petitioner had brought out at the relevant time the serious lapse of the stocks being not available against entries, which was specifically made in the ledger, it would have vindicated his stand. A mere complaint that things were not going alright cannot be a justification for the petitioner to contend that he was himself not responsible. The other ground is that the District Manager, Patiala did not hold him guilty to fasten the entire liability for the stocks, does not appear to be correct at all. It has been found that he was guilty. The petitioner has another grievance that PW-3 had stated that signature of Ramesh Kumar alone was present and Bhopal Singh's signature was not found present on the weight check memos pertaining to contract Nos.2038 and 2059. It was obvious, for on the C.W.P. No.18432 of 2002 -12- date of the actual consignments reaching under contract Nos.2038 and 2059, the petitioner had not joined the depot and therefore, his signature could not have been there. It was further contended that J.S. Batish, Assistant Grade-I (Depot) was not served or examined and yet a statement had been secured from him to make it a basis for dismissing him from service. This is just as well possible that Batish had not been examined but I do not find that the petitioner had been found guilty only on the basis of his statement. The District Manager Patiala was reported to have found him innocent of charge under article No.2. Learned counsel for the petitioner would refer to such a communciation said to have been made by him on 13.09.1995 (Annexure P-3). A private communication cannot be a bar for an Enquiry Officer, who on eliciting all informations comes to a different conclusion. 11. Ideally, each one of the grounds must have been dealt with by the Appellate Authority and disposed of but I was prepared to examine these aspects only to assure myself that there had been no serious miscarriage of justice. The aternative would have been to refer the matter back to the Appellate Authority for consideration and passing orders on the basis of objections. It would only spell a further delay in disposal and in view of the situation that the matter pertains to the incident, which had taken place more than 16 years earlier, I have proceeded to examine the grounds of appeal to see whether anything substantial comes out. In the ultimate analysis, I do not find that there is any scope for interference. As regards the petitioner in the other case, no arguments were advanced by the counsel, other than the general objection that the order had been passed by a person who was C.W.P. No.18432 of 2002 -13- not competent to pass the order. The orders pased by the Disciplinary authority and higher authorities conform to the evidence brought against the respective petitioners and I find no reason for interference in writ petitions. 12. The writ petitions are consequently dismissed. (K. KANNAN) JUDGE December 23, 2011 Pankaj*