IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE MR. JUSTICE S.SIRI JAGAN. MONDAY, THE 18TH JANUARY, 2010/28TH POUSHA, 1931 W.P(C) NO. 11224 OF 2005 ------------------------- PETITIONER: ------------ M. ABOOBACKER, ASST. GRADE II (D), FOOD CORPORATION OF INDIA, DIST. OFFICE, THIRUVANANTHAPURAM (UNDER ORDERS OF DISMISSAL), RESIDING AT ABU BUILDING, PUTHUKULANGARA P.O., THIRUVANANTHAPURAM.695547. BY ADVS. M/S. JOHNSON P. JOHNSON RAJU VADAKKEKARA BABY MATHEW. RESPONDENTS: ------------- 1. FOOD CORPORATION OF INDIA, REP. BY ITS CHAIRMAN, 16-20. BRAKHAMBA LANE, NEW DELHI-110001. 2. MANAGING DIRECTOR, FOOD CORPORATION OF INDIA, DO. DO. 3. ZONAL MANAGER, F.I.C., ZONAL OFFICE, CHENNAI, MOUNT ROAD. 4. SENIOR REGIONAL MANAGER, F.C.I., THIRUVANANTHAPURAM. BY ADV. SRI. T.P.M. IBRAHIM KHAN, ASST. SOLICITOR GENERAL. THE WRIT PETITION HAVING BEEN FINALLY HEARD ON 18-1-2010, THE COURT, ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 11224/2005. --------------------------------------------- EXT.P1 TRUE COPY OF JUDGMENT IN O.P.32152/2001 dated. 24-9-2004. EXT.P2 REPRESENTATION dated. 17-12-1999. EXT.P3 REPRESENTATION dated. 20-9-2004. EXT.P4 ORDER dated. 4-2-2005 OF R1. RESPONDENTS' EXHIBITS: ----------------------- EXT.R4(A) ORDER dated. 20-5-1988 OF MANAGING DIRECTOR, F.C.I. EXT.R4(B) ORDER dated. 3-4-2000. EXT.R4(C) COPY OF ARTICLES OF CHARGES FRAMED AGAINST THE PETITIONER AND THE WATCHMEN. EXT.R4(D) COPY OF 296TH BOARD MEETING dated. 23-12-2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 11224 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th day of January, 2010. J U D G M E N T This writ petition is filed by an Assistant Grade II of the Food Corporation of India (for short ' FCI') challenging Ext. P4 order passed by the FCI. On very serious allegations of misconduct, disciplinary proceedings were initiated against the petitioner, another Assistant and two watchmen. The allegations constituting the misconduct against all the 4 were the same. All of them were found guilty. Pursuant to the same, the petitioner and the other Assistant were dismissed from service. But, the two watchmen were retained in service with lesser punishment. Although the petitioner and the other Assistant filed O.P.Nos. 8047/1987 and 5178/1988 challenging the disciplinary proceedings and the punishment, a learned Single Judge upheld both. The petitioner and the other Assistant challenged the same in a writ appeal. In that writ appeal, the Division Bench held thus: “These two Writ Appeals are disposed of liberty being given to the appellants to make appropriate representation before the concerned authority for reconsideration on the question of punishment. It is stated that other persons similarly situated were dealt with leniently by the concerned authority. The relevance and applicability of those cases to the facts of the appellants' case shall be considered by the appropriate authority.” However, after re-consideration as directed by the Division Bench, the Board of Directors of the FCI held that the Board did not find any merit in the review petition preferred by the delinquents and rejected the same. The petitioner and the other delinquent again challenged the same by filing O.P. Nos. 26615/2000 and 32152/2001. The petitioner's original petition is O.P.No. 32152/2001. In the same, a learned Single Judge of this Court held thus: W.P.C. No. 11224/05 -: 2 :- “3. It is clear from the judgment of the Division Bench that despite the dismissal of the writ petitions, the Division Bench granted liberty to the petitioners to move the Food Corporation of India for reconsideration on the question of punishment. Obviously, such liberty was granted taking note of the treatment on the co-accused. That is evident from the judgment itself, wherein the Division Bench specifically directed that the relevance and applicability of those cases to the facts of the appellants' case shall be considered by the appropriate authority. 4. In the light of the Division Bench judgment, both the petitioners approached the Food Corporation of India for reconsideration on the question of the harsh punishment imposed on them, which according to them is not only disproportionate but discriminatory. Unfortunately while passing the impugned order Ext. P 6, it appears, the Food Corporation of India completely misdirected itself in understanding the directions issued by the Division Bench. It will be profitable to quote the relevant portion from the impugned order in the case of petitioner in O.P. 26615 of 2000: “The petition submitted by Sri. B. Jayakumar was placed before the Board in its 273rd Meeting held on 16th March, 2000. The Board considered the Review Petition submitted by Sri. B. Jayakumar in depth. It was observed by the Board that the Kerala High Court while dismissing the writ petition filed by Shri. B. Jayakumar in O.P.No. 8047 of 1987 had clearly given a speaking order justifying the dismissal of the petitioner. The High Court also observed that the petitioner was responsible officer of the FCI and while discharging his duties, he acted contrary to the interest of the FCI. There was no material circumstances for a lesser punishment. The contention of the petitioner that the watchman involved in this case had been exonerated by the Reviewing Authority and as such he should also be given the same relief, has not been accepted by the Board in view of the fact that the duties and responsibilities of watchman vis-a- vis the petitioner are entirely different and he cannot escape from the responsibilities as has been observed by the Kerala High Court. Keeping in view the material factors, the Board did not find any merit in the Review Petition preferred by Shri. B. Jayakumar and accordingly rejected the same. This is in pursuance of the Hon'ble High Court of Kerala at Ernakulam order dated 27th September, 1999 in Writ Apeal No. 1234/91.” W.P.C. No. 11224/05 -: 3 :- 5. Evidently, the Food Corporation of India has been swayed by the observations of the Single Bench. The respondents ought to have noticed that, despite such scatting remarks by the Single Bench only, the specific directions were issued by the Division Bench taking note of the discriminatory attitude in the matter of punishment. It is true that the Food Corporation of India has stated that there are no material circumstances for a lesser punishment, but nothing more. The only reason for not giving a similar treatment or rather taking a comparative assessment in the matter of punishment is that “the duties and responsibilities of watchman vis-a-vis the petitioner are entirely different and he cannot escape from the responsibilities as has been observed by the Kerala High Court. As already observed above, the main charge on which both the petitioners herein were found guilty is the same charge for which the watchmen were also found guilty. That charge is totally unrelated to the duties. Not only that a reading of the judgment of the Criminal Court would show that the very incident was not proved, by the court and all the four accused were acquitted. There is no rule that the judgment of the Criminal Court should have a bearing on the disciplinary proceedings since there is an independent enquiry by the Food Corporation of India. But, in the case of punishment imposed on the watchmen, the acquittal of the criminal court had a bearing, it is submitted, in which case, there cannot be any discriminatory stand in the case of the petitioners for the only reason that they happened to be Assistant Grade II or Assistant Grade III. 6. The Division Bench of this Court in Ext. P4 judgment having given a positive direction to take into consideration the relevance and applicability of the treatment given to the watchmen in the matter of punishment, the Food Corporation of India is bound to take into consideration of the same set of facts and circumstances in the case of the petitioners also. Incident is one and the same, circumstances are one and the same, evidence is one and the same and the witnesses are also one and the same. The first charge which is the main charge against all the four accused is also one and the same. These crucial aspects should be taken into consideration, as directed by the Division Bench in Ext. P4. For the only reason that there are certain observations against the petitioners in the judgment of the learned Single Judge, once liberty is granted to the petitioners to represent before the authority for consideration on the question of punishment, with a further direction to take into consideration the relevance and applicability of the treatment in the matter of punishment meted out to the watchmen, the Food Corporation of India cannot reject the representations. The authority apparently misdirected construing the direction by the Division Bench as a review. It is certainly not for that. It is only for reconsideration of W.P.C. No. 11224/05 -: 4 :- the punishment, In the above circumstances, I quash the impugned order Ext. P 6 in the former and Ext. P 9 in the latter. There will be a direction to the respondents to pass a proper order in the light of the directions issued by the Division Bench and taking into consideration the observations contained in the judgment. The petitioners shall also be given an opportunity for personal hearing. The orders shall be passed within a period of three months from the date of production of a copy of this judgment.” (underlining supplied) Pursuant thereto, Ext. P4 order has been passed, wherein after narrating the entire history up to Ext. P1 judgment in the two original petitions, the following order was passed: “As per the judgment dated 24-9-2004 of Hon'ble High Court of Kerala, the personal hearing was granted to the petitioner and he was heard by the Board of Directors on 23-12- 2004. The Board in its meeting on 23-12-2004 considered the case of Shri. M. Aboobacker Kunju, Ex. AG. II(D) and went into the detailed facts and circumstances of the case and did not find any substantial material for a lesser punishment and accordingly arrived at a conclusion that the punishment of “dismissal from FCI” on Sh. M. Aboobacker Kunju, AG.II(D) commensurate with the proven guilt. This disposes of Hon'ble High Court of Kerala at Ernakulam order dated 24-9-2001 in O.P.No. 32152 of 2001.” The petitioner is challenging the same. 2. A counter affidavit has been filed, which is sought to be supplemented by further documents produced. According to the learned standing counsel for the Corporation, the case of the petitioner, who is an Assistant, cannot be equated with that of a watchman. The Assistant shoulders much more responsibilities than a watchman and therefore the two have to be treated differently. According to the FCI, in such circumstances, although the misconduct is the same, depending on their role in the matter, gravity of their W.P.C. No. 11224/05 -: 5 :- misconducts has to be viewed differently. Therefore, according to the respondents, Ext. P4 order has been validly passed. 3. I have considered the rival contentions in detail. 4. I am constrained to comment that the attitude of the respondents disclose scant respect for the judgments of this Court. Perhaps, I myself, considering the challenge of the petitioner in the first instance, may have come to the same conclusion as that of the learned Single Judge, who considered the same for the first time refusing to interfere with the punishment, since, according to me also, the misconduct is so serious enough to warrant the extreme punishment of dismissal itself. The misconduct found proved is that the petitioner in collusion with and connivance of Sri. B. Jayakumar, Assistant and two watchmen sent one unauthorised lorry load of rice from Kochuveli Goodshed on 13-8-83 for personal gain. But, in view of the Division Bench decision in W.A.No. 1234/1991 holding that since similarly situated persons were dealt with leniently, the relevance and applicability of those cases to the facts of the petitioner's case shall be considered by the appropriate authority, I cannot take a different view. In fact, further to the Division Bench decision, Ext. P1 judgment quoted above has also been passed, which also has become final and from that judgment, I find that the very same contentions which the respondents now raise have been specifically raised before the learned Single Judge, who passed Ext. P1 judgment and those very contentions were refused to be accepted by the learned Single Judge. The learned Single Judge specifically found that the charge against the petitioner and the two watchmen were one and the same and it was specifically found that there cannot be any discriminatory stand in the case of the petitioner for the only reason that he happened to be an Assistant Grade II. After having W.P.C. No. 11224/05 -: 6 :- suffered Ext. P1 judgment, with a specific finding that there is no difference in the matter of imposition of punishment as between the petitioner and the watchmen, the respondents cannot now take the very same contentions again. In Ext. P1 judgment, there is a categoric finding that the position of the petitioner and that of the watchmen cannot be differentiated on the ground that the duties and responsibilities of the watchmen vis-a-vis the petitioner are entirely different. That being so, the very same contention now raised by the respondents cannot be accepted. In fact, I am of opinion that the the stand of the Board of Directors borders on contempt of court and they are fortunate enough that the petitioner has not chosen to initiate proceedings for contempt for violation of the directions in Ext. P1 judgment. I am dismayed to find that the Board of Directors of a Government organization like the FCI has such scant respect for the decisions of this Court . Further, I find that none of these justifications now they seek to advance find a place in Ext. P4 order. I am of opinion that when that order was being passed pursuant to specific directions in Ext. P1 judgment, that order itself should have contained all the reasons in support of the conclusions arrived at, which it does not. For all the above reasons, I am of opinion that Ext. P4 order is not in accordance with Ext. P1 judgment. 5. Accordingly, Ext. P4 is quashed. Insofar as despite a Division Bench decision and a further decision of a learned Single Judge of this Court, the respondents have remained recalcitrant and went on passing the very same orders again and again, I am not inclined to leave it to the respondents to pass fresh orders on their own. I am satisfied now that the respondents should be directed to pass fresh orders of punishment in terms of the same punishment issued to the two watchmen. W.P.C. No. 11224/05 -: 7 :- 6. It is submitted before me that the petitioner had attained the age of superannuation on 27-3-2006. In the above circumstances, the petitioner shall be deemed to have been imposed with the same punishment as given to the watchmen involved in the same disciplinary proceedings as co-delinquents and continued in service till the date of superannuation. He would be entitled to retirement benefits accordingly. However, I direct that no back wages need be paid to the petitioner. In view of the recalcitrant attitude of the respondents, I was inclined to impose heavy costs on the respondents. But, in view of the nature of the misconducts proved against the petitioner, I do not think that he should further be favoured with costs at the expense of public funds. Therefore, I decline to order costs. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/