g^; ^-- HIGH COURT OF CHHATTISGARH AT BILASPUIt WRIT APPEAL No. 140 of 2008 APPELLANT RESPONDENTS Ratneshwar Banerji Versus [l^ Food Corporation of India and others ORDER For consideration HON»BLESHRI I.M. OUDDUSI, J Sd/- N. K. Agarwal Judge Sd/- ^juage 31 -g-2010 Postfor : €?\ -^-2010 Sd/- LM. Quddusi Judge f / 1 j ^ / '\^ ..•;^.^ HIGH COURT OF CHHATTISGARH AT^HbftSEUR- WRIT APPEAL No. 140 of 2008 APPELLANT RESPQNDENTS Ratneshwar Banerji Versus Food Corporation of India and others DB:- HON»BLESHRI I.M. OUDDUSI & HON»BLESHRI N.K. AGARWAL. JJ PRESENT:- Writ appellant in person. Shri B.P. Gupta, Adv. for the respondents. ORDER ( 1 -9-2010) PER N.K. AGARWAL, J 1. This writ appeal has been filed against the order dated 3QA April, 2008 passed in W.P. No. 321/2001 whereby learned Single Judge has dismissed the writ petition filed by the writ appellant. 2. Brief facts of the case are as under:- i. The writ appellant was working as AG-I (PP) in the office of District Manager, F.C.I., Raipur (CG). He was served with a charge sheet dated 29-6-2000 by respondent No. 2 for accepting levy rice of exceeding rejection limit. Another charge sheet dated 17-10-2000 was issued to him for various irregularities committed by him in accepting levy rice from the rice millers and third charge-sheet dated 1-12- 2000 was issued on the allegations that he allowed false payments to the rice millers against the rice stocks, which were not purchased at all and he prepared documents in connivance with the rice millers. He lodged complaint directly to the police authorities without informing his controlling officer with a purpose of concealing the facts of false payments to mislead the higher authorities and purchased a car without disclosing the financial source properly for taxi purposes in his own name. The writ appellant was also put under suspension vide order dated 28-7-2000 and by the said order his Headquarters was fixed ^*.-...:^ ~k ^ ./ at Vidisha and he was directed not to leave Headquarters without prior permission ofrespondent No. 2. ii. The respondent No. 2 after considering the reply of the writ appellant to the charge sheet dated 29-6-2000 held the appellant responsible for purchase of VRL lots No. 16 and imposed penalty of withdrawing two increments without cumulative effect for the year 2001-2002 and recovery of Rs. 7373 in 20 instalments from. the salary vide order dated 16- 12-2000. 3. Initially, the writ appellant filed this writ petition for quashing of charge sheet dated 29-6-2000 and order dated 16-12-2000, quashing of charge sheet dated 17-10-2000 and 1-12-2000 and also for quashing suspension order dated 28- 7-2000. Subsequently, the appellant moved amendment application and also challenged the dismissal order dated 29- 3-2001 passed pursuant to charge sheet dated 1-12-2000 challenging the disciplinary proceedings. The appellant has challenged disciplinary proceeding against him inter alia on the grounds that he was not paid one month U/D salary and subsistence allowance at Vidisha where he joined on 17-11-2000 after suspension; he returned Raipur as he could not stay at Vidisha due to paucity of fund; his representations for subsistence allowance and other dues were not considered and therefore, he could not participate in the departmental enquiry; the explanations submitted by the writ appellant in reply to the charge-sheet were also not considered; the charges were vague, not specific and general in nature and while issuing the charge-sheet the facts and circumstances existing then, were not considered; the writ appellant had addressed various complaints of corruption against the respondents No. 2 and 3 to the Chairman-cum- Managing Director and thereafter the respondent No. 2 issued charge-sheets malafidely against him; apart from issuing the charge-sheets, First Information Report was also lodged against the writ appellant and others by the respondent No. 3. The writ appellant has categorically '.:.':-^^s 1 '^&^ alleged bias, malafides and revengeful acttD-nTon affidavit and the respondents have not cared to rebut the allegations made in the affidavit despite directions by the High Court in this regard; while issuing the charge-sheet (Annexure P-1 to the petition), the writ appellant was not supplied with the list of documents, list of witnesses, by whom the articles of charges were proposed to be sustained, in violation of regulation 58(3) ofthe Food Corporation of India (Staff) Regulations, 1971; no enquiry officer was appointed for conducting enquiry for charges of Annexure P-1; suspension of the writ appellant by respondent No. 1 is illegal and without jurisdiction, the enquiry officer was appointed on the date when the charge- sheet was served to the writ appellant, without even waiting for reply of the writ appellant to the charge-sheet ofAnnexure P-41; and that the enquiry for charge-sheet dated 1-12-2000 has been initiated malafidely for satisfying the personal grudge against the writ appellant. 4. Learned Single Judge after considering the pleading of the parties, material available on record and the judgment cited, has dismissed the petition as sans merit. 5. We have heard the writ appellant in person and also Shri B.P. Gupta, learned counsel for the respondents at length and also perused the record of the disciplinary proceedings. 6. The first charge sheet dated 29-6-2000 (Annexure P-1) was issued to the writ appellant for accepting levy rice exceeding rejection limit, resulting in pecuniary loss to the Corporation. The writ appellant was suspended vide order dated 28-7-2000 and his Headquarters was fixed at Vidisha under the District Manager, Sagar and he was directed not to leave the Headquarters without prior permission of disciplinary authority. It was also mentioned in the above order that the writ appellant shall be paid subsistence allowance as per rules. v% :s^/ .^ 4 7. The writ appellant has challenged the above order by which he has been placed under suspension in contemplation of departmental enquiry on charges of misconduct and his Headquarters has been fixed at Vidisha under the District Manager, Sagar by filing Writ Petition no. 5050/2000 before the High Court of Madhya Pradesh which was dismissed by the High Court of Madhya Pradesh vide its order dated 4-9- 2000 with liberty to the writ appellant to pursue his remedy provided under the regulations. In the above order, the High Court has observed that the venue of enquiry is Bhopal and the Headquarters of the writ appellant has been fixed at Vidisha which is only at a distance of 50 km., therefore, there appears no ground calling for interference. The review petition was also dismissed. The writ appellant's appeal against the order of suspension under Regulation 68 of the Food Corporation of India (Staff) Regulations, 1971 (in short, 'the Regulations') was also dismissed. The disciplinary authority having not found the reply of the writ appellant to the charge sheet satisfactory imposed a penalty of withholding of two increments without cumulative effect and recovery of Rs. 7373/-. Learned Single Judge has not found any illegality in the above order passed by the disciplinary authority. We also see no reason to interfere in the above finding recorded by the disciplinary authority as well as the flnding recorded by learned Single Judge in above regard. 8. The second charge sheet dated 17-10-2000 was issued to the writ appellant but enquiry was not commenced and in between, the writ appellant was dismissed on 29-3-2001 pursuant to the charge sheet dated 1-12-2000. Therefore, the relief claimed to quash the above charge sheet has already been rendered infructuous. 9. Now coming to dismissal order dated 29-3-2001 in pursuance of charge sheet dated 1-12-2000 of the writ appellant. The writ appellant has vehemently argued that the disciplinary authority as also the enquiry officer have acted mala fidely. His request for transferring the enquiry to some y^ other State and for changing enquiry officer was not considered, though the same were based on documentary evidence as the writ appellant had lodged several written complaints against them in the past before the superior authorities; after the writ appellant was put under suspension, his Headquarters was fixed at Vidisha which is a distant place as the writ appellant was residing at Raipur at the relevant time; he has not paid subsistence allowance and salary due to him and because of financial crunch, he could not stay at his suspension Headquarters. Though the disciplinary authority directed him to remain at the Headquarters during suspension and not to leave the Headquarters without prior permission of the disciplinary authority, however during suspension the writ appellant could not be directed to remain in the Headquarters and all these acts of the respondents go to show that the disciplinary authority and the enquiry officer were actuated with malice. He further argued that he was not afforded fair opportunity of hearing during enquiry under Regulation 58 of the Regulations; he could not be forced to attend the enquiry proceedings without paying subsistence allowance and departmental proceedings were initiated and conducted with a malafide intention to dismiss the writ appellant by hook or crook ignoring the settled norms of principles of natural justice. Learned Single Judge ignored this aspect of the matter while passing the order impugned. 10. Regulation 66(6) of the Regulations read as under:- "Suspension: xxx XXX (6) *(An employee under suspension or deeded to have been under suspension shall be entitled to subsistence grant at one half of the pay drawn by the employee concerned immediately on the date preceding the date of his suspension). He is entitled to draw other compensatory allowances e.g., compensatory (city) allowance, house rent allowance, other than conveyance x •^^ L^ allowance admissible from time'to time, on the basis of pay of which he was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances. If the Headquarters of an employee under suspension are changed in the public interest by order of a competent authority, he shall be entitled to the allowance as admissible at the new station provided he furnishes the requisite certificates, if any, with reference to such station: Provided that no payment under this regulation shall be made unless the employee furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.?? 11. Learned Single Judge after perusing the document Annexure R-11, found that the allowance payable to the writ appellant from Vidhsha depot were returned as not paid on 1- 1-2001, 14-12-2000, 24-1-2001, 28-2-2001 and 29-3-2001; the writ appellant was directed time and again by the disciplinary authority as also by the enquiry officer to remain in the Headquarters at Vidisha and collect his subsistence allowance; his petition against fixing of Headquarters at Vidisha was dismissed by the High Court of Madhya Pradesh; the writ appellant was also communicated about various dates of the enquiry by the enquiry officer, however he chose not to participate in the enquiry on the pretext that he should be first paid subsistence allowance and other dues, though he was already directed by the enquiry officer to collect the same from his Headquarters as per order of suspension, rejected the ground taken by the writ appellant that the order of dismissal has been passed without affording him fair opportunity to defend himself and there is a violation of principles of natural justice in conducting ex parte enquiry against him. ;-^~--"%k :^1 ./" /.-: .i--^- 12. In the matter of Indra Bhanu ^©aiff^-v-Coniinittee, Manageinent of M.M. Degree College and others reported in 2003 LAB. I.C. 3844 while considering the effect of non- payment of subsistence allowance during the departmental proceedings against delinquent employee, it has been held that non-payment of subsistence allowance ipsofacto, cannot be a ground to vitiate the departmental proceedings and prejudice caused in effectively defending the proceedings must be shown and established by the affected employee. In paragraph 8, it has been held that "the appellant could not plead or substantiate also that the non'payment was either deliberate or to spite him and not due to his own fault It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non-receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non paymeni of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings" 13. In the matter of U.P. State Textile Corpn. Ltd. Vs. P.C. Chaturvedi and others reported (2005) 8 SCC 211 reiterating the view expressed in the case of Indra Gaurs (supra) as to payment of subsistence allowance, it has been held that where the rule provides that subsistence allowance is payable only when the employee, if required, presents himself every day at the place of work and no explanation was offered by the employee as to why he did not sign the attendance register, the requirement cannot be brushed aside lightly as technical and/or inconsequential, moreover, where the Rules governing employment also provide for the same. 14. In view of above, we also do not find any substance in the contention raised by the writ appellant and we are also of the view that the enquiry proceedings were conducted in ^> 8 accordance with law and in strict adherence to Regulation 58. 15. The writ appellant is also not able to bring on record any material suggesting the fact that the enquiry is actuated with malice and was only initiated and conducted in order to dismiss the writ appellant malafidely by hook or crook. The writ appellant also never raised any dispute that the charges were vague. Despite several notices/reminders he deliberately did not participate in the departmental proceedings on one pretext or the other. The disciplinary authority fonvarded the report to the writ appellant to afford him further opportunity to submit his defence, however the writ appellant refused to accept the enquiry report and did not submit any representation / reply against the enquiry report. 16. The Supreme Court in the case of Smt. Swaran Lata - v- Union of India and others reported in (1979) 3 SCC 165 has observed in para 57 of its judgment as under:- (<57, The next question for consideration is whether there was bias. We are unable to hold from the material on record that there was any bias on the part of Dr O.S. Sehgal, Director, Technical Education, Chandigarh or that he influenced the members of the Selection Committee in any manner, so as to vitiate the selection of Respondent 6. In our view, the allegations in the writ petition are not sufficient to constitute an averment of mala fides or bias on the part of either the Chandigarh Administration or, in particular, against Dr O.S. Sehgal sufficient to vitiate the appointment of Respondent 6. No mala fides as such are imputed against the Union Public Ser^ice Commission. The Court would be justified in refusing to carry on investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition. The burden of establishing mala fides lies very heavily on the person who alleges. 17. By applying the dictum of the judgment of Supreme Court in the above referred case in the facts and circumstances of the present case, it is crystal clear that the writ appellant utterly failed to discharge the burden lies on him to prove allegations of bias or malafide against the respondents and thus the arguments advanced by the writ appellant on this ground are also sans substance. 18. After considering the facts and circumstances of the case and the arguments advanced by the parties, we do not find any irregularity in the order of learned Single Judge. The writ appellant utterly failed to demonstrate any ground whatsoever warranting interference in the order impugned. The writ appeal being devoid of substance deserves to be and is hereby dismissed. 19. No order as to costs. Sd/- I.M. Quddusi Judge Sd/- N. K. Agarwal Judge y