IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 5080 of 2006 Date of decision: August 21, 2008 Bhag Ram and others -----Petitioners Vs. Food Corporation of India and others -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE RAKESH KUMAR GARG Present: Mr. JS Wasu, Advocate for the petitioners. Mr. KS Rikhi, Advocate for the respondents. Adarsh Kumar Goel,J. 1. This petition seeks quashing of order dated 14.2.2006, Annexure P.9 appointing a retired officer as Enquiry Officer to conduct an enquiry. Further prayer is for quashing Regulation 58 (4) and (11) of the FCI (Staff) Regulations 1971. Prayer has also been made for quashing departmental enquiry initiated without supplying the documents referred to in the charge sheet. Initially, this petition was filed by 19 persons but later three of the petitioners have withdrawn themselves. 2. Case of the petitioners is that the 19 petitioners were employed in Depot Cadre of the Food Corporation of India. They CWP No.5080 of 2006 were issued charge sheet dated 4.6.2005, which contained charges as to quality of foodgrains for which quality control staff was responsible. They denied the charges and since no decision was being taken, they filed CWP No.17015 of 2005 and CWP No.17002 of 2005 with a prayer to take a decision in the light of judgment of the Hon’ble Supreme Court in State of Punjab v. VK Khanna, AIR 2001 SC 343. Notice was issued in the said writ petitions but before the date of hearing, one Shri RP Sood was appointed as Enquiry Officer, who was retired Deputy Manager of FCI. The said appointment was illegal and against the instructions of the Food Corporation of India dated 22.9.1986 and 6.1.1971 to the effect that Enquiry officer should be higher in official status. The Enquiry Officer having been appointed, CWP Nos.17015 and 17002 of 2005 were withdrawn on 21.3.2006 and present writ petition has been filed challenging appointment of Enquiry Officer. 3. Learned counsel for the petitioners relied upon judgments of the Hon’ble Supreme Court in Ravi Malik, v. National Film Development Corporation Limited and others, (2004) 13 SCC 427, State of UP v. Shatrughan lal and another, JT 1998(6) SC 55, Committee of Management, Kisan Degree College v. Shambhu Saran Pandey and others, JT 1995(1) SC 270 and judgment of this Court in Shri VK Khanna v. Union of India and others, 1998(4) RSJ 737. 2 CWP No.5080 of 2006 4. In the reply filed, the stand taken is that the petitioners caused loss of Rs.9195958.55. The cadre of Quality Control and Depot were inter-dependent and inter-linked and employees of the Depot could not avoid the responsibility, as alleged in the charge sheet. All the documents had already been supplied to the petitioners. There was no infirmity in the appointment of Enquiry Officer. Objections to the appointment of Enquiry Officer or to the conduct of enquiry are premature. Vide letter dated 12.5.1999, Annexure R.1, Shri R.P.Sood was taken on the panel of Enquiry officers, which was reiterated vide letter dated 15.5.2004. As per Regulation 58(4), articles of charges are given with a list of documents and after receiving the reply, the disciplinary authority can either hold enquiry itself or appoint an Enquiry Officer. Under Regulation 58(11), the employee is allowed to inspect and take extracts of documents and submit a list of witnesses after the evidence has been led by the Presenting Officer. 5. The Regulations relied upon are quoted below:- “58(4). The disciplinary authority shall deliver or cause to be delivered to the employee a copy of articles of the settlement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by each article of charge is proposed to be sustained and shall require the employee to submit, within such may be specified, a written statement of his defence and to state whether he desires to be heard in person. 3 CWP No.5080 of 2006 Xx xx xx xx xx (11) The inquiring authority shall, if the employee fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the employee may, for the purpose of preparing his defence; i) Inspect and take extract from, if desired, within five days of the order or within such further time not exceeding five days as the inquiring authority may allow the documents specified in the list referred to in Sub Regulation (3); ii) Submit a list of witnesses to be examined on his behalf. Note: If the employee applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in Sub Regulation (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery or production of any documents which are in the possession of Corporation but not mentioned in the list referred to in Sub Regulation (3). 4 CWP No.5080 of 2006 Note: The employee shall indicate the relevance of the documents required by him to be discovered of produced by the Corporation.” 6. We have heard learned counsel for the parties and perused the record. 7. The questions for consideration are:- (i) Whether appointment of a retired officer as an Enquiry Officer is permissible? (ii) Whether the procedure laid down in Regulation 58(4) and (11) is invalid and on that ground, the charge sheet was liable to be quashed? Re: (i) 8. In Dalmia Dadri Cement Ltd., M/s. v. Murari Lal Bikaneria, AIR 1971 SC 22, Paras 16 and 19, it was held that there is no bar to an outsider being appointed as an Enquiry Officer. In Ravi Malik (supra) relied upon by learned counsel for the petitioner, the regulation required “public servant” to be appointed as an Enquiry Officer. In the present case, no such rule has been brought to our notice. The said judgment is, thus, distinguishable. The Enquiry Officer appointed is a senior retired officer higher in rank than the petitioners. 9. We do not find any error in the appointment of a retired officer as Enquiry Officer. Instructions that instead of appointing a 5 CWP No.5080 of 2006 Gazetted Officer, enquiry can be conducted by sufficiently senior person and not by a junior officer, does not debar the appointment of a retired person of sufficient seniority from being appointed as Enquiry Officer. The Enquiry Officer in the present case was a retired Deputy Manager (General). Re: (ii) 10. It is well settled that in a departmental enquiry, rules of natural justice have to be followed, which require that the affected party is given opportunity of adducing evidence and evidence of opponent is taken in his presence and is given opportunity to cross examine the witnesses and no material is relied upon without giving him opportunity of explaining the same. Reference may be made to judgment of the Hon’ble Supreme Court in Union of India v. T.R.Varma, AIR 1957 SC 882, Para 10. 11. The rules quoted above show that requirement of giving documents relied upon has been laid down. There is further opportunity to inspect and take extracts from the documents at a later stage under Sub Rule (11). It cannot, thus, be said that merely because an additional opportunity at subsequent stage is given, the procedure is arbitrary. Judgments in Shatrughan Lal and Shambhu Saran Pandey (supra) that mere availability of documents for inspection was not enough, has, thus, no application. Judgment of this Court in V.K.Khanna (supra) that in appropriate case, even charge sheet could be quashed, also does 6 CWP No.5080 of 2006 not help the petitioner, as therein charge sheet was found to be vitiated by malafides. It was made clear in the said judgment that Writ Court will not normally stall an enquiry or to quash the charge sheet. This position of law is well settled and reference may also be made to judgments of the Hon’ble Supreme Court in Union of India and others v. A.N.Saxena, AIR 1992 SC 1233, Union of India and others v. K.K.Dhawan, (1993) 2 SCC 56, Union of India and another v. Ashok Kachker, 1995 Supp (1) SCC 180, Dy.Inspector General of Police v. K.S.Swaminathan, (1996) 11 SCC 498 and State of Punjab and others v. Ajit Singh, (1997) 11 SCC 368. 12. We are unable to hold that there is any infirmity in the charge sheet or in the rules laying down procedure for disciplinary action. 13. The writ petition is dismissed. (Adarsh Kumar Goel) Judge August 21, 2008 (Rakesh Kumar Garg) ‘gs’ Judge 7