Civil Writ Petition No. 19483 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 19483 of 2008 Date of decision: 29.03.2011 Charan Singh ...Petitioner Versus Food Corporation of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. G.S. Sandhu, Advocate for the petitioner. Mr. Rajesh Garg, Advocate for the respondents. RANJIT SINGH J. The petitioner primarily is aggrieved against the order enhancing the punishment of pay reduction imposed on him to dismissal by the appellate authority in exercise of suo motu powers. The petitioner has, accordingly, filed this writ petition not only to seek setting aside of the enhanced punishment of dismissal but has even challenged the very imposition of the penalty to him. The petitioner is an employee of Food Corporation of India (FCI) where he joined on 25.04.1972. On 17.11.2000, the proceedings were initiated against him under Regulation 58 of the Food Corporation of India Staff Regulation, (hereinafter referred to as 'Regulation') 1971. The charges against the petitioner were that he failed to maintain absolute integrity and devotion to duty, thus, causing pecuniary loss to the FCI to the tune of nearly Civil Writ Petition No. 19483 of 2008 2 ` 33,34,530/-. The charges alleged against the petitioner are as under:- “ Article 1 That the said Sh. Charan Singh, AG.II (D) while working at PSDD Mahalkalan during June, 1998 failed to maintain absolute integrity and devotion of duty in so much so he failed to obtain the priority of the stocks as per extent instructions and violated the FIFO instructions in connivance with Q.C. Staff for his ulterior motive as a result of which destination lodged complaint regarding receipt of extremely inferior quality stocks beyond PFA Act standard and put the FCI to a pecuniary loss of Rs. 28,21,339.10ps. Article 2 That he is connivance with Shri Jagdev Singh, AG.1 (D) and QC staff tempered with/manipulated official record/documents for his ulterior motives. He is, thus, charged for committing grave misconduct of acceptance/dispatch of BRL Stock in connivance with QC officials, violation of FIFO instructions and tempering/manipulation of officials records/documents and causing pecuniary loss to the corporation, thereby contravening Regulations 31,32 and 32(A) of FCI (Staff) Regulation, 1971.” Senior Regional Manager, FCI (respondent No. 4) on the basis of an inquiry had imposed the penalty of reduction of pay scale Civil Writ Petition No. 19483 of 2008 3 for period of 5 years. As a consequence thereof, the petitioner was made to draw pay at the minimum of the scale of lower post during penalty period and after expiry of five years, he was to start earning increments from the reduced stage of pay. Copy of the punishment order is annexed with the petition as Annexure P-1. The petitioner filed an appeal against this order on 23.10.2001 before the Zonal Manager, FCI. Instead he received a show cause notice asking him to explain as to why the penalty imposed on him by the disciplinary authority be not enhanced as it was not commensurate with his guilt. The petitioner filed reply and, thereafter, the appellate authority passed order on 23.10.2002 dismissing the petitioner from service. Thus, this order was passed while exercising suo muto power to review the punishment. The petitioner, thereafter, filed mercy petition on 17.12.2002 praying for revoking the punishment. This prayer of the petitioner was declined by the Director, FCI on 11.09.2006. Thereafter, the petitioner has filed the present writ petition in the year 2008. In response to the notice of motion, reply has been filed on behalf of the respondents. It is stated that the petitioner has not approached this Court with clean hands. It is alleged that he has committed various acts of omission and commission while he was posted in the Corporation. It is pointed out that he was earlier charge sheeted for major and minor penalties and has been penalized as well. It is then stated that the quantum of punishment normally should not be interfered by the courts. As per the reply, the charges in the Civil Writ Petition No. 19483 of 2008 4 present case relates to causing loss to the Corporation to the tune of more than ` 34 lakhs and so the enhanced punishment imposed on the petitioner is termed just and proper. Though the petitioner has primarily made a grievance that principal defaulter has been let off lightly but the harsh punishment has been imposed on him and, as such, the punishment should have been interfered with rather than enhancing the same. The petitioner has not impugned the jurisdiction of the respondent/appellate authority in enhancing the punishment suo motu while considering the appeal filed by him. The provisions governing the award of punishment and appeal were placed before the Court in support of the submissions made by the counsel. It would require consideration if the appellate authority have suo muto power to enhance the punishment while considering the appeal filed by the delinquent employee. Counsel for the respondents has made reference to Regulation 72 of the Regulation under which the appeal of the petitioner was considered. The counsel has referred to these provisions with emphasis, which according to him, empowers the appellate authority to enhance the penalty. If the appellate authority proposes to impose a major penalty specified in Clauses (v) to (ix) of the Regulation 54 of the Regulation, then it has to give a show cause notice to the employee asking him to respond as to why the enhanced penalty should not be imposed on him. The appellate authority is then to pass the final order after taking into account the representation if any submitted by the employee. In this context, it is stated that the power of the appellate Civil Writ Petition No. 19483 of 2008 5 authority to enhance the punishment suo motu very much can be read into Regulation 72 of the Regulation. Not only that the counsel has also referred to Regulation 74 of the Regulation, which makes provision of review. As per the counsel, if the appellate authority while dealing with the appeal decides to suo motu review the penalty imposed then it would have power to invite Regulation 74 of the Regulation impliedly, which authorizes the authority to enhance the punishment suo motu in exercise of powers of review. Accordingly, the counsel submits that even if the punishment has been enhanced on an appeal filed by the delinquent employee, the appellate authority would have power to enhance the punishment and, hence, the order can not be termed bad on that count. I have considered the above-noted submissions with due deliberations. The consideration of appeal is regulated by Regulation 72 of the regulations, which is as under:- 72. Consideration of appeal: (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Regulation 66 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in Regulation 54 or enhancing any penalty imposed under the said Regulation, the appellate authority shall consider - Civil Writ Petition No. 19483 of 2008 6 (a) where the procedure laid down in these regulations has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions under these regulations or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c ) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders - i) confirming, enhancing, reducing, or setting aside the penalty; or ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; *Provided that if the enhanced penalty which the appellate authority proposes to impose is a major penalty specified in clauses (v) to (ix) of Regulation 54 and an inquiry as provided in Regulation 58 has not already been held in the case, the appellate authority shall direct that such an enquiry be held in accordance with the provisions of Regulation 58 and thereafter consider the record of the inquiry and pass such orders as it may deem proper. If the Civil Writ Petition No. 19483 of 2008 7 appellate authority decides to enhance the punishment but an enquiry has already been held as provided in Regulation 58, the appellate authority shall give a show cause notice to the employee as to why the enhanced penalty should not be imposed upon him. The appellate authority shall pass final order after taking into account the representation, if any, submitted by the employee. (3) In an appeal against any other order specified in regulation 68, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable. Regulation 72 (1) deals with those appeals, which are filed against the order of suspension. Regulation 72 (2) relates to an appeals, which are filed against the order imposing penalties. The proviso under the regulation would show that the appeal is filed against the order imposing any penalty specified in Regulation 54 of the Regulation. Alternatively, the proviso is made for enhancing any penalty imposed under the said regulation. The question then would arise is whether in an appeal filed by the delinquent employee challenging the imposition of penalty it would be within the jurisdiction of the appellate authority to enhance the penalty or said penalty can only be enhanced if there is any appeal filed for enhancing any such penalty imposed. Obviously, the situation cannot be imagined, where delinquent employee would approach the appellate authority for enhancing the penalty. If the Civil Writ Petition No. 19483 of 2008 8 penalty is to be enhanced, approach has to be made by the organization if it is aggrieved against the quantum of the penalty imposed. The question then would arise whether the appellate authority have power to enhance the penalty even if there is no prayer made in this regard. Reading the provisions of Regulation 72 of the Regulation in contrast to wording of Regulation 74 of the Regulation would clearly reveal the distinction where suo motu power can be exercised or where such powers would have to be exercised on move being made before the authority is clear. Regulation 74, which talks of review and reads as under:- 74. Review: (1)**(Notwithstanding anything contained in these regulations, the Board may, at any time either on its own motion or otherwise, call for the records of any inquiry and review any order made under these regulations), and (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit; Civil Writ Petition No. 19483 of 2008 9 *Provided that no order imposing or enhancing any penalty shall bel made by the reviewing authority unless the employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Regulation 54 or to enhance the penalty imposed by the order sought to be viewed to any of the penalties specified in those clauses; no such penalty shall be imposed except after an inquiry in the manner laid down in Regulation 58. (2) No proceeding for review shall be commenced until after: i) the expiry of the period of limitation for an appeal, or ii) the disposal of the appeal, where any such appeal has been preferred. (3) An application for review shall be dealt with in the same manner as if it were an appeal under these regulations. (4) Powers similar to those specified in clause (1) above may be exercised by the (Chairman), Managing Director, Zonal Manager and Regional Manager Civil Writ Petition No. 19483 of 2008 10 (Additional/Joint Manager) in respect of orders passed by authorities subordinate to them. There is a clear provision made in Regulation 74 of the Regulation that the Board may, at any time either on its own motion or otherwise, call for the records of any inquiry and review any order made under these regulations. The suo motu power of review which would include reviewing as such, thus, is clearly made in Regulation 74 of the Regulation. Such is not the wording of Regulation 72 of the Regulation. Under Regulation 72 of the Regulation, the appellate authority could assume jurisdiction only once there is an appeal filed. Suppose a case where the delinquent employee does not file any appeal and then the appellate authority would have nothing before it to enhance the punishment. That is not the situation where a power of review is exercised. It is possible to view that appeal could be filed for challenging the finding recorded by the disciplinary authority and also against the punishment imposed and so also for enhancing the penalty. Since the enhancement of penalty can only be sought by the department as such, it can be safely assumed that this is an enabling provision for the department to file an appeal seeking enhancement of punishment. If that be so, suo motu power to enhance penalty as appellate authority, apparently, under Regulation 72 of the Regulation cannot be read and such power has to be in an appeal filed. In the absence of appeal such powers are apparently not available for being exercised. It would, otherwise, stand to logic. The Civil Writ Petition No. 19483 of 2008 11 person would approach the appellate authority for grant of relief. No employee would appeal for enhancement of punishment. It would not be fair to enhance the punishment when an employee has come to seek some relief. There is no prayer made for the enhancement of punishment. At the most, the appellate authority could dismiss the appeal on any of the grounds available but to say that the appellate authority had a cause or jurisdiction to enhance the punishment would amount to reading the provisions by adding something into provisions of Regulation 72 of the Regulations. As explained in Halsbury Laws of England, an appeal is an application to a superior court or tribunal to reverse, vary or set aside the judgment, order, determination, decision or award of an inferior court or tribunal in the hierarchy of courts or tribunals on the ground that it was wrongly made or that as a matter of justice or law it requires to be corrected. A right of appeal is conferred by statue or equivalent legislative authority, it is not a mere matter of practice or procedure, and neither the superior nor the inferior court or tribunal nor both combined can create or take away such a right. Thus, I am of the view that the appellate authority has exceeded its jurisdiction in enhancing the punishment while dealing with the appeal filed by the petitioner. The order enhancing the punishment, therefore, cannot be made to stand. Power of judicial review is being exercised when it is noticed that the appellate authority has invoked the jurisdiction which it does not possess. It is not an interference in the quantum of punishment or in the punishment as such. The enhanced punishment is set aside. It is Civil Writ Petition No. 19483 of 2008 12 made clear that the original order of punishment imposed on the petitioner would stand from the date it was given effect to. The necessary consequences would follow. The petitioner apparently has superannuated by now. The writ petition is allowed in the above terms. March 29, 2011 (RANJIT SINGH ) rts JUDGE