IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14155 of 1990 (O&M) Date of decision: 01.06.2011 V.K.Sharma ...Petitioner versus Food Corporation of India and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Jasdeep Singh Wasu, Advocate, for the petitioner. Mr. Rajesh Garg, Advocate, for the respondents. ---- 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. The issue involved in this writ petition is the validity of the order of reduction in rank pursuant to departmental proceedings in an organization for proof of alleged misconduct. The misconduct complained of was a failure to make appropriate checks for the quality of goods dispatched from one depot to another. The challenge to the proceedings by the delinquent was that the enquiry was vitiated by violation of principles of natural justice in making assessments about the improper conduct of not making proper checks regarding the quality without following the due procedure. The penalty was imposed by a person, who was not competent to issue the order. The further challenge Civil Writ Petition No.14155 of 1990 (O&M) - 2 - to the validity of the order was on the basis that the appellate and the reviewing authorities had disposed of the proceedings before them without reasoned decisions. All the points, therefore, center around whether the enquiry had been properly conducted and the findings have been recorded by breach of any important ingredients of natural justice that could vitiate the entire proceedings. 2. The petitioner had joined the Food Corporation of India as Technical Assistant Grade-III (TAG-III) and promoted to the post of Technical Assistant Grade-II by the orders of the Zonal Manager. He was further promoted as TAG-I on 02.02.1976 and since the said date of promotion, the service conditions of the petitioner are governed by the Food Corporation of India (Staff) Regulations, 1971. 3. The petitioner, while he was working as TAG-I at FSD, Makhu, was issued with a charge-sheet (Annexure P1) dated 19.12.1983 by the Senior Regional Manager under Regulation 58 read with Regulation 50 of the Food Corporation of India (Staff) Regulations, 1971 for contravention of Regulations 31 and 32. The allegations were that the petitioner failed to maintain integrity and devotion to duty, had willfully accepted and dispatched substandard wheat stocks of PUNSUP, which had been previously rejected by the Assistant Manager (Quality Control), to Dhanbad resulting in a loss of Rs.38,265.74 and Rs.4,316.68 to the consignee. They were required to be upgraded and salvaged to make them fit for human consumption, but the petitioner had failed to carry out the proper upgradation. Civil Writ Petition No.14155 of 1990 (O&M) - 3 - 4. The petitioner predictably refuted all the allegations and stated that he had dispatched the stocks only after upgrading them by way of segregation and blending them with the good stocks and there had been no misconduct on his part. Adverting to the assessment, the goods had not been upgraded, the petitioner stated that as per the Head quarter's instructions, the DM (Quality Control) was required to send his inspection report regarding the stocks to the petitioner and afford to him a joint inspect of the stocks at the destination. This mandate had not been followed. The petitioner had his own reason to suspect that the goods could have been, if at all, spoiled only by winter rains which might have damaged the wheat transported through open wagons. The Enquiry Officer reasoned that the issue of whether the petitioner had not been given an opportunity to a joint inspection was not really material, for, it was not a case where the goods were declared to be of poor quality for the first time, but, on the other hand, it was a case where the goods had been previously declared as BRL (below rejection limit) by an AM(QC) and they had been returned for upgradation and the objection was that the upgradation had not been done at all. Rejecting the petitioner's contention that the goods could have been spoiled by monsoon rains, the Enquiry Officer held that it was the responsibility of the petitioner to have ensured that the open wagons were covered with tarpaulins and duly latched with ropes and if that had not been done, the petitioner cannot escape from his responsibility. The Senior Regional Manager accepted this report and imposed the punishment of penalty of reduction to a lower post i.e. from TAG-I to TAG-II with further bar on further Civil Writ Petition No.14155 of 1990 (O&M) - 4 - promotion and recovery of Rs.42,582.42 subject to maximum of one year's basic pay in 36 equated installments with immediate effect. The Zonal Manager in a non-speaking order rejected the appeal (Annexure P4) and, according to the petitioner, he had failed to advert to the objections that initiation of the disciplinary proceedings by the Senior Regional Manager was itself against the provisions of the amended Regulation 56 of 1971 regulation. Since the Zonal Manager was the appointing authority, he alone was competent to be the punishing authority. The objection regarding a double penalty of reduction in rank as well as bar on further promotion was not considered at all. It was his further objection that the appellate authority had not noticed the fundamental objection that the petitioner was not supposed to super inspect wheat at the time of dispatch. The review petition filed before the Managing Director, FCI, stood undecided at the time of filing of the writ petition. 5. In the reply given by the respondents to the petitioner's contentions raised in the writ petition as regards fundamental objection that the Senior Regional Manager could not have initiated the disciplinary enquiry, it was stated that the disciplinary authority in respect of TAG-I and II is Senior Regional Manager under the 1971 regulations. The promotion was itself not made by the Zonal Manager, but it was placed for his approval only for the information of the entire zone. As regards the petitioner's objection that the goods had not established to have been properly upgraded, it is contended by the respondents that the petitioner himself had never stated that he had Civil Writ Petition No.14155 of 1990 (O&M) - 5 - dispatched the goods after proper segregation and upgradation. Of the possible degradation resulting from monsoon rains, the contention was that it was the petitioner's own responsibility to cover them with tarpaulins and could not plead his own lapse to his benefit. The respondent also generally denied that the appellate authority had not properly considered the appeal. 6. As regards the fundamental objection that the disciplinary authority namely, the Regional Manager was not competent to initiate action, the respondent would produce a copy of the office order issued on 03.03.1976, promoting the petitioner among others as TAG-I from the post of TAG-II. The order has been issued only by the Assistant Regional Manager on behalf of Senior Regional Manager. I have not been shown through any particular provisions that it was only the Zonal Manager who had the competency to issue orders of promotion from TAG-II to TAG-I. The learned counsel for the respondent refers to the judgment of the Hon'ble Supreme Court in FCI and others Versus Sone Lal-(2005) 13 SCC 11, that dealt with the case of a compulsory retirement imposed by the Food Corporation of India and the extent of interference of the High Court. This judgment is in the context of the power of the Senior Regional Manager to take disciplinary action for TAG-I in a case where the order had emanated from the office of Zonal Manager. The Court held that a mere mention of the Zonal Manager in the order of appointment on promotion could not lead to an inference that the officer was promoted by the Zonal Manager. Referring to Section 56 Appendix 2 of the Regulations, the Hon'ble Supreme Court Civil Writ Petition No.14155 of 1990 (O&M) - 6 - held that the Senior Regional Manager/Regional Manager was the appointing authority for Category-III which included TAG-I. I, therefore, reject the objection that the disciplinary authority was not competent to initiate the proceedings. 7. As regards the objection that the charge had been initiated on the basis of a report which was carried out behind the back of the petitioner, I find that such objection is also without any merit, for, the charge was not that the goods had been dispatched as BRL for the first time. It had already been assessed as BRL and returned for upgradation and the charge was that the petitioner had not carried out the upgradation. The attempt was, therefore, to show that the petitioner had not involved the staff in making the segregation and blending them with good stock. If such a task had been undertaken by the petitioner, it should have been easy for the petitioner to explain that such work was undertaken at any given place or by securing the evidence of the particular persons that carried out the work. The petitioner relies on a judgment of the Hon'ble Supreme Court in Ram Chander Versus Union of India and others-AIR 1986 Supreme Court 1173 to contend that the appellate authority has disposed of the appeal without proper consideration of the grounds taken in the appeal and that they violate the principles of natural justice. The Supreme Court was dealing with Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, which, according to the petitioner, is in pari materia with Regulation 72 of the FCI 1971 Regulations. The Hon'ble Supreme Court held that there was a duty to give reasons as an incident of judicial process and the word Civil Writ Petition No.14155 of 1990 (O&M) - 7 - 'consider' in Regulation 27(2) implied 'due application of mind'. The nature of consideration and the depth of analysis in the order of an appellate authority is essentially dependent on the nature of charge and the contentions raised in the appeal. If the Enquiry Officer's report deals with all the objections and the disciplinary authority was affirming the report, it is not necessary to give elaborate reasons. There can be no rule of thumb as to how the forensic exercise of reasoning has to be adopted in the order of the disciplinary authorities. The proposition can only be that if there are no reasons given in the Enquiry Officer's report or when the disciplinary authority chooses to differ with the reasons given by the Enquiry Officer, then it would become essential that there is a proper reasoning expressed by the disciplinary authority himself or where he chooses to differ with the views of the Enquiry Officer, he shall give notice to the delinquent before taking a different view. In this case, I find that every one of the objections which the petitioner had been setting up as regarding the nature of charges, the Enquiry Officer himself has given elaborate reasons. This Court is not a Court of appeal and unless it is shown that the Enquiry Officer was relying on any piece of evidence which could not have been relied on and the basis of the charge itself was wholly undermined by complete lack of evidence, it cannot be a matter open for judicial review in the High Court. It must be remembered that it is a complete absence of evidence that will afford an occasion for intervention by the High Court and not the adequacy of evidence. The issue of adequacy of evidence for proof of a charge is again a matter which will decided on the particular facts of the case and, in this case, Civil Writ Petition No.14155 of 1990 (O&M) - 8 - the charge was that the petitioner had been lax in his duty of not properly making upgradation and for dispatching goods that resulted in financial loss. Learned counsel for the petitioner also relies on a judgment of this Court in Jagdish Kumar Versus The State of Punjab and another-1994 (4)RSJ 151 where the Court referred to the issue of violation of principles of natural justice that dealt with the burden of proof as to how the Management is always bound to prove that the particular charge is established by its evidence and not to make an inference that the charge is established by the failure of the delinquent to give his evidence. Although the burden is invariably on the Management to establish the charges, it was literally in the nature of a negative charge of an omission to do a particular thing. In this case, the petitioner had been charged with not having undertaken the task of upgradation of the stocks after a rejection was BRL previously by the AM(QC). Nothing more was required to be done than merely making an assertion that the petitioner had not undertaken the work which he was assigned to do. The petitioner was not able to give names of the persons, who had carried out the upgradation and blending under his supervision. If the goods had been stated to be of poor quality, it was indeed a halting admission of the petitioner that the goods could have been damaged due to monsoon rains. It was only in this context that the Management stated that it was the responsibility of the petitioner to ensure that they had been properly covered by tarpaulins to prevent any seepage of water. I have no doubt in my mind that the charge had been very clearly established. Civil Writ Petition No.14155 of 1990 (O&M) - 9 - 8. On the objection to the petitioner that multiple punishments had been made against the regulations, the petitioner is not able to point out any particular regulation which is violated or how the punishment had been against the decisions of Hon'ble the Supreme Court as contended in the petition. The learned counsel for the petitioner relies on the judgment of this Court in Ram Singh Versus Food Corporation of India and others 2008(7) SLR 776, which dealt with the issue of a penalty imposed for reduction in rank and barring future promotions. In the said judgment, the Court was actually dealing with the situation of a person being appointed by the Zonal Manager but the penalty had been imposed by the Senior Regional Manager. The imposition of penalty by an Officer belong the rank of the appointing authority, was found to be the basis why such punishment could not imposed. I find even in the appeal filed against the order of the Regional Manager, it has not been contended anywhere that the punishment imposed was violative of any of the regulations and that the so-called multiple punishments were not authorized under the regulations. I do not find any such objection being taken in the application for review filed before the Managing Director. As pointed out above even the objection regarding the alleged multiple punishment is only that it is against the decisions of the Hon'ble Supreme Court and iniquitous and that it could not pass the test of judicial scrutiny. The issue of punishment cannot be a subject of adjudication before the Court unless it is capricious and shocks the conscience of a Court or it was against the punishment prescribed under the regulations. I have already pointed out that there is no particular regulation which is Civil Writ Petition No.14155 of 1990 (O&M) - 10 - shown to be violated. The contentions raised by the petitioner on the penalty imposed cannot also be sustained. 9. Learned counsel for the respondent refers to a judgment of the Hon'ble Supreme Court in Apparel Export Promotion Council Versus A.K.Chopra-(1999)1 Supreme Court Cases 759 that held that the power of the High Court under Article 226 shall not be interfered with departmental enquiry on its finding of facts unless such finding was based on such evidence that was wholly perverse and legally untenable. The Hon'ble Supreme Court reiterated the well-known judicial principle that judicial review itself is not concerned with the correctness of the decision but it is confined to the examination of the decision making process, namely, the established principles of natural justice. The review court cannot substitute its opinion for that of the administrative authority. Again, on the issue of punishment of penalty, the Court held that unless it was impermissible or shocks the conscience, the Court shall not normally interfere. 10. I do not think that there is any scope for interference in the orders impugned in the writ petition. The writ petition is, consequently, dismissed. (K. KANNAN) JUDGE 01 .06.2011 sanjeev