IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.03.2008 CORAM: THE HONOURABLE Mr.A.P.SHAH, CHIEF JUSTICE and THE HONOURABLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA Writ Appeal No.1420 of 2007 and M.P.No.1 of 2007 1. THE CHAIRMAN FOOD CORPORATION OF INDIA, 16-20 BARAKHAMBA LANE, NEW DELHI. 2 THE ZONAL MANGER (SOUTH), FOOD CORPORATION OF INDIA, ZONAL OFFICE, NO 3 HADDOWS ROAD, CHENNAI- 6. 3 THE SENIOR REGIONAL MANGER & COMPETENT AUTHORITY, FOOD CORPORATION OF INDIA, REGIONAL OFFICE P.KALINGA RAO ROAD, SUBBAIAH CIRCLE, BANGALORE. 4 THE EXECUTIVE DIRECTOR (SOUTH) (FORMERELY ZONAL MANAGER (SOUTH)) & APPELLATE AUTHORITY, FOOD CORPORATION OF INDIA, NO 3 HADDOWS ROAD, NUNGAMBAKKAM CHENNAI- 6. .. Appellants./ Respondents 1 to 3 and 5 Vs. 1 A. ANANDAN 2 THE NATIONAL COUNCIL FOR SC/ST LOK NAYAK BHAVAN, NEW DELHI. .. Respondents./ Petitioner and 4th Respondent https://hcservices.ecourts.gov.in/hcservices/ Appeal filed under Clause15 of Letters Patent, against the order of the learned single Judge passed in W.P.36779/2006 dated 4.9.2007. W.P.36779/2006 presented under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the 5th respondent Executive Director (South) and Appellate Authority Food Corporation of India Zonal Office Haddows Road, Nungambakkam, Chennai-6 in communication No. 32(1)/ 2005 CR Cell dated 6.7.2006, quash the same and further direct the respondents to reinstate the petitioner into service with continuity of service, back wages and all attendant benefits. For appellants : Mr. R.Krishnamoorthy,Senior Counsel, for Mr.P.D.Audikesavalu. For respondents: Mr.K.Subramanian, Senior Counsel, for Mr.M.S.Punniyakotti. R1 J U D G M E N T (Judgment of the Court was delivered by The Hon'ble The Chief Justice) The first respondent was employed as Assistant Grade I in Zonal Office of the Food Corporation of India (for short "FCI"). Due to the agitation conducted by the SC/ST Employees Association demanding for implementation of the post based roster system, certain unpleasant events took place in the office of the appellant/Corporation. By an order dated 30.7.1999, the first respondent was transferred to the Karnataka Region. There was an en masse transfer of 46 employees from Chennai Region to other places and the first respondent was the Chairman of the FCI SC/ST Employees' Welfare Association, South Zone, Chennai. From November, 1999 to May, 2000, the transferred employees started a series of demonstrations in front of the Zonal Office of the FCI. On 15.5.2000 the appellant/Corporation filed a Civil Suit before the Original Side of this Court, being C.S.No.368 of 2000 against 21 employees out of 46 employees who had been transferred, seeking for an injunction restraining the transferred employees from holding any demonstration and also for recovery of a sum of Rs.10,01,000/- by way of damages from those workmen for loss of reputation. The first respondent was not served with any show-cause notice. However, a public notice dated 1.11.2000 was published in "The Hindu" a daily newspaper and it was intimated in that notice that the first respondent was transferred by order dated 30.7.1999 and he was relieved on 10.8.1999. He did not join even after a lapse of 2-1/2 years in the place of posting and when registered letter https://hcservices.ecourts.gov.in/hcservices/ dated 17.10.2000 was sent to him he neglected to report at the new place of posting and that he was also issued with a show cause notice as to why his services should not be terminated in terms of Regulation 19 of the FCI (Staff) Regulations 1971 (for short "Regulations"). Again by a public notice published in "The Hindu" dated 3.12.2000, a final show-cause notice was issued to the first respondent. Thereafter, by a public notice dated 21.12.2000, the impugned order of termination passed against the first respondent, was also published in "The Hindu", dated 18.1.2001. The impugned order of termination came to be passed based upon the Regulation 63 (ii) read with Regulation 56 of the Regulations. It may be mentioned at this stage that two similarly placed employees viz., V.Vadivel and K.Thangaraj, were also dismissed from service. Writ Petition No.21782 of 2001 filed by P.Vadivel against the dismissal order, was allowed by this Court and the order of dismissal was set aside and the FCI was directed to hold an enquiry in accordance with law and ultimately after conducting an enquiry, a penalty of compulsory retirement was imposed on P.Vadivel. In appeal, however, the punishment of compulsory retirement was substituted by withholding one increment only. In so far as K.Thangaraj, is concerned, his appeal against the order of removal, was dismissed by the Appellate Authority and Review Petition was also dismissed by the Zonal Manager, Chennai. However, subsequently, at the intervention of National Commission for SC/ST, a mercy petition filed by K.Thangaraj was allowed and he was reinstated in service. On 19.9.2005 a representation was made by the first respondent to the FCI seeking reinstatement in service inter alia, on the ground that similarly placed employees have been reinstated in service. In W.P.No.39971 of 2005 filed by the first respondent, FCI was directed to dispose of the representation made on 19.9.2005 considering it as a review petition under Regulation 74 of the Regulations, after affording a personal hearing to the first respondent, on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of that order. By order dated 6.3.2006, the Executive Director (South), Appellate Authority, converted the punishment of removal from service to that of compulsory retirement from service with effect from 11.8.1999. Being aggrieved, the first respondent filed the present writ petition which came to be allowed by the learned single Judge and the FCI was directed to reinstate the first respondent in service with all consequential benefits. However, it was clarified that the order of reinstatement will not prevent the FCI from taking any further action against the first respondent in terms of the Regulations framed by the FCI, if circumstances of the case so warrant. 2. We have heard Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the appellants and Mr.K.Subramanian, learned Senior Counsel, appearing for respondents. The short question that falls https://hcservices.ecourts.gov.in/hcservices/ for our consideration is whether circumstances of the present case warrant invocation of special provision contained in Regulation 63 (ii) of the Regulations. Regulation 63(ii) of the Regulations reads as follows:- "63. Special procedure in certain cases: (i) ..... (ii) Where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these regulations." 3. On a bare reading of Regulation 63(ii) it is clearly seen that it is akin to the provision contained in Article 311(2)(b) of the Constitution of India. The scope of Article 311(2)(b) fell for consideration of the Constitution Bench of the Supreme Court in Union of India Vs. Tulsi Ram Patel, 1985 (3) SCC 398. The relevant passages in the said Judgement read as follows:- "Para 130: The condition precedent for the application of clause is the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are “not reasonably practicable” and not “impracticable”. According to the Oxford English Dictionary “practicable” means “Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible”. Webster's Third New International Dictionary defines the word “practicable” inter alia as meaning “possible to practice or perform : capable of being put into practice, done or accomplished: feasible”. Further, the words used are not “not practicable” but “not reasonably practicable”. Webster's Third New International Dictionary defines the word “reasonably” as “in a reasonable manner: to a fairly sufficient extent”. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause ( b ). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some https://hcservices.ecourts.gov.in/hcservices/ instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. The case of Arjun Chaubey v. Union of India is an instance in point. In that case, the appellant was working as a senior clerk in the office of the Chief Commercial Superintendent, Northern Railway, Varanasi. The Senior Commercial Officer wrote a letter to the appellant calling upon him to submit his explanation with regard to twelve charges of gross indiscipline mostly https://hcservices.ecourts.gov.in/hcservices/ relating to the Deputy Chief Commercial Superintendent. The appellant submitted his explanation and on the very next day the Deputy Chief Commercial Superintendent served a second notice on the appellant saying that his explanation was not convincing and that another chance was being given to him to offer his explanation with respect to those charges. The appellant submitted his further explanation but on the very next day the Deputy Chief Commercial Superintendent passed an order dismissing him on the ground that he was not fit to be retained in service. This Court struck down the order holding that seven out of twelve charges related to the conduct of the appellant with the Deputy Chief Commercial Superintendent who was the disciplinary authority and that if an inquiry were to be held, the principal witness for the Department would have been the Deputy Chief Commercial Superintendent himself, resulting in the same person being the main accuser, the chief witness and also the judge of the matter. Para 131: It was submitted that where a delinquent government servant so terrorizes the disciplinary authority that neither that officer nor any other officer stationed at that place is willing to hold the inquiry, some senior officer can be sent from outside to hold the inquiry. This submission itself shows that in such a case the holding of an inquiry is not reasonably practicable. It would be illogical to hold that the administrative work carried out by senior officers should be paralysed because a delinquent government servant either by himself or along with or through others makes the holding of an inquiry not reasonably practicable. Para 132: It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been let in part. In such a case also the disciplinary authority would be entitled to apply clause(b) of the second proviso because https://hcservices.ecourts.gov.in/hcservices/ the word "inquiry" in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it, the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, exclusionary words of the second provisio operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2)." 4. In Satyavir Singh Vs. Union of India, 1985 (4) SCC 252, a three judge Bench of the Supreme Court made a topic-wise summary of the conclusions reached by the majority in Tulsiram Patel's case and also emphasised the important rights conferred therein on the civil servants in matters of remedies available to them in the nature of review and appeal. The conclusions recorded by the three judge Bench inter alia read as follows: "(55) There are two conditions precedent which must be satisfied before clause (b) of the second proviso to Article 311(2) can be applied. These conditions are: (i) there must exist a situation which makes the holding of an inquiry contemplated by Article 311(2) not reasonably practicable, and (ii) the disciplinary authority should record in writing its reason for its satisfaction that it is not reasonably practicable to hold such inquiry. (56)................ (57)................ (58)................ (59)................ (60) The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and must fail. (61) The word 'inquiry' in clause (b) of the https://hcservices.ecourts.gov.in/hcservices/ second proviso includes a part of an inquiry. It is, therefore, not necessary that the situation which makes the holding of an inquiry not reasonably practicable should exist before the inquiry is instituted against the civil servant. Such a situation can also come into existence subsequently during the course of the inquiry, for instance, after the service of a charge-sheet upon the civil servant or after he has filed his written statement thereto or even after evidence has been led in part. (62) It will also not be reasonably practicable to afford to the civil servant an opportunity of a hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it, the civil servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. (63)..............." 5. In a later judgment in Jaswant Singh Vs. State of Punjab, 1991 (1) SCC 362, Ahmadi,J., as his Lordship then was, speaking for the Bench, observed that Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. 6. Therefore, we have to find out whether the discretion found in Regulation 16(ii) was available and whether the disciplinary authority was satisfied in invoking Regulation 16(ii) of the Regulations. In the present case, the show-cause notice was published in "The Hindu", a daily newspaper in the Business Page on 1.11.2000. It was stated that the first respondent should report to the Bangalore Office within three days, failing which, disciplinary action will be taken against him and since he had not reported, he was asked to show cause as to why his services should not be terminated under Regulation 19 of the Regulation. Regulation 19 deals with termination of services of the employee by giving 90 days notice or pay and allowances in lieu of notice. Thereafter, a final show-cause notice was published again in "The Hindu" newspaper dated 3.12.2000 in which it was stated that the https://hcservices.ecourts.gov.in/hcservices/ first respondent had violated Regulation 17 read with 32-A (6 and 20) of the Regulations. While Regulation 17 deals with transfer, 32-A(20) describes various misconducts. It was stated in that show-cause notice that the first respondent was not receiving any lawful orders of the competent authority and that he was not taking cognizance of fresh notice. Thereafter, final dismissal order was published in "The Hindu" newspaper dated 18.1.2001 wherein it was stated that it was not possible for the competent authority to have any kind of enquiry or proceeding as per the Staff Regulations. The dismissal order reads as follows: "O R D E R WHEREAS Sri A.Anandan, AG.I (Accts) was transferred on administrative grounds from the Food Corporation of India, Zonal Office, Chennai – 6 and posted to Karnataka Region vide Order No.267/99 E.I dated 30.07.1999 of the Competent Authority. WHEREAS the official has refused to accept the transfer order when served through concerned controlling officer, the order was then sent to his residence in the last known address which has also been returned unserved with postal remarks like 'Refused' etc. Afterwards the Notice was finally published in the news paper viz., 'The Hindu' dated 01.11.2000 with the direction to join at his new place of posting within 10 days. In the Press Notice dated 03.12.2000 it was specifically notified about his transfer and relief with effect from 10.08.1999. WHEREAS it is reported that as on date 01.12.2000 even after a lapse of 1 year 2 months the said official has not yet joined at his place of posting and continuously absent since 11.08.1999 thereby he has failed to comply with and willfully disobeyed the orders of the Competent Authority and thus violated the provisions of FCI Staff Regulations 1971 read with Regulation 17 and 32A(6 and 20) and rendered himself liable for action for broaching the lawful orders. WHEREAS as a Final Show Cause Notice published in the newspaper namely 'The Hindu' dated 03.12.2000 by giving one more final opportunity with direction to report at his new place of posting within 15 days of appearing of publication failing which it will be construed that by such act of disobeying the orders of https://hcservices.ecourts.gov.in/hcservices/ Competent Authority without sufficient and reasonable cause he has rendered himself to be unfit for continuing in the service of the Food Corporation of India and his services will be deemed to have been terminated under the provisions of FCI Staff Regulations 1971. WHEREAS it is not possible to communicate with him either in person or post and he is continuously denying to receive the lawful orders of the Competent Authority and even not taking cognizance of the Press Notification, thus it is not possible for the Competent Authority to have any kind of enquiry or proceedings as per FCI Staff Regulations, 1971 compelling the Competent Authority to invoke special provisions under Regulation-63 of FCI Staff Regulations, 1971. AND WHEREAS inspite of having been given repeated opportunity of being heard and fully notified, the said official has deliberately and intentionally failed and / or neglected to show cause for his non-compliance with the Competent Authority's Order No.267/99.e.i.. dated 30.7.1999. In view of the above, the undersigned being the Disciplinary Authority impose the penalty of 'REMOVAL FROM SERVICE' of the Food Corporation of India with effect from 11.8.1999 F/N under Regulation 63(ii) read with 56 of the FCI (Staff) Regulations, 1971. The receipt of this order shall be acknowledged by Sri A.Anandan, Asst. Grade – I (Accts)." 7. It is fairly conceded by the learned Senior Counsel appearing for the appellants that though the impugned order states that notice sent to last known address of the employee, returned un-served with postal remarks "Refused", the actual endorsement shows as "Left". Thereafter, the FCI resorted to a public notice pursuant to the Regulation 75 of the Regulations which deals with service of orders and notices and the same is reproduced herewith: "75. Miscellaneous: Service of Orders, Notices, etc.: The following procedure shall be followed by the Corporation while serving orders, notices, etc. on Corporation's employees: (i) Every order, notice and other process made or issued under these Regulations shall, as far as possible, be delivered or tendered to the employees concerned in person; https://hcservices.ecourts.gov.in/hcservices/ (ii) Where such order, notice or other process cannot be served personally as at (i) above, the notice etc. shall be served on such employee by Registered Post acknowledgement due at the address of the employee available with the Corporation at the office where the employee was last working or, if he is on leave, as per his leave application particulars, if any, and (iii) If the notice sent by the Registered post is returned unserved, it should be published in the Local/ Regional Language Newspapers and All India Newspapers, as appropriate and upon such publication, it shall be deemed to have been personally served on such employee.” 8. Regulation 75(iii) clearly states that if any employee for whom notice is sent by registered post returned unserved, it should be published in the local/regional language newspaper and in addition to that, an all India newspaper as appropriate and upon such publication only, it will be deemed to have been personally served on such employee. Admittedly, the FCI had not complied with Regulation 75(iii) of the Regulations. Under clause (iii) of Regulation 75, only option open to the FCI is to publish either in the local or in the regional language newspaper and also an all India newspaper. However, there was no publication in the local/regional language newspaper. A submission was made on behalf of the appellants/FCI that the word "appropriate" suggests that the FCI has an option to publish it in the local/regional language newspaper or in an all India newspaper and publication in an appropriate all India newspaper should be regarded as substantial compliance with Regulation 75(iii). It was contended that if the word "and" is read as "or", it cannot be said that there was non compliance of Regulation 75(iii). The argument stated is only to be rejected. On a plain reading of Clause (iii) of Regulation 75 it is seen that the requirement of publication in the local/regional language is mandatory and a notice shall be deemed to have been personally served on the employee only upon such publication. 9. Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the appellants placed strong reliance on the decision of the Division Bench of the Kerala High Court in Beemakunju Vs. F.C.I., 2001 (II) L.L.J.671. In that case a Division Bench of the Kerala High Court on construction of Regulations 16(iii) and 19(4) of the FCI Staff Regulations, 1971 came to the conclusion that there was