THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT PETITION NO.17975 OF 2001 DT.25.11.2010 Between: I.N.Murthy …………..Petitioner Vs. Managing Director, Food Corporation of India, New Delhi and two others. ……………..Respondents. O R D E R: This writ petition is filed to quash and set aside the impugned order No.32(97)/2000/ZE-I, dated 12.07.2001 issued by the first respondent and order No.32(5)/97 CR CELL, dated 26.06.2000 issued by the second respondent by calling for the records and to set aside the impugned order. Admittedly, the original petitioner I.N.Murthy died and his legal heirs have been brought on record as per the orders of this Court on 01.05.2009 in W.P.M.P.No.10043 of 2009. The brief facts of the case are as follows: The original petitioner I.N.Murthy was working as Assistant Manager (General) in the office of the Zonal Manager (Operations) F.C.A., Visakhapatnam, A.P. Region. Disciplinary proceedings were initiated against him and the following articles of charges were framed against him on 12.07.2001: 1) Shri I.N.Murthy, Assistant Manager (Gen.,) working in the Office of the Joint Manager (Operations) F.C.I., Visakhapatnam has failed to look after his family and stopped financial support to the family for the last 7 years and thus failed to discharge his responsibilities towards his spouse and family. That the said Sri I.N.Murthy, Assistant Manager (G) is therefore charged with the contravention of Regulation 32(A), Sub-Regulation 23 of FCI (Staff) Regulations, 1971. 2) Sri I.N.Murthy, Assistant Manager (General) working in the office of the Joint Manager (Opns) FCI , Visakhapatnam has deserted his wife and children and is living with a lady of 30 years age. That the said Sri I.N.Murthy, Assistant Manager (Genl.,) is therefore charged with the contravention of Regulation 32(A) Sub-Regulation 24 of PCI (Staff) Regulations, 1971. 3) Sri I.N.Murthy, Assistant Manager (Genl.) working in the Office of the Joint Manager (Opns.) FCI, Visakhapatnam has furnished wrong date of birth other than that recorded in his school records at the time of appointment as Junior Clerk in Office of the Deputy Director (Food), FCI, Madras Harbour, Madras. The said Sri I.N.Murthy is therefore charged for contravention of Regulation 32 (A) Sub- Regulation 4 of FCI (Staff) Regulations, 1971. 4) Sri I.N.Murthy, Assistant Manager (Genl.,) working in the Office of the Joint Manager (Opns.,) FCI, Visakhapatnam has preferred a false TA Bill for Rs.3,196/- for his journey to and fro Madras on 7.8.1996 in connection with visit to Apollo Hospital, Madras for routine medical ckeck-up. He is, therefore, charged for contravention of Regulation 32 Sub-Regulation 1 of FCI (Staff) Regulations, 1971”. Sri P.C.Vivekanandan, Deputy Manager (Genl.,) Regional Office, Hyderabad was appointed as Enquiry Officer to enquire about the charges framed against I.N.Murthy. The Enquiry Officer conducted an enquiry against I.N.Murthy and ultimately came to the conclusion that charges under Articles 1, 2 and 4 have been proved and charge under Article 3 not proved against I.N.Murthy. A copy of the enquiry report was furnished to the delinquent employee and I.N.Murthy-delinquent employee submitted a written representation, dated 17.05.2000. Then the disciplinary authority by the order dated 26.06.2000 passed the impugned order under Section 56 of FCI (Staff) Regulations, 1971 read with Regulation 54 of the FCI (Staff) Regulations, 1971 imposing penalty of “removal from service”. Then the delinquent employee seems to have preferred an appeal. The appellate authority i.e., Managing Director rejected the appeal and aggrieved by the same, I.N.Murthy preferred the present writ petition. Sri Y.V.Ravi Prasad, learned counsel for the petitioner submitted that admittedly, charge under Article 3 was held to be not proved by the Enquiry Officer and according to the Enquiry Officer, no material was placed to prove the said charge and as far as the charges 1 and 2 are concerned, it is his submission that the said charges were framed on the complaint given by the wife of I.N.Murthy and that subsequently, she herself had withdrawn the same and that the original petition filed by the wife of I.N.Murthy in O.P.No.277 of 1996 on the file of Judge, Family Court, Visakhapatnam was dismissed by order, dated 05.02.1999. According to him, once the wife of I.N.Murthy herself had withdrawn the complaint lodged against her husband before passing the order of removal from service, the authorities are not justified in passing the removal order. It is also his submission that as far as the charge under Article-1V is concerned, it was closed in 1996 itself and when the authorities having considered the explanation of I.N.Murthy and having regard to the facts and circumstances of the case, closed the enquiry proceedings and then they are not justified in reopening the same and awarding the severe punishment of removal from service basing on the said charge. The learned counsel for the respondents basing on the counter filed by Dr.D.Sambasiva Rao, Senior Regional Manager, submitted that the delinquent employee was given all reasonable opportunity and that there is no procedural irregularity in holding the enquiry and the enquiry was conducted in terms of the regulations and that the delinquent employee himself had admitted the guilt with regard to the charge under Article IV and therefore, the punishment imposed by the disciplinary authority as confirmed by the appellate authority is just and reasonable and no interference is required. The only point that arises for consideration is whether the impugned order is just and reasonable in the facts and circumstances of the case. Admittedly, the original petitioner i.e., the delinquent employee I.N.Murthy is no more and after his death, his wife and children have come on record and continuing the said petition, challenging the removal order of I.N.Murthy for the purpose of claiming pension and other retirement benefits of I.N.Murthy. As far as charge under Clauses I & II are concerned, the allegation against I.N.Murthy is that he had failed to look after his family and stopped financially supporting them and that he had failed to discharge his responsibility towards his wife and children. Charge under Article II also reveals that the allegation imposed against I.N.Murthy is that he has deserted his legally wedded wife and living with a lady aged 30 years. Admittedly, those charges have been framed on the complaint given by the wife of I.N.Murthy. Admittedly, the wife of I.N.Murthy filed O.P.No.277 of 1996 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and O.S.No.47 of 1997 claiming maintenance against him. A common order was passed on 05.02.1999 by the learned Family Court, Visakhapatnam and ultimately, O.P.No.277 of 1996 was dismissed. However, O.S.No.47 of 1997 was decreed in part granting maintenance of Rs.1,000/- each per month to the wife and children of I.N.Murthy. Sri Y.V.Ravi Prasad has referred to a letter written by the wife of I.N.Murthy, wherein Smt.I.Pushapavathi, wife of I.N.Murthy had categorically stated that initially she lodged a complaint against her husband and subsequently, she had joined her husband and was living with him under one roof and that the disputes with regard to financial and domestical have been vanished and were living happily. She had also categorically mentioned that she had taken a hasty step in giving a complaint against her husband and she had requested to close the proceedings against her husband. When the wife of I.N.Murthy herself has submitted an application, dated 05.05.2000 requesting to close the proceedings initiated against I.N.Murthy, the authorities ought to have taken the same into consideration and ought to have held that the charges under Articles 1 and 2 are nor proved or even if they are proved, on withdrawal of the complaint by the wife, ought to have held that those charges have been compounded. As far as Charge No.III is concerned, the Enquiry Officer himself had held that the said charge is not proved. The finding of the Enquiry Officer is as follows: “The charge that he furnished a wrong Date of Birth other than that recorded in the School record cannot be proved by the Prosecution side properly with original records or from the external sources also, because the defence demanded original records for evidence.” The disciplinary authority had drawn adverse inference against the delinquent employee for non-examination of his elder sister. It is settled law that the disciplinary authority may not agree with the findings of the Enquiry Officer and may come to his own findings, but the disciplinary authority has to consider the entire evidence and then come to a just and reasonable conclusion. There must be evidence on record to come to such a conclusion. When the findings of enquiry officer are reasonable, the same cannot be disturbed on mere presumptions and assumptions. But when there is no material or satisfactory evidence to disturb the finding of the Enquiry Officer, the disciplinary authority is not justified in disturbing the same by placing the burden on the delinquent employee. Therefore, the finding of the disciplinary authority on this Article No.III has to be set aside. As far as Article No.IV is concerned, of course, the same appears to be a serious charge. The different allegation is that the delinquent employee preferred a false T.A. Bill of Rs.3,000/- in the year 1990 for the travel to and fro Madras on 07.08.1996 and 09.08.1996 in order to visit Apollo Hospital for medical checkup. Admittedly, the delinquent employee was suffering from heart problem and it appears that enquiry was initiated in 1996 itself and according to the learned counsel for the petitioner, the same was closed vide reference No.V & S 7 (27)/96, dated 26.6.1996. Though the respondent has filed a counter, it reveals that the matter was under consideration by the competent authority and appropriate administrative action was taken. However, it is not clarified as to what action was taken by the authorities on the said allegation. When the matter was closed long back, the authorities are not justified in adding the same allegation once again after four years. According to the learned counsel for the petitioner, the said action was not communicated to I.N.Murthy during his life time. Therefore, it has to be held that the charges leveled against the delinquent employee are not proved. Another important aspect which has been brought to my notice by Sri Y.V.Ravi Prasad, learned counsel for the petitioner is that after receiving remarks on the Enquiry Officer’s report from the delinquent employee, the disciplinary authority had straight away passed the order of removal without issuing show cause notice calling for the explanation on proposed punishment. Both the learned counsel having referred to the relevant regulations, submitted that there is no such rule making it compulsory for calling the explanation on the quantum of proposed punishment. But it appears that the principles of natural justice require that the disciplinary authority before passing an order of removal or dismissal, which are major punishments, should always consider the length of the service and the circumstances under which, the alleged misconduct was committed and the explanation was given by the employee and must consider whether the proposed punishment is proportionate for the alleged misconduct or not and at this juncture, an opportunity ought to have been given to the employee to put forth his case with regard to the proposed punishment and if the employee wants that he may be given an opportunity of personal hearing, the disciplinary authority ought to have given him an opportunity of personal hearing. In view of the same, I am of the view that the impugned orders are liable to be set aside for violating the principles of natural justice, for not giving an opportunity of hearing on the proposed punishment and also in view of the fact that the charges are not proved against I.N.Murthy. In view of the same, the writ petition is allowed setting aside the impugned order, dated 12.07.2001, directing the respondents to pass appropriate orders and consequently, the deceased I.N.Murthy shall be is deemed to have been reinstated into service with continuity of service, full back wages and all attendant benefits and accordingly, retiremental benefits, pension, etc., shall be paid to the petitioners within a period of four months from the date of receipt of a copy of this order. There shall be no order as to costs. ___________________ B.CHANDRA KUMAR J., Dt.25.11.2010 tjs