Full Judgment Text
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PETITIONER:
BALBIR CHAND
Vs.
RESPONDENT:
THE FOOD CORPORATION OFINDIA LTD. & ORS.
DATE OF JUDGMENT: 16/12/1996
BENCH:
K. RAHASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This special leave petition arises from the order of
the Division Bench of the Punjab & Haryana High Court, made
on August 16, 1996 in CWP No. 12340/96, dismissing the
petition in limine.
While the petitioner was working as Manager in the Food
Corporation of India, Chandigarh Office, one Rajinder Singh
Rana impersonating himself as Harjit Singh son of Ajit
Singh, had succeeded in obtaining a contract with the
Corporation for the year 1992-93 for transporation of the
food grains. The petitioner’s duty was to verify the
particulars furnished with the tender and to submit the same
to the competent authority for taking decision in that
behalf. In the verification report submitted by the
petitioner, he had stated that Harjit Singh had produced a
bank account with balance of Rs.200/- while the certificate
obtained by Harjit Singh allegedly from by the Bank
authorities, dated February 4, 1992 revealed "the balance of
Harjit Singh as Rs.56,400/-. As regards the value of
residential House Building, the approved Designer and
Architect had evaluated it. It was also stated that "the
party holds a good reputation in the city." On that basis,
the contract was obtained, but subsequently it was
discovered that the said Harjit Singh son of Ajit Singh who
obtained the contract was no other than Rajinder Singh Rana
who misappropriated 1400 MT of superfine rice delivered to
him for transporation ex-Khanna to Assam by road. Based
thereon, disciplinary action was initiated against the
petitioner and others for their dereliction of duty and
misconduct in their failure to submit the report truthfully.
After conduct of joint enquiry against all the officers,
authority took decision that the petitioner be removed from
service. Accordingly, he was removed. On appeal, it was
confirmed by the Board in the proceedings dated April 26,
1996 in an elaborate order running into 19 typed pages. The
High Court has dismissed the petition in limine. Thus, this
special leave petition.
The learned counsel for the petitioner has raised the
contention that since the petitioner was required to be
dismissed by the disciplinary authority, namely, Zonal
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Manager, who alone is competent to remove him, the order of
dismissal passed by the Managing Director is bad in law. In
support thereof, he placed reliance on a judgment of this
Court in Surjit Ghosh vs. Chairman & Managing Director,
United Commercial Bank [AIR 1995 SC 1053]. It is an admitted
position that as a joint enquiry was conducted against all
the delinquent officials, the highest in the hierarchy of
competent a authority who could take disciplinary action
against the delinquents was none other than the Managing
Director of the Corporation. In normal circumstances where
the Managing Director being the appellate authority should
not pass the order of punishment so as to enable the
delinquent employee to avail of right of appeal. It is now
well settled legal position that an authority lower than the
appointing authority cannot take any decision in the matter
of disciplinary action. But there is no prohibition in law
that the higher authority should not take decision or impose
the penalty as the primary authority in the matter of
disciplinary action. On that basis, it cannot be said that
there will be discrimination violating Article 14 of the
Constitution or causing material prejudice. In the judgment
relied on by the counsel, it would appear that in the Rules,
officer lower in hierarchy was the disciplinary authority
but the appellant authority had passed the order removing
the officer from service. Thereby, appellate remedy provided
under the Rules was denied. In those circumstances, this
Court opined that it caused prejudice to the delinquent as
he would have otherwise availed of the appellate remedy and
his right to consider his case by an appellate authority on
question of fact was not available. But it cannot be laid as
a rule of law that in all circumstances the higher authority
should consider and decide the case imposing penalty as a
primary authority under the Rules. In this case, a right of
second appeal/revision also was provided to the Board. In
fact, appeal was preferred to the Board. The Board
elaborately considered the matter through the Chairman. It
is not violative of Article 14 of the Constitution.
It is next contended that a circular was issued by the
Department on May 13, 1980 regarding splitting up of an
enquiry and while para 2 indicated the procedure to be
followed, para 3 (ii) indicates as to when the split of the
case could be ordered and sub-para (iii) envisages that it
would be advisable to issue one common charge-sheet against
all the charged officials. It is further envisaged in the
Department’s Circular thus:
"Whenever common proceedings are
initiated against two or more than
two FCI employees, such common
proceedings have to be ordered by
the Disciplinary authority
competent to impose the major
penalty of dismissal upon the
senior most FCI employee involved
in that case. This naturally means
that the inquiring authority would
submit his report of inquiry in
such common proceedings to that
particular disciplinary authority,
for final orders in the case-
thereby depriving the Junior
officials involved of one or more
avenues of appeals as also petition
for review.
In case of such common proceedings;
if the inquiry report or a copy
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thereof is forwarded to the lower
disciplinary Authorities, competent
to impose penalties upon such
Junior officials, it has in several
a instances resulted in imposition
of varying punishments by different
authorities to different
individuals on the same charges.
This position has been carefully
examined with reference to the
various instructions issued by the
Government of India in this regard
and it has been decided to follow
the guidelines mentioned hereunder:
i) There has been a apprehension as
co the actual meaning of common
proceedings and joint proceedings.
It is hereby clarified that the
terms ‘common proceedings’ and
‘joint proceedings’ are synonymous
and in fact there is no difference
between the two.
ii) Whenever two or more employees
are involved in a particular
disciplinary proceedings and when
one charged official cites the
other as a witness in his case, the
proceedings cannot be conducted as
common/joint proceedings. In such
contingencies, the general
principles laid down by the courts
is that the charged official in
cross cases should be tried
separately and that both the
inquires should he held
simultaneously, so as to avoid
conflicting findings and different
appraisal of the same evidence, by
different inquiring authorities.
iii) While initiating common
proceedings it would be remembered
that such proceedings should be
ordered only as a last resort and
in case such proceedings are
ordered, the charge should be also
common against all the charged
officials involved. In other words,
it would be advisable to issue one
common charge-sheet against all the
charged officials. the concerned
Disciplinary Authority should
examine the desirability of
conducting a common inquiry before
taking a decision in this regard so
that the issue of separate charge-
sheets could be avoided. After the
enquiry is over in common
proceedings, the concerned
disciplinary authority should take
a decision against the charged
employees of considering the
gravity of the misconduct by such
of the concerned officials.
However, cases of all the officials
should be disposed off by the
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authority ordering the common
proceedings to ensure that same
standards are applied in case of
all the officials concerned."
It is contended that when one delinquent officer seeks
to summon other delinquent who is charged on the common
cause of action or for the misconduct committed during the
course of the same transaction or to summon more than one
officer jointly, the petitioner should be given an
opportunity of splitting up the matter and to contend that
common enquiry has thereby caused grave prejudice to the
petitioner denying him the opportunity to summon the officer
to substantiate his defence. We find no force in the
contention. It is seen that these are only instructions in
conducting the proceedings as guidelines. When more than one
delinquent officer are involved, then with a view to avoid
multiplicity of the proceedings, needless delay resulting
from conducting the same and overlapping adducting of
evidence or omission thereof and conflict of decision in
that behalf, it is always necessary and salutary that common
enquiry should be conducted against all the delinquent
officers. The competent authority would objectively consider
their cases according to Rules and decide the matter
expeditiously after considering the evidence to record
findings on proof of misconduct and proper penalty on proved
charge and impose appropriate punishment on the delinquents.
If one charged officer cites another charged officer as a
witness, in proof of his defence, the enquiry need not per
se be split up even when the charged officers would like to
claim an independent enquiry in that behalf. If the
procedure is adopted, normally all the delinquents would be
prone to seek split up of proceedings in their/his bid to
delay the proceedings, and to see that there is conflict of
decisions taken at different levels. Obviously, disciplinary
enquiry should not be equated as a prosecution for an
offence in a criminal Court where the delinquents are
arrayed as co-accused. In disciplinary proceedings, the
concept of co-accused does not arise. Therefore, each of the
delinquents would be entitled to summon the other person and
examine on his behalf as a defence witness in the enquiry or
summon to cross-examine any other delinquent officer if he
finds him to be hostile and have his version placed on
record for consideration by the disciplinary authority.
Under these circumstances, the need to split on the cases is
obviously redundant, time consuming and dilatory. It should
not be encouraged. Accordingly, we do not find any
illegality in the action taken.
It is further contended that some of the delinquents
were let off with a minor penalty while the petitioner was
imposed with a major penalty of removal from service. We
need not go into that question. Merely because one of the
officers was wrongly given the lesser punishment compared to
others against whom there is a proved misconduct, it cannot
be held that they too should also be given the lesser
punishment lest the same mistaken would not be violative of
Article 14 and cannot be held as arbitrary or discriminatory
leading to miscarriage of justice. It may be open to the
appropriate higher authority to look into the matter and
take appropriate decision according to law.
Present one is a case of a notorious contractor known
to have committed on earlier occasions misappropriation in
relation to the Corporation property; he sought and obtained
another benami contract in the name of other persons by
impersonation. Obviously all those who had prior knowledge
of the contractor and had earlier dealt with him should have
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taken proper care to point out to the higher authorities the
true facts so as to enable the concerned authorities take
necessary decision. Accountability and openness is an
imperative in conducting public dealings, lest they/he
become/s a bettor to perpetrate offences. This case is apart
from pending suit to recover about Rs.16 lacs from the
erring officials. They would became privy to the abetment of
impersonation by the contractor and appropriate action is
required to be taken against them according to law.
The Special Leave Petition is accordingly dismissed.