Full Judgment Text
NEUTRAL CITATION NO: 2022/DHC/005107
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 27.04.2022
Date of decision: 24 .11.2022
+ W.P.(C) 8202/2013
BHARAT KUMAR ..... Petitioners
Through: Mr. A.K. Bhardwaj, Mr. Yashpal
Ranghi, Ms. Jagriti Singh & Mr.
Karan Gautam, Advocates.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms. Suman Chauhan & Ms.
Samiksha, Advocates for R-1/UOI.
Mr. Ghanshyam Joshi & Mr. Chirag
Joshi, Advocate for R-2.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J
1. The petitioner Bharat Kumar, vide the present petition, seeks
the setting aside of the following:-
impugned charge memo dated 02.02.2011;
the punishment order dated 07.06.2012 passed by the
Disciplinary Authority;
order dated 29.05.2013 of the Appellate Authority;
and order dated 21.10.2013 of the Reviewing Authority;
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
19:01:29
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and seeks directions to the respondents to reinstate the petitioner in
service with all consequential benefits.
2. The respondents arrayed to the petition are the Secretary,
Ministry of Agriculture, Krishi Bhavan, New Delhi and the Chairman-
cum-Managing Director of State Farms of India Ltd., New Delhi,
arrayed as respondent No.1 and respondent No.2 respectively.
3. The Statement of Articles of Charge framed against the
Petitioner was in relation to Article of Charge No.1, which was in
relation to the petitioner having unauthorizedly absented himself from
duty from 27.12.2010 whilst working as an Administrative Officer at
the Central State Farm, Bahraich. It has further been stated in the
Articles of Charge that it had been reported that the petitioner left the
farm on his own will from 27.12.2010 without getting any leave
sanctioned from his Competent Authority, and a memorandum dated
14.01.2011 was also issued to the petitioner by the Director, Central
State Farm, Bahraich to explain the reason as to why he deliberately
left the farm without prior permission and without getting the leave
sanctioned, but no reply was received from him till the date of the
Memorandum of the Articles of Charge dated 02.02.2011. The said
action of the petitioner, as per the Articles of Charge, was in violation
of rules and regulations of the Corporation, with it having been stated
therein that the petitioner had violated the provisions of Regulation
123 B(l), (b), (c), (d) & (2) and 123 C, (5), (7), (8), (18) and (20) of
the Staff Regulations of the Corporation.
4. The Article of Charge No.2 against the petitioner was to the
effect that it had been reported that he, the Administrative Officer,
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
19:01:29
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Central State Farm, Bahraich, did not take any interest in his work and
responsibilities entrusted to him, and that the Management had already
taken a decision to close down the Central State Farm, Bahraich which
was being opposed in an agitative manner by the farmers and local
villagers and their leaders, but the petitioner was not present to protect
the interest of Corporation and safety of its employees and property
and thus exhibited lack of devotion to duty and also acted in a manner
which was against the established norms of official procedures, which
tantamount to grave misconduct, and the petitioner had thus, as per the
Article of Charge No.2, violated the provision of Regulation No. 123
B(1), (b), (c), 2 and 123 C(5) (6) (9) (18) & 20 of the Staff
Regulations of the Corporation.
5. Vide office order dated 07.06.2012 bearing No. PF-1142/2006-
GA, in view of the findings of the Inquiry Officer of the petitioner
under scrutiny of charges levelled and proved against him, in view of
the serious nature of misconducts committed by the petitioner, the
Competent Disciplinary Authority concluded to the effect that the
petitioner had committed grave and serious nature of misconducts,
exhibited lack of devotion to duty, committed flagrant violation of
rules and regulations of the Corporation by acting in a deliberate and
grossly negligent manner and that his actions were not in the interest
of the Corporation. Inter alia , the said order stated that the petitioner
kept himself absent from duty without sanctioned leave and without
sufficient grounds, and during the period of 195 days (calculated upto
January, 2011), the petitioner remained absent for as many as 132
days for one reason or another and was absenting during the crucial
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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period of agitation by the farmers and other local political parties, and
as a result of the same, the security and safety of the farm and its
personnel was endangered. The Disciplinary Authority also
concluded to the effect that during such agitation, the presence of the
administrative head of the Farm was a must to ensure speedy
administrative action and proper liaison with the police and the State
administrative machinery, and his absence during that period exhibited
a lack of devotion of duty and commitment on his part, which was
quite unbecoming of a public servant. The Competent Disciplinary
Authority also concluded that ample opportunity had been given by
the Inquiry Officer to the petitioner to present his case and defend
himself, and that a copy of the Inquiry Report was forwarded to him
on 11.01.2012 at his last known address in order to give him a
reasonable opportunity of making a representation on the findings of
the Inquiry Officer, but the same was returned back undelivered, and it
was further stated through the order of the Disciplinary Authority that
though it was clear that the Charged Officer had himself managed to
return the said official communication yet in order to give him a full
opportunity, a copy of the Inquiry Report was handed over personally
to him on 24.01.2012 when he visited the Corporate Office, but no
reply was received from him till the date of the order i.e., 07.06.2012
despite a final reminder having been sent to him on 14.02.2012. The
Competent Authority thus came to the conclusion that a major penalty
of “removal from services which would not amount to disqualification
for future employment under the Corporation” be imposed which was
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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so imposed as stipulated in Rule 146(i) of the Staff Regulations
applicable to him with immediate effect.
6. The petitioner challenged the order dated 07.06.2012 vide an
appeal and vide office order dated 29.05.2013 bearing No. SFCI/PF-
l142/2006-HR-I, the Appellate Authority i.e. the Board of Directors of
the SFCI considered the contentions of the petitioner and concluded
that the petitioner had availed of due opportunities in the enquiry
proceedings and his absence in a few hearings was only due to an
abandonment by himself when the major part of the proceedings was
already over and the concluding of the inquiry proceedings after his
abandonment and in spite of due opportunities did not result into
violation of any principle of natural justice. The Appellate Authority
also observed that the punishment of "removal" imposed by the
Disciplinary Authority was fair and proportionate having regard to the
gravity of the charges proved during Inquiry. The Appellate Authority
thus held that the appeal was not only time barred but was also devoid
of merits, and dismissed the same.
7. Vide communication dated 21.10.2013 bearing No.
PF/1142/2006-GA, the petitioner was informed that his review appeal
had been examined by the Competent Authority and he was informed
that the contents of the his Review Appeal dated 16.08.2013 were
almost the same which were the contents of his earlier Appeal dated
nil (received on 11.09.2012), which had been duly considered by the
Appellate Authority i.e., the Board of Directors of the SFCI in their
meeting held on 29.04.2013 and that there were no new facts or
developments that had taken place after the decision of the
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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Disciplinary Authority/Appellate Authority, and furthermore, on
merits also, it was held that there was no case for any
reconsideration/review by the Board of Directors/Reviewing
Authority, and thus, it was held that the Review Appeal did not call
for any re-consideration/review by the Board of Directors.
8. The petitioner vide this petition submits that in the year 2006,
he was appointed to the post of Special Assistant (hereinafter referred
to as SA) to Chairman-cum-Managing Director, and that in the
Selection Committee proceedings, it was specifically mentioned that
the individual selected on SA to CMD will remain posted at Head
Office/place of CMD only.
9. Inter alia , the petitioner submits that he remained posted at the
Headquarters with the CMD and discharged his duty with sincerity
and devotion, and worked to the entire satisfaction of the authorities
and in the interest of corporation.
10. It is further submitted by the petitioner that in April 2010, the
Competent Authority decided to close down the Central State Farm,
Bahraich (UP), and in view of the closure of the Farm, the employees
serving in the said Farm were offered voluntarily retirement or else
they were to be transferred to other Farms.
11. Inter alia, the petitioner submits that he had been appointed by
the then CMD Brig. (Retd.) S.P. Mehla, and due to his hard work, the
petitioner was in the good books of the CMD, but after retirement of
Brig. Mehla, a group of persons who were jealous of the petitioner's
bright service career persuaded the new CMD against the petitioner,
and the new CMD, under the influence of said group, within 2-3
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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weeks of his joining transferred the petitioner from the Head Office to
the CSF Bahraich, and whilst doing so, according to the petitioner, the
then CMD ignored the specific condition mentioned in the
proceedings of the Selection Committee constituted for appointment
of the petitioner as SA to CMD 'that the individual selected on SA to
CMD will remain posted at the Head Office/place of CMD only.
12. The petitioner submits that he challenged his transfer by way of
W.P.(C) No. 5171/2010 before this Court, but during the pendency of
said petition, the respondents passed an order dated 29.07.2010 in his
appeal, and thus the earlier writ petition was withdrawn with liberty to
file a fresh writ petition, and that a fresh W.P.(C) No. 5304/2010 was
filed impugning the order dated 29.07.2010, but though notice of the
petition was issued, no stay of the transfer order was granted, and thus
the petitioner joined the place of his transfer i.e CSF Bahraich in
August, 2010, and that the petitioner also filed an LPA, but in the
same too no stay was granted and the LPA was dismissed, and Rule
was issued on 19.01.2010, and as the Farm, where the petitioner was
transferred to, was about to close, the petitioner withdrew the writ
petition on 22.03.2011 with the permission of the Court.
13. Inter alia , the petitioner submits that his father was not well,
and on personal grounds, the petitioner sought leave from the
Concerned Authority, and his leaves were sanctioned from time to
time, with his last leave sanctioned from 13.12.2010 to 31.12.2010.
14. It is submitted by the petitioner that whilst he was on leave, Dr.
S.P.S Tomar (Director In-charge) called him to join duties, as there
was an apprehension of agitation in the Farm, and in the interest of the
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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Corporation, the petitioner joined his duties immediately on
20.12.2010, and the agitation started on 22.12.2010 and ended on
25.12.2010, and that the petitioner played an important role in calming
down the agitation, and after the agitation was over, the petitioner
again requested for leave from 27.12.2010 to 03.01.2011, and as Dr.
S.P.S Tomar was not there at the Farm, therefore the petitioner
informed him telephonically, and on the instructions of Dr. Tomar, the
petitioner left his application for leave with the Security Officer of the
Farm.
15. Inter alia , the petitioner submits that during the leave period, he
suffered from viral hepatitis and could not resume his duties on the
expiry of leave period, and he was advised bed rest by doctors up to
21.03.2011, and he resumed his duties on 23.03.2011.
16. Inter alia, the petitioner submits that vide memo dated
02.02.2011, the respondents proposed to initiate departmental inquiry
against the petitioner, and vide letter dated 09.03.2011, the petitioner
informed the respondents that he was still suffering from illness, and
therefore, could not join his duties and prayed that an ex-parte
decision be not taken in the inquiry proceedings, and enclosed his
medical certificates with the letter.
17. The petitioner submits that the respondents initiated the
departmental enquiry against the petitioner and appointed an Inquiry
Officer and Presenting Officer on 24.03.2011, and in the Inquiry, the
Corporation examined four witnesses and the petitioner examined two
witnesses.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
19:01:29
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18. The petitioner submits that during the pendency of the Inquiry
for the two charges framed against him, i.e., (i) Petitioner remained
unauthorizedly absent from duty since 27.12.2010 and (ii) Petitioner
did not take interest in his work and responsibilities entrusted to him,
vide letter dated 06.07.2011, the Director in-Charge of CSF, Bahraich
provided the details of leave of the petitioner to Company Secretary of
SFCL, and it was specifically mentioned in the said letter that the
petitioner's leaves were sanctioned and regularized by the Competent
Authority for the period involved in the Inquiry, and thus the
petitioner submits that if the period was regularized by Competent
Authority, there was no question of framing of the charges.
19. Inter alia , the petitioner submits that in August 2011, he was
not feeling well, and thus he requested for an adjournment of the
hearing on 17.08.2011, and the Inquiry was adjourned to 07.09.2011,
which was conducted ex-parte on that date, and on 26.12.2011, the
Inquiry was concluded with it having been held by the Inquiry Officer
that the charges levelled against the petitioner stand established.
20. It is submitted by the petitioner that the reasons given by the
Inquiry Officer to prove the charges levelled against the petitioner are
themselves sufficient to disprove the charges, if the reasons given to
prove the first charge would be read as the reply to the second charge
and reasons given to prove the second charge be read as the reply to
the first charge.
21. Inter alia , it was submitted by the petitioner that the Inquiry
Officer had completely ignored the statement of the defence witnesses.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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22. Inter alia, the petitioner submits that he received the copy of the
inquiry report in February, 2012, but as he was not keeping well, he
th
could not respond thereto till 17 April 2012, and vide letter dated
18.04.2012, he requested the respondents to re-open the inquiry as the
inquiry was held ex-parte, but the Disciplinary Authority was biased
against the petitioner, and without considering the plea and defence of
the petitioner, imposed the major penalty of "removal from service" on
the petitioner vide order dated 07.06.2012.
23. Inter alia, the petitioner submits that the punishment order was
signed and communicated by the subordinate officer of the
Disciplinary Authority, and the same is against government
instructions, as per which, the Disciplinary Authority cannot delegate
its power to the subordinate authority being a quasi-judicial authority.
Inter alia, the petitioner submits that he preferred an appeal against the
said order, whereby he tried to draw the attention of the Appellate
Authority to the fact that all his leaves were sanctioned and
regularized by the Competent Authority, and thus he could not be held
guilty for the charge of unauthorized absence, and that the petitioner
also drew the attention of the Appellate Authority to the statement of
Dr. S.P.S Tomar (DW-1), the then Director In-charge, under whose
supervision the petitioner was working, to the effect that the petitioner
performed his duty diligently, but when nothing was heard for more
than three months, the petitioner sent a reminder to the Appellate
Authority, and that the Appellate Authority did not appreciate the
submissions of the petitioner and rather rejected his appeal vide order
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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dated 29.05.2013, and the Review Appeal filed by the petitioner on
16.08.2013 was rejected vide order dated 21.10.2013.
24. The petitioner submits that there is no evidence on the record to
prove the allegations levelled against him in the departmental inquiry;
that the Disciplinary Authority was wholly biased, and that the
impugned order of removal from service has been passed with the
predetermined notion, with it having been submitted by the petitioner
that all those persons who were in the good books of Brig. S.P. Mehla,
the previous CMD, were targeted by persons who were kept away
from achieving their personal interests during the tenure of the
previous CMD and thus all these other persons who were in the good
books of the previous CMD were harassed and all such persons, i.e.
Sh. Vinod Kumar (Administrative Officer) was removed from service,
Sh. Rajnish (Marketing Manager) was terminated from service, to
Smt. Deepika Rani (Rajbhasha Adikari), a memo was issued against
her and her probation was not cleared for more than 4 years, Sh. Tejbir
Singh (Accounts Officer) was chargesheeted for a major penalty and
Sh. Manoj Singh (Security Officer) was chargesheeted for a major
penalty, and that the inquiry against the petitioner is also a sequel to
the said harassment though there was nothing against him in the
inquiry.
25. The petitioner submits that the first allegation against him is
that he was unauthorizedly absent from duty from 27.12.2010, for
which period, his leave already stood sanctioned by the Competent
Authority, as communicated vide letter dated 06.07.2011, and once the
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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leave period was sanctioned, there was no need to continue the
inquiry.
26. Inter alia , the petitioner submitted that in cases of unauthorized
absence of other employees, the Corporation had either not taken any
action or imposed minor punishments, whereas in his case, a major
penalty of 'removal from service' had been imposed. Inter alia, the
petitioner submits that documents that he sought from the Corporation
were not given to him and thus he could not put forth his defence
effectively.
27. The petitioner further submits that when Brig. S.P. Mehla
retired, the Corporation called a Senior Administrative Officer from
the CSF Bahraich, when his experience was most required there and
sent the petitioner, a new person, to the said place, which transfer was
done just to harass him.
28. Inter alia , the petitioner submits that the Inquiry Officer had
concluded that there was no evidence led by the Presenting Officer to
the effect that the leave taken by the charged officer from time to time
from his posting in CSF, Bahraich from July, 2010 to December, 2010
was ever adversely commented upon by his superiors in the CSF,
Bahraich or Headquarters, SFCI, and thus, no hindsight adverse
conclusion could have been drawn against the charged officer for the
leave taken by him, and he could not have been charged of being
absent from the employee's place of work without permission or
sufficient cause, and that this was sufficient to disprove the first
charge against him, and rather it was held to be proved against him.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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29. Inter alia, the petitioner submits that the Inquiry Officer gave
the findings beyond the terms of charges, and on the basis of the said
findings, a major penalty of 'removal from service' was imposed on
him, and that there was a violation of the principles of natural justice.
30. The respondent No.2 through the counter affidavit of its
Company Secretary under authorization of the Chairman-cum-
Managing Director of the SFCI has placed on record clauses
123(B)(1), (b), (c), (d), (2), 123(c), (5), (6), (7), (8), (9), (18), (20),
146, 148, 149, 151, 153, 159, 160, 161, 162, 163, 164, 165 and 166 of
the Staff Regulations, which are as under:-
"123B(1) Every employee shall at all times:
(b) maintain devotion to duty;
(c) conform to and abide by the provision of the rules &
regulations made by the Corporation.
(d) comply with and obey all lawful orders and directions
which may from time to time be issued to him in the course of
his official duties by any person of persons to whom he may be
subordinate in the service of the Corporation;
(2) Every employee shall serve the Corporation honestly and
faithfully and shall endeavor his utmost to promote the interest of
the Corporation. He shall show courtesy and attention in all
transaction and not do anything which is unbecoming of a
Corporation employee.
123(c) Misconduct: Without prejudice to the generality of the term
'Misconduct the following act of omission and commission shall be
treated as misconduct:
5. Acting in a manner prejudicial to the interest of the
Corporation/Company.
6. Willful insubordination or disobedience, whether or not in
combination with others or any lawful and reasonable order of his
superior.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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7. Absence without leave or over-staying the sanctioned leave for
more than four consecutive days without sufficient grounds or
proper or satisfactory explanation.
8. Habitual late or irregular attendance.
9. Neglect of work or negligence in the performance of duty
including maligning or slowing down of work.
18. Absence from employee's appointed place of work without
permission or sufficient cause.
20. Commission of any act subversive of discipline or of good
behavior.
146. Notwithstanding anything contained in any other regulation,
and without prejudice to such action to which an employee may
become liable under any other regulation or law for the time being
in force, any or all of the following penalties may for good and
sufficient reasons, be imposed on any employee of the Corporation.
MINOR PENALTIES
(I) Censure;
(II) With-holding of his promotion
(III) Recovery from his pay of the whole or part of any pecuniary
loss caused by him to the Corporation by negligence or breach of
order.
(IV) With-holding of increments of pay.
MAJOR PENALTIES
(V) reduction to a lower stage in the time scale of pay for a
specified period with further directions as to whether or not the
employee will earn increments of pay during the period of such
reduction and whether on the expiry of such period, the reduction
will or will not have the effect of postponing the future increments
of his pay;
(VI) reduction to a lower time-scale of pay or post which shall
ordinarily be a bar to the promotion of the employee to the time
scale of pay or post from which he was reduced with or without
further directions regarding conditions of restoration to the post
from which the employee was reduced and his seniority and pay on
such restoration to that post.
(VII) Compulsory retirement.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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(VIII) Removal from service which shall not be a disqualification
for future employment under the Corporation. (IX) Dismissal from
service which shall ordinarily be a disqualification for future
employment under the Corporation.
(IX) Dismissal from service which shall ordinarily be a
disqualification for future employment under the Corporation.
EXPLANATION:
The following shall not constitute a penalty within the meaning of
this regulation:
(a) discharge of an employee for failure to pass any examination or
test or test or a medical test prescribed for appointment to any
category of post.
(b) compulsory retirement of an employee in accordance with the
provision relating to superannuation or retirement.
(c) termination of service or reversion to a lower post of an
employee appointed or promoted on probation either during or at
the end of the period of probation;
(d) termination of service of an employee under regulation 45 or 66
or as measure of - retrenchment for want of a vacancy;
(e) termination of service of an employee employed under a
contract or agreement in accordance with the terms of such
contract or agreement or, in the case of an employee appointed for
a specified period at the end of such period;
(f) reversion of an employee promoted from a lower post to a higher
post, to such lower post for want of vacancy or on the ground that
he is unsuitable for such higher post or on any administrative
ground unconnected with his conducts;
(g) non-promotion of an employee after consideration or his case
for promotion whether on a regular or on ad-hoc basis to a post to
which he is eligible for being considered.
(h) replacement of the services of an employee whose services had
been borrowed at the disposal of his parent office/Government.
(i) Stoppage of an employee at the efficiency bar in the time scale of
pay on the ground of his unfitness to cross the bar.
AUTHORITY TO INSTITUTE PROCEEDINGS:
148(1) The Board or any other authority empowered by it general
or special order may-
(a) Institute disciplinary proceedings against any employee;
(aa) Continuation of disciplinary proceedings after the retirement
of the employee if the same was initiated before the retirement
(approved by the Board in meeting held on 20.06.2000).
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
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(aaa) "May initiate disciplinary proceeding against any employee
within a period of two years after the normal retirement, or
cessation of service due to other reasons, of such employees."
rd
(Approved by the Board in 173 meeting held on 25.01.2001).
(b) Direct a disciplinary authority to institute disciplinary
proceedings against any employee on whom that disciplinary
authority is competent to impose under these regulations any of the
penalties specified in regulation 146;
(2) A disciplinary authority competent under these regulations to
impose any of the penalties specified in clauses (i) to (iv) of
regulation 146 may institute disciplinary proceedings against any
employee of the Corporation for the imposition of any of the
penalties specified in clauses (v) to (ix) of regulation 146
notwithstanding that such disciplinary authority is not competent
under these regulations to impose any of the latter penalties.
PROCEDURE FOR IMPOSING MAJOR PENALTIES:
149(1) No order imposing any of the penalties specified in clauses
(v) to (ix) of regulation 146 shall be made except after an enquiry
held, as far as may be, in the manner provided in this regulation
and regulation 148, or in the manner provided by the Public
Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is
held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there
are grounds for inquiring into the truth of any imputation of
misconduct or misbehavior against an employee, it may itseif
inquire into, or appoint any public servant (hereinafter called the
inquiring authority) to inquire into the truth thereof
Explanation: Where the disciplinary authority itself holds the
inquiry any reference in sub regulation (22) to the inquiring
authority shall be construed as a reference to the disciplinary
authority.
(3) Where it is proposed to hold an enquiry against an employee
under regulation and regulation 151, the disciplinary authority
shall draw up or cause be drawn up-
(i) the substance of imputations misconduct or misbehavior into
indefinite and district articles of charge.
(ii) a statement of the imputations of misconduct or misbehavior in
support of each article of charge which shall contain.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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Date:24.11.2022
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(a) a statement of all relevant facts including any admission or
confession made by the employee;
(b) a list of documents by which and a list of witnesses by
whom, the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered
to the employee a copy of the article of charge, the statement of the
imputations of misconduct or misbehavior and a list of documents
and witnesses by which each article of charge is proposed to be
sustained and shall require the employee of the Corporation to
submit, within such time as may be specified a written statement of
his defense and to sate whether he desires to be heard in person.
(5)(a) On receipt of the written statement of defence, the
disciplinary authority may itself inquire into such of the articles of
charge as are not admitted, or if it considers it necessary to do so,
appoint, under sub-regulation (2), an inquiring authority for the
purpose and where all the articles of charge have been admitted by
the employee in his written statement of defence, the disciplinary
authority shall record its findings on each charge as it may think
fit and shall act in the manner laid down in regulation 151.
(b) if no written statement of defence is submitted by the
employee, the disciplinary authority may itself inquire into the
articles of charge or may, if it considers it necessary to do so,
appoint, under sub regulation (2), an inquiring authority for the
purpose.
(c) Where the disciplinary authority itself inquires into any
articles of charge or appoints an inquiring authority for holding an
inquiry into such charge, it may, by an order, appoint a public
servant or a legal practitioner to be known as the "Presenting
Officer" to present on its behalf the case in support of the articles
of charge.
(6) The disciplinary authority shall, where it is not the inquiring
authority, forward to the inquiring authority:
(i) a copy of the articles of charge and the statement of the
imputations of mis conduct or misbehavior.
(ii) a copy of the written statement of defence, if any submitted
by the employee of the Corporation;
(iii) a copy of the statements of witness, if any referred, to in
sub-regulation(3);
(iv) evidence proving the delivery of the documents referred to
in sub-regulation (3) to employee; and
(v) a copy of the order appointing the "Presenting Officer".
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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(7) The employee of the Corporation shall appear in person before
the inquiring authority on such day and at such time within the
working days from the date of receipt by him of the articles of
charge and the statement of the imputations of mis-conduct or
misbehavior, as the inquiry authority may, by a notice in writing,
specify in this behalf, or within such further time, not exceeding ten
days, as the enquiry authority may allow.
(8) The employee may take the assistance of any other employee
working in the particular unit where the employee is working was
working at the time of happening of alleged charge(s) to which the
enquiry relates or where the enquiry is being conducted to present
the case on his behalf but may not engage a legal practitioner for
the purpose unless the Presenting Officer appointed by the
Disciplinary Authority is legal practitioner or the disciplinary
authority having regard to the circumstances of the case.
(9) If the employee who has not admitted any of the articles of
charge in his written statement of defence or has not submitted any
written statement of defence, appears before the inquiring
authority, such authority shall ask him whether he is guilty to any
of the articles of charge. The inquiring authority shall record the
plea, sign the record and obtain the signature of the employee
thereon.
(10) The inquiring authority shall return a finding of guilty in
respect of those articles of charge to which the employee pleads
guilty.
(11) The inquiring authority shall, if the employee fails to appear
within the specified time or refuses or omits to plead, require the
Presenting Officer to produce the evidence by which he proposes
to prove the articles of charge, and shall adjourn the case to a
later date not exceeding thirty days, after recording an order that
the employee may, for the purpose of preparing his defence:
(i) inspect within five day of the order or within such further
time not exceeding five days as the inquiring authority may
allow, the documents specified in the list referred in sub-
regulation (3);
(ii) submit a list of witnesses to be examined on his behalf
Note: If the employee applies orally or in writing for the supply
of copies of the statements of witnesses mentioned in the list
referred to in sub-regulation (3), the inquiring authority shall
furnish him with such copies as early as possible and in any
case not later than three days before the commencement of the
Signature
Not Verified
Digitally Signed
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examination of the witnesses on behalf of the disciplinary
authority.
(iii) give a notice within ten days of the order or within such
further time not exceeding ten days as the inquiring authority
may allow, for the discovery or production of any documents
which are in the possession of Corporation but not mentioned
in the list referred to in sub-regulation (3);
Note: The employee shall indicate the relevance of the documents
required by him to be discovered or produced by the Corporation.
(12) The inquiring authority shall, on receipt of the notice for the
discovery for production of document, forward the same or copies
thereof to the authority in whose custody or possession the
documents are kept, with a requisition for the production of the
document by such date as may be specified in such requisition.
Provided that the inquiring authority may, for reasons to be
recorded by it in writing, refuse to requisition such of the
documents as are, in its opinion not relevant to the case.
(13) On receipt of the requisition referred to in sub-regulation
(12), every authority in the Corporation having the custody or
possession of the requisitioned documents shall produce the same
before the inquiring authority.
Provided that if the authority having the custody or
possession of the requisitioned documents is satisfied for reasons
to be recorded by it in writing that the production of all many of
such document would be against the interest of the Corporation or
security of the State, it shall inform the inquiring authority
accordingly and the inquiring authority shall, on being so
informed, communicate the information to the employee and
withdraw the requisition made by it for the production or discovery
of such document.
(14) On the date fixed for the enquiry, the oral and documentary
evidence by which the articles of charge are proposed to be
proved, shall be produced by or on behalf of the disciplinary
authority. The witnesses shall be examined by or on behalf of the
Presenting Officer who may be entitled to re-examined but not any
now matter, without the leave of the inquiring authority. The
inquiring authority may also put such questions to the witnesses as
it thinks fit.
(15) If it shall appear necessary before the close of the case on
behalf of the disciplinary authority, the inquiring authority may, in
Signature
Not Verified
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its discretion, allow the Presenting Officer to produce evidence not
included in the list given to the employee or may itself call for new
evidence or recall and re-examine any witness and in such case the
employee of the Corporation shall be entitled to have, if he
demands it, a copy of the list of further evidence proposed to be
produced and an adjournment of the inquiry for three clear days
before the production of such new evidence, exclusive of the day of
adjournment and the day to which the inquiry is adjourned. The
inquiring authority shall give the employee opportunity of
inspecting such documents before they are taken on the record.
The inquiring authority may also allow the employee to produce
new evidence, if it is of the opinion that the production of such
evidence is necessary in the interest of justice.
Note: new evidence shall not be permitted or called for or any
witness shall not be recalled to fill up any gap in the evidence.
Such evidence may be called for only when there is an inherent
lacuna or defect in the evidence which has been produced
originally. The witnesses on any points on which they have been
cross-examined.
(16) When the case for the disciplinary authority is closed, the
employee shall be required to state his defence, orally or in writing
as he may prefer. If the defence is made orally, it shall be recorded
and the employee shall be required to sign the record. In either
case, a copy of the statement of defence shall be given to the
Presenting Officer- if any appointed.
(17) The evidence on behalf of the employee shall then be
produced. The employee may examine himself in his own behalf, if
he so prefers. The witnesses produced by the employee shall then
be examined and shall be liable to cross examination re-
examination and examination by the inquiring authority according
to the provisions applicable to the witnesses for the disciplinary
authority.
(18) The inquiring authority may, after the employee closes his
case, and shall, if the employee has not examined himself,
generally question him on the circumstances appearing against
him in the evidence for the purpose of enabling the employee to
explain any circumstances appearing in the evidence against him.
(19) The inquiring authority may, after the completion of the
production of evidence, hear the Presenting Officer, if any,
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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appointed and the employee or permit them to file written briefs of
their respective case, if they so desire.
(20) If the employee to whom a copy of the articles of charge has
been delivered does not submit the written statement of defence on
or before the date specified for the purpose or does not appear in
person before the inquiring authority or otherwise fails or refuses
to comply with the provisions of this regulation, the inquiring
authority may hold the inquiry exparte.
(21)(a) Where a disciplinary authority competent to impose any of
the penalties specified in clauses (i) to (iv) of regulation 146 but not
competent to impose any of the penalties specified in clauses (v) to
(ix) of regulation 146 has itself inquired into or cause to be
inquired into the articles of any charge and that authority, having
regard to its own findings or having regard to its decision on any of
the findings of any inquiring authority appointed by it, is of the
opinion that the penalties specified in clause (v) to (ix) of regulation
146 should be imposed on the employee that authority shall forward
the records of the inquiry to such disciplinary authority as is
competent to impose the last mentioned penalties.
(b) The disciplinary authority to which the records are so
forwarded may act on the evidence on the record of may, if it is of
the opinion that further examination of any of the witnesses is
necessary in the interest of justice, recall the witness and examine,
cross examine and re-examine the witness and may impose on the
employee such penalty as it may deem fit in accordance with these
regulations.
(22) Whenever any inquiring authority, after having heard and
recorded the whole or any part of the evidence in an inquiry ceases
to exercise jurisdiction thereon, and is succeeded by another
inquiring authority which has, and which exercises. Such
jurisdiction, the inquiring authority so succeeding may act on the
evidence so recorded by its predecessor, or partly recorded by its
predecessor and partly recorded by itself
Provided that if the succeeding inquiring authority is of the
opinion that further examination of any of the witnesses whose
evidence has already been recorded is necessary in the interests of
justice, it may recall, examine, cross-examine and re-examine any
such witnesses as herein before provided.
(23)(1) After the conclusion of the inquiry, a report shall be
prepared and it shall contain:
Signature
Not Verified
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By:SUMIT GHAI
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(a) the articles of charge and the statement of the imputations
of misconduct or misbehavior.
(b) the defence of the employee in respect of each article of
charge;
(c) an assessment of the evidence in respect of each article of
charge;
(d) the findings on each article of charge and the reasons
therefore.
Explanations: If in the opinion inquiring authority the proceedings
of the inquiry establish any article of charge different from
original the articles of charge, it may record its findings on such
article of charge.
Provided that the findings on such article of charge shall
not be recorded unless the employee has either admitted the facts
on which such articles of charge is based or has had a reasonable
opportunity of defending himself against such article of charge.
(II) The inquiring authority, where it is not itseif the disciplinary
authority, shall forward to the disciplinary authority the records of
inquiry which shall include-
(a) The report prepared by it under clause (1).
(b) The written statement of defence, if any submitted by the
employee;
(c) the oral and documentary evidence produced in the course
of the inquiry.
(d) Written briefs, if any, filed by the Presenting Officer or the
employee or both during the course of the inquiry; and
(e) the orders, if any, made by the disciplinary authority and
the inquiring authority in regard to the inquiry.
ACTION ON THE INQUIRY REPORT:
151(1) The disciplinary authority, if it is not itself the inquiring
authority may, for reasons to be recorded by it in writing, remit the
case to the inquiring authority for further inquiry and report and
the inquiring authority shall thereupon proceed to hold the further
inquiry according to the provisions of regulation 149 as far as may
be.
(2) The disciplinary authority shall if it disagrees with the
findings of the inquiring authority on any article of charge, record
its reasons for such disagreement and record its own findings on
such charge, if the evidence on record is sufficient for the purpose.
(3) If the disciplinary authority having regard to its findings on
all or any of the articles of charge is of the opinion that any of the
penalties specified in clauses (i) to (iv) of regulation 146 should be
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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imposed on the employee, it shall, notwithstanding anything
contained in regulation 152, make an order imposing such penalty.
(4) if the disciplinary authority having regard to its findings on
all or any of the articles of charge and on the basis of the evidence
adduced during the inquiry, is of the opinion that any of the
penalties specified in clauses (v) to (ix) of Regulation 146 should
be imposed on the employee, it shall make an order imposing such
penalty and it shall not be necessary to give the employee any
opportunity of making representation on the penalty. "Proposed to
be imposed."
153. Orders made by the disciplinary authority shall be
communicated to the employee who shall also be supplied with a
copy of the report of the enquiry, if any, held by the disciplinary
authority and copy of its findings on each article of charge, or
where the disciplinary authority is not the inquiring authority and
a statement of the findings of disciplinary authority together with
brief reasons for its disagreement, if any, with the findings of the
inquiring authority (unless they have already been supplied to
him).
APPEALS:
159. Notwithstanding anything contained in these regulation no
appeal shal lie against:
(i) any order made by the Board.
(ii) any order of an interlocutory nature or of the nature of
step-in-aid or the final disposal of a disciplinary proceeding,
other than an order of suspension;
(iii) any order passed by an inquiring authority in the course of
an inquiry under regulation 149.
160. Subject to the provisions of regulation 159 an employee may
prefer an appeal against all or any of the following orders,
namely:
(i) an order of suspension made or deemed to have been made
under Regulation 158;
(ii) An order imposing any of the penalties specified in
Regulation 146 whether made by the disciplinary authority or
by any appellate or reviewing authority;
(iii) an order enhancing any penalty, imposed under
Regulation 146;
(iv) An order which:
(a) denied or varies to his disadvantage his pay, allowance,
retirement benefits or other conditions of service as
regulated by regulations or by agreement; or
Signature
Not Verified
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(b) interprets to his disadvantage the provisions of any
such regulation or agreement;
(v) an order:
(a) stopping fiim at the efficiency bar in the time scale of pay
on the ground of his unfitness to cross the bar;
(b) reverting him while officiating in a higher grade or post to
a lower grade or post, otherwise than a penalty;
(c) reducing or withholding the terminal benefits or denying
the maximum terminal benefits admissible to him under the
regulation;
(d) determining the subsistence and other allowance to be paid
to him for the period of suspension or for the period during
which he is deemed to be under suspension or for any portion
thereof;
(e) determining his pay and allowance:
(i) for the period of suspension, or
(ii) for the period from the date of his dismissal, removal,
or compulsory retirement from service or from the date of
his reduction to a lower grade post, time-scale or stage in a
time scale of pay, to the date of his reinstatement or
restoration to his grade or post, or
(f) determining whether or not the period from the date of
suspension, or from the date of his dismissal, removal
compulsory retirement or reduction to lower grade, post, time
scale of pay or stage in a time scale of pay to the date of his
reinstatement or restoration to his grade or post shall be
treated as a period spend on duty.
Explanation:
(i) the expression "employee" includes a person who has ceased to
be in the service of the Corporation.
(ii) the expression "terminal benefits" incharge Illegible and any
other retirement benefits.
161. An appeal against an order imposing any of the penalties
made by the disciplinary authority shall lie to the appellate
authority indicated in regulation 147. In other cases, an appeal
lies to the authority next higher to the authority passing the order.
PERIOD OR LIMITATION FOR APPEALS:
162. No appeal preferred under these regulation shall be
entertained unless such appeal is made within forty five days from
the date on which a copy of the order appealed against is delivered
to the appellant;
Signature
Not Verified
Digitally Signed
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Provided that the appellate authority may entertain the
appeal after the expiry of the said period if it is satisfied that the
appellant has sufficient cause for not preferring the appeal in time.
FORM AND CONTENTS OF APPEAL:
163. every person preferring an appeal shall do so separately and
in his own name.
(a) The appeal shall be presented to the authority to whom the
appeal lies, a copy being forwarded by appellant to the
authority which made the order appealed against. It shall
contain all material statements and arguments on which the
appellant relies, shall not contain any disrespectful or
improper language, and shall be complete in itself.
(b) the authority which made the order appealed against shall
on receipt of a copy of the appeal, forward the same with its
comments thereon together with the relevant records to the
appellate authority without any avoidable delay and without
waiting for any direction from the appellate authority.
CONSIDERATION OF APPEAL:
164(1) In the case of an appeal against an order or suspension, the
appellate authority shall consider whether in the light of the
provisions of Regulation 158 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 146 or enhancing any penalty
imposed under the said reguiation, the appeiiate authority shall
consider:
(i) where the procedure laid down in these Illegible has been
complied with, and if not, whether such non-compliance has
resulted in the violation of any provisions under these
regulation or in the failure of justice;
(ii) whether the findings of the disciplinary authority are
warranted by the evidence on the record; and
(iii) whether the penalty or the enhanced penalty imposed is
adequate, inadequate or severe; and pas order:
(a) confirming, enhancing, reducing or setting aside the
penalty; or
(b) 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;
IMPLEMENTATION OF ORDERS IN APPEAL
Signature
Not Verified
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165. The authority which made the order appealed against shall
give effect to the orders passed by the appellate authority.
166(1) Notwithstanding anything contained in these regulation, the
Corporation may, at any time, either on its own motion or
otherwise, call for the records of any inquiry and review made
under these regulations, and
(i) confirm, modify or set aside the order; or
(ii) confirm, reduce, enhance or set aside the penalty
imposed by the order, or impose any penalty where no
penalty has been imposed; or
(iii) remit the case to the authority which the order or to
any other authority directing such authority to made such
further inquiry as it may consider proper in the
circumstances of the case; or
(iv) pass such other orders as it may deem fit; provided that
no order imposing or enhancing any penalty shall 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 146 or to enhance the penalty
imposed by the order sought to be reviewed to any of the
penalties specified in these clauses, no such penalty shall
be imposed except after an inquiry in the manner laid down
in regulation and after giving a reasonable opportunity to
the employee concerned of showing cause against the
penalty proposed on the evidence adduced during the
inquiry.
(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 these specified in sub regulation.
(1) above may be exercised by the Managing Director/General
Manager and the Director of a Farm in respect of orders passed by
authorities subordinate to them."
31. Inter alia , the respondent No.2 submits that it has terminated
the service of the petitioner as per Rules governing his services, and
Signature
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that the petitioner is not entitled to any relief claimed in the petition,
and that he is not entitled to reinstatement.
32. The respondent No.2 further submits that the petitioner was
selected for the post of Special Assistant to Chairman-cum-Managing
Director, who sits at New Delhi, but in terms of clause 2(xi) of the
offer of appointment, it was made clear to the petitioner that at
present, he would be posted at the Corporate Office but his services
were liable to be transferred to any place in India, and a copy of the
offer of appointment has been annexed as Annexure-R-2/1 with the
counter affidavit, in which vide clause xi, it had been stated to the
effect:-
“xi. You are posted at present to work at the Corporate Office i.e.
Farm Bhawan, 14-15, Nehru Place, New Delhi-110 019, but you
are liable to transferred to any place in India as and when it is
found necessary to do so in the interest of work of the
Corporation.”
Inter alia, the respondent No.2 denies that the petitioner discharged
his duties with sincerity and devotion.
33. It was further submitted through the counter affidavit on behalf
of the respondent No.2 that in view of the proposed closure of the
Bahraich Branch and there being no Officer of the Administration
Department in the said Farm, the petitioner was transferred to the
CSF, Bahraich for Assisting the Director In-charge, CSF, Bahraich in
Administration, and that the respondent No.2 had an acute shortage of
Administrative Officers at the farms and the posts of Special Assistant
to CMD and Administrative Officer being in identical scales, in view
of non-requirement of Special Assistant to CMD at the Head Office,
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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the Board converted the post of Special Assistant to CMD to the
Administrative Officer without changing pay scales, career prospects
and terms and conditions of the appointment.
34. Inter alia , the respondent No.2 has submitted through the said
counter affidavit that the petitioner had frequently applied for one day
or a few days casual leaves, citing the reason as „unavoidable
circumstance‟ and remained absent for much longer duration than
permitted/sanctioned, and afterwards, the petitioner had applied for
regularization of absence by applying for earned leave/commuted
leave, and had had never mentioned reasons for leave as his father's
illness.
35. Inter alia, the respondent No.2 submits that when this Court did
not grant a stay on his transfer from Delhi to Bahraich in Writ Petition
(C) No. 5304/2010, the petitioner chose another way of remaining
absent from the place of posting by going on unplanned leave
frequently, and during the period of 558 days of his posting at the
CSF, Bahraich, he remained absent from duty on one ground or the
other for as long as 443 days in spite of the fact that his presence was
required in the farm for administrative jobs including handling the
ongoing agitation of the farmers against the proposed closure of the
farm.
36. Inter alia, it has been submitted on behalf of the respondent
No.2 that the contention of the petitioner that he was on sanctioned
leave from 13.12.2010 to 31.12.2010 is factually incorrect as he had
joined duties on 20.12.2010 and again went away from his place of
duty from 27.12.2010 to 22.03.2011 without any prior
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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permission/sanction of leave and further absented from duty from
26.03.2011 to 22.04.2011, and that this type of habitual absenteeism
continued at the CSF, Bahraich, and even after transfer to Lucknow,
the attendance of the petitioner was not found to be satisfactory.
37. Inter alia, the respondent No.2 has submitted that the petitioner
was posted at CSF, Bahraich to look after various administrative
activities at the Farm and the handling of the farmers agitation against
the proposed closure of the Farm being one amongst them, and that
the agitation by the farmers was almost on continuous basis and not an
isolated incident, and thus the joining of duties by the petitioner at the
Farm on specific directions cannot be treated as an act of sincerity
towards duty on his part, and rather it was obligatory on his part as his
duty, as he was being paid salary for performing duties, which he was
avoiding by remaining absent very frequently due to one reason or the
other thus remaining oblivious of his requirement.
38. Inter alia , the respondent No.2 has submitted that the petitioner
was present on duties for 115 days only out of the total period of 558
days at his place of posting at erstwhile CSF, Bahraich, and there was
no other Officer in the Administration Department to look after the
concerned activities required in connection with the proposed closure
of the Farm and the handling of on-going agitation of farmers.
39. Inter alia, the respondent no.2 submitted to the effect that there
were no ex-parte proceedings held against the petitioner in respect of
the Articles of Charge No.1 & 2 and that the Inquiry Officer had dealt
with all issues raised by the petitioner in the Inquiry Report with it
having been submitted by the respondent no.2 that the record of the
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inquiry showed that the petitioner participated in 10 hearings out of
the total 13 hearings and participated in the Inquiry during
examination-in-chief and cross examination of all Management
witnesses as well as all defence witnesses and that the petitioner was
given due opportunities to bring any other defence witness or
additional defence documents but the petitioner failed to do so. Inter
alia, the respondent no.2 has submitted that the petitioner misbehaved
with the Inquiry Officer and Presenting Officer in the hearing held on
20.06.2011 and refused to sign the proceedings and that the petitioner
again attended the subsequent hearings held on 07.07.2011 and on
20.07.2011 but he abandoned the proceedings of his own accord and
thereafter did not attend the hearings fixed on 17.08.2011 and
07.09.2011. It has been submitted by the respondent no.2 that the
leave application with the medical certificate sent to the Inquiry
Officer by the petitioner informing that he was sick upto 18.08.2011
was not taken into cognizance by the Inquiry Officer for specific
reasons recorded in the daily order sheet.
40. The proceedings dated 17.08.2011 before the Inquiry Officer
read to the effect:-
“…..
RH in the case was fixed on 17.8.2011 at 11.00 hrs. The
Charged Officer (CO) has sent an application for leave on
medical ground, signed on 3.8.2011, addressed to the CMD
and copy to CAO, Presenting Officer and Inquiry Officer,
alongwith Medical Certificate without getting the same
sanctioned by the Competent Authority, expressing his
inability to attend the RH on the fixed date. He is reportedly
sick upto 18.8.2011. Strictly speaking his application dated
3.8.2011 as sent does not merit cognizance.
Still considering that one Defence Witness (DW-2) has
been recalled for further evidence, and also the fact that the
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C.O. has asked for certain additional information/documents
through RTI, which he wants to introduce in his defence, the
I.O. is constrained to provide another opportunity to the CO
for recording further evidence of DW-2 and submission of
additional information/documents by the CO in his defence.
After ensuring the availability of the PO, the IO has
decided to hold the RH on 7.9.2011 at 11.00 hrs. in SFCI
Conference Hall, Hqrs., New Delhi for further evidence of
DW-2 and submission of information / documents, if any, by
the CO in his defence. Notice to DW-2 has been issued. The
C.O. who has opted to become a witness in his defence will
also be examined on 7.9.2011.
A copy of the Daily Order Sheet of the proceedings held
today has been sent to the CO for participating in the inquiry
on 7.9.2011. No further adjournment will be granted to the
C.O./P.O. The RH will stand concluded on 7.9.2011 for
submission of written briefs by the P.O. and the C.O.”,
41. The said proceedings held on 17.08.2011 indicated that the
Inquiry Officer gave a final opportunity to the petitioner to present the
additional documents, if any, on the next final hearing fixed for
07.09.2011 and it was clearly informed to the petitioner that the
hearing would stand concluded on 07.09.2011 but despite the same,
the petitioner did not attend the said hearing also, without any
intimation after which the Inquiry officer concluded the proceedings
and directed the parties to submit their written briefs, if any and after
which the Presenting Officer submitted the written brief and the
Inquiry Officer again sent a letter to the petitioner for submitting his
written brief but he did not do so.
42. It has been submitted by the respondent no.2 that after
participating in all effective regular hearings, the petitioner himself
abandoned the inquiry deliberately without any valid reasons only in
order to delay the Inquiry Proceedings with it having been submitted
on behalf of the respondent no.2 that no significant business was
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transacted on the dates of final hearings on 17.08.2011 and 07.09.2011
during the absence of the petitioner and thus, it cannot be said that the
inquiry was concluded ex-parte.
43. Inter alia, the respondent no.2 has submitted that the petitioner
has tried to create confusion by referring to the analysis of evidence by
the Inquiry Officer in relation to the second charge which is not
related to charge No. 1 and that the petitioner has misrepresented the
facts before this Court by referring a part of the observations of the
Inquiry Officer in relation to the Charge. The respondent no.2 has
further submitted that the services of the petitioner were governed by
the SFCI Employees (Conduct, Discipline and Appeal) Rules and not
by the CCS Rules and even from the CCS Rules, it was clear that the
final order could be authenticated by an officer who had been
authorized to do so and that the final order based on the order passed
by the Disciplinary Authority on file was issued by the General
Manager (HR) under the orders and directions of the Disciplinary
Authority and therefore, could not be held as invalid or non-speaking.
It has thus been reiterated by the respondent no.2 that the principles of
natural justice had not been violated at all as sought to be contended
by the petitioner.
44. The respondent no.2 has submitted that though the appeal filed
by the petitioner against the dispatch of the punishment order dated
07.06.2012 was received after expiry of 96 days and had not been filed
within the stipulated period of 45 days in terms of Rule 52 (i) of SFCI
Employees (CDA) Rules, nor did the petitioner put forth any
explanation to fall within the exception to the said Clause to show
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sufficient cause for not preferring the appeal in time, nevertheless, the
Appellate Authority in its meeting held on 29.04.2013, considered
each and every averment made by the petitioner in his appeal and
perused the relevant files and documents and thereafter came to the
conclusion that the petitioner had availed due opportunities in the
enquiry proceedings and had abandoned the proceedings himself and
the major part of the proceedings were over, that there was no
violation of the principles of natural justice, that the appeal was barred
by time and was also devoid of merits and the appeal was thus
dismissed on 29.05.2013.
45. The respondent no.2 has further submitted that in terms of Rule
56 of the SFCI Employee (Conduct, Discipline & Appeal) Rules, there
is no provision for filing of the Review Appeal by an employee
aggrieved against the order of the Appellate Authority, but the rule
empowered the Board of Directors to call for the record of any case
within six months of the date of the final order and after reviewing the
case to pass such orders thereon as it deemed fit and that the contents
of the Review Appeal dated 16.08.2013 were almost the same as in the
earlier appeal, which was considered and rejected by the Board and
that there were no new facts or developments were brought out in the
said Review Application and thus, on merits, the review application
did not deserve any reconsideration by the Board/Reviewing Authority
and it was thus informed by the SFCI vide its office order dated
21.10.2013 that the review petition of the petitioner did not call for
any reconsideration/review by the Board of Directors.
Signature
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By:SUMIT GHAI
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46. It has been submitted further by the respondent no.2 that in the
violation of the provision of Regulations 123B(1)(b), (c), (d) and 2
and 123C (5), (17), (18) and (20) stood established to the hilt against
the petitioner, but that the violation of Regulation 123C(8) was not
established against him and that the Inquiry Officer held that the
violation of the provision of Regulations123B(l)(b), (c) and 2 and 123
(5), (9) and (20) stood squarely established against the petitioner, but
the violation of Regulation 123C(6) and (18) was not established.
47. The petitioner, vide its rejoinder affidavit to the affidavit filed
on behalf of the respondent no.2, has reiterated the contents of the
petition.
48. Through written submissions dated 05.03.2022, the petitioner
has reiterated the submissions made in the petition and inter alia
placed reliance on the verdict of this Court in CWP No. 4693/1997
titled as “Rama Tyagi Vs DDA” reported as 2000 (56) DRJ (Suppl)
602 wherein, it was held that any punishment imposed by a
subordinate officer of the appointing authority is void ab initio and
against the provision of Article 311 (1) of the Constitution of India.
Reliance was also placed on behalf of the petitioner on the judgment
in “Union of India and Others vs P. Gunasekaran” (2015) 2 SCC
610 to contend that the findings of the Inquiry Officer were perverse.
49. Through the brief synopsis submitted on behalf of the
respondent no.2, the submissions made through the counter affidavit
filed on behalf of the respondent no.2 were reiterated and it was
submitted that the contentions raised by the petitioner are wholly
erroneous and that the charge framed against the petitioner of having
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violated the Regulations 123B(1)(b), (c), (d) and 2 and 123C (5), (9)
(17), (18) and (20) of the State Farms of India Limited (Staff)
Regulations, stood established, in as much as, the petitioner had left
his work place on 27.12.2010 without any prior approval or getting
any leave sanctioned by the Competent Authority and that the charged
officer was directed vide letter dated 14.01.2011 to report for duty
within three days from the date of its receipt but the charged officer
failed to so report for duty and that the charged officer did not fully
co-operate in the Departmental Inquiry against him.
50. Inter alia, the respondent no.2 has submitted to the effect that
the verdicts of the Hon‟ble Supreme Court in “Union of India and
Others vs P. Gunasekaran” (2015) 2 SCC 610, “Vijay S. Sathaye vs
Indian Airlines Limited and Others” (2013) 10 SCC 253, “Sukhdev
Singh vs Delhi Development Authority” (2011) 184 DLT 164,
“Syndicate Bank vs B. N. Pandey and Anr.” (2010) 171 DLT 60,
“Regional Manager, Bank of Baroda vs Anita Nandrajog” (2009) 9
SCC 462 to bring forth that exercise of powers under Article 226/227
of the Constitution of India, does not provide for scope to this Court to
venture into re-appreciation of the evidence. The respondent no.2 has
thus, sought the dismissal of the petition filed by the petitioner with
costs.
ANALYSIS
51. On a consideration of the submissions made on behalf of either
side, on a bare perusal of the inquiry report dated 26.12.2011 qua
articles of charge framed against the petitioner i.e. Articles of Charge I
& II in relation to the petitioner having unauthorizedly absented
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himself from the duty since 27.12.2020 and of having not taken
interest in his work and responsibility entrusted to him whilst he was
posted at the Central State Farm, Bahraich as an Administrative
Officer, the contention of the petitioner that the principles of natural
justice had been violated and that he had been proceeded ex-parte
without providing an adequate opportunity to put forth his version, is
wholly belied from the record of the inquiry proceedings through the
daily order sheets of the said proceedings placed on record as
Annexure-2/3 (Colly) by the respondent no.2. The said aspect is also
clearly observed and taken into account by the Appellate Authority of
the respondent no.2 vide order dated 29.05.2013.
52. The contention of the petitioner that despite the communication
dated 06.07.2011 of the Director i/c, Mr. Siya Ram to the Company
Secretary of the SFCI which depicted the periods of sanctioned leave
to the petitioner and that he had never been on unauthorized leave has
rightly been rejected by the Inquiry Officer as well as the Appellate
Authority of the respondent no.2 vide its office order dated 29.05.2013
dismissing the appeal of the petitioner, in as much as, the Appellate
Board has given its observations to the effect:-
“Point (v) of Appellant- Charge no.1 That I absented myself
unauthorized from CSF Bahraich since 27.12.2010 without getting
any leave sanctioned.
Board's Observation: "The Board noted that the
Charged Officer is trying to confuse two different
charges. Charge No. 1 is related to his
unauthorized absence from 27.12.2010 onwards
which had been proved by the Inquiry Officer on
the basis of the documents and the prosecution
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evidence. The statement of defence witness namely
Dr. S.PS. Tomar had also been analysed and taken
into consideration while proving the charge. In
this para, he is referring to the leaves sanctioned
to him prior to 27.12.2010 and not about the
unauthorized absence from 27.12.2010 onwards
for which he was charge-sheeted under charge
No.1."
”
53. The unauthorized absence which the Inquiry Officer has held
against the petitioner is in relation to Charge no.1 as analyzed to the
effect:-
“ Charge -1
The charge 1 consists of the following limbs:
The Charged Officer;
• unauthorisedly absenting himself from duty w.e.f
27.12.2010
• left the Farm on his own will on 27.12.2010 without
getting the leave sanctioned from the Competent
Authority, and
• did not reply to the Memo dated 14.01.2011 of the
Director, CSF, Baharaich.”,
and the assessment made thereon is to the effect:-
“Assessment of the Prosecution Evidence and Findings
of the Inquiring Authority
Charge -1
PEx-1 is an application dated 26.12.2010, preferred by
the Charged Officer seeking grant of leave to him upto
03.01.2011 for appearing at LLB examination. The leave
was not sanctioned by the Director, CSF, Bahraich. The
Charged Officer handed over his said application for
leave to Sh. Ved Prakash, the Security Officer (PW-2) on
26.12.2010 which was Sunday and, left the Project
without getting the leave sanctioned from the Director,
Signature
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By:SUMIT GHAI
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CSF or in his absence from Sh. Siya Ram who took over
from him as Director, CSF on 1.1.2011. The Charged
Officer has not led any evidence to controvert the fact of
his having left the CSF on 26.12.2010 unauthorisedly or
getting any leave sanctioned by the Competent Authority.
The event for which he had taken leave, namely, for
appearing at LLB exam cannot be termed as a sudden
development. And the Charged Officer has not produced
any oral or documentary evidence indicating that it was
known to the then
Director, CSF prior to 26.12.2010 that the Charged
Officer was to appear at LLB Exam. The Charged Officer
has also not produced permission of the Competent
Authority to prosecute studies in LLB course. Nor there is
any evidence to the effect that the then Director CSF was
aware of it. The Charged Officer as an employee of the
Company was not entitled to accord precedence to his
appearing at LLB examination over his presence in the
Farm. Hence, it stands established that the Charged
Officer left his work place on 26.12.2010 nay on
27.12.2010 without the prior approval of the Competent
Authority or getting any leave sanctioned by the
Competent Authority.
A bare perusal of undisputed PEx-1, which is the leave
application dated 26.12.2010 of the Charged Officer,
given by him to Sh. Ved Prakash, the then Security
Officer, (PW-2) for handing over to the Director, CSF
reveals.
• that he assumed that the Director, CSF Baharaich was
aware that the Charged Officer was appearing at LLB
Exam;
• that the Charged Officer had not mentioned the type of
leave being applied by him, and
• that the Charged Officer had mentioned in the PEx-1
the purpose of leave. It was to appear at LLB exam. But
he wrongly imputed its knowledge with the Director.
No such knowledge was existing with the Director
(PW-1) as deposed by him. It stands established that the
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Charged Officer left the Farm by giving an application
for leave to his co-employee, Sh. Ved Prakash, Security
Officer (PW-2), and that he did not hand over the said
application to his controlling officer, Dr. SPS Tomar, the
then Director, C.S.F., Baharaich or in his absence to the
new incumbent, Sh. Siya Ram. Neither of them has
deposed during the enquiry that the Charged Officer had
ever given them even inkling of his prosecuting studies in
LLB course and about his appearing at the said Exams in
December 2010. Evidently, the Charged Officer left the
Farm abruptly and without the knowledge or permission
of the Competent Authority.
There is, however, no evidence led by the
Presenting Officer to establish that the Charged Officer
had not mentioned the purpose of leave in his application
dated 26.12.2010. The Charged Officer did indicate the
purpose of leave was to appearing at LLB examination.
Hence, it is incorrect to charge the Charged Officer that
he did not mention the purpose of his leave in his
application for leave dated 26.12.2010. However, this
fact is inconsequential to the charge framed against the
Charged Officer.
A perusal of PEx-1 further reveals that as per the
application for leave dated 26.12.2010 (PEx-1) the
Charged Officer had applied for leave upto 03.01.2011.
PEx-2 reveals that the Charged Officer was directed vide
letter dated 14.1.2011 to report for duty within 03 days
from the date of its receipt but the Charged Officer failed
to report for duty. The Charged Officer has not produced
any evidence in his defence to controvert these facts.
Hence, it stands unequivocally established against the
Charged Officer.
that he did not explain the reason for his deliberately
leaving the Farm without permission of the Director, CSF
Baharaich on 26.12.2010 or getting the leave sanctioned,
and
that he did reply to the Memo dated 14.01.2011 issued to
him by the Director, CSF, Baharaich.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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The Staff Regulations pertaining to 'Leave and
Joining Time' (PEx-06) inter-alia envisage the following
General Conditions Covering Grant of Leave to the
employees under Regulation 54:
Leave cannot be claimed as a matter of right.
Leave shall not be availed of by the employee without
obtaining the prior sanction of the Competent Authority.
Application for sanction of leave shall be submitted by
the employee to the Competent Authority sufficiently in
advance which in the case of earned leave shall not be
less than 15 days before the date on which the leave
applied for is to commence excepting in unforeseen
circumstances.
An employee is expected to avail himself of the leave
granted fully before resuming duty and may not return to
duty before the expiry of such leave except with the
permission of the Competent Authority.
Here the charged officer submitted his application
for leave (PEx-1) dated 26.12.2010 to his co-employee,
Sh. Ved Prakash (PW-2) and not to his Controlling
Officer, the Director, CSF, Baharaich for approval. And
without obtaining the prior sanction of the competent
authority, he left the place of his posting, namely CSF
Baharaich on 26.12.2010 of his own will. Further, he was
expected to ascertain whether the leave applied by him
upto 3.01.2011 had been sanctioned or not. He failed to
do so. Thus, he claimed leave as a matter of right in
violation of Regulation 54(1) and 54 (4). Not only that,
the Charged Officer failed to report for duty on 4.1.2011.
And he continued to remain unauthorisedly absent from
duty even after 03.01.2011. Thereby, the Charged Officer
failed to maintain devotion to duty and also failed to
conform to and abide by the provisions of Staff
Regulations relating to Leave and Joining Time (PEx-6).
The Charged Office left the Farm unauthorisedly and
absented himself from duty w.e.f. 26.12.2010 without
leave. He also failed to come up with proper or
satisfactory explanation for his continued unauthorized
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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absence in the Farm w.e.f. 26.12.2010. He also failed to
comply with and obey the lawful order of his official
superior contained in PEx-2 to report for duty. This
amounted to willful insubordination and disobediance of
the lawful and reasonable order of his superior. His
leaving the Farm without permission or sufficient cause
amounted to act subversive of discipline or good
behaviour. Thereby, he acted in a manner prejudicial to
the interest of the CSF, Baharaich. The above facts,
however, do not exhibit the habitual late or irregular
attendance of the Charged Officer.
Hence, violations of the Provisions of Regulation
123B(1), (b), (c), (d) and (2) and 123C(5), (7), (18) and
(20) stand established to the hilt. The Violation of
Regulation 123C(8) is not established against the
Charged Officer.” ,
which brings out clearly that the petitioner on 26.12.2010
unauthorizedly without getting any leave sanctioned from the
Competent Authority for a non sudden development in as much as his
leave application related to seeking to appear for an LLB examination
had applied leave upto 03.01.2011 as rightly observed by the Inquiry
Officer was not a sudden development with the charged officer having
not produced any oral or documentary evidence that it was known to
the then Director, CSF prior to 26.12.2010, that the petitioner was to
appear in the LLB examination with the petitioner having not
produced the permission of the Competent Authority to allow him to
prosecute studies in the LLB Course with there being no evidence to
show that the Director, CSF was aware of it, with the charged officer,
the employee of the company not being entitled to accord precedence
to his appearance at the LLB examination over the presence of the
petitioner at his work place from 27.12.2010 without prior approval of
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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the Competent Authority or getting any leave sanctioned by the
Competent Authority,- has been rightly held to have been established
against the petitioner.
54. The factum that the petitioner was also called upon to join on
14.01.2011 to report for duty but did not do so, also brings forth that
the petitioner had remained unauthorizedly absent, in as much as, the
leave cannot be claimed as a matter of right and an employee on
conclusion of leave must resume his duties on availing of such leave.
Furthermore, the petitioner who had applied for leave upto 03.01.2011
had failed to ascertain whether the said leave had been sanctioned and
failed to report even on 04.01.2011 and continued to remain absent
unauthorizedly from the date even after 03.01.2011. In these,
circumstances, the communication dated 06.07.2011 placed on record
as Annexure-A7 by the petitioner is of no avail to the petitioner
despite his assertions that in paragraph 6 of the said communication, it
was recorded to the effect:-
“6. E.L Application sanctioned by the Director i/c and
convey thereof in two pages (w.e.f. 13.12.2010 to
31.12.2010) are enclosed.”,
in as much as, the averments in paragraph 3(viii) of the petition itself
categorically state to the effect that whilst the petitioner was on
sanctioned leave from 13/12/2010 to 31/12/2010, Dr. S.P.S Tomar
(Director In-charge) called the petitioner to join duties, as there was an
apprehension of agitation in the Farm and in the interest of the
Corporation, the petitioner joined his duties immediately on
20/12/2010, that the agitation started on 22/12/2010 and ended on
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
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Date:24.11.2022
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25/12/2010, that the petitioner played an important role in calming
down the agitation and after the agitation was over, the petitioner
again requested for leave from 27/12/2012 to 3/1/2011 which is the
period of leave in question which has not been sanctioned by the
Competent Authority as brought forth through the report of the
Inquiry Officer and the contention of the petitioner that as Dr. S.P.S
Tomar was not there at Farm, therefore the petitioner informed him on
telephone and on the instructions of Dr. Tomar, the petitioner left his
application for leave with the Security Officer of the Farm, is not
borne out from the record to be correct as also depicted through the
counter affidavit of the respondent no.2 vide paragraph 3(vii) to the
effect that the petitioner had joined the duties on 20.12.2010 and again
went away from his duty place from 27.12.2010 to 22.03.2011 without
any prior permission / sanction of leave and further absented from
duty from 26.03.2011 to 22.04.2011 which has not been specifically
denied by the petitioner through the para-wise rejoinder and rather the
petitioner states that the contents of these paras of the counter affidavit
are denied for want of knowledge and the answering respondent be put
to strict proof to prove the same.
55. The observations of the Appellate Authority vide its order dated
29.05.2013 and the submissions made on behalf of the respondent
no.2 are thus, correct that the petitioner is only trying to confuse the
issued in relation to his unauthorized absence from 27.12.2010 in view
of the communication dated 06.07.2011 adverted to hereinabove
through the record before the Inquiry Officer, the Appellate Authority
and the Reviewing Authority order dated 21.10.2013, the charge of
Signature
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Digitally Signed
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imputations of Article of Charge-I as per the memo dated 02.02.2011,
stand wholly established.
56. As regards the charge no.II of dereliction of duty and not taking
interest and responsibility entrusted to the petitioner and his not being
present to protect the interest of the enterprise and safety of employees
at the time of agitation at the place of posting at Central State, Farm
Bahraich, the record put forth by the respondent no.2 and the Inquiry
Report all establish that the Charge no.II analyzed by the Inquiry
Officer is to the effect:-
“ Charge - II
The Charged Officer :
• doesn't take interest in his work and
responsibilities.
• not present in the Farm to protect the interest of
the Corporation and safety of employees and the
property of the Farm.
• exhibited lack of devotion to duty.
• acted in a manner which is against the
established norms of official procedure and
tantamounts to grave misconduct.”,
and as analyzed by the Inquiry Officer shows that after joining the
CSF Baharaich pursuant to his transfer order dated 20.07.2010, the
charged officer remained away from the Farm for 132 days out of 195
days of his posting in the CSF, Baharaich upto January, 2011 despite
the position of the agitation of the local villagers being very grim as
testified by Dr. S.P.S. Tomar, DW-1, the then Director i/c, CSF
Baharaich and as brough forth through the testimony of Sh. Ashok
Kumar, P.A. to Director (Incharge) CSF Baharaich (PW-3) who has
stated that there was an agitation by the local people in which about
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
19:01:29
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
W.P.(C) 8202/2013 Page 44 of 46
NEUTRAL CITATION NO: 2022/DHC/005107
15000 to 20000 agitators were involved and that the agitation for 15 to
20 days was controlled by contacting the DM, SP and SHO, Sujholi
and that the agitations were during the tenure of the charged officer,
that the agitators included women who stopped the supply of seeds
and these agitations were commenced in June 2010 and stopped on
13.06.2010 and started again on 22.12.2010 by the local people who
had tried to capture the land of the Farm and the agitation was over on
25.12.2010 through intervention of officials of CSF, Local
Administration, SSB and PAC. As per the Inquiry Report, the then
Director, CSF had deposed that the presence of the Administration
Officer i.e. the petitioner herein was essential to liaison with the local
police, District Administration and agitators but the petitioner failed to
maintain devotion to duty and conform to and abide by the provision
of the Staff Regulations relating to 'Leave and Joining Time', he being
habitually on leave and thus, did not serve the CSF, Baharaich
honestly and faithfully and failed to display endeavour to promote the
interest of the Corporation and, thereby, he acted in a manner
unbecoming of a Corporation employee and the petitioner i.e. the
charged officer remained on leave very frequently and he remained
oblivious of his requirement in the Farm. The Inquiry Report which
holds that there had been a violation of Regulation 123 B(1), (b), (c), 2
and 123 (5), (9) and (20) has thus rightly held the Charge-II to have
been established against the petitioner.
57. In these circumstances, this Court finds no infirmity in the
imposition of penalty of removal of the petitioner from the services of
the SFCI in terms of the punishment order dated 07.06.2012 upheld by
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
19:01:29
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
W.P.(C) 8202/2013 Page 45 of 46
NEUTRAL CITATION NO: 2022/DHC/005107
the Appellate Authority of the respondent no.2 vide order dated
29.05.2013 and by the dismissal of the Review Appeal vide order
dated 21.10.2013.
58. The petition is thus, dismissed.
ANU MALHOTRA, J.
th
NOVEMBER 24 , 2022
ha/nc
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
19:01:29
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
W.P.(C) 8202/2013 Page 46 of 46