Ponung Moyong vs Food Corporation Of India And 7 Ors.
- Court
- Gauhati High Court
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GAHC010106342019
2026:GAU-AS:12382
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 3317 of 2019
1. MRS. PONUNG MOYONG,
D/o- Opang Moyong,
rd
R/o- Wai Apartment, 3 Floor Apartment No. 5, Abotani Colony,
Itanagar,
District- Papumpare,
State- Arunachal Pradesh,
PIN: 791111.
… PETITIONER.
-Versus-
1. FOOD CORPORATION OF INDIA,
Represented by its Chairman-cum-Managing Director,
having its Head Office at 16-20, Barakhamba Lane,
New Delhi,
PIN- 110001.
2. CHAIRMAN-CUM-MANAGING DIRECTOR,
Food Corporation of India,
16-20, Barakhamba Lane,
New Delhi,
PIN- 110001.
3. EXECUTIVE DIRECTOR (NE),
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Food Corporation of India,
Zonal Office (NE),
Guwahati,
State- Assam.
4. GENERAL MANAGER (R),
Food Corporation of India,
Regional Office, Itanagar,
District- Papumpare,
State- Arunachal Pradesh,
PIN: 791111.
5. THE STATE OF ARUNACHAL PRADESH,
Represented by the Chief Secretary,
Government of Arunachal Pradesh, Itanagar,
District- Papumpare,
State- Arunachal Pradesh,
PIN: 791111.
6. THE CHIEF SECRETARY,
Government of Arunachal Pradesh, Itanagar,
District- Papumpare,
State- Arunachal Pradesh,
PIN: 791111.
7. DIRECTOR,
Social Welfare, Woman & Child Development Department,
Government of Arunachal Pradesh, Itanagar,
District- Papumpare,
State- Arunachal Pradesh,
PIN: 791110.
8. ARUNACHAL PRADESH PUBLIC SERVICE COMMISSION,
ESS- Section, Itanagar,
District- Papumpare,
State- Arunachal Pradesh,
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PIN: 791111.
… RESPONDENTS.
BEFORE
HONOURABLE MR. JUSTICE NELSON SAILO
Advocate for the petitioner: Mr. S. Chakraborty, Adv.
Advocates for the respondents: Mr. B. K. Singh, SC, FCI, R-1 to 4,
Mr. M. R. Adhikari, GA, AP, R-5 to 7
Date on which judgment is reserved : 20.08.2026
Date of hearing : 13.08.2026 & 20.08.2026
Date of pronouncement of judgment : 28.08.2026
Whether the pronouncement is of
the operative part of the judgment? : No
Whether the full judgment has been
pronounced? : Yes
JUDGMENT AND ORDER (CAV)
Heard Mr. S. Chakraborty, learned counsel for the petitioner. Also heard Mr.
B. K. Singh, learned Standing Counsel, Food Corporation of India, for the
respondent Nos. 1 to 4 and Mr. M. R. Adhikari, learned Government Advocate,
Arunachal Pradesh, for the respondent Nos. 5, 6 & 7.
[2.] By filing this writ petition, the petitioner has prayed for a direction to set
aside the inquiry proceedings drawn against her by the authorities of the Food
Corporation of India (FCI) after her repatriation to her parent department under
the Government of Arunachal Pradesh. The petitioner has also prayed for setting
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aside and quashing the Inquiry Officer’s report dated 14.03.2018 (Annexure –
V) and the Letter dated 09.01.2019 (Annexure – X), addressed to the Chief
Secretary to the Government of Arunachal Pradesh by the General Manager
(Vigilance) of the FCI requesting imposition of strict penalty on the petitioner on
the basis of the Inquiry Report dated 14.03.2018.
[3.] This Court, while issuing notice of motion vide Order dated 24.05.2019
directed that no action should be taken by the State Authorities against the
petitioner till the next date. The said interim order was extended from time to
time and continues till date.
[4.] Brief facts of the case as projected by the petitioner is that she was
appointed as a Child Development Project Officer (CDPO) in the Social Welfare,
Women & Child Development Department, Government of Arunachal Pradesh in
the year 1991. While working as such, she was permitted to go on deputation to
the FCI as an Assistant General Manager (General)/Area Manager for a period of
two (2) years and was accordingly released by her parent Department w.e.f.
02.09.2011 vide Order dated 01.08.2011. She joined FCI post on 30.09.2011
and was posted at the Regional Office in Itanagar vide Office Order dated
20.10.2011. She was, thereafter, asked to hold additional charge of Area
Manager, District Office, Banderdewa, w.e.f. 01.11.2011 and later, she was
exclusively posted at Banderdewa vide Office Order dated 05.05.2012.
[5.] The petitioner was brought back to the Regional Office in Itanagar vide
Office Order dated 16.03.2016 and one Sri Ankur Parakh, Assistant General
Manager (General) (AGM [G]), was also to take charge of Area Manager, FCI in
the District Office in the Banderdewa from the petitioner. The petitioner handed
over the charge and after availing medical and other leave, she resumed her
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office at Regional Office, Itanagar on 05.05.2016. After she joined her duties,
she requested for repatriation to her parent Department vide letter dated
20.05.2016 addressing the letter to the General Manager, FCI, Itanagar, citing
health grounds due to work pressure. The petitioner, however, came to be
placed under suspension by the Managing Director, FCI, vide Order dated
24.05.2016 on the alleged ground that she had caused loss to the Corporation.
As per the Suspension Order, she was placed at the disposal of the Zonal Office
at Guwahati, which become her Headquarter.
[6.] Thereafter, a Memorandum containing the Article of Charge and Statement
of Imputation of Misconduct was issued to her on 19.08.2016 under Regulation
58 of the FCI (Staff) Regulation, 1971 (in short Regulation of 1971). She was
directed to submit a written reply within ten (10) days from the date of receipt
of the said Memorandum. By another order also dated 19.08.2016, her
suspension was revoked by the Managing Director, FCI. The petitioner sought
for some time to submit her reply to the charges and also requested for
furnishing documents relating to contracts and storage for the period between
2009-2016 but her request was not acceded to.
[7.] The petitioner, thereafter, vide Order dated 20.09.2016 was repatriated
back to her parent Department and after her repatriation, the Managing
Director, appointed an Inquiry Officer and a Presenting Officer on 24.11.2016 to
conduct an inquiry and the petitioner was asked to appear in the Inquiry, which
commenced on 25.07.2017 in the FCI Regional Office at Guwahati and,
thereafter, she appeared before the Inquiry Officer on 25.07.2017 and denied
the allegations levelled against her.
[8.] According to the petitioner, the Inquiry Officer conducted a common
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inquiry proceeding against her along with other charge-sheeted Officials of the
FCI, who were working with her in the Office at Banderdewa. The petitioner,
therefore, contended that the same is not tenable, since she belongs to the
State Service under the Government of Arunachal Pradesh, whereas the other
officials were FCI employees and the competent authorities to impose penalties
of dismissal upon the two (2) categories of persons are different. This apart,
there was no specific official order from the competent authority consenting to
the drawing of common proceeding in terms of Rule 19 of the CCS (CCA) Rules,
1965. The petitioner was also cited as a witness against the other co-charge
sheeted employees for the same inquiry.
[9.] Consequently, the inquiry report was submitted on 14.03.2018 and a letter
written to the Chief Secretary to the Government of Arunachal Pradesh on
09.01.2019 along with a copy of the Inquiry report asking the latter to impose
strict penalty against her. Aggrieved, the petitioner is before this Court.
[10.] Mr. S. Chakraborty, learned counsel for the petitioner submits that since
the FCI is the borrowing Department, it was required from them to inform the
lending Department about the circumstances leading to the suspension of the
petitioner on 24.05.2016 in terms of Regulation 65(1) of the Regulation of 1971.
However, the same was not done and for which, the suspension of the
petitioner is bad in law. He, further, submits that the petitioner vide her Letters
dated 07.09.2016 & 09.08.2017 had requested for certain documents, so as to
enable her defend herself in the departmental proceeding by submitting
meaningful written statement of defence. However, the respondent authorities
failed to furnish her the documents asked for, which is not disputed by them.
Therefore, the petitioner has been deprived of a fair chance of defending
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herself.
[11.] The learned counsel submits that the common inquiry proceedings
against the petitioner and the other FCI employees is violative of the rights of
the petitioner, since her parent employer is the Government of Arunachal
Pradesh, while, it is the FCI for the other employees. He, further, submits that
the Inquiry Officer failed to make any independent assessment on the
allegations alleged against the petitioner and simply relied upon the various
reports placed before him. Therefore, the findings of the Inquiry Officer suffer
from non-application of mind and, therefore, cannot be sustained.
[12.] The learned counsel submits that the Inquiry Officer proceeded ex-parte
against the petitioner by recording the statements of the witnesses in spite of
being informed by the petitioner about her inability to attend the inquiry due to
official duties. He submits that in fact no order was recorded by the Inquiry
Officer for proceeding with the inquiry proceeding ex-parte. Therefore, the
recording of the statements of the witnesses in the absence of the petitioner
has resulted in the violation of principle of natural justice and, therefore, the
entire proceeding should be set aside.
[13.] The learned counsel submits that after repatriation of the petitioner to her
parent Department vide Order dated 20.09.2016, the FCI authorities on
24.11.2016 appointed an Inquiry Officer and a Presenting Officer, which is not
permissible in law, since the petitioner had ceased to be an employee of the FCI
on her repatriation back to her parent Department. Under the circumstance, the
learned counsel submits that an appropriate interference from this Court is
called for.
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[14.] The learned counsel also by referring to the Inquiry Report dated
14.03.2018 submits that the findings and the conclusion of the Inquiry Officer is
vague and without any basis. He submits that as per Regulation 58(23)(d), it is
incumbent upon the Inquiry Officer to prepare an Inquiry Report containing the
findings on each article of charge and the reasons thereof. However, upon
perusal of the Inquiry Report, the same is not to be seen and, therefore, even
on this ground, the Inquiry Report and the entire inquiry proceedings should be
set aside. The learned counsel in support of his submissions has relied upon the
following authorities:-
(1) Allahabad Bank & Ors. v. Krishna Narayan Tewari, (2017) 2 SCC
308;
(2) Oil and Natural Gas Corporation Limited v. Western Geco
International Limited, (2014) 9 SCC 263;
(3) S.N. Mukherjee v. Union of India, (1990) 4 SCC 594;
(4) Roop Singh Negi v. Punjab National Bank & Ors., (2009) 2 SCC
570;
(5) Shiv Parshad Pandey v. CBI through Director, New Delhi, (2003)
11 SCC 508; and
(6) B.L. Satyarthi v. State of M.P., 2014 Legal Eagle (MP) 983.
[15.] Mr. B. K. Singh, learned Standing Counsel, Food Corporation of India, by
referring to the affidavit-in-opposition filed by the FCI on 10.11.2020 submits
that after the petitioner was intimated about appointment of the Inquiry Officer
and the Presenting Officer, she submitted an application before her parent
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Department requesting for the appointment of the Inquiry Officer and the
Presenting Officer by the State Government, despite fully knowing that there
was no option available for a Delinquent Officer to make such a prayer under
the CCS (CCA) Rules, 1965 or the Regulation of 1971. The petitioner appeared
before the Inquiry Officer on 25.07.2017 and 26.07.2017 in the preliminary
hearing conducted for document verification and appointment of a Defence
Assistant, where she denied the charges levelled against her. Although, she
submitted an application for providing her certain documents on 09.08.2017 but
she failed to appear in the subsequent proceedings on 24.08.2017 and
25.08.2017 and only intimated that she cannot attend the inquiry proceeding as
she was engaged in the enrollment of her Aadhaar card for certain Central
Government Schemes vide her letter dated 24.08.2017. Even thereafter, while
the inquiry proceedings was fixed again on 26.10.2017 and 27.10.2017, the
petitioner failed to attend the same and only sent an e-mail on 26.10.2017
stating that she was pre-occupied with office work, which requires her personal
presence.
[16.] Later, when the proceeding was fixed on 29.12.2017 and 30.12.2017, the
petitioner again through her e-mail on 28.12.2017 informed her inability to
attend the hearing as she was on medical leave. Since, the provisions of the
Regulation of 1971 mandate for a time frame to complete the inquiry
proceedings, the Inquiry Officer, therefore, recorded the deposition of Shri S. K.
Pramanik, PW1. He then fixed the next date for proceeding on 10.01.2018 and
11.01.2018 but again, the petitioner failed to attend the proceeding and the
Inquiry Officer, therefore, proceeded to record the statements of the PWs viz;
Shri Nitin Khurana, Shri Jay Prakash and Shri Amit Kumar Singh . Similarly, on
the next dates i.e., 23.01.2018 & 24.01.2018, the petitioner failed to attend the
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proceeding and the statements of one Shri Inder Kumar Negi was recorded.
Subsequently, the proceeding was again fixed on 02.02.2018 & 03.02.2018, on
which dates the petitioner failed to appear and the statements of Shri Ashung
Ngalung was recorded.
[17.] The learned Standing Counsel, therefore, submits that despite several
repeated intimations, the petitioner out of her own volition failed to appear
before the Inquiry Officer and, therefore, the inquiry had to be proceeded
without her. He submits that the allegations of the petitioner that there was a
common proceeding along with other employees of the FCI is not correct. In
fact, the proceedings drawn against the petitioner was independent to the
proceedings drawn against the employees of the FCI. However, keeping in view
the category of employees under the FCI, the same were grouped together for a
common inquiry as permissible under Regulation 62 of the Regulation of 1971.
[18.] The learned Standing Counsel also submits that in fact FIRs were lodged
by the CBI against few of the delinquents including the petitioner and that after
the filing of the charge-sheet the matter is sub-judiced before the Court of
Special Judge (CBI) at Yupia in the State of Arunachal Pradesh. The same,
therefore, only goes to show that there has been serious irregularities,
fraudulent payments and misappropriation of stock, resulting in huge loss of
money to the tune of Rs. 86.30 crores approximately as per the findings of the
inquiry proceedings. Therefore, the Inquiry Report against the petitioner is
sustainable and should be acted upon by the Disciplinary Authority in terms of
the Communication laid by the General Manager (Vigilance), FCI on 09.01.2019
to the Chief Secretary to the Government of Arunachal Pradesh.
[19.] The learned Standing Counsel, further, submits that the respondent FCI
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being the borrowing Department is within its rights to conduct the inquiry
proceedings against the petitioner. In fact, as per the Regulation of 1971, the
borrowing department can impose minor penalties upon the employee, who is
on deputation to the FCI in consultation and intimation with the lending
department. It is only in respect of major penalties that the inquiry report has to
be forwarded to the lending department for necessary action.
[20.] The learned Standing Counsel, apart from Regulation 54 of the Regulation
of 1971 has referred to the Handbook for Inquiry Officers and Disciplinary
Authorities, 2013, prepared by the Institute of Secretariat Training and
Management, Department of Personnel & Training, Ministry of Personnel Public
Grievances & Pensions, Government of India, more particularly, Chapter-23 of
the said handbook. He, further, submits that there is no dispute to the fact that
the borrowing department can initiate disciplinary proceedings against the
officer/employee, who is on deputation to the FCI. The learned Standing
Counsel submits that the Inquiry Report is yet to be acted upon by the
Government of Arunachal Pradesh and, therefore, the writ petition itself is pre-
mature. He submits that it is an established principle of law that inquiry
proceedings, which has not culminated into a final order of penalty ordinarily
cannot be challenged in a writ proceeding, unless the proceeding itself is not
authorized.
[21.] The learned Standing Counsel, therefore, submits that the inquiry report
under the facts and circumstances should be allowed to be acted upon by the
Disciplinary Authority concerned, since there is no finality at this stage. It may
so happened that the Inquiry Report is not accepted by the Disciplinary
Authority for some reasons or the other and, therefore, the Court may not put
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an embargo on the respondent authorities concerned to act upon the Inquiry
Report at this stage. He, thus, submits that the writ petition has no merit and
should be dismissed. In support of his submissions, the learned Standing
Counsel has relied upon the following decisions:-
(1) Punjab National Bank & Ors. v. Sh. Kunj Behari Misra etc.,
(1998) 7 SCC 84;
(2) Union of India & Anr. v. Kunisetty Satyanarayana, (2006) 12 SCC
28; and
(3) B.C. Chaturvedi v. Union of India & Ors., (1995) 6 SCC 749.
[22.] The learned Standing Counsel has also produced the relevant records in a
printed form for perusal of this Court.
[23.] Mr. M. R. Adhikari, learned Government Advocate, Arunachal Pradesh, by
referring to the affidavit-in-opposition filed by the State, submits that it is not a
fact that the lending Department was not aware about the petitioner being
suspended. In fact, the lending Department had been duly informed about her
suspension by furnishing a copy of the Suspension Order to the Department.
He, further, submits that as per the Rule 20 of the CCS (CCA), 1965, the
borrowing authority has the power of disciplinary authority for the purpose of
conducting disciplinary proceedings against the officer borrowed from another
department or other authorities. Therefore, the Order dated 24.11.2016, by
which the inquiry was ordered, solely against the petitioner is in order. There is
no question of there being an inquiry against a group of persons or a common
proceeding as contended by the petitioner. He, therefore, submits that there is
nothing irregular in the proceeding drawn against the petitioner and, therefore,
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the writ petition should be dismissed.
[24.] I have heard the submissions made by the learned counsels for the rival
parties and I have perused the materials on record including the records
produced by the learned Standing Counsel, FCI.
[25.] From the projection made by the petitioner, the issue to be decided is as
to whether the inquiry proceedings drawn against the petitioner is sustainable in
law and on facts. In other words, whether the inquiry proceeding conforms to
the requirement as laid down in the Regulation of 1971.
[26.] The petitioner, as may be noticed, was appointed as CDPO in the Social
Welfare, Woman and Child Development Department, Government of Arunachal
Pradesh, in the year 1991 and was on deputation in the FCI since 30.09.2011 till
she was repatriated back in her Parent Department w.e.f. 21.09.2016 (AN) vide
Order dated 20.09.2016. During her deputation in the FCI, she held the post of
Area Manager in the district office of the FCI at Banderdewa. That on account of
certain allegations by which she was alleged to be responsible for causing huge
loss to the FCI, she was placed under suspension vide Order dated 24.05.2016.
She was suspended by invoking Regulation 66(1)(a) of the Regulation of 1971
with immediate effect. It was further provided that during the period of
suspension, her Headquarter would be the Zonal Office (North East) Guwahati.
[27.] Coming to the provision under which the petitioner was placed under
suspension, it may be seen that the Regulation 66(1)(a) provides that the
appointing authority or any authority to which it is sub-ordinate or the
disciplinary authority or any other authority empowered in that behalf by the
Board, by general or special order, may place an employee under suspension,
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where a disciplinary proceeding against him/her is contemplated or is pending.
“Board” as per the definition under Section 2(b) of the Regulation, means the
Board of Directors of the Corporation. There is no dispute to the fact that the
FCI being the borrowing Department, the competent authority in the FCI,
admittedly is authorized to suspend an employee, who is under deputation in
the FCI.
[28.] Regulation 65 provides for the provisions regarding officers borrowed
from Central or State Governments, government-owned organizations,
companies and Corporations. Regulation 65(1) provides that where an order of
suspension is made or disciplinary proceedings are taken against a government
servant or an employee of a public sector or private section undertaking, whose
services have been borrowed from a government or an authority sub-ordinate
thereto or such undertaking, the authority lending his services shall forthwith be
informed of the circumstances leading to the order of his/her suspension or of
the commencement of disciplinary proceedings, as the case may be.
[29.] In the present case, it may be seen that a copy of the order of suspension
of the petitioner dated 24.05.2016 was marked to the Department of Woman
and Child Development, Government of Arunachal Pradesh. Regulation 65(1),
otherwise requires borrowing authority to forthwith inform the lending authority
the circumstances leading to the order of suspension or the commencement of
disciplinary proceedings. In the suspension order, apart from alleging the
petitioner to be responsible for causing huge loss to the Corporation, no further
details was given informing the lending Department about the circumstances
leading to the issuance of the suspension order.
[30.] Subsequently, the Memorandum of Charge was issued to the petitioner on
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19.08.2016 requiring her to submit her written statements of defence within ten
(10) days of receipt of the Memorandum and also to state as to whether she
desired to be heard in person. The Memorandum also contended the statements
of articles of charge framed against the petitioner, which were four (4) articles in
all. No doubt that a copy of the Memorandum has also been marked to the
Chief Secretary, Government of Arunachal Pradesh, but the fact remains that as
per the Regulation 65(1), such intimation of suspension and commencement of
disciplinary proceedings are to be informed to the lending authority forthwith.
The order of suspension was issued on 24.05.2016 and the Memorandum
subsequently issued on 19.08.2016. Having regard to the provisions of
Regulation 65(1), it only appears that the stipulation provided therein has not
been adhered to by the Borrowing Authority i.e., FCI.
[31.] It may be, further, be seen that although the petitioner was suspended
vide Order dated 24.05.2016 and the Memorandum of Charge issued on
19.08.2016, she was repatriated back to her Parent Department w.e.f.,
21.09.2016 (AN) vide Order dated 20.09.2016. It may also be noticed that her
suspension was revoked on the same date, when the Memorandum of Charge
was issued i.e., 19.08.2016. That after she was repatriated, the Inquiry Officer
and the Presenting Officer were appointed by separate orders both dated
24.11.2016. It is the case of the petitioner that she had already been
repatriated back to her Parent Department with effect from 21.09.2016 and,
therefore, she no longer being a part of the FCI, the inquiry could not have
been conducted against her as initiated by the FCI by appointing the Inquiry
Officer and the Reporting Officer after her repatriation. In this regard, reliance
has been placed by the learned counsel for the petitioner to the case of Shiv
Parshad Pandey (supra). In the case of Shiv Parshad Pandey (supra), the
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Hon’ble Apex Court in the given facts of the case held that the appellant who
was an IPS Officer and who was on deputation in the Border Security Force
(BSF), upon his repatriation to his Parent Department, ceased to be an officer of
the BSF by virtue of Section 3 (2) of the BSF Act, 1968. The Hon’ble Apex Court
also took note of the fact that under Section 77 (2) of the same Act, no person,
who is subjected to the BSF Act, can be tried for an offence unless the trial
commences within six (6) months after such person ceased to be subject to the
Act. It was, therefore held that the appellant in that case having already been
repatriated to his Parent Department ceased to be a person subject to the BSF
Act.
[32.] The above decision of the Hon’ble Apex Court was relied upon by the
High Court of Madhya Pradesh in B.L. Satyarthi (supra). In that case, the High
Court held that Rule 20 of the Madhya Pradesh Civil Services (CCA) Rules, 1966
(Rules of 1966), gives power to the Borrowing Department to take disciplinary
action against the Government servant, who is on deputation and that the
power to the appointing authority and the disciplinary authority are conferred on
the Borrowing Department, which includes the power to suspend and to impose
minor penalty with due intimation to the Lending Authority about the
circumstances leading to the order of suspension and in case of imposition of
minor penalty after due consultation with the Lending Authority. According to
the High Court, when such power is given to any authority , an assumption has
to be drawn that the power can be exercised so long as the relationship of
master and servant, employer and employee subsists or the contract of
employment is in existence. Once the relationship of master and servant or
employer and employee or the contract of service itself comes to an end, the
question would be as to how disciplinary action or power to suspend can be
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exercised by an authority with whom the contract of employment of the
employee concerned is no more in existence. Interpreting Rule 20 of the Rules
of 1966, the High Court held that the once the employee is repatriated back to
the Lending Department, then the contract of employment temporarily created
during the period of deputation ceases and if that be the position, then the
borrowing department does not have any authority to take action against the
employee concerned.
[33.] Coming back to the present case, it may be seen that there is no such
provision like the provision in the BSF providing for the time frame under which,
a person can be tried for a offence or proceeded against after he/she ceases to
be subject to the Regulation of 1971. It may, however, be seen that the
provision of Regulation 65, appears to be pari materia with that of the Rules of
1966 referred to in the case of B.L. Satyarthi (supra). Regulation 65 of the
Regulation of 1971 may be abstracted below for ready perusal:-
“ 65. Provisions regarding officers borrowed from Central or State
Governments, government-owned organizations, companies and
Corporations:
(1) Where an order of suspension is made or disciplinary proceedings are
taken against a government servant or an employee of a public sector or
private section undertaking, whose services have been borrowed from a
government or an authority subordinate thereto or such undertaking, the
authority lending his services(hereinafter in this regulation referred to as the
“lending authority”) shall forthwith be informed of the circumstances leading
to the order of his suspension or of the commencement of disciplinary
proceedings, as the case may be.
(2) In the light of the findings in the disciplinary proceeding taken against
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the borrowed government servant, employee of public sector or private
sector understating:
(i) If the disciplinary authority is of the opinion that any of the penalties
specified in clauses (i) to (iv) of Regulation 54 should be imposed on him, it
may, after consultation with the lending authority, pass such orders as it
deems necessary:
Provided that in the event of a difference of opinion between the
borrowing authority and the lending authority the service of the government
servant or employee of the public sector or private sector undertaking shall
be replaced at the disposal of the lending authority;
(ii) If the disciplinary authority is of the opinion that any of the penalties
specified in clauses (v) to (ix) Regulation 54 should be imposed on him, it
shall replace his services at the disposal of the lending authority and
transmit to it the proceedings of the inquiry for such action as it may deem
necessary.”
[34.] From a perusal of the above abstract of Regulation 65, it may be seen
that no such provision has been provided by which disciplinary proceeding can
be conducted after the repatriation of the officer concerned to his/her Parent
Department. That suspension and imposition of minor penalty is permissible as
provided in Regulation 54(i) to (iv) with due intimation and after consultation
with the Lending Authority. However, if the disciplinary authority in the FCI is of
the opinion that all the major penalty specified in Regulation 54(v) to (ix) should
be imposed on the officer borrowed by the FCI, proceeding of the inquiry for
such action may also be transmitted as the disciplinary authority may deem
necessary.
[35.] In the instant case, the Inquiry Officer and the Presenting Officer were
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appointed after the petitioner was repatriated back to her Parent Department
and the entire proceeding conducted after her repatriation. It was only after the
Inquiry Report that was submitted by the Inquiry Officer that Regulation 65(2)
(ii) has been applied by the General Manager (Vigilance), FCI, through
Communication dated 09.01.2019. It, therefore, would appear that there was no
longer the master and servant or employer and employee relationship between
the FCI and the petitioner. Therefore, having regard to the provisions of
Regulation 65, the only recourse which could have been taken, was to complete
the inquiry proceedings before repatriation of the petitioner and not in the
manner it was done.
[36.] Proceeding further to the manner in which the inquiry was conducted, it
may be seen that a preliminary hearing was conducted on 25.07.2017 by the
Inquiry Officer and the petitioner had appeared and denied the charges. She
also stated that she would be engaging a Defence Assistant to plead her case.
nd rd
Accordingly, the next hearing was fixed on 02 & 03 of August, 2017.
However, the petitioner remained absent for one reason or the other until the
Inquiry Officer vide his Letter dated 19.12.2017 informed the petitioner that a
th th
final hearing will be conducted on 29 & 30 of December, 2017. It was also
provided that in case the petitioner failed to appear, the proceedings would be
taken ex-parte.
[37.] The petitioner again remained absent on the scheduled dates and the
th th
Inquiry Officer re-scheduled the final hearing for the 10 & 11 of January,
2018, vide his Letter dated 02.01.2018 and communicated the same to the
petitioner. It was also stated in the Letter that in case the petitioner failed to
appear on the appointed date and time, the inquiry proceedings would be taken
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ex-parte.
[38.] The petitioner again failed to appear on the appointed dates and in her
absence, the Departmental witnesses were examined. Consequently, the Inquiry
Officer submitted the inquiry report on 14.03.2018 with a finding that the article
of charges were proved. From the records produced by the learned Standing
Counsel, FCI, it is seen that apart from the two (2) Communications dated
19.12.2017 & 02.01.2018 of the Inquiry Officer to the petitioner stating that on
failure to appear on the appointed dates, the proceedings will be done ex-parte,
the Inquiry Officer has nowhere recorded the reason or the decision taken for
proceeding ex-parte. Since, the outcome of the Departmental Proceeding may
be detrimental to the delinquent officer, the minimum requirement of an Inquiry
Officer is to record the findings that despite due notice, the delinquent officer
failed to turn up without any explanations whatsoever and, therefore, the ex-
parte proceedings was being drawn up.
[39.] From a perusal of the Inquiry Report, it may be seen that the Inquiry
Officer, in view of the absence of the petitioner has accepted the documents
submitted by the Presenting Officer while agreeing to his submissions. The
Inquiry Officer, by doing so, has found the article of charge to be proved.
Having regard to the fact that no ground has been recorded by the Inquiry
Officer before proceeding ex-parte with the Departmental Proceeding, the
Inquiry Report in the considered view of this Court is only vitiated and cannot
be sustained.
[40.] Thus, upon due consideration of the case in its entirety, the inquiry drawn
against the petitioner in view of above findings, is held to be not sustainable
and accordingly, the inquiry proceedings initiated vide the Memorandum dated
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19.08.2016 and the outcome of the inquiry through the Inquiry Report dated
14.03.2018 are set aside. However, as this Court has not examined the enquiry
report on merit and therefore notwithstanding, the setting aside of the inquiry
proceedings, the respondent authorities are not debarred from proceeding
against the petitioner afresh, which, however should be in accordance with law.
[41.] With the above observations and directions, the writ petition stands
disposed of. Parties to bear their own cost.
JUDGE
Comparing Assistant