16 December 1996
Supreme Court
Download

BALBIR CHAND Vs F.C.I. OF INDIA LTD

Bench: K. RAHASWAMY,G.T. NANAVATI
Case number: SLP(C) No.-023981-023981 / 1996
Diary number: 72798 / 1996


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: BALBIR CHAND

       Vs.

RESPONDENT: THE FOOD CORPORATION OFINDIA LTD. & ORS.

DATE OF JUDGMENT:       16/12/1996

BENCH: K. RAHASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This special  leave petition  arises from  the order of the Division  Bench of the Punjab & Haryana High Court, made on August  16, 1996  in CWP  No.  12340/96,  dismissing  the petition in limine.      While the petitioner was working as Manager in the Food Corporation of  India, Chandigarh Office, one Rajinder Singh Rana impersonating  himself as  Harjit  Singh  son  of  Ajit Singh, had  succeeded  in  obtaining  a  contract  with  the Corporation for  the year  1992-93 for  transporation of the food  grains.  The  petitioner’s  duty  was  to  verify  the particulars furnished with the tender and to submit the same to the  competent authority  for  taking  decision  in  that behalf.  In   the  verification   report  submitted  by  the petitioner, he  had stated  that Harjit Singh had produced a bank account  with balance of Rs.200/- while the certificate obtained  by   Harjit  Singh  allegedly  from  by  the  Bank authorities, dated February 4, 1992 revealed "the balance of Harjit  Singh  as  Rs.56,400/-.  As  regards  the  value  of residential  House   Building,  the  approved  Designer  and Architect had  evaluated it.  It was  also stated  that "the party holds  a good  reputation in the city." On that basis, the  contract   was  obtained,   but  subsequently   it  was discovered that  the said Harjit Singh son of Ajit Singh who obtained the  contract was no other than Rajinder Singh Rana who misappropriated  1400 MT  of superfine rice delivered to him for  transporation ex-Khanna  to Assam  by  road.  Based thereon,  disciplinary  action  was  initiated  against  the petitioner and  others for  their dereliction  of  duty  and misconduct in their failure to submit the report truthfully. After conduct  of joint  enquiry against  all the  officers, authority took  decision that the petitioner be removed from service. Accordingly,  he was  removed. On  appeal,  it  was confirmed by  the Board  in the  proceedings dated April 26, 1996 in  an elaborate order running into 19 typed pages. The High Court  has dismissed the petition in limine. Thus, this special leave petition.      The learned  counsel for  the petitioner has raised the contention that  since the  petitioner was  required  to  be dismissed  by  the  disciplinary  authority,  namely,  Zonal

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

Manager, who  alone is competent to remove him, the order of dismissal passed  by the Managing Director is bad in law. In support thereof,  he placed  reliance on  a judgment of this Court in  Surjit Ghosh  vs. Chairman  &  Managing  Director, United Commercial Bank [AIR 1995 SC 1053]. It is an admitted position that  as a  joint enquiry was conducted against all the delinquent  officials, the  highest in  the hierarchy of competent a  authority who  could take  disciplinary  action against the  delinquents was  none other  than the  Managing Director of  the Corporation.  In normal circumstances where the Managing  Director being  the appellate authority should not pass  the order  of  punishment  so  as  to  enable  the delinquent employee  to avail  of right of appeal. It is now well settled legal position that an authority lower than the appointing authority  cannot take any decision in the matter of disciplinary  action. But  there is no prohibition in law that the higher authority should not take decision or impose the penalty  as the  primary  authority  in  the  matter  of disciplinary action.  On that  basis, it cannot be said that there will  be discrimination  violating Article  14 of  the Constitution or  causing material prejudice. In the judgment relied on by the counsel, it would appear that in the Rules, officer lower  in hierarchy  was the  disciplinary authority but the  appellant authority  had passed  the order removing the officer from service. Thereby, appellate remedy provided under the  Rules was  denied. In  those circumstances,  this Court opined  that it  caused prejudice to the delinquent as he would  have otherwise availed of the appellate remedy and his right  to consider his case by an appellate authority on question of fact was not available. But it cannot be laid as a rule of law that in all circumstances the higher authority should consider  and decide  the case  imposing penalty as a primary authority  under the Rules. In this case, a right of second appeal/revision  also was  provided to  the Board. In fact,  appeal   was  preferred   to  the  Board.  The  Board elaborately considered  the matter  through the Chairman. It is not violative of Article 14 of the Constitution.      It is  next contended that a circular was issued by the Department on  May 13,  1980 regarding  splitting up  of  an enquiry and  while para  2 indicated  the  procedure  to  be followed, para  3 (ii) indicates as to when the split of the case could  be ordered  and sub-para (iii) envisages that it would be  advisable to issue one common charge-sheet against all the  charged officials.  It is  further envisaged in the Department’s Circular thus:      "Whenever  common  proceedings  are      initiated against  two or more than      two  FCI   employees,  such  common      proceedings have  to be  ordered by      the     Disciplinary      authority      competent  to   impose  the   major      penalty  of   dismissal  upon   the      senior most  FCI employee  involved      in that  case. This naturally means      that the  inquiring authority would      submit his  report  of  inquiry  in      such  common  proceedings  to  that      particular disciplinary  authority,      for  final   orders  in  the  case-      thereby   depriving    the   Junior      officials involved  of one  or more      avenues of appeals as also petition      for review.      In case of such common proceedings;      if the  inquiry report  or  a  copy

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

    thereof is  forwarded to  the lower      disciplinary Authorities, competent      to  impose   penalties  upon   such      Junior officials, it has in several      a instances  resulted in imposition      of varying punishments by different      authorities      to       different      individuals on the same charges.      This position  has  been  carefully      examined  with   reference  to  the      various instructions  issued by the      Government of  India in this regard      and it  has been  decided to follow      the guidelines mentioned hereunder:      i) There has been a apprehension as      co the  actual  meaning  of  common      proceedings and  joint proceedings.      It is  hereby  clarified  that  the      terms  ‘common   proceedings’   and      ‘joint proceedings’  are synonymous      and in  fact there is no difference      between the two.      ii) Whenever  two or more employees      are  involved   in   a   particular      disciplinary proceedings  and  when      one  charged   official  cites  the      other as a witness in his case, the      proceedings cannot  be conducted as      common/joint proceedings.  In  such      contingencies,     the      general      principles laid  down by the courts      is that  the  charged  official  in      cross   cases   should   be   tried      separately  and   that   both   the      inquires     should     he     held      simultaneously,  so   as  to  avoid      conflicting findings  and different      appraisal of  the same evidence, by      different inquiring authorities.      iii)   While    initiating   common      proceedings it  would be remembered      that  such  proceedings  should  be      ordered only  as a  last resort and      in  case   such   proceedings   are      ordered, the  charge should be also      common  against   all  the  charged      officials involved. In other words,      it would  be advisable to issue one      common charge-sheet against all the      charged  officials.  the  concerned      Disciplinary    Authority    should      examine   the    desirability    of      conducting a  common inquiry before      taking a decision in this regard so      that the  issue of separate charge-      sheets could  be avoided. After the      enquiry   is    over   in    common      proceedings,     the      concerned      disciplinary authority  should take      a  decision   against  the  charged      employees   of    considering   the      gravity of  the misconduct  by such      of   the    concerned    officials.      However, cases of all the officials      should  be   disposed  off  by  the

4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

    authority   ordering   the   common      proceedings  to  ensure  that  same      standards are  applied in  case  of      all the officials concerned."      It is  contended that when one delinquent officer seeks to summon  other delinquent  who is  charged on  the  common cause of  action or  for the misconduct committed during the course of  the same  transaction or  to summon more than one officer  jointly,   the  petitioner   should  be   given  an opportunity of  splitting up  the matter and to contend that common enquiry  has thereby  caused grave  prejudice to  the petitioner denying him the opportunity to summon the officer to substantiate  his  defence.  We  find  no  force  in  the contention. It  is seen  that these are only instructions in conducting the proceedings as guidelines. When more than one delinquent officer  are involved,  then with a view to avoid multiplicity of  the proceedings,  needless delay  resulting from  conducting  the  same  and  overlapping  adducting  of evidence or  omission thereof  and conflict  of decision  in that behalf, it is always necessary and salutary that common enquiry should  be  conducted  against  all  the  delinquent officers. The competent authority would objectively consider their  cases  according  to  Rules  and  decide  the  matter expeditiously  after  considering  the  evidence  to  record findings on proof of misconduct and proper penalty on proved charge and impose appropriate punishment on the delinquents. If one  charged officer  cites another  charged officer as a witness, in  proof of  his defence, the enquiry need not per se be  split up even when the charged officers would like to claim  an   independent  enquiry  in  that  behalf.  If  the procedure is  adopted, normally all the delinquents would be prone to  seek split  up of  proceedings in their/his bid to delay the  proceedings, and to see that there is conflict of decisions taken at different levels. Obviously, disciplinary enquiry should  not be  equated  as  a  prosecution  for  an offence in  a  criminal  Court  where  the  delinquents  are arrayed as  co-accused.  In  disciplinary  proceedings,  the concept of co-accused does not arise. Therefore, each of the delinquents would be entitled to summon the other person and examine on his behalf as a defence witness in the enquiry or summon to  cross-examine any  other delinquent officer if he finds him  to be  hostile and  have his  version  placed  on record for  consideration  by  the  disciplinary  authority. Under these circumstances, the need to split on the cases is obviously redundant,  time consuming and dilatory. It should not  be   encouraged.  Accordingly,   we  do  not  find  any illegality in the action taken.      It is  further contended  that some  of the delinquents were let  off with  a minor penalty while the petitioner was imposed with  a major  penalty of  removal from  service. We need not  go into  that question.  Merely because one of the officers was wrongly given the lesser punishment compared to others against  whom there is a proved misconduct, it cannot be held  that they  too should  also  be  given  the  lesser punishment lest  the same mistaken would not be violative of Article 14 and cannot be held as arbitrary or discriminatory leading to  miscarriage of  justice. It  may be  open to the appropriate higher  authority to  look into  the matter  and take appropriate decision according to law.      Present one  is a  case of a notorious contractor known to have  committed on  earlier occasions misappropriation in relation to the Corporation property; he sought and obtained another benami  contract in  the name  of other  persons  by impersonation. Obviously  all those  who had prior knowledge of the contractor and had earlier dealt with him should have

5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

taken proper care to point out to the higher authorities the true facts  so as  to enable  the concerned authorities take necessary  decision.   Accountability  and  openness  is  an imperative  in  conducting  public  dealings,  lest  they/he become/s a bettor to perpetrate offences. This case is apart from pending  suit to  recover about  Rs.16  lacs  from  the erring officials. They would became privy to the abetment of impersonation by  the contractor  and appropriate  action is required to be taken against them according to law.      The Special Leave Petition is accordingly dismissed.