Service matter - Regulations 60(1)(b) - dismissed from service at preliminary enquiry stage - with out forming opinion whether to conduct regular inquiry or not - not valid- challanged - High court held that the disciplinary authority, the Chairman-cum-Managing Director, had not formed any opinion either to hold a regular inquiry or not as contemplated under Regulation 58 for imposing the major penalty and, accordingly, he quashed the order of punishment as well as the show cause notice.- Apex court held that opinion has to be founded on certain objective criteria. It must reflect some reason. It can neither be capricious or fanciful but demonstrative of application of mind. Therefore, it has to be in writing. It may be on the file and may not be required to be communicated to the employee but when it is subject to assail and, eventually, subject to judicial review, the competent authority of the Corporation is required to satisfy the Court that the opinion was formed on certain parameters indicating that there was no necessity to hold an enquiry. Thus, the High Court has correctly understood the principle stated in A. Prabhakar Rao (supra) and we do not find any fault with the same.=
during the period
15.7.99 to 21.1.02 while the respondent was working at North Lakhimpur
Region, FCI in Assam had not faithfully carried out his duties as a
consequence of which the Corporation suffered financial loss. After
the preliminary inquiry, a show cause notice was issued calling for a
representation and eventually the punishment for recovery of a sum of
rupees five lakhs and censure was passed against the respondent.
2. The aforesaid order of punishment constrained the respondent to
approach the High Court in Writ Petition No.16812(w) of 2006. Before
the writ court the singular contention that was highlighted was that
the disciplinary authority had not complied with Regulation 60(1)(b)
of the Regulations and, therefore, the whole proceeding was vitiated.
The learned Single Judge appreciating the facts and adverting to the
submissions raised at the Bar came to hold that the disciplinary
authority, the Chairman-cum-Managing Director, had not formed any
opinion either to hold a regular inquiry or not as contemplated under
Regulation 58 for imposing the major penalty and, accordingly, he
quashed the order of punishment as well as the show cause notice.=
Once it is held that there has to be formation of opinion and
such an opinion is assailable in a legal forum, we are of the view
that the said
opinion has to be founded on certain objective criteria. It must reflect some reason.
It can neither be capricious or fanciful but demonstrative of application of mind. Therefore, it has to be in writing.
It may be on the file and may not be required to be
communicated to the employee but when it is subject to assail and,
eventually, subject to judicial review, the competent authority of the
Corporation is required to satisfy the Court that the opinion was
formed on certain parameters indicating that there was no necessity to
hold an enquiry.
Thus, the High Court has correctly understood the
principle stated in A. Prabhakar Rao (supra) and we do not find any
fault with the same.
11. In the result, we do not perceive any merit in these appeals and
the same stand dismissed with no order as to costs.
2014(May.Part) http://judis.nic.in/supremecourt/filename=41543
DIPAK MISRA, N.V. RAMANA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 7201-7202 OF 2008
|Food Corporation of India & Ors. |.. Appellant(s) |
Versus
|Sarat Chandra Goswami |.. Respondent(s) |
J U D G M E N T
Dipak Misra,
The respondent while holding the post of District Manager in
the Food Corporation of India (for short the FCI) was proceeded
against in a disciplinary proceedings as contemplated under Regulation
60 of the Food Corporation of India (Staff) Regulations, 1971 (for
brevity “the Regulations”) on the ground that during the period
15.7.99 to 21.1.02 while the respondent was working at North Lakhimpur
Region, FCI in Assam had not faithfully carried out his duties as a
consequence of which the Corporation suffered financial loss. After
the preliminary inquiry, a show cause notice was issued calling for a
representation and eventually the punishment for recovery of a sum of
rupees five lakhs and censure was passed against the respondent.
2. The aforesaid order of punishment constrained the respondent to
approach the High Court in Writ Petition No.16812(w) of 2006. Before
the writ court the singular contention that was highlighted was that
the disciplinary authority had not complied with Regulation 60(1)(b)
of the Regulations and, therefore, the whole proceeding was vitiated.
The learned Single Judge appreciating the facts and adverting to the
submissions raised at the Bar came to hold that the disciplinary
authority, the Chairman-cum-Managing Director, had not formed any
opinion either to hold a regular inquiry or not as contemplated under
Regulation 58 for imposing the major penalty and, accordingly, he
quashed the order of punishment as well as the show cause notice.
3. Being dissatisfied, the Corporation preferred F.M.A.No.1187 of
2007 and the Division Bench placing reliance on the decision of this
Court in Food Corporation of India, Hyderabad & Ors. v. A. Prahalada
Rao & Anr.[1] concurred with the view expressed by the learned Single
Judge and consequently dismissed the appeal.
4. We have heard Mr. Dharmedra Kumar Sinha learned counsel for the
appellants and Mr. Soumitra G. Chaudhuri learned counsel for the
respondent.
5. The controversy, as it seems to us, centres around
interpretation of Regulation 60 and hence, we think it appropriate to
reproduce the said Regulation. It reads as follows:
"(60) Procedure for imposing minor penalties:
(1) Subject to the provisions of Sub-regulation (3) of
Regulation 59, no order imposing on an employee any of the
penalties specified in clauses (i) to (iv) of Regulation 54
shall be made except after:
(a) informing the employee in writing of the proposal to take
action against him and of the imputation of misconduct or
misbehaviour on which it is proposed to be taken, and giving him
a reasonable opportunity of making such representation as he may
wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-
regulation (3) to (23) of the Regulation 58, in every case in
which the disciplinary authority is of the opinion that such
inquiry is necessary;
(c) taking the representation, if any, submitted by the
employee under clause (a) and the record of inquiry, if any,
held under clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or
misbehaviour.
(2) Notwithstanding anything contained in clause (b) of Sub-
Regulation (1, if in a case it is proposed, after considering
the representation, if any, made by the employee under clause
(a) of the Sub-regulation, to withhold increment of pay and such
withholding of increments is likely to affect adversely the
amount of retirement benefits payable to the employees or to
withhold increments of a pay for a period exceeding 3 years or
to withhold increment of pay with cumulative effect for any
period,m an inquiry shall be held in the manner laid down in Sub-
regulation (3) to (23) of Regulation 58 before making any order
imposing on the employee any such penalty.”
6. The interpretation of the said Regulation engaged the attention
of this Court in A. Prahalada Rao (supra). A two-Judge Bench,
adverting to the anatomy of the Regulation and taking into
consideration the submissions advanced with regard to the abuse of the
Regulation, came to hold as follows:
" In our view, on the basis of the allegation that Food
Corporation of India is misusing its power of imposing minor
penalties, the Regulation cannot be interpreted contrary to its
language. Regulation 60(1)(b) mandates the disciplinary
authority to form its opinion whether it is necessary to hold
inquiry in a particular case or not. But that would not mean
that in all cases where an employee disputes his liability, a
full-fledged inquiry should be held. Otherwise, the entire
purpose of incorporating summary procedure for imposing minor
penalties would be frustrated. If the discretion given under
Regulation 60(1)(b) is misused or is exercised in an arbitrary
manner it is open to the employee to challenge the same before
the appropriate forum. It is for the disciplinary authority to
decide whether regular departmental enquiry as contemplated
under Regulation 58 for imposing major penalty should be
followed of not. This discretion cannot be curtailed by
interpretation, which is contrary to the language used.
Further, Regulation 60(2) itself provides that in a case if it
is proposed to withhold increments of pay and such withholding
of increments is likely to affect adversely the amount of
retirement benefits payable to an employee and in such other
case as mentioned therein, the disciplinary authority shall hold
inquiry in the manner laid down in Regulation 58 before making
any order imposing any such penalty."
7. It is submitted by Mr, Chatterjee that the High Court has
erroneously understood the ratio and ruled that an opinion has to be
formed in writing. It is his further submission that when the reasons
are manifest from the preliminary inquiry and from the show cause it
was erroneous on the part of the High Court to emphasise on the
formation of opinion.
8. Per contra, Mr. Chaudhary heavily relied on the authority in A.
Prabhakar Rao (supra) and urged that the discretion vested in the
disciplinary authority under the Regulations casts an obligation on it
to form an opinion and formation of such opinion has to be in writing.
9. On a perusal of the order passed by the learned Single Judge,
we find that he has taken note of the fact that there was no
expression or formation of opinion. He has further recorded that the
learned counsel for the Corporation had conceded that there was
nothing to show that the Chairman-cum-Managing Director who had made
the final order had recorded any opinion in writing before making the
final order to the effect there was no need to hold a regular inquiry.
From the principle stated by this Court in A. Prahalada Rao’s case it
is quite limpid that though in all cases where the employees disputes
his liability, a full-fledged enquiry is not expected to be held as
that would frustrate the purpose of interpreting the summary procedure
for imposing minor penalties, yet the discretion conferred under the
Regulation 1960 (1)(b), if exercised in a arbitrary manner, it is open
to the employee to challenge the same before the appropriate forum.
The Court had further opined that the Regulation 60(1)(b) mandates
the disciplinary authority to form its opinion whether it is necessary
to hold an inquiry in a particular case or not.
10. Once it is held that there has to be formation of opinion and
such an opinion is assailable in a legal forum, we are of the view
that the said opinion has to be founded on certain objective criteria.
It must reflect some reason. It can neither be capricious or
fanciful but demonstrative of application of mind. Therefore, it has
to be in writing. It may be on the file and may not be required to be
communicated to the employee but when it is subject to assail and,
eventually, subject to judicial review, the competent authority of the
Corporation is required to satisfy the Court that the opinion was
formed on certain parameters indicating that there was no necessity to
hold an enquiry. Thus, the High Court has correctly understood the
principle stated in A. Prabhakar Rao (supra) and we do not find any
fault with the same.
11. In the result, we do not perceive any merit in these appeals and
the same stand dismissed with no order as to costs.
....................J.
[DIPAK MISRA]
...................J.
[N.V. RAMANA]
NEW DELHI,
MAY 21, 2014.
-----------------------
[1] (2001) 1 SCC 165
-----------------------
6
during the period
15.7.99 to 21.1.02 while the respondent was working at North Lakhimpur
Region, FCI in Assam had not faithfully carried out his duties as a
consequence of which the Corporation suffered financial loss. After
the preliminary inquiry, a show cause notice was issued calling for a
representation and eventually the punishment for recovery of a sum of
rupees five lakhs and censure was passed against the respondent.
2. The aforesaid order of punishment constrained the respondent to
approach the High Court in Writ Petition No.16812(w) of 2006. Before
the writ court the singular contention that was highlighted was that
the disciplinary authority had not complied with Regulation 60(1)(b)
of the Regulations and, therefore, the whole proceeding was vitiated.
The learned Single Judge appreciating the facts and adverting to the
submissions raised at the Bar came to hold that the disciplinary
authority, the Chairman-cum-Managing Director, had not formed any
opinion either to hold a regular inquiry or not as contemplated under
Regulation 58 for imposing the major penalty and, accordingly, he
quashed the order of punishment as well as the show cause notice.=
Once it is held that there has to be formation of opinion and
such an opinion is assailable in a legal forum, we are of the view
that the said
opinion has to be founded on certain objective criteria. It must reflect some reason.
It can neither be capricious or fanciful but demonstrative of application of mind. Therefore, it has to be in writing.
It may be on the file and may not be required to be
communicated to the employee but when it is subject to assail and,
eventually, subject to judicial review, the competent authority of the
Corporation is required to satisfy the Court that the opinion was
formed on certain parameters indicating that there was no necessity to
hold an enquiry.
Thus, the High Court has correctly understood the
principle stated in A. Prabhakar Rao (supra) and we do not find any
fault with the same.
11. In the result, we do not perceive any merit in these appeals and
the same stand dismissed with no order as to costs.
DIPAK MISRA, N.V. RAMANA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 7201-7202 OF 2008
|Food Corporation of India & Ors. |.. Appellant(s) |
Versus
|Sarat Chandra Goswami |.. Respondent(s) |
J U D G M E N T
Dipak Misra,
The respondent while holding the post of District Manager in
the Food Corporation of India (for short the FCI) was proceeded
against in a disciplinary proceedings as contemplated under Regulation
60 of the Food Corporation of India (Staff) Regulations, 1971 (for
brevity “the Regulations”) on the ground that during the period
15.7.99 to 21.1.02 while the respondent was working at North Lakhimpur
Region, FCI in Assam had not faithfully carried out his duties as a
consequence of which the Corporation suffered financial loss. After
the preliminary inquiry, a show cause notice was issued calling for a
representation and eventually the punishment for recovery of a sum of
rupees five lakhs and censure was passed against the respondent.
2. The aforesaid order of punishment constrained the respondent to
approach the High Court in Writ Petition No.16812(w) of 2006. Before
the writ court the singular contention that was highlighted was that
the disciplinary authority had not complied with Regulation 60(1)(b)
of the Regulations and, therefore, the whole proceeding was vitiated.
The learned Single Judge appreciating the facts and adverting to the
submissions raised at the Bar came to hold that the disciplinary
authority, the Chairman-cum-Managing Director, had not formed any
opinion either to hold a regular inquiry or not as contemplated under
Regulation 58 for imposing the major penalty and, accordingly, he
quashed the order of punishment as well as the show cause notice.
3. Being dissatisfied, the Corporation preferred F.M.A.No.1187 of
2007 and the Division Bench placing reliance on the decision of this
Court in Food Corporation of India, Hyderabad & Ors. v. A. Prahalada
Rao & Anr.[1] concurred with the view expressed by the learned Single
Judge and consequently dismissed the appeal.
4. We have heard Mr. Dharmedra Kumar Sinha learned counsel for the
appellants and Mr. Soumitra G. Chaudhuri learned counsel for the
respondent.
5. The controversy, as it seems to us, centres around
interpretation of Regulation 60 and hence, we think it appropriate to
reproduce the said Regulation. It reads as follows:
"(60) Procedure for imposing minor penalties:
(1) Subject to the provisions of Sub-regulation (3) of
Regulation 59, no order imposing on an employee any of the
penalties specified in clauses (i) to (iv) of Regulation 54
shall be made except after:
(a) informing the employee in writing of the proposal to take
action against him and of the imputation of misconduct or
misbehaviour on which it is proposed to be taken, and giving him
a reasonable opportunity of making such representation as he may
wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-
regulation (3) to (23) of the Regulation 58, in every case in
which the disciplinary authority is of the opinion that such
inquiry is necessary;
(c) taking the representation, if any, submitted by the
employee under clause (a) and the record of inquiry, if any,
held under clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or
misbehaviour.
(2) Notwithstanding anything contained in clause (b) of Sub-
Regulation (1, if in a case it is proposed, after considering
the representation, if any, made by the employee under clause
(a) of the Sub-regulation, to withhold increment of pay and such
withholding of increments is likely to affect adversely the
amount of retirement benefits payable to the employees or to
withhold increments of a pay for a period exceeding 3 years or
to withhold increment of pay with cumulative effect for any
period,m an inquiry shall be held in the manner laid down in Sub-
regulation (3) to (23) of Regulation 58 before making any order
imposing on the employee any such penalty.”
6. The interpretation of the said Regulation engaged the attention
of this Court in A. Prahalada Rao (supra). A two-Judge Bench,
adverting to the anatomy of the Regulation and taking into
consideration the submissions advanced with regard to the abuse of the
Regulation, came to hold as follows:
" In our view, on the basis of the allegation that Food
Corporation of India is misusing its power of imposing minor
penalties, the Regulation cannot be interpreted contrary to its
language. Regulation 60(1)(b) mandates the disciplinary
authority to form its opinion whether it is necessary to hold
inquiry in a particular case or not. But that would not mean
that in all cases where an employee disputes his liability, a
full-fledged inquiry should be held. Otherwise, the entire
purpose of incorporating summary procedure for imposing minor
penalties would be frustrated. If the discretion given under
Regulation 60(1)(b) is misused or is exercised in an arbitrary
manner it is open to the employee to challenge the same before
the appropriate forum. It is for the disciplinary authority to
decide whether regular departmental enquiry as contemplated
under Regulation 58 for imposing major penalty should be
followed of not. This discretion cannot be curtailed by
interpretation, which is contrary to the language used.
Further, Regulation 60(2) itself provides that in a case if it
is proposed to withhold increments of pay and such withholding
of increments is likely to affect adversely the amount of
retirement benefits payable to an employee and in such other
case as mentioned therein, the disciplinary authority shall hold
inquiry in the manner laid down in Regulation 58 before making
any order imposing any such penalty."
7. It is submitted by Mr, Chatterjee that the High Court has
erroneously understood the ratio and ruled that an opinion has to be
formed in writing. It is his further submission that when the reasons
are manifest from the preliminary inquiry and from the show cause it
was erroneous on the part of the High Court to emphasise on the
formation of opinion.
8. Per contra, Mr. Chaudhary heavily relied on the authority in A.
Prabhakar Rao (supra) and urged that the discretion vested in the
disciplinary authority under the Regulations casts an obligation on it
to form an opinion and formation of such opinion has to be in writing.
9. On a perusal of the order passed by the learned Single Judge,
we find that he has taken note of the fact that there was no
expression or formation of opinion. He has further recorded that the
learned counsel for the Corporation had conceded that there was
nothing to show that the Chairman-cum-Managing Director who had made
the final order had recorded any opinion in writing before making the
final order to the effect there was no need to hold a regular inquiry.
From the principle stated by this Court in A. Prahalada Rao’s case it
is quite limpid that though in all cases where the employees disputes
his liability, a full-fledged enquiry is not expected to be held as
that would frustrate the purpose of interpreting the summary procedure
for imposing minor penalties, yet the discretion conferred under the
Regulation 1960 (1)(b), if exercised in a arbitrary manner, it is open
to the employee to challenge the same before the appropriate forum.
The Court had further opined that the Regulation 60(1)(b) mandates
the disciplinary authority to form its opinion whether it is necessary
to hold an inquiry in a particular case or not.
10. Once it is held that there has to be formation of opinion and
such an opinion is assailable in a legal forum, we are of the view
that the said opinion has to be founded on certain objective criteria.
It must reflect some reason. It can neither be capricious or
fanciful but demonstrative of application of mind. Therefore, it has
to be in writing. It may be on the file and may not be required to be
communicated to the employee but when it is subject to assail and,
eventually, subject to judicial review, the competent authority of the
Corporation is required to satisfy the Court that the opinion was
formed on certain parameters indicating that there was no necessity to
hold an enquiry. Thus, the High Court has correctly understood the
principle stated in A. Prabhakar Rao (supra) and we do not find any
fault with the same.
11. In the result, we do not perceive any merit in these appeals and
the same stand dismissed with no order as to costs.
....................J.
[DIPAK MISRA]
...................J.
[N.V. RAMANA]
NEW DELHI,
MAY 21, 2014.
-----------------------
[1] (2001) 1 SCC 165
-----------------------
6
