Chand Vs. The Food Corporation of India Ltd. & Ors  INSC 1617 (16 December 1996)
O R D
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.
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.
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.
learned counsel for the petitioner has raised the contention that since the
petitioner was required to be dismissed by the disciplinary authority, namely,
Zonal 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.
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:
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.
case of such common proceedings;
inquiry report or a copy 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.
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:
There has been a apprehension as co the actual meaning of common proceedings
and joint proceedings.
hereby clarified that the terms `common proceedings' and `joint proceedings'
are synonymous and in fact there is no difference between the two.
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.
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
cases of all the officials should be disposed off by the 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.
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.
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.
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.
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 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.
Special Leave Petition is accordingly dismissed.