A.C. Lakshmanan, J. 1. Heard Mr. P.B.Krishnan on behalf of the appellant Food Corporation of India and Mr. M.C.Madhavan for the respondent. This writ appeal is filed against the judgment in O.P.No. 18420 of 1995 setting aside Ext.P-4 order dated September 27, 1989, the order imposing penalty on the respondent, and Ext.P-10 order dated January 11, 1996 passed by the 3rd respondent Managing Director rejecting the appeal filed by the respondent herein and also directing the Senior Manager of the Food Corporation of India, Madras to afford an opportunity to the respondent to file a representation against the proposal to disagree with the finding of the enquiry officer.
2. The respondent was issued Ext.P-1 memo of charge dated December 29, 1986 charging him on his failure to supervise the performance of his subordinate staff who falsified the depot records and thereby accumulated large quantities of food grains unauthorisedly in the various stacks of the sub depot with mala fide intention. It is alleged that the respondent has thus contravened Regulations 31 (b) and 32 of the Food Corporation of India (Staff) Regulations, 1971. The respondent submitted his explanation through proper channel under Ext. P2 denying the charge. An enquiry was ordered and the enquiry officer, after perusing the evidence, oral and documentary, adduced at the enquiry, came to the conclusion that the articles of charge against the respondent herein were not conclusively proved. The report of the enquiry officer has been marked as Ext. P3. The disciplinary authority, however, disagreed with the findings of the enquiry officer and imposed the major penalty of stoppage of two annual increments due for 1990 and 1991 with cumulative effect, by Ext.P4 order dated September 27, 1989. A reading of the said order would show that no notice was given to the respondent before passing Ext. P4 and no reasons were given for disagreeing with the findings of the enquiry officer and there was also no discussion of the evidence while disagreeing with the findings of the enquiry, officer, as specifically required under Regulation 59(2). Aggrieved by the order, Ext.P4, the respondent submitted Ext. P5(a) appeal before the Managing Director, Food Corporation of India, New Delhi. The respondent also submitted a memorandum of additional grounds of appeal under Ext. P6(a) dated February 15, 1990. He also submitted another representation, Ext.P7(a). The respondent retired from service on May 31, 1993. Again he submitted Ext.P9 representation requesting the appellate authority to consider his appeal and set aside the order of penalty imposed on him. Even though the appeal was filed on November 29, 1989, the appellate authority did not move at all, even after the passage of nearly six years. The respondent, therefore, approached this Court and filed O.P. 18420 of 1995. This Court by interim order dated November 27, 1995 on C.M.P.No. 33506 of 1995 commanded the appellate authority to consider and dispose of Ext P5(a) appeal within two months. Accordingly, the appellate authority passed Ext.P10 order rejecting the appeal. Thereupon, the Original Petition was amended producing Ext.P10 order dated January 11, 1996 and challenging the validity of the same.
3. The Original Petition was finally heard on September 12, 1997. The learned Judge set aside Ext.P4 and P. 10 and directed the Zonal Manager, Food Corporation of India, Madras, the disciplinary authority, to afford an opportunity to the respondent herein to file a representation against the proposal to disagree with the finding of the enquiry officer. Aggrieved by the said judgment, the Food Corporation of India has filed this writ appeal.
4. Mr. P.B.Krishnan, counsel appearing for the appellant contended, (1) that the learned Single Judge has exceeded his jurisdiction under Article 226 of the Constitution of India; (2) that opportunity for hearing before the disciplinary authority is not contemplated even for imposition of a major penalty in view of Regulation 59(4) of the Food Corporation of India (Staff) Regulations; (3) that "punishment imposed on the delinquent is only a minor penalty" and the directions of the learned Single Judge to afford an opportunity to make a representation before the disciplinary authority is contrary to the scheme of the Staff Regulations. In support of the above contention Mr. Krishnan relied on the decision reported in State Bank of India v. S.S.Koshal 1994 Supp. (2) SCC 468. Learned counsel further submitted that unless and until grave procedural irregularities that have prejudiced the delinquent are established, the Court would inevitably decline to exercise jurisdiction under Article 226 of the Constitution of India. It is also submitted that the learned Judge has not applied the ratio of the decision of the Supreme Court in State Bank of India v. S.S. Koshal (supra) to the facts of the present case.
5. Per contra, Mr. M.C. Madhavan, learned counsel appearing for the respondent submitted that the penalty imposed on the respondent is, and should be treated as, a major penalty and that it is not a mere withholding of increment of pay mentioned in Regulation 54 (iv), but it is stoppage of two annual increments due for 1990 and 1991 with cumulative effect. In an identical case, the Hon'ble Supreme Court has held in Kutwant Singh Gill v. State of Punjab 1991 Supp. (1) SCC 504 that the penalty of stoppage of two increments with cumulative effect amounts to major penalty. Before proceeding to discuss about the above Supreme Court judgment, it is beneficial to reproduce Regulation 54 of the Food Corporation of India (Srafi) Regulations (for short 'the Staff Regulations').
"54. Penalties:
Notwithstanding anything contained in any other regulations, 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, the following penalties may (for good and sufficient reasons and as hereinafter provided) be imposed on any employee of the Corporation.
Minor Penalties:
(i) Censure;
(ii) withholding 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 orders;
(iv) withholding 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 of the Corporation 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 incre-ments 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 direction regarding conditions of restoration to the post from which the employee of the Corporation was reduced and his seniority and pay on such restoration to that post;
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for future employment under the Corporation;
(ix) dismissal from service which ordinarily be a disqualification for future employment under the Corporation."
In the above Supreme Court case, the appellant, while working as Inspector, Food and Supplies, was found by the Director of Food and; Supplies to have purchased sub-standard wheat. A charge sheet was issued to him. The disciplinary authority found that the appellant had committed a minor misconduct. Accordingly an order was issued directing stoppage of two increments with cumulative effect. In the above case the Supreme Court was considering the provisions of the Punjab Civil Services (Punishment and Appeal) Rules. Under the above Rules, withholding increments of pay simpliciter is a minor penalty under Rule 5(iv). But Sub-rule (v) postulates reduction to a lower stage in the time-scale of pay for a specified period with further direction as to whether or not the Government employee shall earn increments of pay during the period of such reductions 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. It is a major penalty. The appellant contended that the offending order amounted to a major penalty and imposition thereof without conducting enquiry as enjoined under Rules 8 and 9 was illegal. The Trial Court and the District Court held in favour of the appellant. The High Court in second appeal held that the penalty imposed on the appellant was a minor penalty under Rule 5 (iv) obviating the need to make a regular enquiry. Allowing the appeal of the aggrieved Government servant, the Supreme Court held that the impugned order would come within the meaning of Rule 5(v) of the Punjab Civil Services (Punishment and Appeal) Rules; that it is a major penalty and that the imposition of the impugned penalty without enquiry is per se illegal. The Supreme Court further held that Rule 5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Therefore, it was held that the order impugned would be without jurisdiction or authority of law and would be per se void. It is useful to reproduce the relevant clauses in the Punjab Civil Services (Punishment and Appeal) Rules for best appreciation of the case.
"5. Penalties-The following penalties may, for good and sufficient reasons, and as hereinafter provided, be imposed on a Government employee, namely:
Minor Penalties
(i) Censure;
(ii) withholding of his promotions;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders
(v) withholding of increments of pay; Major Penalties
(v) reduction to lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government 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, grade, or service which shall ordinarily be a bar to the promotion of the Government employee to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government employee was reduced and his seniority and pay on such restoration to that grade, post or service;
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for future employment under the Government;
(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government."
As rightly pointed out by Mr. Madhavan, the order passed by the disciplinary authority, as affirmed by the appellate authority, withholding two increments of pay with cumulative effect without any enquiry is per se illegal. The Supreme Court judgment cited by the learned counsel for the respondent squarely applies to the facts and circumstances of this case. As already noticed, the penalty imposed in this case is withholding of two increments of pay with cumulative effect, which is a major penalty and, therefore, the contention of the learned counsel for the appellant that the punishment imposed on the delinquent is only a minor penalty cannot at all be accepted.
6. We shall now advert to the decision cited by the learned counsel for the appellant, reported in State Bank of India v. S.S. Koshal (Supra) wherein it has been laid down that no fresh opportunity of being heard is contemplated before the disciplinary authority when the disciplinary authority differs from the conclusion of the enquiry officer and order punishment of the delinquent. Counsel submitted that since it is a binding precedent, the learned single Judge should have applied the ratio of the decision. In the above case, an appeal was preferred against the judgment of the Madhya Pradesh High Court allowing writ petition filed by the respondent therein, who was the Branch Manager of the State Bank of India, Bhopal branch. A disciplinary enquiry was held against him in respect of six charges and the Enquiry Officer held charges 1 and 2 established, but held the other charges were not established. After perusing the report of the Enquiry Officer, the disciplinary authority agreed with the Enquiry Officer that charges 1 and 5 were established and charges 3 and 4 were not established. So far as charge No. 2 was concerned, the disciplinary authority disagreed with the Enquiry Officer and held the said charge to have been fully established. So far as charge 6 was concerned, he again disagreed with the Enquiry Officer and held it partially established. Accordingly he imposed the punishment of removal from service by an order dated May 8, 1984. The delinquent filed an appeal before the appellate authority, who dismissed the appeal on January 25, 1985. The Bank Officer then approached the High Court by way of a writ petition wherein he urged three grounds, of which we are concerned with ground No. 2 which related to failure to give fresh notice to him when the appellate authority disagreed with the findings of the Enquiry Officer on some of the charges. The High Court upheld all the three grounds and allowed the writ petition. Against that the Bank preferred an appeal before the Supreme Court. So far as the 2nd ground was concerned, the Supreme Court held that no fresh opportunity was contemplated by the regulations, nor can such a requirement be deduced from the principles of natural justice and that the enquiry officer's report is not binding on the disciplinary authority. The Supreme Court held that it is open to the disciplinary authority to come to its own conclusion on the charges; that it is not in the nature of an appeal from the Enquiry Officer to the appellate authority, but it is one and the same proceeding; that it is open to a disciplinary authority to hold the enquiry himself and that it is equally open to him to appoint an Enquiry Officer to conduct the inquiry and place the entire record before him with or without his findings. But in either case, it was held, the final decision is to be taken by the disciplinary authority on the basis of the materials adduced. The Supreme Court has considered the relevant rules, i.e. Rule 51 (2) which says that the appellate authority shall consider whether the findings are justified and/or whether the penalty is excessive or inadequate, and pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it deems fit in the circumstances of the case. In view of the fact that it was an order of affirmance by the appellate authority, they were of the opinion that it was not obligatory on the part of the appellate authority to say more than what had been said as the order showed application of mind and could not be characterised as a non-speaking order. For the above reasons, the Supreme Court allowed the appeal filed by the Bank, set aside the order of the High Court and restored the punishment.
7. The above judgment, as already noticed, was rendered by two Hon'ble Judges of the Supreme Court. Rule 51 (2) referred to in the said judgment did not provide for any opportunity being provided, or for issue of fresh notice to the aggrieved party when the appellate authority disagreed with the finding of the enquiry officer on some of the charges. The rule only contemplated that the appellate authority should consider whether the findings are justified and as to whether the penalty is excessive or inadequate and pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it deems fit in the circumstances of the case. In that case the enquiry officer held that charges 1 and 5 had been established and the other charges not established; whereas the disciplinary authority agreed with the enquiry officer that charges 1 and 5 had been established and charges 3 and 4 had not been established. He disagreed with the enquiry officer so far as charge 2 was concerned. The Supreme Court held that since it was an order of affirmance, it was not obligatory on the part of the appellate authority to give fresh notice. The case on hand stands on a different footing. As observed earlier, the enquiry authority came to the conclusion that the charges are not conclusively : proved. The disciplinary authority disagreed with the finding of the enquiry authority and imposed on him the penalty of stoppage of two annual increments with cumulative effect without giving any notice or reason. There was no discussion at all of the evidence while disagreeing with the finding of the enquiry officer despite the fact that it is specifically required as per the Staff Regulation 59(2). In this case the order passed by the disciplinary authority is not an order of affirmance of the order of the enquiry officer. This apart, the disciplinary authority had imposed on the respondent the penalty of stoppage of two annual increments due for 1990 and 1991 with cumulative effect. A Bench of three Hon'ble Judges of the Supreme Court in an identical case held that the impugned order would come within the meaning of Rule 5(v) of the Punjab Civil Services (Punishment and Appeal) Rules and that it was a major penalty. It was further held that imposition or the major penalty without enquiry was per se illegal and that Rule 5(iv) of the said Rules did not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. The Supreme Court, therefore, set aside the order as one without jurisdiction or authority of law. As in the instant case a major penalty of withholding of two increments with cumulative effect is imposed on the respondent, that too without any notice or enquiry or assigning any reason for disagreement with the report of the enquiry officer, we are of the opinion that the respondent should be afforded an opportunity of being heard before reversing the order of the enquiry officer and imposing a major penalty. In the case on hand the only charge levelled against the respondent was not proved. It is a case of total exoneration, by the enquiry officer. In the case cited by the learned counsel for the appellant, certain charges were found proved by the enquiry officer. In the instant case there is no discussion of the evidence in the order of the disciplinary authority and no reason has been assigned for disagreement with the findings of the enquiry officer. The Appellate Authority also did not consider the matter as required under Regulation 72(2). In other words, the decisions of both the disciplinary authority and the appellate authority were not based on the material adduced. The decision cited by the learned counsel for the appellant, viz. State Bank of India v. S.S. Koshal (supra) is distinguishable on facts and on law and in the light of what is stated above, the said decision has to be confined to the facts of that case.
8. Learned counsel for the appellant has taken us through all the exhibits, the pleadings and also the regulations. According to the learned counsel, unless the rules and regulations expressly provides for opportunity of hearing before disagreement by the disciplinary authority with the findings of the enquiry officer, no notice or opportunity need be given to the respondent herein. He also submitted that the regulations did not also expressly provide for an opportunity for hearing. Learned counsel relied on the decisions reported in Associated Cement Companies v. T.C. Shrivastava (1984-II-LLJ-105)(SC), Managing Director, EC1L v. B.Karunakar (1994-I-LLJ-162) (SC) and State of Rajasthan v. M.C. Saxena (1998-I-LLJ-1244)(SC).
The decision in Associated Cement Companies' case was cited by counsel for the appellant in support of the proposition that neither under the ordinary law of the land nor under the industrial law a second opportunity to show cause against the proposed punishment is necessary and that unless the Standing Order provides for it either expressly or by necessary implication, no inquiry, which is otherwise fair and valid, will be vitiated by non-affording of such second opportunity. We have already found that in the instant case the enquiry which was fair at the initial stage, was vitiated by non affording of a second opportunity because of the total non-application of mind by the disciplinary authority. He has not given any reason for disagreement with the findings of the enquiry officer and there was also no discussion of the evidence while disagreeing despite the fact that it is specifically required under Regulation 59(2) of the Staff Regulations. Regulation 59(2) says that if the disciplinary authority disagrees with the findings of the inquiry authority on any article of charge, it shall record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. Regulation 59(4) provides that 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 54 should be imposed on the Corporation employee (major penalties), it shall make an order imposing such penalty and it shall not be necessary to give the Corporation employee any opportunity of making representation on the penalty proposed to be imposed. Since no opportunity under Regulation 59(2) was given, we are of the opinion that the order passed by the disciplinary authority is vitiated by non-affording of a second opportunity. Therefore, the above judgment is not applicable to the facts of the case on hand.
9. The decision in Managing Director, ECIL v. Karunakar (supra) was cited by the counsel for the appellant for the proposition that the law whether after the 42nd Constitution Amendment the delinquent was entitled to a copy of the Inquiry Officer's report was in an unsettled condition till November 20, 1990 on which day Mohd. Ramzan Khan's case (1991-I-LLJ-29) was decided by the Supreme Court holding that the delinquent is entitled to a copy of the enquiry report so as to enable him to make representation to the disciplinary authority against it. Since the said decision was made the law expressly prospective in operation, the law laid down there will apply only to those orders of punishment which is passed by the disciplinary authority after November 20, 1990, notwithstanding the ultimate relief which was granted in Mohd. Ramzan Khan's case (supra). According to counsel, no order of punishment passed before that date would be challengeable on the ground that there was failure to furnish the inquiry report to the delinquent employee, and that all proceedings pending in Courts/Tribunals in respect of orders of punishment passed prior to November 20, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down by the Supreme Court in Mohd. Ramazan Khan's case (surpa). Arguing further, learned counsel for the appellant submitted that in the instant case the punishment was imposed by the disciplinary authority by the order dated September 27, 1989 and, therefore, the principle laid down in Ramzan Khan's case (supra) will not apply to the instant case.
10. Learned counsel next relied on the decision in State of Rajasthan v. M. C. Saxena (supra) wherein the Supreme Court held as follows at p 1248:-
"The disciplinary authority can disagree with the findings arrived at by the enquiring officer and act upon his own conclusion, but the only requirement is that the said disciplinary authority must record reasons for his disagreement with the findings of the enquiry officer. If the disciplinary authority gives reasons for disagreeing with the findings of inquiring officer, then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding. In this view of the matter when a set of charges had been framed and the delinquent Government servant had filed his show cause to the set of charges and on a regular enquiry being held the enquiring officer had exonerated the delinquent and thereafter the disciplinary authority disagreeing with the findings by recording the reasons therefor, had awarded minor punishment of stoppage of one increment without cumulative effect, the order of penalty cannot be assailed on ground that before the disciplinary authority proceeds to award punishment, the delinquent Government servant should have been afforded a further opportunity of hearing."
The above decision can also be distinguished easily on facts. In the instant case the disciplinary authority has totally disagreed with the findings arrived at by the enquiry officer. We have already seen that the disciplinary authority has not recorded any reason for his disagreement with the findings of the enquiry officer. Since the disciplinary authority has not given any reason for disagreement with the findings of the enquiry officer even as held by the Supreme Court in the above judgment, the Court can interfere with those findings. This apart, in the instant case the enquiry officer held that the only charge framed against the respondent herein has not been conclusively proved. However, the disciplinary authority had awarded a major penalty of stoppage of two increments with cumulative effect without affording any opportunity and without giving any reasons. In the above decision the Supreme Court held that the award of minor penalty of stoppage of one increment without cumulative effect cannot be assailed on the ground that the delinquent officer should have been afforded a further opportunity of hearing. Hence, the above decision cited by the learned counsel for the appellant is also distinguishable on facts.
11. We shall now refer to Sub-clauses (2) and (4) of Regulation 59 of the Staff Regulations which reads thus :
"59. Action on the Inquiry report:
(1) xxxx xxxx xxxx (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) xxx xxxx xxxx (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 Clause (v) to (ix) of Regulation 54 should be imposed on the Corporation employee, it shall make an order imposing such penalty and it shall not be necessary to give the Corporation employee any opportunity of making representation on the penalty proposed to be imposed."
The above clauses of Regulation 59 do not at all say that opportunity need not be given when the disciplinary authority disagrees with the findings of the enquiry authority. What need not be given is an opportunity to make representation on the penalty proposed to be imposed and not on the reasons for disagreement. This is particularly so in view of Article 311 of the Constitution of India. In our considered view, an opportunity to make a representation on the reasons for disagreement by the disciplinary authority with the findings of the enquiry officer is always available to delinquent employees. This alone would enable the employee to dissuade the Disciplinary Authority to agree with the findings of the Inquiring Authority. If it is otherwise, the same will lead to very serious consequences so far as the employees are concerned, and an opportunity to disabuse the disciplinary authority would be lost. They will be completely at the mercy of the disciplinary authority and the enquiry would be reduced to an empty formality, unnecessary waste of time, labour and money. The entire proceedings would be reduced to a mockery. Regulations 59(2) and 61 (communication of the order) will make it clear that if the disciplinary authority is disagreeing with the findings of the enquiring authority, the authority has to record its reasons if the evidence on record is sufficient for the purpose and in that case, the delinquent employee is required to be given an opportunity to make representation against the reasons for disagreement with the findings of the enquiry officer and also against the findings of the disciplinary authority, again, based on evidence at the enquiry. Such a procedural compliance is very much implicit in the Staff Regulations, as otherwise, in case like the one on hand, grave prejudice will be caused to the delinquent employees.
12. Mr. M.C. Madhavan, counsel for the respondent, cited the decision reported in Union of India v. J. Ahmed (1979-II-LLJ-14)(SC) in support of the proposition that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post, etc. would not themselves constitute misconduct. There may be negligence of performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty, but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. Counsel for the respondent submitted that charge was framed against the respondent as though the respondent did something very seriously wrong. The charge was that he failed to supervise the performance of his subordinate staff who falsified the depot records and thereby accumulated large quantities of food grains unauthorisedly in the various stacks of the sub depot with mala fide intention. The enquiring authority held that the articles of charge, viz. failure to supervise the performance of his subordinate staff has not been conclusively proved. The decision reported in R.P. Bhatt v. Union of India AIR 1986 SC 1040 was cited by counsel for the respondent for the proposition that non-compliance with the requirements of the rules/regulations vitiated the proceedings. The said decision related to Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which provides that in disposing of the appeal, the appellate authority has to apply his mind and consider whether the procedure laid down in the said rules has been complied with; whether the findings of the disciplinary authority are warranted by the evidence on record and whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders confirming, enhancing, reducing or setting aside the penalty; or remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem tit in the circumstances of the case. The appellate authority in that case had not considered whether the findings of the disciplinary authority were warranted by the evidence on record and whether the penalty imposed was adequate or inadequate or severe. Since there was no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down the rules are complied with or not and as the Director General himself had not given any finding on the crucial question, the Court set aside the impugned order, there being non-compliance with the requirement of Rule 27(2) of the above mentioned Rules. The above decision was cited in support of the contention of the learned counsel for the respondent that the appellate authority has also not applied his mind and mechanically confirmed the order of the disciplinary authority and, therefore, the said order imposing penalty without assigning any reasons and without affording an opportunity is only to be set aside.
The decision reported in Ram Chander v. Union of India AIR 1986 SC 1173 was relied on by counsel for the respondent hi support of his argument that it is the duty of the disciplinary authority and the appellate authority to give reasons for disagreement with the findings of the enquiry officer, which, according to him, is an incidence of judicial process. In the instant case, as already seen, there is no indication that the disciplinary authority and the appellate authority have applied their minds as to whether the act of misconduct with which the respondent was charged and the past record of the respondent were such that he should have been visited with the penalty of stoppage of two increments with cumulative effect. For a single lapse in a span of 32 years (respondent joined service in 1957), a major penalty as above has been imposed on him. The Food Corporation of India (Staff) Regulations, 1971, particularly Regulation 72(2) came up for consideration in the decision in Vijayan v. District Manager 1992(2) KLT SN.P. 355.
A learned single Judge of this Court held that the word 'consider' means due application of mind and that the appellate authority has to consider whether the procedure laid down has been complied with and whether the findings of the disciplinary authority are warranted by the evidence on record. There being non- compliance with the requirements of the regulations, the learned single Judge set aside the impugned order passed by the Director General.
13. Before parting with the case we may also point out that the respondent in this case alone has been meted out with the imposition of punishment, whereas two other employees who had been charge sheeted along with the respondent and who were working at the Food Corporation of India sub depot, Trichur during the relevant period have been completely exonerated by the disciplinary authority. Though the respondent filed C.M.P.No. 15258 of 19% before the learned single Judge, no finding has been rendered by the learned single Judge on this aspect. Along with the said petition the respondent has produced two documents and explained as to why the said documents (Exts. P11 and P12) were filed belatedly. Ext. P11 is the order issued by the Regional Office of the Food Corporation of India, Trivandrum, No. S &S/34 (6) 86-87/TCR dated January 4,1988 whereby sanction had been accorded to write on 2,68,671.89 MT of Indian rice in Trichur Sub Depot by way of transit loss, for the month of June, 1986. It was also certified in that order that the inland transit/storage losses incurred by the Trichur sub depot of Trichur District on Indian rice for the month of June 1986 worked out to 2.76 percentage on MT. 3398,394.284 and were considered reasonable; that the said losses were not due to theft, pilferage, negligence, etc. and did not reveal any defect in procedure; and that no vigilance case was pending/contemplated. We have perused the said order. It is very clear from the order that the transit/ storage losses in the sub depots I and II, Trichur, which were made the basis of the charge against the respondent, had been, written off, having been found not due to theft, pilferage, negligence, etc. and not having revealed any defect in procedure; Notwithstanding these findings of the Senior Regional Manager as evidenced by Ext. P11, as also the finding of the enquiry officer that the charge levelled against the respondent has not been conclusively proved, the respondent has been penalised towards the fag end of his career withholding two increments with cumulative effect. Another employee who had been charge sheeted along with the respondent, who was working in the Food Corporation of India, District Office, Trichur (Shri T.S. Gopalakrishnan, Ex-Assistant Grade ID) was completely exonerated of the charge levelled against him by the Senior Regional Manager by Ext.P12 order No. VIG. 30(1)(91). It is stated that Gopalakrishnan was the officer in charge of one of the two sub depots and it was he who was actually working on the spot and primarily responsible for the stock,etc. It is contended that if an official who was on the spot and who was primarily responsible for the loss, etc. could be absolved of the charges levelled against him, it is harsh to proceed against an officer who was not actually working on the spot, but only at a distant place and who was having various other items of work, on the mere allegation of supervisory failure. When the learned counsel for the appellant was confronted with Exts.P11 and P12, learned counsel submitted that he has no knowledge about the same even though the said two documents were filed even during the pendency of the Original Petition before the learned single Judge. It is settled law by decisions of this Court and also of the Supreme Court that when two persons are responsible, one alone cannot be made a scapegoat. A reading of Exts. P11 and P12 clearly shows that the Senior Regional Manager has let off another officer similarly placed like the respondent, viz, Sri T.S.Gopalakrishnan; at the same time, the respondent has been inflicted a major punishment. This itself is sufficient to show that the order impugned in this case offends Article 14 of the Constitution of India and has got to be set aside.
14. In the decision reported in Sengara Singh v. The State of Punjab (1984-I-LLJ-161), the Supreme Court has held as follows at p 164:
"If the indiscipline of a large number of personnel amongst dismissed personnel could be condoned or overlooked and after withdrawing the criminal cases against them, they could be reinstated, there was no justification in treating the petitioners differently without pointing out how they were guilty of more serious misconduct or the degree of indiscipline in their case was higher than compared to those who were reinstated. On that conclusion the treatment meted to the petitioner suffered from the vice of arbitrariness and Article 14 forbids any arbitrary action which would tantamount to denial of equality as guaranteed by Article 14."
The Supreme Court in that case held that the appellants in that case must receive the same benefit which those reinstated received in the absence of any distinguishing features in their cases and that accordingly the appellants therein would be entitled to reinstatement in service. In the instant case the management had condoned and dropped the proceedings against some of the employees who were involved in the same offence. There was no justification in treating the respondent differently without pointing out how he was guilty of more serious misconduct or the degree of indiscipline in his case was higher compared to those who were liberally handled. We, therefore, direct the Food Corporation of India to apply the same yardstick as in the case of Sri T.S.Gopalakrishnan who had been chargesheeted along with the respondent and who was working in the Food Corporation of India District Office, Trichur during the relevant period, who had been completely exonerated, and drop the proceedings against the respondent herein, who has retired from service as early as on May 31, 1993 after completion of 36 years of blemishless service. As already noticed, the only charge levelled against the respondent is that he did not supervise the work of his subordinates. Once it is held that there was no flaw in the work as has been held in Ext. P11, and when the others are not being proceeded against as is evident from Ext. P12, we are of the view that the respondent should not be singled out for a differential treatment. Twelve years have now passed after the alleged incident and the respondent retired from service in May, 1993. At the fag end of his career he has been inflicted a major punishment, which, apart from reducing his salary and other allowances from 1990 onwards, has also reduced his retirement benefits like pension, gratuity, leave salary, family pension, etc. drastically. We are of the view that the respondent should be treated equally with Shri Gopalakrishnan.
15. In view of the above, though the learned single Judge has given a direction to proceed with the enquiry after giving an opportunity to the respondent, we are of the view that at this distance of time such an enquiry is unnecessary, especially in view of Exts.P11 and P12. The appellant is, therefore, directed to pass orders in terms of Exts.P11 and P12 and drop the proceedings against the respondent. The appellant is also directed to pay the respondent arrears of salary and retirement benefits like pension, gratuity, etc. and settle the claims within three months from the date of receipt of a copy of the judgment.
The writ appeal is dismissed and the judgment of the learned single Judge is modified as above. There will be no order as to costs.