Allowed

P.a.Gopi v. F.C.I. and Ors.

Bombay HC18 Aug 2009WP/1028/1998

Case brief

AI extract

What is this about?

This writ petition challenged a departmental punishment order imposing reduction in pay and recovery of loss against a petitioner employee. The High Court held the punishment vitiated as the Disciplinary Authority disagreed with the enquiry officer's acquittal without giving the employee a show-cause notice regarding such disagreement, violating natural justice.

What did the court decide?

Orders imposing punishment set aside; amounts recovered refunded to the petitioner.

P.a.Gopi Vs F.C.I. and Ors. — Service and Employment | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1028 OF 1998

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Shri P.A. Gopi .. Petitioner

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-versus

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Food Corporatin of India and ors .. Respondents.

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Shri N.M. Ganguli, for the petitioner.

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Shri D.B. Sapkle, for respondent No.l.

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CORAM: D.K. DESHMUKH & R. G. KETKAR, JJ. DATED: 18^th August, 2009.

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P.C.

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The petitioner who has been in service of respondent No.l Food Corporation of India, was served with chargesheet, levelling three charges. The departmental enquiry was held. The enquiry officer submitted his report dated 24.11.1992. Para 6.6 of that report is relevant which reads as under.

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“6.6 The charges, as alleged, in Article-I, II, & III,

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are not proved. The CO is not responsible for the shortage as shown in Ex. P.1. However, the CO exhibited lack of devotion to duty and failed to protect the interest of the Corporation by maintaining the records, particularly unstamped receipt and making false entry in EX. P.3 of the materials returned by the contractor on l0.3.l989. This entry is not supported from the weigh bridge records. The explanation of CO, to the question by IO, is not found satisfactory and for this lapse the CO is held.”

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Thus, the enquiry officer held that the petitioner not guilty of Article l, II and III. But he noted that the petitioner exhibited lack of devotion to duty and failed to protect the interest of the Corporation by maintaining the records, particularly unstamped receipt and making false entry in Exhibit P.3 of the materials returned by the contractor on l0.3.l989. Lack of devotion to duty and other things were not part of Article I, II, & III. The Disciplinary Authority alongwith memorandum dated

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3.l2.l992, sent a copy of the enquiry report and asked the petitioner to make his submissions in relation thereto. As the petitioner was not held guilty of all the three charges levelled against him and only observations were made against him in para 6.6 of the report, he restricted his representation to that aspect of the matter.

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The Disciplinary Authority passed order dated 23.9.1996 wherein he made reference of the findings recorded by the enquiry officer on Article I, II and III and held that all the three articles of charges are proved against the petitioner and imposed the punishment. Para 14 of the order of the dated 23rd September, 1996, is relevant which reads thus:

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“NOW THEREFORE, the undersigned in exercise of the powers conferred by Regulation 59 of FCI (Staff) Regulations l971, hereby impose the penalty of reduction of his pay by 3 stages for a period of 3 years on said Shri. P.A. Gopi, Jr.Engineer (Civil). It is further directed that he will not earn any increments during the period of

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such reductions and on expiry of the said period of the reduction will have the effect of postponing his future increments of pay. The loss of Rs.l, 50,000/- suffered by the Corporation be also recovered from Shri Gopi to the extent as provided under the Rules of the Corporation”.

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Against the order imposing punishment, appeal was preferred by the petitioner. That appeal was decided by order dated 1^st August, 1997. Appeal was dismissed but the punishment order was slightly modified. The relevant portion of the order reads thus:

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“NOW THEREFORE, I the undersigned hereby modify the said penalty imposed on the Appellant by the Disciplinary Authority to that of recovery of l/3^rd of loss of Rs.l.5 lakh as per rules and reduction of pay by 3 stages for a period of 3 years with further direction that he will not earn increment of pay during the period of such reduction and the reduction will not have the

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effect of postponing his future increment of pay.

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He will regain his original position alongwith pay

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and allowances on completion of this period.

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Against the order of Appellate Authority and Disciplinary Authority as provided under the rules, the petitioner had preferred review petition. In the review petition the petitioner has specifically alleged that the Disciplinary Authority without giving notice to the petitioner that it proposes to disagree with the findings of the enquiry officer, imposed punishment on petitioner. The review petition has been decided by order dated 5^th August, l998. This contention referred to above regarding disagreement by Disciplinary Authority without issuing show cause notice is referred to in the order. But the order shows that it is not decided at all.

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We have heard learned counsel for both the sides. Perusal of the record shows that the punishment has been imposed on the petitioner on the findings of Disciplinary Authority which has been confirmed/modified by the Appellate Authority and Review Authority that the petitioner is guilty of Article I, II & III. The Disciplinary

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Authority has disagreed with the findings recorded by the

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enquiry officer that none of the charges are proved against the petitioner. The Disciplinary Authority is free to disagree with the findings of the enquiry officer and record its own finding, holding delinquent guilty of the charges, though the enquriy officer held him to be not guilty. But the principles of natural justice are required to be followed by the Disciplinary Authority, before such disagreement with the findings is recorded by the enquiry officer by giving notice to the delinquent indicating therein that the Disciplinary Authority proposes to disagree with the findings of the enquiry officer, so that the delinquent employee gets an opportunity to explain how the report of the enquiry is correct and there is no need to disagree with the findings.

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In the present case the finding of the disagreement has been recorded by the Disciplinary Authority without giving the petitioner an opportunity to show cause why there is no reason for the disciplinary authority to disagree with the findings of enquiry officer.

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The reliance was placed before us on the provisions of Regulation No.59 of the Service Regulation framed by the Corporation. No doubt Regulation 59 of the Food Corporation of India (Staff) Regulations, l971, empowers the Disciplinary Authority to disagree with the findings of the enquiry officer and there can be no debate on that aspect. However, Disciplinary Authority’s power to disagree with the findings recorded by enquiry officer, has to be exercised in consonance with the principles of natural justice. Settled law is that it is one of the principle of natural justice that before the Disciplinary Authority records its finding contrary to the findings recorded by the enquiry officer, it must give notice to the delinquent of its proposal to disagree with the findings of the enquiry officer. A finding of disagreement with the findings of the enquiry officer can not be recorded without complying with the principles of natural justice. In our opinion, therefore, punishment imposed by Disciplinary Authority is vitiated for non compliance of principles of natural justice. In the result, the petition

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succeeds and is allowed. The orders imposing punishment

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on the petitioner are set aside. If any amounts have been recovered from the petitioner as penalty, they shall be refunded to the petitioner in accordance with law. Rule

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made absolute. No order as to costs.

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(D.K. DESHMUKH, J)

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(R.G. KETKAR, J)

P.a.Gopi v. F.C.I. and Ors.

Case brief

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P.a.Gopi v. F.C.I. and Ors.

Case brief

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