Over 2 lakh Indian cases. Search powered by Google!

Case Details

FOOD CORPORATION versus R.A. GUPTA

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Food Corporation v. R.A. Gupta - SECOND APPEAL No. 326 of 1986 [2007] RD-AH 8138 (1 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Judgment Reserved on 10.4.2007

Judgment Delivered on 1.5.2007

Second Appeal No. 326 of 1986

Food Corporation of India & Ors. Vs. R.A. Gupta

~~~~~

Hon. Dilip Gupta, J.

This Second Appeal has been filed by the defendants against the judgment and decree dated 17.12.1985  of the learned IIIrd Additional District & Sessions Judge, Moradabad by which the appeal filed by the plaintiff against the judgment and decree dated 2nd April, 1984 of the Trial Court dismissing Original Suit No.215 of 1981 was allowed and the suit was decreed for the declaration that the order dated 18th April, 1981 dismissing the plaintiff from service was illegal and ineffective and the defendants were directed to treat the plaintiff in service as if the impugned order dated 18th April, 1981 did not exist.

The plaintiff-respondent was appointed as Assistant Grade-III (Depot) in the Food Corporation of India and at the relevant time was posted at the Food Storage Depot at Rampur. Loss of 269 bags of Sugar from the godown under the charge of the plaintiff was reported and two other officials Sri A.R. Khan, Assistant Grade-II (Depot) and Sri S.K. Gupta, Assistant Grade-I (Depot) who exercised coordinate and supervisory jurisdiction respectively in the godown in question were suspected of having colluded with the plaintiff for causing the aforesaid loss to the Food Corporation of India. The Joint Manager who had been appointed as the Enquiry Officer, submitted his report holding the plaintiff-respondent guilty of causing loss of 269 bags of Sugar to the Food Corporation of India. The report was accepted by the Regional Manager who imposed the penalty of dismissal from service by means of the order dated 18th April, 1981. The Suit was filed alleging that the prescribed procedure in the enquiry had not been followed; that the authority imposing the punishment of dismissal from service was junior to the authority that had appointed him and that in any view of the matter the charges were not proved. The Trial Court framed as many as 10 issues and it upheld the punishment of dismissal from service and dismissed the suit.

The Appellate Court framed a preliminary issue as to the competence of the Regional Manager to impose the punishment of dismissal. The Appellate Court came to the conclusion that though under Appendix II of the Food Corporation of India (Staff) Regulations, 1971 (hereinafter referred to as the ''Regulations') both the Regional Manager and the Senior Regional Manager were competent to impose the penalty upon the plaintiff but in view of the specific order of the Senior Regional Manager, it was only the Senior Regional Manager who was competent to impose the punishment on the basis of the common proceedings carried out against the plaintiff-respondent and the other two employees Sri A.R. Khan and Sri S.K. Gupta. It, accordingly, came to the conclusion that the order of dismissal was passed by an authority not competent to impose the punishment and  quashed the order dated 18th April, 1981.

At the time of admission of the Second Appeal, substantial questions of law were framed and they are as follows :-

"1 (a) Whether the authorities competent to impose the penalty of dismissal from service on all the employees covered by the common disciplinary proceedings in question were different and if not, its effect?

(b) If the authorities were not different within the meaning of Regulation 56, read with Appendix 2, whether a special order was passed in  this behalf under Regulation 62 and if so would it have an overriding effect?

(c) Whether the order so passed was in accordance with the requirements of Regulation 62(1) which expressly lays down that the order may be made with the consent of the other concerned authorities, if not, its effect?

2. Whether the order of punishment against the defendant respondent was passed by an authority not competent in law to do so."

However, subsequently on 9th April, 2007 one more substantial question of law was framed and that is as follows :-

"Whether the Civil Court had the jurisdiction to entertain and decide the dispute in view of the specific provisions of the Industrial Disputes Act, 1947."

At the time of framing of the aforesaid substantial questions of law, I made it clear to the counsel for the respondent that he could seek an adjournment to prepare the matter on the additional substantial question of law that had been framed but he made a statement that the Court could proceed with the hearing as he was prepared with the matter and did not want any adjournment.

Learned counsel for the appellant submitted that the suit was not maintainable as the only remedy available to the plaintiff was to have approached the forum created by the Industrial Disputes Act; that in any view of the matter the Regional Manager was competent to impose the punishment of dismissal as he was one of the authorities mentioned under Appendix II of the Regulations. Learned counsel for the respondent, however, submitted that in view of the decision of the Supreme Court in  Rajasthan State Road Transport Corporation & Anr. Vs. Krishna Kant & Ors. (1995) 5 SCC 75, the suit was not maintainable but the said judgment would apply only to matters that were pending on the date of decision and not where the decree had been passed by the Trial Court and the matters were pending in the First Appeal or Second Appeal. He further submitted that only the Senior Regional Manager was competent to pass the order as common proceedings against all the three officials had been taken.

Two basic questions that arise for consideration in the present Second Appeal are whether the Regional Manager was the competent authority under the Regulations to impose the punishment of dismissal upon the plaintiff-respondent and whether the Suit filed by the plaintiff-respondent was maintainable.

In order to appreciate the first contention advanced by the learned counsel for the parties,  the relevant provisions contained in the Regulations have to be examined. Regulation 3 provides that the posts in the Corporation shall be categorized into category I, category II, category III and category IV. Regulation 54 deals with the penalties and both the minor penalties and the major penalties have been defined in the said Regulation.

Section 56 deals the disciplinary authorities and is as follows :-

"56. Disciplinary authorities:

The Board or the authority specified in Appendix 2 in this behalf or any other authority (higher than the authority specified in Appendix 2) empowered in this behalf by a general or special order of the Board, may impose any of the penalties specified in Regulation 54 on any employee."

Appendix-II as it existed at the relevant time stipulates that the authority competent to impose the penalty for Category III posts is the Joint Manager/Regional Manager/Senior Regional Manager.

Regulation 62 deals the Common Proceedings and is as follows :-

"62. Common proceedings:

(1) Where two or more employees of the Corporation are concerned in any case, the Board or any other authority competent to impose the penalty of dismissal from service on all such employees, may make an order directing that disciplinary action against all of them may be taken in a common proceeding.

Note: If the authorities competent to impose the penalty of dismissal on such  employees are different, an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with  the consent of the others.

(2) An order under sub-regulation (1) shall specify:

(i) the authority which may function as the disciplinary authority for the purpose of such common proceeding;

(ii) the penalties specified in Regulation 54 which such disciplinary authority shall be competent to impose;

(iii) whether the procedure laid down in Regulation 58 and Regulation 59 of Regulation 60 shall be followed in the proceeding."

It is, therefore, clear that the posts in the Corporation have been categorized into four categories and while in Appendix-I of the Regulations contains various categories of posts, scales of pay, mode of recruitment etc., Appendix-II of the Regulations discloses the appointing authority, the authority competent to impose penalties, the penalties which may be imposed and the Appellate Authority. Regulation 56 stipulates that either the Board or the authorities specified in Appendix-II or any other authority which is higher than the authority specified in Appendix-II and is empowered in this behalf by a general or special order of the Board, may impose any of the penalties specified in Regulation 54 on any employee.

It is not the case set up by either of the parties that the Board had empowered any other authority by a general or special order to impose the penalty and nor is it the case that the Board had passed the order imposing the penalty. It has,  therefore, to be seen whether the order imposing the penalty was passed by the authorities specified in Appendix-II of the Regulations.

Regulation 57 deals with the authority to institute disciplinary proceedings. It is either the Board or the authority competent to impose the punishment shown in Appendix-II or any other authority empowered in this behalf by general or special order of the Board. Regulation 62 deals with common proceeding. Regulation 62(1) provides that where two or more employees of the Corporation are concerned in any case, then the authority competent to impose the penalty of dismissal from service on all such employees may make an order directing the disciplinary action against all of them be taken in a common proceeding. The Note to Regulation 62(1) mentions that if the authorities competent to impose the penalty of dismissal on such employees are different then an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with the consent of the others.

In the present case,  three officials, namely,  the plaintiff, Sri A.R. Khan and Sri S.K. Gupta were involved. It is not in dispute that all the three officials who were Assistants belong to category III posts and that the authorities competent to impose the penalty upon employees belonging to  category III posts were the Joint Manager/Regional Manager/Senior Regional Manager. The Senior Regional Manager by the order dated 30.5.1979 (Ext. 9) directed that disciplinary action against the said three officials shall be taken in a common proceeding, that the procedure prescribed in Regulations 58 and 59 shall be followed and that the Senior Regional Manager shall function as the disciplinary authority for the purpose of common proceeding and shall be competent to impose the penalty prescribed in Regulation 54 of the Regulations. By another order dated 30.5.1979 (Ext. 8) Sri G.D. Sharma, Joint Manager was appointed as the Enquiry Officer. The Enquiry Officer submitted his report to the Senior Regional Manager on 7.6.1980. The plaintiff-respondent was found guilty of causing loss of 269 bags of sugar. This report was accepted by the Regional Manager who imposed the penalty of dismissal from service by the order dated 18.1.1981 (Ext. 13). The Trial Court upheld the order of dismissal from service and dismissed the Suit. Before the Appellate Court,  a preliminary issue regarding the competence of the authority who awarded the punishment of dismissal was taken up as a preliminary issue. The Appellate Court noticed that though the Regional Manager was competent to impose the penalty as he was also an authority mentioned in Appendix-II of the Regulations,  yet in view of the specific order dated 30.4.1979 issued by the Senior Regional Manager under Regulation 62 of the Regulations, it was only the Senior Regional Manager who could impose the punishment. The Appellate Court, therefore, set aside the judgment and decree of the court below and decreed the Suit for declaration.

Learned counsel for the appellants submitted that the Appellate Court misconstrued Regulation 62 of the Regulations inasmuch as in the present case all the three officials against whom common proceedings were taken belonged to the same category III and as such the the disciplinary authority was the same. He,  therefore, submitted that in such a situation any of the authority mentioned in Appendix-II of the Regulations could have imposed the punishment and as such the Regional Manager,  who was also mentioned as an authority to impose the punishment of dismissal,  was the competent authority.

Learned counsel for the respondent has, however, submitted that in view of the Note appended to Regulation 62(1) of the Regulations and in view of the provisions of Regulation 62((2) of the Regulations, the Senior  Regional Manager was justified in issuing the order dated 30.4.1979 (Ext. 9) mentioning therein that he shall function as the disciplinary authority for the purpose of such common proceeding. He, therefore, submitted that the Regional Manager was not the Competent Authority to impose the punishment.

I have carefully considered the submissions advanced by the learned counsel for the parties.

Regulation 62 deals with common proceedings against two or more than two employees of the Corporation who are concerned in any case. Regulation 62(1) clearly provides that in such a situation the authority competent to impose the penalty of dismissal from service on all such employees can make an order directing that disciplinary action against all of them may be taken in a common proceeding. Distinction has to be drawn between those cases where the disciplinary authority in respect of all the employees in common proceedings is same and those cases where the disciplinary authority is different. Disciplinary authority would be different  only where employees involved in common proceedings belong to different category of posts. Thus, in a case where the employees involved in common  proceedings belong to the same category any of the authority competent to impose the penalty of dismissal can issue directions for taking common proceeding against them. It is only in cases where the employees involved in common proceedings belong to different categories and the disciplinary authority mentioned in Appendix-II of the Regulations is different, that an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with the consent of the others and the order should specify which authority shall function as the disciplinary authority.

As seen above, in the present case all the three officials belong to category III and both the Regional Manager and the Senior Regional Manager were competent to issue the order for holding common proceedings against all the officials and thereafter pass the appropriate order imposing punishment. In such circumstances it cannot be said that since the Senior Regional Manager had passed an order for holding common proceedings, the Regional Manager was divested of his power to impose the penalty as he was also one of the officer competent to impose the punishment under Appendix-II of the Regulations. The Senior Regional Manager also could not have passed an order that he alone shall function as the disciplinary authority as that would take away the power of the Regional Manager to impose the punishment which power had been conferred upon him under Appendix-II of the Regulations. In my opinion, there is no difference in a case where only one employee is involved or where two or more than two employees are involved in a case if they all belong to the same category and the disciplinary authority is the same. Thus, if there is no requirement under the Regulations for notifying the authority which shall function as the disciplinary authority in a case where only one employee is involved but there are three authorities who can impose the punishment, then there cannot possibly be any reason for notifying the disciplinary authority when more than two employees belonging to the same category are involved in a case and common proceedings are taken against them.

Regulation 62 has, therefore, to be construed in such a manner that the  necessity to pass an order under Regulation 62 of the Regulations for mentioning the authority which shall function as the disciplinary authority for the purpose of common proceeding should arise only in a case where the employees belong to different categories of posts and the disciplinary authority mentioned in Appendix-II of the Regulations is different.

The Appellate Authority,  therefore, misconstrued Regulation 62 in coming to the conclusion that even in a case where all the officials involved in a common proceeding belong to the same category and the disciplinary authority was the same, then too an order was required to be passed under Regulation 62(2) of the Regulations and thereby the Senior Regional Manager alone was the competent authority to impose the punishment in view of the order dated 30.4.1979 (Ext. 9). The judgment of the Appellate Authority, therefore, cannot be sustained.

In view of the aforesaid findings, it is not necessary for me to examine  the other contention raised by the learned counsel for the appellants that the Suit itself was not maintainable in view of the decisions of the Supreme Court in the case of Rajasthan State Road Transport Corporation & Anr. Vs. Krishna Kant & Ors. (1995) 5 SCC 75,  State of Haryana & Ors. Vs. Bikar Singh, (2006) 9 SCC 450, Rajasthan State Road Transport Corporation & Ors. Vs. Zakir Hussain (2005) 7 SCC 447 and  Supreme Court in Rajasthan SRTC & Ors. Vs. Khadarmal (2006) SCC 59.

The Second Appeal, therefore, succeeds and is allowed. The judgment and decree of the Ist Appellate Court dated 17.12.1985 is set aside and Original Suit No. 215 of 1981 is dismissed.

Date:1.5.2007

GS/Sharma


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.