Judgment:
B.C. Patel, C.J.
1. It is a matter of sorrow that this petition, filed in the year 1981, has been pending for such a long time, particularly, when the petitioner was out of job and, in our opinion, without any fault on his part, as no opportunity was given to him to defend his case by the employer-Food Corporation of India (for short, the FCI).
2. The petitioner joined the service of FCI in the year 1973. From the record, it transpires that he was given the responsible job of finance and he was registered as a financial expert for assignments in foreign countries in July, 1975. Not only that, his name was sponsored and he got the job as financial expert in the Republic of Zambia. The Government of Zambia officially requested the Managing Director of the respondent FCI and, as per the petitioner's say, the respondent agreed to lend the services of the petitioner vide letter dated 25.1.1977. For some reasons he came back in 1977 and on a request being made he was allowed to join on his permanent post in the respondent Corporation. The petitioner has placed on record the letter dated 5.12. 977 as Annexure P3. The letter clearly states as under :
''Shri Khosla, will be treated as having joined the Corporation on return from foreign assignment at Zambia only from the date he assumes charge of the post of Manager (Acs) in the Zonal office ( East). He will not be entitled to any transfer T.A. from Food Corporation of India.''
3. It seems that when he was at Zambia, there was some one after him and even after his return to India, the said person maligned him by writing letters to the FCI. It is also stated at the Bar that the person who was found responsible for such aces of omission/commission has also been relieved by the Corporation and his petition filed in this Court has also been dismissed.
4. The tenor of the affidavit filed by FCI indicates that, without application of mind, the Board made an order and that too without hearing the petitioner terminating his services by paying three months salary. In the affidavit, there is reference to his family affairs with which the FCI was not concerned and if at all the FCI was of the view that the same was liable to be taken into consideration, it was obligatory upon them to hear the petitioner before passing an adverse order.
5. The respondent's affidavit at page 95 of the paper book, while referring to the earlier complaint based on the petitioner's matrimonial life, it is stated as under :
'Shri K.V. Seshadari, the Managing Director did not agree to taking up any action against the petitioner on any allegation based on his personal life and noted : '' Every person is presumed in our law to be innocent unless the contrary is proved in the competent Court''.'
6. The then Chairman of the FCI had also noted:
'' Clearly, it is not for us to take action, when the case against him is yet to be proved. However, we have to keep the totality of his conduct and reputation (even in private matters) in any matter of promotion etc.''
7. It is further stated that in 134th meeting of the Board dated 16.2.1981, the agenda item was discussed and a comprehensive note on the petitioner was asked to be prepared for consideration in the next meeting. The deponent in this affidavit on behalf of FCI has stated that he investigated the matter and gathered relevant facts and prepared a note on 12.3.1981 for the Board of directors. In para 11 of the Investigation Report it is stated as under:
''11. The activities of Shri Khosla became the subject matter of a number of complaints from various sources to the Central Vigilance Commission who had asked for a detailed report on the case from the Corporation. This case was examined in depth by the Commission and at the instance of the Corporation the Commissioner reluctantly decided to close this matter against Shri Khosla?''
8. Thus, it is very clear that the Commission reluctantly decided to close the matter against the petitioner. Thereafter, his personal affairs were taken into consideration and were placed before the Board. In para 13, it also indicated that while in Zambia the petitioner was arrested and was kept in prison for over a week before he was deported to the country. However, the report submitted by the Indian High Commission indicates that the deportation was due to his involvement in the Court cases of a criminal nature in this country. As already indicated, there were complaints filed against the petitioner because of family disputes. However, there is nothing to indicate that anything was done by him at Zambia which would compel the FCI to terminate his services without giving him an opportunity of hearing. Allegations were also made that there were some financial irregularities and thereforee he was deported. But, all this is stated without any documentary evidence. It is worthwhile to note that the deponent on behalf of the respondent has tried to suggest that as per information received from the Interpol, the name of the petitioner had been placed in the list of prohibited persons whose entry was not permitted in Zambia. No evidence worth acceptance has placed on record. What is more important, no such material was given to the petitioner before taking action against him. The Board without giving him any opportunity of hearing terminated his services.
9. The grievance made by the petitioner is that he also filed an appeal but till today he has not heard anything about the appeal filed by him. It is in this backdrop, that this petition is required to be decided.
10. It is clear that in this case the well-known principle of audi alterem partem has been given a go-bye and, in our opinion, following a draconian regulation, the services of the petitioner have been terminated. The relevant provision of the service regulations-Food Corporation of India (Staff) Regulations, 1971 dated 30-4-1971, framed under the Food Corporation of India Act, 1964 -- being Regulation 19 (1) thereof, which reads as under:
''19.Termination of service and discharge: (1)The services of any employee who has been appointed on a regular basis to any post in the Corporation and has satisfactorily completed his period of probation may be terminated by the competent authority on giving such employee 90 days notice or pay and allowances in lieu thereof.''
11. In the case of Central Inland Water Transport Corporation Ltd v. Brojo Nath, : (1986)IILLJ171SC , the Supreme Court had an occasion to examine a similar provision which was incorporated in Rule 9(1), which is reproduced in para 9 at page 1578 of the said judgment and it reads as under:-
''9. Termination of Employment for Acts other than Misdemeanors.
(i) The employment of a permanent employee shall be subject to termination on three months' notice on either side. The notice shall be in writing on either side. The company may pay the equivalent of three months basic pay and dearness allowance, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice''.
In para 100, the Supreme Court pointed out as under:-
100. The power conferred by Rule 9(i) is not only arbitrary but is also discriminatory for it enables the Corporation to discriminate between employee and employee. It can pick up one employee and apply to him clause (i) of Rule 9. It can pick up another employed and apply to him clause (ii) of Rule 9. It can pick up yet another employee and apply to him sub-clause (iv) of clause (b) of Rule 36 read with Rule 38 and to yet another employee it can apply Rule 37. All this the Corporation can do when the same circumstances exist as would justify the Corporation in holding under Rule 38 a regular disciplinary inquiry into the alleged misconduct of the employee. Both the contesting Respondents had, in fact, been asked to submit their Explanationn to the charge made against them. Sengupta had been informed that a disciplinary inquiry was proposed to be held in his case. The charges made against both the Respondents were such that a disciplinary inquiry could easily have been held. It was, however, not held but instead resort was had to Rule 9(i).
The Supreme Court, in para 113 of the said report, held as under:-
''113. In the result, both these Appeals fail and are dismissed but the order passed by the Calcutta High Court is modified by substituting for the declaration given by it a declaration that clause (i) of Rule 9 of the ''Service, Discipline and Appeal Rule 1979'' of the Central Inland Water Transport Corporation Limited is void under S. 23 of the Contract Act, 1872, as being opposed to public policy and is also ultra virus Art. 14 of the Constitution to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months notice in writing or by paying him the equivalent of three months basic pay and dearness allowance in lieu of such notice.''
12. Regulation 32-A of the said Regulations describes misconduct which are of 38 different nature. Regulation 52 provides penalty of different nature including major and minor and for institution of disciplinary proceedings. There is specific provision for imposing major penalties. Regulation 59 provides for action on the enquiry report. Regulation 60 provides for procedure for imposing minor penalties. Special procedure is prescribed in certain cases. Regulation 66 provides for suspension Thus, the provision is not only arbitrary, but is also discriminatory for it enables the FCI to discriminate between an employee and an employee. In view of what is pointed out by the Supreme Court in paras 100 and 113 of the judgment in the case of Central Inland Water Transport Corpn ( supra), Regulation 19(1) is arbitrary.
13. In the instant case, not only the respondent- Corporation gave no opportunity to the petitioner, but pressed into service the said Regulation 19(1) which is arbitrary. In our opinion, in view of the decision of the Supreme Court, the impugned Regulation 19(1) is void in terms of Section 23 of the Contract Act, 1872 as being opposed to public policy and is ultra virus Article 14 of the Constitution of India to the extent it confers unfettered powers upon FCI to terminate the service of a permanent employee by merely giving him three months notice in writing or pay equivalent to three months basic pay or dearness allowance in lieu of such notice. Thus, the impugned Regulation 19(1) is required to be struck down as being vocative of Article 14 of he Constitution of India.
14. Returning to the facts and circumstances of the present case, the question of relief to the petitioner needs to be considered. The petitioner has crossed the age of superannuating and there is no question of directing the respondent to reinstate the petitioner. However, the ends of justice would be met if a direction is given to the FCI to treat the petitioner as having been in service and entitled to all consequential benefits. It is so directed. These benefits, which have already accrued trim, shall be given to him within a period of two months. No doubt, whatever amount is paid by the FCI under the earlier orders of the Court will have to be adjusted and the balance amounts will be paid along with simple interest at 8% from the dates when he was entitled to get the same on yearly basis. Future benefits such as pension etc., if any, shall be paid to the petitioner as and when they become due. We allow this petition with costs in favor of the petitioner and against the respondent -FCI. these costs are quantified at Rs. 20,000/-.
15. It has been stated at the bar on behalf of the petitioner that throughout the period following his termination till date he has not been employed elsewhere and with a view to survive he was compelled to dispose of his two plots-one at Delhi and another at Faridabad. He lived on the money received there from and on investments made by him. The Petitioner is directed to file an affidavit to this effect. A copy of the affidavit duly signed by the petitioner and attested by his counsel shall be form shed to the counsel for the respondent within two weeks.