V.D. Seth Vs. Food Corporation of India - Court Judgment

Excerpt:
criminal - misconduct - section 5 of prevention of corruption act, section 161 of indian penal code and regulation 70 of food corporation of india (staff) regulations, 1971 - by impugned order of 17.01.1989 review of order by which petitioner was exonerated in 1985 and fresh enquiry in matter directed - whether impugned order dated 17.01.1989 passed within reasonable time - facts revealed petitioner involved in case of accepting illegal gratification on 21.07.1982 - charges framed against petitioner served on 01.12.1983 - incident against petitioner was of 1982 and review order passed more than 6 years after date of incident - delay on part of authority to review order of exoneration resulted in breach of implied obligation to pass such order within reasonable time - impugned order bad on account of having passed as result of order of food minister and not in exercise of his own quasi judicial power. - - after he earned one increment, the petitioner was given promotion by order dated 30.1078. this promotion was enjoyed by the petitioner for about 2' years and while working on higher post review proceedings were taken on 27.4.81. it was held that the proceedings were not initiated within the reasonable time especially when the authorities had even given promotion to the petitioner. in this way i am clearly of the view that the delay on the part of the appropriate authority to review the order of exoneration resulted in the breach of its implied obligation to pass such order within a reasonable time. in these circumstances i am clearly of the view that the impugned order has been passed in violation of the principles of natural justice. this order was held to be bad. holding that it amounted to usurping the quasi judicial power of registrar by the chief minister, order was held to be bad. in these circumstances the impugned order dated 17th january, 1989 is bad on account of having been passed by the chairman, respondent no.v.b. bansal, j.(1) petitioner joined govt. of india in 1958. he was transferred to food corp. of india in 1969. he became dy manager in 1977. in 1982, he was working as distt. manager and was alleged to have taken bribe. he was charged with misconduct u/reg. 31, 32 of fci (staff) regulations. enquiry was begun on 17.2.84 and concluded on 25.5.85, when govt. was not allowed further time to produce evidence & its case was closed. petitioner was exonerated and re-instated. in aug., 88, he was promoted. then in jan., 89, chairman of fci ordered u/reg. 74, review of the order of 1985 by which petitioner was exonerated and ordered holding of enquiry by examining witnesses who were earlier not allowed to be examined. petitioner challenged this by filing w.p.] after detailing above, judgment is :(2) the most important question now to be considered is as to whether the impugned order dated 17.1.89 has been passed by the chairman, fci within a reasonable period. it may be noted that the petitioner was involved in a case of accepting illegal gratification on 21.7.82. charges framed against the petitioner on 10,10.83 were served upon him on 1.12.83. the inquiry proceedings were commenced on 17.2.84 and report was submitted by the inquiry officer to the appropriate authorities on 3.3.86. the inquiry report was accepted by the zonal manager, respondent 4 and thus the petitioner was exonerated of the charges framed against him. the petitioner was at that time working as a manager. on the basis of selection made by the promotion committee headed by the chairman of respondent 1, the petitioner was promoted as joint manager on 9.8.88. it is only thereafter that the impugned order has been passed on 17.1.89 the question now thus is as to whether this order has been passed within a reasonable period or not. after giving my due thought to all these submissions in this regard i have no hesitation in coming to the conclusion that the order is not passed within a reasonable period and so it has to be held to be beyond limitation and thus cannot be sustained. it is apparent from the records that the zonal manager (north) examined the inquiry report and other relevant records and found that there were numerous contradictions in the testimony of the main witness of the department namely mumtaz ali. the finding of the inquiry report was accepted. copies of this order were sent to many including personnel manager, fci hqrs , the confidential report cell, fci, the establishment-1 section, fci, for personal file and the chief vigilance officer. it is also to be noted that in its meeting dated 4.7.88 the senior promotion board headed by the chairman of the fci considered the numbers of merit/seniority and on the basis of grading assigned to them selected 16 persons for promotion to the post of joint manager (general) and the name of the petitioner appeared at sl. no. 6. this list of the officers was approved by the executive committee of the fci on 29.7.88. it would, thus be clear that the factum of the petitioner having been involved in a case of accepting illegal gratification, his suspension, his facing departmental inquiry and being exonerated of the charges must have been before the said promotion committee headed by the chairman of the fci. it is thus clear that after the approval of the exoneration of the petitioner the order was even acted upon inasmuch as the petitioner was given his promotion due to him. it is more than 5 months after this promotion that the impugned order reviewing the order dated 17.1.89 exonerating the petitioner of the charges was passed. this order, thus cannot be said to have been passed within a reasonable period. i find support for this view from the case mahadeo prasad gautam 1986 (1) slr. 306. in the said case the penalty of withholding one increment with cumulative effect was passed on 26.11.77 and the petitioner was simultaneously reinstated. after he earned one increment, the petitioner was given promotion by order dated 30.1078. this promotion was enjoyed by the petitioner for about 2' years and while working on higher post review proceedings were taken on 27.4.81. it was held that the proceedings were not initiated within the reasonable time especially when the authorities had even given promotion to the petitioner. thus the order of initiating the review proceedings was held to be arbitrary and set aside. similar have been the facts of the present case and the authority passing the impugned order had an opportunity to go through the records and the petitioner was even given promotion. the incident against the petitioner was of 1982 and the review order was passed more than 6 years after the date of the incident. in this way i am clearly of the view that the delay on the part of the appropriate authority to review the order of exoneration resulted in the breach of its implied obligation to pass such order within a reasonable time. (3) the matter can also be examined from another angle. the grievance of respondents no. 1 to 3 has been that the (1.0.) did not permit the presenting officer to lead evidence which the department wanted to produce to prove the charges against the petitioner and this was the reason (or the reviewing authority to take decision that (he proceedings should be started afresh and the 10 should give a report alter recording evidence of the five witnesses not allowed to be produced by the 1.0. claim of the petitioner has been that the 1.0. vide order dated 18lh may, !985 closed the evidence of the deptt. declining to give adjournment for producing the five witnesses in which detailed reasons have been given. on an application moved by the presenting officer for adjournment to produce five witnesses another detailed order was passed by the 1.0. on 21.5.85 vide which the prayer was declined. javed siraj, the presenting officer was informed by m.s. yadav. manager vigilance, vide letter dated 21st may, 1985 that the 1.0. being the quasi-judicial authority is the final authority to decide the issue raised before him and that it would be appropriate for him to approach the 1.0. for the review of his order. this letter was issued by the manager vigilance with the concurrence of the m.d. it may also be noted that para-31 of the affidavit of p.l. meena, inspector c.b.i. filed on behalf of respondents 8 and 9 contains categorical statement that : 'respondent no. 1 had asked the food corp. of india to review the matter in the interest of justice. it is also admitted that the food corporation of india did not agree' it is thus clear that there was no material being discovered by the chairman to pass the impugned order or review when already a prayer in this regard made by the c.b.i, was turned down by the fci. on this account also it can safely be said that the order of review has been passed beyond reasonable time and on this account also it cannot be sustained. (4) learned counsel for the petitioner has submitted that the impugned order has been passed by the respondent no. 2 in violation of principles of natural justice inasmuch as no opportunity was given to the petitioner of being heard before setting aside the order of exoneration. he has, thus, submitted that a vested right of the petitioner has been taken away to his prejudice and on this account also the impugned order is liable to be set aside. learned counsel for the respondents has however submitted that no punishment, in fact, has been awarded to the petitioner and vide impugned order the 1.0. has only been asked to record the statements of the witnesses not allowed to be examined by the 1.0. earlier. he has also submitted that the 1.0. would be giving a fresh report and the petitioner would have the full opportunity to cross examine the witnesses and making submissions and support his plea of innocence. he has, thus, submitted that it is premature stage and no opportunity was required to be given of being heard to the petitioner at this stage. i am afraid i cannot agree with this submission made by ld. counsel for the respondents. there is no doubt that the proviso to clause (2) of regulation-74 provides that no order imposing or enhancing any penalty shall be made by the reviewing authority unless the employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed. technically it can be said that no penalty in fact has been imposed upon the petitioner vide impugned order. however as already referred to after the order of exoneration the petitioner has been promoted and the chapter about inquiry stood closed. by setting aside the order of exoneration the impugned order has now required the petitioner to face further one ordeal of inquiry in which the order holding him guilty of the charges could be passed. it is, thus clear that the impugned order is prejudicial to the petitioner which has been passed without giving him an opportunity of being heard. the question as to whether the requirement of natural justice is met by the procedure adopted in the cases must depend 10 a great extent on the facts and circumstances of a case keeping in view the relevant provisions applicable. the order of exoneration having been set aside the petitioner, in my view, is right in his claim that an order detrimental to his interest has been passed without giving him an opportunity of being heard natural justice is fair play in action and it has to apply to both quasi-judicial and administrative functions. there can possibly, bs no dispute that if the duty to act fairly is equated with natural justice then the distinction between the judicial or quasi-judicial and administrative functions loses its validity and no such order can be passed to the detriment of an individual without giving him an opportunity even in administrative functions. in the instant case chairman, has passed the impugned order in exercise of the quasi-judicial power available to him under reg.-74 of the regulations learned counsel for the petitioner has rightly submitted that if an opportunity had been given to him the petitioner could urge before the reviewing authority the grounds available to him against the exercise of the power of review in the instant case. ld. counsel submitted that the plea having already been raised and rejected by the 1.0. non-giving of any direction by the m.d. and the confirming of the inquiry report with reasons by the disciplinary authority, coupled with fact that earlier the request of the c.b.i. for review of order of exoneration having already been declined to fci. in these circumstances i am clearly of the view that the impugned order has been passed in violation of the principles of natural justice. on this account also it cannot be sustained. (5) learned counsel for the petitioner has submitted that the petitioner was working as deputy manager when faced the inquiry till he was exonerated. he has further submitted that at the time of passing of the order of review dated 17.1.89 the petitioner was working as a joint managing (general) and at that time the appellate authority of the petitioner was the chairman and so the impugned order could be passed by the board only and not by the chairman. there is no dispute with regard to the legal proposition that an order of review has to be passed by an authority senior to the appellate authority. the question, however, for consideration, is as to whether in the instant case the appellate authority was the m.d. or the chairman, of the fci. it is not disputed that on 27th may, 1986 the disciplinary authority of the petitioner was the zonal manager and the appellate authority was the md. in this way the authority competent to review the order of exoneration could be the chairman. admittedly the appointing authority for category-1 officers is the m.d. and the appellate authority is the chairman and thus the order of review can be passed by the board. in the instant case the order of exoneration dated 27th may, 1986 was under review and so the authority competent to review this order would be authority who was competent to do so at the relevant time. merely because the petitioner was promoted subsequently and was working on a higher post on 17.1.89, in my view, cannot be material so as to debar the authority competent to pass an order of review. in these circumstances i hold that chairman of fci was competent to exercise the power of review. (6) learned counsel for the petitioner has also submitted that the impugned order dated 17.1.89 has been passed by the chairman on the basis of a direction by the central govt. and, thus he has not exercised the quasi- judicial powers vested in him of his own and on this account also the impugned order is liable to be quashed. in support of this submission he has referred to an order of 2.9.1988 of minister of food noticed by him at the time of inspection of the relevant files under court orders. learned counsel for the respondents has placed on record a copy of the nothings along with the order dated 29.9.1988 of the minister of food. a perusal of this document leaves no doubt that the main ground found against the enquiry was the refusal by the enquiry officer to give adjournment to enable the presenting officer to produce the witnesses & a wrong approach that proof beyond reasonable doubt was necessary for proving charge in a departmental enquiry. there has been a specific order of the minister to reopen the case and the officer be proceeded against if the facts are substantiated by circumstantial and other evidence. (7) as already discussed that power of review is a quasijudicial power and has to be exercised by the authority competent to do so under the rules. courts have never relished the idea of issuing administrative instructions to control the discretion of the quasi judicial authorities in a particular case. where the rule of law prevails it is not open to the govt, to control the functioning of a quasi judicial authority and to direct it to decide a particular matter before it in a particular manner. there could be general instructions. however no specific directions could be given to decide a matter in a particular way. i may at this stage refer to purtapur co. ltd. vs . cane commissioner : [1969]2scr807 . in this case the cane commissioner passed an order at the instance of the chief minister though he was required under the rule to pass an order of his own in exercise of the quasi judicial powers vested in him. this order was held to be bad. similarly in case chandrika jha vs . state : [1984]1scr646 , quasi judicial powers vested in the registrar was exercised by him at the instance of chief minister. holding that it amounted to usurping the quasi judicial power of registrar by the chief minister, order was held to be bad. (8) there is no doubt that the order of the minister was to the board while the impugned order has been passed by the chairman. this, however, would not make any difference. once an order is given to the superior authority, the authority subordinate to it will have no option but to comply with it. this order of the minister can by no stretch of imagination be considered to be only a suggestion as submitted by learned counsel for the respondents. in these circumstances the impugned order dated 17th january, 1989 is bad on account of having been passed by the chairman, respondent no. 2 as a result of the order of the food minister and not of his own in exercise of the quasi judicial powers. (9) after the passing of the impugned order enquiry officer and presenting officer have been appointed by the competent authorities. as the order of review dated 17.1.89 is set aside, the other orders appointing the enquiry officer and presenting officer would not survive.