BALBIR CHANDversusTHE FOOD CORPORATION OF INDIA LTD. AND ORS.

A                       BALBIR CHAND
                              v.
          THE FOOD CORPORATION OF INDIA LTD. AND ORS.

                              DECEMBER 16, 1996

B               (K. RAMASWAMY AND G.T. NANAVATI, JJ.]

         Misconduct-Punishment for-Order passed by highest
  authority-Validity of-Food Corporation of India-Contract for transporta-
  tion of the f oodgrains-A notorious contractor who has earlier committed
C misappropriation obtained another Benami contract by impersona-
  tion-f'etitioner's failure in duty to verify the particulars-Charge of miscon-
  duct and dereliction of duty against petitioner and other employees-Conduct
  ofjoint enquiry-Order removing the petitioner from service-Order not passed
  by Zonal Manager who was competent to remove petitioner-lnstead order of
D removal passed by higher authority viz. Managing Director-Held order was
  valid-Such an order is not violative of Article 14.

         Surjit Ghosh v. Chainnan & Managing Director, United Commercial
    Bank, AIR (1995) SC 1053, held inapplicable.

E        Service Law-Number of delinquent employees-Conduct of joint en-
  quiry-Procedure for-lnstructions regarding-Need to split up enquiTy-Held
  disciplinary enquiry should not be equated as a prosecution for an offence in
  a criminal Court where the delinquents are arrayed as co-accused-In dis-
  ciplinary proceedings, the concept of co-accused does not arise-Therefore,
  each of the delinquents would be entitled to summon the other person and
F examine on his behalf as a defence witness in the enquiry or summon to
  cross-examine any other delinquent officer if he finds him to be hostile and
  have his version placed on record for consideration by the disciplinary
  authority-Under these circumstances, the need to split up the cases is ob-
  viously redundant, time consuming and dilatory-It should not be en-
G couraged-Therefore, there was no illegality in the action taken after conduct
  of joint enquiry.

         Service Law-Misconduct-Number of delinquent officers-f'unish-
  ment"J)arity-Held merely because one of the officers was wrongly given the
  lesser punishment compared to others against whom there is a proved mis-
H conduct, it cannot be held that. they too should also be given the lesser
                                        156
                      BALBIR CHAND v. F.C.I. LTD.                          157

punishment lest the same mistaken view would be repeated-Omission to ·A
repeat same mistake would not be violative of Article 14 and cannot be held
as arbitrary or discriminatory leading to misq1rriage of justice-It is open to
the appropriate higher authority to take appropriate decision according to law.

     Service Law-Public servant-Need for opennes and accountability in
conducting the public dealings-Personal recovery of loss from erring officials.   B
     CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
No. 23981 of 1996.

     From the Judgment and Order dated 16.8.96 of the Punjab &
Haryana High Court in W.P. No. 12340 of 1996.                                     C

           -
      V. Shekhar for the Petitioner.

      The following Order of the Court was delivered:

     This special leave petition arises from the order of the Division            D
Bench of the Punjab & Haryana High Court, made on August 16, 1996 in
CWP No. 12340/96, dismissing the petition in limine.

       While the petitioner was working as Manager in the Food Corpora-
tion of India, Chandigarh Office, one Rajinder Singh Rana impersonating
himself as Harjit Singh son of Ajit Singh, had succeeded in obtaining a           E
contract with the Corporation for the year 1992-93 for transportation of
the foodgrains. The petitioner's duty was to verify the particulars furnished
with the tender and to submit the same to t!te competent authority for
talcing decision in that behalf. In the verific11J!P1!- report submitted by the
petitioner, he had stated that Harjit Singh had produced a bank account           F
with balance of Rs. 200 while the certificate obtained by Harjit Singh
allegedly from the Bank authorities, dated February 4, 1992 revealed "the
balance of Harjit Singh as 56,400. As regards the value of residential House
Building, the approved Designer and Architect had evaluated it. It was also
stated that "the party holds a good reputation in the city''. On that basis,
the contract was obtained, but subsequently it was discovered that the said       G
Harjit Singh son of Ajit Singh who obtained the contract was no other than
Rajinder Singh Rana who misappropriated 1400 MT of superfine rice
delivered to him for transportation ex-Khanna to Assam by road. Based
thereon, disciplinary action was initiated against the petitioner and others
for their dereliction of duty and misconduct in their failure to submit the       H
    158           r   \r SUPREME COURT~EPORTS[1996] SUPP.10 S.C.R.
A   report truthfuµy. After conduct of joint enquiry against all the officers,
    authority took decision that the petitioner be removed from service. Ac-
    cordingly, he was removed. On appeal, it was confirmed by the Board in
    the proceedings dated April 26, 1996 in an elaborate order running into 19
    typed pages. The High Court has dismissed the petition in limine. Thus,
B   this special leave petition.

           The learned counsel for the petitioner has raised the contention that
    since the petitioner was required to be dismissed by the disciplinary
    authority, namely, Zonal Manager, who alone is competent to remove him,
    the order of dismissal passed by the Managing Director is bad in law. In
C   support thereof, he placed reliance on a judgment of this Court in Surjit
    Ghosh v. Chainnan & Managing Director, United Commercial Bank, AIR
    (1995) SC 1053. It is an admitted position that as a joint enquiry was
    conducted against all the delinquent officials, the highest in the hierarchy
    of competent authority who could take disciplinary action against the
D   delinquents was none other than the Managing Director of the Corpora-
    tion. In normal circumstances where the Managing Director being the
    appellate authority should not pass the order of punishment so as to enable
    the delinquent employee to avail of right of appeal. It is now well settled
    legal position that an authority lower then the appointing authority cannot
    take any decision in the matter of disciplinary action. But there is no
E   prohibition in law that the higher authority should not take decision or
    impose the penalty as the primary authority in the matter of disciplinary
    action. On that basis, it cannot be said that there will be discrimination
    violating Article 14 of the Constitution or causing material prejudice. In
    the judgment relied on by the counse~ it would appear that in the Rules,
F   officer lower in hierarchy was the disciplinary authority but the appellant
    authority had passed the order removing the officer from service. Thereby,
    appellate remedy provided under the Rules was denied. In those cir-
    cumstances, this Court opined that it caused prejudice to the delinquent
    as he would have otherwise availed of the appellate remedy and his right
    to consider his case by an appellate authority on question of fact was not
G   available. But it cannot be laid as a rule of law that in all ..;ircumstances
    the hight;r authority should consider and decide the case imposing penalty
    as a primary authority under the Rules, In this case, a right of second
    appeal/revision also was provided to the Board. In fact, appeal was
    preferred to the Board. The Board elaborately considered the matter
H    through the Chairman. It is not violative of Article 14 of the Constitution.
                      BALBIR CHAND v. F.C.I.
                                       I
                                             LID.                        159

       It is next contended that a circular was issued by the Department on A
May 13,1980 regarding splitting up of an enquiry and while para 2 indicates
the procedure to be followed, para 3 (ii) indicates as to when the split of
the case would be ordered and sub-para (iii) envisages that it would be
advisable to issue one cpmmon charge-sheet against all the charged offi-
cials. It is further envisaged in the Department's Circular thus :          /

                                                                                B
         "Whenever common proceedings are initiated against two or more
         than two FCI employees, such common proceedings have to be
         ordered by the Disciplinary Authority competent to impose the
         major penalty of dismissal upon the senior most FCI employee
         involved in that case. This naturally means that the inquiring         C
         authority would submit his r~port of inquiry in such common
     1
         proceedings to that particular disciplinary authority, for final or-
         ders in the case thereby depriving the junior officials involved of
         one or more avenues of appeals as also petition for review.
                                                                                D
         In case of such common proceedings, if the inquiry report or a
         copy thereof is forwarded to the lower Disciplinary Authorities,
         competent to impose penalties upon such junior officials, it has in
         several instances resuhed in imposition of varying punishments by
         different authorities to different individuals on the same charges. E

         This position has been carefully examined with reference to the
         various instructions issued by the Government of India in this
         regard and it has been decided to follow the guidelines mentioned
         hereunder:
                                                                                F
         (i) There has been a apprehension as to the actual meaning of
         common proceedings and joint proceedings. It is hereby ch.rified
         that the terms 'common proceedings' and 'joint proceedings' are
         synonymous and in fact there is no difference between the two.
                                                                                G
         (ii) Whenever two or more employees are involved in a particular
         disciplinary proceedings and when one charged official cites the
         other as a witness in his case, the proceedings cannot be conducted
         as common/joint proceedings. In such contingencies, the general
         principles laid down by the courts is that the charged official in H
                                                                                    [
    160                  SUPREME COURT REPORTS[1996) SUPP. 10 S.C.R.

A           cross cases should be tried separately and that both the inquires
            should he held simultaneously, so as to avoid conflicting findings
            and different appraisal of the same evidence, by different inquiring
            authorities.


B           (iii) While initiating common proceedings it would be rememberecl
            that such proceedings should be ordered only as a last resort an"a
            in case such proceedings are ordered, the charge should be also
            common against all the charged officials involved. In other words,
            it would be advisable to issue one common charge-sheet against
c           all the charged officials. The concerned Disciplinary Authority
            should examine the desirability of conducting a common inquiry
            before taking a decision in this regard so that the issue of separate
            charge-sheets could be avoided. After the enquiry is over in com-
            mon proceedings, the concerned disciplinary authority should take
            a decision against the charged employees of considering the gravity
D
            of the misconduct by such of the concerned officials. However,
            cases of all the officials should be disposed off by the authority
            ordering the common proceedings to. ensure that same standards
            are applied in case of all the officials concen;1ed."

E
        It is contended that when one delinquent officer seeking to summon
  other delinquent who is charged on the common cause of action or for the
  misconduct committed during the course of the same transaction or to
  summon more than one officer jointly, the petitioner should be given an
  opportunity of splitting up the matter and to contend that common enquiry
F has thereby caused grave prejudice to the petitioner denying him the
  opportunity to summon the officer to substantiate his defence. We find no
  force in the contention. It is seen that these are only instruction in con-
  ducting the proceedings as guidelines. When more than one delinquent
  officer are involved, then with a view to avoid multiplicity of the proceed-
G ings, needless delay resulting from conducting the same and overlapping
  adducting of evidence or omission thereof and conflict of decision in that
  behalf, it it always necessary and salutary that common enquiry should be
  conducted against all the delinquent officers. The competent authority
  would objectively consider their cases according to Rules decide the matter
H expeditiously after considering the evidence to r_ecord findings on proof of
                     BALBIRCHANDv. F.C.I.LTD.                           161

misconduct and proper penalty on proved charge and impose appropriate A
punishment on the delinquents. If one charged officer cites another
charged officer as a witness, in proof of his defence, the enquiry need not
per se be split up even when the charged officers would like to claim an
independent enquiry in that behalf. If that procedure is adopted, normally
all the delinquents would be prone to seek split up of proceedings in B
their/his bid to delay the proceedings, and to see that there is conflict of
decisions taken at different levels. Obviously, disciplinary enquiry should
not be equated as a prosecution for an offence in a Criminal Court where
the delinquents are arrayed as co-accused. In disciplinary proceedings, the
concept of co-accused does not arise. Therefore, each of the delinquents C
would be entitled to summon the other person and examine on his behalf
as a defence witness in the enquiry or summon to cross-examine any other
delinquent officer if he finds him to be hostile and have his version placed
on record for consideration by the Disciplinary Authority. Under these
circumstances, the need to split up the cases is obviously redundant, time
consuming and dilatory. It should not be encouraged. Accordingly, we do D
not fmd any illegality in the action taken.

       It is further contended that some of the delinquents were let off with
a minor penalty while the petitioner was imposed with a major penalty of
removal from service. We need not go into that question. Merely because         E
one of the officers was wrongly given the lesser punishment compared to
others against whom there is a proved misconduct, it cannot be held that
they too should also be given the lesser punishment lest the same mistaken
view would be repeated. Omission to repeat same mistake would not be
violative of Article 14 and cannot be held as arbitrary or discriminatory       F
leading to miscarriage of justice. It may be open to the appropriate higher
authority to look into the mater and take appropriate decision according
to law.

      Present one is a case of a notorious contractor known to have
committed on earlier occasions misappropriation in relation to the Cor- G
poration property; he sought and obtained another benami contract in the
l!ame of other persons by impersonation. Obviously all those who had prior
knowledge of the contractor and had earlier dealt with him should have
taken proper care to point out to the higher authorities the true facts so
as to enable the concerned authorities take necessary decision. Account- H
    162                  SUPREME COURT REPORTS[1996] SUPP. 10 s.c.~.

A ability and openness is an imperative in conducting public dealings, lest
    they/he become/s abettor to perpetrate offences. This case is apart from
    pending. suit to recover about Rs. 16 lacs from the erring officials. They
    would became privy to the abetment of impersonation by the contractor
    and appropriate action is required to be taken against him according to
B   law.

          The Special Leave Petition is accordingly dismissed.

    T.N.A.                                                 Petition dismissed.




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