Anil Kumar Prasad vs Food Corporation Of India & Ors

Amrita Sinha, J

The petitioner is an employee of the Food Corporation of India (FCI). He was appointed in the year 1997. In the year 2004 the petitioner was served with a charge sheet and by an order dated 5th October, 2005 the disciplinary authority imposed the penalty of dismissal of the petitioner from service.

The petitioner challenged the aforesaid order of dismissal by filing a writ petition before this court. The said writ petition being W.P No. 21536 (W) of 2005 was disposed of by an order dated 29th January, 2014 by setting aside the impugned order of dismissal. The court made it clear that the respondents may take such steps pursuant to the inquiry report in accordance with the law within a stipulated time failing which the petitioner will be entitled to the consequences of setting aside the order of dismissal.

In compliance of the order passed by this court on 29th January, 2014 the respondents revisited the issue of the petitioner and by an order dated 8th July, 2014 the Deputy General Manager (R) exercised powers under Regulation 66(4) of FCI (Staff) Regulations 1971 and allowed the petitioner to resume his duties. The petitioner was reinstated with immediate effect.

By the said order the Deputy General Manager (R) ordered that the period from the date of dismissal of the petitioner i.e. from 5th October, 2005 till the date of the order passed by the Hon'ble Court i.e. 29th January, 2014 be treated as period under deemed suspension and further ordered that the suspension period may be regularised by granting leave due or extraordinary leave and the period from 30th January, 2014 till the date of reinstatement be treated at period on duty without any back wages as the petitioner did not render any service to the Corporation during the material period.

By virtue of the aforesaid order of reinstatement the petitioner was allowed to join duty on 11th July, 2014. The period of leave of the petitioner was regularised by an office order dated 15th October, 2014 which was subsequently modified by an order dated 30th October, 2014. The respondents fixed the pay of the petitioner by an office order dated 19th February, 2015.

Being aggrieved by his pay fixation the petitioner made a representation to the Executive Director (Zone) of the FCI. As his representation was not considered the petitioner gave a reminder on 17th June, 2015.

By a further representation dated 24th September, 2015 filed before the Chairman and Managing Director of the Corporation the petitioner prayed for regularisation of his service and for grant of consequential benefits in terms of the order passed by the Hon'ble Court on 29th January, 2014.

Challenging the erroneous fixation of pay the petitioner has filed the present writ application. The petitioner has prayed for a direction upon the respondent authorities to treat his service from 5th October, 2005 to 11th July, 2014 as continuous and without any adjustment by debiting the leave to his credit. The petitioner has also prayed for a direction upon the respondent authorities to grant full back wages with all incremental benefit of revised scale for the period of his absence from service. The petitioner has also prayed for restoring his seniority.

It has been submitted that the period of absence ought to be treated as on duty. The petitioner was never suspended from service. According to Regulation 66(4) there is no scope for treating the period of absence from service as deemed suspension. The moment the petitioner is reinstated upon setting aside the order of dismissal the petitioner is entitled to the entire back wages and all consequential reliefs. The respondents committed error by dismissing him from service. The respondents cannot take advantage of their own wrong. The petitioner never applied for leave and accordingly the period of absence cannot be regularised by granting leave or extraordinary leave.

The learned advocate appearing on behalf of the respondent authorities submits that the petitioner accepted the order of reinstatement and joined service in the year 2014. Had the petitioner been aggrieved with the direction passed in the said order for regularisation of his period of absence by treating the same as deemed suspension then the petitioner ought to have preferred appeal against the said order. The petitioner could have availed the provision of review. The petitioner cannot take advantage of the conditional order of reinstatement and thereafter challenge the same.

The respondents rely upon Regulations 66(8) and 70 of the FCI (Staff) Regulations 1971. It has been submitted that according to Regulation 74 there is a provision for preferring an application for review. It has been argued that the FCI acted strictly in accordance with the direction passed by the Hon'ble Court in the earlier writ petition. The respondents pray for dismissal of the writ petition.

I have heard the submissions made on behalf of both the parties.

Regulation 66 of the said Regulations deals with suspension. Regulation 66(1) provides that the appointing authority or the disciplinary authority by general or special order may place an employee under suspension (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where in the opinion of the authority the employee has engaged himself in any activity prejudicial to the interest of the security of the State or (c) where a case against the employee in respect of any criminal offence is under investigation, inquiry or trial.

Regulation 66(2) states that an employee shall be deemed to have been placed under suspension by an order of the appointing authority (a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours (b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding 48 hours and is not forthwith dismissed or removed or compulsorily retired on such conviction.

Regulation 66(3) mentions that where a penalty of dismissal from service imposed upon an employee under suspension is set aside on appeal or on revision under these regulations and the case is remitted for further inquiry or action or with any other directions the order of suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.

Regulation 66(4) lays down that when a penalty of dismissal is set aside or declared or rendered void in consequence of a decision by a court of law and the disciplinary authority on consideration of the circumstances of the case decides to hold a further inquiry against him on the allegations on which the penalty of dismissal was originally imposed the employee shall be deemed to have been placed under suspension from the date of the original order of dismissal until further orders.

The respondents have invoked the provision of Regulation 66(4) for the purpose of reinstatement of the petitioner with immediate effect.

Though there is no provision for reinstatement under Regulation 66(4) of the Regulations but the said Regulation postulates that where a penalty of dismissal is set aside by a decision passed by a court of law and the disciplinary authority decide to hold a further inquiry then the employee shall be deemed to have been placed under suspension from the date of the original order of dismissal until further orders.

In the instant case the order of penalty of dismissal was set aside by this court and the court granted liberty to the respondents to take steps pursuant to the inquiry report, in accordance with law within four weeks from the date of communication of the order. The order of the court was communicated to the respondents on 21st February, 2014. The respondents vide a disagreement notice dated 10th March, 2014 gave an opportunity to the petitioner to submit his representation as to why penalty shall not be imposed upon him, that is, the respondents have acted in compliance of the direction passed by this Hon'ble Court.

The court directed that if the respondents failed to take steps pursuant to the inquiry report within four weeks, then the petitioner will be entitled to the consequence of setting aside of the order. Had the respondents not taken steps in accordance with the order passed by the court within the stipulated time frame, then the petitioner would have been entitled to all consequential benefits pursuant to setting aside of the order of dismissal.

While disposing of the earlier writ petition the court did not fix any outer limit within which the proceeding ought to have been completed. The court merely granted liberty to the respondents to take steps pursuant to the inquiry report within four weeks. It the instant case the respondents have acted in accordance with the liberty granted by the court within the four weeks' time period. In such circumstances Regulations 66(4) comes into play and the authorities are entitled to treat an employee under deemed suspension from the date of the original order of dismissal until further orders.

The contention of the petitioner that the respondents cannot take advantage of their own wrong is fallacious. It is not necessary that, in each and every occasion, where enquiry is held, the same will go against the delinquent employee. It may be that the disciplinary authority did not find enough proof to penalize or take action against him. In such a case the disciplinary proceeding falls through and goes in favour of the employee. The Regulations do not suggest, that if the disciplinary proceeding fails, then the period for which the said proceeding was pending, has to be treated as 'on duty'. On the contrary, Regulation 66(4) empowers FCI to treat the said period as deemed suspension.

The argument of the petitioner that no order of suspension was issued against him is misleading. Deemed suspension does not require issuance of a formal order of suspension. There is a basic difference between passing a formal order of suspension and a deemed suspension. An order of suspension could have been passed had the requirement of Regulation 66(1) been fulfilled. Such is not the case here. Regulations 66(2), 66(3) and 66(4) deals with deemed suspension. Regulations 66(2) and 66(3) are not applicable here as the petitioner was neither convicted nor detained in custody or placed under suspension. Regulation 66(4) is the provision that is attracted in the instant case. FCI invoked the said provision to treat the employee under deemed suspension from the date of the original order of dismissal after the original order was set aside by an order of court and the authority decided to hold further enquiry against the delinquent employee. The said Regulation is not under challenge. The FCI is entitled to act in accordance with the said Regulation.

The contention of the petitioner that he did not apply for any leave and his leave cannot be adjusted in the manner as has been sought to be done is self-defeating. Had the FCI not regularised the said period with the leave due to the petitioner then the petitioner was liable to be treated as absent for the entire period. FCI acted in favour of the petitioner by regularising the said period from his available leave instead of treating him as absent from duty. Moreover the petitioner has actually not worked for the period 5th October, 2005 till 11th July, 2014 and accordingly the said period ought not to be treated as on duty even though the petitioner was reinstated in service.

The petitioner is entitled to the benefits during his period of suspension in accordance with the Regulations. The respondent authorities are directed to fix the pay of the petitioner accordingly.

W.P No. 9950 (W) of 2016 is disposed of.

Urgent certified photo copy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.