Ramesh Singh Jasrotia vs Managing Director

Petition is taken up for disposal with the consent of the parties.

Petitioner, an employee in the Food Corporation of India was found remiss in discharging his duties. A charge sheet was served on him. The

enquiry was held. The enquiry officer recorded the following conclusion:

It is, therefore, concluded that on 12.06.81, .CO. has actually loaded rice on truck 2713JKP, in excess of what he had recorded on WCM

180/190/9473 dated 12.6.81 although it could not be established that, this difference was 5 Qtls. 78 Kgs, 900 Gms. Hence the charge mentioned

in Annexure I of the charge sheet is partly established.

The Enquiry report was not served on the petitioner. An office order, however, came to be passed. This is dated 26th of March 87. This order

was passed by the Disciplinary Authority. The Disciplinary authority came to the conclusion that the reasoning given by the Enquiry Officer is not

sound. The Disciplinary authority, therefore, chose to differ with the finding recorded by the Enquiry Officer. It, accordingly, proceeded to impose

a punishment of reduction to lower stage by five stages in his time scale of pay for a period of five years. The relevant portion is as under:

Now, therefore, the undersigned in terms of the powers conferred under Regulation 56 of the FCI, Staff Regulations 1971, hereby imposes on the

said Shri RS Jasrotia, AG. Ill (D) penalty of reduction to lower stage by 5 stages in his time scale of pay during the period of such reduction and on

the expiry of this period , the reduction will have the effect of postponing the future increments of his pay.

This order was challenged in appeal. The appeal came to be dismissed. A review petition was preferred. The review petition was also rejected.

The Appellate authority made following observations in para B of its order:

Whereas, the undersigned has considered the appeal with reference to the Inquiry Report, relevant records of the case and also the comments of

the Disciplinary Authority on the appeal, and is satisfied that the Disciplinary Authority has correctly held the charges as proved and the punishment

awarded is not disproportionate to the proven misconduct.

It is the case of the petitioner that the above is not a speaking order. He further submits that the original proceedings were bad. For this, it is

stated, that it was incumbent upon the Disciplinary Authority to make available to the petitioner, the reasons which led it to disagree with the

findings recorded by the Enquiry Officer. To sum up, the arguments raised by the learned counsel for the petitioner are:

i) That the report of Enquiry Officer was not made available to the petitioner;

ii) That no reasons were furnished to the petitioner on the basis of which the Disciplinary Authority choose to disagree with the findings recorded

by the Enquiry Officer;

iii) That the Appellate authority's order is not a speaking order.

It has be seen that merely because the report of the Enquiry Officer is not made available to the delinquent, it may not lead to the conclusion that

the enquiry proceedings are bad. The decision given by the Supreme Court in the case of Mohd. Ramzan Khan (Union of India Vs. Mohd.

Ramzan Khan) AIR 1991 SC 471 was considered by a larger Bench in the case of Managing Director Vs. K. Karuna Kumar AIR 1994 SC

1074. It was observed that merely because the enquiry report has not been made available to the .delinquent should not be made a ground to

upset the order of the disciplinary authority. The court should examine as to whether the circumstances are such which warrant sending back the

case to the Disciplinary Authority. Thus, merely because the report of the Enquiry Officer has not been made available, would not furnish a ground

to send the matter back to the concerned Authority.

I've gone through the file. Instead of recording a finding as to whether the final order was properly passed or not, the proper procedure would

be to remand the matter back to the Appellate Authority. This would be in line with the decision given by the Supreme Court in the case reported

as Ram Chander Vs. Union of India 'AIR 1986 SC 1173'. What was said in the paragraph 23 is relevant for the purposes of this petition also:

There has been considerable fluctuation of judicial opinion in England as to whether a right of appeal is really a substitute for the insistence upon

the requirement of a fair hearing or the observance of natural justice which implies 'the duty to act judicially'. Natural justice does not require that

there should be a right of appeal from any decision. This is an inevitable corollary of the fact that there is no right of appeal against a statutory

authority unless the statute so provides. Professor H.W.R. Wade in his Administrative Law, 5th ed., at P. 487 observes:

Whether a hearing given on appeal is an acceptable substitute for a hearing not given, or not properly given, before the initial decision is in some

cases an arguable question. In principle there ought to be an observance of natural justice equally at both stages. If natural justice is violated at the

first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing. instead of fair trial followed by appeal, the

procedure is reduced to unfair trial followed by fair trial.

After referring to Megarry, J.'s dictum in a trade union expulsion case holding that, as a general rule, a failure of natural justice in the trial body

cannot be cured by a sufficiency of natural justice in the appellate body, the learned author observes:

Nevertheless it is always possible that some statutory scheme may imply that the appeal is to be the only hearing necessary.

From the perusal of the aforementioned paragraph, it becomes apparent that the Appellate Authority should not only pass a speaking order but

should also afford opportunity of hearing. Reference may again be made to the observations made in para 24 which are to the fact that:

The only stage at which a Government servant gets a reasonable opportunity of showing cause against the action proposed to be taken in regard

to him i.e. an opportunity to exonerate himself from the charge by showing that the evidence adduced at the inquiry is not worthy of credence or

consideration or that the charges proved against him are not of such a character as to merit the extreme penalty of dismissal or removal or

reduction in rank and that any of the lesser punishments ought to have been sufficient in his case, is at the stage of hearing of a departmental

appeal..

Accordingly, this petition is disposed of with a direction that the Appellate Authority would redecide the appeal. It would pass a speaking order.

The petitioner would appear before the Appellate Authority on 30th March 98. The petitioner would make available the copy of the order passed

by this court along with the writ petition and annexures. If the Appellate Authority is not available on that date in the office, then the copy would be

made available to the Personnel department and a date would be given to the petitioner for appearance. In case, the petitioner does not wish to

appear in person, the Appellate Authority would be under no obligation to hear him. It would decide the appeal but by passing a speaking order.

Only the Appellate order, copy whereof is annexure 'C', is set aside. Petitioner would be at liberty to challenge the Appellate order if it goes

against him in forums available to him.