SUKESH RANJAN DUTTA CHOWDHURY Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition the petitioner challenges the order of his removal from service as well as the departmental appellate order and review order confirming such removal. He also prays for reinstatement in service.

(2.) The petitioner was appointed as Sales Officer by the Manager (Administration) of the Fertiliser Corporation of India Ltd. (FCI, for short), Eastern Marketing Zone on 29.6.71. While the petitioner was serving in the Fertilizer Corporation of India Ltd, the said organisation was divided into five different organisations including the Hindustan Fertiliser Corporation of India Ltd. with effect from 1st April, 1978. The Eastern Marketing Zone of the FCI was allocated to Hindustan Fertiliser Corporation of India Ltd. (HFC, for short). All the employees working in the Eastern Marketing Zone were asked to give their option if they were willing to be transferred to the HFC with the stipulation that in case no consent was received by the stipulated date from the employee it would be presumed that they had no objection to their being transferred to the HFC. It was further stipulated that the other terms and conditions of their employment under FCI would remain unaltered on their transfer to HFC. They were however offered certain retiral benefits by way of compensation in case they did not want to be transferred (vide, circular dated 28.3.78, annexure-A to the affidavit-in-opposition). However the petitioner did not opt for retiral benefits and he continued to be in service on transfer to the HFC with effect from the assigned date in terms of the said circular dated the 28th March, 1978. It is evident that the service of the petitioner under the HFC was not a service by fresh appointment but was by way of transfer. In other words, the continuity of his service was maintained with all the benefits and liabilities of service which he might have earned and incurred for the initial period of his service while he was serving under the FCI. On 13th February, 1981 a disciplinary proceeding was initiated against the petitioner for his alleged misconduct that while he was functioning as Sales Officer during 1975 to 1977 he engaged himself in the business of the firm named and styled as Customs Advisory Service whose nominal proprietor was his wife without obtaining any permission of the management for such engagement in trade or business and thereby contravened Rule 11(1) of the Fertilizer Corporation of India Ltd. Employees (Conduct, Discipline and Appeal) Rules, 1972 (vide, annexure-D to the writ petition). The disciplinary proceeding thus started against the petitioner was conducted and concluded by the enquiry officer and he submitted his enquiry report dated the 18th September, 1984 holding the petitioner guilty of the charge of misconduct brought against him (vide, annexure-W to the writ petition). Agreeing with the findings of the enquiry officer the Deputy General Manager (Marketing), HFC, passed the impugned order dated the 13th September, 1985 removing the petitioner from service (vide, annexure-X to the writ petition). Against that order of removal the petitioner preferred a departmental appeal before the Chairman-cum-Managing Director, HFC on the 14th October, 1985(vide, annexure-Y to the writ petition) and in due course the appeal was rejected by the Chairman-cum-Managing Director by order dated the 2nd January, 1986, vide annexure-Z to the writ petition. Thereafter the petitioner also made an application on 29.2.86 for review of the order dated 13.9.85 passed by the Deputy General Manager (M) removing him from service and in due course the Board, after consideration, rejected the said application for review (vide, annexure-Z2 to the writ petition). Thereafter the petitioner filed the present writ petition on the 21st November, 1986 challenging his removal from service and praying for reinstatement.

(3.) It has been contended on behalf of the petitioner that the charge-sheet was issued to the petitioner under Rule 23 of the FCI Ltd. Employees (Conduct, Discipline and Appeal) Rules, 1972 on the 13th February, 1981 when the petitioner had already ceased to be an employee of the FCI and as such the FCI rules were not applicable in the case of the petitioner. It has further contended that at the time when the charge-sheet was issued the petitioner was an employee of HFC and therefore no disciplinary proceeding could be initiated against him for any alleged misconduct which might have been committed, if at all, while in service under the FCI. In my opinion this is not the correct proposition. As we have seen, the petitioner came under HFC by way of transfer from FCI and not by way of a fresh recruitment or appointment under the HFC. That being so, all the benefits and liabilities which might have been earned and incurred by him while in service under FCI rather continued and were carried over even after his transfer to the HFC. As regards the contention that the charge-sheet was issued to the petitioner under the FCI Rules, 1972 when the petitioner was serving under the HFC, it has been stated in the affidavit-in-opposition that till the HFC framed its rules it followed the rules of the erstwhile Fertiliser Corporation of India Ltd. including the service, conduct and appeal rules. The new rules of the HFC relating to conduct, discipline and appeal were circulated by the HFC on 22nd October, 1981 (para 4 of the A/O). It is evident that on 13.2.81 when the charge-sheet was issued to the petitioner the HFC Rules did not yet find the light of the day and on that date the HFC was following the FCI Rules. Consequently there is nothing wrong that in the charge-sheet reference was made to the relevant FCI rules. The fact that subsequently the FCI Rules came into the picture with retrospective effect also does not substantially change the picture because the relevant provisions relating to the disciplinary proceedings in the FCI Rules and the HFC Rules are virtually the same and the procedure of the disciplinary proceedings under both the rules are also virtually the same. It has not been specifically shown on behalf of the petitioner as to in what manner he was deprived of any procedural benefit during the course of the disciplinary proceedings available under the HFC Rules which were not available under the FCI Rules. In my opinion therefore the contention raised by the petitioner concerning the applicability of the Rules is without substance and without merit.