1. K. Lakshmaiah joined the Central Storage (Food Department) in August, 1954 as a watchman and was promoted in 1959 as tally clerk. In 1965 the Central Storage (Food Department) got merged in the Food Corporation of India (the Corporation). Tally Clerk in the Corporation was designated as Assistant, Grade III (Depot). In 1973, Laxmaiah was selected and promoted to the post of Assistant, Grade II (Depot). While working he is removed from service on March, 31, 1978. The order of removal was confirmed by the Appellant Authority on September, 2, 1978. The order of 'removal' and confirmation are challenged by Lakshmaiah (the employee) in the writ petition lodged on November, 1, 1978.
2. The removal order was passed after an inquiry in disciplinary proceedings. The inquiry related to an incident at Khammam that occurred on October 24, 1975 pertaining to a release order 101315 of 200 quintals of coarse rice. The employee was to have delivered rice of 200 quintals to the Zonal Engineer, Andhra Pradesh State Construction Corporation, Khammam. A day earlier, i.e., on October 23, 71 kgs. and 14 grams of coarse rice were delivered. On October 24, 114 quintals, 1 kg. and 160 grams were loaded in two vehicles, APG No. 3609 and APX No. 8287. The two vehicles at the exit of the warehouse were 'detected' to contain excess of five bags. A statement of the employees as to the excess bags was recorded on October 24, 1975 and on April 14, 1976, a charge-memo containing two articles of charges were served on him. The employee submitted his explanation (written statement) on May 3, 1976. The enquiry officer was appointed on June 7. That officer submitted (first) report on November, 2, 1976. The Appellate Authority directed on December 31st the Enquiry Officer to examine further witnesses. The (second) report thereupon on July 23, 1977 after witnesses were examined was submitted. In that charge No. I was held proved and the second charge was held not proved. The disciplinary authority served on December 8, 1977, the employee to show-cause why he should not be removed. Finally on March 31, 1978, the employee was removed from the service of the Corporation.
3. It is averred by the employee relating to first charge that he was not afforded proper opportunity. As respects the second charge, it is averred the disciplinary authority incorrectly held the second charge was proved. The grounds of attack raised as respects the charges being different, they are separately considered.
4. The first charge :- The question raised as respects the first charge is the employee was afforded reasonable opportunity. The charge reads that the employee 'while functioning as assistant Gr. II (Depot) at the Food Corporation of India Depot, Khammam, during the period 6-9-1975 to 12-11-1975 had unauthorisedly issued on 24-10-1975, 5 bags of coarse rice in excess which resulted in a loss to the Corporation but for its detection and recovery by the staff posted at the check post of the depot'. The employee in the written statement submitted on May 3, 1976 denied the charge. An employee of the Corporation, Assistant Depot Superintendent (Quality Inspector), Food Corporation of India, Regional Officer, Hyderabad, was asked to be provided as defence counsel. This request made in writting on June 25, 1976 was permitted by order on July 22, 1976, served on the employee on August 7, 1976. In between the enquiry commenced on July 9, 1976. The proceedings of the case show the employee was questioned on that day; 'Do you admit the charge Ans.-1 admit Article No. 1 and deny the Article 2 of the charge; Next question :- Do you want to take the assistance of any employee Ans.-Yes, I want to take the assistance of an employee'. The other answers recorded on that date are not relevant as to this part of the charge, therefore are omitted, based on the above answers, the Corporation maintained in the inquiry as well as in this Court; Charge No. 1 was admitted, therefore, the employee is guilty. To put shortly the facts are. The employee on June 25, 1976 lodged an application for services of a Quality Inspector as his defence counsel. In the proceedings on July 9, 1976, that request in the course of the inquiry, was repeated. The defence counsel was permitted on August 7, 1976.
5. As to the answer recorded, the employee averred in the writ petition : 'I had categorically stated before the enquiry officer that I had not acted deliberately with nay motive of making illegal gain to myself, or causing loss to the Corporation; but that five bags of coarse rice to excess was loaded in the lorry in the circumstances set out by me in my written explanation dated 3-5-1976 which I had submitted to the charge memo issued to me. In these circumstances, the finding in regard to Article I of the charge that was recorded without holding an inquiry against me is illegal'. The above statement is stated to show, answer to question 1 was not properly recorded. The Senior Regional Manager, Food Corporation of India, in the counter traversed the averments of the employee and maintained that the answer was properly recorded by the enquiry officer. On the above facts the issues are, whether the answer was properly recorded and whether the employee was afforded reasonable opportunity. These are the two issues required to be determined.
6. At the debate, number of authorities were cited on behalf of the employee and the Corporation. In our view, the issue raised is in the nature of determination of a fact, therefore, the issues can be decided without any authority.
7. The Central Government framed under S. 45, Food Corporation Act, 1964 (37 of 1964), 'Regulations', for the Corporation. The procedure in Regn. 58 relates to disciplinary actions more or less, the procedure prescribed is the same as in rules under Art. 309 of the Constitution.
8. In clause (8) of Regn 58, it is recited, the charged officer can engage defence counsel from out of State or Central Government employees. In the instant case quality inspector was sought by the employee as defence counsel. The inquiry that was conducted on July 9, 1976 indicates that on that day, the assistance of the quality Inspector to present the case on behalf of the employee was not made available to him.
9. The Corporation in the counter averred that the employee answered the question voluntarily on July 9, 1976. The employee if he wanted to have the assistance of anybody to present his case, he could have stated and may even have refused to answer questions put to him. Therefore, it is averred, when he answered the questions on July 9, he answered them voluntarily. It is further added there was ambiguity in the written statement submitted on May 3, 1976, therefore, question 1 was put in the inquiry to the employee.
10. The latter statement is apparently not true because in the written statement, charge 1 was specifically denied. There was no ambiguity in the denial made.
11. The Corporation relied on sub-regulations four to fourteen of Regn. 58 in support of their case. It is argued sub-regulation (7), speaks of the charged officer appearing in person. When he appears, he has no right to have assistance; that is pressed with reference to what transpired on July 9, 1976. Sub-regulation (9) recites when a charged officer appeared in person, whether or not, there is written statement filed to deny the charges, the inquiry officer, per force, has to ask whether the employee 'admits' the charges. Such a procedure, it is argued was followed in the the charge is instant case and the answer shows the charge is admitted by the employee. Further, it is argued, sub-regulation (8) gives an employee a right to have assistance only 'to present' the case. When questions are asked pursuant to sub-regulation (7) (when the employee appears in person) it is argued, presentation of the case has not commenced, therefore, on that day, the occasion for presenting the case did not arise. Since the employee pleaded guilty as respects first charge, it is argued, there was nothing to be 'presented' on his behalf. Therefore, under sub-regulation (10), a return was made on finding employee guilty in the first report of the Inquiry officer on November 2, 1976 which was later confirmed. The counsel elaborated the plea and as a question of law, it is urged under sub-regulation (9) whether or not a 'written statement' is submitted, there is a necessity for the inquiry officer to put question as a measure in compliance of regulations the aspect pertaining to compliance turns on the meaning of sub-regulation (9). In our view, if there is no written statement as required under sub-regulation (5) filed by the charged employee or the written statement submitted is ambiguous and when the employee appears in person pursuant to sub-regulation (7), the Inquiry officer may ask the employee whether or not he admits the charge. In a given case, even when there is a denial, the Inquiry Officer may put the question by way of superfluity; but such a procedure cannot be countenanced as 'necessary' arising in the procedure prescribed even when the charge is denied in the written statement earlier. The interpretation suggested by the Corporation we hold cannot be countenanced.
12. It is next argued, there is no right vested in an employee in the inquiry under sub-regulation (9) to have the defence counsel on that occasion for his case is not 'presented' within the meaning of sub-regulation (8). The employee pleaded guilty, therefore, it is argued there was nothing to be presented on his behalf and guilt was properly recorded within the meaning of sub-regulation (10). The Corporation elaborated and submitted that on July 9, 1976 employee did no complain 'want of assistance'. Such a complaint it is argued was made on January 16, 1978. This Court in its discretion, therefore it is argued, should not permit the employee to raise the question in the 'belated manner'. In respect of the retraction of the admission, it is seen in the second show cause notice, the plea that the employee was not provided legal assistance was raised before the disciplinary authority. It was repeated subsequently. Therefore, we reject the contention and hold the plea raised is not 'belated'.
13. The facts show the employee has a right to have a defence counsel but was not provided in the part of inquiry held on July 9, 1976. Based on that inquiry he is held guilty. The employee, therefore, was not provided a reasonable opportunity in defending the first charge. In that view, it is not necessary to record any finding whether or not the answer to the first question put to the employee by the Inquiry officer was properly recorded.
14. Charge No. 2 : The complaint as respect the second article of charges falls in a narrow compass : The second charge states the employee 'sought to cover up his lapse by tampering with the weighment sheet No. 5292 dated 24-10-1975 by correcting the number of bags indicated therein'. Therefore, the employee was arraigned of (a) tampering and falsification of official records; (b) contravention of the provisions of the Regulations 31 and 32 of the Food Corporation of India (Staff) Regulations, 1971'. In the two reports, the Inquiry officer on November 2, 1976 and on July 23, 1977 found the second charge was not proved. The Senior regional Manager, the disciplinary authority, on October 22, 1977 varied the finding and recorded, 'I find that the charged official was careless and in fact negligent, while preparing the weighment check memo. I, therefore, hold Art. II of the charge as clearly and conclusively proved only to this extent'. The 2nd charge it is seen was not that the employee was 'negligent' and that he was 'careless'.
15. The learned counsel for the Corporation realising the incongruity in the substance of the charge and what is held proved by the disciplinary authority, argued, the second charge is not proved but (so it is argued) the employee was 'careless' and 'negligent' follows from the facts of the case. We are afraid we cannot accept the fact of carelessness and negligence followed from the content of the second charge. It is seen the finding of 'careless', 'negligence' is not recorded after a reasonable opportunity to defend the employee was provided. This aspect is made clear in the proviso to sub-regulation (23) incorporated as an explanation. Therefore, in the absence of finding that the employee had a reasonable opportunity to defend the charges of carelessness and negligence, we hold the second charge is improperly held proved. In that view, the findings as to guilt of the employee cannot be sustained.
16. The impugned order of removal passed by the disciplinary authority on March 31, 1978 and the confirmation order of September 2, 1978 by the appellate authority for the aforesaid reasons are hereby quashed. The Corporation authorities may conduct a de novo inquiry as respects Article 1 of the charge. As respects the second article of charge, carelessness and negligence recorded by the authorities cannot be sustained, therefore, the Corporation authorities, if advised, may hold a de novo inquiry by framing appropriate charges to that effect.
17. The writ petition is allowed as indicated. No costs.
18. The learned counsel for the Corporation in the end sought leave to appeal to the Supreme Court of India against the judgment. Since, we have recorded the employee was not afforded a reasonable opportunity to defend himself in the inquiry held, we cannot certify this is a fit case to grant leave. Leave, therefore, is rejected.