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K.K.R. Nair Vs. Managing Director, Food Corporation of India Head Office, New Delhi - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 8692 of 1981
Judge
Reported in(1986)ILLJ158AP
ActsFood Corporation of India Act - Sections 45; Food Corporation of India (Staff) Regulations, 1971 - Regulations 19(1) and 58
AppellantK.K.R. Nair
RespondentManaging Director, Food Corporation of India Head Office, New Delhi
Excerpt:
.....19 (1) and 58 of food corporation of india (staff) regulations, 1971 - petitioner worked as confirmed employee of food corporation of india - he was terminated from service for unauthorised absence under regulation 19 (1) - writ petition challenging order of termination - petitioner contended that his removal was by way of punishment and could not be brought about except by following disciplinary procedure indicated in regulation 58 - once employee has completed his probation and has been confirmed he acquires indefeasible title to that post - thereafter his services cannot be terminated except for his fault - removal of confirmed employee is by itself a punishment - punishment cannot be imposed on employee except by following principles of enquiry procedure - regulation 19 does..........1978 with retrospective effect from 22nd december, 1977. thus the petitioner has been working as a confirmed employee of the fci. while he was working at hyderabad, he had suddenly left his post of work on 15th august, 1981 to his native place in kerala without obtaining prior approval from the senior regional manager, hyderabad. the petitioner says that, after he reached his native place he was taken to a hospital. on 18th august, 1981, he sent a telegram to the senior regional manager requesting him to grant one month's leave with effect from 15th august, 1981. the senior regional manager (2nd respondent) sent a reply to that telegram on 21st august, 1981 refusing grant of leave to the petitioner and directing him to report for duty immediately. the senior regional manager also asked.....
Judgment:
ORDER

1. The petitioner was an employee of the Food Corporation of India (FCI, for short). He was appointed as Deputy Manager in FCI on 7th December, 1976. He was declared by the FCI to have competed his probation satisfactorily by an order passed by the FCI, on 21st December, 1977. The next event of importance for this case, which I should take notice, is the order of confirmation which was passed by the FCI on 24th January, 1978 with retrospective effect from 22nd December, 1977. Thus the petitioner has been working as a confirmed employee of the FCI. While he was working at Hyderabad, he had suddenly left his post of work on 15th August, 1981 to his native place in Kerala without obtaining prior approval from the Senior Regional Manager, Hyderabad. The petitioner says that, after he reached his native place he was taken to a hospital. On 18th August, 1981, he sent a telegram to the Senior Regional Manager requesting him to grant one month's leave with effect from 15th August, 1981. The Senior Regional Manager (2nd respondent) sent a reply to that telegram on 21st August, 1981 refusing grant of leave to the petitioner and directing him to report for duty immediately. The Senior Regional Manager also asked the petitioner to explain why disciplinary action should not be taken against the petitioner for his unauthorised absence without leave from 15th August, 1981 onwards. The petitioner sent a representation on 25th August, 1981 explaining the circumstances under which he had been forced to leave Hyderabad on the morning of 15th August, 1981 and exculpating himself from any charge of intention to desert the post or disobey the Senior Regional Manager. The petitioner submitted a leave application and a supporting medical certificate. He requested by another telegram on 21st September, 1981 what he calls as extension of leave, supported by another medical certificate. But all this had no effect on the Senior Regional Manager (2nd respondent). The 2nd respondent sent a telegram on 12th October, 1981 refusing extension of leave and once again directing the petitioner to report for duty immediately. The Petitioner did not join duty even in response to that telegram. He says that he was still under going treatment in the Hospital. The petitioner received an order dated 17th October, 1981 from the Managing Director, FCI, New Delhi (1st respondent), which informed the petitioner that his services had been terminated under regulation 19(1) of the Food Corporation of India (Staff) Regulations, 1971 with effect from 17th October, 1981. The termination order has stated that he has been given 90 days pay and allowances in lieu of notice through account-payee cheque drawn on the State Bank of India, New Delhi, dated 17th October, 1981.

2. This writ Petition has been filed challenging the validity of the aforesaid order of termination dated 17th October, 1981.

3. The petitioner's case is that the termination order which has been passed by the 1st respondent is invalid for multiplicity of reasons. The first submission of the petitioner is that the FCI has no legal authority to terminate the services of a confirmed employee except by holding an inquiry under Regulation 58 of the staff Regulations, 1971. The second contention of the petitioner is that, assuming that his services can be terminated under Regulation 19(1) of the Staff Regulations without resorting to the inquiry procedure mentioned in Regulation 58, the order of termination would be still invalid, because he was not paid the full salary and allowances in lieu of the 90 days notice. Above all, the petitioner contended that his removal was by way of punishment and it could not be brought about except by following the disciplinary procedure indicated in Regulation 58. The validity of these contentions has been denied by the FCI.

4. The facts, which have been stated above in a precise form, are not in dispute and they are enough for the disposal of the controversy in this case.

5. Under the Food Corporation of India (Staff) Regulations, 1971, which are statutory in nature having been made under S. 45 of the Food Corporation of India Act, every person who has been regularly appointed to any post in the FCI will be put on probation for a period of one year from the date of appointment. Under Regulation 15(4), an employee who has been so put on probation and who has satisfactorily completed his one year period of probation, shall thereafter be confirmed unless his probation was extended under Clause (2) of Regulation 15 for another period of one year. Now, in this case, the petitioner's probation has not been extended and, after the completion of one year period of Probation, he has been confirmed.

6. The question now is whether Regulation 19, deals with the termination of the services of any employee, who has been appointed on a regular basis and has satisfactorily completed his period of probation and who has been confirmed in the service of the Corpn. It is the argument of the learned Advocate Gen. appearing for the FCI, that, in the literal interpretation of the plain language of Regulation 19(1), the services of even a confirmed employee can be terminated under that Regulation 19. The learned Advocate General argued that it is not necessary to follow the procedure indicated in Regulation 58 in every case where the Corporation proposes to terminate the services of a confirmed employee. Regulation 58, according to that argument, would be attracted and would be applicable only where and when an employee of the Corporation is sought to be visited with a penalty by way of punishment. As the removal in this case is not brought about by way of any penalty, so argued the learned Advocate General, the question of the validity of the petitioner's removal is not governed by Regulation 58 and it must be tested only by a reference to Regulation 19. With respect to the argument, but without the slightest hesitation in my mind, I should reject this argument as totally incorrect. The growth of service jurisprudence in the post-independent India must be put down to the credit of the Indian Law. It is well known in that branch of law that the conditions of service of public employee either working for the State or State-owned or State-controlled Corporation draw a distinction between a probationer and a confirmed servant. A probationer is taken on trial and he has a right to be continued if he gives a satisfactory account of performance during his period of probation. Then his probation will be declared in token of his having completed satisfactory probationary service. But, by the mere declaration of his probation, he would not have a right to any post either in the Corporation or in the Government. He is still liable to be removed, for example, on the ground that vacancies do not exist, although his right for re-employment when the vacancies arise is recognised and preserved by that law. But, when once the employee has completed his probation and has been confirmed he acquires an idenfeasible title to that post. Thereafter, his services cannot be terminated except for his fault, nor can he be retired except on the ground of his superannuation. This is the meaning of the saying that a confirmed employee acquires title to the post against which he has been confirmed. Now in P. L. Dhingra v. Union of India [1958-I L.L.J. 544] the Supreme Court ruled that the removal of a confirmed employee is by itself a punishment. Examining the matter from that angle, it must be held that regulation 19 can not have any application for the removal of a confirmed employee and removal of a confirmed employee is perse punishment. It is an accepted proposition of law, that punishment cannot be imposed on an employee except by following the principles of enquiry procedure. In-as-much-as regulation 19 provides for no such enquiry to be conducted and merely provides for termination of the services on three months notice or pay in lieu thereof, it must be held that regulation 19 has no relevance to the termination of the services of a confirmed employee. It is my opinion that the general language of regulation 19 must be read in conformity with this established position of law in conformity with this established position of law in service jurisprudence, unless there is something clearly contrary in the regulation. In regulation-19 there is no such language used indicating a contrary position. Regulation-19 merely says that the services of any employee, who has satisfactorily competed his period of probation, may be terminated by a competent authority. Now, this language can be read as being applicable to an employee only till he is confirmed. That reading will alone make the language consistent with the general principles of service jurisprudence. For the above reasons, I hold that the order terminating the services of the petitioner, who is a confirmed employee without holding an enquiry under Regulation-58 of the Staff Regulations invalid. It must be noted that in the service law dismissal is not the only mood of punishment. Removal is also a recognised mode of punishment. From the mere fact that the petitioner has been removed without anything more in the order of termination, it cannot be concluded that the order of termination visits no penalty. As Dhingra's case says the removal of a confirmed employee forfeiting his right to hold the post is itself a punishment. In view of that position, it is not necessary for me to refer to the various decisions cited by the learned Advocate General to show that the Corporation enjoys power to act under regulation-19.

7. The learned Advocate General contends that the petitioner's removal is a case of removal simpliciter and is not a punishment and that therefore the procedure dictated by Regulation-58 need not be followed. This question I have partly answered hereinabove. Considering this question from another angle also, I must say that I cannot accept it. Firstly, it must be noted that the Supreme Court has laid down in several decisions and this Court had also taken similar view that in order to find out whether the services of an employee have been terminated as a punishment or not, the surrounding circumstances can be looked into. Doing so, one cannot but be struck in this case by the fact that the removal of the petitioner is brought about only because of the fact that he had abstained from duty without applying for and obtaining leave. The theory that the petitioner's unauthorised absence might be motive and is not a foundation for his removal is too meta-physical even for our Advaitha philosophy. Justice Krishna Iyer has almost said so in Shamsheer Singh v. State of Punjab [1974-II L.L.J. 465] where he asked, When does, 'motive' trespass into 'foundation' When do we lift the veil of form to touch the 'substance' Now considering all the surrounding facts in this case, which led to the passing of the termination order including the unsatisfying plea of the petitioner that he was unable to obey the orders to rejoin the duty from his native place, I have no doubt to say that the termination order was passed as a punishment. In that view also, I hold that regulation-58 ought to have been applied and followed and regular enquiry ought to have been held. Further now the law of Public Servant and its Master (the State) had undergone thought imperceptably considerable changes. If the petitioner had been removed from service on the basis of allegations that he disobeyed the orders and discarded the post, clearly it would require the holding of an enquiry under Regulation-58. On the other hand, if the contention of the Corporation that the petitioner's services have been terminated for no fault of the petitioner then that order will be liable to be struck down on the ground that it is arbitrary and contrary to Arts. 14 and 16 of the Constitution. The decision of the Supreme Court in Government Branch Press v. D. B. Belliappa [1979-I L.L.J. 156] rendered by Sarkaria, J., is an authority for that proposition. We must remember that a man's worth in today's society can be measured only by his employment, and meaning to his life can only be given by his occupation. Schumacher, in his celebrated book 'Small is Beautiful' at page 161 wrote.

'A man is destroyed by the inner conviction of uselessness.'

Unemployment, more than any other, is sure to breed that conviction and lead to that end. Courts have, therefore, a duty to protect at least right to public employment. Law should prevent faultless removal from public employment. The opinion of Marshall J., in Board of Regents v. Roth (33 L.Ed. 2d. 548) propounds this view. This is the view which I have taken in Seshachalam v. Administrative Staff College of India Lab & Industrial Cases 1984 page 875. It may be mentioned that in State of Maharashtra v. Chandra Bhanu [1983-II L.L.J. 256] Varadarajan J. had made observations to the same effect. I accordingly hold that the order of termination is liable to be set aside for all the reasons which I have mentioned above.

8. Even on the assumption that regulation 19 would apply, I am of the opinion that this order of termination should be set aside on the ground that the petitioner had not been paid pay and allowances in lieu of 90 days' notice, to which he is entitled under that regulation. The petitioner's contention that he was not paid pay and allowances for 90 days is not disputed before me. The learned Advocate General argued on that factual basis. I, therefore, assume as a fact that the petitioner's contention that he was not paid pay and allowances as directed in regulation-19 is correct. The learned Advocate General had argued only on that basis and contended that the meaning of regulation-19 is not that pay and allowances should be paid along with the order of termination. Particularly, he relied upon the words 'forthwith or immediately' in Regulation 19 as supporting his contention. I am unable to agree with this submission of the learned Advocate General. A statue can use appropriate language in different ways. In regulation 19(1), the Corporation is directed to bring about the termination of the employees' services by giving 90 days notice or pay and allowances in lieu thereof. The words, 'in lieu thereof' mean 'instead of' or 'in substitution'. It follows that the statute treated payment of salary and allowances to be in substitution of termination service by the method of giving 90 days notice. Then the failure to pay and allowances should be regarded as equivalent to failure to give 90 day's notice. As none can contend that failure to give 90 days, notice, cannot but be ineffective to bring about the termination of the employee's services, it must be admitted that failure to pay salary and allowances will render the termination ineffective. In my opinion, nobody can reasonably say that the failure to make payment of the pay and allowances for the 90 days' would not fail to bring about the termination of the services. It is very clear to my mind that payment of pay and allowances is prescribed as an alternative mode of termination of services and that meaning is fortified by the use of words 'in lieu thereof', and that the failure to use the words 'forthwith or immediately', would not make the slightest difference. The same provision has been construed by my brother Punnayya J. in J. N. Sarkarya v. Zonal Manager 1978 (1) S.L.R. 47, who also held that the payment should be simultaneous with the service of the order of termination. Mr. Jayanth says, that this view of Punnayya J., was affirmed in an appeal preferred. For the above reasons, I do not follow the judgment and observations of Kotwal J., of Jammu and Kashmir in Ajit Kumar v. District Manager, Food Corporation of India 1977 (2) L.I.C. 1659 where these submissions were not considered.

9. For all the aforesaid reasons, this writ petition is allowed with costs.


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