A.K.Banerjee, J. - (1.) The writ petitioner was the Regional Manager of Food Corporation of India. The writ petitioner was entrusted with the recruitment process of Class IV staff. For endurance test of the candidates Amateur Athletic Association, a non Government organisation, was engaged @ Rs. 40/- per candidate. When the process was on surprisingly the rate was changed from Rs. 40 per candidate to Rs. 40,000 per day. The said Amateur Athletic Association by a letter dated 24th January, 1997 of their own quoted the expenses and/or fees for conducting such test which has been made annexures to the affidavit-in-opposition. The said letter clearly stipulates that the expenses to be bourne by the respondent was @ Rs. 40/- per candidate. Subsequently, by an undated letter, signed by one Uday Sarkar on 7th March, 1997, was given to the respondent authority where from it appears that the respondent authority was informed by the said Association that the said endurance test can be held subject to additional payment of Rs. 40,000/-. The said letter was immediately attended by the writ petitioner on the same day with the endorsement "Please allow as requested". The writ petitioner initially wrote "may be" which was pened through subsequently. As a resuit, the respondent authority has suffered a loss to the extent of Rs. 3,64,240/-. The writ petitioner was chargesheeted in accordance with Rule 58 of the Staff Regulations, 1971. The writ petitioner replied to the said chargesheet. In the reply the writ petitioner pleaded ignorance about the demand for enhancement of remuneration and wanted to shift the burden on the other officials involved in the said recruitment process. The respondent authority considered the reply of the writ petitioner and passed an order of minor penalty directing recovery of 50% of the said amount of Rs. 3,64,240/-. The order of such penalty was passed on May 20, 2000 while the petitioner was in employment. The order was appealed from. The appeal was dismissed on 18th January, 2001, by this time the writ petitioner has retired from service. The present writ petition has been made challenging the order of penalty as well as the order of the appellate authority impleading the attempt on the part of the respondent authority to recover the amount from the post retrials benefits payable to the writ petitioner.
(2.) Mr. Sadhan Roy Chowdhury, learned Advocate for the writ petitioner, has drawn my attention to various regulations of the Staff Regulations, 1971. According to Mr. Roy Chowdhury, since Regulation 58 denotes major penalty the respondent authority is not entitled to convert to a minor penalty and thereby depriving the writ petitioner any opportunity to defend himself. Mr. Roy Chowdhury has also drawn my attention to the Circular of the Government annexed to the affidavit-in-opposition at page 14 wherein the Government asked the authority to take great care and caution while adopting the short cut method of imposing minor penalty. According to Mr. Roy Chowdhury, since the said circular provides for personal hearing a personal hearing should have been given to the writ petitioner before imposing such penalty. According to him, since a chargesheet was under Rule 58 the writ petitioner replied to the same anticipating major penalty and as such, no separate prayer for hearing was made by the writ petitioner. Mr. Roy Chowdhury further contends that since the writ petitioner has already retired the respondent authority is not entitled to impose such penalty by way of recovery from the post retiral benefits which, according to him, is not permissible in law. Mr. Roy Chowdhury in his usual fairness has apprised me of the latest position in law relating to the similar facts and circumstances. According to Mr. Roy Chowdhury although High Court has held that in case the authority issues chargesheet under Rule 58 it is not entitled to resort to Rule 60 by imposing minor penalty and thereby depriving the delinquent of a hearing. However, such position of law has been now changed because of the recent decision of the apex Court, reported in AIR 2001 SC 51. Relying on the said decision Mr. Roy Chowdhury submits that although the apex Court has observed that the authority concerned may be entitled to impose minor penalty by availing Rule 60 after issuance of chargesheet under Rule 58 each and every case is to be dealt with on its own merit and as a matter of routine the respondent authority is not entitled to issue chargesheet under Rule 58 and thereafter resort to Rule 60. According to him, the facts of this case warrant interference by this Court and the decision of the apex Court does not stand in the way of the writ petitioner in getting such relief from this Court.
(3.) Mr. Kamal Chattopadhyay, learned Advocate appearing for the Food Corporation of India, submits that since the order of penalty was passed while the writ petitioner was in service the question of recovery of the same from the post retrials benefit does not and cannot arise. According to him, it is a mere of coincidence that the writ petitioner has retired during the pendency of the appeal. The moment the order of penalty has been imposed upon the writ petitioner, according to Mr. Chattopadhyay the money becomes payable by him and the authority concerned is entitled to recover it from his pay and since he has retired from his post retrials benefits. My attention has been drawn by Mr. Chattopadhyay to paragraph 5 of the apex Court judgment which, I feel, should be quoted herein :- "In our view, on the basis of the allegation that Food Corporation of India is misusing its power of imposing minor penalties, the Regulation cannot be interpreted contrary to its language. Regulation 60(1) (b) mandates the disciplinary authority to form its opinion whether it is necessary to hold enquiry in a particular case or not. But that would not mean that in all cases where employee disputes his liability a full-fledged enquiry should be held. Otherwise, the entire purpose of incorporating summary procedure for imposing minor penalties would be frustrated. If the discretion given under Regulation 60(1) (b) is misused or is exercised in arbitrary manner, it is open to the employee to challenge the same before the appropriate forum. It is for the disciplinary authority to decide whether regular departmental enquiry as contemplated under Regulation 58 for imposing major penalty should be followed or not. This discretion cannot be curtailed by interpretation which is contrary to the language used. Further, Regulation 60(2) itself provides that in a case if it is proposed to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to employee and in such other cases as mentioned therein, the disciplinary authority shall hold enquiry in the manner laid down in Regulation 58 before making any order imposing any such penalty. Hence, it is apparent that High Court erroneously interpreted the regulation by holding that once the employee denies the charge, it is incumbent upon the authority to conduct enquiry contemplated for imposing major penalty. It also erred in holding that where employee denies that loss is caused to the Corporation either by his negligence or breach of order, such enquiry should be held. It is settled law that Court's power of judicial review in such case is limited and Court can interfere where the authority held the enquiry proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry and imposing punishment or where the conclusion or finding reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached. As per the regulation, holding of regular departmental enquiry is a discretionary power of the disciplinary authority which is to be exercised by considering the facts of each case and if it is misused or used arbitrarily, it would be subject to judicial review.";