- (1.) The Food Corporation of India (for brevity 'the Corporation') is in appeal under Clause X of the Letters Patent against the Judgment dated 10th December, 2008 passed by the learned Single Judge, quashing order dated 25th April, 1995 (P. 1) removing the writ petitioner-respondent from service on the allegation of absence from duty. While passing the order dated 25th April, 1995 (P. 1), reliance has been placed on Regulation 63(ii) of the Food Corporation of India (Staff) Regulations 1971 (for brevity 'the 1971 Regulations'). The 1971 Regulations provide for holding of a regular departmental inquiry. However, as per Regulation 63(H) if disciplinary authority is satisfied, for reasons to be recorded in writing that it is not reasonably practicable to hold an inquiry then such an inquiry could be dispensed with.
(2.) In order to appreciate the controversy in its proper perceptive, few facts may first be noticed. The petitioner, after serving the Army for a period of 15 years, was appointed in the appellant-Corporation in 1972. In the year 1994, while he was working as Assistant Grade-Ill, he applied for 81 days leave to visit Canada. However, he left for Canada without the leave being sanctioned. Despite various reminders, he did not report for duty and vide impugned order dated 25th April, 1995 (P-1), he was removed from service. The punishing authority passed the order of removal in purported exercise of power under Regulation 63(ii) by dispensing with regular departmental inquiry, However, he reported for duty on 26th July, 1995, when he returned to India. He was confronted with the order of removal. The departmental remedies in the form of appeal and the statutory review availed by him did not find favour with the authorities. Eventually', he filed the writ petition challenging the order of his removal, which has been quashed by the learned Single Judge holding that the punishment of removal from service is grossly disproportionate to the nature of misconduct of overstaying the leave. The learned Single Judge has quoted the observations made by Hon'ble the Supreme Court in the case of Union of India v. S.S. Ahluwalia, 2007 7 SCC 257. Despite the fact that the observation made by Hon'ble the Supreme Court in the aforesaid judgment demarcate the area of interference in the quantum of punishment, the learned Single Judge substituted the punishment of removal from service to that of compulsory retirement with effect from 1st January, 1995. The impugned judgment further clarified that the petitioner would not be entitled to any emoluments for the period he remained absent.
(3.) Mr. Hari Pal Verma, Learned Counsel for the appellant, Corporation has vehemently argued that there were sufficient reasons recorded in the order for dispensing with the inquiry as per the provision of Regulation 63(ii) of the 1971 Regulations. According to the Learned Counsel, the conclusion that regular departmental inquiry was not reasonably practicable to be held stems from the facts that various letters were sent to the writ petitioner-respondent asking him to resume his duty. Those letters were sent on his local as well as his address in Canada. Mr. Verma has maintained that the procedure adopted by the department was just and fair because when he applied for 'No Objection Certificate' in order to obtain passport, he had given an undertaking that he would not leave the country without obtaining sanction of the leave from the competent authority. However, neither he obtained sanction for leave nor any extension of leave was ever granted, although he kept on making applications for extension of leave from Canada. In the facts and circumstances, it was a fit case where it was safe to conclude that no regular departmental inquiry could reasonably be practicable to be held in the case of writ petitioner-respondent. It was a forgone conclusion that the writ petitioner-respondent had abandoned his post in order to stay in Canada.;