IMPORTANT POINT
Formation of opinion under regulation 60(1)(b) has to be writing even though it may not be communicated to the delinquent.

JUDGMENT

Dipak Misra,

The respondent while holding the post of District Manager in the Food Corporation of India (for short the FCI) was proceeded against in a disciplinary proceedings as contemplated under Regulation 60 of the Food Corporation of India (Staff) Regulations, 1971 (for brevity “the Regulations”) on the ground that during the period 15.7.99 to 21.1.02 while the respondent was working at North Lakhimpur Region, FCI in Assam had not faithfully carried out his duties as a consequence of which the Corporation suffered financial loss. After the preliminary inquiry, a show cause notice was issued calling for a representation and eventually the punishment for recovery of a sum of rupees five lakhs and censure was passed against the respondent.

2. The aforesaid order of punishment constrained the respondent to approach the High Court in Writ Petition No.16812(w) of 2006. Before the writ court the singular contention that was highlighted was that the disciplinary authority had not complied with Regulation 60(1)(b) of the Regulations and, therefore, the whole proceeding was vitiated. The learned Single Judge appreciating the facts and adverting to the submissions raised at the Bar came to hold that the disciplinary authority, the Chairman-cum-Managing Director, had not formed any opinion either to hold a regular inquiry or not as contemplated under Regulation 58 for imposing the major penalty and, accordingly, he quashed the order of punishment as well as the show cause notice.

3. Being dissatisfied, the Corporation preferred F.M.A.No.1187 of 2007 and the Division Bench placing reliance on the decision of this Court in Food Corporation of India, Hyderabad & Ors. v. A. Prahalada Rao & Anr.[ (2001) 1 SCC 165] concurred with the view expressed by the learned Single Judge and consequently dismissed the appeal.

4. We have heard Mr. Dharmedra Kumar Sinha learned counsel for the appellants and Mr. Soumitra G. Chaudhuri learned counsel for the respondent.

5. The controversy, as it seems to us, centres around interpretation of Regulation 60 and hence, we think it appropriate to reproduce the said Regulation. It reads as follows:

"(60) Procedure for imposing minor penalties: (1) Subject to the provisions of Sub-regulation (3) of Regulation 59, no order imposing on an employee any of the penalties specified in clauses (i) to (iv) of Regulation 54 shall be made except after:

(a) informing the employee in writing of the proposal to take action against him and of the imputation of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in sub-regulation (3) to (23) of the Regulation 58, in every case in which the disciplinary authority is of the opinion that such

inquiry is necessary;

(c) taking the representation, if any, submitted by the employee under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;

(d) recording a finding on each imputation of misconduct or misbehaviour.

(2) Notwithstanding anything contained in clause (b) of Sub-Regulation (1), if in a case it is proposed, after considering the representation, if any, made by the employee under clause(a) of the Sub-regulation, to withhold increment of pay and such withholding of increments is likely to affect adversely the amount of retirement benefits payable to the employees or to withhold increments of a pay for a period exceeding 3 years or to withhold increment of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in Sub- regulation (3) to (23) of Regulation 58 before making any order imposing on the employee any such penalty.”

6. The interpretation of the said Regulation engaged the attention of this Court in A. Prahalada Rao (supra). A two-Judge Bench, adverting to the anatomy of the Regulation and taking into consideration the submissions adv