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1998 Supreme(Cal) 462
High Court Of Calcutta
Gitesh Ranjan Bhattacharjee
SUKESH RANJAN DUTTA CHOWDHURY - Appellant
Versus
UNION OF INDIA - Respondent
C. R. 14687 Of 1986
Decided On : 11/03/1998
ALOK BANERJEE, DEBJANI BANERJEE, KAUSHIK MONDAL, SUDHAN G.SUSIL
The doctrine of approbate and reprobate applies to those cases where a person has elected to take benefit otherwise than on merits of the claim in the litigation under an order to which benefit he could not have been entitled except for the order.
Headnote:
REMOVAL FROM SERVICE - FCI RULES - APPLICABILITY - DISCIPLINARY PROCEEDINGS - INITIATION AFTER CESSATION OF EMPLOYMENT - CHARGE-SHEET - ISSUANCE UNDER FCI RULES - COMPETENCY - DELEGATION OF POWERS - SECOND SHOW-CAUSE NOTICE AND ENQUIRY REPORT - SERVICE ON EMPLOYEE - NECESSITY - APPELLATE ORDER - CRYPTIC NATURE - QUASHING - EX PARTE INQUIRY - JUSTIFICATION - APPROBATE AND REPROBATE - DOCTRINE - APPLICABILITY.
Fact of the Case:
The petitioner, an employee of the Fertiliser Corporation of India Ltd. (FCI), was transferred to the Hindustan Fertiliser Corporation of India Ltd. (HFC) with effect from 1st April, 1978. On 13th February, 1981, a disciplinary proceeding was initiated against the petitioner for his alleged misconduct while serving under FCI. The petitioner was found guilty and removed from service by the Deputy General Manager (Marketing), HFC, on 13th September, 1985. The petitioner's departmental appeal and review application were also dismissed. The petitioner filed a writ petition challenging his removal from service.
Finding of the Court:
The court held that the FCI rules were applicable to the petitioner even after his transfer to HFC, as the transfer was by way of absorption and not by way of fresh recruitment. The court also held that the disciplinary proceedings could be initiated against the petitioner even after he had ceased to be an employee of FCI, as the alleged misconduct had been committed while he was in service. The court further held that the charge-sheet was validly issued under the FCI rules, as HFC had not yet framed its own rules at the time. The court also held that the Deputy General Manager (Marketing) was competent to pass the order of removal, as he had been delegated the powers of the General Manager. The court further held that the petitioner was not entitled to a second show-cause notice and a copy of the enquiry report before the impugned punishment was imposed, as the Supreme Court had held in Mohd. Ramjan Khan v. Union of India that it was no longer necessary to furnish a copy of the inquiry report to delinquent officers. The court also held that the appellate order was not cryptic and that it complied with the requirements of the relevant rules. However, the court held that the inquiry officer was not justified in holding the inquiry ex parte at the last stage of the proceeding by rejecting the prayer for adjournment without justifying reason and thereby denying opportunity to the petitioner to adduce defence. The court also held that the petitioner was not entitled to any relief in the writ petition by reason of the fact that he had voluntarily chosen to obtain a benefit under the order of his removal which benefit was evidently de hors the merits of his claim in the case.
Issues: 1. Whether the FCI rules were applicable to the petitioner after his transfer to HFC? 2. Whether disciplinary proceedings could be initiated against the petitioner after he had ceased to be an employee of FCI? 3. Whether the charge-sheet was validly issued under the FCI rules? 4. Whether the Deputy General Manager (Marketing) was competent to pass the order of removal? 5. Whether the petitioner was entitled to a second show-cause notice and a copy of the enquiry report before the impugned punishment was imposed? 6. Whether the appellate order was cryptic and did not comply with the requirements of the relevant rules? 7. Whether the inquiry officer was justified in holding the inquiry ex parte at the last stage of the proceeding by rejecting the prayer for adjournment without justifying reason and thereby denying opportunity to the petitioner to adduce defence? 8. Whether the petitioner was entitled to any relief in the writ petition by reason of the fact that he had voluntarily chosen to obtain a benefit under the order of his removal which benefit was evidently de hors the merits of his claim in the case?
Ratio Decidendi: 1. The FCI rules were applicable to the petitioner even after his transfer to HFC, as the transfer was by way of absorption and not by way of fresh recruitment. 2. Disciplinary proceedings could be initiated against the petitioner even after he had ceased to be an employee of FCI, as the alleged misconduct had been committed while he was in service. 3. The charge-sheet was validly issued under the FCI rules, as HFC had not yet framed its own rules at the time. 4. The Deputy General Manager (Marketing) was competent to pass the order of removal, as he had been delegated the powers of the General Manager. 5. The petitioner was not entitled to a second show-cause notice and a copy of the enquiry report before the impugned punishment was imposed, as the Supreme Court had held in Mohd. Ramjan Khan v. Union of India that it was no longer necessary to furnish a copy of the inquiry report to delinquent officers. 6. The appellate order was not cryptic and that it complied with the requirements of the relevant rules. 7. The inquiry officer was not justified in holding the inquiry ex parte at the last stage of the proceeding by rejecting the prayer for adjournment without justifying reason and thereby denying opportunity to the petitioner to adduce defence. 8. The petitioner was not entitled to any relief in the writ petition by reason of the fact that he had voluntarily chosen to obtain a benefit under the order of his removal which benefit was evidently de hors the merits of his claim in the case.
Final Decision: The writ petition was dismissed.
( 1 ) IN this writ petition the petitioner challenges the order of his removal from service as well as the departmental appellate order and review order confirming such removal. He also prays for reinstatement in service.
( 2 ) THE petitioner was appointed as Sales Officer by the Manager (Administration) of the Fertiliser Corporation of India Ltd. (FCI, for short), Eastern Marketing Zone on 29. 6. 71. While the petitioner was serving in the Fertilizer Corporation of India Ltd, the said organisation was divided into five different organisations including the Hindustan Fertiliser Corporation of India Ltd. with effect from 1st April, 1978. The Eastern Marketing Zone of the FCI was allocated to Hindustan Fertiliser Corporation of India Ltd. (HFC, for short ). All the employees working in the Eastern Marketing Zone were asked to give their option if they were willing to be transferred to the HFC with the stipulation that in case no consent was received by the stipulated date from the employee it would be presumed that they had no objection to their being transferred to the HFC. It was further stipulated that the other terms and conditions of their employment under FCI would remain unaltered on their transfer to HFC. They were however offered certain retiral benefits by way of compensation in case they did not want to be transferred (vide, circular dated 28. 3. 78, annexure-A to the affidavit-in-opposition ). However the petitioner did not opt for retiral benefits and he continued to be in service on transfer to the HFC with effect from the assigned date in terms of the said circular dated the 28th March, 1978. It is evident that the service of the petitioner under the HFC was not a service by fresh appointment but was by way of transfer. In other words, the continuity of his service was maintained with all the benefits and liabilities of service which he might have earned and incurred for the initial period of his service while he was serving under the FCI. On 13th February, 1981 a disciplinary proceeding was initiated against the petitioner for his alleged misconduct that while he was functioning as Sales Officer during 1975 to 1977 he engaged himself in the business of the firm named and styled as Customs Advisory Service whose nominal proprietor was his wife without obtaining any permission of the management for such engagement in trade or business and thereby contravened Rule 11 (1) of the Fertilizer Corporation of India Ltd. Employees (Conduct, Discipline and Appeal) Rules, 1972 (vide, annexure-D to the writ petition ). The disciplinary proceeding thus started against the petitioner was conducted and concluded by the enquiry officer and he submitted his enquiry report dated the 18th September, 1984 holding the petitioner guilty of the charge of misconduct brought against him (vide, annexure-W to the writ petition ). Agreeing with the findings of the enquiry officer the Deputy General Manager (Marketing), HFC, passed the impugned order dated the 13th September, 1985 removing the petitioner from service (vide, annexure-X to the writ petition ). Against that order of removal the petitioner preferred a departmental appeal before the Chairman-cum-Managing Director, HFC on the 14th October, 1985 (vide, annexure-Y to the writ petition) and in due course the appeal was rejected by the Chairman-cum-Managing Director by order dated the 2nd January, 1986, vide annexure-Z to the writ petition. Thereafter the petitioner also made an application on 29. 2. 86 for review of the order dated 13. 9. 85 passed by the Deputy General Manager (M) removing him from service and in due course the Board, after consideration, rejected the said application for review (vide, annexure-Z2 to the writ petition ). Thereafter the petitioner filed the present writ petition on the 21st November, 1986 challenging his removal from service and praying for reinstatement.
( 3 ) IT has been contended on behalf of the petitioner that the charg
