Patna High Court
Babban Kumar SrivastavaversusThe Union Of India and Ors
- Decided
- Disposal
- PARTLY ALLOWED (DISPOSAL)
- Bench
- RITESH KUMAR
Holding
The Court held that the order withholding salary for the suspension period without a show‑cause notice violated principles of natural justice and was set aside, while the remainder of the disciplinary order was upheld.
Summary
The petitioner, a former employee of the Food Corporation of India (FCI), challenged a disciplinary order dated 29‑09‑2007 that reduced him to a lower post, fixed his pay at the entry level, and ordered recovery of Rs 3,00,000, also treating his suspension period (14‑10‑2005 to 06‑05‑2006) as not spent on duty with no salary payable. He appealed the order, which was rejected by the appellate authority and later by the Managing Director on review. The petitioner contended that the penalty was disproportionate, that he was denied a fair hearing and a show‑cause notice for withholding salary during suspension, and that recovery from gratuity was impermissible. The High Court examined the FCI (Staff) Regulations, 1971 and held that while the disciplinary findings on misconduct were supported by evidence, the order withholding salary without a show‑cause notice violated natural justice and was therefore set aside. The Court directed payment of the full salary for the suspension period, deducting only any subsistence allowance already paid, and allowed the writ petition in part.
Issues considered
- The validity of the disciplinary order imposing reduction in rank, pay fixation and monetary recovery under FCI (Staff) Regulations, 1971.
- Whether the suspension period salary could be withheld without a specific show‑cause notice, in violation of natural justice.
- Whether the appellate and review orders were jurisdictionally proper.
- Whether the penalty imposed was proportionate to the alleged misconduct.
- Whether recovery of the penalty from gratuity is permissible.
Legislation cited
- Food Corporation of India (Staff) Regulations, 1971 — s. Regulation 54, Regulation 56, Regulation 58, Regulation 59, Regulation 72, Regulation 74
Subjects
- disciplinary proceedings
- natural justice
- Food Corporation of India
- reduction in rank
- salary withholding
- gratuity recovery
- show cause notice
- administrative law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15803 of 2013
======================================================
Babban Kumar Srivastava Son Of Sri Ram Chandra Prasad Resident Of
Pushp Mansion, Mohalla- Alkapuri, Bhagwanpur, P.S.- Muzaffarpur Town,
District- Muzaffarpur Bihar
... ... Petitioner/s
Versus
1. The Union Of India through the Secretary, Ministry of Food, Government of
India, Krishi Bhawan, New Delhi
2. The Food Corporation Of India, 16-20, Bara Khamba Lane, New Delhi
3. The Managing Director, Food Corporation Of India, 16-20, Bara Khamba
Lane, New Delhi
4. The Executive Director East Zone, Food Corporation Of India, 10 A- Middle
Ton Row, Kolkata- 700071
5. The General Manager, Region, Food Corporation Of India, Regional Office,
Exhibition Road, Patna- 800001
6. The Area Manager, Food Corporation Of India, District Office Muzaffarpur
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prerna Rishi, Advocate
For the Respondent/s : Mr. N. A. Shamsi, ASG
For the FCI : Mr. Shashidhar Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR
CAV JUDGMENT
Date : 15-05-2026
Heard the parties.
2. The present writ petition has been filed for the
following reliefs:-
“i) For issuance of writ in the nature of
certiorari or any other appropriate
order or direction for quashing the
order dated 29.09.2007 passed in
disciplinary proceeding by Sri A.K.
Verma, General Manager (Region),
Food Corporation of India,
Regional Office, Patna, whereby
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and whereunder in exercise of the
powers conferred under Regulation-
56 and Appendix-II r/w Regulation-
54 of the Food Corporation of India
(Staff) Regulations, 1971 imposed
upon the petitioner, the penalty of
reduction to a lower post of AG II
(D) fixing his pay at the initial stage
of the pay scale of AG-II (D) and
recovery of Rs. 3,00,000/- (Rs. 3
lacs) only. Recovery will be made
from his salary not exceeding 1/3 of
his pay and remaining amount will
be recovered from permissible
terminal benefits of his retirement
with further direction that he will
earn normal increment in the
reduced post in accordance with
existing rule and his seniority to be
counted from the date of this penalty
order. The penalty is effective from
the date of the order.
It was further ordered by him that
the period of suspension as per
order issued by his office order of
even number dated 14.10.2005 and
revocation order issued under
reference of even number dated
06.05.2006 will be treated as not
spent on duty and the petitioner will
not get any amount against the
period of suspension except the
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subsistence allowance already paid
to him.
ii) For issuance of a writ in the nature
of certiorari or any other
appropriate order or direction for
quashing the order dated
12.01.2009 passed by the Executive
Director (EZ) as being the appellate
authority in exercise of power
conferred to him under Regulation-
72 of the F.C.I. (Staff) Regulations,
1971 rejected the appeal petition of
the petitioner and declined to
interfere with the order of the
Disciplinary authority as contained
in Annexure-1.
Iii) For issuance of a writ in the nature
of certiorari or any other
appropriate order or direction for
quashing the order dated
13.12.2012 passed in Review
Petition by the Reviewing Authority,
namely, the Managing Director of
the Food Corporation of India,
H.O., New Delhi, who in exercise of
power conferred to him under
Regulation-74 of F.C.I. (Staff)
Regulation, 1971 rejected the
Review petition preferred by the
petitioner in the Vigilance Case No.
Vig.3(934)/2005.”
3. The brief facts giving rise to the present writ petition
are that the petitioner was an employee of Food Corporation of
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India Limited (hereinafter referred to as the ‘corporation’) and was
initially appointed as an Assistant Grade-III (Depot) on
16.01.1978. He was promoted to the post of Assistant Grade-II
(Depot) on 02.09.1998 and further promoted to the post of
Assistant Grade-I (Depot) on 19.02.2005. The petitioner
superannuated from service on 31.01.2013. While the petitioner
was posted in the district office of Corporation at Muzaffarpur, a
memorandum was served upon him on 06.05.2006 for certain
irregularities committed by the petitioner and it was proposed to
hold an enquiry in terms of Rule 58 of the FCI (Staff) Regulations,
1971. Pursuant to the said memorandum, the petitioner submitted
his defence brief (statement) before the Enquiry Officer on
22.11.2006, requesting him to exonerate the petitioner from the
charges levelled against him. The enquiry officer proceeded with
the enquiry and after conclusion of the enquiry, submitted his
enquiry report, before the disciplinary authority on 25.11.2006.
Second show cause notice was issued to the petitioner, which he
replied on 15.12.2006, however without even considering the reply
to the second show cause notice, submitted by the petitioner, the
disciplinary authority i.e. G.M. (Region), Regional Office, FCI,
Patna vide impugned order issued vide Ref. No. vig.3(934)/2005
dated 29.09.2007 proceeded to award punishment, in exercise of
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the powers conferred under Regulation 56 and Appendix-II r/w
Regulation-54 of the Food Corporation of India (Staff) Regulation,
1971, whereby he imposed the penalty of reduction to a lower post
of AG-II (D) fixing his pay at the initial stage of the pay scale of
AG-II(D) and recovery of Rs. 3,00,000/- from the petitioner. It was
further ordered that recovery will be made from his salary, not
exceeding 1/3 of his pay and remaining amount will be recovered
from the permissible terminal benefits of his retirement with a
further direction that he will earn normal increment in the reduced
post in accordance with the existing rule and his seniority to be
counted from the date of this penalty order. It was further ordered
that the penalty will be effective from the date of the order and the
period of suspension as per the order issued by this office dated
14.10.2005 and revocation order issued on 06.05.2006 will be
treated as not spent on duty and the petitioner will not get any
amount against the period of suspension, except the subsistence
allowance, already paid to him. Being aggrieved with the order of
punishment dated 29.09.2007, the petitioner preferred statutory
appeal before the appellate authority on 21.11.2007, wherein he
stated that no evidence was found against him and he has not
committed any misconduct, even then the enquiry officer by
ignoring the evidence and the materials available on record,
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proceeded to hold the petitioner guilty of the charges levelled
against him. The appellate authority without even examining the
points raised by the petitioner in his memo of appeal, proceeded to
reject the appeal of the petitioner, vide his order dated 12.01.2009.
Being aggrieved with the order dated 12.01.2009 passed by the
appellate authority, the petitioner preferred review petition on
17.03.2009, for review of the order dated 12.01.2009, whereby his
appeal was rejected. When no order was passed on the review
preferred by the petitioner, he submitted a detailed representation
on 18.05.2012, with a request to take a decision on his review
petition, since the petitioner was on verge of retirement and he was
suffering with economical loss and mental harassment, but no
action was taken by the authorities concerned. The petitioner,
having no other alternative remedy, filed a writ petition which was
numbered as C.W.J.C. No. 14484 of 2012. The writ petition was
heard by a Hon’ble Single Judge and after hearing the parties, the
same was disposed of vide order dated 09.08.2012, with a
direction to the petitioner to approach the Managing Director of
the Corporation along with a copy of the order and the Managing
Director of the Corporation was directed to consider the same in
accordance with law and to decide the same by a speaking order
within the period of three months thereafter. Pursuant to the order
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dated 09.08.2012 passed in C.W.J.C. No. 14484 of 2012, the
petitioner filed a representation on 17.08.2012 along with the copy
of the review petition dated 17.03.2009 and the order dated
09.08.2012, with a request to take decision on the matter within
three month’s period, fixed by the Hon’ble Court. The Managing
Director vide his order bearing no. A & R/10 (47) 2009 dated
13.12.2012 dismissed the review petition preferred by the petition.
4. The learned counsel for the petitioner submits that the
penalty imposed by the disciplinary authority is disproportionate to
the gravity of the offence/alleged misconduct. He submits that the
order not to grant full salary to the petitioner for the period under
suspension has been passed without assigning any reason for the
same and the provisions contained in Regulation 54, 58 and 59 of
the FCI (Staff) Regulation, 1971 was not followed before
imposing penalty upon the petitioner. Although some documents
were requisitioned by way of defence for proving the innocence of
the petitioner, but, it was not provided to the petitioner and even
the non-availability certificate was not delivered as per Rules, to
the petitioner, thereby the petitioner has been deprived of the
reasonable opportunity to defend himself. The enquiry officer as
well as the disciplinary authority did not consider the defence
statement of the petitioner, before awarding the punishment to the
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effect that the petitioner, at the relevant time, was A.G.-II(D) and
was discharging the duty as Pay Point In-charge, whose duty was
to prepare cheques as per acknowledgment/acceptance issued by
the In-charge of PPC, Narkatiaganj one Satish Kumar, A.M. (QC)
and one Ajay Kumar Singh, who was posted as A.G.-II (D) and
discharging the duty as Shed In-charge, was responsible for storing
the food grains after taking its weight. He further submits that both
the above-mentioned persons remained at Narkatiaganj up to
30.11.2004 and all of a sudden were transferred by the Area
Manager, Muzaffarpur and were relieved without handing and
taking over charge of the stocks. The charge-sheet is also silent
about handing over and taking over of the stocks and has also not
been proved. The petitioner had taken over the charge of stores,
but the Enquiry Officer and the Disciplinary Authority ignored this
vital aspect of the matter and certain documents relating to the
proceedings were shown to the petitioner, just before
commencement of the proceeding on 31.10.2006, which were
brought from the District Office of the Corporation at
Muzaffarpur. Copy of such document was not provided to the
petitioner and even no opportunity was given to the petitioner for
preparing defence for the effective cross examination of
prosecution witnesses, by giving time, which is in complete
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violation of provisions contained under Regulation 58 of the F.C.I.
(Staff) Regulation, 1971, which inter alia provides that 3 days’
clear time, excluding the date of inspection of documents and the
date of commencement of examination of witnesses, be given to
prepare the defence of the case and the same is also violative of
the principles of natural justice and fair play. Due to the imposed
penalty order, the petitioner sustained huge and recurring financial
loss. The recoverable amount has also been recovered from his
gratuity, which cannot be deducted or recovered by way of penalty
as gratuity is not a bounty, therefore, the petitioner is entitled for
the entire amount of gratuity.
5. The learned counsel for the petitioner further submits
that so far the punishment of treating the period under suspension
as not spent on duty is concerned, it will appear that no specific
show cause for withholding payment, other than the subsistence
allowance, was given to the petitioner, before passing of the order
imposing penalty and it is well settled that for withholding any
payment of the suspension period, such allowance, a show cause is
necessary to be given to the delinquent and no salary can be
withheld for the period under suspension, without prior notice.
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6. The learned counsel for the petitioner finally submits
that the order passed by the disciplinary authority as well as the
appellate authority is wholly without jurisdiction and is arbitrary.
7. Per contra, the learned counsel appearing on behalf of
the F.C.I. i.e. respondent no.2 to 6 submits that while posted as
AG-I(D) of PPC, Narkatiaganj, the petitioner committed gross
negligence in performance of the duty and acted in a manner
detrimental to the interest of the Corporation, failed to maintain
absolute integrity, devotion to duty and failed to keep the depot
records up-to-date, which resulted in huge shortages of foodgrains,
detected by District Physical Verification Team. Being the sole in-
charge of the depot, it was the primary duty of the petitioner to
keep the depot records up-to-date and take proper care of the
foodgrains kept there, but the petitioner failed to do so and despite
all the efforts made by the Physical Verification Team, the stock
ledger, gunny account register, etc were not placed before the
Physical Verification Team. Due to shortage of such huge quantity
of foodgrains, the Corporation sustained heavy financial loss. The
matter was examined at the level of the corporation and charge-
sheet was issued to the petitioner under Regulation 58 of the F.C.I.
Regulation. An enquiry was set up by appointing an enquiry
officer and the presenting officer vide order dated 11.06.2006. The
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enquiry officer after conducting due enquiry submitted his enquiry
report on 25.11.2006, whereby he found the charges for shortage
of rice and gunnies to be proved. Enquiry report was duly served
upon the petitioner and the petitioner filed his written submission
on 15.12.2006. The disciplinary authority after examining the
records, reply of the petitioner, oral and documentary evidence
adduced before the enquiry officer, came to the conclusion that
the petitioner is directly involved in shortage of 1338.74 quintal of
rice and guilty of the charges levelled against him. Accordingly,
the disciplinary authority proceeded to pass the order of
punishment dated 29.09.2007. The petitioner preferred statutory
appeal, however the same was rejected and the review application
filed by the petitioner was also rejected vide order dated
13.12.2012. He further submits that while imposing the order of
punishment against the petitioner, all the required procedures have
been followed by the competent authority and the punishment has
been passed in accordance with the existing rules and regulations
of the corporation and there is no illegality or infirmity in the
punishment order passed by the disciplinary authority.
8. Having heard the learned counsel for the parties and
after going through the records, it appears that a departmental
proceeding was initiated against the petitioner for certain
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irregularities committeed by him on 06.05.2006 in terms of Rule
58 of the FCI (Staff) Regulation 1971. The petitioner submitted his
defence brief before the enquiry officer, which was not accepted
and the enquiry officer proceeded with the enquiry. After
conclusion of the enquiry, he submitted his report before the
disciplinary authority, whereby he found the petitioner guilty of
the charges levelled against him. Second show cause notice was
issued to the petitioner, which was duly replied by him. The
disciplinary authority by the impugned order dated 29.09.2007,
proceeded to award punishment in terms of Regulation 56 and
Appendix-II r/w Regulation 54 of the FCI (Staff) Regulation,
1971, whereby penalty of reduction to a lower post of AG-II (D),
fixing his pay at initial stage of AG-II (D) and recovery of Rs.
3,00,000/- from the petitioner was awarded. Some other
punishment was also awarded, including the order that the period
of suspension i.e. 14.10.2005 to 06.05.2006 will be treated as not
spent on duty and the petitioner will not get any amount against
the period under suspension, except the subsistence allowance,
already paid to him. He filed an appeal before the appellate
authority, which was rejected on 12.01.2009. The petitioner
preferred Review Petition on 17.03.2009, which was finally
dismissed on 13.12.2012. It appears that during the entire
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departmental proceeding, petitioner was given an opportunity to
appear and place his defence, which he duly filed, however it was
alleged by the petitioner that some documents were not provided
to him and he was denied reasonable opportunity to defend
himself. It appears that petitioner duly participated in the
departmental proceeding and after considering the reply submitted
by the petitioner and his defence at the time of disciplinary enquiry
was also considered, the enquiry officer submitted the report,
wherein the petitioner was found guilty of the charges levelled
against him. Even the disciplinary authority, after duly
considering the report of the enquiry officer and the reply to the
second show cause notice submitted by the petitioner, proceeded
to award order of punishment against him. The petitioner failed to
perform his duties to keep the depot reports up to date and he did
not provide the same to the verification team at the time of
inspection. Due to dereliction of duty on the part of the petitioner,
the corporation suffered loss and he was awarded the penalty
which, in the opinion of this Court, does not require any
interference and the same is accordingly not interfered with.
9. So far the second contention of the petitioner to the
effect that before passing the order, imposing penalty of
withholding the entire payment for the period under which the
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petitioner was under suspension, except the amount which was
already paid to the petitioner during period of suspension is
concerned, admittedly no show cause was issued to the petitioner
before passing the order of not making payment of any further
amount, apart from what was paid to him during the period under
suspension. The memo of charge was issued to the petitioner for
certain other charges and there was no charge with regard to
withholding of his entire payment for the period, during which he
remained under suspension, therefore, even the enquiry was not
conducted for the said purposes. It was incumbent upon the
disciplinary authority to give notice/show cause to the petitioner,
before passing the order of withholding of his salary, apart from
whatever paid to the petitioner during period of suspension.
10. The Hon’ble Supreme Court of India in a case
reported in 2026 SCC OnLine SC 813 (Dr. Nigam Prakash
Narain Versus the National Medical Commission &Ors.), in
paragraph no.12 has held as follows:-
“12. Once the charge originally framed against Dr.
Narain was successfully defended by him, the
Ethics Committee (on being prodded by the
Executive Committee) proceeded to hold Dr.
Narain guilty of an act of omission, which was at
variance with the charge. This was without
informing him of the same and without calling for
his explanation. There has, indeed, been a breach
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of principles of natural justice. A coordinate
bench of this Court in Ravi Oraon v. State of
Jharkhand20 has held that once a delinquent
employee had successfully defended a charge, the
disciplinary authority, in absence of a fresh show
cause notice, cannot punish the delinquent
employee on a completely different charge which
was not framed. This would be a denial of fair and
reasonable opportunity of hearing and in violation
of the principles of natural justice. Thus, the
Executive Committee could not have imposed the
punishment without issuing a fresh show cause
notice and/or without granting Dr. Narain a fair
and reasonable opportunity to respond to the
new/alternative charge under consideration. We
quite appreciate that the Executive Committee's
decision, to that extent, does suffer from a serious
flaw.”
11. Accordingly, the punishment to the effect that the
petitioner will not be entitled for any amount, except the
subsistence allowance, which was paid to him during the period of
suspension i.e. 14.10.2005 to 06.05.2006 is not sustainable and is
accordingly set aside.
12. The petitioner will be entitled for payment of entire
salary for the period in between 14.10.2005 to 06.05.2006, after
deducting the amount, if any, paid to the petitioner during the said
period, towards subsistence allowance. The entire payment shall
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be made to the petitioner within a period of three months from the
date of receipt/production of the copy of the order.
13. With the aforementioned observation and direction,
the writ petition is allowed in part.
14. Pending application, if any, shall also stands
disposed.
(Ritesh Kumar, J)
AjayMishra/-
AFR/NAFR
CAV DATE 06.04.2026
Uploading Date 15.05.2026
Transmission Date NA
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