# Phool Chandra(Since Deceased and represented by LRs.) v. F.C.I. & Ors

- **Citation:** (2020) 8 ILRA 117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-25
- **Case number:** Writ A No. 50151 of 2003
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chandra-since-deceased-and-represented-by-lrs-v-f-c-i-ors-45339
- **Pages:** 15

## Headnote

A. Service Law - Food Corporation of
India Act, 1964 U.P. Panchayat Raj Act,
1947 - Section 5-A(c) - Industrial
Employment
(Standing
orders)
Act,
1946 - Clauses 14, 15(2), (5), (7), 16(2)
Departmental/Disciplinary Proceedings -
the proceedings were conducted for alleged
misconduct under Clause 15(7) and 16(2) but
the punishment order dated 26.05.2004 shows
that petitioner was held guilty of misconduct
under Clause 15(2), (5) and (7) of the S.O.,

## Text

_Characters 0–39,682 of 47,687. This is a partial read: ask again with offset=39682 for what follows._

8 All. Phool Chandra (Since Deceased and represented by LRs Vs. F.C.I. & Ors.
117
याची आरक्षी द्वारा अपिी अपील के साथ भी ऐसा
क ई साक्ष्य/अनभलेख प्रस्तुर्त िहीों नकया गया है
नजससे की बीट क्षेत्र र्तम्बाक स्ट्रीट अन्य आरनक्षय ों
क आवोंनटर्त ह िे सम्बिी उसके र्तका की पुनि ह
सके। " अर्तः यह र्तका बलहीि ह िे के कारण
अस्वीकार नकया जार्ता है।

१५. याची को बार बार अपना उिर देने के
लिए बुिाया गया र्ा, परन्र्ु याची ने सूचना होने
के बाद िी जबाव दाखिि नहीिं ककया अर्ः
नैसचगतक न्याय के लसद्धान्र्ों का पररपािन न
होने का र्कत, दस्र्ावेज पर उपजस्र्र् साक्ष्य के
पवपररर् है। अर्ः यह र्कत िी अमान्य ककया जार्ा
है।

१६. याची ने न्यायािय द्वारा ननगतर्
अचधपत्र को अलियुक्र् को प्रेपिर् करने की
कोलशश नहीिं की। याचचका पर उपजस्र्र्
दस्र्ावेजों के अनुसार याची ने अचधपत्र को प्रेपिर्
करने के लिए उचचर् कदम नहीिं उठाये र्र्ा
न्यायािय के समक्ष भ्रामक आख्या पेश करी। यह
समस्र् कृर् याची द्वारा जस्र्ि कायतवाही व
िापरवाही के पररचायक है। वर्तमान प्रकरण में
याची को ददया गया दण्ड िी असिंगर् नहीिं कहा जा
सकर्ा है।

१७. सिंवैधाननक न्यायािय अपने न्यानयक
पुनररक्षण
अचधकार
क्षेत्र
के
अन्र्गतर्,
अनुशासनात्मक कायतवाही में हस्र्क्षेप र्ब ही कर
सकर्ा है, जब उक्र् कायतवाही का ननष्कित पवकृर्
या आधारहीन हो। परन्र्ु वर्तमान प्रकरण में याची
यह साबबर् करने में असमर्त रहा कक उसके
पवरुद्ध की गयी अनुशासनात्मक कायतवाही का
ननष्कित पवकृर् या आधारहीन र्ा। अर्ः वर्तमान
प्रकरण में यह न्यायािय अनुच्छेद २२६ के
अिंर्गतर् याची को कोई राहर् नहीिं दे सकर्ा है।

१८. याची ऐसा कोई र्थ्य इस न्यायािय के
सामने िाने में असमर्त रहा है, जजससे अनुच्छेद
२२६ की शजक्र्यों का उपयोग ककया जा सके।
अर्ः वर्तमान याचचका बिहीन होने के कारण
अस्वीकार की जार्ी है। व्यय पर कोई आदेश
पाररर् नहीिं ककया जा रहा है।
----------
(2020)08ILR A117
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ A No. 50151 of 2003

Phool
Chandra(Since
Deceased
and
represented by LRs.) ...Petitioner
Versus
F.C.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh, Sri Prakhar Tandon, Sri P.K.
Misra, Sri Vinay Singh, Sri Vijay Singh.

Counsel for the Respondents:
C.S.C., Sri A.K. Singh, Sri A. Singh, Sri
Amit Kumar, Sri Raj Kumar Singh, S.C.,
Sri Satish Chaturvedi, Sri Satya Prakash

A. Service Law - Food Corporation of
India Act, 1964 U.P. Panchayat Raj Act,
1947 - Section 5-A(c) - Industrial
Employment
(Standing
orders)
Act,
1946 - Clauses 14, 15(2), (5), (7), 16(2)
Departmental/Disciplinary Proceedings -
the proceedings were conducted for alleged
misconduct under Clause 15(7) and 16(2) but
the punishment order dated 26.05.2004 shows
that petitioner was held guilty of misconduct
under Clause 15(2), (5) and (7) of the S.O.,
1946. Since the charges of misconduct under
Clause 15(2) and (7) were not levelled upon
petitioner, the same could not have been taken
into consideration to hold him guilty of such
misconduct as the order then would travel
118 INDIAN LAW REPORTS ALLAHABAD SERIES
beyond charge-sheet which will vitiate the order
of punishment. (Para 27)
In the case of unauthorized absence, it
is not the mere absence but absence
must be without any lawful or valid
reason. In present case, petitioner has
categorically stated that he sought
leave on medical ground and his request
for such leave was not found to be
ingenuine, fictitious or imaginary. (Para
37 & 39)
The Petitioner was engaged as Ancillary
Labour meanwhile he contested election for
Village Pradhan. The breach of Section 5-A(c)
of U.P. Act, 1947 would not be come into play
as the provision is applicable in respect of
eligibility for contesting election on the post of
Gram Pradhan and has nothing to do with
employment under FCI. If petitioner was not
eligible, his election as Gram Pradhan may
have been bad but that will not vitiate his
employment in FCI. (Para 40)
The Law is well settled that if an act or
omission
is
not
described
to
be
a
misconduct, it cannot be an act or omission
inviting disciplinary proceedings. (Para 46)
Writ Petition allowed. (E-10)

List of cases cited:-

1. Krushnakant B. Parmar Vs U.O.i. & anr.
(2012) 3 SCC 178

2. St. of Pun. Vs Dr. P.L. Singla (2008) 8 SCC 469

3. A.L. Kalra Vs Project and Equipment
Corporation of India Ltd. (1984) 3 SCC 316

4. Glaxo Laboratories (I.) Ltd Vs Presiding Officer
Labour Court, Meerut AIR 1984 SC 505
5. Rasiklal Vaghajibhai Patel Vs Ahmedabad
Municipal Corporation & anr. (1985) 2 SCC 35

6. Santosh Kumar Shukla Vs Syndicate Bank
2014 (5) ADJ 370

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri V.K.Singh, Senior
Advocate,
assisted
by
Sri
Prakhar
Tandon, learned counsel for petitioner,
Sri Raj Kumar Singh, learned counsel for
respondents and perused the record.

2. The sole petitioner Phool Chandra
(died during pendency of petition and has
been substituted by Legal Heirs) filed this
writ
petition
under Article
226
of
Constitution of India, being aggrieved by
order dated 28.06.2003 (Annexure 9 to the
writ petition) passed by District Manager,
Food Corporation of India, Allahabad
(hereinafter referred to as "Disciplinary
Authority") placing him under suspension
with effect from 28.6.2003; order dated
26.05.2004 (Annexure 12 to the writ
petition) passed by Disciplinary Authority
imposing punishment of dismissal; and
order
dated
15.12.2012/05.01.2013
(Annexure 16 to the writ petition) passed
by General Manager, Food Corporation of
India
Regional
Office
Lucknow
(hereinafter referred to as "Appellate
Authority") dismissing appeal of petitioner
against order of punishment of dismissal.
Petitioner has also prayed for consequential
benefits.

3. Facts in brief, giving rise to
present writ petition, are that, Food
Corporation of India (hereinafter referred
to as "F.C.I.") is a statutory body
constituted under Food Corporation of
India Act, 1964 (hereafter referred to as
"Act, 1964') and is an instrumentality of
Central Government hence ''State' within
the meaning of Article 12 of Constitution
of India. Petitioner was engaged as
Ancillary Labour on 16.06.1973. In
2000, petitioner contested election of
Village Pradhan in his Village Gotawan,
Tehsil Phoolpur, District Allahabad and
elected as such. Despite having been
8 All. Phool Chandra (Since Deceased and represented by LRs Vs. F.C.I. & Ors.
119
elected as Pradhan, he continued to
discharge duties as Ancillary Labour with
F.C.I. On 08.12.2001, petitioner fell ill
and proceeded on casual leave for one
day sending leave application dated
08.12.2001. The condition of petitioner
did not improve and he was detected of
suffering
"Infectious
Hepatitis".
He
applied for extension of leave and after
recovery
submitted
joining
on
27.03.2002.

4. During period of absence, petitioner
was given Assembly Election Ticket from
Apna Dal Party from Handia Constituency
in which due to ailment, he could not
canvass and his canvassing was done by his
supporters.
Petitioner's
application
for
joining
was
forwarded
by
Assistant
Manager (Industrial Relation Labour) F.C.I.,
Allahabad to Disciplinary Authority vide
letter dated 15.04.2002 for necessary
guidance. Disciplinary Authority forwarded
the matter to Joint Manager (Industrial
Relation) F.C.I., Lucknow vide letter dated
03.05.2002. Ultimately, Senior Regional
Manager vide letter dated 21.05.2002
directed Disciplinary Authority to enquire
into cause of absence of petitioner and
submit detailed report.

5. A charge-sheet dated 20.11.2002
was served upon petitioner containing
three charges as under :

^^v- tSlk fd vki fcuk fdlh
vuqefr ds] fcuk fdlh vodk'k dh Lohd`fr ds
fnukad 8-12-2001 ls vuqifLFkr py jgs gSa pkj
eghus ckn vki fnukad 7-12-01 ls 26-3-2002
fpfdRlk izek.k i= ds lkFk fnukad 27-3-2002
dks uSuh fMiksa esa mifLFkr gq, ;g lwfpr djrs
gq, fd og chekjh ds dkj.k M~;wVh ij mifLFkr
ugha gks ldk] bl lanHkZ esa fcuk vuqefr ds
xk;c gksus ds fy, vkils Li"Vhdj.k izLrqr
djus dks dgk x;k fQj mlh fnu fnukad 27-302 dks fcuk fdlh lwpuk vuqefr ds xk;c
1⁄4vuqifLFkr1⁄2 gks x;s] vkSj vHkh Hkh xk;c py
jgs gSaA fQj vkius lwfpr fd;k] fnukad 27-4-02
dks fd og 8-12-2001 ls vLoLFk py jgk gS
vkSj mlh vof/k esa vius utnhdh yksxksa ds
ncko esa vkdj mRrj izns'k fo/kku lHkk pquko
yMk gSA

c- tSlk fd tkap 1⁄4bUDok;jh1⁄2 fjiksVZ
esa Li"V gks x;k fd vkius pquko yMk tksfd
vfr xEHkhj o vuq'kklughurk dk |ksrd gS]
vkSj iz'kklfud n`f"V ls foHkkxh; vuq'kklu ds
fo:) gSA

l- tSlk fd 17 tqykbZ dks
bykgkckn ds ftykf/kdkjh Jh nsos'k prqosZnh
}kjk ,d i= uSuh fMiksa vf/kdkjh dks Hkstk x;k
ftlds }kjk ;g voxr djk;k x;k fd Jh
QwypUnz tks uSuh fMiksa esa dk;Zjr gS og orZeku
le; esa xzke iz/kku xksrkok fodkl [k.M
cgknqjiqj 1⁄4bykgkckn1⁄2 ds iz/kku gSa tks fd ,d
xEHkhj ekeyk izdk'k esa vk;k gS ftlds lanHkZ
esa vkius foHkkx dks dHkh dksbZ lwpuk u nh vkSj
u gh dksbZ vuqefr yh vkSj u gha foHkkx dks
R;kx i= fn;k] vkius foHkkx ls vlfy;r dks
fNik;kA**

"A. That you have been absent
since 8.12.2001 without getting leave
sanctioned and after four months on
27.3.2002 you presented yourself at
Naini Depot with a medical certificate
for leaves from 7.12.2001 to 26.03.2002
thereby informing that due to illness you
could not report for duty. In this respect,
you wee asked to submit explanation
regarding your absence without any
permission but on the same day i.e.
27.03.2002
you
again
disappeared
(absent) without any information and
are still absent. Thereafter, on 27.4.2002
you informed that you have been ill since
8.12.2001 but in the same period you
contested U.P. Assembly Election out of
pressure exerted by your near ones.

B. As evident in the Inquiry
report, the fact that you contested
election is very serious and reflective of
120 INDIAN LAW REPORTS ALLAHABAD SERIES
indiscipline
and
is
against
the
departmental
discipline
from
the
administrative point of view.

C. That a letter was sent to the
Depot Officer, Naini by the District
Magistrate,
Allahabad
Sri
Devesh
Chaturvedi whereby it was informed that
a serious case related to Sri Phool
Chandra, working in Naini Depot,
presently being Pradhan of Village
Gatava, Block Bahadurpur (Allahabad)
has come into light. With regard to the
aforesaid,
you
neither
give
any
information to the department nor
abstained any permission nor submitted
resignation to the department, thus
concealed reality from your department.
(English Translation by Court)
(Emphasis added)

6. Petitioner submitted reply dated
10.01.2003 stating that there was no
provision in Standing Order restraining
employee from contesting election and
his absence was also for valid reasons
since he suffered Infectious Hepatitis.
The matter of giving leave remained
pending with authorities for which
petitioner is not at fault. In the meantime
petitioner also applied vide letter dated
20.04.2003 for sanction of leave from
08.12.2001 to 26.03.2002. He requested
for grant of leave as medical as well as
earned leave.

7. Thereafter, petitioner was placed
under suspension vide order dated
28.06.2003. As per order of suspension,
petitioner was guilty of misconduct under
Clauses 14, 15(5), (7) and 16(2) of
Standing
Orders
applicable
to
departmental workers working in North,
East and North-East Zone, certified by
Competent Authority under Industrial
Employment (Standing Orders) Act,
1946 (hereinafter referred to "S.O.,
1946").

8. Petitioner's election as Gram
Pradhan was set aside by District
Magistrate vide order dated 06.01.2003
on the ground that he was holding an
office of profit. This order of District
Magistrate was challenged in Writ
Petition No.5323 of 2003, which was
allowed by a learned Single Judge
(Hon'ble
Sunil Ambwani,
J.)
vide
judgment
dated
19.02.2003.
Thereagainst,
complainant
Smt.
Chandrawati Devi filed Special Appeal
no.183 of 2003 but the same was
dismissed by a Division Bench vide
judgment dated 19.08.2004.

9. Challenging order of suspension,
present writ petition was filed that
petitioner
has
not
committed
any
''misconduct' under Clauses 14, 15(5), (7)
and 16(2) of S.O., 1946. In the matter of
charge sheet issued to petitioner, inquiry
report dated 05.03.2004 was submitted
by Assistant Manager, F.C.I., Allahabad
holding following charges proved:

 ^^1- vkjksi 1& Jh QwypUnz l-
Jfed Vks- ua- 11 1⁄4fuyafcr1⁄2 Hkk-[kk-fu- uSuh fcuk
fdlh vuqefr dks fo/kku lHkk] xzke iz/kku dk
pquko yM+k tks fu;ksDrk ds izfr gsjk Qsjh]
csbZekuh vkSj ,d xEHkhj vijk/k gSA

2- og foHkkx] ls fcuk fdlh vuqefr
,oa Lohd`r ds 15 fnuksa ls vf/kd vuqifLFkr
jgs tks vuq'kklughurk ,d dnkpkj dh ifjf/k
esa vkrk gSA**

"Charge
1:
Shri
Phoolchandra, Assistant Workman, To.
No.
11
(under
suspension),
Food
Corporation of India, Naini, without any
permission, contested elections to the
Legislative Assembly and for Gram
8 All. Phool Chandra (Since Deceased and represented by LRs Vs. F.C.I. & Ors.
121
Pradhan, which is a mischief, dishonest
act and serious offence against the
employer.

He, without permission and
sanction of the department, remained
absent from work for more than 15
days, which comes under the ambit of
indiscipline and misconduct."

 (English Translation by Court)
 (Emphasis added)

10. Inquiry Officer held both the
charges proved. Copy of inquiry report
was
forwarded
to
petitioner
vide
Disciplinary Authority's
letter
dated
25.03.2004. Petitioner submitted reply
whereafter
punishment
order
dated
26.5.2004 was passed by Disciplinary
Authority
imposing
punishment
of
dismissal upon petitioner holding him
guilty of committing misconduct under
Clauses 15(2), 15(5) and 15(7) of S.O.,
1946 and Section 5-A(c) of U.P.
Panchayat Raj Act, 1947 (hereinafter
referred to as "U.P. Act, 1947").
Disciplinary Authority has also held that
petitioner
has
committed
an
act
subversive
of
discipline
of
good
behaviour in F.C.I. Petitioner preferred
an appeal vide memo of appeal dated
15.10.2012, which has been dismissed
vide order dated 15.12.2012/05.01.2013.

11. Sri V.K.Singh, learned Senior
Counsel appearing for petitioner has
challenged
impugned
order
of
punishment as well as appellate order on
the ground that, firstly, Disciplinary
Authority has taken into consideration
allegations of misconduct, which were
not part of charge sheet at any point of
time
and
therefore
has
punished
petitioner on charges, which were never
leveled upon him, and, Secondly, under
Standing Orders, petitioner has not
committed any misconduct whatsoever.

12. Respondents have filed counter
affidavit stating that petitioner was a
regular departmental labour and enjoyed
all the benefits under relevant rules. He
was paid wages as per wage structure
applicable to departmental labour in
F.C.I. Petitioner concealed the fact that
he contested election of Gram Pradhan
and this fact came to knowledge of FCI
when letter dated 17.7.2002 was received
from District Magistrate making certain
inquiry
whether
petitioner
was
a
temporary or permanent workman or not.
FCI
submitted
reply
to
District
Magistrate vide letter dated 20.07.2002
informing that petitioner is a Permanent
Labour Assistant since 16.06.1973 but
absent from 08.12.2001. Petitioner infact
was not ill but on the pretext of illness,
he was actually contesting election and
therefore played fraud upon Employer.
His theory of deterioration of health
condition due to serious illness was also
false. In fact, he himself moved an
application dated 15.01.2002 seeking
permission to contest election. Copy of
this letter has been filed as Annexure
C.A.4. He contested election without any
prior permission from employer. He was
not ill but submitted application on
27.03.2002 for extension of leave with
medical certificate. His initial application
dated 07.12.2001 was for 3 days leave
and thereafter he never submitted any
application except application dated
27.3.2002. On 28.3.2002, (Annexure CA5 to the counter affidavit), petitioner
submitted an application stating that he is
present for duty and in future he will not
commit such mistake. Contents of letter
dated 28.3.2002 sent by petitioner, read
as under :
122 INDIAN LAW REPORTS ALLAHABAD SERIES

^^vkids Le`fr i= fnukad 27-3-02 ds
lUnHkZ esa eq>s dguk gS fd izkFkhZ fnukad 8-122001 dks vkdfLed vodk'k ysdj x;k Fkk
ijUrq chekj gks tkus ds dkj.k dk;ZLFky ij
mifLFkr ugha gks ldk ftldh lwpuk fnukad 812-2001 dks vkidks fHktok fn;k FkkA blds
ckn eSa yxkrkj chekj py jgk FkkA LoLF;
gksus ij fnukad 27-03-2002 dks iqu% viuh
M~;wVh ij mifLFkr gwWaA Hkfo"; esa vc ,slh
xyrh ugha gksxhA d`i;k eq>s fM;wVh djus dh
vuqefr iznku djus dh d`ik djsaA**

"With respect to your reminder
dated 27.03.2002, I have to say that the
applicant
availed
casual
leave
on
08.12.2001; but as he fell sick, he could
not report back to the work place, the
information of which was sent to you on
08.12.2001. Thereafter, I continuously
remained sick. On recuperation, I am
again reporting to duty on 27.03.2002.
In future, there will be no such mistake.
Kindly, permit me to resume my duties."

(English Translation by Court)

(Emphasis added)

13. Assistant Manager forwarded
his application but Disciplinary Authority
vide letter dated 28.03.2002/03.04.2002
directed Assistant Manager to submit
relevant documents in support of his
recommendation.
Assistant
Manager
thereafter sent letter dated 15.04.2002.

14. In view of contradictory
statement of petitioner, Disciplinary
Authority vide letter dated 23.4.2002
directed Assistant Manager to submit his
report after obtaining explanation from
petitioner. Assistant Manager then sought
explanation from petitioner vide letter
dated 27.4.2002. Petitioner in reply dated
27.4.2002, admitted that he has contested
election and sought permission also from
employer. Contents of letter dated
27.4.2002 read as under :

^^vkids dk;kZy; Le`fr i= fnukad
27-4-02 ds laca/k esa fuosnu ds lkFk ;g voxr
djkuk gS fd izkFkhZ fnukad 8-12-2001 ls
vLoLFk py jgk Fkk vkSj mlh vof/k esa vius
utnhdh yksxksa ds ncko esa mRrj izns'k fo/kku
lHkk pquko yM+us ds fy, rS;kj gksuk iM+kA
blh laca/k esa eSus vius vkosnu i= fnukad 251-2002 }kjk foHkkx ls pquko yM+us dh vuqefr
ekaxk Fkk rRi'pkr eSa iw.kZ LoLFk gksus ij
fnukad 27-3-2002 dks MkDVj ds fpfdRlk izek.k
i= ds lkFk fM;wVh ij mifLFkr gksdj fM;wVh
djus dh vuqefr ekaxkA

vr% Jheku~ th ls djc) izkFkZuk gS
fd izkFkhZ dks fM;wVh djus dh vuqefr iznku
djus dh egku d`ik djsaA**

"In
connection
with
your
office's reminder dated 27.04.2002, it is,
with due respect, to inform you that the
applicant
had
been
sick
since
08.12.2001; and in the meantime, he had
to get ready to contest the Uttar Pradesh
Legislative Assembly Election under
pressure of his near ones. In this very
context, I had, through my application
dated 25.01.2002, sought permission to
contest the election; thereafter, after
attaining fitness, I had, on 27.03.2002,
sought permission to join duties by
reporting to office in person with a
medical certificate issued by a doctor to
this effect.

Hence, I pray to you, sir, with
folded hands, to accord permission to
me, the applicant, to join duties. It will be
very grateful of your good-self."
 (English Translation by Court)
(Emphasis added)

15. Thereafter, Assistant Manager
submitted
report
dated
30.04.2002.
Petitioner did not submit any reply to the
8 All. Phool Chandra (Since Deceased and represented by LRs Vs. F.C.I. & Ors.
123
charge sheet. Thereupon, letters dated
07.01.2003 and 12.02.2003 were written
and then reply was submitted on
22.02.2003. Petitioner has committed
misconduct
under
Standing
Order
applicable to departmental labour hence
has been punished in accordance with
law.

16. Learned counsel for F.C.I.
sought
to
support punishment
and
appellate order on the basis of pleadings,
as noticed above.

17.

Punishment
order
dated
26.05.2004 shows that petitioner was
held guilty of misconduct under Clauses
15(2), 15(5) and 15(7) of S.O., 1946. In
the charge sheet, relevant provisions of
S.O., 1946 referred to are Clauses 15(7)
and 16(2) and in suspension order,
''misconduct' under Clauses 14 and 15(5)
of S.O., 1946 are referred to.

18. For the purpose of considering
whether an employee has committed
misconduct or not, it is the allegations
contained in charge-sheet, which are
relevant. However, I find it appropriate to
refer/reproduce Clauses 14, 15(2), 15(5),
15(7) and 16 (2) of S.O., 1946, as under :

"CLAUSE NO. 14 : LOSS OF
LIEN
ON
UNAUTHORISED
ABSENCE :

If a workman remains absent
for 15 days beyond the period of leave
originally
granted
or
subsequently
extended he shall be given 15 days
notice
(by
registered
post
with
acknowledgement due at his leave
address) to explain the cause for his
absence. In case his explanation is
received to the satisfaction of the leave
sanctioning authority or officer specified
in this behalf by the employer, he will not
lose his lien on his job. In case no
explanation is received or if received, it
is not considered satisfactory and
workman returns to duty, he will be give
a fresh appointment. He shall be entitled
to make a representation to the Sr.
Regional Manager for regularization of
the absence for continuity of service will
all consequential benefits, who shall
decide the issue on the basis of the
principles of natural justice. The decision
of the Sr. Regional Manager shall be
final.

CLAUSE
NO.
15
:
MISCONDUCT :

The
following
acts
and
omission shall be treated as misconduct
:-

x x x x

(2) theft, fraud or dishonesty in
connection with the employer's business
or property.

x x x x

(5) habitual absence without
leave or absence without leave for more
than 15 days.

x x x x x

(7)
breach
of
any
law
applicable to the establishment."

CLAUSE
NO.16
:
DISCIPLINARY
ACTION
FOR
MISCONDUCT

16(1)a) Where a disciplinary
proceedings
against
worker
is
contemplated or is pending and the
employer is satisfied that it is necessary
or desirable to place the workman under
suspension, he may, by order in writing,
suspend him with effect from such date as
may be specified in the order. A statement
setting out in detail the reasons for such
suspension shall be supplied to the
workman within a week the date of
suspension.
124 INDIAN LAW REPORTS ALLAHABAD SERIES

16(1)b) A workman who is
placed under suspension under clause (a)
shall
during
the
period
of
such
suspension
be
paid
a
subsistence
allowance as per the provisions of the
Section
10
A
of
the
Industrial
Employment
(Standing
Orders) Act,
1946.

16(2)a) Any act of indiscipline
or misconduct committed by workman
may be reported in writing to the
Disciplinary Authority.

16(2)b) On receipt of the
written
report
to
the
disciplinary
authority under sub clause (a) that a
worker
has
committed
an
act
of
indiscipline or misconduct, Disciplinary
Authority may make or cause to be
made such further investigation, as he
may deem fit, and thereafter subject to
the provisions under clause (c) below
take any of the following steps that is to
say he may impose any of the following
penalties.

i) Give him a warning in
writing.

ii) Suspend him for a period not
exceeding 4 days without pay at a time.

iii)
Stoppage
of
annual
increment without or with commutative
effect.

iv) Terminate his services after
giving 30 (thirty) days notice and

v) dismiss him.

16(2)(c)(i) Before any action is
taken for imposition of penalty specified
under sub clause (b) above, the worker
concerned shall be given an opportunity of
not less than 15 days by the Disciplinary
Authority, to show cause why the proposed
action should not be taken against him, and
also no order imposing any penalty shall be
made except after departmental inquiry held
in conformity with the principles of natural
justice. For that purpose interalia a charge
sheet may be issued therein specifying
charges on account of which disciplinary
action is proposed to be taken alongwith
statement of imputation against each
charge and lists of witnesses and documents
relied upon shall be intimated to the worker
concerned. Such charge sheet shall be given
by the Disciplinary Authority in English or
Hindi or the language of the state. His
explanation and such other written or oral
evidence as he may like to produce in his
defence and report of the Inquiry Officer
within 30 days shall be taken into account
in arriving at a final conclusion about the
penalty, if any, to be imposed on him. A copy
of the final order shall also be communicated
to the worker concerned in English or Hindi,
or the language of the State alongwith
certified copy of the enquiry report. A copy of
enquiry report shall be made available to the
charge-sheeted workman to enable him to
make representation if any, against the
finding of enquiry.

16(2)(c)(ii) If on the conclusion
of the inquiry workman been found guilty
of the charges framed against him and it
is considered, after giving the workman
concerned a reasonable opportunity of
making representation on the penalty
proposed, that an order or dismissal of
suspension
or
stoppage
of
annual
increment would meet the ends of justice,
the employer shall pass an order
accordingly.

16(2)(c)(iii) The proceedings of
the inquiry shall be recorded in Hindi or
in English or the language of the state.

16(2)(c)(iv) The proceedings of
the inquiry shall be completed within a
period of three months.

16)(2)(d) A worker shall be
allowed to defend himself or an official
of the Union or an official of the
corporation at the time of departmental
inquiry. The corporation shall pay the
8 All. Phool Chandra (Since Deceased and represented by LRs Vs. F.C.I. & Ors.
125
travelling allowance to such persons who
shall defend the workers at the rates
admissible as per FCI TA Rules in case
of official of corporation and as
admissible to Class-I Officer of the FCI
in case of T.U. Official.

16(2)(e) An appeal shall lie
against
an
order
passed
by
the
Disciplinary Authority under sub-clause
(c) to the appellate authority. Any such
appeal to the appellate authority shall be
in writing and shall be preferred within
60 days of the receipt of the order
appealed against and order passed on
such appeal shall be final, provided that
the appellate authority may, for reasons
to be recorded, consider an appeal
preferred after the expiry of 60 days but
within three months.

16(2)(f) An order of dismissal
shall be effective from the date of such
order and subsistence allowance paid
during the period of suspension shall not
be recovered.

16(2)(g) Provided that where
the period between the date on which the
workman was suspended from duty
pending the inquiry or investigation and
the date on which an order of suspension
was passed under this clause exceeds
four days, the workman shall be deemed
to have been suspended only for four
days or for such shorter period as
specified in the said order of suspension
and for the remaining period he shall be
treated as on duty and be entitled to the
same wages and all benefits as he would
have received if he had not been placed
under suspension, after deducting the
subsistence allowance paid to him for
such period.

16(2)(h) Provided also that
where an order imposing stoppage of
annual increment is passed under this
clause, the workman shall be deemed to
have been on duty during the period of
suspension and shall be entitled to the
same wages as he would have received if
he had not been placed under suspension
after deducting the subsistence allowance
paid to him for such period.

16(2)(i) If on the conclusion of
the inquiry, the workman has been found
to be not guilty of any of the charges
framed against him he shall be deemed to
have been on duty during the period of
suspension and shall be entitled to the
same wages as he would have received if
he had not been placed under suspension
after deducting the subsistence allowance
paid to him for such period.

16(2)(j)
In
awarding
punishment under this standing orders,
the disciplinary authority imposing the
punishment, shall take into account the
gravity of misconduct, the previous
record, if any, of the workers and any
other
extenuating
or
agravating
circumstances, that may exist. A copy of
the order passed by the authority
imposing
the
punishment
shall
be
supplied to the worker concerned."
(Emphasis added)

19. The first aspect, which has to be
considered in this case is, "whether
petitioner has been punished in respect of
alleged misconduct for which charges
were framed against him or in the order
of punishment some other misconduct
has been added, which was not made part
of charge sheet and therefore order of
punishment is founded on a charge which
was never levelled against petitioner and
for this reason, order of punishment
travelling beyond charge sheet is bad in
law?"

20. Copy of charge-sheet is
Annexure 6 to writ petition and shows
126 INDIAN LAW REPORTS ALLAHABAD SERIES
that after referring to charges (A), (B)
and (C), it alleges that petitioner has
committed misconduct under Clause
15(7) of S.O., 1946. The relevant extract
of charge sheet reads as under :

^^mlus ,slk dk;Z fd;k gS] tks
v'kksHkuh; gS ,oa lsok vkpj.k fu;eksa dk
mYya?ku gS] D;ksa u muds fo:+) Hkkjrh; [kk|
fuxe ds vkS|ksfxd izfr"Bku ds izekf.kr LFkk;h
vkns'k 1999 ds rgr dnkpkj (Misconduct)
/kkjk 151⁄471⁄2 dnkpkj vuq'kklukRed ds vuqPNsn
la[;k 161⁄421⁄2 ds rgr foHkkxh; dkuwu Hkax djus
ds vkjksi esa nks"kh gSaA^^

21. A copy of inquiry report, which
is Annexure 11 to writ petition, shows
that Inquiry Officer held that petitioner
remained absent without sanction of
leave; held office of profit and still
contested election of Gram Pradhan,
which is in contravention of Section 5A(c) of Act, 1947 and has violated
Clause 7 of S.O., 1946, which provides
that an employee of FCI shall not
undertake any other employment while
he is an employee of FCI and therefore
has committed misconduct and all the
charges are proved.

22. Punishment order, Annexure 12
to the writ petition, starts by alleging that
inquiry was initiated against petitioner
for committing misconduct defined under
Articles 15(2), 15(5) and 15(7) and
holding him guilty of misconduct under
the aforesaid provisions and also for
contravention of Section 5-A(c) of Act,
1947, he has been held guilty and
punishment of dismissal was imposed
upon him.

23. Para 1 of Appellate order shows
that enquiry was held against petitioner
for committing misconduct under Clause
15(7) and 16(2) of S.O., 1946 and he was
found guilty of committing misconduct
and it is mentioned in para 5 that he was
found guilty for committing misconduct
under Clauses 15(2), 15(5) and 15(7) of
S.O., 1946.

24. In fact, charge-sheet refers to a
misconduct under Clause 15(7) and 16(2)
of S.O., 1946 only though in the order of
suspension, which is Annexure 9 to the
writ petition, it is alleged that petitioner
has committed misconduct under Clauses
14 and 15(5) of S.O., 1946 and has been
suspended.

25. Learned counsel for respondent
did not dispute that inquiry proceedings
is said to have been initiated with the
service of charge sheet. Therefore it is the
charge sheet, which has to be looked into
to ascertain, what charges have been
levelled against a delinquent employee.

26. In the present case, petitioner
was
alleged
to
have
committed
misconduct by violating Clause 15(7) as
per allegations contained in charge sheet.
Inquiry Officer interestingly, in the
inquiry report, has referred to only
Clause 7 of S.O., 1946 though Clause 7
has no application and if it is to be read
as 15(7) then also it is evident that
Inquiry Officer refers to misconduct
under Clause 15(7) of S.O., 1946 only
and not 15(2) and 15(5). In these
circumstances,
disciplinary
authority
misread the entire proceedings and in
particular inquiry report and failed to
apply its mind when it held that inquiry
proceedings
were
initiated
against
petitioner for committing misconduct as
per Article 15(2), 15(5) and 15(7) though
in the charge-sheet, only Article 15(7)
was referred.
8 All. Phool Chandra (Since Deceased and represented by LRs Vs. F.C.I. & Ors.
127

27. Appellate Authority in para 1 of
impugned appellate order has rightly
observed
that
proceedings
were
conducted for alleged misconduct under
Clause 15(7) and 16(2) but thereafter in
para 5 has failed to consider that when
charges of misconduct under Clause
15(2) and 15(7) were not levelled upon
petitioner, the same could not have been
taken into consideration to hold him
guilty of such misconduct as the order
then would travel beyond charge-sheet
which
will
vitiate
the
order
of
punishment.

28. Therefore, I have no hesitation
in holding that punishment and appellate
orders both, travel beyond the charges
levelled against petitioner and hence are
bad in law.

29. The second issue, which has to be
considered is, whether misconduct under
Clause 15(2), 15(5), 15(7) and 16(2) are at
all attracted in the case in hand?

30. I have already quoted aforesaid
provisions. Clause 15(2) talks of 'theft',
'fraud' or 'dishonesty in connection with
the employer's business or property'.
Neither there is any allegation of theft
nor fraud levelled against petitioner and
when
questioned,
learned
counsel
appearing for respondent could not
dispute this fact. Hence these two
contingencies are not attracted.

31. Then the only thing remains is
"dishonesty
in
connection
with
employer's business or property". Here
also learned counsel for FCI could not
show from charge sheet as to how
allegations contained in charge sheet
would attract the phrase 'dishonesty' in
connection with employer's business or
property. The entire charges levelled
against petitioner basically are that he
remained
absent
unauthorizedly,
contested election and got elected as
Gram Pradhan though he was holding an
office of profit and therefore violated
eligibility
condition
for
contesting
election of Gram Pradhan contained in
Section 5-A(c) of U.P. Act, 1947.

32. The misconduct, "dishonesty in
connection with employer's business or
property" is neither attracted on the
charge of absence without permission or
on the aspect of contesting election. After
some argument, learned counsel for FCI
could not dispute that Clause 15(2) of
S.O., 1946 is not at all attracted to the
allegations contained in charge-sheet and
therefore it cannot be said that petitioner
has committed any misconduct provided
in Clause 15(2) of S.O., 1946.

33. Now I come to Clause 15(5) of
S.O., 1946, which contain two kinds of
misconduct, (i) habitual absence without
leave, and; (ii) absence without leave for
more than 15 days. The charge levelled
against petitioner is that he absented from
duty from 08.12.2001 to 26.03.2002. It is
a continuous period of absence. Clause
15(5) talks of not a single instance of
absence, the period whereof is irrelevant
but it talks of habitual absence, which
contemplates that violation is for more
than once. When an employee from time
to
time
frequently
remain
absent
unauthorisedly only then Clause 15(5),
which is talking of habitual absence
without leave, would be attracted hence
charge of absence in the case in hand
cannot said to be a 'habitual absence'.
When I confronted learned counsel for
FCI to the above position and to the
charge levelled against petitioner, after
some argument he ultimately could not
128 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute that charge of absence levelled in
case in hand cannot be said to be covered
by phrase 'habitual absence without
leave'. Therefore, this part is not attracted
in this case.

34. Now I come to sub clause (ii) of
Clause 15(5) i.e. absence without leave
for more than 15 days. Admittedly charge
levelled against petitioner alleges that he
was absent for a period of more than
three and a half months i.e. from
08.12.2001 to 26.03.2002. The total
actual days of absence come to 109.
Therefore, petitioner's absence was for
more than 15 days. The question is
"whether this absence was without any
leave or not" so as to constitute a
misconduct under Clause 15(5) of S.O.
1946?

35. It has come on record and also
mentioned by inquiry officer in inquiry
report that when petitioner remained
absent for more than 15 days why no
immediate action was taken, could not be
explained by Employer. Inquiry report
also shows that petitioner submitted a
leave
application
dated
07.12.2001
requesting for three days' leave from 8th
to 10th December, 2001 but the same was
not sanctioned as no casual leave was
due. Whether any such decision was
communicated to petitioner or not,
neither any such document has been
placed before inquiry officer in inquiry
proceedings nor it has been said
anywhere in appellate order nor anything
has been placed before this Court to
show that petitioner's casual leave
request was
rejected and he was
communicated of this rejection also.

36. Law relating to leave in general
is that leave is not a matter of right but so
long as any leave is due to employee, the
requisite kind of leave, prayed by
Employee, if not due, may not be
accepted but any other kind of leave, if
due, may be accepted. If casual leave was
not due and earned leave and any other
kind of leave was due, it is open to
Employer
to
sanction
such
leave.
Whether this aspect was considered or
not is also not on record. The application
dated 07.12.2001 seeking three days
casual leave was not rejected on the
ground that leave could not have been
granted and petitioner's presence was
necessary but only reason for rejection is
that casual leave was not due. If that be
so, other kinds of leave, whether due and
could have been granted, ought to have
been considered, which has not been
done. In these circumstances, it cannot be
said that petitioner's application seeking
leave of three days was considered by
competent authority in accordance with
law and any decision thereon was
communicated to him.

37. That being so, charge of
absence for more than 15 days without
leave cannot be said proved against
petitioner. In the case of unauthorised
absence, it is not the mere absence but
absence must be without any lawful or
valid reason.

38. This question has been
answered in Krushnakant B. Parmar
Vs. Union of India and another (2012)
3 SCC 178 and in para 18 and 19 of the
judgment Court has held as under:

"18.
In
a
departmental
proceeding,
if
allegation
of
unauthorised absence from duty is
made, the disciplinary authority is
required to prove that the absence is
8 All. Phool Chandra (Since Deceased and represented by LRs Vs. F.C.I. & Ors.
129
willful, in the absence of such finding,
the
absence
will
not
amount
to
misconduct.

19. In the present case the
inquiry
officer
on
appreciation
of
evidence though held that the appellant
was unauthorisedly absent from duty
but failed to hold that the absence was
willful; the disciplinary authority as also
the
appellate
authority,
failed
to
appreciate the same and wrongly held
the appellant guilty." (Emphasis
added)

39. In the present case, petitioner
has categorically stated that he sought
leave on medical ground and his request
for such leave was not found to be
ingenuine, fictitious or imaginary. That
being so, it cannot be said that petitioner
was unauthorisedly absent.

40. Now comes the question of
applicability of Clause 15(7) of S.O.,
1946, which was admittedly part of
charge-sheet and has been held to be
violated by petitioner. It talks of "breach
of
any
law
applicable
to
the
establishment". Here the law which is
said to have been violated by petitioner is
Section 5-A(c) of U.P. Act, 1947. It could
not be shown as to how aforesaid
provision was applicable to respondent's
establishment i.e. FCI. The provision is
applicable in respect of eligibility for
contesting election on the post of Gram
Pradhan and has nothing to do with
employment under FCI.