Madan Mohan Thakur v. State of Nagaland and Ors. — 1996 DIGILAW 16 (GAU)

The petitioner, while working as Checker in Nagaland Paper and Pulp Company came to be suspended from service by memorandum issued in this regard on 16.10.1993 by the Deputy Manager (P&A). The order of suspension was made on the basis of preliminary enquiry report regarding an incident of alleged beating of one Ganga Prasad, Senior Mazdoor by the petitioner on 15.10.1993 in the office. Para 3 of the said memo states : " It is observed and come to conclusion that Sri MM Thakur, Checker was found guilty of committing offences by manhandling an employee during the working hours in the office, which amounts to misconduct as per the clause No.5 (xiii), (xxi) and (xxix) of Conduct, Discipline and Appeal Rules of the Company." Para 4 of the said memo states : " Whereas the act of Shri MM Thakur, Checker; T/No.3063 has been viewed very seriously, the competent authority has decided to place him under suspension with effect from 17.10.1993 pending enquiry and final orders in the matter." 2. Consequent upon issuance of the above memorandum, an Enquiry Officer was duly appointed on 23.11.93 to make a full enquiry into the alleged incident which took place on 15.10.93. By another order dated 24.11.93 a Presenting Officer was also appointed. 3. The first contention of Mr. LS Jamir, leaned counsel for the petitioner is that articles of charges or for that matter statements of imputations were never furnished upon the petitioner, although in a full enquiry such is necessary in terms of Rule 25 of the relevant Rules. Particular reference has been made to Rule 25 (iii). However, Mr. Jamir states that on 5.1.94 the Enquiry Officer started enquiry by summoning the petitioner, the complainant and some witnesses. In said enquiry also the Enquiry Officer examined each person separately in the absence of each other. Hence there was no cross-examination against each other on 5th January, 1994. 4. It is stated that during the preliminary enquiry statements had been recorded. Cross examination was also done. However, the petitioner takes grievance that even copies of statements recorded during the preliminary enquiry were also not furnished to the petitioner at any time and, that too in spite of protest. On 23.2.94 the petitioner requested the Enquiry Officer to furnish him with the relevant documents particularly statements made in the enquiry on 15.10.1993. Cross examination was also done. However, the petitioner takes grievance that even copies of statements recorded during the preliminary enquiry were also not furnished to the petitioner at any time and, that too in spite of protest. On 23.2.94 the petitioner requested the Enquiry Officer to furnish him with the relevant documents particularly statements made in the enquiry on 15.10.1993. Copy of the office memorandum dated 16.10.93 and copies of the proceedings including statements recorded on 5.1.94. It was also stated in the request that the petitioner was not aware as to the specific charges framed against him inasmuch as no articles of charges were ever framed against him by the Enquiry Officer. On 24.2.1994 the petitioner was given copies of statements recorded on 5.1.94. However, he was not given the copies of statements recorded on 15.10.1993. This is borne out by Annexure 4, which indicates that the petitioner received the aforesaid copies of statements on 24.2.1994. Annexure 1 of counter filed on behalf of the company also indicates that the petitioner had noted that he had not received any copies of statements recorded on 15.10.1993. Enquiry report was submitted on 1.7,1994. Thereafter on 12 December, 1994 final notice was served upon the petitioner. The petitioner was asked to give his comment, if any within seven days on receipt of the final notice. On 12.9.1994 the petitioner replied to the final notice. In the said reply the petitioner contended that the entire process was initiated out of a personal grudge of Shri Ganga Prasad. The petitioner denied having beaten Ganga Prasad. The petitioner therefore requested the authority to withdraw the order of suspension and to reinstate him. 5. The Executive Director of the company issued order of dismissal on 14.8.95. The operative portion states : "In the facts and circumstances given above you are hereby dismissed from service with immediate effect." 6. Counter affidavit has been filed on behalf of respondents 2 to 5. Mr. EY Renthungo, learned Junior Govt. Advocate appears and I have heard him. It may be stated that no articles of charges along with statements of imputations were furnished to the petitioner before the full enquiry was made by the Enquiry Officer after he was appointed by order dated 23.11.1993. This position is not controverted. Mr. EY Renthungo, learned Junior Govt. Advocate appears and I have heard him. It may be stated that no articles of charges along with statements of imputations were furnished to the petitioner before the full enquiry was made by the Enquiry Officer after he was appointed by order dated 23.11.1993. This position is not controverted. Rule 25 (iii) states : " Where it is proposed to hold an inquiry, the disciplinary authority shall frame definite charges on the basis of the allegations against the employee. The charges together with a statement of the allegation on which they are based, a list of documents by which the articles of charges are proposed to be sustained, shall be communicated in writing to the employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 1,5 days), written statement whether he admits or denies any of or all the articles of charge." Rule 25(viii) further states : "If the employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not exceeding .thirty days, after recording an order that the employee may, for the purpose of preparing his defence; (a) Inspect the documents listed with the charge-sheet; (b) submit a list of additional documents and witnesses that he wants to examine; and (c) be supplied with the copies of the statements of witnesses, if any." Mr. EY Renthungo, appearing on behalf of the company submits that the Enquiry Officer treated the memorandum dated 16.10.93 as the articles of charges and hence no further charge was framed against the petitioner at the time of enquiry. It is submitted that in view of the very limited nature of the allegation, it was deemed not necessary to elaborately file articles of charges along with the statements of allegations at the time of enquiry. The fact that Rule 25 (iii) and (viii) have not been complied with need not be further examined in view of the submission made on behalf of the company. It has been contended on behalf of the petitioner that the memorandum dated 16.10.93 was issued on the basis of preliminary enquiry and as such they cannot take the place of articles of charges contemplated under Rule 25. It has been contended on behalf of the petitioner that the memorandum dated 16.10.93 was issued on the basis of preliminary enquiry and as such they cannot take the place of articles of charges contemplated under Rule 25. On close scrutiny of the memorandum, it appears to me that this was an order of suspension and it appears it cannot really be taken as articles of charges framed against the petitioner. Para 4 of the said memo clearly states that this has been issued "pending enquiry and final orders in the matter". This clearly goes to show that a domestic enquiry was contemplated on the basis of preliminary enquiry report. It must be borne in mind that the end result of the enquiry was the dismissal of the petitioner from service. Therefore, the submission made on behalf of the company that non-compliance of Rule 25 is only technical and not substantial in nature inasmuch as the petitioner was given opportunity to defend himself even by giving him a defence assistant, cannot be accepted. It has been stated that on 5.1.94 when enquiry was made by the Enquiry Officer, the petitioner, Shri Ganga Prasad and two other witnesses were all examined by the Enquiry Officer separately and in the absence of each other and therefore there was no question of any opportunity to cross-examine the witnesses produced on behalf of the complainant. It is, however, submitted on behalf of the company that the petitioner was subsequently allowed to cross examine the witnesses on 26.2.94. It is contended by Mr. LS Jamir that since charge was not at all framed against the petitioner, the enquiry conducted against him is itself incompetent inasmuch as the petitioner did not know the specific charges levelled against him in terms of Rule 25 (iii). As mentioned above, it is the contention of the company in terms of paras 5,8 and 12 that the memorandum dated 16.10.93 should be taken as charge sheet and as such no further charge need be framed against the petitioner at the time of enquiry. 7. It has further been contended that the manner in which the enquiry was made cannot be said to be fair inasmuch as statements of the petitioner and other persons were recorded in a question and answer form and the Enquiry Officer put all the questions to them. As such Mr. 7. It has further been contended that the manner in which the enquiry was made cannot be said to be fair inasmuch as statements of the petitioner and other persons were recorded in a question and answer form and the Enquiry Officer put all the questions to them. As such Mr. LS Jamir contends that the petitioner did not have the opportunity to narrate the story/incident in his own way. At the same time it is also contended that since articles of charges were not furnished to the petitioner, he lost a very important right to reply in writing giving his version of the incident. 8. Learned counsel for the company further submits that this petition under Article 226 of the Constitution is not competent inasmuch as the petitioner has a not exhausted the provision of alternative remedy by way of appeal in terms of Rule 32 and thereafter even by way of review in terms of Rule 33. As against this, Mr. LS Jamir submits that since the order of dismissal came to be issued by the Executive Director who is an authority higher than both the Appellate Authority and the Reviewing Authority, the petitioner was left with no alternative but to approach this Court by filing this writ petition. It is contended that in fact the right of the petitioner has been extinguished in the present case to file appeal as well as review under the aforesaid provisions of the relevant Rules. In the present case as mentioned above, order of suspension was issued by Deputy Manager who is the disciplinary authority. Since the petitioner holds non-executive post, the Appellate Authority would be Subsidiary General Manager and the Reviewing Authority would be Managing Director of subsidiary. Obviously both the Appellate Authority arid the Reviewing Authority are subordinate to the Executive Director who issued the order of dismissal, on 14.8.95. Mr. EY Renthungo, learned counsel for the company submits that as the Paper Mill has not been functioning smoothly the Executive Director has been doing almost every needful things for the maintenance and administration of the company. In such a situation according to the learned counsel the Executive Director had issued the order of dismissal. At this stage Mr. LS Jamir submits that at least the Deputy Manager who had issued the order of suspension on 16.10.93 is still continuing in the said post. In such a situation according to the learned counsel the Executive Director had issued the order of dismissal. At this stage Mr. LS Jamir submits that at least the Deputy Manager who had issued the order of suspension on 16.10.93 is still continuing in the said post. Therefore, it is submitted mat Deputy Manager could have also issued the impugned order of dismissal. In such an event the petitioner would have got the opportunity of preferring appeal as well as review thereafter before the appropriate authorities as provided in schedule appended to the Rules. 9. I have carefully perused the documents which have been made available before me. I have also examined the relevant Rules pertaining to enquiry. It appears to me that once Rules are clear as to how enquiry is to be conducted, such Rules should be complied with. As I have stated earlier, as a result of the enquiry the petitioner was dismissed from service. After all dismissal from service has a very serious consequences in the life of an employee. Therefore, in my view a proper enquiry in terms of the Rules ought to have been made. The memorandum dated 16.10.93 issued by the Deputy Manager cannot take the place of articles of charges and statement of allegations as contemplated under Rule 25 (iii). Therefore, in my view, there is failure of compliance of the Rules contemplated! in this regard. 10. In the peculiar facts and circumstances of the case this petition is disposed of as follows: (1) The impugned order of dismissal issued by the Executive Director on 14.8.1995 is set aside. (2) The competent authority is, however, allowed to make a fresh enquiry strictly in terms of the procedures laid down in this regard in the relevant Rules. (3) The petitioner shall be deemed to have been under suspension and he shall continue to be under suspension till the enquiry is completed. (4) The petitioner shall be entitled to subsistence allowance all throughout. (5) In view of the fact that the petitioner has been under suspension since 17.10.93 the respondents are directed to complete the enquiry including the final orders within a period of 3 (three) months from the date of receipt of this order. With the above observation and direction this petition is disposed of. No costs.