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Gauhati High Court · body

1999 DIGILAW 259 (GAU)

Chairman, ONGC v. Allauddin Ahmed and Another

1999-08-05

BRIJESH KUMAR, D.BISWAS

body1999
This writ appeal is preferred by the appellants Oil and Natural Gas Commission and others against the order passed by the learned Single Judge dated 6.9.97 allowing the Civil Rule No.2737 of 1995 and setting aside the order of punishment removing the respondent No.l from service with further direction to the present appellants to reinstate the writ petitioner with all benefits. 2. We have heard Mr. AR Borthakur, leaned Senior Advocate appearing on behalf of the Appellants and Mr. C. Baruah, learned Senior Advocate appearing on behalf of the respondent No. 1. 3. The facts in brief relevant for disposal of this appeal are that the respondent No.l namely Sri Allauddin Ahmed had been working as Accountant in the Oil and Natural Gas Commission whereas one RA Sukla had been working as Accounts Assistant Grade I in the ONGC, Nazira. According to the appellants it was detected that a bill of highly inflated amount was prepared and payment , was made to M/s North Eastern Electrical Hardware Stores from whom the appellants had purchased certain electrical items. The employer, namely, the appellants suspected the hand of the respondent No.l and said RA Sukla, Accounts Assistant Grade I, due to whose involvement the exorbitant amount was paid by the appellants. It further transpires that the amount of overpayment was returned by the firm to the ONGC. In any case a departmental proceeding was initiated against both the employees namely, the writ petitioner/respondent No.l and Sri RA Sukla, respondent No.2. The matter was enquired into by the Inquiry Officer and on consideration of the same by order dated 21.T.85 order for removal from service was passed against the petitioner/respondent No.l and also in respect of the respondent No.2 RA Sukla. 4. The petitioner, it appears, thereafter filed a civil suit being Title Suit No.6 of 1988 in the civil Court which seems to have been dismissed in view of the provisions of the Industrial Disputes Act, 1947. The petitioner thereafter raised an industrial dispute which too was not entertained by the order dated 17.5.85. From the judgment of the learned Single Judge we find that the Labour Tribunal suggested the parties for arbitration as conciliation had failed. But the suggestion, according to the observation made by the learned Single Judge, was not accepted by the employer, namely the ONGC. Thus, the petitioner approached this Court by filing Civil Rule No.2737 of 1995. From the judgment of the learned Single Judge we find that the Labour Tribunal suggested the parties for arbitration as conciliation had failed. But the suggestion, according to the observation made by the learned Single Judge, was not accepted by the employer, namely the ONGC. Thus, the petitioner approached this Court by filing Civil Rule No.2737 of 1995. 5. It also transpires that the other delinquent RA Sukla, against whom order of punishment of removal from service was passed filed an appeal under the departmental regulation to the higher authorities and the appeal was accepted and he was reinstated in service. According to the petitioner/respondent No.l, he also preferred an appeal to the departmental authorities on 7.2.85. But according to the appellant no such appeal was received. There is no finding of the learned Single Judge on the fact. However, subsequently an appeal was filed again on 25.3.91 which was dismissed by order dated 26:7.91 and yet another appeal preferred by the petitioner was also rejected on the same ground. 6. In the writ petition, one of the submissions of the petitioner which was raised and also accepted by the learned Single Judge was that the cases of the petitioner and RA Sukla stood on the same footing since the charges were the same as well as the enquiry and findings. Since the appeal of RA Sukla has been accepted and he has been thus reinstated, there was no reason to treat the petitioner in a different way resulting in hostile discrimination. The learned Single Judge has been of the view that when two persons were placed in the similar situation and there has been no proper and specific affidavit or reply on the part of the Management indicating that the cases of the two stood on different grounds, the same treatment should be meted out to the petitioner as well. On the above premises the order of removal of the petitioner has been set aside being violative of Articles 14 and 16 of the Constitution of India. 7. Learned counsel for the appellant has vehemently urged that the writ petition preferred by the petitioner is highly belated and could not be entertained. The order of removal was passed in 1985 whereas the petition has been filed in the year 1995. 7. Learned counsel for the appellant has vehemently urged that the writ petition preferred by the petitioner is highly belated and could not be entertained. The order of removal was passed in 1985 whereas the petition has been filed in the year 1995. The rejection of the appeal of the petitioner by the department was ordered in the year 1991 yet the petitioner approached this Court after 4 years thereafter. The learned Single Judge considered this aspect of the matter. We have also given our anxious consideration to the submissions made on behalf of the appellants. The facts which we take note of are that the petitioner filed a civil suit challenging the order of removal in the year 1988, it was numbered as Title Suit No.6 of 1988. At the time when the suit was entertainable, perhaps it may have been within the period of limitation, namely within 3 years, of passing of the order of removal in the year 1985. Obviously, on the objection which may have been raised, the suit has been dismissed on the ground that it was not maintainable in view of the provision contained in the Industrial Disputes Act, 1947. This seems to have driven the petitioner to the Labour Tribunal. There too nothing fruitful could come out and it appears that the merits remained to be considered. It also appears from the order of the learned Single Judge that some arbitration was suggested by the Labour Court, on the failure of conciliation which was not acceptable to the management. Thus the petitioner returned after knocking the door of the Labour Court too in the year 1994. The present petition was filed in the year 1995. The above circumstances, in our view, clearly indicative of the petitioner's timely and genuine efforts. It cannot be said that the petitioner had been sleeping over the matter for years. On the other hand, he made efforts by approaching different forums as may have been advised to seek redress from against the order by which he was aggrieved. Such circumstances, in our view justify entertainment of proceeding under Article 226 of the Constitution otherwise perhaps it may be unfair and unjust to the petitioner to refuse to consider his case on merit, which opportunity unfortunately had been denied despite his approaching the civil Court and the Labour Court. 8. Such circumstances, in our view justify entertainment of proceeding under Article 226 of the Constitution otherwise perhaps it may be unfair and unjust to the petitioner to refuse to consider his case on merit, which opportunity unfortunately had been denied despite his approaching the civil Court and the Labour Court. 8. Now we come to the next question as to whether the cases of the petitioner and Shri RA Sukla stood on the same footing or not. We are constrained to observe that both parties have not placed sufficient materials on the record to give any finding either way as in our view, the best material which could throw light on the point would have been the enquiry report indicating culpability of the different delinquent officer involved in the enquiry. The charges may be same, but the finding and the extent of their involvement, which may have been found by the Inquiry Officer, could be different. Therefore, unless it could be seen, it would be difficult to come to a conclusion whether the cases of the two stood on the same footing or not. According to the appellant no such occasion arose for the appellate authority to consider the matter on merit since the appeal preferred by the petitioner was dismissed as highly belated appeal. The order communicated as passed on the appeal by the appellant is on the record of the civil rule at Annexure H to the writ petition. It is an order passed by the Regional Director dated 26.7.91. After narration of the fact that the petitioner was charge sheeted and enquiry has held in which he was given opportunity and the charges were proved, it was observed that the petitioner had not made any appeal in February, 1985 nor he had been able to produce any proof of submission of any such appeal. It was further observed, had he filed an appeal he could seek personal hearing with the Regional Director within a reasonable time. Therefore, the reason for non-disposal of the appeal in February, 1985 is an afterthought. Thus the appeal dated 25.3.91 was rejected. Subsequently, another appeal preferred by the petitioner was also dismissed as indicated earlier. A perusal of the said order clearly indicates that it was on the ground of delay that the competent authority did not look into the merits of the matter. Thus the appeal dated 25.3.91 was rejected. Subsequently, another appeal preferred by the petitioner was also dismissed as indicated earlier. A perusal of the said order clearly indicates that it was on the ground of delay that the competent authority did not look into the merits of the matter. In our view, it would be appropriate for the appellate authority to consider the same on merit and the authority could have also considered the other aspect of the matter which has been raised and dealt with by the learned Single Judge as to whether the cases of the petitioner and the respondent RA Sukla stood on the same footing or on a different footing. In such matter, in our view, the authorities at first instance should examine the merit first on the basis of the record with them, rather than to go into the question in the writ proceeding without there being sufficient material on the record. 9. In view of the discussion held above, we set aside the order passed by the learned Single Judge with direction to the appellate authority to consider the appeal of the petitioner respondent on merit taking into consideration the grounds which have been discussed in the order of the learned Single Judge since the matter has been pending since long, the appellate authority is directed to pass £ appropriate order within a period of 4 months. Cost easy.