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2000 DIGILAW 246 (PAT)

Biresh Lal v. Heavy Engineering Corporation Ltd.

2000-02-14

M.Y.EQBAL

body2000
Judgment M.Y.Eqbal, J. 1. In this writ application the petitioner has prayed for quashing the appellate order dated 24.6.94 (Annexure 15) passed by the respondent no. 7, Board of Directors of the Heavy Engineering Corporation Ltd. as an appellate authority whereby the petitioners appeal has been dismissed and also for quashing the order dated 3.11.92 (Annexure 13) passed by the respondent no. 2, Chairman cum Managing Director of the Corporation, whereby the petitioner has been removed from service. 2. The petitioner was in the employment of the respondent-Heavy Engineering Corporation Ltd. since 1962 and time to time promoted to different posts and in 1978 he was promoted to the post of Assistant Store Officer, which is a non-executive cadre. In 1985 the petitioners case was considered for promotion by the Departmental Promotion Committee but due to certain adverse remarks the petitioner was not recommended for promotion. The petitioner protested and represented against the said suppression and ultimately he was promoted to the executive cadre in the post of Junior Executive with effect from 31.12.87. Some time in May, 1989 the petitioner was transferred to Junior Executive (Stores) to Gevra. Project where he became Incharge of the Stores. The petitioners case is that since he was the Incharge of the Store and was the senior most officer available at the site, the entire work of loading, unloading, cleaning and sweeping were done under the supervision of the petitioner. It is stated that the respondent no. 6, who was the Manager (Marketing), used to visit the site occasionally and many times gave verbal order to the petitioner, which became very difficult for him to comply the same. The respondent no. 6, therefore, made some complain against the petitioner to the Head Office in the matter relating to deployment of casual labourers, whereupon the petitioner was called upon to explain the circumstances. It appears that when the order and direction issued by the respondent no. 6 was not complied with by the petitioner, he was called upon to show cause as to why a disciplinary action be not taken against him. The petitioner gave a reply dated 2.3.92 stating, inter alia, that since the depot was directly under his supervision, he was responsible for it and the same needs no interference by the respondent no. 6. The respondent no. The petitioner gave a reply dated 2.3.92 stating, inter alia, that since the depot was directly under his supervision, he was responsible for it and the same needs no interference by the respondent no. 6. The respondent no. 4, the Deputy General Manager (Services and Disciplinary Authority) of the petitioner, issued office order dated 12.3.92, whereby the petitioner was suspended with immediate effect. It is stated that the petitioner came to the headquarter for drawing his salary/subsistence allowance but the same was not paid. However, it appears that the petitioner was served with memo of charges and respondent no. 5 was appointed as Enquiry Officer. The petitioners case is that without serving the chargesheet and without giving opportunity of filing show cause the Enquiry Officer proceeded with the enquiry. In the enquiry, findings were recorded against the petitioner and ultimately final order of punishment was passed by the Disciplinary Authority removing the petitioner from service. The petitioner then filed a Departmental Appeal before the Board of Directors and the said appeal was ultimately dismissed. The petitioner challenged the aforesaid order by filing CWJC No. 3372/93 (R). This Court disposed of the writ application on 1.3.94 holding that the appellate authority did not consider points raised by the petitioner in his appeal. Accordingly the appellate order was quashed and the matter was remitted back to the appellate authority for disposal of the appeal after considering each and every point raised by the petitioner in his appeal. After the matter was remitted back to the appellate authority the impugned order was passed, whereby the appeal has been dismissed. 3. A counter affidavit has been filed by the respondent- Corporation stating, inter alia, that the Board of Directors of the Corporation being the appellate authority has disposed of the appeal by a detail reasoned order. Hence the writ application is fit to be rejected. It is further stated that the order of dismissal was passed in due consideration of all relevant materials during the departmental enquiry and the enquiry report could not be supplied to the petitioner as no provision existed under the rule in that regard. However, the enquiry report was supplied to the petitioner alongwith order of dismissal from service. It is further stated that the appellate authority in terms of the direction of this Court paid all the dues of the petitioner and the appeal was disposed of. However, the enquiry report was supplied to the petitioner alongwith order of dismissal from service. It is further stated that the appellate authority in terms of the direction of this Court paid all the dues of the petitioner and the appeal was disposed of. It is further stated that the subsistence allowance was not paid to the petitioner on account of his negligence as he did not submit any certificate regarding his other employment or business or profession or vocation. The disciplinary authority could have been satisfied only if the petitioner would have submitted non-employment certificate for getting the subsistence allowance. So far the non-service of chargesheet is concerned, it is stated that the service of chargesheet to the petitioner was not required as the registered letter was returned unserved. It is further stated that the copy of the chargesheet was duly published and pasted on the notice board at Gavera where the petitioner last worked. The copy of the chargesheet was also sent to the petitioner. It is stated that since all efforts to serve the chargesheet were taken against the petitioner, the service of chargesheet effected on the petitioner was a deemed service and no dispute in respect of the same could be raised. It is further stated that there was no question for the enquiry officer to verify the service of chargesheet on the petitioner when the petitioner had ample opportunity to look the chargesheet which was pasted on the notice board. 4. Mr. P.K. Prasad, learned counsel appearing on behalf of the petitioner, assailed the impugned orders as being illegal and contrary to facts and evidences on record. Learned counsel submitted that the entire departmental proceeding and the consequent order of removal from service is wholly void, illegal and vitiated due to non-compliance of the principles of natural justice. Learned counsel submitted that even the chargesheet was not served on the petitioner nor it was communicated in terms of Rule 25 (3) of the Rules. Learned counsel submitted that the departmental proceeding is also vitiated for the reason that the petitioner was not supplied with any document muchless the complaint of the respondent no. 6, which was the basis of the charge. Learned counsel submitted that the departmental proceeding is also vitiated for the reason that the petitioner was not supplied with any document muchless the complaint of the respondent no. 6, which was the basis of the charge. Learned counsel then submitted that although this Court directed the appellate authority to consider each and every points raised by the petitioner in his appeal but the appellate authority again disposed of the appeal without considering the materials produced during the departmental enquiry. Learned counsel further submitted that the Chairman cum Managing Director being the Disciplinary Authority passed the order of punishment, could not have been the member of the appellate authority and on this ground also the appellate order cannot be sustained in law. 5. On the other hand, Mr. Kameshwar Prasad, learned Sr. counsel appearing on behalf of the Corporation, has drawn my attention to Annexure 10 to the writ application and submitted that some of the charges were admitted by the petitioner and no grievance was made at any time before the Enquiry Officer regarding non-service of chargesheet. Learned counsel submitted that in the departmental proceeding the enquiry officer and the disciplinary authority have followed the Discipline and Appeal Rules of the Corporation. Learned counsel lastly submitted that in my view of the matter this Court cannot and shall not interfere with the final order of punishment under Article 226 of the Constitution of India. In this connection, learned counsel relied upon the decision in the case of State of Orissa vs. Bidyabhushan Mahapatra ( AIR 1963 SC 779 ) and in the case of State of A.P. vs. Chitra Venkata Rao ( AIR 1975 SC 2151 ). 6. I shall first examine the impugned order passed by the respondents imposing punishment of removal of the petitioner from service. A copy of the impugned order together with the enquiry report has been annexed as Annexure 13 to the writ application. It is admitted by the respondents in their counter affidavit that the copy of the enquiry report was not served on the petitioner before passing the impugned order of punishment since there was no such provision for serving copy of enquiry report and asking the delinquent to submit any explanation or show cause against the enquiry report. From perusal of the enquiry report, it appears that the following charges were levelled against the petitioner : "1. From perusal of the enquiry report, it appears that the following charges were levelled against the petitioner : "1. That he made less payment to the casual workers deployed at the depot and on demand by the casual labour for full payment he removed three casual workers from services; 2. that he failed to re-engage the casual labour despite written instruction of superior officer viz. Manager (Mktg.) Bilaspur ; 3. that he abused, insulted and threatened Manager (Mktg.) Bilaspur on 21.2.92 and refused to obey his instruction or recommendation as authority." 7. So far the first charge is concerned, the finding recorded by the enquiry officer is that this charge has not been fully proved. So far the second charge regarding re-engagement of casual worker is concerned, the enquiry officer simply recorded in his enquiry report that the allegations has been proved in the enquiry. There is no finding or discussion of evidence on the second charge against the petitioner. So far the third charge regarding abuse, insult etc. to the manager and to disobey his instruction is concerned, the enquiry officer came to the following finding : "The next charge has two partsone is abuse, insult and threatening of superior officer Shri L. K. Prasad and part-ll of the same charge relates to disobedience of the superior officer. This part II is linked to the charge No. 2 of Disobedience though of a different nature. From the statement of Shri L.K. Prasad, it is seen that there were no eye witness to the incident other than the two officers. Shri Prasad in his statement has clearly substantiated the charge of abusing, insulting and threatening. Shri Biresh Lal in his statement has admitted the disobedience of order of Shri L. K. Prasad. In this statement Shri Biresh Lal has also stated that when Shri Prasad went to his office on 21.2.92 no body else was present. Regarding abuse, threatening and insult, there is no third eye witness. However, substantial evidence points towards the occurrence of ugly scene and use of indescont and inpleasant word. From the proceeding available on records and the situation explained above, I came to the conclusion that : 1. Charge No. 1 viz. Less payment to the casual worker and removal of casual workmen without sufficient reasons have been proved. 2. Charge no. However, substantial evidence points towards the occurrence of ugly scene and use of indescont and inpleasant word. From the proceeding available on records and the situation explained above, I came to the conclusion that : 1. Charge No. 1 viz. Less payment to the casual worker and removal of casual workmen without sufficient reasons have been proved. 2. Charge no. 2failure to engage casual labour despite instruction from the Manager (Mktg.) Bilaspur has been proved. 3. Charge No. 3 (a) the charge of abusing, insult and threatening of superior officer has been proved by the circumstantial evidence. (b) Charge of disobedience of instruction of superior officer has also been proved. 8. From bare perusal of the enquiry report and the findings recorded by the enquiry officer, it is manifest that the findings are self contradictory and neither there is any discussion of material evidence nor the reasons have been recorded by the enquiry officer while holding that the charges have been proved. As noticed above, admittedly, a copy of the enquiry report was not served on the petitioner and it was not supplied alongwith the impugned order of punishment. 9. Mr. P.K. Prasad vehemently argued that even the chargesheet was not served on the petitioner nor he was paid any subsistence allowance since the date of suspension till the date of passing of final order of removal from service. It has been categorically stated in para 49, 50 and 51 of the writ application that memorandum of charge never served on the petitioner and without service of chargesheet and without giving opportunity to show cause the enquiry officer was appointed and he proceeded with the enquiry. It is further stated that the petitioner, by letter dated 15.5.92 informed the respondents regarding non-service of chargesheet but even then the same was not served and the enquiry officer held the enquiry. 10. In reply to those statements the respondents in para 35 and 36 stated that the question of mentioning the service of chargesheet to the petitioner in the office order dated 12.5.92 was not required as the registered letter was returned unserved and it was enough to conclude that the petitioner tried to avoid receipt of the chargesheet. There is no specific statement in the counter affidavit that the memo of charge was actually served on the petitioner by any method. There is no specific statement in the counter affidavit that the memo of charge was actually served on the petitioner by any method. It is, therefore, clear that firstly there is no evidence to show that memo of charge was served on the petitioner and thereby he got the opportunity of filing show cause/explanation to the said chargesheet. It is evident from the letter dated 12.5.92 (Annexure 7) that a memo of charge though issued but was never served on the petitioner. Another letter dated 22.5.92 (Annexure 9) issued by the respondents further shows that the memo of charge was not delivered to the petitioner. Secondly, the copy of the enquiry report was also not supplied to the petitioner before the impugned order of punishment was passed. The justification given by the respondents is that there is no rule for supply of enquiry report to the delinquent before passing the final order of punishment. Taking into consideration all these facts, I have no hesitation in holding that the entire departmental proceeding is vitiated in law for non-service of the memo of charge, non-supply of the enquiry report and perfunctory finding recorded by the enquiry officer in the enquiry report. 11. In the case of Union of India vs. Dinanath Shantaram Karekar ( AIR 1998 SC 2722 ), the Apex Court dealing with the similar case, observed : "Respondent was an employee of the appellant. His personal file and the entire service record was available in which his home address also had been mentioned. The charge sheet which was sent to the respondent was returned with the postal endorsement "not found". This indicates that the charge sheet was not rendered to him even by the postal authorities. A document sent by registered post can be treated to have been served only when it is established that it was rendered to the addressee. Where the addressee was not available even to the postal authorities, and the registered cover was returned to the sender with the endorsement "not found", it cannot be legally treated to have been served. The appellant should have made further efforts to serve the charge sheet on the respondent. Single effort, in the circumstances of the case, cannot be treated as sufficient. That being so, the very initiation of the departmental proceedings was bad. The appellant should have made further efforts to serve the charge sheet on the respondent. Single effort, in the circumstances of the case, cannot be treated as sufficient. That being so, the very initiation of the departmental proceedings was bad. It was ex-parte even from the stage of charge sheet which, at no stage, was served upon the respondent." Their Lordships further observed : "Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings, So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "Communication" cannot be invoked and "actual service" must be proved and established. It has already been found that neither the chargesheet nor the show-cause notice were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the. entire proceedings were vitiated." 12. Another circumstances, which will also vitiate the entire departmental proceeding and the order of punishment is that although the petitioner was suspended but he was not even paid the subsistence allowance despite repeated requests made by the petitioner. 13. In para 31 of the counter affidavit, the explanation given by the respondents is that the petitioner was entitled for subsistence allowance but it was not paid on account of his negligence as he did not submit any certificate regarding his other employment or business or profession. The Disciplinary Authority could have been satisfied only if the petitioner would have submitted the non-employment certificate and this is the reason that subsistence allowance was not paid to the petitioner. However, in support of this submission the respondents have not produced any rules or guidelines or papers to show that subsistence allowance is payable only on submission of non-employment certificate. The attitude of the respondent-Corporation, therefore, in my opinion, appears to be wholly arbitrary and malafide. 14. Recently the Apex Court in the case of M. Paul Anthony vs. Bharat Gold Mines Ltd. ( AIR 1999 SC 1416 ) has observed : "Exercise of right to suspend an employee may be justified on the facts of a particular case. The attitude of the respondent-Corporation, therefore, in my opinion, appears to be wholly arbitrary and malafide. 14. Recently the Apex Court in the case of M. Paul Anthony vs. Bharat Gold Mines Ltd. ( AIR 1999 SC 1416 ) has observed : "Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employees trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of Subsistence Allowance, so that the employee may sustain himself." 15. Their Lordship has further gone to the extent that non- payment of subsistence allowance may in some cases vitiate the entire departmental proceeding. 16. So far the order passed by the Board of Directors in appeal is concerned, it appears that the appellate authority, in which one of the member was the disciplinary authority, has not at all considered the facts and the law discussed hereinabove and has recorded their finding on the basis of extraneous consideration and on the material which were not the basis of the finding of the enquiry officer. Moreover, it is surprising that the impugned order of removal of service was passed by the Chairman cum Managing Director as a disciplinary authority and the same person sat as an appellate authority and up-held the order of the disciplinary authority. Not only that, the appellate authority held that although the copy of the enquiry report was not supplied to the petitioner but since the original disciplinary authority is also a member of the appellate authority therefore, no prejudice was caused to the petitioner. The approach of the appellate authority is totally illegal, arbitrary and mala fide. The appellate order, therefore, cannot be sustained in law. In the facts of the present case, in my opinion, the decision relied upon by Mr. Kameshwar Prasad, learned Sr. counsel appearing on behalf of the Corporation, does not at all apply. 17. The approach of the appellate authority is totally illegal, arbitrary and mala fide. The appellate order, therefore, cannot be sustained in law. In the facts of the present case, in my opinion, the decision relied upon by Mr. Kameshwar Prasad, learned Sr. counsel appearing on behalf of the Corporation, does not at all apply. 17. In the result, this writ application is allowed and the impugned order of removal of the petitioner from service is set aside. The respondent Corporation is accordingly directed to reinstate the petitioner in service. However, considering the fact of a long lapse of time before the date of dismissal and reinstatement the petitioner would be entitled to 50% back- wages till the date of reinstatement, which shall be paid by the respondent-Corporation within three months from today.