Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 293 (GAU)

R. A. Shukla v. Oil and Natural Gas Commission

2003-07-15

B.BISWAS

body2003
JUDGMENT D. Biswas, J. 1. The writ petitioner was dismissed from service by the Executive Director, ONGC, Nazira by an order passed on 19.4.2002 in exercise of powers conferred by Rule 41(a) of the ONGC (CDA) Rules, 1994 consequent upon his conviction by the Special Judge, Shillong in a CBI Case No. RC. 22/82-SHG under Section 120B/468/471/47A I.P.C. read with Section 5(2) of the Prevention of Corruption Act, 1947. 2. The order of dismissal has been assailed on the ground that an appeal against the judgment of conviction and sentence is pending and, as such, the conviction cannot be a ground for dismissal of the writ petitioner from service unless it attains finality. Besides, the order of dismissal has been deprecated having been passed without pre-decisional hearing by an authority not authorised by law to pass such order. 3. The respondent authority in their affidavit-in-opposition contended that the gravity of the criminal charges and the conviction of the petitioner impelled the authority to award the penalty of dismissal. Controverting the allegations of denial of personal hearing, it is contended that the petitioner was given opportunity of making representation against the penalty proposed by the office Memorandum No. 1/4/82-Vig/III/3022 dated 7/9.11.2001. 4. I have heard Mr. P.G. Baruah, learned Senior counsel for the petitioner and Mr. P.K. Roy, learned counsel for the ONGC. 5. The judgment delivered by the learned Special Judge in Special Case No. 9/95 (Annexure-2) shows that the petitioner along with others was convicted under Sections 120B/468/471 I.P.C. and, in addition, he was also convicted under Section 477 I.P.C. and Section 5(2) of the Prevention of Corruption Act and sentenced to rigorous imprisonment and fine on different counts. The order dated 28.6.2001 passed in Misc. Case No. 122/2001 arising out of Criminal Appeal No. 173/2001 shows that the learned Single Judge pending disposal of the appeal suspended the sentence awarded against the petitioner, and allowed him to go on bail. This order passed by the learned Single Judge is being relied upon the writ petitioner to withstand the order of dismissal. 6. The petitioner filed writ petition No. W.P.(C) No. 8706/2001 challenging the aforesaid Memorandum dated 7/9.11.2001 proposing the penalty of dismissal. The aforesaid writ petition was dismissed on 30.1.2002 with the following observation : "As will be seen from the notice itself, the petitioner has been convicted in Spl. Case No. 5/95 by the court of Spl. 6. The petitioner filed writ petition No. W.P.(C) No. 8706/2001 challenging the aforesaid Memorandum dated 7/9.11.2001 proposing the penalty of dismissal. The aforesaid writ petition was dismissed on 30.1.2002 with the following observation : "As will be seen from the notice itself, the petitioner has been convicted in Spl. Case No. 5/95 by the court of Spl. Judge at Shillong. No doubt as against that conviction an appeal has been filed before this court and that is Crl. Appeal No. 173/2001 and in that case, bail has been granted by this Court on 28.6.2001 in Misc. Case No. 122/2001. But the law is well settled that suspension of a sentence or grant of bail do not wipe out the conviction. The conviction remains and if the authority does not want to continue in service a convicted person, no fault can be found with the authority because if the criminal appeal is allowed, the petitioner shall get back everything and he will suffer no prejudice, but on the other hand, if the petitioner is allowed to continue, the authority shall suffer. It is submitted that the notice impugned is without jurisdiction as it has not been issued by the disciplinary authority. I am not inclined to accept this submission and it is submitted that the authority did not take into consideration the other circumstances save and except the conviction." 7. The writ petitioner preferred Writ Appeal No. 145/2002 against the aforesaid judgment. The Division Bench while admitting the appeal observed that any order passed by the respondent-authority in pursuance of the memorandum dated 7/9.11.2001 shall be subject to final decision of the appeal. Eventually, the appeal was dismissed on 25.6.2002 as infructuous. During pendency of the appeal, the respondent-authority passed the impugned order of dismissal on 19.4.2002. 8. Shri P.G. Baruah, learned Senior counsel argued that the petitioner was not given personal hearing. Besides, Shri Baruah argued that the order of dismissal was passed during the period of stay and without application of mind. In addition, Shri Baruah, submitted that the Executive Director, who had issued the order of dismissal is not the authority competent to exercise the powers of dismissal, and as such, the impugned order of dismissal is not sustainable in law. 9. In addition, Shri Baruah, submitted that the Executive Director, who had issued the order of dismissal is not the authority competent to exercise the powers of dismissal, and as such, the impugned order of dismissal is not sustainable in law. 9. It would appear that the Executive Director had imposed the penalty of dismissal on consideration of the conviction of the writ petitioner under Sections 120B/468/471/477A I.P.C. read with Section5(2) of the Prevention of Corruption Act, 1947. There is no dispute that the writ petitioner has been sentenced to rigorous imprisonment for one year and to pay a fine of Rs.5000, in default of R.I. to further period of 6 (six) months. 10. Rule 41 of the O.N.G.C. (Conduct, Discipline and Appeal) Rules 1994, provides the procedure for imposition of major and minor penalty. It provides a special procedure for imposition of penalty without initiation of disciplinary proceedings on the basis of conviction in a criminal case. The memorandum dated 7/9-11-2001 was issued directing the writ petitioner to submit his representation against the proposed penalty of dismissal. The writ petitioner, instead of submitting any representation, straightway approached this Court and filed writ petition No. W.P. (C) 8706 of 2001. The Petitioner is to blame himself for his default in making the representation against the proposed penalty of dismissal. It cannot be said that the petitioner was deprived of the opportunity of making any representation against the proposed penalty of dismissal under Rule 34 of the ONGC (CDA) Rules, 1994 for any inaction on the part of the authority. The order of dismissal, therefore, cannot be deprecated as arbitrary and violative of the principles of natural justice. The penal sections under which the writ petitioner has been convicted indicate the gravity of the offence committed by the writ petitioner. The petitioner had obviously manipulated the official records to make unlawful financial gain. In the given situation, the respondent authority appear to have committed no error in law. 11. The penal sections under which the writ petitioner has been convicted indicate the gravity of the offence committed by the writ petitioner. The petitioner had obviously manipulated the official records to make unlawful financial gain. In the given situation, the respondent authority appear to have committed no error in law. 11. In the case of the Divisional Personnel Officer, Southern Railway and Anr., Appellant v. T.R. Challappan, respondent, it has been held that - "the disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turpitude and, therefore, it is not desirable or conducive in the interests of administration to retain such a person in service.". In another case in State of Punjab v. Prakash Chand the principle enunciated is that the disciplinary authority is free to impose suitable penalty having regard to the nature of misconduct established in a disciplinary proceeding. 12. In T.R. Challappan (supra), the Hon'ble Supreme Court in unequivocal terms laid down that the departmental authority without initiation of disciplinary proceedings may impose penalty in case of proved moral turpitude. In the other case, Prakash Chand (supra), wide powers of the disciplinary authority have been highlighted. In the circumstances of the case at hand, the authority in exercise of the statutory powers decided to impose the penalty of dismissal as the writ petitioner has been convicted in a case for misappropriation. The decision arrived at by the authority, therefore, cannot be lightly tinkered with. The authority had issued a notice to the writ petitioner to show cause against the proposed penalty of dismissal. Failure to avail of the opportunity due to the voluntary inaction on the part of the writ petitioner cannot be a ground to set at naught the decision taken. The materials on record clearly indicate that the departmental authority had applied mind to the materials on record before they proceeded to impose the penalty of dismissal. There is no patent or latent aberration with the procedure adopted. 13. Suspension of the sentence of the imprisonment does not obliterate the conviction altogether. The materials on record clearly indicate that the departmental authority had applied mind to the materials on record before they proceeded to impose the penalty of dismissal. There is no patent or latent aberration with the procedure adopted. 13. Suspension of the sentence of the imprisonment does not obliterate the conviction altogether. The plea that an appeal is pending against the judgment of conviction and sentence in which the sentence has been suspended cannot be a ground to prevent the authority from exercising its statutory powers. If the appeal is allowed and the petitioner is acquitted honourably, he would have the remedy to recover the losses sustained by him. 14. Now I would like to deal with the powers relating to the competence of the Executive Director to impose the penalty of dismissal. I have carefully considered the ONGC (CDA) Rules, 1994. The General Manager has full powers in respect of unionised categories of employees relating to appointment, promotion and imposition of major penalties. The General Manager, in the instant case, issued the memorandum dated 7/9-11-2001. The dismissal order dated 19.4.2001 has been issued by the Executive Director who, as the Rules indicate, is the senior most officer and higher in rank than the appointing authority as well as the disciplinary authority. The Executive Director being much higher in rank and being the senior most officer is competent to exercise the powers of the appointing authority as well as the disciplinary authority. 15. In the result, the writ petition is devoid of merit and, hence, dismissed. No order as to costs. Petition dismissed.