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2003 DIGILAW 732 (JHR)

Parma Lall v. Damodar Valley Corporation

2003-06-24

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. At the outset Mr. A.K. Sahani, learned counsel for the petitioner prayed permission to correct the cause title by deleting Article 227 and substituting the same by Article 226. He is allowed to do so. 2. In this Writ Application the petitioner prays for quashing the order dated 1.7.1996 as contained at Annexure-10 passed by the respondent No. 3 whereby and whereunder he imposed the penalty of compulsory retirement from service upon the petitioner. 3. The petitioner also prays for quashing the order date 13.11.1996 passed by the Appellate Authority which is contained in the enclosure appended to Anne- xure-12 dismissing the appeal of the petitioner thereby confirming the order dated 1.7.1996 as contained at Annexure-10. 4. According to the petitioner, he was initially appointed on the post of Assistant Operator (Mechanical) Trainee and after the training period, he was confirmed whereafter he was promoted to the post to Assistant Controller (Mechanical). 5. On 13.4.1986. a charge-sheet was issued containing a statement of allegations to the effect that the petitioner had absented from duties without any leave or any prior intimation from 19.4.1985 thereby causing dislocation of work. It was further alleged that on previous occasions also, the petitioner had absented himself and leave to the tune of 254 days had to be regularized in the year 1984. It was also alleged that he had drawn salary for the month of May, 1985 without working for a single day and that notice which had been sent to him cautioning him for unauthorized absence had been returned undelivered from his permanent home address. His act of being absent without leave and prior intimation therefore was an in-disciplined behaviours and therefore he was asked to show-cause. Having received the aforementioned charge-sheet, the petitioner showed cause by annexure-2 wherein he gave details of his ailment submitting interalia that he had to go to Calcutta for treatment. At paragraphs 13 and 14 of the Writ Application, the petitioner has stated that another charge-sheet dated 27.1.1988 was prepared and handed over to the Enquiry Officer who had been appointed in relation to the first charge-sheet but it was never served upon him. In that view of the matter, according to the petitioner, he could not submit his explanation with regard to the said second charge-sheet. In that view of the matter, according to the petitioner, he could not submit his explanation with regard to the said second charge-sheet. Consequently, according to the petitioner, there was no justification on the part of the Enquiry Officer to club and amalgamate the second charge-sheet in the same inquiry. However, this part of the assertion/ statement of the writ petitioner to the effect that he did not receive the second charge-sheet, is rejected at the threshold in as much as from a perusal of the final appellate order, it is evident that the petitioner had himself admitted that he had actually received a copy thereof. The relevant portion of the order of the Appellate Authority in relation to this assertion is quoted below :-- "........... a new charge-sheet was issued incorporating the original allegations as charge No. 1 and bringing a new charge as charge No, 2 vide charge-sheet No. compt/231/86- 294, dated 27.1.1988. The appellate took the plea that the 2nd charge-sheet was not legally served upon him and he had not received it. However, he seems to have admitted before the Honble Patna High Court, Ranchi Bench to have obtained a copy of this charge-sheet. I quote from the Order of honble Patna High Court. "A further charge-sheet dated .27.1.1988 was issued by the Director of Personnel, it is stated however that copy of the same was never received by the petitioner and as such, he had no knowledge about the same. However, when he came to know about the same, he obtained a copy of the same unofficially". This point was also raised before the enquiry officer who has gone into the merits of this allegation in great detail and come to a finding that the service of the charge-sheet has been rightly made through the process of affixture. Further the enquiry officer took note of the fact that the Defence Assessment during argument had conceded that the appellant had received the letter dated 9.3.1988 of Director of Personnel, DVC intimating the appointment of the enquiry officer. Further the enquiry officer took note of the fact that the Defence Assessment during argument had conceded that the appellant had received the letter dated 9.3.1988 of Director of Personnel, DVC intimating the appointment of the enquiry officer. This letter also clear-,ly reproduced, the charges including the new charge No. 2 brought against the appellant I am quoting from the enquiry officers report:--"but the delinquent inspite of having knowledge about the charges which he was required to meet did not prefer to submit his reply." So the contention of the appellant that the enquiry proceeding was conducted behind his back without his having any opportunity to make his replies is not correct. The Enquiry Officer has also considered at great length the objection about non-receipt of the charge-sheet as well as absence of opportunity to cross-examine the prosecution witness and rightly rejected these contentions giving reasoned arguments..........." 7. In that view of the matter, it cannot be held that the respondents acted illegally. Moreover, the petitioner faced the inquiry in relation to both the charges and therefore he cannot be allowed to turn around at this stage and say that he had not received the same, consequently, the judgments cited by Mr. A.K. Sahani in the case of Arjun Kumar v. State of Bihar, reported in 2001 (3) JCR 468 (Jhr) : 2001 (2) JLJR 269 , cannot be said to be applicable in the facts and circumstances of this case. Similarly, the other two judgments cited by Mr. A.K. Sahani in the case, of State of U.P. v. Shatrughan Lal and Ors. and Basudeo Tiwari v. Sidhu Kanhu University, reported in 1998 (3) All PLR 190 and 1998 (3) All PLR 216 cannot also come to the rescue of the petitioner in as much as there is nothing to suggest that there has been any violation of the principles of natural justice. 8. According to the petitioner, on 11.1.1990, the Enquiry Officer submitted his report whereafter, the petitioner filed his representation on 22.2.1994 and by order dated 28.4.1994 as contained at Annexure-4, the respondent No. 4 imposed the punishment of compulsory retirement against the petitioner. 9. Being aggrieved, the petitioner filed a Writ Petition before the then Ranchi Bench of the Patna High Court which was registered as C.W.J.C. No. 1323 of 1994 (R). 9. Being aggrieved, the petitioner filed a Writ Petition before the then Ranchi Bench of the Patna High Court which was registered as C.W.J.C. No. 1323 of 1994 (R). An Honble Single Judge was of the view that the order of compulsory retirement was appealable and therefore the Writ Petition was disposed off giving liberty to the petitioner to file appeal within three weeks and the appellate authority was directed not to reject the appeal on the ground of limitation if it was filed within that period. Subsequently, an appeal was filed on 21.2.1995 vide Annexure-6 and on 20.4.1995, the appellate authority passed an order by Annexure-7 confirming the order of compulsory retirement. 10. The petitioner again filed C.W.J.C. No. 3426 of 1995 (R) challenging the aforementioned order and by an order dated 14.3.1996, the aforementioned Writ Petition was allowed and the impugned order was quashed and the matter was remanded to the Disciplinary Authority to deal with the matter afresh. The relevant portion of the order of the High Court passed on 14.3.1996 is relevant to be quoted In as much as it will disclose the reasons why the impugned orders were passed. "Having considered the contentions raised on behalf of the parties, in my opinion, the argument advanced by Mr. Bhowmik cannot be sustained in law. It is true that in a departmental proceeding the Disciplinary authority is not required to pronounce a detailed reason like a judicial authority but in my view, while discharging his function as a quasi judicial authority, the disciplinary authority was required to at least meet the submission made by the petitioner against the findings of the inquiry officer. One of the objections raised by the petitioner was that the inquiry, misconstrued the evidence on record that the petitioner had connection with the business of his father. Categorically it has been stated that his brothers name is Prem Lal which begins with alphabet "P": and the petitioners name is also Parma Lal whose name also begins with alphabet "P" and this created a confusion in the mind of the inquiry officer that the petitioner was involved in his paternal business. Disciplinary , authority should have, in my view, looked into the matter more carefully in order to way of compulsory retirement, in my view, justice and fair play demands that the Disciplinary authority should exercise its jurisdiction more carefully and with open eyes. Disciplinary , authority should have, in my view, looked into the matter more carefully in order to way of compulsory retirement, in my view, justice and fair play demands that the Disciplinary authority should exercise its jurisdiction more carefully and with open eyes. That having not been done, in my view, An- nexure-5 cannot be sustained in law. Similarly, the appellate authority who has confirmed the order of the Disciplinary authority has committed grave error of law in simply agreeing with the finding of the Disciplinary authority. In my view, the appellate authority should have remitted the matter to the Disciplinary authority for giving a reasoned order on the basis of the report of the inquiry officer as well as the objection made by the petitioner to the same. In the result, this application is allowed and the order as contained in Annexures-5 and 8 are quashed. The matter is remitted to the Disciplinary authority to dispose of the same in accordance with law after considering the objection of the petitioner already on record. If the petitioner is still aggrieved with the order of the Disciplinary authority, he is at liberty to agitate the same before the appellate authority. The Disciplinary authority is directed to dispose of the matter within four weeks from the date of receipt/production of a copy of this order. Let a copy of this order be handed over to Mr. Bhowmik for necessary communication." [Italics by Court]. 11. Thereafter, by order dated 1.7.1996 (Annexure-10) an order was passed by the respondent No. 4 giving reasons and once again passing an order of compulsory retirement of the petitioner. Being aggrieved, the petitioner once again filed an appeal before the appellate authority and finally the appellate order was passed on 13.11.1996 dismissing the appeal. 12. In the counter affidavit filed by the respondents, it has, inter alia, been stated that the petitioner does not deserve any relief whatsoever and if the order of the appellate authority as also the order passing the initial order i.e., the one that is passed on 1.7.1996 are perused, then it would be apparent that the petitioner deserved to be dismissed from the service but, taking a lenient view only an order of compulsory retirement had been passed which cannot be said to be a punishment. It has further been stated that the matter has been dealt with in detail and the case of the petitioner has been looked into from every angle and the Writ Petition should not be allowed in favour of the petitioner. They have further stated that all opportunity was given to the petitioner before the Enquiry Officer and thereafter the said officer submitted his report. 13. The petitioner in the earlier Writ Application namely C.W.J.C. No. 3426 of 1995 (R) had made much hue and cry on the point that the Enquiry Officer had mis-construed the evidence on record that the petitioner had connection with the business of his father. He further attempted to make out a case to the effect that his fathers name also began with the letter P just like that of the petitioner and therefore by being involved in the paternal business of his father it could not have been termed to be such a gross misconduct to justify compulsory retirement. 14. The aforementioned submission of the petitioner is in the context that in the other charge-sheet, the allegation was that the petitioner had directly or indirectly engaged himself in the trade or business of the Firm M/s. United construction of Bokaro Thermal Project, District Giridih, Bihar and he involved himself in the said Firm at its office at Kolaghat Thermal Project, C/o. BHEL. This, according to the petitioner, was not correct. 15. So far as the first allegation is concerned and which concerns absence without intimation/leave, the petitioner, in the cause that he had filed, had pleaded ailment and treatment at Calcutta but he was not able to repel the charge that he had actually absented himself. So far as the explanation in relation to illness is concerned, the appellate authority has rightly held that the petitioner could not furnish any evidence in support of his plea that he was medically indisposed. The appellate authority has also rightly stated that as an employee of the Damodar Valley Corporation, he should have availed the facilities of medical treatment from the D.V.C Hospital at B.T.P.S. and if any reference to any specialist was required, that would have been arranged by the D.V.C, Medical Department. The petitioner never went to the hospital of D.V.C. nor did he submit any evidence from any other medical authority about his serious ailment. The petitioner never went to the hospital of D.V.C. nor did he submit any evidence from any other medical authority about his serious ailment. Consequently, the appellate authority correctly came to the conclusion that the petitioner had absented himself without any authority. The relevant portion of the observation of the appellate authority are reproduced below:-- "............ He went on leave on 19.4.1985 and came back for duty on 19.6.1986; thereafter, again he absented himself from duty from 8th August, 1986 indefinitely. The appellant could not furnish any evidence in support of his plea that he was medically Indisposed. As an employee of DVC he should have availed of the facilities of medical treatment from the DVC Hospital at BTPS. If any reference to any specialist was required that would have been arranged by DVC Medical Department. Neither did he ever go to the Hospital of DVC nor has he submitted any evidence from any other medical authority about his serious indisposition. In his earlier reply he had stated that he informed the shift Incharge about the fact of his indisposition but sent his applications for leave through Post. It does not stand to reason why he could not handover his leave application to the shift Incharge in person if he met him and why he had to take recourse to sending his application through post. The Shift Incharge in his deposition has categorically denied to have received any intimation or application from the appellant about his leave of absence. On carefully, going through the facts of this case, one cannot but come to the conclusion that the appellant had absented himself for prolonged period without any authority...................." 16. So far as the petitioner being involved in his parental business is concerned, the appellate authority rightly came to the conclusion that the petitioner had engaged himself in business activities without any permission. The relevant portion of the order of the appellate authority in this respect therefore is also worth reproducing:-- ".........As regards the second charge the Honble Patna High Court, Ranchi Bench has specifically directed the Disciplinary Authority to carefully consider the plea of the petitioner that it was his brother Prem Lal, not he who was working for the private firm M/s. United Construction. I am quoting from the order of the Honble High Court--"One of the objections raised by the petitioner was that the Enquiry Officer misconstrued the evidence of records that the petitioner had connection with the business of his father. Categorically it had been stated that his brothers name is Prem Lal which beings with the alphabet "P" and the petitioners name also "Parma Lal" whose name also begins with alphabet "P" and this created confusion in the mind of the Enquiry Officer that the petitioner was involved In his paternal business." I have pointedly given my anxious attention to the evidence which had been adduced on this ground and the detailed reasoning of the Enquiry Officer holding that this charge has also been made out against the appellant. There Is no dispute that the appellant himself had made the application on behalf of M/s. United Construction for issue of a labour license to the appropriate Labour Authority of Government of West Bengal, for engagement of 20 contract labourers for working in the BHEL, job at Kolaghat Thermal Power Station Phase--II located in the district of Midnapore. This has been brought on record as Exhibit-2. The appellant has signed this application In his own name. He takes the plea that he has filed this application on behalf of his father who is the Proprietor of this Company. But in the application nowhere it was mentioned that he was signing on behalf of either his father or his elder brother who, he claims, was working as the Resident Manager of this Company at Kolaghat. This evidence establishes that the appellant had engaged himself in the business activities of a private company which, of course was their family concern called United Construction at its Kolaghat Site Operation. The prosecution also relied on the Exhibit-3 which is gate pass issued by the Kolaghat Thermal Power Station authority in favour of Shri Prem lal. Resident Manager of United Construction. This gate pass contains a photograph which has been identified by P.W.-1 Shri K.K. Uppal, as the photograph of the appellant himself. P.W.-l Shri K.K. Uppal, was the Deputy Chief Engineer of BTPS-A under whom the appellant was working and he had personal knowledge about appearance of the appellant. He has categorically identified the photograph to be that of the appellant. P.W.-l Shri K.K. Uppal, was the Deputy Chief Engineer of BTPS-A under whom the appellant was working and he had personal knowledge about appearance of the appellant. He has categorically identified the photograph to be that of the appellant. This clearly proves that the appellant was posing as Prem Lal and carrying on the business of United Construction at Kolaghat. The appellant claims this photograph as one of his elder brothers Prem Lal. But he has not taken any trouble either to produce his elder brother or anyone else who could give evidence in support of his contention that the photograph really was that of Shri Prem lal, his elder brother. There is no reason to disbelieve the statement of a senior officer that the photograph marked Exhibit-3 is indeed that of the appellant himself..........." 17. From a perusal of the aforesaid, it is apparent that the petitioner himself had made an application on behalf of M/s. United Construction for issuance of a Labour Licence to the appropriate authority of West Bengal for engagement of twenty (20) Contract Labourers working for BHEL at the Kolaghat Thermal Power Station in the district of Midnapur. This application was marked Ext. 2 and it was signed by the petitioner in his own name. He took the plea that he had filed this application on behalf of his father but in the application, it was no where mentioned that he was signing either on behalf of his father or brother. Therefore, the appellate authority correctly came to the conclusion that this document established that the petitioner had engaged himself in the business activity of the company. Another important document is the Gate Pass which was marked Ext. 3 issued by Kolaghat Thermal Power Station in favour of Premlal. The petitioners case was that his brothers name is, Prem Lal. However, this Gate Pass contained a photograph which was identified by P.W.-1 K.K. Uppal as the photograph of the petitioner himself. Mr. K.K. Uppal was the Deputy Chief Engineer under whom the petitioner was working and he had categorically identified the photograph to be that of the petitioner. The appellate authority therefore correctly held that this document proved that the petitioner was posing as Prem Lal and was carrying on business of United Construction at Kolaghat. Mr. K.K. Uppal was the Deputy Chief Engineer under whom the petitioner was working and he had categorically identified the photograph to be that of the petitioner. The appellate authority therefore correctly held that this document proved that the petitioner was posing as Prem Lal and was carrying on business of United Construction at Kolaghat. Although he claimed that this photograph to be that of his brother, yet he did not produce his brother nor did he produce anybody else to support his contention that the photograph was that of his elder brother. The photograph was his own photograph which he claimed to be that of his brother. There was therefore no misconstruction on the part of the respondents, as alleged. 18. Moreover, under Regulation 12 of the D.V.C. Service (Conduct) Regulation, 1955, it is clearly laid down that no employee shall, except with the previous sanction of the Corporation, engage directly or indirectly in any trade or business or undertake any employment. In that view of the matter, the petitioner had also acted contrary to the aforementioned service regulation. 19. For all the reasons stated above, this Court comes to a definite conclusion that the petitioner has not been able to make any case for interference. The writ petition is accordingly dismissed. There shall however be no order as to costs.