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2007 DIGILAW 547 (KAR)

S. SIDDALINGASWAMY v. UNION OF INDIA

2007-08-29

D.V.SHYLENDRA KUMAR

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( 1 ) THE matter has come up for orders on the application for vacating the interim order of stay granted by this Court on 19-7-2005, contending, inter alia, that it has held up the enquiry which otherwise could have been completed and that there was no reason to stay the order and the writ petition is not tenable etc. ( 2 ) LEARNED counsel for the parties submit that instead of passing orders on the application for vacating the interim order, the main matter could be heard and disposed of and accordingly the matter is taken up for disposal with the consent of learned counsel for the parties. ( 3 ) WRIT petition by a person who had been appointed as the Managing Director of M/s. HMT Watches Limited, a subsidiary of M/s. HMT Limited, which is wholly owned by union of India. ( 4 ) PETITIONER was so appointed as on 31-10-2002 following the approval of the proposal for appointment of the petitioner for the post in terms of the proceedings of sub-committee of the Cabinet for clearing the appointment to the Executive post of Public Sector undertaking in its Meeting held on 10-10-2002. The appointment order dated 31-10-2002 (copy at Annexure-D) itself recites that in accordance with the orders of the Government, the petitioner is being appointed and the order is issued by the Chairman and Managing Director of M/s. HMT Watches Limited. ( 5 ) IT further transpires that much later in terms of the communication dated 11-9-2003 (copy at Annexure-C ). when the Government of India, Ministry of Heavy Industries and public Enterprises, Department of Heavy Industry, new Delhi addressed to the Company secretary of the holding company, the terms and conditions of appointment were amplified and a relevant clause which is relied upon by the petitioner in this terms of appointment which is clause-xiii which reads as under : "xiii. Conduct. Discipline and Appeal rules : (a) The Conduct, Discipline and Appeal rules framed by the PSE in respect of their non-workmen category of staff would also mutatis mutandis apply to him with the modification that the Disciplinary Authority in his case would be the President. Conduct. Discipline and Appeal rules : (a) The Conduct, Discipline and Appeal rules framed by the PSE in respect of their non-workmen category of staff would also mutatis mutandis apply to him with the modification that the Disciplinary Authority in his case would be the President. (b) The Government also reserves the right not to accept his resignation if the circumstances so warrant i. e. , the disciplinary proceedings are pending or a decision has been taken by the competent authority to issue a charge-sheet to him. " indicates that the conduct and disciplinary aspects of the appointment and the appeal rules are governed by the rules as framed and are in existence in respect of public sector enterprises, except that in the case of the petitioner, the disciplinary authority will be the president of India. ( 6 ) IT appears the petitioner had been placed under suspension even before this amplified terms and conditions had been issued, that is the order of suspension came to be passed on 30-7-2003 which again was a communication in the name of the Chairman and Managing director of the holding company and purporting to be as per the directions of the competent authority. This order of suspension had become subject-matter of writ petition No. 34613 of 2003 before this Court which came to be stayed initially and ultimately this Court allowed the writ petition in terms of the order dated 24-5-2004 holding, inter alia, that the order of suspension had not been issued by the competent authority for the reason that the authority who had sanctioned passing the order of suspension was only a cabinet minister and not the sub-committee of the Cabinet for clearing such appointments. The significance this Court observed was that the approval by the sub-committee of the cabinet for clearance of appointment to public sector enterprises is virtually the approval of the president as the President functions through the cabinet. ( 7 ) IT is also the version of the parties that order of the learned single Judge had been appealed against in writ appeal No. 2799 of 2004. The order passed by the learned single judge came to be stayed by the Division bench of this Court on 14-12-2004. ( 8 ) FURTHER development as pleaded and not disputed is that on 27-1-2005, the order of suspension came to be withdrawn/revoked with effect from 25-1-2005. The order passed by the learned single judge came to be stayed by the Division bench of this Court on 14-12-2004. ( 8 ) FURTHER development as pleaded and not disputed is that on 27-1-2005, the order of suspension came to be withdrawn/revoked with effect from 25-1-2005. It is also a fact that the petitioner was attaining the age of superannuation on 31-1-2005. It is the development on this day which is the subject-matter of the present writ petition, namely, the memorandum vide no. 5-II (1)/2001-PEX dated 31-1-2005 (copy at Annexure-M), the first paragraph of which reads as under : "the President proposes to hold an inquiry against Shri. S. Siddalingaswamy, Managing director, HMT Watches Ltd. , (a public sector enterprise under the Department of Heavy Industry, Govt. of India)under Rule 23. 4 of the hmt Watches Ltd. , Conduct, Discipline and appeal (CDA) Rules and HMT Ltd. , Conduct, discipline and Appeal Rules, as applicable during his service in the respective companies. The substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charge (Annexure-I ). A statement of the imputations of misconduct or misbehaviour in support of each article of charge is enclosed (Annexure-II ). A list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained are also enclosed (Annexure-III and IV ). " came to be issued in the name of the petitioner, the sum and substance of which was that the president proposed to hold an enquiry against the conduct or misconduct of the petitioner while not only in the services of the present company but also while in the services of his previous company. It is this memorandum which is sought to be quashed by issue of a writ of certiorari and for other consequential directions, the present writ petition has been filed. ( 9 ) THIS Court in terms of the interim order dated 19-7-2005 stayed further proceedings in the disciplinary action proposed against the petitioner. ( 10 ) I have heard Sri. P. S. Rajagopal, learned counsel for the petitioner and Sri. N. Devhadass, learned Senior Counsel appearing for Sri. Shivaprabhu Hiremath, learned central Government Standing Counsel appearing for the respondent. ( 9 ) THIS Court in terms of the interim order dated 19-7-2005 stayed further proceedings in the disciplinary action proposed against the petitioner. ( 10 ) I have heard Sri. P. S. Rajagopal, learned counsel for the petitioner and Sri. N. Devhadass, learned Senior Counsel appearing for Sri. Shivaprabhu Hiremath, learned central Government Standing Counsel appearing for the respondent. ( 11 ) WHILE the narration about the facts and documents are indicated above, the main contentions urged by learned counsel for the petitioner in support of the writ petition are firstly that there is no proper sanction of the competent authority for initiating the disciplinary proceedings as against the petitioner in terms of the memorandum dated 31-1-2005 and therefore the memorandum lacks teeth and is to be quashed. ( 12 ) IT is secondly urged that the petitioner in fact attained the age of superannuation as on 31 -1-2005; that thereafter he is no more in the services of the company; that the job of the petitioner is not even a pensionable job; that there is no way of the respondent imposing any effective punishment on the petitioner assuming for argument sake the enquiry resulted in proving the charges against the petitioner which is a remote possibility according to learned counsel for the petitioner and therefore the entire enquiry and disciplinary proceedings will be an exercise in futility at considerable cost to the public exchequer and it should be avoided and therefore further proceedings should be quashed. ( 13 ) SEVERAL other contentions are urged. What is essentially pressed into service for the present are the two contentions raised as mentioned above. ( 14 ) SRI. Devhadass, learned Senior Counsel appearing for the respondent draws attention of the Court to the statement of objections pointing out the defence taken in support of the action proposed against the petitioner and submits that there is no irregularity much less an illegality and the action proposed is well within the limits of law; that the first point raised on behalf of the petitioner is really of no relevance, in the sense that, the very memorandum recites that it is the President who has proposed to hold an enquiry and the President being the disciplinary authority, competent to hold an enquiry, there is no question of the memorandum of articles of charge lacking competence. ( 15 ) IN this regard, it is submitted that the reliance placed by Sri. Rajagopal, learned counsel for the petitioner on the earlier decision of this court does not help the petitioner. ( 16 ) IN regard to the futility or the justification for continuing the enquiry even after the petitioner attaining the age of superannuation, sri. Devhadass draws the attention of the court to the Conduct, Discipline and Appeal rules of the company, particularly Rule 23. 4. 7 (copy at Annexure-L) and submits that the rule as amended with effect from 13-3-2000 enables the employer to continue disciplinary proceedings which had been initiated when the employee was in service and to be taken to its logical conclusion even beyond the date of superannuation and in the present case, the charge memo having been issued on 31-1-2005, the day on which the petitioner was still in service of the company, it can be continued in terms of this very rule. ( 17 ) WITH regard to other contentions that it is an exercise in futility, learned counsel for the respondent submits that it is the discretion and wisdom of the employer to continue such proceedings etc. ( 18 ) I have bestowed my attention and considered the rival submissions, averments, pleadings and the order passed by this Court earlier in the first round of litigation by the petitioner. ( 19 ) WHILE it may not be very necessary to examine all the legal contentions urged by the learned counsel for the petitioner, on the first point, namely, that the memorandum lacked competence which again is based on the order passed by this Court is on the premise that the very memorandum recites that it is the president who proposes to hold the enquiry and nothing is mentioned about any resolution by the cabinet or the sub-committee of the Cabinet. ( 20 ) THE writ averments while does not indicate that it is not the President who is holding the enquiry, on the other hand, submission of Sri. ( 20 ) THE writ averments while does not indicate that it is not the President who is holding the enquiry, on the other hand, submission of Sri. Rajagopal, learned counsel for the petitioner being that in terms of the order passed by this Court in earlier round of litigation, the approval of the sub-committee of the cabinet for inaction against the petitioner being akin to the action of the President and the memorandum not reciting that it is being issued for the purpose of the proceedings as decided by the sub-committee of the cabinet, it is still not valid is not in my opinion an argument to be examined for the simple reason that factually it is not averred in the writ petition. ( 21 ) IN the absence of a positive assertion that the President has not proposed to hold the enquiry, nothing further is required to be countered by the respondent and therefore the memorandum on the face of it has to be accepted by the Court. ( 22 ) IT is not necessary to go into the legal issue raised as on fact there is no averment that the memorandum is not reciting the true fact. The President is the disciplinary authority even as indicated in the relevant service rules, governing the service conditions of the petitioner read in conjunction with the order of appointment and the terms and conditions of appointment. ( 23 ) WITH regard to the second contention, namely, that the petitioner has retired on superannuation with effect from 31-1-2005 and therefore there is neither any competence to continue the disciplinary proceedings nor is it a viable possibility, I am of the view that there is no bar or impediment in terms of Rule 23. 4. 7 for continuing the disciplinary proceedings if it should have been initiated while the petitioner was still in service. ( 24 ) PETITIONER, in fact, was still in service as on 31-1-2005 and it is only after this day he retired from service. 4. 7 for continuing the disciplinary proceedings if it should have been initiated while the petitioner was still in service. ( 24 ) PETITIONER, in fact, was still in service as on 31-1-2005 and it is only after this day he retired from service. A memorandum reciting that date though there is dispute with regard to the date of actual service of this notice on the petitioner, the date of service of notice while is not an issue in the present writ petition, a memorandum of article of charge, proposing the holding of an enquiry in respect of the charges mentioned therein is a valid memorandum in terms of Rule 23. 4. 7 of the company's rules. ( 25 ) THEREFORE, I am of the view that while rule 23. 4. 7 positively enables continuation of the proceedings, the viability or need or necessity for holding such an enquiry at the cost of public funds is not a matter which deserves the attention of this Court in writ jurisdiction at this stage as in the normal course also it is the prerogative of the employer to hold an enquiry in respect of any conduct or misconduct of its employees and that is not evaluated on the wisdom of spending funds for holding such an enquiry. Discipline is a matter which has to be enforced. Whether it is a case which results in any element of punishment on not is a different proposition. ( 26 ) IT is for this reason I hold there is no scope for interference in this writ petition and the interim order granted on 19-7-2005 is required to be vacated. ( 27 ) ACCORDINGLY, interim order granted by this Court on 19-7-2005 is vacated and the writ petition is dismissed. ( 28 ) ALL other contentions urged which are not examined in this writ petition are left open.