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2008 DIGILAW 290 (PNJ)

A. v. Jawakar VS Central Warehousing Corporation

2008-02-01

HEMANT GUPTA, MOHINDER PAL

body2008
Judgment Hemant Gupta, J. 1. The challenge in the present writ petition is to the order dated 17-09-2004 (Annexure P7) passed by the Disciplinary Authority, order in appeal dated 31-01-2001 (Annexure P9) and order in review dated 08-09-2005 (Annexure P11) whereby the punishment of stoppage of one increment without cumulative effect was imposed and maintained by the Appellate and Reviewing Authority. 2. A charge-sheet dated 13-08-2003 was served upon the petitioner on the ground that the petitioner did not perform his duty as a member of the Regional Technical Evaluation Committee while evaluating technical/professional qualification of tenderers and that the petitioner has shown favoritism to firms i.e. M/s Freightlines Services Private Limited in obtaining H&T Contractor at ICD Singnallur either in its own name or in the name and style of sister concern i.e. M/s Kumar Transport. In pursuance to the said charge-sheet, an Enquiry Officer was appointed. The Enquiry Officer in his report dated 10-06-2004, Annexure P5, found that the charge of carelessness/negligence in recommending technically unqualified tenderers stands proved to a reasonable extent whereas the charge of favouring M/s Freightline Services Private Limited and M/s Kumar Transport is not proved. 3. The Disciplinary Authority, on the basis of the said Enquiry Report, issued a notice dated 22-06-2004 and also sent a copy of the Enquiry Report to the petitioner. On the basis of the said notice and after considering the reply filed, punishment of stoppage of one increment without cumulative effect was imposed. The said order was communicated by the Managing Director on behalf of the Board of Directors. The appeal was dismissed vide order dated 31-01-2005 Annexure P9 allegedly again by the different members of the Board of Directors. Even the review was dismissed vide order dated 8-9-2005 Annexure P11 again by the different members of the Board of Directors. 4. Learned Counsel for the petitioner has raised two-fold arguments to challenge the aforesaid order of punishment. Firstly, the Punishing Authority has not recorded its reasons of disagreement in respect of second charge while issuing show cause notice to the petitioner. Therefore, the order of punishment is result of denial of rights of natural justice. 4. Learned Counsel for the petitioner has raised two-fold arguments to challenge the aforesaid order of punishment. Firstly, the Punishing Authority has not recorded its reasons of disagreement in respect of second charge while issuing show cause notice to the petitioner. Therefore, the order of punishment is result of denial of rights of natural justice. It is further contended that the Disciplinary Authority in terms of Central Warehousing Corporation (Staff) Regulations 1986 as amended on 22-12-2002 was the Managing Director, the Appellate Authority was the Executive Committee and the Reviewing Authority was the Board of Directors whereas it is the Board of Directors, who has passed the order of punishment. The appeal and review has been again considered by the Board of Directors. Therefore, the petitioner has been deprived of his effective right of appeal. 5. Having heard the Learned Counsel for the parties, we do not find any ground to interfere in the order passed in the writ jurisdiction of this Court. A perusal of the Enquiry Report Annexure P5 shows that first charge of carelessness/negligence in recommending technically unqualified tenderers stands proved against the petitioner. The show cause notice issued was in respect of the said charge proved against the petitioner. The Board of Directors has dis-agreed with the findings recorded by the Enquiry Officer in respect of second charge in the order of punishment passed by it on 17-09-2004. Since a minor punishment of stoppage of one increment without cumulative effect has been awarded, we do not find that non-recording of the reasons of disagreement on the second charge and its non-communication to the petitioner has caused any prejudice to the petitioner, which may entitle the petitioner to seek re-consideration of the order of punishment imposed against him. It may be noticed that the petitioner has since been promoted as General Manager (General) on 01-12-2006. Therefore, the order of punishment has not caused any adverse effect on the petitioner. 6. In respect of second argument that the Disciplinary Authority was the Managing Director in terms of the amended Regulations, therefore, the right of appeal has been taken away. Learned Counsel for the petitioner has referred to A.Sudhakar v. Post Master General, Hyderabad and Anr. to contend that the higher Authority can pass an order but by such order the right of appeal cannot be defeated. Learned Counsel for the petitioner has referred to A.Sudhakar v. Post Master General, Hyderabad and Anr. to contend that the higher Authority can pass an order but by such order the right of appeal cannot be defeated. In the un-amended Regulations, the Board of Directors was the competent Authority to impose the penalty. The Appellate and Reviewing Authority were again the Board of Directors. It is pointed out by the Learned Counsel for the respondents that to exercise such Appellate and Review jurisdiction, the different members of the Board of Directors considered the matter. It is argued that even if the Board of Directors has passed the order of punishment, the order of punishment can be said to be vitiated as the petitioner cannot claim that denial of right of appeal has caused any prejudice. 7. In Balbir Chand v. Food Corporation of India Limited and Ors., it has been found that there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action. Since the order of punishment is only to stoppage of one increment without cumulative effect in the present case and highest Authority of the respondent has passed an order, we do not feel that denial of right of appeal has caused any prejudice to the petitioner, which may warrant any interference by this Court in exercise of its writ jurisdiction. 8. Dismissed.