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2013 DIGILAW 121 (CHH)

N. P. HENRY v. BAILADILA IRON ORE PROJECT

2013-04-08

SATISH K.AGNIHOTRI

body2013
ORDER 1. Challenge in this petition is to the order dated 30.07.2000 (Annexure-P/12), by which the penalty of 'reduction of her (petitioner) pay by two incremental stages in her present grade with cumulative effect' was imposed. Further challenge is to the order dated 19.08.2000 (Annexure - P/l4), by which the appeal preferred by the petitioner against the order dated 30.07.2000 was dismissed. 2. The facts, in brief, as projected by the petitioner, are that initially the petitioner was appointed as a Teacher in the year 1967. Subsequently, the management closed the school and the services of the petitioner was transferred and was appointed as Junior Assistant in the respondent Bailadila Iron Ore Project. Afterwards, the petitioner was posted in the plant section to do the work of dispatcher. On account of heavy work load in the plant section, it was not possible for the petitioner to do the additional work of the production section, therefore, the petitioner refused to do the work of dispatcher of the 'production section. The respondent authorities without appreciating the problems faced by the petitioner on 11.12.1995 (Annexure - P/2), issued the charge-sheet. The petitioner submitted her reply to the charge-sheet on 17.10.1995 (Annexure-P/3). The respondent authorities without considering the reply submitted by the petitioner initiated the departmental proceedings against the petitioner. After completion of the departmental enquiry proceedings, the Enquiry Officer submitted his report holding that the charges are not found proved. In spite of the above, the respondent authorities again issued the charge-sheet to the petitioner on 05.04.1997 (Annexure - P/6) on the same set of charges in an illegal and arbitrary manner. 3. According to the petitioner, there is no provision to issue another charge-sheet on the same set of facts; however, the respondent authorities initiated the departmental enquiry. In the said departmental enquiry, no opportunity of hearing was afforded to the petitioner. Even the petitioner was not afforded full opportunity to cross-examine the witnesses as well as to produce the defence evidence. On completion of the enquiry on 17.06.2000 (Annexure –P/10), a show cause notice was issued to the petitioner proposing the punishment. The petitioner submitted her reply to the said show cause notice. Thereafter, by order dated 30.07.2000 (Annexure – P/12) the punishment was imposed i.e. the penalty of "reduction of her pay by two incremental stages in her present Grade with cumulative effect". The petitioner submitted her reply to the said show cause notice. Thereafter, by order dated 30.07.2000 (Annexure – P/12) the punishment was imposed i.e. the penalty of "reduction of her pay by two incremental stages in her present Grade with cumulative effect". There against, the petitioner preferred an appeal, which was dismissed by order 19.08.2000 (Annexure – P/14). Thus, this petition. 4. Shri Shrivastava, learned counsel appearing for the petitioner would submit that the second charge-sheet dated 05.04.1997 (Annexure - P/6) is illegal and without any jurisdiction. In fact, there is no provision under the Standing Orders of the project to issue second charge-sheet on the same set of facts. The order passed by the Disciplinary Authority as well as the Appellate Authority are not at all sustainable in the eyes of law and the same are non-speaking orders. Shri Shrivastava, would further submit that the enquiry officer failed to see that there is no evidence in the enquiry regarding the willful insubordination or disobedience of the petitioner. Before passing the impugned order, the respondent authorities have not complied with the provisions of the Standing Orders in its letter and spirit. 5. On the other hand, Shri Koshy, learned counsel appearing with Shri N.N. Roy, learned counsel for the respondents, would submit that the scope of judicial review in the matters of disciplinary proceedings is very limited and is strictly confined to the decision making process. The petitioner has utterly failed to point out illegality, if any, in the process of disciplinary proceedings and thus the interference with the orders of punishment and its confirmation by the authorities is not called for. Shri Koshy would further submit that the petitioner has utterly failed to show the prejudice caused to her because of being subjected to the disciplinary proceedings afresh. In view of absence of any allegation as to how the petitioner was deprived of her opportunity to present her version in a proper manner, it is not open for her to question the validity of the finding recorded by the enquiry officer on subsequent occasion. 6. Shri Koshy would also submit that even otherwise the conduct of insubordination, as admitted by the petitioner in her pleadings, being a major misconduct and, as such, the punishment imposed upon the petitioner may not be held as disproportionate from any angle. 6. Shri Koshy would also submit that even otherwise the conduct of insubordination, as admitted by the petitioner in her pleadings, being a major misconduct and, as such, the punishment imposed upon the petitioner may not be held as disproportionate from any angle. The petitioner herself has admitted that she has refused to do the work, which itself a misconduct under clause 28 (2) (i) of the Certified Standing Orders. Shri Koshy would next submit that since the first charge sheet was not proper and the findings of the enquiry officer also not been proper, the disciplinary authority disagreeing with the same issued a fresh charge sheet on the same charge for the same misconduct and ordered for a de novo enquiry to prove the misconduct. The action of the disciplinary authority and the appellate authority was within the stipulated norms and as per the provisions of the Standing Orders and also as per the settled provisions of law. Therefore, the petitioner is not entitled to any relief and the petition may be dismissed. 7. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 8. The memorandum of charge was issued on 11.12.1995 (Annexure-P/2), wherein, it was stated as under:- "2. You were issued a memorandum dated 16.10.1995 cautioning against such refusal and advising you to continue to do the receipt and dispatch work of the office of the DGM (Prodn) also. Your explanation dated 17.10.1995 in response thereto, is not at all satisfactory considering that various sections/departments are created for functional convenience and discontinuation of such work on your own will inevitably attract the orders No.28 (2) (i), 28 (2) (vii), 28 (2) (ix), 28 (2) (x) and 28 (2) (xxv) of the Standing Orders." 9. The enquiry officer as well as the presenting officer were appointed vide order dated 27/29.04.1995 (Annexure - P/4). After enquiry, it appears that no decision was taken and fresh detailed enquiry was initiated by memorandum dated 31.03.1997/05.04.1997 (Annexure - P/6), whereunder the following charges were framed. "The above act on the part of Smt. N.P. Henry, Sr. Assistant Grade-II, constitutes a major misconduct under the provisions of the certified Standing Orders which are reproduced as hereunder: 28(2)(i) - willful in-subordination or disobedience whether alone or in combination with others to any lawful and reasonable order of a superior. "The above act on the part of Smt. N.P. Henry, Sr. Assistant Grade-II, constitutes a major misconduct under the provisions of the certified Standing Orders which are reproduced as hereunder: 28(2)(i) - willful in-subordination or disobedience whether alone or in combination with others to any lawful and reasonable order of a superior. 28(2)(ix) - Habitual indiscipline 28(2)(xvv) - Any act subversive of discipline" 10. The petitioner challenged the issuance of fresh charge sheet on the ground that without passing any order on the first charge-sheet, no second enquiry proceedings could be initiated. By order dated 19/20.07.1997 (Annexure – P/8) the enquiry officer and the presenting officer were appointed. The enquiry report was submitted vide Annexure - P/9 holding that all the charges leveled against the petitioner have been found proved. Second show cause notice dated 15/17.06.2000 (Annexure – P/10) was issued, to which the petitioner submitted her reply on 16.07.2000 (Annexure – P/11). Thereafter, the final order was passed on 30.07.2000 (Annexure - P/12) imposing penalty of 'reduction of her (petitioner) pay by two incremental stages in her present grade with cumulative effect'. There against, an appeal was preferred, which was also rejected on 19.08.2000 (Annexure - P/14). 11. The main contention of the learned counsel for the petitioner is that once the enquiry, as been initiated and the same has been concluded, the second charge-sheet, pursuant to the first charge-sheet could not have been issued. Secondly, the officer ought to have considered the fact that the petitioner was over burdened and, as such, refusal not to work, was not deliberate and intentional. 12. Contention of the learned counsel for the respondents is that the first departmental proceedings were not concluded, as after enquiry report, no order, thereon, was passed either of acquittal or imposition of punishment. 13. On bare reading of the first charge-sheet, it is manifest that there was no framing of charges properly with article of charges, etc., as required under the provisions of law. Thus, the second charge-sheet for the same incident was served with article of charges and other requirement. The enquiry was properly conducted, as there is no specific allegation in respect of non-affording opportunity of hearing. 14. It is a trite law that the holding of enquiry is an extension of the work of the disciplinary authority. Thus, the second charge-sheet for the same incident was served with article of charges and other requirement. The enquiry was properly conducted, as there is no specific allegation in respect of non-affording opportunity of hearing. 14. It is a trite law that the holding of enquiry is an extension of the work of the disciplinary authority. The departmental enquiry is a part of the proceedings till the report is accepted by the disciplinary authority or some order is passed on the basis of departmental proceedings. 15. Indisputably, the first charge-sheet was not properly issued and even the charges were not framed specifically. There was no article of charges and the enquiry was also not proper and, as such, the second charge-sheet was issued on 31.03.1997/5.04.1997 with statement of imputation of misconduct in support of article of charges and proper enquiry was conducted. The allegation of the petitioner that the enquiry was not in accordance with law is without any basis, as in case of enquiry the delinquent must point out specific violation or perversity in the enquiry report while upholding the charges leveled against the employee. This is not the case here, as the submissions are vague and unfounded. (See: U.P. Cooperative Federation Ltd. and Others Vs. L.P. Rai, (2007) 7 SCC 81 ). 16. The Supreme Court in Kuldeep Singh v. Commissioner of Police and Others, (1999) 2 SCC 10 observed as under: "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse, But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be the conclusions would not be treated as perverse and the findings would not be interfered with." 17. In V. Ramana Vs. APSRTC and Others, (2005) 7 SCC 338 the Supreme Court observed as under: "11. In V. Ramana Vs. APSRTC and Others, (2005) 7 SCC 338 the Supreme Court observed as under: "11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision." 18. For the reasons mentioned hereinabove, the writ petition, being devoid of merit, is liable to be and is hereby dismissed, leaving the parties to bear their own costs. Petition Dismissed.