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2013 DIGILAW 1286 (JHR)

Mina Sinha v. Indian School of Mines, Dhanbad

2013-11-28

SHREE CHANDRASHEKHAR

body2013
ORDER : The writ petition has been filed challenging orders dated 19.1.1998, 9.2.1999 and 17.6.1999. 2. Heard the learned counsel appearing for the parties and perused the documents on record. 3. The original petitioner was appointed on 29.11.1979 on the post of Deputy Registrar (Accounts). A charge-memo was served upon the original petitioner on 21.4.1992. An enquiry was conducted into the charges levelled against him and the enquiry report dated 6.2.1997 was submitted. A second show-cause notice dated 2.8.1997 was issued to the original petitioner however, without considering his reply, the order of penalty removing him from service was passed on 19.1.1998. The original petitioner sought review and the order of removal from service was converted into an order of compulsory retirement. 4. The learned counsel appearing for the petitioner has submitted that, the enquiry officer submitted a report whereunder all the charges except, part of charge nos. 1 and 3, were not found proved. The disciplinary authority disagreed with the findings recorded by the enquiry officer however, a perusal of the second show-cause notice would indicate that the grounds of disagreement to the findings recorded by the enquiry officer are superficial. Moreover, the reply of the original petitioner was not considered by the disciplinary authority and therefore, the impugned orders are liable to be quashed. The learned counsel appearing for the petitioner has pointed out that in the 77th Meeting of the Executive Board of Indian School of Mines held on 12.12.1990 vide item no. 77.6.1 of the Minutes of Meeting, the Board resolved to take necessary action for selection and appointment to the post of Director. The Minutes of Meeting was circulated to the members of the Board. On 26.2.1991, the petitioner was assigned the post of Acting Registrar, however, the Chairman did not like the posting of the petitioner by the Director as the Acting Registrar. Under the prevailing circumstances, the petitioner filed Title Suit No. 19 of 1999 in the Court of Munshif, Dhanbad seeking temporary injunction restraining the School from removing the petitioner from the position of Acting Registrar. Vide orders dated 4.3.1991 and 5.3.1991 the order of "Status-Quo" was granted by the Court and though, a Civil Revision No. 224 of 1991 (R) was filed by the Chairman in the High Court, the said application was dismissed as withdrawn on 10.3.1992. Vide orders dated 4.3.1991 and 5.3.1991 the order of "Status-Quo" was granted by the Court and though, a Civil Revision No. 224 of 1991 (R) was filed by the Chairman in the High Court, the said application was dismissed as withdrawn on 10.3.1992. The 78th Meeting of the Executive Board of the School was held on 16.3.1991 and vide item no. 78.1/1 (b) of the Minutes of Meeting, the Minutes of 77th Board Meeting (Item 77.6.1) were confirmed. After the meeting the Chairman instructed the petitioner to circulate the photocopies of the confirmed Minutes of Meeting in respect of item 77.6.1 to all the members present there. The petitioner complied with the direction of the Chairman, although the Minutes of the 78th Meeting of the Board held on 16.3.1991 were finally approved by the Chairman on 3.5.1991 and therefore, it cannot be alleged that the petitioner intentionally circulated the same belatedly. 5. The learned counsel appearing for the petitioner has further submitted that the 79th Meeting of the Board was held on 12.10.1991 and though no decision with respect to suspension or initiation of the disciplinary proceeding against the petitioner was taken, the Chairman vide order dated 1.11.1991 placed the petitioner under suspension recording that such a decision has been taken pursuant to decision of the Board taken on 12.10.1991. The petitioner has been victimised by the Chairman would appear from the fact that after the suspension of the petitioner, Prof. M. Ramakrishna, who was removed on the complaint of the petitioner for serious irregularities, was reinstated as Acting Registrar vide order dated 4.11.1999. 6. As against the above, the learned counsel appearing for the respondents has submitted that a detailed enquiry was conducted into the allegations levelled against the original petitioner and an enquiry report has been submitted finding the charges partly proved. On consideration of the materials on record, the disciplinary authority passed an order of removal from service and since the original petitioner had been suffering from cancer, on his application the decision was reviewed and the order of removal from service was converted into an order of compulsory retirement. 7. On a perusal of the documents on record, I find that though five charges were framed against the original petitioner, the enquiry officer found all the charges not proved except, a part of charge nos. 1 and 3. 7. On a perusal of the documents on record, I find that though five charges were framed against the original petitioner, the enquiry officer found all the charges not proved except, a part of charge nos. 1 and 3. The aforesaid charges contain the allegations that the petitioner failed to comply with the directions of the Executive Board and circulated the decision of the Executive Board in its 78th Meeting after a delay of 2 months. I find that the original petitioner was issued a second show-cause notice on 2.8.1997 in which the disciplinary authority indicated disagreement with all the findings recorded by the enquiry officer in favour of the original petitioner. I further find that on the proved charge that the petitioner failed to circulate the decision of the Executive Board in its 78th Meeting, the punishment of removal from service which was modified into the compulsory retirement has been passed. 8. The record of the case would disclose that the second show-cause notice dated 2.8.1997 was replied by the petitioner on 28.10.1997 however, the penalty order dated 19.1.1998 does not reveal that representation dated 20.10.1997 and 1.12.1997 of the original petitioner have been considered by the disciplinary authority in the right perspective. The penalty order dated 19.1.1998 would reveal that a decision was already taken on 10.6.1997 proposing penalty of dismissal from service on the original petitioner and thus, the second show-cause notice dated 2.8.1997 was a mere formality. 9. In "Oryx Fisheries Private Limited vs. Union of India and Others", reported in (2010)13 SCC 427 , the Hon'ble Supreme Court has held as under:- "31. It is of course true that the show-cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. 32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice. 33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it." 10. I am of the view that once the disciplinary authority decided to disagree with the favourable findings recorded by the enquiry officer, the disciplinary authority is required to consider the reply of the delinquent employee to the second show-cause notice. However, prior to taking a decision either to reject or to accept the reply of the delinquent employee to the second show-cause notice, the stage for proposing penalty to be inflicted upon the delinquent employee would not arise. 11. However, prior to taking a decision either to reject or to accept the reply of the delinquent employee to the second show-cause notice, the stage for proposing penalty to be inflicted upon the delinquent employee would not arise. 11. In "Yoginath D. Bagde vs. State of Maharashtra and Another" reported in (1999)7 SCC 739 , the provision of Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which requires the disciplinary authority to record its reasoning for disagreement with the findings of the enquiry authority, was considered by the Hon'ble Supreme Court and it has been held that even though, Rule does not specifically provide that the disciplinary authority will give an opportunity of hearing to the delinquent officer, the requirement of hearing has to be read into Rule 9(2) so as to be in consonance with the principles of natural justice. It has been held thus:- "31.................... If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent upto the final stage...................." 12. In "Punjab National Bank & Ors. vs. Kunj Behari Misra", reported in (1998)7 SCC 84 , the Hon'ble Supreme Court has held as under:- "17............ The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority." 13. I further find that in the penalty order dated 19.1.1998 itself the disciplinary authority has recorded as under:- "The Executive Board is satisfied that the disciplinary proceedings were conducted as per their decisions and in accordance with their directions from time to time following the prescribed procedure under the relevant bye-laws of the School and the inquiry officer conducted the enquiry objectively in accordance with the prescribed procedure." 14. In view of the aforesaid finding that the enquiry officer conducted the enquiry objectively in accordance with the prescribed procedure, I am of the view that it was not open to the disciplinary authority to record a complete disagreement with the findings recorded by the enquiry officer in favour of the petitioner. The second show-cause notice dated 2.8.1997 indicates that the enquiry report under which the petitioner has been exonerated of all the charges except part of charge nos. 1 and 3, has been rejected in entirety. The second show-cause notice dated 2.8.1997 indicates that the enquiry report under which the petitioner has been exonerated of all the charges except part of charge nos. 1 and 3, has been rejected in entirety. I am of the view that although, the disciplinary authority himself can act as an enquiry officer or any other officer can be designated as enquiry officer however, once an enquiry report is submitted which according to the department itself was conducted objectively, it is not open to the disciplinary authority to reject the enquiry report in entirety and substitute his own opinion in the matter. Since such a procedure has been adopted in the present case, I am of the opinion that the impugned orders are liable to be interfered with. 15. Coming to the question of quantum of punishment, I find that for the charge which has been found proved by the enquiry officer, the penalty of compulsory retirement is too excessive and definitely disproportionate to the charge found proved. 16. In "Dev Singh vs. Punjab Tourism Development Corporation Ltd. and Another", reported in (2003)8 SCC 9 , the Hon'ble Supreme Court has observed as under:- "7. Applying the said principles laid down by this Court in the cases noted hereinabove, we see that in this case the appellant has been serving the respondent Corporation for nearly 20 years with unblemished service, before the present charge of misconduct was levelled against him. The charge itself shows that what was alleged against the appellant was misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. A reading of the charge-sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to trace the file again. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should be viewed very seriously to prevent such actions in future, whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should be viewed very seriously to prevent such actions in future, whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. Therefore, he was of the opinion that a deterrent punishment was called for, forgetting for a moment that no such allegation of misplacing of important or sensitive record was made in the instant case against the appellant and what he was charged of was misplacement of a file, importance or sensitiveness of which was not mentioned in the charge-sheet. Therefore, in our opinion, the disciplinary authority was guided by certain facts which were not on record, even otherwise, we are of the opinion that when the Service Bye-laws applicable to the Corporation under Service Bye-law 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said Bye-laws should be awarded on the facts of the present case. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience........" 17. In view of the aforesaid, the impugned orders dated 19.1.1998, 9.2.1999 and 17.6.1999 are quashed. The original petitioner has since died therefore, there cannot be an order of reinstatement. In the facts of this case, there would not be an order for payment of back wages, though, the original petitioner would be entitled for all monetary benefits including pension. 18. This writ petition is allowed in the aforesaid terms.