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2013 DIGILAW 401 (JHR)

Birendra Prasad v. Bihar State Electricity Board

2013-03-21

APARESH KUMAR SINGH

body2013
ORDER 1. Heard learned counsel for the parties. 2. These two petitioners have challenged the office orders contained in Memo Nos. 1267 and 1274 dated 2.3.2000 issued by the respondent-Board wherein the petitioners have been awarded (a) stoppage of two annual increments with cumulative effect, (b) debarment from promotion to the higher post for one year when it falls due, (c) permanent withholding of pay and .allowances for the period during which they were under suspension except subsistence allowance and further the period of suspension shall not be counted for the purpose of granting increment, and (d) punishment of censure to be entered into their annual character role for the year 1994-95. 3. These petitioners were working as Operators at the relevant point of time i.e. on 23.2.1995 in night shift Group-B at Patratu Thermal Power Project, Patratu under the respondent-Board and incident occurred in Boiler Drum Unit No.9, which caused loss of generation and consequent financial loses to the tune of rupees one crore to the Board because of closing down of the Unit for several months. These petitioners were proceeded against departmentally and an enquiry report was submitted vide Annexure-6 by the Enquiry Officer dated 1.9.1997. The Enquiry Officer, however, exonerated the present petitioners as he found that all the four workmen of Group-B have performed their duties satisfactorily, which included these two petitioners also. Thereafter, vide Annexure-7 dated 6.2.1999, the second show cause notice was issued under the signature of the Joint Secretary by the order of the respondent-Board, proposing major punishment of withholding of four annual increments with cumulative effect, debarring from promotion to higher post for next five years as well as censure to be recorded in their ACR for the year 1994-95 and also that the petitioners should not be entitled to anything except subsistence allowance for the period of suspension. 4. The ground for challenging the impugned order on behalf of the petitioners primarily is that the Disciplinary Authority in the second show cause notice did not show any reason for differing with the Enquiry Officer, who had exonerated these petitioners. Further, ground for challenging the impugned order on behalf of the petitioners is that even the order of punishment did not show any application of mind so far as the contention of the petitioners to the reply of the second show cause is concerned. Further, ground for challenging the impugned order on behalf of the petitioners is that even the order of punishment did not show any application of mind so far as the contention of the petitioners to the reply of the second show cause is concerned. Learned counsel for the petitioners has relied upon the judgment delivered in the case of Roop Singh Negi vs. Punjab National Bank and Others reported in (2009)2 SCC 570 to substantiate his contention. 5. Learned counsel for the respondents-Board, on the other hand, submits that the misconducts, which were enquired against these petitioners, were of serious nature which had led to the cause of not only generation but also consequent financial loss to the extent of Rs. One Crore to the Board. It is further submitted that the disciplinary authority in the second show cause has differed with the findings of the Enquiry Officer and held that these petitioners were responsible for not taking charge of boiler in time or reported to their superiors regarding the abnormal boiler condition and water well starvation, therefore, the requirement of the second show cause and differing with the enquiry report by the disciplinary authority has been specified and no infirmity is attached to the impugned orders. 6. I have heard learned counsel for the parties and have gone through the relevant materials on records including enquiry report, second show cause notice as also the impugned orders of punishment. From perusal of the findings of the Enquiry Officer, it is apparent that he has exonerated the present petitioners including two others from the charges under which they were proceeded against and in fact has held that they were found to have performed their duties satisfactorily. The findings of the Enquiry Officer in tact on the contrary pointed out that other two persons namely Santosh Kumar and Jitendra Upadhyay of Group-A had left the shift treating it to be normal in the state of hurry. In any case, the Enquiry Officer exonerated the petitioners. The findings of the Enquiry Officer in tact on the contrary pointed out that other two persons namely Santosh Kumar and Jitendra Upadhyay of Group-A had left the shift treating it to be normal in the state of hurry. In any case, the Enquiry Officer exonerated the petitioners. Perusal of the second show cause, however, shows that the disciplinary authority has only observed that he has differed with the findings of the Enquiry Officer by stating that it has been established that the proceedees being operator of Boiler Drum, (Group-B) in the night shift on 23.2.1995, Unit No.9, did not take charge of boiler in time and also did not report to his superior regarding the abnormal condition of the boiler and water well starvation causing financial loss to the Board as well as loss of generation. The perusal of the aforesaid observation, itself gives a picture that the disciplinary authority has come to a conclusion regarding the establishment of guilt of the petitioners without actually recording any reason for differing from the report of the Enquiry Officer and based upon any materials which were quoted and adduced during the course of departmental proceeding in which they were admittedly exonerated. In these circumstances, it appears that the requirement of law has not been met with. In a circumstance when Enquiry Officer exonerated the delinquent from the charges, the disciplinary authority has to record his reasons for differing from the enquiry report at the time of furnishing of show cause to enable the delinquent to defend himself from the different reasons and opinions arrived at by the disciplinary authority before a punishment can be imposed upon them. In these circumstances, the impugned orders, which have been passed on the basis of such show cause and which also do not appear to reflect the explanation of the petitioners while dealing with their ground of defence, are vitiated in law and the whole decisions making process suffered on that count. In that view of the matter, since the impugned orders and the manner in which those orders have been passed, shows that the decision making process has been affected because of non-furnishing of reasons for differing with the enquiry report and passing the orders imposing major punishment, the impugned orders are required to be interfered in exercise of power under Article 226 of the Constitution of India. Accordingly, impugned orders are quashed. 7. Accordingly, impugned orders are quashed. 7. It is informed that one of the petitioner has retired, therefore, it will be futile exercise to proceed against him, but if the respondents chose to proceed against the serving employee, they are at liberty to do so from the stage of 2nd show cause notice. 8. Accordingly, this writ petition is allowed in the aforesaid terms. .