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2013 DIGILAW 913 (JHR)

N. K. Srivastava v. Chairman, Coal India Ltd.

2013-07-26

SHREE CHANDRASHEKHAR

body2013
Judgment 1. The petitioner has approached this Court challenging the order dated 05.09.2003 passed by the Chairman-cum Managing Director, who is the disciplinary authority. 2. The brief facts of the case are that, the petitioner was appointed as an Executive Engineer (Civil) in the year 1977. A Charge Memo was issued to the petitioner on 18.01.2002. The Articles of Charges are extracted below:“ ARTICLE Alleged that Shri N.K. Shrivastava in his capacity as Chief Engineer (Civil)/Staff Officer (Civil) of Wani North Area, WCL at the relevant time was well aware of the inconsistencies involved in cancellation of Letter of Intent issued in favour o M/s. J.V.S. Construction, (L1 party) vide No. WCL/WNA/AHQ/Civil/99/333 dated 18.8.99 against N.I.T. No.03/992000 dated 24/31.5.99 on percentage rate basis issued by Shri G.S.R. Murthy, the then SO (Civil) of the Area and was also aware of the manner in which the said party was put to undue pressure for succumbing to the vested interest of Shri J.M. Gupta, the then General Manager of the Area through an ill-designed scheme orchestrated by Shri Gupta as described in the Imputation of charge at Annexure II. Despite having the knowledge of the case, as aforesaid, Shri N.K. Shrivastava connived with and acted under undue influence of Shri Gupta in as much as that he got fresh estimates initiated though Shri R.N. Deshmukh, the then SE (Civil), Ukni OC Project as detailed at Para3 of Annexure II for the works covered in the said original tender in split manner contravening the extant provisions, recommended the estimates for approval of the then General Manager, Wani North Area and thereafter issued a fresh tender notice vide No.18/992000 under his signature in which he split the work into three, contrary to the extant provisions. ARTICLE – II Alleged that in furtherance to above, Shri N.K. Shrivastava finalised the said tender through the Tender Committee Recommendations separately prepared for each work after spitting of the work of original tender and issued L.O.I./Work Order to three different parties for a total value of Rs.23,87,080.58 (excluding the work of earthen mound) against the percentage rate of Rs. 17,13,754.21 (including the work of earthen mound) concluded against the original tender notice 03/992000 due to which the company was put to an unwarranted expense of Rs. 17,13,754.21 (including the work of earthen mound) concluded against the original tender notice 03/992000 due to which the company was put to an unwarranted expense of Rs. 6,73,326.37 as an additional financial burden as per the calculations given at Para4 of Annexure II, even with lesser scope of work.” 3. On conclusion of the enquiry, an enquiry report was submitted and second show cause notice was issued to the petitioner on 17/21.07.2003 to make a representation on the penalty proposed. The petitioner moved this Court in W.P. (S) No. 4138 of 2003 challenging the memorandum dated 17/21.07.2003 however, the writ petition was dismissed by order dated 23.08.2003. The petitioner preferred a Letters Patent Appeal being L.P.A. No. 613 of 2003 which was also dismissed by order dated 13th August, 2004. In the meantime, the petitioner sent a fax message dated 25th August, 2003 seeking one week's time for filing his reply to the show cause notice and by representation dated 28.08.2003, the petitioner requested the authorities to wait for the decision in L.P.A. No. 613 of 2003 however, by order dated 5th September, 2003, the order of penalty of “reduction of pay of Shri N.K. Srivastava to Rs.19,500/i.e. the lowest stage in the time scale of pay for the remaining part of his service with effect from 01.09.2003”, was passed. In these facts, the petitioner has approached this Court. 4. A counter affidavit has been filed on behalf of respondent no.2 stating as under; 6. “That in reply to the points formulated in paragraph-2(i) of the writ petition, it is stated and submitted that the action of the Respondent is neither arbitrary nor malafide. It is also not against the principles of natural justice. It is submitted that the petitioner was advised to submit his representation against the proposed penalty by a Memorandum dated 17/21.7.2003 within 15 days time from the receipt of such Memorandum. It is submitted that the said Memorandum was received by the petitioner on 11/8/2003 and on expiry of 15 days therefrom, the Disciplinary Authority was at liberty to issue the final order in absence of any representation from the petitioner. However, accepting the request made by the petitioner vide his FAX dated 25/8/2003, the Disciplinary Authority kept the issuance of final order pending for further one week's time, as the petitioner had promised to submit the representation within a week. However, accepting the request made by the petitioner vide his FAX dated 25/8/2003, the Disciplinary Authority kept the issuance of final order pending for further one week's time, as the petitioner had promised to submit the representation within a week. However, even on expiry of this period, no representation was received by the management of Western Coalfields Limited and consequently the order dated 5/9/2003 was passed. 14. That the statements made in paragraph16 are matters of record. It is stated that inspite of the knowledge of the petitioner that 15 days time was allowed to submit his representation to the proposed punishment which was duly received by him on 11/8/2003 and within one week's time as prayed for by him also expired, no representation was made by the petitioner.” 5. Heard counsel for both the parties and perused the documents on record. 6. Mr. P.P.N. Roy, learned Senior counsel appearing for the petitioner has raised a contention that the penalty order dated 5th September, 2003 does not disclose the materials, if any, which were brought on record in support of the Charges against the petitioner, nor the findings of the enquiry officer has been recorded in the impugned order dated 05.09.2003 and merely by observing that, “the undersigned has finally come to the conclusion that Shri N.K. Srivastava is guilty of charges as held proved and partly proved by Inquiry Authority in his report”, the disciplinary authority has passed the order impugned in this proceeding, which cannot be sustained in law. He has further submitted that the reasonable opportunity to submit reply to show cause notice was not provided to the petitioner though, the petitioner sent a fax message and by representation dated 28.08.2003, he had requested the authority to wait for the decision in the Letters Patent Appeal preferred by him however, the disciplinary authority without waiting for the outcome of the Letters Patent Appeal and providing an opportunity to the petitioner to submit his show cause reply, passed the impugned order dated 05.09.2003.7.Per contra, Miss Arnima Sinha, learned counsel appearing for the respondents contends that, the petitioner sent the fax message on 25th August, 2003 seeking one week's time to submit his reply to the show cause notice, however, he failed to do so within the aforesaid period and the penalty order has been passed only on 5th September, 2003. She has raised a preliminary objection that this writ petition may not be entertained in view of the fact that there is a statutory remedy of appeal available to the petitioner. She has further contended that since the disciplinary authority has agreed with the findings recorded by the enquiry officer, there was no necessity for the disciplinary authority to record a detailed reason. On these grounds, the prayer of the petitioner has been resisted by the respondents. 8. A perusal of the impugned order dated 5th September, 2003 would disclose that the disciplinary authority has merely recited the date and events and he has not even taken note of the Memorandum of Charge and the findings of the enquiry officer whereby some of the Charges against the petitioner have been found proved. The disciplinary authority has recorded as under, “AND WHEREAS on careful consideration of report of Inquiring Authority and other records of the case, the undersigned has agreed with the Inquiring Authority in respect of charges established as proved/ partly proved. NOW THEREFORE, after considering the records of Inquiry and facts and circumstances of the case, the undersigned has finally come to the conclusion that Shri N.K. Shrivastava is guilty of charges as held proved and partly proved by Inquiry Authority in his report, already made available to Shri Shrivastava. It is, therefore, ordered that the pay of Shri Shrivastava be reduced to Rs. 19,500/i.e. the LOWEST STAGE in the time scale of pay for the remaining part of his service with effect from 1.9.2003 (first of September two thousand three).” 9. It is a matter of record that some of the Charges against the petitioner have been found not proved. The petitioner could not submit his reply to the show cause notice dated 17/21.07.2003 and therefore, the defence of the petitioner was not before the disciplinary authority. Rule 30.1 of the Conduct Discipline and Appeal Rules, 1978 of Coal India Executives provides as under,“ 30.0Action on the Inquiry Report 30.1 The Disciplinary Authority, if it is different from the Inquiring Authority shall, before making a final order in the case, forward a copy of the inquiry report to the employee concerned with the following endorsement“ The report of the Inquiry Officer is enclosed. The Disciplinary Authority will take a suitable decision after considering the report. The Disciplinary Authority will take a suitable decision after considering the report. If you wish to make any representation or submission, you may do so in writing to the Disciplinary Authority within 15 days of the receipt of this letter.” 30.2 On receipt of the reply of the employee, or if no reply is received within the time allowed, the Disciplinary Authority will examine the report and the records of the inquiry including the reply received from the employee, if any, and will record its findings in respect of each article of charge saying whether, in its opinion, it stands proved or not. 30.3 If the Disciplinary Authority disagrees with the findings of the Inquiring Authority on any article of charge, it will, while recording its own findings, also record the reasons for its disagreement. 30.4 If the Disciplinary Authority considers that a clear finding is not possible or that there is any defect in the inquiry, the Disciplinary Authority may, for reasons to be recorded in writing, remit the case to the Inquiring Authority for further inquiry and report. The Inquiring Authority will, there upon, proceed to hold the further inquiry according to the provisions of rule 29.3 as far as may be. 30.5 If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in rule 27 should be imposed on the employee it shall notwithstanding anything contained in rule 31 make an order imposing such penalty, subject to the provision of the schedule. 30.6 If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned.” 10. It is apparent on the face of record that the disciplinary authority has failed to comply with the mandate contained in above statutory Rules while dealing with the report submitted by the enquiry officer. No reason has been assigned by the disciplinary authority in the impugned order dated 5th September, 2003 for imposing the major penalty upon the petitioner. The disciplinary authority has not assigned any reason for agreeing with the findings of the enquiry officer as provided under Rule 30.2. 11.In “Woolcombers of India Ltd. Vs. No reason has been assigned by the disciplinary authority in the impugned order dated 5th September, 2003 for imposing the major penalty upon the petitioner. The disciplinary authority has not assigned any reason for agreeing with the findings of the enquiry officer as provided under Rule 30.2. 11.In “Woolcombers of India Ltd. Vs. Workers Union”, reported in (1974) 3 SCC 318 , the Hon'ble Supreme Court has held as under: 4. “The Tribunal has not stated the reasons in support of its conclusions. This criticism of Shri Chaudhary, counsel for the Woolcombers, appears to us to be right. As regards basic wages, the Tribunal says only this: “I am inclined to lay down the basic wages of the workmen … those who are highly skilled workmen ... will get Rs 32 per week as their basic wages. Those who are skilled workmen... ...will get Rs 28 per week as their basic wages. Those who are semiskilled workmen ... will get Rs 25 per week as their basic wages .... Those who are unskilled workmen will get Rs 22.50 p. per week as their basic wages.” As regards the basic wages of other employees, the Tribunal says: “Now in the light of the enhanced pay as revised by me in respect of skilled, unskilled, semiskilled and highly skilled workers, I want to revise” the existing wages of clerks, drivers, durwan, sweeper, laboratory assistants and overlookers. 5. It may be observed that the first passage quoted by us states only the conclusions. It does not give the supporting reasons. The second passage quoted by us states merely one of the reasons. The other relevant reasons are not disclosed. The giving of reasons in support of their conclusions by judicial and quasijudicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decisions of judicial and quasijudicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court. The Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong. In many cases this investment of time and industry will be saved if reasons are given in support of the conclusions. So it is necessary to emphasise that judicial and quasijudicial authorities should always give the reasons in support of their conclusions.” 12. Mr. P.P.N. Roy, learned Senior counsel appearing for the petitioner has submitted that since a counter affidavit has been filed in the present proceeding and an objection has been raised as the petitioner has not moved before the Appellate Authority, the petitioner may be granted an opportunity for preferring an appeal which is provided under the Rules. 13. In view of the aforesaid, since the order of penalty dated 5th September, 2003 by the disciplinary authority, has not been passed in conformity of the Rules, I deem it proper to permit the petitioner to prefer an appeal raising all the grounds as available in law, before the appellate authority i.e. the Board of Directors of the Coal India Limited within a period of eight weeks from the date of communication of this order ad the appellate authority is requested to decide the appeal of the petitioner within a period of next eight weeks. 14. This writ petition is disposed of in the aforesaid terms. Petition disposed of.