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2015 DIGILAW 1245 (GAU)

Phukan Chandra Nath v. Indian Oil Corporation

2015-09-29

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. U.K. Nair, the learned counsel appearing for the petitioner. The respondent Indian Oil Corporation Limited (IOCL) and their officers are represented by the learned senior counsel Mr. M.K. Choudhury. 2. This case arise out of a disciplinary proceeding initiated against the petitioner when he was posted as the Assistant Manager (Plant) at the Sarpara Bottling Plant of the IOCL. The delinquent was placed under suspension by the order dated 29.12.2004 (Annexure-1) and in the charge memo dated 13.1.2005 (Annexure-2), the following statement of allegations were leveled against the suspended employee: “Statement of Allegations. i. That at about 1300 hrs. on 25.12.2004. Sh. Parthiv Dhar, AM(P) was engaged in the job of shifting some packed LPG trucks from the non-licensed area of the Plant to the licensed area, from safety point of view. ii. That, you instead of helping him were seating inside the Plant hired car in front of the Administrative building and you were preparing to leave the Plant. iii. That you had asked Sh. Parthiv Dhar whether he was accompanying you in the car to which Sh. Dhar had replied that he was not in a position to leave unless the pending job of shifting of all the packed TTs to the licensed area is over. iv. That you, willfully trying to damage the work in progress, had demanded in a rude and indecent manner that Sh. Dhar should leave with you immediately or else you would leave alone with the Plant car. v. That when Sh. Dhar protested such highhanded act of yours which was hampering the work of the Corporation, you in a most riotous and disorderly manner had abused Sh. Dhar. vi. That you, failing to conduct yourself soberly and temperately inside the office premises, had all on a sudden came out of the Plant car and caught hold of Sh. Dhar’s neck and hit him behind his right ear. The above incident occurred in presence of Sh. Manoj Kalita, Typist Clerk, Sh. Dhan Kumar Das (contract labourer) and Sh. Tapan Das (contract labourer) who have separated you from Sh. Dhar. vii. That immediately after the above incident, you with an intention of causing serious bodily injury had once again attacked Sh. Parthiv Dhar in presence of Sh. HC Brahma, Accounts officer, Sarpara BP. viii. That at about 1200 hrs. Dhan Kumar Das (contract labourer) and Sh. Tapan Das (contract labourer) who have separated you from Sh. Dhar. vii. That immediately after the above incident, you with an intention of causing serious bodily injury had once again attacked Sh. Parthiv Dhar in presence of Sh. HC Brahma, Accounts officer, Sarpara BP. viii. That at about 1200 hrs. on 01.01.2005, the Suspension Order No. NE/IR/Disc-1 dated 29.12.2004 issued by General Manager: NESO, being the competent disciplinary authority was tendered to you for acceptance by Sh. L. Khozol, the then acting Plant Manager in presence of Sh. PK Das, Manager (LPG-Ops): NESO and Miss E Shullai, AM (P). But you, willfully disobeying the reasonable order had refused to accept the Suspension Order dated 29.12.2004. ix. That while refusing to accept the Suspension Order dated 29.12.2004 from the management, you, shouting at the top of your voice in a most unruly and riotous manner had threatened that you would take the lives of Sh. KK Handique, CLM: NESO and Sh. PK Das, manager (LPG-Ops): NESO. x. That at about 1225 hrs. on 01.01.2005, you with an intention of causing grievous bodily hurt, had dragged Sh. PK Das, Manager (LPG-Ops): NESO inside the Plant Manager’s Chamber alone with the plea that you had something confidential to tell him. Thereafter you, locking the PM’s chamber from inside, had punched four blows onto the neck and shoulder of Sh. PK Das with your hands and fists without any provocation. xi. That you had also threatened to kill Sh. PK Das instantly with a knife apart from threatening to kidnap him from his residence unless he convinced CLM: NESO and GM: NESO to withdraw the suspension order dated 29.12.2004 issued to you.” 3. In his response given on 20.1.2005 (Annexure-3), the delinquent denied the charges and stated that on 25.12.2004, his colleague Parthiv Dhar was the aggressor and the witnesses to the incident were also named by the delinquent. He also referred to his own report given on the same day i.e. 25.12.2004 to the Management about the incident which took place on 25.12.2004 at the Bottling Plant. The next allegation of assault on 1.1.2005 on the Plant Manager PK Das was categorically denied by the delinquent by contending that those were afterthoughts and false allegation was orchestrated to protect the aggressor colleague Parthiv Dhar. The next allegation of assault on 1.1.2005 on the Plant Manager PK Das was categorically denied by the delinquent by contending that those were afterthoughts and false allegation was orchestrated to protect the aggressor colleague Parthiv Dhar. The charged employee further stated that the suspension order was never tendered to him and the delinquent was only orally informed of being placed under suspension. 4. Dissatisfied with the explanation offered by the petitioner, a decision was taken to inquire into the charges and Mr. P. Dey, DGM/BSO was appointed as the Enquiry Officer through the order dated 15.2.2005 (Annexure-4) and the enquiry proceeding was conducted at the Sarpara Bottling Plant. Although eight witnesses were named in the charge memo, the Management presented only four witnesses, whereas the delinquent produced one defence witness. 5. In the enquiry Mr. PK Das appeared as PW.1 and stated about the incident which took place on 1.1.2005, when the delinquent reportedly refused to receive the suspension order and also manhandled the senior officer of the organization. The witness demonstrated through role play how he was grabbed and punched by the delinquent but he was candid enough to acknowledge that none had witnessed the incident as it took place inside the office chamber. The PW.2 Parthiv Dhar was the Assistant Manager (P) of the Bottling Plant and he spoke about the scuffling and punching by the delinquent on 25.12.2004. The witness further stated that he reported the incident in writing to the Plant Manager on 27.12.2004. The PW.3 Dhan Kumar Das can be described as a neutral witness as he worked as the Canteen Manager in the Bottling Plant was not involved in either of the two incidents. The attention of the PW.3 was drawn to the report (P-2) and during the enquiry he confirmed that the said report correctly narrates the incident of 25.12.2004, where the delinquent was shown as the aggressor against Parthiv Dhar. This witness was cross-examined by the delinquent and the discussion on this part of the evidence will be made in the later portion of this judgment. The Assistant Manager (P) L. Khozol testified as PW.4 and this witness stated that the suspension order was tendered to the delinquent inside the office chamber of the Plant Manager on 1.1.2005 but he refused to accept the same. 6. The Assistant Manager (P) L. Khozol testified as PW.4 and this witness stated that the suspension order was tendered to the delinquent inside the office chamber of the Plant Manager on 1.1.2005 but he refused to accept the same. 6. The only defence witness produced by the delinquent was Tapan Das, who was a contractual employee at the Bottling Plant. The witness stated that he wrote the complaint (P-3) against the delinquent on being dictated by the Plant Manager Mr. PK Das and he denied to have seen anything and asserted that what is written by the DW.1 was not truthful but it was the version dictated by the Plant Manager Mr. PK Das. 7. After the proceeding was concluded, the Enquiry Officer gave his report on 4.9.2005 (Annexure-14), where he concluded that all the three charges were proved against the delinquent. Then the 2nd show cause notice was issued to the delinquent on 14.10.2005 and in his response made on 25.10.2005 (Annexure-17), the petitioner challenged the bona fide of the conclusion and alleged that the enquiry proceeding was conducted unfairly with a pre-determined objective as the Enquiry Officer was a close relative of the PW.2 Parthiv Dhar. He further stated that available evidence was not evaluated properly and more specifically the delinquent’s earliest report given on 25.12.2004 was wholly ignored. Thus according to the response, a forcible conclusion was reached by the Enquiry Officer. Consequently prayer was made for rejecting the enquiry finding. 8. After considering the Enquiry Report, the disciplinary authority found no basis to disregard the same and accordingly inflicted the penalty of reduction to a lower grade i.e. from Assistant Manager (Plant) in Grade-B to Operation Officer (LPG) in Grade-A against the delinquent, through the impugned order dated 3.11.2005 (Annexure-19). The Appeal filed by the delinquent against the penalty order was rejected by the Appellate Authority on 27.2.2007 (Annexure-21). 9. Assailing the legality of the adverse conclusion drawn against the petitioner, Mr. U.K. Nair, learned counsel submits that pre-determined and biased conclusions were reached by the Enquiry Officer who ignored relevant materials and who failed to address the contradiction in the evidence of the witnesses. The unfair manner of conducting the enquiry proceeding is questioned by the learned counsel by projecting that a level playing field was denied to the delinquent. 10. On the other hand, Mr. The unfair manner of conducting the enquiry proceeding is questioned by the learned counsel by projecting that a level playing field was denied to the delinquent. 10. On the other hand, Mr. M.K. Choudhury, the learned senior counsel on behalf of the Management submits that the Conduct, Discipline and Appeal Rules of IOC, 1980 was followed by the authorities for conducting the disciplinary proceeding and he contends that the enquiry conclusions are based on material evidence. According to the respondents, reasonable opportunity was provided to the delinquent to defend the charges. The senior counsel further submits that since the delinquent had assaulted the Plant Manager and his own colleague, he should have been dismissed from service and in fact harsher punishment was warranted for the misconduct. 11. The jurisdiction to be exercised by the High Court in a disciplinary proceeding under Article 226 of the Constitution is not that of an Appellate Authority but to verify as to whether the proceeding was conducted in a fair and unbiased manner. Therefore unless a perverse finding is recorded, interference in the supervisory jurisdiction by the High Court is not warranted. But at the same time, the bona fide of the conclusion drawn by the Enquiry Officer can be examined by referring to the materials on record and in the event of ‘real danger of bias’ or ‘suspicion of bias’ in the Enquiry Proceeding, the intervention of the High Court in the supervisory jurisdiction will surely be justified as is laid down in M.P. Special Police Establishment vs. State of M.P. reported in (2004) 8 SCC 788 . For instance, if conclusions are reached without any evidence or when material evidence is ignored, interference in a disciplinary proceeding by the High Court is legally permitted. 12. Proceeding on the above basis, let me now examine whether the findings given by the Enquiry Officer are based on objective consideration or whether the same were rendered by disregarding relevant material or by overlooking the contradiction in the evidence. There was no eye witness of the assault made on the Plant Manager Mr. PK Das on 1.1.2005 and surprisingly the Enquiry Officer based his finding on the basis of theatrical demonstration of the assault given by PW.1 P.K. Das, before the Enquiry Officer. There was no eye witness of the assault made on the Plant Manager Mr. PK Das on 1.1.2005 and surprisingly the Enquiry Officer based his finding on the basis of theatrical demonstration of the assault given by PW.1 P.K. Das, before the Enquiry Officer. As the delinquent silently observed the demonstration of the incident of assault inside the Plant Manager’s office by PW.1, adverse inference was drawn against the delinquent. 13. But what is significant here is the approach of the Enquiry Officer in dealing with the materials produced by the parties. For example the presence of the victim (P.K. Das) in the Bottling Plant on 1.1.2005 was questioned by the delinquent by referring to the Visitor’s Register maintained at the Plant Gate to show that P.K. Das never entered the Bottling Plant on the day of assault on 1.1.2005. But the Enquiry Officer disregarded the Visitor’s Register by describing the same to be unauthenticated without corroboration by the defence witness. On the other hand, a similar unauthenticated local travel payment voucher to cover the travel expense bill of P.K. Das to the Bottling Plant was relied upon by the Enquiry Officer to conclude that the Plant Manager had visited the Bottling Plant on 27.12.2004, when he secured the statement(s) of some of the witnesses for the incident which took place on 25.12.2004. If the Visitor’s Register is to be disregarded because it is unauthenticated, the same yardstick should have been applied while referring to the unauthenticated computer generated payment vouchers produced to show the visit of P.K. Das to the Bottling Plant on another date. This approach reflects that different criterion of appreciation of evidence was adopted by the Enquiry Officer. 14. It further appears that the primary basis to render a finding on the assault inside the closed office of the Plant Manager was the theatrical demonstration of the incident by P.K. Das before the Enquiry Officer and the then prevalent demeanor of the delinquent during demonstration was taken into account. But in a legal process, such theatrical enactment of the assault can’t be the basis for the conclusion drawn by the Enquiry Officer. But in a legal process, such theatrical enactment of the assault can’t be the basis for the conclusion drawn by the Enquiry Officer. In this context, the evidence of PW.4 L. Khozol shows that the suspension order was tendered to the delinquent on 1.1.2005 inside the Plant Manager’s room and if that be the precise location of the parties, there should have been some discussions as to how the delinquent could have dragged P.K. Das to inside the Plant Manager’s room as was suggested by PW.1. The question therefore is if the witness and the assaulting parties were already present in the office room, where is the scope for dragging in the victim (P.K. Das), if he was already present in the office room of the Plant Manager. 15. The DW.1 Tapan Das testified in his evidence that he wrote out the Exhibit.P-3 statement on being dictated by the Plant Manager Mr. PK Das on 27.12.2004 and similarly the PW.3 Dhan Kumar Das also did the same thing as he was told by Mr. PK Das. But this vital evidence of DW.1 which makes the other evidence untrustworthy, was not at all weighed appropriately by the Enquiry Officer and adverse finding was given by disregarding this very relevant evidence of DW.1. It may further be noted that PW.3 Dhan Kumar Das had given the written statement (P-2) claiming himself to be an eye witness to the assault made by the delinquent. But when the PW.3 was cornered in the cross-examination through the Question No.129 on 22.6.2005, the proceeding was deliberately deferred by the Enquiry Officer by describing that as an irrelevant question to prevent the correct response from the witness. But surprisingly the very same question was allowed to be put to PW.3 on the adjourned date i.e. on 27.7.2005, when the witness was better prepared to face the cross-examination of the delinquent on the P-2 statement given by him. This definitely suggests a biased approach of the Enquiry Officer. 16. But surprisingly the very same question was allowed to be put to PW.3 on the adjourned date i.e. on 27.7.2005, when the witness was better prepared to face the cross-examination of the delinquent on the P-2 statement given by him. This definitely suggests a biased approach of the Enquiry Officer. 16. The suspicion of bias in the disciplinary proceeding can also be inferred from the fact that the earliest written report on the incident given by the delinquent on 25.12.2004 itself to the Chief Law Manager, NESO through the Plant Manager, was not at all taken into account during the disciplinary proceeding, whereas the contra-report subsequently given on 27.12.2005 by Parthiv Dhar, was made the basis for drawing up the disciplinary proceeding. Thus the possibility of real danger of bias of the Authorities in drawing up and conducting the disciplinary proceeding is very much discernable and naturally this will vitiate the impugned proceeding. 17. The proceeding reflects that the evidence of the DW Tapan Das could not be shaken through cross-examination and if his evidence is weighed against the evidence given by PW.3 Dhan Kumar Das, a clear contradiction is seen in the version of the two witnesses. Moreover the evidence of the DW raises reasonable doubt on the veracity of the evidence given by the other witnesses for the Management. Yet the Enquiry Officer failed to address the contradiction in the evidence while drawing adverse conclusions against the delinquent. Hence in my perception, an unwarranted conclusion was rendered by the Enquiry Officer in a biased proceeding. 18. Soon after the enquiry report dated 4.9.2005 was given, feeling of remorse (because of the guilty finding), had stricken the PW.3 and therefore the management’s star witness Dhan Kumar Das addressed a remorseful letter on 8.10.2005 to the Enquiry Officer. In his letter, the PW.3 stated that he gave false statement as witness as dictated by the Plant Manager Mr. PK Das. He further acknowledged that he never witnessed any quarrel between the delinquent and Parthiv Dhar on 25.12.2004 and gave an incorrect statement as was dictated by the Plant Manager. This letter of the key witness could not naturally have been considered by the Enquiry Officer as it was written after the enquiry report. But this document which demolished the entire case of the management was deliberately ignored by the disciplinary authority. This letter of the key witness could not naturally have been considered by the Enquiry Officer as it was written after the enquiry report. But this document which demolished the entire case of the management was deliberately ignored by the disciplinary authority. The conscience stricken letter of PW.3 was available on record, but neither the disciplinary authority nor the Appellate authority, considered the implication of this letter. The PW.3 as the only neutral witness had retracted his evidence and had also stated that he deposed falsely on being dictated by the Plant Manager. This letter thus corroborates the DW but surprisingly not even passing reference was made to this vital document by the authorities. 19. In disciplinary proceedings, object of the enquiry is to determine the actual facts and the conclusions are to be reached on preponderance of probability. But to ensure that an objective conclusion is reached, the Enquiry Officer must take into account all the evidence on record and if there is any contradiction, the same must be analyzed to draw a just conclusion. But unfortunately in the present case, the authorities failed to consider the earliest written report of the incident given by the delinquent on 25.12.2004, where he described Parthiv Dhar to be the aggressor. Moreover the evidence given by the DW.1 was not properly weighed by the Enquiry Officer. That apart, dual criterion were applied for weighing the evidentiary value of the material from two sides. Moreover several key documents which corroborate the defence version were wholly ignored. Thus according to my reading, a perverse finding was given against the delinquent through a vitiated proceeding. Therefore I find it to be a good case for interference, as suspicion of bias is discernable in the approach of the disciplinary authorities. 20. In view of above, the impugned penalty order dated 3.11.2005 (Annexure-19) of the disciplinary authority as well as the Appellate Authority’s order dated 27.2.2007 (Annexure-21) are found to be legally unsustainable and the same are accordingly quashed. Hence the respondents are directed to give all consequential service benefits to the petitioner within eight weeks of receipt of this order. It is ordered accordingly. 21. With the above order, this case stands allowed to the extent indicated. No cost.