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2015 DIGILAW 211 (UTT)

SANJAY KUMAR v. BHARAT HEAVY ELECTRICALS LTD.

2015-04-16

SUDHANSHU DHULIA

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JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. The petitioner before this Court was a Supervisor Trainee (S.O. Grade) in a public undertaking, namely, Bharat Heavy Electricals Ltd., situated at Haridwar (from hereinafter referred to as the “BHEL”). He is presently aggrieved by order dated 30.03.2015, passed by the Executive Director, BHEL, Haridwar, who in exercise of his powers under Rule 33 of BHEL Conduct, Discipline and Appeal Rules, 1975, has removed the petitioner from service. 2. There are various grounds for challenge in the writ petition to which we will refer in a moment. At the admission stage itself the writ petition is being strongly opposed by the learned senior counsel Sri V.K. Kohali who represents BHEL, hence the matter is being heard at the admission stage itself. 3. The brief facts of the case as they emerge from the pleadings in the writ petition are that the petitioner was initially appointed as a Temporary Skilled Worker in BHEL on 05.04.2005. Thereafter, he was promoted to the post of Artisan Grade IV on 05.04.2006 and subsequently to the post of Artisan Grade III on 25.06.2009. While he was working as Artisan Grade III in BHEL, Haridwar he appeared as a candidate in an open all India competition for the post of Supervisor Trainee (S.O. Grade) and was selected and later appointed as such on 24th March, 2010. Since then he was working as Supervisor Trainee (S.O. Grade) in BHEL, at Haridwar. 4. The admitted facts of this case are that on 14.11.2010, the petitioner was caught red handed at “Jamal Mohammad College” at Trichy in Kerala, while writing an examination for the post of Artisan (Welder Trade) impersonating as one Mr. Mayank Kumar. He was apprehended and caught by the security. During the interrogation at Trichy, he admitted the act of his impersonation and also gave statement to that effect. Later he was handed over to the local police for further interrogation and a First Information Report was also lodged being FIR No.943 of 2010, dated 14.11.2010 which was lodged, inter alia, under Section 416 of IPC by Senior Manager (HR), BHEL, Trichy. 5. Thereafter, departmental proceedings were also initiated in which he was initially suspended w.e.f. 14.11.2010 and considering the misconduct, a memorandum was also issued to the petitioner on 28.01.2011 under Rule 5(1), 5(5), 5(17), 5(20) and 5(21) of the BHEL Conduct, Discipline and Appeal Rules, 1975. 5. Thereafter, departmental proceedings were also initiated in which he was initially suspended w.e.f. 14.11.2010 and considering the misconduct, a memorandum was also issued to the petitioner on 28.01.2011 under Rule 5(1), 5(5), 5(17), 5(20) and 5(21) of the BHEL Conduct, Discipline and Appeal Rules, 1975. However, after completion of enquiry, the disciplinary authority awarded the penalty of reduction to the post, for a period of three years w.e.f. 16.11.2013. 6. The criminal case is, however, still pending at Trichy, where in case he is found guilty, he will have to face the maximum imprisonment upto three years or a fine or both. 7. By the first punishment order dated 16.11.2013, petitioner was reverted to the post of Artisan Grade III and he was working on that post when a curious turn of events compelled the Reviewing Authority to pass the present order dated 30.03.2015, which is now under challenge in the present case. 8. These facts are as follows: At BHEL one Mr. Jagbir Singh who was working as Temporary Artisan who passed away in the year 2008. His son, namely, Lalit Kumar was appointed on compassionate ground. A complaint was filed against Sri Lalit Kumar to the effect that on the death of Sri Jagbir Singh, his younger son Riteshwar Kumar was employed on compassionate ground and therefore the compassionate appointment of Sri Lalit Kumar is totally illegal. Consequently, the services of Sri Lalit Kumar were dispensed with. Since Lalit Kumar belongs to a Scheduled Caste community, mother of Lalit Kumar approached the Commission for Scheduled Caste complaining that another employee of BHEL who was also caught impersonating at Trichi in Kerala has been given a minor punishment whereas a Scheduled Caste candidate has been penalized. The natural fall out of this was that the matter reached higher authorities and ultimately on the basis of this complaint the case of present petitioner was reviewed and it was found that not only the punishment order which was earlier given to the petitioner on 16.11.2013, could not be given as the petitioner was directly appointed as Supervisor Trainee (S.O. Grade), therefore, he could not have been reduced in rank below the rank of Supervisor Trainee (S.O. Grade), but even otherwise, the act of impersonation by a Supervisor Trainee (S.O. Grade) is not only a crime under Section 416 of Indian Penal Code but an act which requires stern punishment. Moreover such an act by a supervisory level employee, who is supposed to be guiding and leading his subordinates, cannot be accepted in any organization. Such acts lower the image of the organization they represent. Therefore the penalty of reduction to the lower time scale of pay, grade, post, service for a period of three years imposed on the petitioner by the Disciplinary Authority was held to be disproportionately low compared to the gravity of the misconduct. 9. Consequently, thereafter, the Assistant General Manager (HR) prepared a notesheet which was presented before the Executive Director who then passed the following order dated 30.03.2015:- “Hence, in the exercise of the powers of review conferred under Rule 33 of BHEL Conduct, Discipline and Appeal Rules, 1975, I am of the clear opinion that the penalty awarded to you was not only improper but also disproportionately low. Considering the nature of misconduct, removal from service is the most appropriate penalty. Accordingly, you are hereby removed from the services of the company with immediate effect. 10. This order as well as the satisfaction recorded by the reviewing authority has been placed before this Court by Senior Advocate Sri V.K. Kohali. Notesheet dated 3rd February, 2015 which is marked as Annexure X and placed on the record. Therefore, there is a “satisfaction” which has been recorded by the reviewing authority before passing the impugned order. Not only this, he has also examined the provisions of Rules referred above and was aware of the fact that the reviewing authority can only exercise its power within six months of the order but in exceptional circumstances these powers can be relaxed by the Reviewing Authority under Rule 35. Rule 33 and Rule 35 which are important for the present matter reads as under:- “33. Review Notwithstanding anything contained in these rules, the Reviewing Authority as specified in the schedule may call for the record of the case within six months of the date of the final order and after reviewing the case pass such orders thereon as it may deem fit. Review Notwithstanding anything contained in these rules, the Reviewing Authority as specified in the schedule may call for the record of the case within six months of the date of the final order and after reviewing the case pass such orders thereon as it may deem fit. Provided that if the enhanced penalty, which the Reviewing Authority proposes to impose is a major penalty specified in clause (f), (g), (h), (i) and (j) of Rule 23 and an enquiry as provided under Rule 25 has not already been held in the case, the Reviewing Authority shall direct such an enquiry to be held in accordance with the provisions of Rule 25 and thereafter consider the record of the enquiry and pass such orders as it may deem proper. If the Reviewing Authority decides to enhance the punishment but an enquiry has already been held in accordance with the provisions of Rule 25, the Reviewing Authority shall give show cause notice to the employee as to why the enhanced penalty should not be imposed upon him. The Reviewing Authority shall pass final order after taking into account the representation, if any, submitted by the employee. 35. Power to Relax Time Limit and to Condone Delay Save as otherwise expressly provided in these rules, the authority competent under these rules to make any order may, for good and sufficient reasons or if sufficient cause is shown, extend the time specified in these rules for anything required to be done under these rules or condone any delay.” 11. The learned counsel for the petitioner would, however, argue that the Reviewing Authority though has powers to review the punishment awarded by the disciplinary authority, but such powers can be exercised within six months. Admittedly these powers have been exercised beyond six months. In the impugned order satisfaction has not been shown as to why such order is being passed, therefore, the order passed by the Reviewing Authority is bad in the eyes of law. All the same, the notesheet and the letter dated 3rd February, 2015, which is on record as Annexure No. X clearly negates this contention. It shows that the concerned authorities were well aware of the limitations imposed against them under the law. All the same, the notesheet and the letter dated 3rd February, 2015, which is on record as Annexure No. X clearly negates this contention. It shows that the concerned authorities were well aware of the limitations imposed against them under the law. They were well aware of the fact that the Reviewing Authority is exercising its power beyond six months and also conscious of the fact that in a given situation such powers can be exercised. In such a contingency all the law requires is that the concerned authority must record its satisfaction for exercising its power beyond six months. This satisfaction has been well recorded in the order which is Annexure 6 to the writ petition. 12. Two reasons have been assigned by the authority in passing the impugned order. First is that the earlier order passed by the AGM & Disciplinary Authority on 16.11.2013 is a wrong order, inasmuch as, the petitioner could not have been reverted to the post of Artisan Grade III, as his initial appointment i.e. direct appointment on the basis of all India competitive examination was to the post of Supervisor Trainee (S.O. Grade), which is a higher post. The second, which is a more valid reason is that for exercising the review power beyond the six months is that the punishment is highly disproportionate to the gross misconduct committed by the petitioner i.e. impersonating as Mr. Mayank Kumar in an Artisan recruitment (Welder Grade) for which he was arrested on 14.11.2010 and is presently facing a criminal trial at Trichy. 13. This Court finds no fault in the powers exercised by the Reviewing Authority under Rule 33 and 35 of the BHEL Conduct, Discipline and Appeal Rules. These are exceptional circumstances, which requires an exceptional order by the concerned authorities. It is for this reason that after hearing the learned counsel for the petitioner as well as learned Senior Advocate for the respondents at length yesterday as well as today, this Court is of the opinion that the writ petition needs to be dismissed at the very threshold. 14. Accordingly, no fault can be found in the order of the Reviewing Authority dated 30.03.2015. The writ petition has absolutely no merit. It is hereby dismissed. 15. No order as to costs.