Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 505 (ORI)

Saroj Kumar Mishra v. Chairman, Coal India Ltd.

2017-05-02

B.R.SARANGI

body2017
JUDGMENT : B.R. Sarangi, J. The petitioner has filed this application seeking to quash the order dated 29.07.2003 (Annexure-8), imposing penalty of reduction of pay by one stage for a period of one year without cumulative effect passed by the disciplinary authority opposite party no.2, and confirmation thereof made by the appellate authority-opposite party no.1 in Annexure-10 dated 26.02.2004 and further seeks for grant of consequential benefits as due and admissible to him in accordance with law. 2. Mr. S.N. Biswal, learned counsel for the petitioner states that pursuant to a disciplinary proceeding initiated against the petitioner, the inquiry having been conducted in a perfunctory manner, there is non-compliance of the provisions contained under Rule 30.1 and 30.2 of the Coal India Executives’ Conduct Discipline and Appeal Rules, 1978. Further, while imposing penalty by the disciplinary authority vide order dated 19.07.2003 in Annexure-8, no reason has been assigned save and except stating that perused the inquiry report and accordingly imposed penalty of “reduction of pay by one stage for a period of one year without cumulative effect”. Against the said order, the petitioner preferred appeal and the appellate authority vide order dated 26.02.2004 without application of mind confirmed the order passed by the disciplinary authority, hence this application. 3. Mr. T.K. Patnaik, learned counsel for opposite parties states that the copy of the inquiry report has been communicated to the petitioner, as has been stated in Annexure-6 dated 13.06.2003, in which it has been clearly mentioned that Deputy General Manager (Vig) as directed, forwarded the copy of the enquiry report to the petitioner for the comments and directed to file show cause within 10 days from the receipt of the letter. So far as punishment imposed against the petitioner is concerned, it is stated that though reasons have not been assigned, but fact remains the authority has taken into consideration the inquiry report and imposed penalty of “reduction of pay by one stage for a period of one year without cumulative effect”, which has been confirmed by the appellate authority, is wholly and fully justified in view of the allegation made against the petitioner 4. This Court heard Mr. S.N. Biswal, learned counsel for the petitioner and Mr. T.K. Patnaik, learned counsel for opposite parties and perused the record. This Court heard Mr. S.N. Biswal, learned counsel for the petitioner and Mr. T.K. Patnaik, learned counsel for opposite parties and perused the record. Pleadings between the parties having been exchanged, the matter has been disposed of at the stage of admission with the consent of learned counsel for the parties. 5. In order to regulate the conduct, discipline and appeal of its Executives, the Coal India Limited framed Rules called, Coal India Executives’ Conduct, Discipline and Appeal Rules, 1978 (hereinafter referred to as “1978 Rules”). The said 1978 Rules were made applicable to Coal India Ltd. and its subsidiaries and became effective after approval by the Board of Directors of Coal India Ltd. at its meeting held on 24th February, 1978. In a review meeting taken by the Central Vigilance Commissioner with the Secretary, Minister of Coal and the CVOs of Coal India Ltd. and its Subsidiary Companies on 29th August 1996, it was decided that the 1978 Rules of Coal India Ltd. should be reviewed and revised to remove certain deficiencies experienced while taking action in accordance with those Rules and also to take care of certain new provisions. After review, 1978 Rules were placed before the Board of Directors of Coal India Ltd. in its 172nd meeting held on 18th February, 1998, which directed that a Committee should consider the amendments and submit its report. The Committee after taking into consideration the DEP guidelines, the Rules of the other Public Sector Undertakings and various Government Departments, recommended certain amendments and additions in 1978 Rules. Accordingly, the same was placed before the Board of Directors in their meeting held on 24th May, 1999. The Board, while approving the proposed amendments in principles, gave directions on some of the issues and authorized Chairman, Coal India Ltd. and Director (P & IR), Coal India Ltd. to carry out necessary amendments in 1978 Rules, as would deem fit and appropriate. Thereafter revised 1978 Rules after carry out amendments were finalized. Chapter-II of Revised 1978 Rules deals with conduct. Rule-4 deals with duties and obligations of executives. Rule 5 deals with misconduct. Thereafter revised 1978 Rules after carry out amendments were finalized. Chapter-II of Revised 1978 Rules deals with conduct. Rule-4 deals with duties and obligations of executives. Rule 5 deals with misconduct. The allegation against the petitioner is that he has contravened Rule 4.1 (ii) and (iii), which reads thus: “4.1 Every Employee of the company shall at all times “xx xx xx (ii) maintain devotion to duty (iii) conduct himself at all times in a manner which will enhance the reputation of the Company.” Consequentially, he has committed misconduct in terms of Rule 5.0(5), 5.0(9) and 5.0(26) which are as follows: “5.0 MISCONDUCT Without prejudice to the generality of the terms ‘misconduct’, the following acts omission and/or commission shall be treated as misconduct- xxxxxx 5. Acting in a manner prejudicial to the interests or image of the Company. xxxxxx 9. Neglect of work or negligence in the performance of duty including malingering or sowing down of work. xxxxxx 26. Any breach of any of the provisions of these rules or any other statutes or rules.” Consequentially, the disciplinary proceeding was initiated against him as per the provisions delineated in Chapter-IV, which deals with ‘Discipline’. Rule 27 deals with nature of penalties and under Rule 27.1(i)(b), it has been prescribed as follows: “27.1(i)(b) Withholding increment, with or without cumulative effect.” Rule 30.0 deals with action on the inquiry report. Rule 30.1 and 30.2 reads as follows: “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. If you wish to make any representation or submission, you may do so in writing to the Disciplinary Authorities within 15 days of the receipt of this letter”. 30.2 On receipt of the reply of the employee, or if no reply is receive 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. Rule 31.0 deals with procedure for imposing minor penalties. 6. Rule 31.0 deals with procedure for imposing minor penalties. 6. Considering the contention raised by learned counsel for the parties and after going through the records, it is evident that that following 1978 Rules a departmental proceeding was initiated against the petitioner and a memorandum of charge dated 30.06.2002 was served on him vide Annexure-2 on the allegation that the petitioner was failed to maintain devotion to duty and acted in a manner prejudicial to the interest of the company and thereby contravened Rule 4.1(ii), 4.1(iii) and committed misconduct in terms of rule 5(5), 5(9) and 5(26) of the 1978 Rules of CIL, amended up to April, 2000. On the basis of the memorandum of charges, the petitioner was called upon to file show cause reply and on being not satisfied with the reply given, inquiry was conducted. The copy of the said inquiry report was forwarded by the Dy. General Manager (Vig) in Annexure-6 dated 13.06.2003. The same was not in compliance of the provisions contained under Rule 30.1 of 1978 Rules. On receipt of such inquiry report, though the petitioner submitted his explanation, the same has not been considered in proper perspective, inasmuch as, as per Rule 30.2 of 1978 Rules, on receipt of the reply, the disciplinary authority was to 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. 7. The disciplinary authority has not exercised power under Rule 30.2 of 1978 Rules while reaching such conclusion stating inter alia that on careful examination of the enquiry proceedings held, evidence adduced, documents produced both from the Management and Defence sides and the comments/representations of the petitioner, the disciplinary authority was of the opinion that ends of justice would be met if the petitioner was imposed a major penalty of “reduction of pay by one stage for a period of one year without cumulative effect” by its letter dated 19.07.2003 in Annexure-8. Thus, it is clear from the same that the disciplinary authority has not applied its mind nor has it passed the order in consonance with the provisions of law by assigning any reasons. Thus, it is clear from the same that the disciplinary authority has not applied its mind nor has it passed the order in consonance with the provisions of law by assigning any reasons. Further, imposition of penalty as mentioned in order dated 19.07.2003 in Annexure8, is classified as minor penalty under Rule 27.1(b), but it has been mentioned as major penalty. Though the petitioner preferred appeal against the order dated 19.07.2003 in Annexure-8, the appellate authority mechanically passed the order on 26.02.2004 without applying its mind and confirmed the punishment imposed by the disciplinary authority. 8. On perusal of the impugned orders passed by the disciplinary authority as well as appellate authority, it appears that no reasons have been assigned and both the authorities without application of mind have passed the orders mechanically. 9. Reasons being a necessary concomitant to passing an order, the appellate authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority. 10. Franz Schubert said:- “Reason is nothing but analysis of belief.” In Black’s Law Dictionary, reason has been defined as a- “faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions.” It means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe. In Union of India v. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision 8 reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. The reasons assure an inbuilt support to the conclusion and decision 8 reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915 , in Patitapaban Pala v. Orissa Forest Development Corporation Ltd. & another, 2017 (1) OLR 5 and Banambar Parida v. Orissa Forest Development Corporation Limited and others, 2017 (1) OLR 625. 11. In that view of the matter, this Court is of the considered opinion that both the disciplinary authority as well as appellate authority have passed the impugned orders without application of mind imposing major penalty, though the same has been classified as minor penalty as per Rule 27(1)(b) of 1978 Rules, which cannot sustain in the eye of law. Thereby, the order in Annexure-8 dated 19.07.2003 passed by the disciplinary authority and the order in Annexure-10 dated 26.02.2004 passed by the appellate authority, confirming the order of disciplinary authority, are hereby quashed. The matter is remitted back to the disciplinary authority to consider it afresh on the basis of the materials available on record by affording opportunity of hearing to the petitioner as expeditiously as possible, preferably within a period of four months from the date of communication of this order. 12. With the above observation and direction, the writ petition stands disposed of.