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Gauhati High Court · body

2017 DIGILAW 814 (GAU)

Prabhat Ch. Handique S/o- Lt. Rameswar Handique v. Assam Petrochemicals Ltd.

2017-06-20

HRISHIKESH ROY

body2017
JUDGMENT AND ORDER : Heard Mr. D. Baruah, the learned Counsel appearing for the petitioner. Also heard Mr. N. Deka, the learned advocate for the respondents. 2. The challenge here is to the order dated 15.10.2011 (Annexure-G), whereby in pursuant to a Disciplinary Proceeding (D.P), the petitioner was punished with reduction to the lower grade/post i.e. Officer(Fire) w.e.f 17.10.2011 in the Assam Petrochemicals Limited, Namrup (hereinafter referred to as “the APL”). The delinquent was serving as an Assistant Manager (Fire) and the Charge Memo dated 27.7.2009 (Annexure-C) was issued against him with allegation of refusal to perform his lawful duty, insubordination, improper and disorderly conduct etc. On the night of the incident of 14.7.2009, the drainage of Formalin in the Tanker Yard at the APL was noticed and the petitioner as the Assistant Manager (Fire), was asked to attend to the emergency. But he failed to discharge his duties and refused to obey the order of his superiors and exhibited negative attitude. The charges of attempting to assault Atul Gogoi, the G.M (HRM) of the APL, being abusive and displaying riotous and disorderly behaviour were also alleged against the delinquent, in the Charge Memo dated 27.7.2009 (Annexure - C) 3. The contents of the Charge Memo dated 27.7.2009 are extracted hereinbelow for ready reference :- “STATEMENT OF ALLEGATION IN SUPPORT OF ARTICLES OF CHARGES. Report has been received from General Manager (HRM) and Dy. General Manager (MM) that on 14.7.2009 at about 9:30 p.m. Formalin was drained out at Tanker Yard and as a result residents of the nearby area were facing serious problem. The matter was informed to GM (HRM) by Shri Nobin Saikia, General Secretary, APWU over telephone. To reduce the bad effect of Formalin, spraying of water through the company’s Fire Tender was very much essential. Receiving the phone call, GM (HRM) immediately informed the matter to DGM(MM) as he is the controlling head of the Fire Section. As reported by DGM(MM), he asked Shri Prabhat Chandra Handique, Asstt. Manager (Fire) to send the Fire Tender to the Tanker Yard to flush the water of the affected area. But Shri P. Handique refused to obey his order and stopped the movement of the Fire Tender. Also Shri Handique did not allow the drivers to ply the Fire Tender in spite of the instruction of DGM(MM). Manager (Fire) to send the Fire Tender to the Tanker Yard to flush the water of the affected area. But Shri P. Handique refused to obey his order and stopped the movement of the Fire Tender. Also Shri Handique did not allow the drivers to ply the Fire Tender in spite of the instruction of DGM(MM). Report has also been received that Shir Handique refused to recognize Shri R.P. Neog, DGM(MM) as his Controlling Head. It was clearly a wilful, insubordination and disobedience to the lawful and reasonable order of the superior on the part of Shri Handique which is treated as misconduct as per Clause 25(i) of the Conduct, Discipline and Appeal Rules for Officers of the Company. Report has also been received that the employees who were present in the affected area including GM (HRM), DGM(MM) and GS, APWU tried to make him understand of the necessity of flushing out the area with the help of the Fire Tender. But Shri Handique was totally in a negative attitude. GM (HRM) being a controlling head of the administration tried to convince Shri Handique, but in return Shri Handique charged him in a rude manner using some unparliamentarily words that he was not bound to follow the instruction of Shri R.P. Neog, DGM(MM) and created an unhealthy situation. Shri Handique also clearly stated that he would not allow the Fire Tender to come out of the factory premises as per instruction of Shir R.P. Neog, DGM(MM). While GM (HRM) Sri A Gogoi, insisted him that it was obligatory on his part to obey the instruction of his superior then he became furious and attempted to assault Sri A. Gogoi GM (HRM) in front of other employees. While he was obstructed by the employees present there, he shouted some un-parliamentary words and left the place saying that he would be coming back immediately. After some time, Shri P.C. Handique again came back to the place of incidence with a sharp weapon (Da) with an intention to attach GM (HRM) but since GM (HRM) was not present there he shouted with indecent words in front of the ladies and the children present there and created an unhealthy situation. After some time, he left the place by hitting his own bicycle with his weapon to express his anger. After some time, he left the place by hitting his own bicycle with his weapon to express his anger. Such a riotous and disorderly behaviour on the part of Sri P.C. Handique constituted serious misconduct under Clause 25(v) of the Conduct, Discipline and Appeal Rules for Officers of the Company. Further, a representation from a group of house wives of the nearby area of the Tanker parking yard was also received that Shri Handique uttered so many un-parliamentary and slang words in front of the ladies and the children that the whole situation became unhealthy and intolerable. As per provision of the Clause-24 of the Conduct, Discipline and Appeal Rules” An Officer shall at all times conduct himself soberly and temperately while on the official premises and show proper respect and civility to all concerned and shall use his best endeavours to promote the interest of the company and to maintain and promote the good reputation thereof. But Shri Handique by his above act of indiscipline violated the above provision which is treated as misconduct under Clause-25(XIX) of the Conduct, Discipline and Appeal Rules for Officers of the Company. Shri Handique is a responsible officer and an incharge of an essential service like Fire Section. Everybody is aware that Formalin is a hazardous chemical which is injurious not only to human being but also to any of the living creature. Being the incharge of Fire Section, he should play a very important role to protect the residents of the locality from its bad affect. But, the attitude of Shri Handique was found to be quite negative. He not only disobeyed the instruction of his superior but also neglect his duties. As per Conduct, Discipline and Appeal Rules for officers, APL 1(i) “Every officer shall, at all times, maintain absolute integrity and devotion to duty and shall conduct himself at all times in a manner which will enhance the reputation of the company.” (ii) “Every officer shall also take all possible steps to assure the integrity and devotion to duty of all company’s employees for the time being under his control and authority”, But Shri P.C. Handique by his act fails to maintain absolute integrity and devotion to duty which constitutes serious misconduct under the provision of 25(XIX) of the Conduct, Discipline and Appeal Rules for Officers of the Company. Clause “D” of the Conduct, Discipline and Appeal Rules for Officers of the Company provides that “Unless in any case it be otherwise distinctly provided, the whole time of an officer shall be at the disposal of the company and he shall serve the company in its business in such capacity and at such place as he may from time to time be directed”. But Shri P.C. Handique, being the in-charge of an essential and emergency service like Fire Section failed to realise that this service was at the disposal of the company and he tried to run the section as per his own will without following the direction of his superior which is a misconduct under Clause 25(XIX) of the Conduct, Discipline and Appeal Rules for Officers of the Company.” 4. In his reply dated 14.8.2009 (Annexure-D), the delinquent stated that the Formalin leakage was at the Tanker Yard and the incident was outside the factory gate and according to his perception, it was not the job of the Fire Department to attend to the incident. Therefore, he asked for written order from his superior. On account of the resultant heated exchange with Atul Gogoi the G.M.(HRM), who allegedly abused the delinquent and also assaulted him in front of everyone gathered at the site of the incident, the delinquent went to the police station to lodge FIR against his boss, which led to the registration of the Namrup P.S. Case No.48/2009 under Section 341/343/323 of the IPC. His failure to attend to the Formalin leakage was attributed to the abuse and assault by the G.M (HRM) of the APL and the countervailing necessity felt by the delinquent, to report the matter to the police. In fact, the request for the written order to attend to Formalin leakage at the Tanker Yard was projected to be a non-negative act. He also questioned the efficacy of flushing water as suggested, to deal with the situation and raised environmental concern. According to the delinquent it was beyond the normal duty of the Fire Chief to attend to the Formalin leakage and submitted that he was provoked by the conduct of the G.M (HRM), at the site of the incident. 5. He also questioned the efficacy of flushing water as suggested, to deal with the situation and raised environmental concern. According to the delinquent it was beyond the normal duty of the Fire Chief to attend to the Formalin leakage and submitted that he was provoked by the conduct of the G.M (HRM), at the site of the incident. 5. Finding the reply of the delinquent to be dissatisfactory, an enquiry was ordered into the Charges and when the delinquent was found guilty as charged, the Inquiry Report was furnished to the petitioner on 27.2.2010 (Annexure-E). In his reply dated 2.8.2010 (Annexure-F), the delinquent stated that the leakage of Formalin at the Tanker Yard was a man-made disaster and that is why he asked for written authorization to deal with the incident. Moreover he had in his mind, a different strategy to deal with the chemical leakage. Therefore, the delinquent questioned the assessment of the situation by the G.M(HRM) and others who failed to see the delinquent’s point of view and abused and assaulted him, for failing to deal with the incident at the Tanker Yard of the APL. However, the authorities of the APL found the response of the delinquent to the 2nd show-cause-notice to be inadequate and accordingly after considering the gravity of the mis-conduct, under the Memorandum dated 15.10.2011 (Annexure-G) ordered for the punishment of reduction to the lower grade/post i.e. Officer (Fire) from the post of Assistant Manager (Fire), in the APL. 6.1 Assailing the legality of the disciplinary action, Mr. D Baruah, the learned Counsel strongly argues that the designated Disciplinary Authority of the delinquent is the Head of the Department i.e. G.M (HRM) under the Assam Petro-Chemicals Ltd. Conduct, Discipline and Appeal Rules for Officers’ (hereinafter referred to as “ the APL Rules”) but here, the Managing Director (M.D), who is the Appellate Authority, inflicted the punishment and therefore, the same is contended to be in violation of the procedure in the APL. The petitioner contends that since the Appellate Authority imposed the punishment, the delinquent was deprived of the Appellate Forum and on this count, the impugned action is contended to be vitiated. 6.2 The learned Counsel further contends that the punishment imposed on the delinquent was disproportionate and was not warranted by the misconduct with which, the delinquent was charged. 7.1 On the other hand, Mr. 6.2 The learned Counsel further contends that the punishment imposed on the delinquent was disproportionate and was not warranted by the misconduct with which, the delinquent was charged. 7.1 On the other hand, Mr. N. Deka, the learned Counsel for the APL submits that the delinquent as the Assistant Manager (Fire), was irresponsible, defiant and displayed negative approach in attending to the emergency emanating from the Formalin leakage on the night of 14.7.2009. Moreover he did not focus on attending to the problem and for other peripheral reasons, absented himself from the accident site without attending to the incident, to lodge the FIR against his superior. Therefore the Counsel argues that for a fire chief, it was a serious lapse and thus it is argued that the punishment too was commensurate to the misconduct. 7.2 The learned lawyer for the APL refers to the inquiry proceeding to demonstrate that full opportunity was afforded to the delinquent to defend the charges and he actively participated in the proceeding by cross-examining the PWs and also producing his Defence evidence. Therefore, guilty as charged conclusion drawn by the Inquiry Officer, is contended to be in pursuant to a fair and transparent process. Therefore, Mr. Deka argues that the Court should have no reason to interfere with the D.P. 7.3 The APL lawyer points out that the G.M.(HRM) could not be the Disciplinary Authority against the delinquent since he himself was involved and was a witness to the incident on 14.7.2009 and therefore, the M.D. as a neutral authority, took upon himself the responsibility to discharge the role of the Disciplinary Authority. In that context, the loss of Appellate Forum as argued by the other side is contended to be misconceived, since under the APL Rules, the delinquent could have appealed the order of the M.D., before the Board of Directors of the APL. 8. In support of his first argument on loss of appellate forum, the petitioner has relied upon Surjit Ghosh Vs. The Chairman and Managing Director, United Commercial Company reported in (1995) 2 SCC 474 where the Supreme Court held that if the Appellate Forum becomes unavailable for a delinquent, the disciplinary action stands vitiated. But in my perception, the circumstances in the present case are distinguishable and it will be illogical to blindly apply the ratio of Surjit Ghosh (supra), to the present situation. 9. But in my perception, the circumstances in the present case are distinguishable and it will be illogical to blindly apply the ratio of Surjit Ghosh (supra), to the present situation. 9. Under the APL Rules the specified Disciplinary Authority for the delinquent was directly involved with the incident on 14.7.2009 and therefore, the designated Disciplinary Authority for his non neutral position, could not have discharged his role in the present case. There was adequate justification for the M.D to act as the impartial Disciplinary Authority and this cannot be faulted in the given circumstances, by applying the ratio of Surjit Ghosh (supra). Moreover, since the Board of Directors of the APL was competent to consider the Appeal against the order of the M.D., there was no loss of Appellate forum for the delinquent unlike the situation in the case cited by the petitioner. The alternate approach was approved in Chairman A.P. State Electricity Board vs. M. Kurmi Naidu reported in (2006) 8 SCC 62 and in my perception, the later decision applies more logically to the facts of this case. The Appellate Authority did not cause any prejudice to the delinquent by acting as the Disciplinary Authority since the Appellate Forum was still available against the order passed by the M.D. In the domestic enquiry the G.M (HRM) Atul Gogoi was a material witness (MW-8) and therefore, he could not have acted as the Disciplinary Authority in the present matter. In such circumstance the imposition of the punishment by the M.D. and not by the Head of the Department, as is contemplated under the APL Rules, is held to be in order. 10. In the inquiry proceeding, the management produced 9 witnesses and also exhibited 7 documents. Whereas the delinquent examined one witness from his side and produced 16 documents in support of the Defence. The delinquent cross-examined the prosecution witnesses. The evidence of the D.W.1 in fact corroborates the fact that the delinquent asked for a written order to attend to the Formalin leakage since the location of the incident was just outside the factory premises. The D.W.1 Khirod Sonowal was the senior leading Fireman in the APL and most irresponsibly, the delinquent advised the key person of the disaster situation team who had reached the site, to return back to the fire station. The D.W.1 Khirod Sonowal was the senior leading Fireman in the APL and most irresponsibly, the delinquent advised the key person of the disaster situation team who had reached the site, to return back to the fire station. The DW-1 waited at the fire station till about 10 p.m. and then the senior fireman on his own, called up the delinquent who informed him that he was at the police station to lodge the FIR. This reflects clear abdication of responsibility by the delinquent in the face of an emergency situation. 11. The inquiry officer considered all material and the conclusion reached by him is based upon the evidences. Since a fair and adequate opportunity was afforded to the delinquent to defend the charges, the legality of the inquiry is not in doubt. Therefore, I find no reason to disagree with the guilty as charged finding, rendered by the inquiry officer on 27.2.2010, against the delinquent. 12. In so far as the proportionality of the punishment, it is important to bear in mind that the petitioner was the Assistant Manager (Fire) in the APL and was expected to attend to all emergencies as called upon. But the response of the officer left much to be desired. Instead of dealing with the crisis situation, the delinquent diverted attention to other irrelevant aspects like man-made leakage, jurisdiction of the incident, possible environmental impact if water is sprayed on formalin leakage and so on and in fact the Fire Chief asked for written order from his superior at 9:30 p.m., to attend to the emergent situation. This certainly speaks volume of his mind set and also the negative commitment, to deal with the situation. In fact, the delinquent personally directed his fire service team to return back to the station, although they had rushed to the site of the leakage. Moreover, most capriciously, on account of the confrontation with his DGM(HRM), the delinquent abandoned his post disregarding the clear order of his superior and went to the police station to file the FIR. To ask for a written order at night to deal with the emergent situation and abdication of duty, reflects immaturity level unbecoming of a leader of a crisis team. Therefore, in the context of the misconduct, the punishment of demotion cannot be construed to be unjustified. To ask for a written order at night to deal with the emergent situation and abdication of duty, reflects immaturity level unbecoming of a leader of a crisis team. Therefore, in the context of the misconduct, the punishment of demotion cannot be construed to be unjustified. Thus the issue of proportionality of punishment is answered in favour of the APL Management and against the delinquent. 13. While demoting the petitioner under the impugned order of 15.10.2011 (Annexure-G), the period of suspension from 18.7.2009 till he was reinstated in the lower post under the punishment order was ordered to be treated as absent from duty for which the delinquent shall not be entitled to any remuneration. But considering the nature of the penalty, and to prevent double punishment, the interregnum period should in my view be counted as notional service only for the purpose of superannuation benefits, which becomes available on retirement. With such minor change of the impugned order, this case stands disposed of in the manner indicated. No cost.