Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 104 (JHR)

Chandeshwar Singh v. Central Coalfields Limited

2018-01-11

ANIL KUMAR CHOUDHARY

body2018
ORDER Anil Kumar Choudhary, J. - Heard Mr. Pandey Neeraj Rai, learned counsel for the petitioner and Mr. Amit Kr. Das, learned counsel for the respondents. 2. This writ application has been filed by the petitioner with a prayer for quashing the office order dated 16.05.2008 by which, the punishment of stoppage of one increment and recovery of amount alleged to be excess payment, has been awarded to the petitioner with all consequences and other reliefs. 3. The brief facts involved in this writ application is that the petitioner was an employee of Central Coalfields Limited. A departmental proceeding was held against the petitioner for following allegations- "That while you were posted and functioning as U.D.C, Rajrappa project during the year 1999-2000, you were sent to M/s Vulcan Industries Pvt. Ltd, Anand (Gujrat) on official duty to expedite supply of spares of P&H shovel on 22/12/1999 and also received TA advance of Rs. 4,000/- through pay-order no. 0283956 dated 18/12/99 against the said tour. While submitting the final TA bill, though as per railway time-table, there was no 1st class service in the train by which the journey was performed by you, you fraudulently claimed to have travelled by 1st class for your journey from Ramgarh Cantt. to Anand (Gujrat) on 22/12/99 and return journey from Anand (Gujrat) to Ramgarh Cantt. starting on 31.12.99 giving false mode of travel and fictitious ticket numbers and withdrew an additional amount of Rs. 2,560/- in excess being the difference between the 1st & 2nd class fares applicable during the relevant time whereas as per extent rules governing TA reimbursements, the Company''s liability was restricted only to the extent of fare by the class in which you had actually travelled for undertaking the said tour." 4. It is alleged that the petitioner has committed misconduct in terms of clause 26.1, 26.22 and 26.41 of the certified standing order of the CCL, the said clause of the said order reads as under- "26.1 Theft, fraud or dishonestly in connection with the employer''s business or property. 26.22 Any wilful and deliberate act which is subversive of discipline or which may be detrimental to the interests of the company. 26.41 Violation of any clause of these standing orders." 5. 26.22 Any wilful and deliberate act which is subversive of discipline or which may be detrimental to the interests of the company. 26.41 Violation of any clause of these standing orders." 5. After the departmental enquiry, the enquiry officer submitted the enquiry report by giving findings that clause 26.1 and 26.22 of the certified standing order of the CCL was not proved against the petitioner, however, he held that misconduct under clause 26.41 of the said certified standing order was proved. Respondent no. 5, being the disciplinary authority acted upon the said enquiry report and concurred with the findings of the enquiry officer and by supplying a copy of the enquiry report called for an explanation with the condition that in default of the same he would proceed further in the matter. The enquiry report supplied to the petitioner was also annexed with one sheet of note-sheet drawn in continuation to the report, wherein the disciplinary authority has mentioned regarding proposed punishment as under:- "Hence a caution letter may be issued in addition to recovery of difference of excess fare paid of higher class as punishment." 6. The proposal of the penalty was forwarded to respondent no. 4 being the Chief General Manager of the area. 7. The petitioner submitted his second show cause but vide office order dated 16.05.2008, the following punishment was imposed upon the petitioner by the disciplinary authority:- (i) Stoppage of one increment, and (ii) Recovery of excess amount 8. The petitioner obtained the entire records containing the note-sheets pertaining to the proceedings involved under Right to Information Act and he found that several interpolations in the note-sheets, after the copy of the same was served upon the petitioner as annexure to the enquiry, along with the second show cause notice. 9. Per contra, in the counter affidavit filed by the respondents, it has been affirmed that disciplinary proceeding was conducted as per law giving adequate opportunity to the petitioner, to represent his case. It is also averred in the said counter affidavit that the petitioner filed T.A. bills and thus committed fraud and dishonesty with the company. It was also averred by the respondents that the disciplinary authority has rightly imposed the punishment upon the petitioner, keeping in view the proved charge against him. 10. It is also averred in the said counter affidavit that the petitioner filed T.A. bills and thus committed fraud and dishonesty with the company. It was also averred by the respondents that the disciplinary authority has rightly imposed the punishment upon the petitioner, keeping in view the proved charge against him. 10. Learned counsel Pandey Neeraj Rai appearing for the petitioner submitted that since the disciplinary authority has concurred with the findings of the enquiry officer and the enquiry officer has categorically come to the conclusion that the misconduct under clause 26.1 and 26.22 of the certified standing order has not been proved and since, clause 22.41 is residuary clause which shows that the said clause can be made only if there is violation of any clause of the said standing order of the company and there is no allegation of violation of any other clause of standing order either in the charge-sheet or any time during enquiry or even in the orders or note-sheet of the disciplinary authority. Hence, in the absence of any allegation of violation of any other clause of standing order of the company, punishment could not have been imposed upon the petitioner solely for the violation of the clause 26.41 of the certified standing order of the company. It is further submitted by Mr. Rai that the disciplinary authority has not found his independent opinion as is required to form while imposing a punishment upon the delinquent employee-the petitioner. Drawing attention of the court to page 42 of the brief, which is the copy of the note-sheet supplied to the petitioner by respondent no. 5, learned counsel submitted that therein it has been categorically mentioned by disciplinary authority that he agrees with the findings of the enquiry officer as well as the opinion of S.O. (P&A) Rajrappa. Except the charge no. 26.41 other charges levelled in the said charge-sheet could not be proved and hence, submitted for issuance of a caution letter in addition to recovery of difference of excess fare paid of higher class as punishment and submitted proposal to CGM (R) for approval. Hence, the aforesaid facts is sufficient to establish that the disciplinary authority has not applied his own mind while taking the decision of imposing punishment against the petitioner. Hence, the aforesaid facts is sufficient to establish that the disciplinary authority has not applied his own mind while taking the decision of imposing punishment against the petitioner. Hence, learned counsel submitted that the impugned order being illegal and arbitrary and mala fide in colourable exercise of power and in violation of principal of natural justice and being unconstitutional as well as being violative of petitioner''s fundamental rights and other rights guaranteed under Article 14 and 21 and 301A of the Constitution of India, the impugned order be set aside. 11. Mr. A.K. Das, learned counsel for the respondents, on the other hand, relying upon the judgment of Hon''ble Supreme Court in the case of Bank of India and another v. Degala Suryanarayana reported in, 1999 S.C. 2407 wherein in paragraph 11, the Hon''ble Court has held as under :- "The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon re-appreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained". Learned counsel for the respondent further submitted that enquiry officer having found the petitioner guilty of the charges and there is no mala fide or perversity in the departmental proceeding or decision of imposing punishment. Hence, this writ application being without any merit be dismissed but learned counsel fairly conceded that it has not been mentioned by the disciplinary authority that apart from clause 26.41 of the certified standing order, which other clause of the said standing order has been violated, which at best amounts to an arrear of pay, which the entire disciplinary process Should not be initiated. At best, the matter be remanded to the disciplinary authority to consider for taking decision afresh from the stage after the submission of the enquiry report. 12. It is settled principal of law that the disciplinary authority is supposed to take independent decision of imposing punishment on a delinquent employee. At best, the matter be remanded to the disciplinary authority to consider for taking decision afresh from the stage after the submission of the enquiry report. 12. It is settled principal of law that the disciplinary authority is supposed to take independent decision of imposing punishment on a delinquent employee. In this case, it is crystal clear that clause 26.41 of the certified standing order of the company itself is not an independent clause, by which misconduct can be established and perusal of the memo reveals that to establish misconduct under clause 26.41 of the certified standing order of the company, at least there must be violation of any one of the other clauses of the said standing order of the company. 13. Considering the aforesaid facts and circumstances, this court is of the considered view that the impugned order dated 16.05.2008 passed by respondent 5 is not sustainable in the eyes of the law and is liable to be quashed and set aside. Accordingly, as the cumulative effect of the aforesaid facts, submissions, discussion and judicial pronouncements, the impugned order dated 16.05.2008 passed by respondent no. 5 imposing the punishment of stopping of one increment and recovery of amount alleged to be an excess payment is set aside. The matter is remitted back to respondent no. 5. The respondent no. 5 may take steps as per law in the matter from the stage after submission of the enquiry report. With these observations, this writ petition is allowed.