Bhimendra Kumar Kashyap v. Steel Authority of India Ltd. (SAIL), New Delhi
2018-01-10
APARESH KUMAR SINGH, RAJESH KUMAR
body2018
DigiLaw.ai
ORDER : Head learned counsel for the parties. 2. The order dated 7th August, 2017 passed by learned Central Administrative Tribunal in O.A. No. OA/051/00118/2016 has affirmed the order of disciplinary authority dated 3rd March, 2016 and the appellate order dated 28th April, 2016 (Annexure-11 Series, whereunder punishment of reduction to the lowest stage of next lower grade, i.e., from S-8 to S-7 as awarded earlier also on 31st May, 2003 upon him, was affirmed. 3. The present proceeding arises out of a fresh inquiry though for the same charges (Annexure-2 dated 10.10.1994) on being remanded by learned Division Bench of this Court in LPA No. 58 of 2012, judgment dated 3rd February, 2014 (Annexure-7). The charges framed against the petitioner are as under : "(i) Clause 31(xiii) giving false information regarding wife's particulars for the purpose of employment or concealing any fact about any previous employment, age and other particulars in this respect. (ii) Clause 31 (xxiii) contracting another marriage while his wife is till alive. 4. The inquiry proceeded against the petitioner and punishment was imposed upon by reduction of his grade to the lowest stage of next lower grade from S-8 to S-7 by the disciplinary authority at the first instance. Applicant/petitioner being aggrieved successfully challenged the same in W.P. (S) No. 3899 of 2007. Learned Single Judge of this Court by judgment dated 16th November, 2011 allowed the application and quashed the order of punishment holding, inter alia, as follows : "5. From perusal of enquiry report, I find that there is nothing in the enquiry report to show that the documents relied by the management was supplied to the petitioner. It further appears from list of document enumerated in the enquiry report that some documents are private documents, such as letter dated 12.4.1993 of one Ms. Geeta Devi and marriage photographs supplied by Ms. Geeta Devi. These two documents were also considered by the Enquiry Officer. There is nothing in the inquiry report to show that the said Geeta Devi was examined during the enquiry. Thus, no opportunity given to the petitioner to cross-examine her.
Geeta Devi and marriage photographs supplied by Ms. Geeta Devi. These two documents were also considered by the Enquiry Officer. There is nothing in the inquiry report to show that the said Geeta Devi was examined during the enquiry. Thus, no opportunity given to the petitioner to cross-examine her. This fact is also not denied by the respondents in its counter-affidavit, though there is specific averments in the writ application at paragraph No. 25 that the respondents while holding the enquiry had not adhered to the Rules 11 to 14 of Conduct, Discipline and Appeal Rules, 1877 of Steel Authority of India Ltd. 6. It is worth mentioning that in Rule 11, it is specifically mentioned that the management will produce witness and they may be cross-examined by or on behalf of employee. 7. Since, in the instant case the author of aforesaid two documents has not been examined and no opportunity given to the petitioner to cross-examine the said witness. Thus, I am of the view that principle of natural justice has not been followed while holding petitioner guilty for charge No.2. 8. As noticed above, in the instant case the other public document relied by the respondent had also not supplied to the petitioner, which is also violative of principles of natural justice. Thus, the impugned order cannot be sustained being violative of principles of natural justice." 5. Respondent-Steel Authority of India being aggrieved approached the learned Division Bench in LPA No. 58 of 2012, which was decided on 3rd February, 2014 at Annexure-7 upholding the order of learned Single Judge, however, with a liberty to the appellant to inquire into the matter afresh from the stage of commencement of enquiry by furnishing the documents relied upon by the appellant to the respondent and after affording opportunity to the petitioner in accordance with law. Review petition filed by the delinquent employee/writ petitioner being Civil Review No.22 of 2014 and Special Leave to Appeal Nos.21293-21294/2014 preferred before the Apex Court by him also got dismissed without any interference. The enquiry proceeded thereafter and has lead to the present punishment, which is reiteration of the original punishment. The appellate authority also did not find any merit in his ground of challenge and affirmed the order. One important event in the chronology of facts needs to be mentioned herein. 6.
The enquiry proceeded thereafter and has lead to the present punishment, which is reiteration of the original punishment. The appellate authority also did not find any merit in his ground of challenge and affirmed the order. One important event in the chronology of facts needs to be mentioned herein. 6. Respondent-SAIL had approached this Court in WP(S) No. 940 of 2017 against an interim order dated 15th December, 2016 passed by learned Tribunal in the same O.A. on the issue of maintainability. Respondent-SAIL contended that applicant was a workman whose cause of action was amenable to the forum created under the Industrial Disputes Act. Learned Tribunal by the interim order had effectively ruled out any adjudication on the preliminary objection. This Court by order dated 1st July, 2017 disposed of the said writ petition with an observation that learned Tribunal should have decided the question of maintainability at the time of final adjudication of the case after considering the entire material pleadings and evidences in that regard as the question of maintainability appears to be both mixed question of fact and law. 7. Learned Tribunal did not find any substance in the challenge to the impugned punishment in the instant exercise after remand on both courts, i.e., in the matter of compliance of principles of natural justice and also on the merits of challenge. 8. Learned Tribunal found that the factum of second marriage of the petitioner was an inscrutable finding in Title Suit No. 152 of 1994 rendered by learned sub-Judge Vth, Ranchi. Learned Tribunal, also proceeded to hold that in the absence of any clear notification, the distinction between the workman and employee in the managerial post was not made out on behalf of respondent-SAIL to non-suit the applicant in the original application. This finding of learned Tribunal however is in challenge in a separate writ petition being WP(S) No. 7533 of 2017 preferred by the aggrieved SAIL. 9.
This finding of learned Tribunal however is in challenge in a separate writ petition being WP(S) No. 7533 of 2017 preferred by the aggrieved SAIL. 9. Learned counsel for the applicant has assailed the findings of learned Tribunal and disciplinary / appellate authority primarily on two grounds : (i) that there was a violation of principle of natural justice in the fresh inquiry also as the applicant-workman had no opportunity to participate in it; his representations to defer the inquiry proceeding on account of pendency of Special Leave to Appeal against the judgment of LPA Court and that he was suffering from acute renal failure were disregarded. (ii) The impugned punishment was suffering from illegality as the charges were not framed in accordance with the statutory rules. 10. However, on being repeatedly asked, learned counsel for the petitioner has not been able to substantiate the ground that the proceedings suffered from violation of principles of natural justice. On the contrary, learned counsel for the respondents has placed Minutes of the enquiry proceeding, which is also part of Annexure-11 Series. 11. We have perused the inquiry report, order of disciplinary authority / appellate authority and also the impugned judgment. We have also gone through the relevant materials on record pleaded by the petitioner. It is apparent from continuous reading of the inquiry report that in the proceeding initiated after remand, notices were issued on 27th August, 2014 upon the delinquent employee to participate in the inquiry. He was advised to attend the enquiry along with oral and documentary evidences, witnesses and also to avail the opportunity to defend himself through any co-worker. This was acknowledged by the employee through his letter dated 16th September, 2014 where he conveyed his inability to attend the enquiry proceeding due to acute renal failure. He also contended that since first inquiry proceeding had also been quashed on the same set of charges, therefore, there was no scope of second inquiry after 20 years. The delinquent employee did not appear on the date fixed, i.e., 18th September, 2014. However, the Enquiry Officer thought it proper to post the proceeding for 20th October, 2014 and issued fresh notice upon the employee on 10th October, 2014 in a similar manner.
The delinquent employee did not appear on the date fixed, i.e., 18th September, 2014. However, the Enquiry Officer thought it proper to post the proceeding for 20th October, 2014 and issued fresh notice upon the employee on 10th October, 2014 in a similar manner. This was also acknowledged by the delinquent through his letter dated 18th October, 2014 where apart from earlier grounds, he also took the plea that he had approached the Hon'ble Supreme Court against the order passed by learned Division Bench in Civil Review No. 22 of 2014. When the employee did not appear on 20th October, 2014 at the scheduled time the proceedings were deferred and notices were again issued upon him on 22nd December, 2014 to appear on 7th January, 2015 and participate in the inquiry. The employee offered his reply to the notice through letter dated 3rd January, 2015 and again pointed out to the pendency of the case before Hon'ble Supreme Court of India. On continued non-appearance of delinquent also the Enquiry Officer thought it proper to give final opportunity to him to attend the proceeding through notice dated 11th March, 2015 fixing the date of inquiry as 10th April, 2015 at 10:00 a.m. The charge-sheeted employee again responded through letter dated 8th April, 2015 taking the plea of acute renal failure and was not in a position to face the enquiry. Special Leave Petition had been dismissed on 30th March, 2015 in the meantime. The Presenting Officer was advised to present his case on behalf of the management and submit a detailed report with all documentary evidence enclosed in Exhibits-I to XV. The delinquent appeared on 13th April, 2015 and submitted the documentary evidences of acute renal failure. The Enquiry Officer, however, found that this cannot be treated as ground for exemption from attending the enquiry proceedings as he is regularly discharging his duties by attending office, which has been proved from the documentary evidence submitted by Presenting Officer from the punching system for the period August, 2014 to April, 2015 (Ext. XV). Moreover, it was also found that he was present on duty in all the days of enquiry proceedings wherein he was advised to attend the enquiry along with oral and documentary evidences and also given the opportunity to take the help of any co-worker to defend himself.
XV). Moreover, it was also found that he was present on duty in all the days of enquiry proceedings wherein he was advised to attend the enquiry along with oral and documentary evidences and also given the opportunity to take the help of any co-worker to defend himself. Every notice issued to him was acknowledged by him though he did not participate in the enquiry. 12. Learned counsel for the respondent-SAIL submits at this stage that the office of petitioner was in the same building, in which inquiry proceedings were held Enquiry Officer thereafter proceeded to examine the Presenting Officer by putting pertinent question to him. Exts. 1, 2, 3 and 4 were also adduced on behalf of Presenting Officer. Upon consideration of the material charges, the statement of the Presenting Officer together with documents adduced on his behalf, the Enquiry Officer came to a considered finding that the employee had without any reasonable cause despite due notice of the proceeding failed to appear on one pretext or the other. Though he made excuses of severe health problems for not attending the enquiry proceedings but at the same time, he is regularly attending the office which is quite evident from his attendance through Biometric Attendance Register. Therefore, his non-participation was intentional. The Enquiry Officer also came to a considered finding on the merits of the charges relating to second marriage of delinquent in view of the specific pronouncement of 1st Class Judicial Magistrate, Khunti in Miscellaneous Case No. M4/1987, whereunder maintenance was awarded to the first wife, Geeta Devi. Further sub-Judge Vth, Ranchi in Title Suit No. 152/94 instituted by the employee for a declaration of his status categorically held that Geeta Devi is the wife of Sri B.K. Kashyap and that his marriage with Bhagwati Kumari Sahu on 24th October, 1992 in quite illegal and unjustified (Ext. VIII). The delinquent was served with a second show-cause notice along with copy of enquiry report by the disciplinary authority on 5th February, 2016, to which he duly responded through his reply dated 15th February, 2016.
VIII). The delinquent was served with a second show-cause notice along with copy of enquiry report by the disciplinary authority on 5th February, 2016, to which he duly responded through his reply dated 15th February, 2016. The disciplinary authority considered the entire materials adduced during inquiry proceeding and by a detailed reasoned order, reaffirmed the order of punishment of reduction to the lowest stage of the next lower grade, i.e., from S-8 to S-7 awarded earlier on 31st May, 2013 considering the gravity of charges, i.e., he had falsely disclosed his status at the time of joining the service as being unmarried; he had contracted second marriage during the life time of his first wife. The appellate authority by the order dated 27th April, 2016 also did not find any substance in the memo of appeal and accordingly affirmed the order. 13. In these background facts and material evidence on record, learned Tribunal was wholly justified in upholding the impugned action of the Respondent-SAIL. On consideration of the entire materials on record and in view of the discussions made above, we do not find any infirmity in the impugned order warranting interference. The other grounds of challenge relating to framing of charge in teeth of statutory rules also remained unsubstantiated. We, therefore, do not find any merit in the writ petition, which is accordingly dismissed. Petition dismissed.