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2019 DIGILAW 109 (UTT)

Sanjay Kumar v. Bharat Heavy Electrical Ltd.

2019-02-20

R.C.KHULBE, RAMESH RANGANATHAN

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JUDGMENT : Ramesh Ranganathan, J. Heard Mr. A.S. Rawat, learned Senior Counsel assisted by Mr. Amar Shukla, learned Counsel for the appellant, and Mr. V.K. Kohli, learned Senior Counsel assisted by Ms. Rajni Supyal, learned Counsel for the respondent-Corporation. 2. This appeal is preferred against the order passed by learned Single Judge in Writ Petition (S/S) No.512 of 2015 dated 16.4.2015. The appellant herein invoked the jurisdiction of this Court aggrieved by the order passed by the Executive Director of the respondent-corporation on 30.3.2015 exercising his power of review under Rule 33 of the BHEL Conduct, Discipline & Appeal Rules, 1975, and in removing him from service. 3. Facts, to the limited extent necessary, are that the appellant-writ petitioner was initially appointed as a Temporary Skilled Worker on 5.4.2005. He was promoted as Artisan Grade IV on 5.4.2006, and subsequently to the post of Artisan Grade III on 25.6.2009. While working as Artisan Grade III in BHEL, he appeared for selection, in an All India Competition, for appointment to the post of Supervisor Trainee (S.O. Grade). He was selected and later appointed as such on 24.3.2010. On 14.11.2010, he was caught red handed at ‘Jamal Mohammad College’ at Trichy, while writing an examination for the post of Artisan (Welder Grade), impersonating one Mr. Mayank Kumar. The appellant admitted his act of impersonation. He was later on handed over to the police. An FIR was lodged on 14.11.2010 under Section 416 IPC. Thereafter, departmental proceedings were initiated in which the petitioner was suspended on 14.11.2010 and, considering his misconduct, he was awarded, by order dated 16.11.2013, the penalty of reduction to the post of Artisan Grade-III for a period of three years. 4. While matters stood thus, on a complaint given against him to the Corporate Office of BHEL, it was noticed that the order of punishment, of reversion to the post of Artisan Grade-III, was to a post lower than the post to which the appellant was directly recruited. Consequently, a note was put up, by the AGM (HR) to the General Manager and the Executive Director, that the punishment of reduction in grade, imposed on the appellant, was disproportionately low compared to the gravity of the misconduct; and hence the said case needed to be renewed under Rule 33 of the BHEL Conduct, Discipline & Appeal Rules, 1975. Consequently, a note was put up, by the AGM (HR) to the General Manager and the Executive Director, that the punishment of reduction in grade, imposed on the appellant, was disproportionately low compared to the gravity of the misconduct; and hence the said case needed to be renewed under Rule 33 of the BHEL Conduct, Discipline & Appeal Rules, 1975. The note of the AGM also mentions that the time, provided for review under Rule 33, is six months; however the competent authority could relax the time frame provided for review; and, in the instant case, the Executive Director would be the reviewing authority as well as the competent authority to relax the time frame. 5. The endorsement of the Executive Director (HEEP) dated 3.2.2015, to the note submitted by the AGM (HR), reads as under: - “Agreeing with Corporate Office observations, the case needs to be reviewed considering the magnitude of the offence”. 6. Pursuant thereto, as required under Rule 33 of the BHEL Conduct, Discipline & Appeal Rules, 1975, a notice was issued to the appellant-writ petitioner on 10.2.2015 informing him that the penalty, imposed on him earlier, was proposed to be reviewed and enhanced. In reply thereto the appellant, by his letter dated 18.2.2015, informed the Executive Director that the time limit, stipulated in the rules, for review was six months; and the period of six months had expired. However, an order was passed on 30.3.2015 imposing on him the punishment of removal from service, in substitution of the earlier order of punishment dated 16.11.2013 imposing on him, the punishment of reduction in rank to the post of Artisan Grade-III. 7. Both Mr. A.S. Rawat, learned Senior Counsel appearing on behalf of the appellant, and Mr. V.K. Kohli, learned Senior Counsel appearing on behalf of the respondent-Corporation, agree that an employee cannot be reverted to a post lower than to which he was initially appointed. Mr. 7. Both Mr. A.S. Rawat, learned Senior Counsel appearing on behalf of the appellant, and Mr. V.K. Kohli, learned Senior Counsel appearing on behalf of the respondent-Corporation, agree that an employee cannot be reverted to a post lower than to which he was initially appointed. Mr. A.S. Rawat, learned Senior Counsel, would however contend that, since the appellant had applied to the post of Supervisor (S.O. Grade) through the Department, it cannot be held that the appellant was appointed directly to the post of Supervisor (S.O. Grade); the time limit, specified in Rule 33 to exercise the power of review, is six months; as exercise of the power of review in the present case, commenced with a notice being issued to the appellant- writ petitioner on 10.2.2015, i.e. after a lapse of more than a year, it is only if the Executive Director had exercised his power under Rule 35, and had passed an order condoning the delay, could he thereafter have exercised the power of review under Rule 33; in the present case, no such order was passed by the Executive Director; the pre-requisite, for exercise of power of review under Rule 33, has not been complied with; and, consequently, the order passed by the Executive Director on 30.3.2015 is illegal and necessitates being set aside. 8. On the other hand Mr. 8. On the other hand Mr. V.K. Kohli, learned Senior Counsel appearing on behalf of the respondent-Corporation, would submit that selection to the post of Supervisor (S.O. Grade) was through an All India recruitment process; applications were invited from all eligible candidates in the country; the appellant also applied for the said post; since he was working in the respondent-Corporation, he was required to apply for the said post through the Department; the mere fact, that he applied through the Department, would not make the post of Supervisor (S.O. Grade) a promotional post; consequently, the earlier punishment of reversion as Artisan Grade-III could not have been imposed since the reversion was to a post lower than the post to which the petitioner was initially appointed to; it was, therefore, necessary for the Corporation to review its order to comply with the law; the very fact that the Executive Director had endorsed that the earlier order necessitated review, implied that he had condoned the delay of more than six months for a review to be entertained; and, in the light of the gravity of the charge, this Court would not be swayed by hyper-technicalities, and interfere with the order passed by the Executive Director. 9. We must express our inability to agree with the submission of Mr. A.S. Rawat, learned Senior Counsel, that the post of Supervisor (S.O. Grade) held by the appellant was a promotional post. As noted hereinabove, recruitment to the post of Supervisor (S.O. Grade) was through an All India selection process and all eligible persons, throughout the country, were entitled to apply and participate therein. The mere fact that that the appellant applied through the Department would not render the post of Supervisor (S.O. Grade) as having been filled up by promotion. The appellant was appointed as a Supervisor Trainee (S.O. Grade) by direct recruitment and, consequently, he could not have been reverted to any post lower than to which he was directly appointed i.e. Supervisor (S.O. Grade). To this extent, the note put up to the Executive Director, that reversion of the appellant to a post below which he was initially appointed, does appear to accord with law. It is unnecessary for us to dwell on this aspect any further, since we are in agreement with the submission of Mr. To this extent, the note put up to the Executive Director, that reversion of the appellant to a post below which he was initially appointed, does appear to accord with law. It is unnecessary for us to dwell on this aspect any further, since we are in agreement with the submission of Mr. A.S. Rawat, learned Senior Counsel, that, in the facts and circumstances of the present case, the requirement of Rule 35 of the BHEL Conduct, Discipline & Appeal Rules, 1975 has not been complied with. 10. While the time limit specified to review an order is six months under Rule 33, the power to relax the time frame, and to condone the delay vests in the competent authority under Rule 35. The said Rule reads as under: - “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 authority competent to review the order is, admittedly, the Executive Director, and it is he who exercised the power of review. However the pre-requisite, for exercising the power of review under Rule 33, is for the competent authority, for good and sufficient reasons or if sufficient cause is shown, to extend the time specified in the Rules or to condone the delay. 12. Even if we were to proceed on the premise that the note placed by the AGM (HR) shows good and sufficient reasons/or sufficient cause; and that the Executive Director is not, in such circumstances, obligated to record that good or sufficient reason/ sufficient cause was shown, the said Rule obligates the Executive Director to apply his mind and pass an order extending the time specified in Rule 33 to review an earlier order of punishment, or to condone the delay in entertaining a review beyond the time limit of six months as specified in Rule 33. Admittedly, no such order was passed by the Executive Director. 13. Mr. Admittedly, no such order was passed by the Executive Director. 13. Mr. V.K. Kohli, learned Senior Counsel for the respondent- Corporation, would submit that the very fact that the Executive Director was of the opinion that the order needs to be reviewed would necessitate an inference being drawn that he was satisfied that the delay, in entertaining the review beyond the period of six months, should be condoned. We must express our inability to agree. The note put up by the AGM (HR) only states that the competent authority (Executive Director) can relax the time frame provided for review. The endorsement of the Executive Director does not reflect his having decided to condone the delay for a review to be entertained under Rule 33 of the Rules. As the requirement of Rule 35 for the delay, beyond six months in entertaining a review, being condoned is a pre-requisite for exercise of the power of review under Rule 33 beyond the period of six months, the impugned order is liable to be quashed on the short ground that the requirements of Rule 35 have not been complied with, as the Executive Director had failed to pass an order, either extending the period of time for entertaining a review, or to condone the delay in this regard. 14. With regards the submission of Mr. V.K. Kohli, learned Senior Counsel for the Corporation, that, in light of the gravity of misconduct, this Court should refrain from interference, it must be borne in mind that, for enhancing the punishment imposed earlier on the employee, the requirement of the Rules necessitate strict adherence. As Rule 35 requires the Executive Director to apply his mind, and thereafter either extend the time, or condone the delay, for entertaining a review, it is only if he had done so, could the earlier order of punishment of reversion been reviewed. 15. Viewed from any angle, we are satisfied that the order, impugned in the writ petition, must be set aside. Accordingly, both the orders of learned Single Judge, and the order of punishment impugned in the writ petition, are set aside. Suffice it to make it clear that the order, now passed by us, shall not disable the Executive Director to comply with the requirements of Rule 35; and, thereafter, from taking action in accordance with law. 16. The appeal stands disposed of accordingly. No costs.