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2019 DIGILAW 1124 (JHR)

Bindeshwari Prasad v. Hindustan Copper Limited

2019-06-13

SANJAY KUMAR DWIVEDI

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ORDER : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Saurabh Aran, learned counsel for the petitioner and Mr. A.K. Das, learned counsel for the respondents. 2. The petitioner has preferred this writ petition for quashing the termination order dated 13.06.2006 and also for quashing the appellate order dated 05.05.2008 passed by the appellant authority. The petitioner was working as Senior Mechanical Engineer in Hindustan Copper Limited and suspended from the service on 11.06.2005 in contemplation of departmental proceeding with regard to unauthorized occupation of Bungalow No. 4(E). Memorandum of charges was issued on 09.07.2005 and served upon the petitioner on 22.07.2005 and two charges has been levelled against the petitioner (i) that he retained Bungalow No. 4(E) which was allotted to him temporarily and not handed over the possession of the same after expiry of temporary allotment period and (ii) the petitioner had illegally taken electric connection by hooking from the overhead line to the aforesaid Bungalow No. 4(E). The management held that the aforesaid act of the petitioner contravenes the Rules and constitutes misconduct. After receipt of memorandum of charges on 22.07.2005, the petitioner filed detailed reply and denied the charges levelled against him vide his reply dated 05.08.2005. The departmental proceeding was initiated against the petitioner and the inquiry officer after examining the documents and witnesses on behalf of the management as well as the petitioner came to the conclusion that the charges against petitioner is proved. The, disciplinary authority after having inquiry report terminated the service of the petitioner with effect from 13.06.2006, the petitioner preferred an appeal before the appellate authority and the appeal has also been dismissed on 05.05.2008. 3. Mr. Saurabh Arun, learned counsel for the petitioner further submits that Bungalow No. 4(E) was allotted to him on the request of the petitioner for the purpose of marriage of his daughter for three days' for which Rs. 1500/- rent was fixed. Learned counsel for the petitioner assailed the impugned order on the ground that the authority have not considered the material on record and merely on the ground that the Inquiry Officer is came to the conclusion that the charges have been proved, the petitioner was terminated just before one month of his retirement. He further argues that the punishment order is not commensurate with the charges. He further argues that the punishment order is not commensurate with the charges. He further argues that the termination order speaks that his past act has also taken into consideration in terminating his service. But he has not been noticed for any other conduct of the past. To substantiate his argument he relied on the judgment reported in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand reported in (2010) 11 SCC 278 : 2010 (3) JLJR(SC) 197 paragraphs no. 23, 28 and 32 which reads as under 23. When it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, the employer is duty bound to act in consonance with the rules of natural justice -Managing Director, Uttar Pradesh Warehousing Corporation and another v. Vijay Narayan Bajpayee. 28. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment 32. The ratio of Manche Gowda's case is that the past adverse record of the delinquent employee cannot be considered at the stage of imposing punishment unless he is put to notice and given an opportunity to explain his position. In the show-cause notice issued to the appellant, it was not disclosed that the High Court had considered the un-communicated adverse remarks recorded in his Annual Confidential Reports for the purpose of forming an opinion that he should be dismissed from service. In the show-cause notice issued to the appellant, it was not disclosed that the High Court had considered the un-communicated adverse remarks recorded in his Annual Confidential Reports for the purpose of forming an opinion that he should be dismissed from service. If the appellant had been told about this and given an opportunity to have his say against the un-communicated adverse remarks, he could have offered appropriate explanation and tried to convince the concerned authority that the remarks were either unfounded or were totally unjustified. He would have surely pleaded that after 1996-1997 no adverse comments were made about his work, conduct, behaviour and integrity and he had earned good reports (even the Division Bench of the High Court had noted that his confidential report for the year 2002-2003 was good on all counts). It is thus clear that the appellant was seriously prejudiced on account of non-disclosure of the fact that while recommending his dismissal from service, the High Court had taken into consideration un-communicated adverse remarks recorded in his four Annual Confidential Reports. The ratio laid down in this judgment is that the employer is not only required to make the employee aware of the specific imputations of misconduct but also disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. Next, Mr. Arun submits that the quantum of punishment is not commensurate with the charges. To substantiate his argument he relied upon the judgment of S.R. Tiwari vs. Union of India and Another reported in (2013) 6 SCC 602 paragraph 24 which reads as under: "24. The question of interference on the quantum of punishment, has been considered by this Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386 , this Court observed as under: "25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. 27. In the present case, the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (Emphasis supplied) (See also: Union of India v G. Ganayutham, State of Uttar Pradesh & Ors. v. J.P. Saraswat Chandra Kumar Chopra v. Union of India & Ors., and Patna High Court v Pandey Gajendra Prasad & Ors.). On this grounds he has assailed the impugned order and argues that the termination order is not sustainable in the eyes of law and fit to be quashed. Mr. Arun further argues that the appellate authority has virtually adopted the note of the disciplinary authority which shows that there is non-application of mind by the appellate Authority. 4. Mr. A.K. Das, learned counsel appearing for the respondents submits that the misconduct of the petitioner is serious in nature and this petitioner has earlier also in the year 1998 charge-sheeted for the same misconduct as he had at that time not vacated quarter and punished. The petitioner was also terminated against that order. The petitioner moved before this Court and this Court remanded the matter back to the authorities concerned for quashing the termination order and directed to decide the quantum afresh. Thereafter, the petitioner was reconstituted with lesser punishment and this is the second misconduct. Mr. Das submits that there is no procedural irregularities in the inquiry proceeding. The petitioner has been provided the inquiry report and he has received the same but he refused to acknowledge the receipt. Mr. Das further argues that the second misconduct of the petitioner is also serious in nature as he has tried to get the electricity connection by way of illegal hooking. Mr. The petitioner has been provided the inquiry report and he has received the same but he refused to acknowledge the receipt. Mr. Das further argues that the second misconduct of the petitioner is also serious in nature as he has tried to get the electricity connection by way of illegal hooking. Mr. Das to substantiate his argument relied in the case of Union of India vs. Naman Singh Shekhawat reported in (2008) 4 SCC 285 on paragraph nos. 29 and 30 which stipulates as under:- "29. There cannot be any doubt whatsoever, as Ms been submitted by the learned Additional Solicitor General, that initiation of departmental proceeding is permissible even after the judgment of acquittal is recorded by the criminal court. But the same would not mean that a proceeding would be initiated only because it is lawful to do so. A departmental proceeding could be initiated if the department intended to adduce any evidence which is in its power and possession to prove the charges against the delinquent officer. Such a proceeding must be initiated bona fide. The action of the authority even in this behalf must be reasonable and fair. 30. Reliance has been placed on T.N.C.S. Corporation Ltd. and others vs. K. Meerabai: (2006) 2 SCC 255 wherein this court opined:- "32. The scope of disciplinary proceedings and the scope of criminal proceedings in a Court of Criminal law are quite distinct, exclusive and independent of each other. The prosecution proceedings launched against the respondent herein were in respect of offences punishable under Sections 409 and 477-A I.P.C., whereas the Departmental Proceedings as initiated against her were in respect of the charges of misappropriation and other fraudulent practices such as deliberate omission to bring into accounts the stock received showing bogus issues in the records, falsification of accounts, submission of defective accounts, tampering of records, manipulation of accounts and records etc. Thus, the respondent herein was proceeded against for quite different charges and on different sets of facts before the Court of Chief Judicial Magistrate, on the one hand, and before the Departmental Enquiry on the other." It was, thus, a case where the charges were different. 5. Thus, the respondent herein was proceeded against for quite different charges and on different sets of facts before the Court of Chief Judicial Magistrate, on the one hand, and before the Departmental Enquiry on the other." It was, thus, a case where the charges were different. 5. Having heard learned counsel for the parties, this Court finds that the petitioner was not having any reason to continue in the quarter after the period is completed and the conduct of the petitioner to take electricity connection by way of hooking is also deplorable. Taking into account that the petitioner was due to retired on 08.07.2006 and he was terminated from the service on 13.06.2006 i.e. one month prior of his retirement, this Court finds that the punishment is not commensurate with the charges. This Court is conscious of the fact cited in the judicial review of the Hon'ble Apex Court but it is desirable that the punishment must be commensurate with the charges, accordingly, the impugned orders dated 13.06.2006 and 05.05.2008 are, hereby, set-aside. Further, the petitioner will not be entitled for any back wages for the period of termination. The management will recover the penal charges from the petitioner for the period he occupied the quarter with interest. 6. With the above directions and observations, this writ petition is allowed.