1. Heard Mr. Saurabh Lavania, learned Counsel for the petitioner and Mr. Krishna Chandra, learned Counsel for the opposite parties.
2. Being aggrieved by the order of dismissal dated 17.7.1989 passed by the Manager Inspection (Strounzer), Indian Telephone Industries Ltd., Raebareli contained in Annexure No.12 to the writ petition, petitioner-Vikram Singh has filed the present writ petition under Article 226 of the Constitution of India.
3. The facts of the case, in brief, as culled out from the petition at hand, entail as under :
According to the petitioner, while working as a Technical Machinist, Category ''B' in the Indian Telephone Industries Limited, Rae Bareli Unit, he (Vikram Singh) was placed under suspension vide order dated 3.6.1988 on the grounds i.e. (1) non-compliance of the transfer order; and (2) withdrawal of salary during absence without prior intimation, and, on the same day i.e. on 3.6.1988, a charge-sheet was issued to him under the signature of Mr. M.C. Tripathi, who was at that time Deputy Manager Inspection (Strouzer) but signed the same for "Manager Inspection (Strouzer)". On receipt of the charge-sheet, the petitioner has sent his reply to the charge-sheet on 26.7.1988 to the Manager Inspection (Strouzer), Indian Telephone Industries Ltd., Raebareli.
4. It has been stated that during the course of enquiry, the petitioner fell sick from 6.2.1989 to 13.2.1989 and his condition deteriorated in between 10.2.1998 to 12.2.1989. His sickness was informed to the Inquiry Officer and made request to the Inquiry Officer to give opportunity to produce defence evidence after recovery of sickness but the Inquiry Officer, after examining M.K. Shukla, D.C. Bansal, C.C. Jha and C.P. Shukla as witnesses, closed the inquiry proceedings on 11.2.1989. Thereafter, the Inquiry Officer, without affording any opportunity of hearing to the petitioner, submitted its report. On the basis of the said report, opposite party No.2-Manager Inspection (Strouzer), Indian Telephone Industries Ltd., Raebareli, dismissed the petitioner from services vide order dated 17.7.1989. Feeling aggrieved, the present writ petition has been filed by the petitioner.
5. Submission of learned Counsel for the petitioner Mr. Saurabh Lavania is that Para 16:3 of the Standing Order, the Director alone could pass the major punishment of dismissal but in the present case, the Manager Inspection (Strouzer), Indian Telephone Industries Ltd., Raebareli, who is not vested with the power to award/inflict major punishment, has passed the order of dismissal. His submission is that in any case, it was the Director, his Deputy or representative or an officer authorized by the Director, is competent to pass punishment order against the petitioner whereas the opposite party No.2 is neither the deputy of the Director or representative nor has been authorized by the Director, therefore, the opposite party No.2 had exceeded its jurisdiction while passing the order of dismissal.
6. Elaborating his submission, Mr. Lavania has submitted that as per para 1:2 of the Standing Order read with para 16:2 (b), any officer of opposite party No.1-the Director could conduct the inquiry against the petitioner but in the present case, inquiry has been entrusted to be conducted by an Advocate. Therefore, dismissal order on the basis of report submitted by an incompetent inquiry officer is illegal and arbitrary.
7. Mr. Lavania has further submitted that impugned order of dismissal has been passed without considering reply to the charge-sheet tendered by the petitioner and also without affording opportunity of hearing to the petitioner as the Inquiry Officer had fixed 11.2.1989 only for Management evidence. He submitted that if the evidence of Management had been completed, then the Inquiry Officer ought to have fixed a date for defence evidence but in utter disregard of the principles of natural justice, the proceeding of evidence were closed by the inquiry officer on 11.2.1989 and, thereafter, no date was fixed for the evidence of the petitioner and personal hearing after closure of the prosecution witness.
8. Learned Counsel for the petitioner further submitted that the Disciplinary Authority just agreed with the Inquiry Report and passed a non-speaking order without giving any reason. Therefore, the impugned order of dismissal is liable to be quashed and the writ petition deserves to be allowed.
9. Counsel for the petitioner has submitted that the missing of the service record as well as record of departmental proceeding in the office of opposite parties is a serious matter and to this effect, department has not proceeded against responsible officer, therefore, action against the erring officer/official ought to be taken.
10. To strengthen his arguments, Mr. Lavania has placed reliance upon Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Ltd. : 2003 (21) LCD 610; Roop Singh Negi Vs. Punjab National Bank and others : 2009 (2) SCC 570; M.M. Siddiqui Vs. State of U.P. and others : 2015 (33) LCD 836; Moti Ram Vs. State of U.P. and others : 2013 (31) LCD 1319; Baij Nath Saroj Vs. State of U.P. and others : 2014 (32) LCD 594; Satish Chandra Shukla Vs. State Cadre Authority and others : 2014 (32) LCD 1808; Kaptan Singh Vs. State of U.P. & another : 2014 (4) ALJ 440; G. Vallikumari Vs. Andhra Education Society and others : 2010 (2) SCC 497; Chairman, Disciplinary Authority Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and others : 2009 (1) SCC (L&S) 806; Shiv Kumar Vs. State of U.P. and others : 2013 (31) LCD 686; and Mahaveer Prasad Verma Vs. Central Administrative Tribunal, Lucknow and others : 2013 (31) LCD 351.
11. Per contra, Mr. Krishna Chandra, learned Counsel for the respondent submits that petitioner's services were dismissed vide order dated 17.7.1989 after conducting a domestic enquiry against him. In the inquiry, the petitioner had initially participated but he had neither submitted his written explanation to the charge-sheet dated 3.6.1988 before the competent authority nor had he submitted any explanation/ defence before the Inquiry Officer. His submission is that the departmental inquiry was conducted against the petitioner to prove the charges leveled against him in conformity with the principle of natural justice. Thus, punishment of dismissal awarded to the petitioner is commensurate to the misconduct committed by the petitioner and as such, the writ petition is liable to be dismissed.
12. Mr. Chandra has submitted that charge with regard to non-joining at transferred place of posting has been proved and the Inquiry Officer gave cogent finding on the basis of evidences available on record, therefore, it cannot be said that the findings of the enquiry officer were perverse. In support of his submission, he has relied upon General Manager (P), Punjab & Sind Bank and others Vs. Daya Singh : (2010) 11 SCC 233, Director General of Police and others Vs. R. Janibasha : (1998) 9 SCC 490, State of T.N. Vs. Thiru K.V. Perumal : (1996) 5 SCC 474, Principal Secretary, Govt. of A.P. and another Vs. M. Adinarayana : (2004) 12 SCC 579, U.P. SRTC Vs. Mitthu Singh : (2006) 7 SCC 180, State Bank of India and others Vs. Ramesh Dinkar Punde : 2006 (7) SCC 212, Chairman, LIC of India and others Vs. A. Masilamani : 2013 (31) LCD 30, and Mayank Agarwal Vs. Bareilly Kshetriya Gramin Bank and others : (2013) 1 UPLBEC 633.
13. So far as the plea of the petitioner that an Advocate cannot be appointed as an inquiry officer, Mr. Chandra has placed reliance upon the judgment of the Apex Court in Indian Telephone Industries Ltd. Vs. Devi Shankar Kumar Shukla : (1997) 11 SCC 193 and submitted that in Devi Shankar Kumar Shukla (Supra), the Apex Court, upon taking into consideration the Standing Order 16 (2) (b), has held that since Standing Order provides for appointment of a person other than from the Security Department as Enquiry Officer, therefore, such a provision does not bar appointment of an outsider as Inquiry Officer. Thus, the plea of the petitioner in this regard has no substance.
14. Mr. Chandra has further contended that the petitioner has filed writ petition against dismissal order dated 17.7.1989 in the year 1990 and notice on behalf of ITI Limited was received by the Standing Counsel on 18.11.2008 i.e. after a lapse of about 18 years. Due to long lapse of time, original enquiry file and personal file of the petitioner could not be traced despite sincere efforts. Moreover, the burden is on the petitioner to prove what he alleges in the writ petition and the Court cannot be persuaded to draw adverse inference against the Department on presumptions. In support of his submission, he relied upon the case reported in (2008) 10 SCC 115 : C. Jacob Vs. Director of Geology and Mining and another and Poonam Rani alias Poonam Vs. State of Haryana and another : 2012 (6) SCC 596.
15. I have heard learned Counsel for the parties and perused the record.
16. It is not in dispute that services of the petitioner were governed by Standing Order for M/S. ITI Ltd., Raebareli Plant, certified under the Industrial Employment (Standing Orders) Act, 1946. Para 1:2 of the Standing Order provides 'Domestic Enquiry' and it means an enquiry held by the Management to investigate into any charge of misconduct levelled against any employee. Para 1:4 provides that "Manager" means Factory Manager in terms of factory Act, 1948 or any officer or officers authorised by the Manager to perform some specific function of the Manager. Para 15 of the Standing Order deals with punishment, which reads as under :
"15. Punishment The following minor and major punishment may be awarded by the Manager or any person duly aurhorized by him for good adequate reason.
1. MINOR PUNISHMENT
1. Censure or Reprimand
1. A censure/reprimand/warning is an admonition given to an employee by an officer of the Company. All censures/reprimands/warnings will be communicated in writing to the employee concerned. An employee is liable to be dismissed if he has been censure reprimanded/warned three times a year.
2. Fine which may be imposed subject to the provisions of the Payment of Wages Act and Rules.
3. Suspension without wages for a period not exceeding four days.
4. Postponement of annual increment by three months or less with or without affecting the date of increment.
2. MAJOR PUNISHMENT
1. Postponement of annual increment for more than three months but not more than one year, with or without effecting the date of increment.
2. Reduction in grade or reversion or demotion to a lower grade.
3. Removal or dismissal from service for misconduct without notice or any payment or compensation in lieu of notice whatsoever."
17. Para 16 deals with procedure for punishment, which is reproduced as under :
PROCEDURE FOR PUNISHMENT
1. For minor punishment listed in 15.1 the Manager or persons duly authorised by him, may take such action as may be necessary after giving an opportunity to the employee concerned to explain in writing.
2. For major punishments listed in para 15.2 before the disciplinary action amounting to postponement of annual increment for more than three months or reduction in grade or reversion or demotion to a lower grade or dismissal is taken, action on the following lines will be taken by the Manager.
a) The Manager shall frame a charge sheet against the employee in writing setting out the allegations and the alleged misconduct. The employee shall be given an opportunity of explaining his conduct within a specified time limit.
b) On receipt of the explanation of the employee or on expiry of the time limit whichever is earlier or under special circumstances at the time of issuing the charge sheet, the Manager shall appoint an Enquiry Officer or constitute an Enquiry Committee consisting of one or more than one person, other than from Security Department. The Enquiry Officer/Enquiry Committee shall conduct the enquiry as speedily as possible. The employee shall be all access to such documents, if any, which the management proposes to rely upon in support of allegations and produce before the Enquiry Officer/Enquiry Committee. The employee shall also be allowed to produce such evidence in his defence as may be necessary and relevant subject to the approval of the Enquiry Officer/Enquiry Committee. The employee shall also be allowed to produce such evidence in his defence as may be necessary and relevant subject to the approval of the Enquiry Officer/Enquiry Committee. The reasons for not admitting a particular evidence sought to be produced by the workman shall be recorded by the Enquiry Officer/Enquiry Committee as the case may be. The employee shall be entitled to be assisted by any other employee of the Establishment from any of its departments other than Personnel, Administration and Security Department. However, an employee may be represented by an Advocate if the Presenting Officer appointed is a Legal practitioner. (Amended vide order dt. 4.7.96)
c) The Manager shall be entitled to appoint a Presenting Officer to present the Management's case before the Enquiry Officer/Enquiry Committee. The Presenting Officer so appointed shall be an employee of the company. However, in cases investigated by the Central Bureau of the Investigation/Special Police establishment an Officer of the Central Bureau of the Investigation or Special Police Establishment can also be appointed as Presenting Officer.
d) On receipt of the finding and/or recommendations of the Enquiry Officer/Enquiry Committee, the Manager may either except or disagree with the findings and/or recommendations.Whenever the Manager disagrees with the findings and/or recommendations, he will record his reason for such disagreement, if the evidence on record is sufficient for the purpose. If not, he may conduct such further enquiry or refer it for re-enquiry as he may consider necessary. The Manager shall then decide the punishment to be awarded. In awarding the punishment, the Manager shall take into account the gravity of misconduct, the previous record, if any, of the workman and any other extenuating or agravating circumstances that may exist. The decision of the Manager regarding the punishment shall be communicated to employee in writing. A copy of enquiry report may be supplied to the workman if requested. In case where the manager has disagreed with the findings and/or recommendations of the Enquiry Committee his reasons for such disagreement may also be communicated to the workman alongwith the findings of the Enquiry Committee. The workman shall also be supplied with copies of statements and documents made/admitted before the Enquiry Committee in case the punishment is one of dismissal. (Amended vide order dt.4.7.96)............
j) If on the conclusion of the enquiry the workman has been found guilty of the charges framed against him and it is considered that an order of dismissal or discharge or fine or stoppage of annual increment or reduction of rank would meet the ends of justice, the Manager shall pass an order accordingly........"
18. In the present case, admittedly, the petitioner was placed under suspension vide order dated 28.1.1988. Thereafter, a charge-sheet dated 3.6.1988 under the signature of Deputy Manager (Strouzer) for Manager Inspection (Strouzer) was served upon the petitioner on 23.7.1988. According to the petitioner, the Deputy Manager (Strouzer) was not the competent authority to issue charge-sheet as in view of Standing Order, the Manager was the competent authority, therefore, issuance of charge-sheet by the incompetent authority is illegal. In this regard, Counsel for the respondent Mr. Krishna Chandra has placed an Office Order dated 29.3.1981, which deals with the delegation of powers by the disciplinary authority.
19. A perusal of the Office Order dated 29.3.1981 reveals that the concerned authority for misconduct under Standing Order 14-2, 3, 4, 6, 24, 25, 28, 29, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 44, 54 or any other misconduct as also disciplinary case coming under jurisdiction of two or more authority was Administrative Officer/Manager. It is not in dispute that the petitioner was charge-sheeted for the act of misconduct as per clauses 14 (1), (12), (21), (31), (53) & (54) and at the time of issuing charge-sheet, the Administrative Officer of the petitioner was Deputy Manager (Strouzer). In these backgrounds, if the Deputy Manager (Strouzer) has issued the charge-sheet on behalf of Manager (Inspection) Strouzer, then, the plea of the petitioner that the charge-sheet was issued by an incompetent authority, has no substance and is hereby rejected.
20. The second plea of the petitioner is that the Inquiry Officer so appointed was an Advocate, which is contrary to the Standing Order. In this context, it would be apt to mention that the Apex Court in Devi Shankar Kumar Shukla (supra), after noting Standing Order 16 (2) (b), observed as under :
"4. It is clear from the above provision in the Standing Order that the requirement is to appoint an Enquiry Officer who is not from the Security Department. There is no other prohibition about choice of the person to be appointed Enquiry Officer in the above provision. The reason for excluding a person belonging to the Security Department is obvious. Such a person who is in the Security Department may have some interest in the successful conclusion of the domestic inquiry against the delinquent employee. His exclusion, therefore, is to eliminate the likelihood of any bias. Such a provision cannot be construed to mean that a person who is not even an employee in any other department and being an outsider having no interest in the outcome of the domestic inquiry is also to be excluded. The view taken by the High Court is, therefore, untenable."
21. Thus, in view of the aforesaid legal proposition, this Court came to the conclusion that the plea of the petitioner that outsider like an Advocate cannot be appointed as Enquiry Officer and only officer of the department can be appointed as Enquiry Officer, has also no substance and accordingly, this plea of the learned Counsel for the petitioner cannot be accepted.
22. So far as the plea of the petitioner that the impugned order of dismissal is violative of natural justice as no date, time and place has been fixed by the Enquiry Officer nor the reply to the charge-sheet has been placed before the Enquiry Officer, is concerned, a perusal of inquiry report clearly indicates that a notice dated 30.6.1988 was sent to the petitioner-Sri Vikram Singh through C.I.S.F. with the direction to appear before the enquiry proceedings on 9.7.1988 at 11 A.M. in the administrative building of the factory, which was duly served upon him but the petitioner did not turn up on the date fixed. Subsequently, another notice dated 12.7.1988 was sent to him through C.I.S.F. with the direction to appear on 23.7.1988 at 3.00 P.M. in the administrative building of the factory before the enquiry proceeding, which was also served upon the petitioner. In pursuance of notice dated 12.7.1988, petitioner-Sri Vikram Singh appeared in person before the enquiry officer, who served the charge-sheet to the petitioner. The charge-sheet was red over and explained to the petitioner, who denied the charges levelled against him. Thereafter, on 13.8.1988, Mr. A.K. Mishra was permitted to represent the case on behalf of the petitioner. However, on the application for the charge-sheeted employee Mr. A.K. Srivastava was allowed to represent the case on behalf of the employee concerned in place of Mr. A.K. Mishra. The presenting officer submitted the photocopies of five documents with a list, the copies of which were given to the employee concerned on 22.10.1988. On 1.2.1989, the enquiry was adjourned on the request of the petitioner and the next date 11.2.1989 at 11.00 A.M. was fixed regarding which a notice dated 1.2.1989 was also sent to the petitioner through C.I.S.F. but neither the petitioner nor his representative Mr. A.K. Srivastava turned up on the date fixed i.e. 11.2.1989. In these backgrounds, the enquiry was proceeded ex parte. It has also been indicated in the enquiry report that the petitioner did not give any reply of the charges, nor any evidence was led on behalf of the defence. In such view of the matter, it is purely findings of fact that have been recorded by the Enquiry Officer, which cannot be re-appreciated in writ jurisdiction.
23. It is a well settled law that the High Court in exercise of its powers under Articles 226/227 of the Constitution of India shall not venture into re-appreciation of the evidence. Reference may be made in this regard to a recent judgment rendered by the Hon'ble Apex Court in the case of Union of India Vs. P. Gunasekaran 2015 (2) SCC 610. Relevant paragraphs 19, 20 and 21 of the aforesaid judgment are quoted as under:-
"19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to reappreciate the evidence in exercise of its jurisdiction under Articles 226/227 of the Constitution of India.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.
21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749, Union of India and another v. G. Ganayutham, 1997 (7) SCC 463, Om Kumar and others v. Union of India, 2001 (2) SCC 386, Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another, 2007 (4) SCC 669, Coal India Limited and another v. Mukul Kumar Choudhuri and others, 2009 (15) SCC 620 and the recent one in Chennai Metropolitan Water Supply (supra)."
24. In view of the aforesaid legal proposition and considering the facts and circumstances of the case, in my opinion, when the punishing authority agrees with the findings of the Inquiry Officer and accepts the reasons given by him in support of such findings, then it is not imperative upon the punishing authority to again discuss evidence. Therefore, the question of non-compliance with the principle of natural justice does not arise. It is also incorrect to say that the impugned order is not a speaking order.
25. Insofar as plea of the petitioner with regards to loss/destruction of record of disciplinary proceedings is concerned, it is relevant to add that in the case of C. Jacob V. Director of Geology and Mining and another : (2008) 10 SCC 115, the Apex Court in paragraphs 15 & 16 has held as under:
15. The present case is a typical example of `representation and relief'. The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9.4.2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the appellant has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18.7.1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned Single Judge could find fault with the department of Mines and Geology, for failing to prove that a termination made in 1982, was preceded by an enquiry in a proceedings initiated after 22 years, when the department in which appellant had worked had been wound up as long back as 1983 itself and the new department had no records of his service.
16.The petitioner neither produced the order of termination, nor disclosed whether the termination was by way of dismissal, removal, compulsory retirement or whether it was a case of voluntary retirement or resignation or abandonment. He significantly and conveniently, produced only the first sheet of a show cause notice dated 8.7.1982 and failed to produce the second or subsequent sheets of the said show cause notice in spite being called upon to produce the same. There was absolutely no material to show that the termination was not preceded by an enquiry. When a person approaches a court after two decades after termination, the burden would be on him to prove what he alleges. The learned Single Judge dealt with the matter as if he the appellant had approached the court immediately after the termination. All this happened, because of grant of an innocuous prayer to `consider' a representation relating to a stale issue."
26. Thus, the loss/destruction of record pertains to disciplinary proceeding would also not help the petitioner in any manner as it is for the petitioner to establish that how each and every document was relevant to the charges and what prejudice has been caused to him. No where there is averment in the pleading about prejudice caused to the petitioner due to loss of certain papers. Therefore, it can easily be inferred that there is no violation of principle of natural justice.
27. For the reasons aforesaid, no interference under Article 226 of the Constitution of India is made out.
28. The writ petition is, accordingly, dismissed.
Order Date : 12 July, 2016 Ajit/-