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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3500 OF 2015
PETITIONERS :- 1. Additional D.G.O.F. and Member, (Appellate
Authority), Government of India, Ministry of
Defence, Ordnance Factory Board, 10-A,
Shaheed K. Bose Road, Kolkata - 700 001.
2. The General Manager, (Disciplinary
Authority), Ordnance Factory, Ambazari,
Nagpur.
...VERSUS...
\
RESPONDENT :- Dnyaneshwar Baburao Bhende, r/o Plot
No.12, Dnyaneshwar Layout, Near Datta
Wadi, Ambazari Road, Nagpur 440 023.
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Mr.U.M.Aurangabadkar, A.S.G.I. for the petitioners.
Mr. Y.R.Sonkusare, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 25.07.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this writ petition, the petitioners challenge the order of the Central Administrative Tribunal dated 17/10/2014 allowing the original application filed by the respondent and setting aside the order imposing the punishment of 'censure' on the respondent. ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:34:48 :::
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2. The respondent was working as a supervisor in the petitioners-ordnance factory at Nagpur when he was served with a charge-sheet dated 28/08/2006 under Rule 14 of the Central Civil Services (CC & A) Rules. According to the petitioners, the respondent had refused to carry out the work of recovery as instructed by the in-charge of the recovery group on 06/06/2006 and did not carry out the above work despite being advised by the communication dated 07/07/2006. According to the petitioners, the refusal on the part of the respondent to perform the work assigned to him by his superior would amount to gross misconduct that was violative of the provisions of rule 3 of the Rules of 1964. According to the petitioners, it was necessary for the respondent to maintain devotion to his duties and not do any act that was unbecoming of a government servant. The respondent denied the charge that was levelled against him. Since the reply of the respondent did not find favour with the petitioners, a departmental enquiry was conducted against the respondent. The enquiry officer vide report dated 05/02/2009 held that the charge against the respondent was not proved. The said finding was recorded mainly on the basis that the respondent had actually performed the work which he had earlier stated that was not his job. After the disciplinary authority considered the enquiry report and did not agree with the findings recorded by the enquiry officer, a dissenting note was prepared by the disciplinary authority on 21/02/2009. The dissenting note was served on the ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:34:48 ::: 2507WP3500.15-Judgment 3/8 respondent and an opportunity was granted to the respondent to give his say on the dissenting note. The respondent submitted the reply and pointed out as to why he did not agree with the dissenting note. The disciplinary authority however, after considering the reply filed by the respondent, came to a conclusion that the respondent had committed the misconduct of not following the lawful orders of his superiors/in- charge. The minor penalty of "censure" was imposed upon the respondent. The respondent challenged the order imposing the penalty of "censure" before the Central Administrative Tribunal. The Central Administrative Tribunal on an appreciation of the material on record, held that the disciplinary authority could not have held that the respondent had refused to carry out the work assigned by the superior to him. The tribunal held that the enquiry officer had rightly come to the conclusion that the charge against the respondent was not established. The tribunal further held that the order was liable to be set aside as an opportunity of hearing was not granted to the respondent, before the disciplinary authority passed the order of "censure" after dissenting with the opinion/finding of the enquiry officer. In the result, the Central Administrative Tribunal allowed the original application filed by the respondent and set aside the order imposing penalty on the respondent. The order of the Central Administrative Tribunal is challenged by the petitioners in the instant petition. ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:34:48 :::
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3. Shri Aurangabadkar, the learned Assistant Solicitor General of India, submitted that the tribunal was not justified in holding that an opportunity was not granted to the respondent by the disciplinary authority while disagreeing with the findings of the enquiry officer. It is submitted that the disciplinary authority had prepared a dissenting note on 21/02/2009 after disagreeing with the findings of the enquiry officer and had served the dissenting note dated 21/02/2009 on the respondent, with a view to grant an opportunity to the respondent to give his say. It is stated that after the service of the dissenting note on the respondent, the respondent submitted his reply/representation dated 08/03/2009. It is submitted that after giving thought to the reply/representation made by the respondent, the disciplinary authority had passed the order of "censure". It is submitted that the tribunal has exceeded its jurisdiction in reversing the finding of the disciplinary authority after scanning the report of the enquiry officer and the dissenting note of the disciplinary authority. It is submitted that after the disciplinary authority granted an opportunity to the respondent to give his say on the dissenting note, the tribunal had no jurisdiction to sit in appeal over the findings recorded by the disciplinary authority. It is submitted that the disciplinary authority has prepared an exhaustive dissenting note dated 21/02/2009 and cogent reasons are recorded by the disciplinary authority for disagreeing with the findings of the enquiry officer. It is stated that if that is so, it would ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:34:48 ::: 2507WP3500.15-Judgment 5/8 not be for the tribunal to sit in appeal over the findings recorded by the disciplinary authority. It is submitted that the tribunal has wrongly reversed the findings of the disciplinary authority mainly by considering that the respondent had performed the job that was entrusted to him after some time, though initially he had given in writing that the job did not pertain to him and had refused to do the same. It is stated that in the circumstances of the case, the impugned order is liable to be set aside.
4. Shri Sonkusare, the learned counsel for the respondent, has supported the order of the tribunal. It is submitted that the respondent was unnecessarily made a scapegoat by the in-charge head of the recovery group. It is submitted that when the respondent gave in writing that the job did not pertain to him, there was no endorsement in respect of the said job in the name of the respondent. It is submitted that when the respondent had actually performed the job after some time, the disciplinary authority should have taken a liberal view just like the view expressed by the enquiry officer. It is stated that the enquiry officer had seen the demeanour of the respondent and had found that the respondent was entitled to be exonerated. It is submitted that in the circumstances of the case, the order of "censure" was not warranted. The learned counsel sought for the dismissal of the writ petition. ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:34:48 :::
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5. On hearing the learned counsel for the parties and on a perusal of the impugned order, it appears that the tribunal was not justified in setting aside the order of punishment imposed upon the respondent. While the respondent was working as supervisor, he was asked to perform the work of recovery of endorsement/entry in PC/recovery ledger for GPF and some other work. The respondent however gave in writing on a chit that the work did not pertain to his allocation and the allotment of the work to him was in addition to his job which was done by him from time to time. The petitioners considered that by the said chit, the respondent had refused to do the work that was assigned to him. According to the petitioners, the action on the part of the respondent of writing on a chit that the job assigned to him did not pertain to his duties was unbecoming of a government servant. Since according to the petitioners, the said action on the part of the respondent showed that the respondent did not have any devotion to his duties, after considering the reply filed by the respondent to the charge-sheet, the petitioners conducted a departmental enquiry against the respondent. The enquiry officer held that the charge of refusal to do the work assigned to him by his superior was not established against the respondent as the respondent had actually performed the job that was assigned to him some time later. The disciplinary authority considered the report of the enquiry officer and did not agree with the findings of the enquiry officer. According to ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:34:48 ::: 2507WP3500.15-Judgment 7/8 the disciplinary authority, the action on the part of the respondent of writing on a chit of paper that the job assigned to him did not pertain to his regular duties would mean that the respondent had refused to carry out the work assigned to him by his superior. Merely because the respondent had performed a part of the job some time later, the disciplinary authority held that it could not be said that the charge of refusal to carry out the work assigned to him by his superior was not established. The disciplinary authority prepared a dissenting note on 21/02/2009 and served the same on the respondent with a view to grant an opportunity to the respondent to give his say on the same. The respondent submitted his representation/reply dated 08/03/2009 to the disciplinary authority. After considering the reply filed by the respondent, the disciplinary authority had imposed the punishment of 'censure' on the respondent. In the circumstances of the case, it cannot be said that an opportunity was not granted to the respondent before the disciplinary authority passed the order of 'censure' against the respondent, after disagreeing with the findings recorded by the enquiry officer. Adequate opportunity was granted to the respondent before the order of 'censure' was passed against him and in the circumstances of the case, the tribunal was not justified in holding that the order of 'censure' was liable to be quashed as an opportunity of hearing was not granted to the respondent before the disciplinary authority dissented with the findings of the enquiry officer and passed the order imposing ::: Uploaded on - 27/07/2017 ::: Downloaded on - 08/08/2017 01:34:48 ::: 2507WP3500.15-Judgment 8/8 penalty. The tribunal was also not justified in re-appreciating the material on record for holding that the disciplinary authority was not justified in dissenting with the findings recorded by the enquiry officer. We have perused the dissenting note. Cogent reasons are recorded by the disciplinary authority for disagreeing with the findings recorded by the enquiry officer. It is rightly submitted on behalf of the petitioner that the disciplinary authority could not have sat in appeal over the findings recorded by the disciplinary authority while considering the original application filed by the respondent. In the circumstances of the case, the original application filed by the respondent was liable to be dismissed.
6. Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order of the Central Administrative Tribunal is quashed and set aside. The original application filed by the respondent stands dismissed. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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