Ramesh Chandra Gautam vs State Of U.P. & Others
2018 Latest Caselaw 1384 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on  18.01.2018
 
Delivered on 06.07.2018
 
Court No. - 34
 

 
Case :- WRIT - A No. - 33480 of 1999
 

 
Petitioner :- Ramesh Chandra Gautam
 
Respondent :- State of U.P. and others 
 
Counsel for Petitioner :- Amit Saxena
 
Counsel for Respondent :- C.S.C., Ramesh Upadhayay
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri P.N. Saxena, learned Senior Advocate, assisted by Sri Amit Saxena, Advocate, for petitioner and learned Standing Counsel for respondents.

2. This writ petition under Article 226 of Constitution has been filed by sole petitioner, Ramesh Chandra Gautam, assailing order dated 01.04.1999 and seeking a writ of certiorari for quashing the same. The said order has been passed by Managing Director, Central Dairy Farm, U.P. Pashudhan Udyog Nigam Limited, Aligarh (hereinafter referred to as "Nigam") imposing punishment of dismissal upon petitioner.

3. The facts, in brief, giving rise to present Writ Petition are that Central Dairy Farm, Uttar Pradesh Pashudhan Nigam Limited is State Government Company registered under Companies Act, 1956 (hereinafter referred to as "Act, 1956") and is an instrumentality of State, hence it is 'State' within the meaning of Article 12 of Constitution. It was incorporated in 1975. Petitioner was working in Animal Husbandry Department of U.P. Government but transferred to Nigam and became its employee. Nigam had monopoly business in manufacture and sale of meat products in Northern India. It started running in loss since 1996 and consequently various Sale Depot in Cities of Northern India were closed gradually. Respondent-4, Sri A.N. Singh, Assistant Sales Manager, was holding charge of Office of Managing Director of Nigam. He transferred petitioner from Aligarh to Nigam's Depot at Connaught Place, New Delhi by order dated 03.06.1997. The Sale Depot at New Delhi was already closed and petitioner was having an official quarter at Aligarh which would have been denied to him on his joining at New Delhi. He made a representation to Managing Director, requesting for cancellation of order of transfer. By order dated 25.07.1997, Sri S.N. Dubey, who was holding office of Managing Director on 25.07.1997 cancelled order of transfer. The said order though was signed and prepared by Sri S.N. Dubey, holding Office of Managing Director, but as a matter of fact was not issued by Office of Nigam and and it could be issued only on 16.08.1997. Since petitioner was aware of order dated 25.07.1997 that his transfer has been cancelled, his attendance was recorded in attendance register at Aligarh thereafter regularly. Though petitioner was permitted to sign attendance register but salary was not paid. Subsequently by letter dated 24/26.06.1998, respondent-4 called upon petitioner to explain why he did not comply with the order of transfer dated 03.06.1997 and also stating that cancellation order dated 16.08.1997 has no legal consequences since it was signed by a person who ceased to be Managing Director on 25.07.1997. Petitioner submitted explanation vide letter dated 29.06.1998. Thereafter, respondent-4, who again became In-charge Managing Director, without any inquiry and without giving opportunity of hearing to petitioner, passed an order of dismissal on 01.04.1999. Petitioner then filed an appeal before Chairman of Nigam vide appeal/representation dated 17.04.1999. A reminder to Appellate Authority was also given on 10.05.1999 with request to decide the said appeal. In the meantime, State Government had already taken a decision to close down Nigam and retrench its employee, vide Government Order dated 31.12.1998. Therefore subsequent order of dismissal passed on 01.04.1999 by respondent-4 in exercise of power as Managing Director is patently illegal. Retrenchment notice was published on 31.07.1999 but since respondent-4 passed order of dismissal of petitioner on 01.04.1999, therefore petitioner's name was not included in the list of retrenched employees. It is said that impugned order of dismissal is patently illegal having been passed on account of mala fide, without holding any inquiry, in utter violation of principles of natural justice and also when Government had already taken a decision to close down Nigam and retrench its employees.

4. A counter affidavit has been filed on behalf of respondents sworn by Sri A.N. Singh, Assistant Marketing Manager in the office of Nigam. It is said that petitioner was transferred but he did not join and in connivance with local staff, got forged signatures of Sri S.N. Dubey on the file. Photocopy of minutes of file has been filed as Annexure-1 to counter affidavit showing overwriting, cutting and interpolation. After transfer petitioner neither reported for duty nor discharged any duty. With regard to his non compliance of order of transfer and making attendance, his explanation was called for by letter dated 24/6.06.1998 and 25.01.1999. Dismissal order has been passed by Managing Director himself after holding inquiry. In para-15 it is said that the order of dismissal dated 01.04.1999 has been passed by respondent-4 and secondly that it was passed about eight months earlier to the Government Order 31.12.1998, on the merit, on account of misconduct of petitioner who is habitual of committing disobedience and indiscipline.

5. Learned Standing Counsel contended that since explanation of petitioner was called for, therefore, it cannot be said that impugned order of dismissal is vitiated in law for non compliance of principles of natural justice.

6. Having given deep consideration to the rival submissions, I find that there are two issues which are to be considered and answered in this case. (1) Whether earlier order of transfer passed on 03.06.1997 was cancelled by Managing Director by Office Order dated 16.08.1997; and, (2) whether impugned punishment order dismissing petitioner from services is consistent with the legal requirements i.e. in compliance of principles of natural justice or it is not sustainable for non observance of procedure to be followed for imposition of major penalty upon an employee by employer.

7. The case set up by petitioner is that order of cancellation was passed by Sri S.N. Dubey, who functioned as Managing Director till 25.07.1997. It has been brought on record, in the counter affidavit, that Sri S.N. Dubey was given charge of Managing Director of Nigam on 02.07.1997 and the same was withdrawn on 25.07.1997. Annexure-1 is copy of order-sheet containing page no. 23 and 24. Matter of petitioner has been referred to on top of Page 23 of order sheet and it shows first noting dated 14.07.1997 and thereafter Office Superintendent's Note dated 24.07.1997 which refers to some documents of petitioner. Under the signature somebody has made clear overwriting and made the date as 24.07.1997 but on the next page 24, where it is alleged that the order was passed by Managing Director, I find that Office Superintendent's note referred is dated 25.07.1997. It says that in the light of discussion made on 24.07.1997 Office Order is being produced for signature. Here I find the date mentioned under signature of someone referring his designation as AM (P&M) dated 24.07.1997 though in the Note itself 25.05.1997 is also mentioned, hence Note could not have been signed on 24.07.1997 when it refers to Office Superintendent's Note dated 25.07.1997. There is another signature whereunder there is overwriting on the date and it is not clear as to whose signature it is. A careful perusal of date under signature, it appears to be 26.07.1997 and by no stretch of imagination it can be read as 25.07.1997.

8. Moreover, so long as an order passed on the order sheet is not communicated, it is only a decision which can always be changed. As per respondents, no such decision was ever communicated to petitioner and, therefore, I find no hesitation in holding that as claimed by petitioner his order of transfer was never cancelled by Sri S.N. Dubey by order dated 25.07.1997. Hence the question of any subsequent communication to petitioner on 16.08.1997 also does not arise. As claimed by respondents, the aforesaid cancellation order is forged and fictitious and I accept their contention. The question-1 is answered, accordingly, against petitioner.

9. Now coming to question no. 2, admittedly petitioner has been dismissed from service. It is maximum penalty which could have been imposed by an employer upon its employee. It is not the case of respondents that for imposing a punishment upon employee, employer is not obliged to observe principles of natural justice giving adequate opportunity of defence to employee concerned. The allegations made against petitioner may have constituted misconduct but there is nothing on record to show that any charge-sheet was ever issued to petitioner and any departmental inquiry was conducted against him. It is not a case where petitioner has accepted the charge. No witness or evidence was examined by any authority to prove the charge against petitioner. Therefore, imposition of major penalty of dismissal without any such inquiry is patently illegal and is vitiated in law being in utter violation of principles of natural justice.

10. A major penalty of dismissal could not have been imposed upon an employee by the employer, without holding a regular disciplinary inquiry which consists of various steps like issue of charge sheet, opportunity to give reply to charge sheet, if charges are not admitted, to fix date, time and place for adducing evidence on behalf of employer to prove the charge and thereafter opportunity to employee to adduce evidence to disprove the allegations made against him and thereafter an assessment of evidence, finding of guilt and thereafter punishment. The aforesaid procedure has not been followed in the present case. Hence I have no hesitation in holding that the punishment of dismissal imposed upon petitioner in the manner it has been done by respondents, i.e., simply issuing show cause notice and passing order of dismissal, cannot be held in compliance of principles of natural justice, i.e. after giving adequate opportunity of defence to petitioner so as to confer validity upon order of dismissal. The impugned order of dismissal, therefore, cannot be sustained. The second issue formulated above is answered in favour of petitioner.

11. The writ petition is accordingly allowed. Impugned order of dismissal dated 01.04.1999 (Annexure-5 to Writ Petition) is hereby set aside. Since Nigam has already been closed and its employees have been placed in the category of retrenched employees in the list published on 31.07.1999, till the said date when other employees of Nigam were declared surplus, I hold that petitioner shall be entitled for all consequential benefits; and, from the date other employees have been retrenched, petitioner shall also be treated a retrenched employee with similar benefits as have been made admissible to the other employees.

12. However, in view of divided answer to the aforesaid questions formulated above, I hold that both the parties must bear cost equally.

Dt. 06.07.2018

PS