Balasaheb Panditrao Pawar vs International Airport Authority ...
2003 Latest Caselaw 1005 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition, the petitioner has challenged the order dated 15th February, 1984 and all subsequent orders in appeal etc. on the ground that they are wholly illegal and unsustainable in law.

2. The case of the petitioner is that he was employed as Traffic Warden with the respondent and according to the respondents, the petitioner was involved in misbehaviour amounting to misconduct. The allegations against the petitioner were that he acted in a high handed manner with the superiors and the conduct was unbecoming of a servant. He is also alleged to had some money on his person, which according to him was to be returned to his another colleague. According to the respondent employer, this amounted to misconduct.

3. The respondent therefore issued an order of removal dated 15th February 1984 removing the petitioner from service for the said misbehaviour on the midnight of 30th and 31st January 1984. In passing this order recourse was taken in the Regulation 33(ii) of the International Airport Authority of India (Conduct, Appeal and Discipline) Regulations, 1978 which permitted the employer to dispense with the holding of departmental enquiry for the reasons to be recorded in writing by the authority. According to the Regulation therefore, holding of departmental enquiry for any misconduct is the Rule. Regulation 33 speaks of the exception in which punishment can be imposed without enquiry.

4. The contention of the petitioner is that in this case no resort could be taken to Regulation 33 as no case for such exercise is made out. No reason has been mentioned as contemplated by that Regulation and therefore the order of punishment as also the orders maintaining that, are bad in law.

5. Regulation 33 reads thus :

33. Special procedure in certain cases. -- Notwithstanding anything contained in Regulations 28, 29 and 30, the disciplinary authority may impose any of the penalties specified in Regulation 26 in any of the following circumstances, namely :--

i)       Where the employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial; or
 

ii)      Where the disciplinary authority is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to hold an enquiry in the manner provided in these regulations; or
 

iii)    Where the disciplinary authority is satisfied that in the interest of the security of the Authority it is not expedient to hold any inquiry in the manner provided in these regulations.
 

6. From Clause (ii) above, it would therefore be seen that in cases where the disciplinary authority is satisfied for reasons to be recorded in writing, then it is not reasonable or practicable to hold an enquiry in the manner provided by this rule. This provision is analogous with the provisions of Article 311. Two things are required to be taken before Regulation 33 can be exercised. The first is factual satisfaction of the disciplinary authority that it is not reasonably or practicable to hold an enquiry, and the second, the authority must record reasons in writing for that satisfaction.

7. These provisions are made to depart from the normal requirements of departmental enquiry and observations of the principle of natural justice, in exceptional cases where the security of the company or security of the country or part thereof is likely to be at risk. The circumstances making out the misconduct are such as would require lengthy and otiose enquiry which if conducted, according to the Regulations may frustrate the very purpose of inflicting punishment like removal.

8. In the instant case the whole misconduct alleged against the petitioner is his behaviour with the colleagues and officials, his insubordination or misconducts. Why in such circumstances no enquiry can be held is not stated. The impugned order records the satisfaction of the disciplinary authority in the following words.

"I, as a Disciplinary Authority, have satisfied myself that it is not reasonable and practicable to enquire into the incidents in the manner provided in the Regulations 28, 29 and 30 of IAMBI (Conduct, Discipline and Appeal) Regulations 1978."

9. The disciplinary authority then records the fact of satisfaction but has failed to give reasons how arrived at that satisfaction. The misconduct alleged is of such a nature that the enquiry would not be otiose or lengthy. There is no question of safety being endangered. The affidavit in reply by the respondent states that the enquiry is not necessary because the petitioner has admitted some of the incident or his part therein. It is asserted that there was ample material before the authority to come to the conclusion of guilt. The order impugned cannot in the circumstances, be sustained as there is complete violation of the provisions of Regulation 33. The reason for coming to the satisfaction by that rule, are required to be stated in writing, but here it has not been done so. The illegality goes to the root of the matter and the order of termination is therefore vitiated.

10. However the right of the respondents to hold a regular departmental enquiry under the Regulation and take disciplinary action against the petitioner cannot be disputed. It is even now open for the respondent to take up that action in accordance with the Regulation if they deem it fit. However the impugned order cannot be sustained. As a consequence, the appellate and the Revisions orders also cannot be sustained. In the result therefore the petition succeeds and it is allowed. The impugned orders are set aside and the respondents are permitted to take up proper proceedings if it so desires.