Bombay High Court
Dwijendra Nath Sen vs The ... on 15 April, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2857 OF 2001
Shri Dwijendra Nath Sen,
aged about 48 years,
occupation : presently nil,
resident of c/o S.K. Borkar,
Mohan Nagar, Khalasi Line,
Nagpur - 440 001. ... Petitioner
- Versus -
1) The Chairman-cum-Managing
Director, Manganese Ore (India)
Limited, a Govt. Undertaking,
3, Mount Road Extension, Nagpur.
2) Shri H.R. Kalihari, r/o Plot No.237,
Friends Colony, Main Road, near
Shubham Hospital, Beside Kidzee,
Friends Colony, Nagpur.
3) Shri V.R. Sengupta, Enquiry Officer,
Senior Manager (Personnel),
MOIL, 3, Mount Road Extension,
Nagpur. ... Respondents
-----------------
Ms. K.K. Pathak, Advocate for petitioner.
Shri G.G. Modak, Advocate for respondents.
----------------
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : APRIL 15, 2016
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ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
By this petition filed under Article 226 and 227
of Constitution of India, petitioner/employee has
assailed the punishment of dismissal imposed upon him
on 16.3.2001 after disciplinary inquiry.
2) We have heard Adv. Pathak for the petitioner
and Adv. Modak with Adv. Kale for the respondents.
3) Adv. Pathak has mainly raised following
contentions :
(i) The petitioner has been appointed by
Chairman-cum-Managing Director of Manganese Ore
(India) Limited and hence, that Authority alone is
Appointing Authority and Disciplinary Authority in the
case of petitioner. Charge sheet served upon petitioner
on 31.7.1998 was by Agent and Deputy General
Manager (Mines) i.e. by subordinate Authority. Hence,
initiation of proceedings itself is bad.
(ii) During departmental inquiry, petitioner was
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not permitted to engage a Lawyer and, therefore, a
serious prejudice is caused to him.
(iii) Though petitioner submitted list of six
witnesses to be examined in defence, Enquiry officer
did not allow those witnesses to be examined and,
therefore, entire enquiry and findings recorded by the
Enquiry Officer are vitiated.
(iv) The order of dismissal dated 16.3.2001 is
passed by Agent and Deputy General Manager ( Mines)
and, therefore, same is without jurisdiction.
Adv. Pathak has placed reliance upon certain
judgments to which we will make reference little later.
4) Adv. Modak appearing for respondents has
raised preliminary objection. He points out that entire
service put in by petitioner was in Sate of Madhya
Pradesh and within jurisdiction of High Court of Madhya
Pradesh at Jabalpur. During this departmental inquiry,
at least on four occasions he approached the High
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Court at Jabalpur by filing writ petitions. In view of this
history, that High Court alone has got jurisdiction to
entertain writ petition. He points out that though
petitioner challenged order of dismissal dated
16.3.2001 in departmental appeal before Appellate
Authority at Nagpur and that appeal has been
dismissed by Chairman-cum-Managing Director
ig as
appellate Authority on 16.4.2001, that order passed at
Nagpur has not been questioned in writ petition. He
submits that in the light of previous challenges before
Madhya Pradesh High Court, challenge to order passed
by the appellate Authority at Nagpur must be raised
before that High Court. According to him, a miniscule
part of cause of action, at the most, could have been
said to have accrued within jurisdiction of this Court,
but it is not sufficient and this Court has no reason to
exercise its discretionary jurisdiction in such matters as
doctrine of 'forum conveniens' is specifically attracted.
He has relied upon the judgment of Hon'ble Apex Court
to buttress his preliminary objection.
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5) Without prejudice to the preliminary objection,
on merits, Adv. Modak sates that the provisions of MOIL
Employees (Disciplinary) Rules, 1978 which regulated
departmental proceedings conducted against petitioner
have been specifically amended on 11.8.1995 and the
Head of the establishment in which petitioner was
working has been constituted as Disciplinary Authority.
He has invited our attention to the assertion in
paragraph 4 of petition that the petitioner along with
two other officers were appointed by General Manager
(Personnel), Nagpur on behalf of Chairman-cum-
Managing Director. He contends that the Disciplinary
Authority as is being pressed into service by petitioner
has never appointed petitioner and Chairman-cum-
Managing Director was not the appointing authority.
6) Adv. Modak has invited our attention to the
provisions contained in the said Rules to show that
Rules do not permit engagement of an outside person
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during departmental inquiry and a Lawyer is also not
permitted. Our attention is invited to specific finding in
enquiry report that petitioner did not wish to examine
any witness in the defence. Adv. Modak submits that
though petitioner objected to several findings recorded
by Enquiry officer, this particular fact mentioned
therein was never refuted.
7) Adv. Modak further submits that in this
situation, the order of punishment, which is in
accordance with provisions of 1978 Rules, cannot be
interfered with in the writ jurisdiction. He points out
that though in the return filed in 2002, preliminary
objection has been specifically raised, no amendment
to petition was sought and appellate order was never
challenged.
8) In reply arguments, Adv. Pathak submits that
though Madhya Pradesh High Court was approached by
the petitioner earlier, that High Court has not decided
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anything, at least on merits, and after his dismissal, as
he is staying at Nagpur, this Court has got jurisdiction.
She points out that in writ petition, grounds to
challenge adjudication of appeal are specifically raised.
She further submits that inadvertent omission in not
expressly seeking quashing and setting aside of
appellate order cannot be held against petitioner.
ig By
way of abundant precaution, she also seeks leave to
add a prayer expressly assailing the adjudication of
appeal vide order dated 16.4.2001.
9) Adv. Modak on behalf of respondents is
strongly opposing any such amendment at this stage.
He points out that after the matter was fully argued,
such a leave is being sought and it should not be allowed.
10) Perusal of memo of writ petition reveals the
challenge to the appellate order in paragraph 20. In
the said memo, two consecutive paragraphs are
numbered as paragraph 20, but both paragraphs raise
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the grounds to assail the adjudication by appellate
Authority. In prayer clause, vide prayer 1, declaration
that order of dismissal is bad is sought. In prayer 2,
along with prayer to quash and set aside the order of
dismissal dated 16/3/2001, there is a further prayer to
require respondents to reinstate the petitioner in
service with continuity, back wages and all other
consequential benefits. It is obvious that if these
prayers are granted, appellate adjudication cannot
stand. Apart from this, vide prayer 3, there is also
request to grant any further relief including one which
may be deemed to be appropriate in the circumstances
of the case. Thus, though there is no express challenge
to adjudication by appellate Authority dated 16/4/2001,
one cannot conclude that the appellate order is not
assailed before this Court. In this situation, though
Adv. Modak has strongly opposed the request for
amendment, we have granted oral leave asked by
Adv. Pathak and permitted her to add prayer clause for
quashing and setting aside the appellate order dated
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16/4/2001. Necessary amendment be carried out
forthwith.
11) We are aware of objection raised by
Adv. Modak that it is adjudication of appeal at Nagpur,
which may give rise to some cause of action at Nagpur
and, therefore, enable petitioner to approach this
Court. Actually when hearing began, we have
permitted Adv. Modak to address the Court on those
objections first. The fact that entire service of the
petitioner is rendered in State of Madhya Pradesh is not
in dispute. The petitioner has disclosed challenges
earlier raised by him at Jabalpur in various writ
petitions. He has pointed out the relevant facts in
paragraphs 6 and 7 of the writ petition. The
respondents have stated that petitioner was charge-
sheeted on 28/10/1997 while working at Chikhala Mines
and thereafter was reverted. Because of this reversion,
he came under non-executive cadre. The petitioner
challenged this order of reversion in High Court of
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Madhya Pradesh at Jabalpur in Writ Petition
No.2478/1999. According to respondents, said writ
petition was pending on 28/6/2002 when affidavit in
support of return was sworn in. Adv. Pathak, however,
has made a statement that that petition is not pending.
In return, it is further pointed out that after his
reversion, petitioner was posted at Ukwa Mines where
he was served with suspension order dated 19/6/1998
for committing certain misconducts. The petitioner
challenged suspension order and validity of disciplinary
rules by filing Writ Petition No. 3878/1999 at Jabalpur
and that petition was admitted for final hearing. He
thereafter preferred Writ Petition No. 932/1999 and
assailed appointment of an outsider as an Enquiry
Officer. He also challenged competency of the
Authority issuing charge-sheet dated 31/7/1998 in that
Writ Petition No. 932/1999. However, that writ petition
was dismissed as in the meanwhile, petitioner
participated in departmental enquiry and he was
dismissed from service on 16/3/2001.
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12) It is, therefore, obvious that challenge to order
of reversion in Writ Petition No. 2478/1999 has got no
bearing on mis-conduct and departmental enquiry,
which form subject matter of present challenge. Writ
Petition No. 3878/1999 questioned validity of Rules and
order of suspension. ig It was only admitted for final
hearing at Madhya Pradesh. The learned Counsel for
petitioner has stated that it is not pending. Writ
petition allegedly filed thereafter, i.e. Writ Petition
No.932/1999 has been disposed of because of dismissal
of petitioner from employment. Perusal of order passed
by the learned Single Judge of that High Court shows an
observation that grounds of challenge were rendered
infructuous. The petitioner was, therefore, given liberty
to pursue remedy in accordance with law against the
final order passed in domestic enquiry. It has been
expressly mentioned that grounds raised in Writ
Petition No. 932/1999 would remain available to the
petitioner while assailing the final order.
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13) Thus, no adjudication on merits or on any
aspect of controversy which can operate as res judicata
between parties has been pointed out to us. The
respondents have not pointed out any benefit either
direct or indirect which petitioner has obtained by not
approaching Madhya Pradesh High Court.
ig Similarly,
respondents could not point out any prejudice suffered
by them because of act of petitioner in approaching
this Court.
14) The judgment in M/s. Sterling Agro
Industries Ltd. v. Union of India and others (AIR
2011 Delhi 174) is delivered by Special Bench of Delhi
High Court. Hon'ble five Judges there have pointed out
what constitute essential facts. It has been explained
in paragraph 29 that facts pleaded in writ petition must
have a nexus on the basis whereof a prayer can be
made and the facts, which have nothing to do
therewith cannot give rise to a cause of action to invoke
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the jurisdiction of a Court. In paragraph 26, it is noted
that facts, which have no bearing with the lis or the
dispute involved in the case, do not give rise to a cause
of action so as to confer territorial jurisdiction on the
Court concerned. It is in this background that in
paragraph 30 onwards, the Special Bench has
proceeded to ig consider the doctrine of forum
conveniens. In paragraph 32, the view of Full Bench of
that High Court that as appellate Authority which
passed the order was situated in Delhi, the Delhi High
Court should be treated as forum conveniens was not
accepted. In paragraph 33, it has been held that an
order passed by the appellate Authority constitutes a
part of cause of action to make the writ petition
maintainable in the High Court within whose jurisdiction
the appellate Authority is situated, but it cannot be a
singular factor to compel the High Court to decide the
matter on merits. The High Court may refuse to
exercise its discretionary jurisdiction by invoking the
doctrine of forum conveniens.
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15) In Kusum Ingots & Alloys Ltd. vs. Union of
India and another {(2004) 6 SCC 254}, Hon'ble Apex
Court has reiterated the same view. It has been held
that in appropriate cases, the Court may refuse to
exercise its discretionary jurisdiction by invoking the
doctrine of forum conveniens.
16) Here we have already noted that after his
dismissal from service, petitioner is staying at Nagpur
and his appeal preferred against the dismissal order
has been decided by the appellate Authority, which is
located at Nagpur. Perusal of appeal memo sent by
petitioner shows that it was sent from Ukwa Mines,
Balaghat on 25/3/2001. Memo of amendment to that
appeal memo dated 16/4/2001 again shows that
petitioner was at Balaghat on 16/4/2001. The appellate
Authority has dismissed the appeal on 16/4/2001 only.
Dismissal of appeal was communicated to petitioner by
mentioning him Ex-Senior Superintendent (Materials),
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Ukwa Mine. The petitioner, therefore, has not
demonstrated that he was served with copy of order
dismissing appeal at Nagpur.
17) In this situation, we find that only because
later on petitioner has come to stay at Nagpur, it
cannot be contended that any part of cause of action
has accrued at Nagpur.
ig The memo of petition is
conspicuously silent on place of accrual of cause of
action. If after service of order dismissing his appeal,
petitioner has shifted to Nagpur, fact of his shifting to
Nagpur has got no bearing on lis between the parties.
Therefore, we find that no such part of cause of action
has accrued at Nagpur within the jurisdiction of this
High Court to persuade us to exercise the extra-
ordinary jurisdiction.
18) Considering the fact that challenge is pending
before this Court since 27/7/2001 and rule was issued
by this Court on the very first date of hearing without
giving opportunity to respondents to raise any
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objection, we find it appropriate to briefly record our
findings on contentions raised by learned Counsel for
the petitioner on merits. This consideration may
hold good, if seat of appellate Authority at Nagpur is
found sufficient to persuade us to take cognizance on
merits.
19)
The fact that petitioner had submitted list of
six persons as defence witnesses is not in dispute.
Enquiry Officer has in his report dated 11/1/2001
specifically observed that after prosecution side was
over, the charged Officer submitted six names as his
defence witnesses, but did not wish to examine them.
This finding or conclusion or fact recorded in enquiry
report is not assailed as incorrect by petitioner though
he has submitted his lengthy explanation on findings
therein on 18/2/2001. As such, mere contention that
defence witnesses were not allowed to be examined is
not sufficient to hold that enquiry is vitiated. On the
contrary, facts reveal that petitioner himself did not
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wish to examine witnesses in defence.
20) Similarly, the submission that petitioner was
not given opportunity to engage Advocate or Lawyer is
not sufficient to conclude that enquiry is vitiated. No
provision in Service Rules enabling employee to seek
such permission or leave has been pointed out. It is not
the case of petitioner that either Enquiry Officer or
Presenting Officer was having necessary expertise in
the legal field and he was ill equipped. As such, mere
denial of opportunity to engage Advocate by itself
cannot be viewed as sufficient to declare the enquiry as
vitiated. Here it needs to be noted that the petitioner
has passed M.A. (Sociology), M.A. (Political Science),
M.A. (Public Administration). He has also Diploma in
Business Management and a degree, which he has
described as DHMS, apart from law degree.
21) The Hon'ble Apex Court in State Bank of
Patiala and others vs. S.K. Sharma (1996 (3) SCC
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364) has laid down the principles to examine whether
mere breach of principles of natural justice results in
vitiating departmental enquiry. The Hon'ble Apex Court
has held that in circumstances as placed before this
Court, it is incumbent for the petitioner to demonstrate
accompanying prejudice also. The petitioner has not
pleaded and pointed out any prejudice.
22) The facts that charge-sheet is served upon
the petitioner by Agent and Deputy General Manager
as also the dismissal order is issued by the very same
Authority are not in dispute. Perusal of Employees
(Disciplinary) Rules, 1978 shows that on 11/8/1995, a
corrigendum was issued and as per that corrigendum,
for employee like petitioner, who held non executive
post and was posted at Mines, Disciplinary Authority
competent to impose major penalty is specified to be
Mines Manager, In-charge of Mines. The appellate
Authority for major penalties is Agent of the Mines.
Rule 6 which deals with Disciplinary Authorities
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stipulates that appointing Authority or Authority
mentioned in Schedule to the 1978 Rules is competent
to impose penalties specified in Rule 5. Rule 5
provides for dismissal from service, which ordinarily is
declared to be disqualification for future employment.
Thus, appointing Authority, namely, Chairman-cum-
Managing Director or Authority mentioned in the
Schedule is competent to impose punishment of
dismissal. In the wake of corrigendum noted supra, It is
apparent that punishment is imposed by a person, who
is Agent and Deputy General Manager. The said person
is in fact an appellate Authority after such order is
passed by the Disciplinary Authority. It cannot,
therefore, be said that dismissal order is passed by an
incompetent Authority or any subordinate Authority in
the matter.
23) Hence, even on merits, we find that no case is
made out warranting interference.
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24) The writ petition is, therefore, dismissed. Rule
is discharged. No costs.
JUDGE JUDGE
khj
