Pradeep Rajkumar Jain vs Manganese Ore (India) Ltd., A ...
2017 Latest Caselaw 1438 Bom

WP  1780/09                                            1                           Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.

                       WRIT PETITION No. 1780/2009

Pradeep S/o Rajkumar Jain,
aged about 42 years, occupation:nil,
resident of Azad Chowk, 309, Sadar, Nagpur.                                        PETITIONER

                                      .....VERSUS.....

1.     Manganese Ore (India) Limited,
       A government of India Undertaking,
       having its Office at Katol Road, 
       Chaoni, Nagpur.
2.     The Chairman cum Managing Director,
       Manganese Ore (India) Limited,
       A government of India Undertaking,
       having its Office at Katol Road, 
       Chaoni, Nagpur.
3.     Agent and Deputy General Manger (Production),
       Group-III, Manganese Ore (India) Limited,
       Katol Road, Chaoni, Nagpur.
4.     Mine Manager,
       Manganese Ore (India) Limited, 
       Beldongri Mine, Tahsil Ramtek,
       District Nagpur.
5.     Shri S.K. Lal,
       Enquiry Officer, Chief (Personnel),
       Manganese Ore (India) Limited,
       Katol Road, Chaoni, Nagpur.                                                 RESPONDENTS


     Shri S. Agrawal, counsel holding for Shri V.S. Mishra, counsel for the petitioner.
                   Shri Masood Shareef, counsel for the respondents.



                                       CORAM :SMT.VASANTI  A  NAIK AND
                                                   MRS. SWAPNA  JOSHI, JJ.    

DATE : 4 TH APRIL, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this writ petition, the petitioner challenges the order of the

Deputy General Manager (Production), dated 12.08.2008 removing the

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petitioner from service. The petitioner also challenges the order of the

appellate authority, dated 24.10.2008 dismissing the statutory appeal

filed by the petitioner and upholding the order of removal of the

petitioner.

2. The petitioner was appointed by the respondent-Manganese

Ore India Limited on the post of Manager (Finance) on 22.10.1997. At

the relevant time when the petitioner was posted at Beldongri mine, the

petitioner was served with the notices dated 25.07.2007 and 06.09.2007

asking him to show cause as to why he had reported late for duty from

22.07.2007 to 25.07.2007. The petitioner replied to the show cause

notices and submitted that the father of the petitioner had expired

untimely on 07.07.2007 and since there were some religious functions at

the residence of the father of the petitioner at Nagpur, the petitioner

could not report for duty on time. The petitioner tendered his apology for

reporting late to the mines from 22.07.2007 to 25.07.2007. A

memorandum was, however, issued to the petitioner on 13.09.2007

warning the petitioner that the language used in the first paragraph of his

reply to the show cause notice was not proper. It was informed to the

petitioner that since the petitioner had tendered the apology for reporting

late for duty, the petitioner should ensure that he should not repeat the

said act in future. Though by the memorandum, dated 13.09.2007, the

petitioner was warned, by an order, dated 05.10.2007, the petitioner was

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suspended and was informed that a departmental enquiry would be

conducted against him. The following four charges were levelled against

the petitioner in the departmental enquiry.

"28(viii) - Habitual late coming:

That, the said Shri P.K. Jain, while functioning as Dy. Chief (Fin.) Beldongri Mine on 25.07.2007 has reported to duty at 9.30 a.m. whereas scheduled time of commencement of duty is 8.00 a.m. Shri P.K. Jain has not only came late on 25.07.2007 in the past also he was regularly coming late since 22.07.2007 to 24.07.2007, which shows the habitual late coming trend of Shri P.K. Jain. The above act of Shri P.K. Jain constituted an act of misconduct. Shri P.K. Jain by the above act of misconduct as thereby volated Sub Rule (viii) of Rule 28 of MOIL Conduct Rules, 1978.

B) Charge (II) 28(ii) - Willful insubordination of disobedience, whether or not in combination with other or any lawful and reasonable order of his superior or commission of any acts subversive of discipline or of good behaviour -

Shri P.K. Jain has been instructed to complete the work pertaining to revised budget for the year 07-08 and budget 08-09 pertaining to Beldongri Mine which was an important work. Even after the issuance of several verbal & written instructions vide letter No.26/CH/Bel/07-08/1431 dtd. 25/7/2007 Shri P.K. Jain has not complied the instructions of Mine Manager and left the head quarters Beldongri Mine without obtaining permission.

The above act on the part of Shri P.K. Jain constitute an act of misconduct. Shri P.K. Jain as thereby violated Sub-Rule (ii) of Rule of MOIL Conduct Rules, 1978.

 WP  1780/09                                           4                           Judgment

C)            Charge (III)

28(xiii) - Habitual negligence or neglect of work or indiscipline -

During the inspection of Accounts Department, Beldongri Mine, it is found that as a incharge of Accounts Department of Beldongri Mine, Shri P.K. Jain, Dy. Chief (Fin.) has not maintained the records properly and not followed the rules & regulations of the Company. The above act of misconduct thereby violated the Sub Rule (xiii) of Rule 28 of MOIL Employees Conduct Rules.

D) Charge (IV) 28(xiv) - Willful damage to work in process or to any property of the Company -

Shri P.K. Jain as a professionally qualified executive & an Incharge of accounts department of Beldongri Mine, Shri P.K. Jain is well aware of rules and regulations of the Company and willfully he has tried to damage the work process of the Company by alleged negligence towards his duties which thereby is a violation of MOIL employees (Conduct) Rules, 1978."

3. The petitioner submitted his explanation to the charges.

The petitioner stated that since he was already warned for reporting late on

duty for four days, i.e. from 22 nd to 25th of July, 2007, a departmental

enquiry could not have been initiated against the petitioner. In respect of

the first charge, the petitioner pointed out that he had reported late on

duty on those days as his father had suffered an untimely death and

some religious rituals were required to be performed at the residence of

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his father at Nagpur on those four days. In respect of the second charge,

the petitioner explained that he had tried to complete the work pertaining

to the revised budget for the year 2007-08 and the budget for the year

2008-09 pertaining to Beldongri mine and the work sought to be

completed by the petitioner was a team work and the petitioner alone

could not have been held responsible for the same. In regard to the third

charge of habitual negligence, the petitioner informed the respondents

that the charge was very vague and no details were provided as to how

the petitioner did not follow the rules and regulations and had not

maintained the records properly. We would not refer to the explanation of

the petitioner to the fourth charge as only three charges are held to be

proved against the petitioner in the departmental enquiry. A departmental

enquiry was conducted against the petitioner and the enquiry officer held

that the first three charges levelled against the petitioner were proved. The

disciplinary authority passed the order of removal of the petitioner from

service. The appellate authority upheld the order of the disciplinary

authority. The petitioner has challenged the orders of the disciplinary and

the appellate authority in the instant petition.

4. Shri Agrawal, the learned counsel for the petitioner, submitted

that the petitioner is victimized by the respondents. It is submitted that the

petitioner was served with a show cause notice and after he tendered his

explanation in respect of his reporting late on duty from 22 nd to 25th of July,

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2007, a minor punishment was inflicted on the petitioner inasmuch as the

petitioner was warned. It is submitted that the charge of not maintaining the

record properly and not performing the work as per the rules and

regulations, i.e. charge no.3 is as vague as it could be. It is submitted that no

particulars or details were mentioned in the charge-sheet to point out as to

what duties the petitioner did not perform according to the rules and

regulations and as to how he had failed in maintaining the record. It is

submitted that in respect of the second charge also, the petitioner had

tendered a proper explanation that the work of preparing a revised budget

and a budget could not have been done by the petitioner alone and the

whole team was required to ensure that the revised budget and the budget

should be prepared. It is submitted that the departmental enquiry was

conducted against the petitioner in violation of the principles of natural

justice. It is stated that though the petitioner had sought for the necessary

documents, he was informed that documents could be supplied to him only

in respect of charge nos.1 and 2 and the petitioner should verify the

documents pertaining to charge nos.3 and 4 only by perusing the original

record at the time of the enquiry. It is submitted that when the petitioner

sought for a copy of the deposition of the first witness examined on behalf of

the respondents so that the petitioner could cross-examine the witness, the

petitioner was informed, as could be seen from the enquiry report, that after

the culmination of the enquiry, the petitioner would be supplied with the

copies of the proceedings in the enquiry. It is submitted that though the

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enquiry proceedings were fixed at 11.00 a.m. on 23.04.2008, the petitioner

had received the notice of the enquiry proceedings at 1.00 p.m. on

23.04.2008. It is submitted that the petitioner was out of station due to the

death of his relative till 28.04.2008 and although the petitioner made two

applications to the enquiry officer that the enquiry proceedings may be

adjourned to a date after 28.04.2008, the enquiry officer deliberately fixed

the enquiry on 20.02.2008 and 27.02.2008 on which dates, even the

presenting officer was absent. It is submitted that when the petitioner was to

return on 28.02.2008, the enquiry was deliberately fixed on 27.02.2008. It

is submitted that since the third witness was examined behind the back of

the petitioner and the second witness was examined at 11.00 a.m. on

24.03.2008, of which the petitioner did not have a notice, the petitioner

could not cross-examine the witnesses. It is submitted that the charge

levelled against the petitioner pertained to not staying in the quarter but, the

enquiry officer has held that the petitioner was staying at Nagpur and was

doing up and down from Nagpur to attend his duties at Beldongri mine,

though it was not the charge. It is submitted that since the enquiry is

conducted against the petitioner in violation of the principles of natural

justice, the orders of the disciplinary and appellate authority are liable to be

set aside.

5. Shri Shareef, the learned counsel for the respondents, has

supported the orders of the disciplinary and the appellate authority. It is

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submitted that the enquiry officer, on an appreciation of the material on

record, has rightly held that the charge nos.1, 2 and 3 were proved against

the petitioner. It is submitted that in respect of the third charge, at the time

of enquiry, the petitioner was supplied with the documents to show, what

irregularities were committed by him in maintaining the record. It is

submitted that the petitioner was asked to be careful at the time of

conducting the examination-in-chief of the witnesses examined on behalf of

the respondents and to conduct the cross-examination on that basis. It is

submitted that the relevant documents were supplied to the petitioner during

the course of the enquiry. It is submitted that the original documents were

made available at the time of the enquiry and, hence, it was not necessary to

supply the copies of those documents to the petitioner in respect of charge

nos.3 and 4. It is submitted that the petitioner was made aware of the next

date of the enquiry on the previous date on which the enquiry was

conducted. The learned counsel sought for the dismissal of the writ petition.

6. On a perusal of the documents annexed to the writ petition, we

find much force in the submission made on behalf fo the petitioner that the

petitioner is victimized by the respondents and a fair and reasonable

opportunity was not granted to the petitioner to defend the charges. Two

notices were served on the petitioner on 25.07.2007 and 06.09.2007 asking

him to show cause as to why he had reported late for duty from 22.07.2007

to 25.07.2007. The petitioner replied to the said notices that his father had

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expired untimely on 07.07.2007 and since the rituals were to be performed

at his fathers house in Nagpur from the thirteenth day of the death, the

petitioner had reported late for duty on those days. The petitioner

apologized for his lapse. The respondents accepted the apology and warned

the petitioner that he should not commit the same mistake in future. After

the memorandum and warning was issued to the petitioner, the respondents

again served a charge-sheet on the petitioner in which the charge of

reporting late on duty on those four days was framed against the petitioner.

The second charge was in respect of not preparing the revised budget and

the budget for the year 2007-08. The petitioner had replied to the said

charge and stated that the preparation of the revised budget for the current

year and the budgetary allocation for the next year requires date in respect of

monthly and quarterly payments, future planning and the other aspects need

to be discussed with the heads of the various departments, including the in

depth examination of proposed budget, etc. It was pointed out by the

petitioner that the revised budget for the current year and preparing the

budget estimate for the next year would involve team work and the

petitioner was already served with a warning in respect of this charge on

13.09.2007 and the chapter in this regard was closed. In regard to the third

article of charge, the petitioner had specifically mentioned in the reply that

the charge was as vague as it could be. No details were furnished in respect

of the third charge to the petitioner. It was vaguely stated in the said charge

that the petitioner did not maintain the records properly and failed to

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perform his duties as per the rules and regulations. What records were not

maintained by the petitioner and what were the duties that the petitioner did

not perform as per the rules and regulations was, however, not mentioned in

the charge. On such a vague charge as Charge No.3, no employee could

have furnished an explanation. An explanation could be furnished only if a

specific charge mentioning the irregularities or illegalities committed by an

employee is framed. In the enquiry, several documents were produced by

the respondents and it was held that the petitioner did not sign the Daily

Cash Verification Register, Contractors Provisional Account Code was not

maintained properly, Local Suppliers Account Entry was not passed in a

proper manner, proper provision for trial balance from September-2007 was

not made, stores accounts were showing negative balance and there were

some irregularities in store entries, etc. If an employee is specifically charged

of not signing the daily cash verification register or not passing the suppliers

account entry or not maintaining the contractors provisional account code,

etc., the employee would be in a position to refute the charges, however the

respondent had framed the third charge very vaguely that the petitioner had

not maintained the records properly and had not followed the rules and

regulations of the company.

7. Apart from wrongful framing of Charge No.3, we find that the

petitioner was punished in respect of the first charge of reporting late for

duty on four days and a minor penalty of 'warning' was imposed on the

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petitioner. Within a few days, a charge-sheet was served on the petitioner in

which the said charge again finds place. In our view, after having imposed a

minor penalty on the petitioner in respect of the charge of reporting late on

four days and after having accepted the apology of the petitioner, the

petitioner could not have been proceeded against departmentally on the

same charge. In the departmental enquiry, we find that the petitioner was

not granted a fair opportunity to defend himself. When the petitioner sought

for the documents pertaining to the charges levelled against him, the

petitioner was informed that only copies of documents pertaining to the first

two charges could be supplied to him but the documents pertaining to the

third and fourth charge could not be supplied to him. The petitioner was

asked to have a look at the original record which contained the documents

pertaining to the third and fourth charge during the enquiry. When the

petitioner asked for a copy of the deposition of the witnesses examined on

behalf of the respondent so that the petitioner could cross-examine the said

witnesses as the petitioner was defending himself and had not engaged an

assistant to defend him, the petitioner was informed that he would be

provided with the copies of the entire proceedings after the proceedings were

over. The enquiry officer has made a reference to this, in his enquiry report.

The enquiry officer has further mentioned in the enquiry report that before

the beginning of the enquiry, the petitioner was informed that he has to be

attentive during the enquiry and he should cross-examine the witnesses

examined on behalf of the respondents on the basis of what he perceives at

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the time of the enquiry. This is not the manner in which enquiries are fairly

conducted. It was obligatory on the part of the respondents to have supplied

a copy of the deposition of the first witness of the respondent, specially when

the petitioner asked for the same as he was defending himself. We find that

though the petitioner had specifically requested that the enquiry should be

fixed after 28.02.2008 as he was out of station due to the death of his

relative, the enquiry was fixed on two dates preceding 28.02.2008, i.e.

20.02.2008 and 27.02.2008. When the petitioner had specifically requested

that the matter may be fixed after 28.02.2008, we do not find any propriety

in the action of the enquiry officer to fix the matter on the immediate

previous date, i.e. 27.02.2008 when the petitioner was out of station.

Though the petitioner had raised a ground before the appellate authority

that the petitioner was not served with a notice of the enquiry to be held on

20.03.2008 and 24.03.2008, we do not find that the appellate authority has

properly dealt with this aspect. The petitioner was not only not provided

with the copy of the deposition of the witness examined on behalf of the

respondents but, the third witness was examined on behalf of the

respondents behind the back of the petitioner. It cannot be said in the

aforesaid set of facts that the enquiry was conducted by the respondents by

adhering to the principles of natural justice. The petitioner was not supplied

with the relevant documents pertaining to the charges levelled against him.

The enquiry officer had not ensured that the petitioner was made aware

about the next date of hearing before the said date and the petitioner was

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not granted an opportunity to cross-examine the witness by not supplying the

copy of the deposition of the witness examined on behalf of the respondents.

It is difficult for an employee to perceive the proceedings appropriately and

remember each and every statement made by the witness in his examination-

in-chief before cross-examining the witness. It was necessary for the enquiry

officer to have supplied the copy of the deposition of the witnesses to the

petitioner so that the petitioner could have cross-examined the witnesses.

Apart from the fact that the principles of natural justice are violated by the

respondents while conducting the enquiry, we find that the petitioner was

already punished in respect of the first charge with a 'warning'. We reiterate

that the third charge levelled against the petitioner is as vague as it could be

and the petitioner could not be said to have been given an opportunity to

defend himself in respect of the charge. In the circumstances of the case, it

could be said that the respondents were annoyed with the language used by

the petitioner in his reply to the first show cause notice as a reference is

made to the same in the memorandum dated 13.09.2007 by which the

petitioner was warned. Since a proper opportunity was not granted to the

petitioner and since an enquiry could not have been conducted against the

petitioner in respect of the first charge and since the enquiry could not have

been conducted against the petitioner in respect of the third charge in the

manner in which it is framed, the orders of the disciplinary and appellate

authority are liable to be set aside. We are also surprised that though the

charges framed against the petitioner were not so grave and serious, the

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punishment of 'removal' from service is inflicted on the petitioner. We are

inclined to set aside the impugned orders passed by the disciplinary and

appellate authority and direct the respondents to reinstate the petitioner in

service with continuity of service but in the circumstances of the case, we are

not inclined to grant the benefit of back wages to the petitioner, specially

when the petitioner has not worked during the said period.

8. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The orders of the disciplinary and appellate authority are quashed

and set aside. The respondents are directed to reinstate the petitioner in

service within one month with continuity of service but, without back

wages.

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                            JUDGE

APTE