Additional D. G. O. F. And Member, ... vs Dnyaneshwar Baburao Bhende
2017 Latest Caselaw 4975 Bom

 2507WP3500.15-Judgment                                                                         1/8


              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. 

 ---------------------------------------------------------------------------------------------------
               Mr.U.M.Aurangabadkar, A.S.G.I. for the petitioners.
                  Mr. Y.R.Sonkusare, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------


                                        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.

2507WP3500.15-Judgment 2/8

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

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.

2507WP3500.15-Judgment 4/8

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

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.

2507WP3500.15-Judgment 6/8

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

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

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