Mr. R.R. Arya vs Indian Oil, Corporation Ltd. ...
2021 Latest Caselaw 2458 Bom

                                                                    9.wp.7321.18.doc

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 7321 OF 2018

   R.R. Arya                                     ...     Petitioner
             Versus
   Indian Oil Corporation Ltd.
   through its General Manager & Ors.            ...     Respondents
                                         .........


   Mr. Abhijeet Desai a/w Ms. Surabhi Agrawal i/b Desai Legal for the Petitioner.
   Mr. K.P. Anilkumar a/w Mr. Amit Saple, Ms. Priyanka Kumar, Ms. Roshni
   Vipani, Mr. Chinmay Apte for the Respondent Nos.1 and 2.
                                      .........


                                    CORAM        :     K.K. TATED &
                                                       R.I. CHAGLA, JJ.

                                    DATE         :     8th FEBRUARY, 2021.

   P.C. :-



   1              Heard learned Counsel for the parties.

   2              The learned Counsel Mr. Abhijeet Desai appearing on behalf of the

Petitioner submits that all the Respondents are duly served including

Respondent No.3 who filed the complaint against the Petitioner. He submits

that the Petitioner undertakes to file affidavit of service within one week from

today. Statement is accepted.

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   3            By this Petition, under Article 226 of the Constitution of India, the

Petitioner is seeking setting aside of the orders dated 09.08.2016 and

30.05.2017 passed by the Respondent Nos.1 and 2 respectively and for

reinstating the Petitioner at his original post.

4 The learned Counsel appearing on behalf of the Petitioner submits

that in the present posting Respondent No.3 filed a complaint of sexual

harassment with the Respondents. Therefore, the Respondents issued a

chargesheet and conduct the enquiry. He submits that the competent

disciplinary authority has given its finding by order dated 09.08.2016 without

considering the reply filed by the Petitioner. He submits that bare reading of

the said order shows that the competent disciplinary authority passed the

order only stating that they have considered all the facts. He relies on the

operative part of the said order which reads thus :

"I, therefore agree with the findings of the Inquiry Officer and I find the following acts of misconduct as per Conduct, Discipline & Appeal Rules, 1980 of the Corporation stands proved against you

7(17) - Sexual harassment

7(26) - Leveling malicious or false allegations

7(30) - Commission of any act subversive of discipline or of good behaviour.

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               As     such   having   applied   my    mind   and   taking    into

consideration the facts and circumstances of the case as brought out on records, I hereby inflict upon you the penalty of "Reduction to a lower grade" i.e. from Grade 'E' to 'C' with immediate effect as a measure of disciplinary action against you.

Upon inflicting the above penalty, you will be placed in Grade C with the scale of pay being Rs.32,900/- to 58,000/- and monthly basic pay being fixed at Rs.58,000/-. Further your date in grade in the reduced grade 'C' will be reckoned from the date of your original seniority in that grade i.e. 19.04.1999.

You are further informed that as per provision contained in rule 38 of the Conduct, Discipline & Appeal Rules, 1980 of the Corporation, you may, if you so desire, prefer an appeal against the order of penalty within 60 days from the date of receipt of this order. The appeal may be addressed to the Appellate Authority i.e. Chairman through the undersigned."

5 The learned Counsel for the Petitioner submits that being

aggrieved by the said order, the Petitioner preferred Appeal before the

Appellate Authority i.e. Chairman of the Respondent. He submits that even

the Appellate Authority i.e. Chairman without considering the ground raised

by the Petitioner in his Appeal passed the order which reads thus :

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" Having applied my mind to the facts and circumstances of the case, I find that the Competent Disciplinary Authority has considered all aspects of the case before taking final decision in the matter. I also find that Shri R.R. Arya has not brought out any extenuating facts/circumstances which may warrant reconsideration of the CDA's order dated 09.08.2016 in the case. I therefore agree with the orders passed by the Disciplinary Authority.

Shri R.R. Arya's appeal therefore stands disposed of accordingly."

He submits that the Petitioner raised the following grounds Nos. IV and V also

in the Appeal memo which was filed before the Chairman, Indian Oil

Corporation Ltd., the Appellate Authority under the Conduct, Discipline &

Appeal Rules, 1980, which reads thus :

"IV. That the Ld. CDA without proper application of mind, without proper appreciation of evidence and material available before him and in a superficial and shoddy way passed an order against the appellant bearing No: IR/1461/W-352 dated 09.08.2016 of 'Reduction to a lower grade' and ordered the lowering of appellant's grade from "E" to "C" with immediate effect.

V. That the order even otherwise is beyond the rules as the under Rule 29 penalty can be reduction by one grade. This is clear from the rule which provides for reduction to "a"

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               lower grade.    The rule does not provide for reduction to

"any" lower grade. In the true text and spirit of rules the punishment if attracted under rule 29(10) is reduction to a lower grade which means a grade lower than the grade being held."

6 The learned Counsel for the Petitioner submits that 'Reduction to

a lower grade' as per the Conduct, Discipline & Appeal Rules 1980, amended

up to 23.12.2014 is major penalty. He submits that in the present proceedings,

the Respondents punished the Petitioner by reducing his grade from "E" to "C"

which is contrary to the said Rules. He submits that as per the rules, at the

most, they can reduce the Petitioner's grade from "E" to "D" only. In support of

this contention, he relies on Rule No. 29 i.e. Penalties and particularly Rule

29(10) which reads thus :

"10) Reduction to a lower grade."

He further submits that the procedure to impose major penalties is

given in Rule 31 which is not followed by the Respondents. In support of his

contention, he relies on Rule 31 (4) which reads thus :

"31 (4) On receipt of the written statement of the employee, or if no such statement is received within the time specified, an inquiry may be held by the Disciplinary Authority itself, or by an inquiring authority so appointed by the Disciplinary Authority under sub-clause(2).

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Provided that it may not be necessary to hold an inquiry in respect of the charges admitted by the employee in his written statement. The Disciplinary Authority shall, however, record the admission(s) and its consequent findings on each such charge, and may proceed to impose penalty on the basis of such admission(s) with or without proceedings to hold an inquiry into the charges not admitted."

7 The learned Counsel for the Petitioner submits that if the

Respondents has not followed the said Rules, then the impugned orders are

required to be set aside. In support of this contention, he relies on the

judgment of the Apex Court in the matter of G. Vallikumari Vs. Andhra

Education Society and Others, reported in MANU/SC/0083/2010 para 13

which reads thus :

"13. We shall now deal with the question whether the Division Bench of the High Court was justified in setting aside the direction given by the Tribunal for reinstatement of the appellant with consequential benefits. Shri Y. S. Rao, who conducted inquiry against the appellant submitted report dated 4.7.1999 with the findings that all the charges except charge No.4 have been proved against the appellant. She was given a copy of the inquiry report along with show cause notice to which she filed reply dated 20.11.1995. In his order, the Chairman of the Managing Committee did refer to the allegations leveled against the appellant and

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representation submitted by her in the light of the findings recorded by the inquiry officer but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120(1)(iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the concerned authority."

8 On the basis of these facts, the learned Counsel for the Petitioner

submits that in the interest of justice, pending the hearing and final disposal of

the present Writ Petition, this Hon'ble Court be pleased to stay the operation

and implementation of both the orders passed by the Authority.

9 The learned Counsel for the Petitioner submits that this Court by

order dated 15.12.2020 directed the Counsel for Respondent Nos.1 and 2 to

take instructions from the concerned authority, whether they are ready and

willing to re-hear the matter on its own merits. During the course of

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arguments Respondent Nos.1 and 2 made a statement that they are not

agreeable for rehearing of the Appeal.

10 On the other hand Mr. K.P. Anilkumar for the Respondent Nos. 1

and 2 submits that the procedure followed by them is according to law. He

submits that considering the conduct of the Petitioner, instead of dismissing

the Petitioner from service, the Respondents impose the major penalty i.e.

reducing his grade from "E" to "C". He submits that it is not necessary to

reduce the Petitioner's grade only from "E" to "D". He submits that the bare

reading of Rule 29(10) i.e. Reduction to a lower grade means the Authority

can reduce the grade of the officer to second or third level also.

11 On the basis of this submission, the learned Counsel for the

Respondents submits that there is no question of entertaining the present

Petition. Same is required to be dismissed with costs.

12 We have heard at length. It is to be noted that bare reading of the

conduct, Discipline and Appeal Rules 1980 and the impugned orders passed by

the authorities clearly shows that, they failed and neglected to give findings to

the objections/grounds raised by the Petitioner. Not only that the impugned

order of the Appellate Authority shows that the Appellate Authority has

decided the entire Appeal only in one para, without giving any reasons and/or

considering the objections/grounds raised by the Petitioner. The objections/

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grounds raised by the Petitioner in the present Petition is fully covered by the

judgment of Apex Court in the matter of G. Vallikumari (Supra).

13 In view of these facts, we are satisfied that the Petitioner has

made out a case for admission. As Respondent Nos.1 and 2 is not ready and

willing to hear the Appeal on its own merits, the following order is passed:

                                  i)     Admit.


                                  ii)    Pending the hearing and final disposal of Writ Petition, the

operation and implementation of the impugned orders dated

09.08.2016 and 30.05.2017 passed by Respondent Nos.1 and 2

respectively is stayed.

iii) The learned Counsel Mr. K.P. Anilkumar for the Respondents

waives service for Respondent Nos.1 and 2.

                                  iv)     Hearing of the Petition is expedited.


            Digitally
            signed by
            Waishali S.
Waishali S. Waghmare
Waghmare Date:
            2021.02.14
            23:01:55
            +0530

                          ( R.I. CHAGLA, J. )                                     ( K.K. TATED, J. )




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