Daya Chand-I vs National Thermal Power Station
2003 Latest Caselaw 1389 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner was employed by the respondent on security duty. On 4.4.1998 he was inflicted the punishment of dismissal from the service. The said order was passed by the respondent pursuant to the power vested in it under Rule 25 of the Standing Orders. Rule reads as under:

"25. Special Procedure in Certain Cases--

Notwithstanding anything contained in Standing Order No. 24, the Disciplinary Authority may impose any of the penalties specified in Standing Order No. 23 in any of the following circumstances:

(i) the workman 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 by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these Standing Orders; or

(iii) where the Disciplinary Authority is satisfied that in the interest of the security of the Corporation/company, it is not expedient to hold an enquiry in the manner provided in these Standing Orders."

2. The Disciplinary Authority exercised its power under Sub-clause (ii) of the Rule and dispensed with an enquiry before passing the order in question.

3. The facts which lead to passing of the order were, that on 1.1.1997, petitioner was deputed at the residence of Shri B.N. Ojha, Director (Operation) at his residence in the Asian Village Residential Complex. A report was received that the petitioner had indulged in certain unnatural acts with a child by leaving his place of duty without permission. The child aged six years named Kausar, was residing in the garage attached to Flat No. 173 of the same complex. The petitioner was allegedly caught red handed by the parents of the child and some neighbourers.

4. When the incident was reported to the respondent, it was processed and vide order dated 7.11.1997, petitioner was placed under suspension.

5. A show cause notice dated 20.11.1997 was issued to the petitioner. It was stated in the notice to show cause that petitioner had indulged in the act of molestation of Kausar between 2-2.30 p.m. He was caught red-handed by the parents of the child and some neighbourers. The matter was very serious and keeping in mind the psyche of the child and the request of the parents that confidentiality be maintained, the petitioner was being put to notice as to why he be not dismissed from service.

6. Petitioner sent his reply dated 10.2.1998. He denied the charge. He pointed out that in the suspension order, time of incident was mentioned between 12 and 12.30 noon whereas in the show cause notice the time mentioned was 2-2.30 p.m. Petitioner took the stand that the story was totally fabricated. The Competent Authority considered the matter and proceeded to inflict the punishment of dismissal from service. The order of dismissal was communicated to the petitioner under cover of letter dated 4.4.1998 written by the Deputy Manager (P&A).

7. Petitioner filed an appeal dated 21.4.1998. The same was dismissed on 12.11.1999. The present petition, was filed during the pendency of the appeal. Prayer made is that the order dated 4.4.1998 be set aside or in the alternative, directions be issued to the respondent to decide the appeal.

8. As regards the alternative prayer, appeal stood decided on 12.11.1999 during the pendency of the writ petition. The said fact was communicated to the petitioner.

9. Three contentions have been raised by the Counsel for the petitioner at the hearing. The first contention raised was that no case was made out to proceed against the petitioner under Rule 25. The second contention was that there was no material before the authorities to take action and the third contention raised was that the order of termination was passed by the Deputy Manager (P&A). The Competent Authority of the petitioner was the Deputy General Manager who alone was empowered to act as the Disciplinary Authority of the petitioner.

10. The issue as to when an authority can dispense with enquiry has received the attention of Courts from time to time. Power of the employer to dispense with the enquiry has been upheld by the Courts. However, exercise of this power has been held to be strict and applicable to exceptional circumstances. In the judgment , Workmen of Hindustan Steel Ltd. v. Hindustan Steel Limited., Hon'ble Supreme Court held:

"When the decision of the employer to dispense with enquiry is questioned, the employer must be in a position to satisfy the Court that holding of the enquiry will be either counter-productive or may cause such irreparable and irreversible damage which in the facts and circumstances of the case not be suffered. This minimum requirement cannot and should not be dispensed with to control wide discretionary power and to guard against the drastic power to inflict such a heavy punishment as denial of livelihood and casting a stigma without giving the slightest opportunity to the employee to controvert the allegation and even without letting him know what is his misconduct."

11. In a case of sexual misconduct, the Hon'ble Supreme Court in the judgment ; Avinash Nagra v. Navodaya Vidyalaya Samiti, held as under:

"It is seen from the record that the appellant was given a warning of his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the Girls Hostel at 10 p.m. in the night and asked the Hostel helper, to misguide the girl by telling her that Bio-Chemistry Madam was calling her; believing the statement, she came out of the hostel. She was an active participant in cultural activities. Taking advantage thereof, he misused his position and adopted sexual advances towards her. When she ran away from his presence, he pursued her, to the room where she looked herself inside, he banged the door. When he was informed by her room mates that she was asleep, he rebuked them and took the torch from the room and went away. He admitted his going there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to an Inquiry Officer, namely, Asstt. Director. After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him to be not worthy to be a teacher in the institution. The Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls for tortuous process of cross-examination."

12. Thus, where a disciplinary enquiry is dispensed with on the plea that it was not reasonably practicable to hold one, the Court must be satisfied that it was not a colourable exercise or a mala-fide action of the employer. The employer was to satisfy the Court that good and objective reasons existed showing both proof of misconduct and the reasons for dispensing with the enquiry. This minimum requirement cannot and should not be made to suffer.

13. What are the objective facts on hand. Record of the respondent shows that parents of Kausar made a complaint on 1.11.1997 pointing out that they had caught the petitioner red-handed performing objectionable acts with their daughter at about 2.30 p.m. They had told Mr. B.N. Ojha (where the petitioner was deputed), who told them to report at Badarpur. That is why the complaint was being made at the Badarpur office. It was stated in the complaint that they had not reported the matter to police as they feared risk of their life and property from the petitioner. When this complaint was received, the Competent Authority passed orders immediately recalling the petitioner from duty. The Deputy General Manager, who admittedly was the competent as well as the Disciplinary Authority of the petitioner, recorded that the matter was serious requiring an immediate recall of the petitioner. He passed orders on the file that the matter be investigated and the petitioner's version be taken. Petitioner was recalled. He did not attend the office on 2.11.1997. On 2.11.1997, a letter was issued to the petitioner requiring his presence in the office on 3.11.1997 at 11 a.m. to ascertain his version of the incident. As per the counter affidavit filed, the petitioner, at the first instance, refused to accept the letter, however, on being persuaded, he received the letter. The petitioner did not appear on 3.11.1997. A letter was issued to him on 3.11.1997 requiring his presence at 3.00 p.m. Same was received by the petitioner but he did not report at the office. Petitioner stopped reporting to his office. The Competent Authority directed Shri S.P. Singh, Assistant Security Officer to investigate the matter and submit his report by 5.11.1997. Shri S.P. Singh, conducted investigation and submitted his report. He reported that the neighbourers, who were residing next to the house of Shri B.N. Ojha, namely, Smt. and Shri Guha had seen through their window that the petitioner had fondled the child and made her naked. He also reported that indeed, the petitioner was caught red-handed by the parents of the girl and some neighbourers. On the report of Shri S.P. Singh, the Competent Authority i.e. Deputy General Manager constituted a three-member team consisting of Shri Vinay Kachroo, Senior Manager (Administration), Ms. Savita Bahmani, Manager (Law) and Shri Pushpinder, Personnel Officer (IR) to submit a report. This enquiry team was constituted on 6.11.1997.Petitioner, as noted above, was placed tinder suspension on 7.11.1997.

14. The Enquiry Committee recorded the statements of various persons. They visited the site. The victim Kausar was examined. The Committee members visited Flat No. 175, where they met Mrs. Guha, who confirmed that she had witnessed the incident. She informed that her husband was an IAS officer.

15. The Competent Authority before whom the matter was placed directed issuance of notice to show cause to the petitioner. On 2.12.1997, the following show cause notice was issued to the petitioner.

"Approval has been received from the Competent Authority which is conveyed to you as under:

It has been reported that on 1.11.1997 when you were on duty from 8.00 a.m. to 8.00 p.m. at the residence of Shri B.N. Ojha, Director (Operation) at Asian Village Residential Complex, you have unauthorisedly left your duty place . and indulged into act of molestation of a child of 6 years named Kausar the daughter of Shri Rajju and Smt. Meenu who are residing in the Garage attached to Flat No. 173 of the same Complex. It has been reported that you had indulged in this act between 2 noon and 2.30 p.m. You were caught red-handed while indulging the said act by the parents of the child and also by some neighbourers.

The said matter has not been reported to the Police Authorities reportedly under fear of adverse repercussion from your end and also due to fear of danger to their life and property. On receipt of report, the management had immediately placed you under suspension vide Order No. BTPS : Discpl : 97:948-54 dated 7.11.1997. Further investigation has been carried out in the incident and it has been found that you have indulged in the said act of the molestation.

The above matter is very serious and grave and violates not only the laws of the land, and apart from being misconduct under all rules is also against the sense and sensibilities of any civilised society. Keeping in mind the sensitivity of the matter, especially the psyche of the child and her parents who had requested for maintaining confidentiality, it has been decided to take action against you under Clause 25 of the Certified Standing Orders which states as under:

Clause 25:

Notwithstanding anything contained in Standing Order No. 24, the Disciplinary Authority may impose any of the penalties specified in Standing Order No. 23 in any of the following circumstances:

(i)    ...............
 

(ii)    Where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in these Standing Orders:
 

(iii)   ....................
 

The Disciplinary Authority has carefully gone through the evidence, brought on record during the investigations, and is satisfied that you have committed the said crime, which has been rendered all the more serious, as you are in the security and duty bound to protect the life and property, instead of indulging in such acts of moral turpitude.

Keeping in view the gravity of the charges against you, especially where it is not reasonably practicable to hold an enquiry as provided in the Standing Orders, in order not to subject the child and her parents to further trauma, it has been decided to dismiss you from the services of NTPC w.e.f. 1.11.1997, as is envisaged in Clause 23(ii)(e) of the Certified Standing Orders.

You are hereby given 10 days from the date of receipt of this show cause to explain as to why the proposed punishment of dismissal should not be made absolute.

Please note that if no reply to this show cause is received within the stipulated period, then it shall be construed that you have nothing to say in the matter and further necessary action as deemed fit will be taken."

16. Petitioner submitted a reply. The same was considered by the Competent Authority who passed orders on the file on 4.4.1998 rejecting the reply filed by the petitioner and confirmed the proposed penalty. Order was communicated to the petitioner by a letter issued under the signatures of the Deputy Manager. However, in the communication addressed to the petitioner, it was clearly mentioned that "this issues with the approval of the Competent Authority".

17. Records, as noted by me above, clearly show that the order under which the Enquiry Committee was constituted was issued by the Disciplinary Authority of the petitioner, namely, the Deputy General Manager. It was he who issued the notice to show cause and it was he who approved the order of dismissal. The first contention raised, therefore, fails.

18. As regards the second and third contentions, the two may be taken up together. Record shows that when the incident came to the notice of the authorities, petitioner, was duly notified. He was required to attend the office to give his version. The petitioner deliberately did not attend the office. Petitioner himself did not avail the opportunities of being heard. The authorities took all care and caution to give transparency. Spot investigations were made firstly by Shri S.P. Singh, Assistant Security Officer who examined the witnesses and gave the report. Based on the report, a three-member team was constituted to act as an Enquiry Committee. This Enquiry Committee recorded statements of plea who were eye-witnesses and submitted a report inducting the petitioner. Petitioner was put to notice before the impugned order was passed.

19. The petitioner had sought to contend that on the face of it, evidence showed that the charge was frivolous. Counsel contended that in the suspension order, time of incident stated to be 12-12.30 noon but in the notice to show cause the time mentioned was 2-2.30 p.m. This has been aptly explained by the respondent to be the typographical error.

20. Counsel for the petitioner relied upon the judgment passed by the learned Single Judge of this Court in CWP No. 984/96 decided on 4.1.1999 wherein, in a case of sexual misconduct with a woman, authority concerned while dispensing with the enquiry had proceeded to inflict order of termination, same was set aside by the learned Single Judge. The judgment cited holds me no further inasmuch as same was over-ruled by the Division Bench of this Court in the judgment ; Union of India v. Ex Sgt. Avimanyu Panda.

21. In find no infirmity in the impugned order dated 4.4.1998. The writ petition is accordingly dismissed.