Rajendra Singh vs U.O.I.& Ors
2015 Latest Caselaw 9517 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Judgment reserved on September 15, 2015
                               Judgment delivered on December 22, 2015
+       W.P.(C) 5304/2008 & CM APPL. 10141/2008
        RAJENDRA SINGH
                                                       ..... Petitioner
                           Through:     Mr. S.K. Das, Adv.

                           versus

        U.O.I.& ORS
                                                    ..... Respondent
                           Through:     Mr. Naushad Ahmed Khan,
                                        Advt.

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.

1. The challenge in this writ petition is to the dismissal order dated

June 18, 2008, show-cause notice dated May 16, 2008, enquiry report

dated May 12, 2008 and charge sheet dated December 28, 2007.

The Facts:-

2. Some of the relevant facts are, a show cause notice dated

September 14, 2007 was issued to the petitioner calling for his

explanation in relation to his alleged absence from duty at Raipur Unit,

as also non maintenance of the attendance register. It is the case of the

petitioner that a reply to the show cause notice dated September 24, 2007

was filed denying the allegations. Vide another Office Memorandum

dated October 9, 2007, petitioner was called upon to explain his alleged

commission of misconduct by remaining absent unauthorisedly from the

duty. Vide his reply dated October 30, 2007, the petitioner held out

assurance of discharging of his duties at Raipur Unit. A charge sheet

dated December 28, 2007 was served upon the petitioner containing four

Articles of Charge being;

(i) Disobey of Office Orders dated July 5, 2007, July 9, 2007 and July

15, 2007 violating Rule 47, Rule 44 and 33 (i) (b) & (c) of the

FISHCOPFED Staff Regulations;

(ii) Unauthorised absence from duty violating Rule 15 (iii), 31, 32(2),

33 (i) (b) & (c), 43, 44(a) and (d) of the FISHCOPFED Staff

Regulations;

(iii) Negligence of duty violating Rule 44(a), (b) & (g), Rule 33 (i), (a),

(b) & (c) and Rule 33 (ii), (iii), (iv) of the FISHCOPFED Staff

Regulations;

(iv) Insubordination and disobedience violating Rule 44(a) and (i) of

the FISHCOPFED Staff Regulations.

3. It is the case of the petitioner that he submitted the written

statement of defence dated January 8, 2008 denying the allegations

contained in the charge sheet. The Enquiry Officer appointed vide letter

dated February 4, 2008 informed the petitioner about the preliminary

hearing to be held on February 21, 2008 and February 22, 2008 at

Raipur. It is the case of the petitioner, the petitioner vide his letter dated

February 12, 2008, addressed to the Enquiry Officer, he raised certain

fundamental issues with regard to his functioning as the Enquiry Officer

and expressed his inability in the proceedings because of non payment of

salary with effect from July 2007. The petitioner would submit, that he

appeared before the Enquiry Officer on February 22, 2008 and the

Enquiry Officer refused to postpone the proceedings on the ground of

non payment of salary and passed the order advising the petitioner to

borrow money from his other sources. The petitioner, under protest, did

not attend the proceedings on March 24, 2008 and March 25, 2008 and

the Enquiry Officer proceeded ex-parte against the petitioner. The

Enquiry Officer concluded the proceedings ex-parte and submitted his

report dated May 12, 2008, wherein he had proved all the charges

against the petitioner. Another show cause notice dated May 16, 2008

was issued calling upon the petitioner to submit his representation

against the proposed penalty of dismissal from service. The petitioner

submitted his reply vide letter dated June 5, 2008. The petitioner's case

is, vide the impugned order dated June 18, 2008 issued under the

signature of the President of the Board of Directors and the respondent

No.3 i.e. the Managing Director, a penalty of dismissal from service was

imposed on the petitioner.

4. Mr. Sanjay Kumar Das, learned counsel for the petitioner would

challenge the impugned orders by stating that the order of dismissal is

unsustainable, as the same has been issued by an Authority not

empowered to issue such orders under the provisions of the Multi State

Co-operative Societies Act, 2002 by referring to Section 49 of the Act,

which inter-alia states that; (i) the Board may exercise all such powers as

may be necessary or expedient for the purpose of carrying out its

function under the Act and; (ii) Without prejudice to the generality of the

foregoing powers, such power shall include the power to appoint and

remove a Chief Executive and such other employees of the Society as are

not required to be appointed by the Chief Executive. Thus, it is the

Board of Directors of the respondent Federation, who can function as

Disciplinary Authority as neither the Staff Regulations nor bye-laws

contain any provision vesting disciplinary power either on the President

or the Managing Director or jointly by them. In any case, it is his

submission that disciplinary power has to be exercised either by the

Board of Directors or the Managing Director being appointing authority.

It cannot be by the President and the Managing Director jointly. He

would also state, that the impugned order is a non speaking order

considering the fact that none of the grounds taken by the petitioner in

his reply to the show cause notice imposing the penalty of dismissal,

have been considered by the so-called Disciplinary Authority or any

reasons recorded to that effect. He would also state, that the ex-parte

enquiry proceedings are liable to be declared vitiated as the same run

contrary to the Principles of law laid down in Ghanshyam Das

Shrivastava vs. State of Madhya Pradesh AIR 1973 SC 1183, to

contend that every Government Servant under suspension who has

pleaded his inability to attend the enquiry on account of financial

stringency by non payment of subsistence allowance to him, the

proceedings conducted against the said Government Servant ex-parte

would be in violation of provisions of Article 311 (2) of the Constitution

of India as the person concerned did not receive a reasonable opportunity

to defend himself in the disciplinary proceedings. He would also state

that the entire enquiry proceedings stands vitiated on the ground of a past

transaction between the Enquiry Officer and the Managing Director

respondent No.3 in which the respondent No.5 I.O. gave a clean chit to

the respondent No.3 in an enquiry proceeding. In this regard, he would

rely upon the judgment of the Supreme Court in the case of Manak Lal

vs. Prem Chand AIR 1957 SC 425. He also clarifies that the salary to

him was released on June 16, 2008, only after the order dated May 8,

2008 was passed by this Court in W.P.(C) No.8535/2007, whereas the

Enquiry Officer had concluded the ex-parte proceedings in a hurry on

May 12, 2008 to deny the petitioner, a reasonable opportunity of hearing.

It is also the submission of Mr. Sanjay Das that the petitioner was denied

an opportunity to prefer an appeal against the penalty order as the show

cause notice dated May 16, 2008 and order of dismissal dated June 18,

2008 were issued jointly by the Disciplinary Authority and the President

of the Board of Directors. He challenges the finding of the Enquiry

Officer on merit as well. According to him, the Enquiry Officer, in his

report solely relied upon the testimony of two prosecution witnesses; (i)

The officer of the respondent Federation who came to Raipur on

September 8, 2008 and did not find the petitioner in office on September

8, 2008 and (ii) The officer of the respondent Federation who had been

deputed to Raipur and did not find the petitioner in office at 8.25 hours

on October 12, 2007.

5. So far as the ground No.1 is concerned, the respondent Federation

observes a five day working and thus, the petitioner was under no

obligation to remain present in office on September 8, 2008, which

happened to be a Saturday and unless he was specifically instructed to do

so in the interest of the organisation. So far as other ground is

concerned, the normal office timings being 9 am to 5.30 pm, it was

obvious for the petitioner not to remain present at 8.25 hours in the

morning at the office premises when the senior officials alleged to have

visited the office and could not find the petitioner there.

6. According to Mr. Das, the first two Articles of Charge levelled

against the petitioner were disobeying of office order and negligence of

duty and the enquiry report states that the charged officer did not join

duty at transferred place of posting within stipulated time, whereas the

petitioner admittedly joined Raipur on August 13, 2007, immediately

after he was paid T.T.A on August 10, 2007 in the premises of this

Court. Similarly, the I.O., in his report, has recorded a finding to that

effect "he had challenged the said order before the Hon'ble High Court,

Delhi which was dismissed by the Hon'ble High Court" and has

admitted that "after failing from his efforts he joined the said Unit on

August 13, 2007" and concluded his finding in respect of this charge and

stated "in view of the above, the said charge is sustainable". According

to Mr. Das, it is a matter of record that T.T.A was not paid to the

petitioner despite his demand. The same was paid with the intervention

of this Hon'ble Court only on August 10, 2007, after which he

immediately joined the transferred place of posing. Therefore the

findings of the I.O., referred to above, are clearly unsustainable.

7. According to Mr. Das, the third charge levelled against the

petitioner was of negligence of duty. According to him, the documents

filed by him would show the account of his presence at Raipur, his tours

to Delhi with proper application for transfer and resuming the duty at

Raipur, final correspondence sent/received at Raipur. A letter dated

September 19, 2007, which on the one hand brings out the truth with

regard to the petitioner attending to his duty at Raipur and on the other

hand disproves all the allegations of the petitioner's absence at Raipur

and negligence of duty on the part of the petitioner. The letter reads as

under:-

"Shri Rajendra Singh, Deputy Director, Raipur (Chattisgarh) Unit of FISHCOPFED C/o Shri Jagjit Singh Bhatia, Behind Dena Bank, Kharora, Raipur (Chattisgarh)-493225.

This is in reference to your fax dated 17.9.2007 received on 18.9.2007 at 3.28 pm. You may avail the leave to attend Court Cases dated 24.9.2007 and 11.10.2007 as mentioned in your fax as per the Rules. As regards the discussions on the subject of setting up of Regional Office at Raipur and other matters at the head- office, we will direct you accordingly as and when required. As regards Congress, your presence is not required.

You are hereby directed to act accordingly."

8. Mr. Das would also submit that the fourth charge levelled against

the petitioner was insubordination and disobedience which is added to

the charge superficially not supported by evidence oral, documentary.

The enquiry report is also silent on this account. In the last, it is his

submission that the charge sheet itself should be declared illegal and

nonest as the same has been issued by the respondent No.3 whose

appointment as Managing Director is, under challenge by the petitioner

in W.P.(C) No.5594/2007. He would rely upon the following judgments

in support of his contention.

(i) Mahabir Prasad Santosh Kumar v. State of U.P & Ors (1970) AIR 1302; 1970 SCC (1) 764;

(ii) Sawai "Singh vs. State of Rajasthan 1986 (3) SCC 454;

(iii) Surath Chandra Chakrabarty vs. State of W.B 1970 (3) SCC 543;

(iv) Surjit Ghosh v. Chairman & Managing Director 1975 (2) SCC 474;

(v) U.P. Power Corporation Ltd. Vs. Virendra Lal 2013 (10) SCC 39;

(vi) Indrani Bai vs. UOI & Ors, 1994 (2) SCALE 777;

9. On the other hand, Mr. Naushad Ahmed Khan, learned counsel

appearing for the respondent Nos.2, 3 & 4 would justify the impugned

orders. According to him, the respondent No.3, who was appointed as a

Managing Director, In-charge vide Board Resolution dated October 1,

2006 and later on by a communication dated April, 23, 2008, his

appointment was approved and forwarded by the Board of Directors and

also approved and ratified by the Ministry of Agriculture, Government of

India respondent No.1 under Section 51 of the Multi State Co-operative

Societies Act, 2002 and also under bye-law 31 (1) and 38(a) of the bye-

laws of the National Federation of Fishermen's Cooperatives Ltd. The

Managing Director is competent to take disciplinary action against the

subordinate as per section 52 of the Multi State Co-operative Societies

Act, 2002 and as per bye-law 40 of the bye-laws of the Federation. He

would state, that the petitioner was transferred to Raipur and was asked

to join the Chattisgarh Unit prior to July 15, 2007 and to hand over the

charge to Sh. A.P. Ansari, which he deliberately failed to comply with.

The petitioner was time and again issued several memorandum and was

directed to join the aforesaid Unit and was also asked about his absence,

non handing over of charge, non maintenance of the attendance register

etc, to which his reply was being the same, he is not supposed to mark

his attendance in the attendance register. He would state, that one Mr.

Rajiv Kumar Singh, who was working as Marketing Assistant at

Chattisgarh at Raipur with the petitioner had pointed out that the

petitioner joined and attended the office only for two days on August 13,

2007 and August 14, 2007, which is supported by the attendance

register. Vide office memorandum, his reply regarding the unauthorized

absence was sought by the respondents and to further seek his

whereabouts. His information was also sought through Sh. Rajendra

Prasad, the then Director and Sh. S.S. Mahhour, Assistant Director on

October 12, 2007, December 20, 2007 and September 8, 2007 and the

copy of the attendance register was also sought where it was found that

he was absence throughout. In the aforesaid circumstances, the

respondents issued memorandums and initiated departmental

proceedings by charge sheet dated December 28, 2007, which was duly

approved by the Board of Directors. Since the aforesaid gravity of

charges against the petitioner was proved by duly appointed Enquiry

Officer, he was dismissed from service vide office order dated June 18,

2008. The petitioner impugned the order of transfer in W.P.(C)

No.5382/2007 in this Court, which was dismissed by this Court on July

25, 2007 and held the transfer as valid. By the said order, the

respondents were directed to clear the approval of T.T.A. Since, the

petitioner was not receiving the communications, sent by the respondents

and also the T.T.A etc, by way of orders passed by this Court in L.P.A.

No.1146/2007, the documents were directed to be accepted by the

petitioner in Court. The L.P.A., assailing the order of the Learned Single

Judge, was dismissed as withdrawn with a direction to make a fresh

representation to the Competent Authority. The Competent Authority

did not find the representation in order, therefore rejected the same.

10. He would also state, that the petitioner was promoted from the

position of the Assistant Director to the Deputy Director under the

signature of the respondent No.3 namely Mr. B.K. Mishra, who was

Managing Director, In-charge. The charge sheet having been issued by

Mr. B.K. Mishra, the petitioner cannot blow hot and cold while

accepting one order and challenging the other order issued by the same

person. He would also state, that the order of the dismissal from service

dated June 18, 2008 was issued by the Competent Authority and duly

approved by the Board of Directors. The Board of Directors further, by

way of 133rd meeting held on June 30, 2010 had declared Loss of

Confidence in the petitioner and the retention in the organisation was

undesirable. Mr. Khan would rely upon the following judgments in

support of his contention of no confidence against employee and seeks

the dismissal of the writ petition.

(i) 1972 (1) SCC Air India Corporation, Bombay vs. V.A. Rebellow and Anr;

(ii) 1972 (4) SCC 569 Francis Klein & Company Private Limited vs. Their Workmen & Anr.;

(iii) (2000) 9 SCC 521 UPS RTC vs. Mohan Lal Gupta;

(iv) (1972) 3 SCR 518 Binny Limited vs. The Workmen and another.

11. Having heard the learned counsel for the parties, even though

many grounds have been urged by Mr. Das but one ground, which

appeals this Court is the issuance of the order of penalty dated June 18,

2008 by the Managing Director respondent No.3 and the President of the

Board of Directors, which in a way prevented the petitioner from filing

an appeal, more particularly in its meeting dated June 30, 2010, the

Board of Directors had approved the order of June 18, 2008, passed by

the authorities.

12. Before I give reasoning to my observation as made above, the first

issue to be decided is who is the disciplinary authority of the petitioner,

who was competent to pass an order of the dismissal. It is the case of the

respondents that the order of promotion of the petitioner from Assistant

Director to the Dy. Director was issued by the Managing Director

respondent No.3. It is an admitted position also that the charge sheet

dated December 28, 2007 was issued by the respondent No.3 in exercise

of its powers under Section 52 of the Multi State Co-operative Societies

Act, 2002 read with Rule 34 of the Bye-laws of FISHCOPFED and

FISHCOPFED Staff Regulations. Rule 34 of the bye-laws stipulate that

the duties of the Managing Director includes;

(xiii) to select and appoint personnel and to determine the powers,

duties and responsibilities of the employees of FISHCOPFED for

ensuring proper conduct of the day to day business.

13. Some of the provisions of the Staff Regulations would reveal that

the Appointing Authority "means the authority with whom powers of

appointment of particular category of staff are vested in the bye-laws".

Regulation (6), which relates to Appointing Authority stipulate, the

Board of Directors/Managing Director shall be the appointing authority

for various categories of post as provided in the bye-laws of

FISHCOPFED. The Board/Managing Director may from time to time

delegate the powers in this regard to such authorities as it may deem fit.

I may note here that the bye-laws stipulate the functions of the Board of

Directors to include, to appoint, suspend, punish and remove the

Managing Director.

14. On a reading of the aforesaid provisions, it is clear that the Board

of Directors is the Appointing Authority of the Managing Director. The

Managing Director is the Appointing Authority of the other functionaries

including the Dy. Director, which was the post, the petitioner was

holding at the relevant point of time. Suffice to state, the position that

emerges is the Managing Director respondent No.3 was the Appointing

Authority/Disciplinary Authority of the petitioner. If that be so, the

order of penalty should have been issued by the respondent No.3 without

the interference or application of mind/assistance from any of the

Authority, more particularly, the President of the Board of Directors as

has been done in this case. Even though, there are no Rules framed for

holding of the disciplinary proceedings, it is expected that the appeal

against the order of the Managing Director as a Disciplinary Authority

would lie to a higher Authority of the Board of Directors.

15. In this case, it is also noted that the order of the penalty dated June

18, 2008 was approved by the Board of Directors not on an appeal filed

by the petitioner but on its own. This resulted in a denial of opportunity

to the petitioner to file an appeal before the Board of Directors both on

account of the order of the penalty having been passed by two authorities

including the President of the Board of Directors and secondly the Board

of Directors had itself approved the order without there being an appeal.

This has resulted in a denial of opportunity to the petitioner and the case

is covered by the recent judgment of the Supreme Court in the case of

U.P. Power Corporation Ltd. Vs. Virendra Lal 2013 (10) SCC 39,

wherein, the Supreme Court was considering a case of an Assistant

Engineer in the Electricity Department wherein for certain misconduct,

enquiry was initiated and a penalty of recovery from pension was

imposed on him. The employee challenged the penalty before the

Tribunal on the ground that there was violation of Principles of Natural

Justice, the delay in commencement of the departmental proceedings and

prejudice has been caused to the employee. In the writ petition, filed by

the Corporation, the High Court disposed of the writ petition noting the

submission made by the counsel that the Chairman is the Disciplinary

Authority, who is competent to pass the order. The justification given by

the petitioner's counsel for the power to pass an order was that since the

claimant i.e employee was a retired person, power was exercised by the

Board. The High Court was of the view, even if an employee is retired,

the power should be exercised by the same authority who has been

conferred power to work as disciplinary authority. Power cannot be

usurped by the higher authority in violation of the service rules. The

Supreme Court, after referring to the position of law and also noting the

law that an Authority higher than an Appointing Authority would also be

the Designated Authority for the purpose of imposing a punishment

subject, of course, to the condition that by reason thereof, the delinquent

officer should not be deprived of a right of appeal in view of the fact that

the right of appeal is a statutory right. However, if such right of appeal is

not embellished, an authority higher than the appointing authority may

also act as a disciplinary authority. In other words, a higher Authority

may pass an order imposing a punishment and the same would withstand

scrutiny if the right of appeal is not taken away. That apart, if the

appellate authority passes an order as the primary authority and there is

provision for further appeal or revision or review, it cannot be said that

the said order suffers from any illegality. In the case in hand, the order

of the penalty was passed by the Managing Director respondent No.3

and the President of the Board of Directors. The said order was

approved by the Board of Directors subsequently not in an appeal filed

by the petitioner. It is as good as saying that it is the Board of Directors,

which had passed the order of penalty. As there is no further Authority

to whom an appeal could lie, the order stands vitiated. I set aside the

order of penalty dated June 18, 2008. The judgments relied upon by Mr.

Khan, on loss of confidence have no applicability on the point on which

I have decided the writ petition.

16. During the course of submissions, I was informed that the

petitioner had reached the age of superannuation. It is also noted that in

a separate proceedings, the petitioner was further imposed a penalty of

dismissal which is a subject matter of Writ Petition No.1084/2011, in

which judgment is reserved.

CM No.10141/2008

17. In view of the order passed in the writ petition, the present

application is dismissed as infructuous.

(V.KAMESWAR RAO) JUDGE

DECEMBER 22, 2015 AK