Delhi High Court
J. Khushalani vs Badarpur Thermal Power Station ... on 5 May, 2015
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3361/1992
Reserved on : 27.03.2015
Pronounced on : 05.05.2015
IN THE MATTER OF:
J. KHUSHALANI ..... Petitioner
Through: Petitioner in person.
versus
BADARPUR THERMAL POWER STATION AND ORS ..... Respondents
Through: Mr. J.C. Seth, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
1. In this petition, challenge has been laid by the petitioner to
the order dated 30.07.1991 passed by the Disciplinary Authority,
imposing upon him a penalty of withholding two increments with
cumulative effect and praying inter alia for release of his withheld
increments.
2. Before proceeding to deal with the submissions made by the
parties, it is necessary to recapitulate the facts of the case. On
12.09.1980, the petitioner was appointed as a Supervisor, Grade-I
(P) in the pay scale of `630-30-1050 in the respondent
No.1/Badarpur Thermal Power Station (in short „BTPS‟). Vide order
dated 11/14.06.1985, he was promoted as Senior Supervisor in the
pay scale of `950-45-1040-50-1540. On 28.12.1990, the
respondents served a memorandum on the petitioner under Rule 27
of the NTPC Conduct, Discipline and Appeal Rules, 1977 (in short
„CDA Rules‟), enclosing therewith a statement of imputation of
misconduct and called upon him to make a representation in
response to the proposal to take disciplinary action against him. As
per the statement of imputation of misconduct, the respondents
had found that the petitioner had abused the medical
reimbursement facility provided to the employees as a welfare
measure, by submitting 12 false medical reimbursement claims to
the extent of `10,154.05 paise for his dependent wife and two
children for the period between September, 1989 and March, 1990.
It was alleged that out of the 12 prescriptions mentioned in the
statement of imputation, the petitioner had secured 11
prescriptions in the name of his wife and two dependent children by
showing some other patients to Dr. Raj Kumar, Deputy Medical
Superintendent, Deen Dayal Upadhyay Hospital. Based on the
aforesaid findings, it was alleged that the petitioner had committed
an act of misconduct in terms of Rule 5(5) of the CDA Rules,
exhibited lack of integrity and indulged in a conduct unbecoming of
a public servant, thus violating Rule 4(1) and (3) of the above
Rules.
3. The petitioner had submitted a reply dated 25.01.1991 to the
aforesaid memorandum, denying all the allegations levelled against
him. Not satisfied with his reply, the respondents/BTPS issued the
impugned order dated 30.07.1991, holding inter alia that the
petitioner had abused the medical reimbursement scheme of the
company that had caused wrongful pecuniary benefits to him and
wrongful loss to the company. As a result, a penalty of withholding
two increments with cumulative effect was imposed on the
petitioner. The petitioner filed an appeal against the said order,
which was dismissed by the Appellate Authority vide order dated
31.03.1992.
4. Aggrieved by the aforesaid decision, the petitioner had filed
the present petition in August, 1992. Pertinently, in the prayer
clause, the petitioner had prayed for quashing of the order dated
30.07.1991 passed by the Disciplinary Authority, but he did not
assail the order dated 31.03.1992, passed by the Appellate
Authority.
5. Notice was issued in the present petition on 24.09.1992.
After the pleadings were completed, the petition was admitted for
regular hearing on 18.05.1994. In the year 2009, the petitioner
had filed an application, proposing to amend the writ petition by
adding six more prayers (CM APPL. 4592/2009). Vide order dated
17.09.2009, the amendment application was dismissed with an
observation that the said application was an attempt on the part of
the petitioner to proceed de novo with the case, which was
impermissible. However, he was granted leave to raise legal pleas
during the course of arguments. The petitioner sought a review of
the aforesaid order by filing a review application, being R.A.
No.406/2009, which came to be dismissed on 23.10.2009.
6. Discontended by the aforesaid order, the petitioner had filed
an intra-court appeal, registered as LPA No.601/2009. On
07.01.2010, when the said appeal was listed before the Division
Bench, learned counsel for the petitioner/appellant had stated on
instructions from his client that only prayer (b) as mentioned in the
amendment application be permitted to be added in the writ
petition. It was also recorded in the order passed by the Division
Bench that the petitioner/appellant did not wish to make any
further averments in the writ petition in support of the aforesaid
prayer and instead, he sought leave to rely on certain decisions of
the Supreme Court to substantiate the said prayer. Taking into
consideration the submission made by learned counsel for the
petitioner/appellant, the aforecited appeal was allowed and the
petitioner was permitted to amend the writ petition by adding the
following prayer (b):-
"(b) That the penalty of withholding of two increments with
cumulative effect under Rule 23(b) of NTPC (CDA) Rules is
Major Penalty which cannot be imposed on the petitioner
without adhering to the procedure for imposition of major
penalty and therefore Rule 23(b) is contrary to
law/clarification already given by various Hon‟ble Courts."
7. Thereafter, pleadings were completed in respect of the
amended writ petition and the matter was once again placed in the
regular cause list. On 24.01.2013, when the matter came up for
hearing and none appeared on behalf of the petitioner, the writ
petition was dismissed in default. Subsequently, an application for
restoration was filed by the petitioner (CM APPL. 2861/2013),
which was allowed vide order dated 13.08.2013, subject to
payment of costs and the petition was restored to its original
position. This takes care of the factual background of the case and
the sequence of events that have taken place after the present
petition was filed.
8. The first grievance raised by the petitioner, who appeared in
person, is that on 28.12.1990, when the respondents/BTPS had
issued him a memorandum, he had asked for some documents to
enable him to file a comprehensive reply, but the respondents had
failed to furnish him the said documents and resultantly, he could
not meet the allegations levelled against him. Secondly, the
petitioner had raised a grievance that the impugned order dated
30.07.1991 bears the signature of the Manager (Training), who was
not authorized by the Competent Authority to issue the same and
nor did the Rules provide that the Competent Authority could
authorize any officer to exercise such powers that were exclusively
vested in him. In support of the above submission, he had referred
to Rules 3 (d) and (e) of the CDA Rules that define the words,
"Board" and "Competent Authority" and urged that in his case, the
Deputy Manager was the Competent Authority, whereas the
impugned order was issued by the Manager (Training), who was
superior to the Deputy Manager in the order of hierarchy and
therefore, he could not have passed the said order and nor could
the Deputy Manager have authorized his superior officer to exercise
the powers vested in him. To substantiate the said submission, the
petitioner had relied on the following decisions of the Supreme
Court:-
(i) Longmal and Ors. vs. Superintendent of Police, Ajmer and
Ors. reported as AIR 1967 Rajasthan 214
(ii) Kashinath Dikshita vs. UOI and Ors. reported as (1986) 3
SCC 229
(iii) M. Gnanamma vs. Managing Director, Andhra Pradesh State
Financial Corporation and Ors. reported as 1993 (5) SLR
(iv) Managing Director, ECIL, Hyderabad Vs. B. Karunakar
reported as (1993) 5 SLR 532
(v) State Bank of India and Ors. vs. D.C. Aggarwal and Anr.
reported as (1993) 1 SCC 13
(vi) Surjit Ghosh vs. Chairman & Managing Director, United
Commercial Bank and Ors. reported as (1995) 2 SCC 474.
9. It was next argued by the petitioner that before passing the
impugned order, the respondents had failed to furnish him a copy
of the Inquiry Report and the documents, that have now been
placed on record and on the basis whereof a decision was taken to
impose a penalty on him. He had particularly referred to Rule 28
of the CDA Rules that prescribes that orders made by the
Disciplinary Authority under Rule 26 (Action on the Inquiry Report)
and Rule 27 (Procedure for imposing minor penalty) shall be
communicated to the employee concerned, who would also be
supplied a copy of the inquiry report, if any. It was the petitioner‟s
stand that even if the Rules do not require a copy of the Inquiry
Report to be supplied to him, the same ought to have been
furnished.
10. The petitioner went to great lengths to read the statement of
imputation enclosed with the memorandum dated 28.12.1990 and
urged that it would be apparent therefrom that no case of
misconduct could have been made out against him and the charges
levelled against him had been trumped up. He claimed that the
senior officers of the respondents had harboured some ill-will
against him as he was an active office bearer of the Trade Union of
the Supervisory Staff engaged in the respondent No.1/BTPS and he
had to take the brunt for having remained in the forefront. He also
urged that the respondents were trying to shield the Deputy
Medical Superintendent of Deen Dayal Upadhyay Hospital, which
fact as per him, would be borne out from a perusal of the note file
extracted and enclosed by the respondents as Annexure-A (colly.)
to the counter affidavit in response to the amended writ petition.
11. Lastly, the petitioner had contended that withholding of two
increments by the respondent/BTPS amounted to inflicting a major
penalty on an employee under Rule 23 which categorizes minor
penalties and major penalties under two sub-heads. It was the
petitioner‟s stand that the net effect of imposing the penalty of
withholding two increments on him would take the said penalty out
of the scope of minor penalties listed under Rule 23 (b), and place
it in the ambit of a major penalty as envisaged under Rule 23(e).
As per the petitioner, the quantum of financial loss suffered by him
due to withholding of two increments of pay, with or without
cumulative effect, would have translated into a sum of `10
lacs(approx.). To demonstrate the real effect of the penalty
imposed under Rule 23(b), which stipulates withholding of
increments of pay with or without cumulative effect, vis-à-vis Rule
23(e), which prescribes reduction to a lower grade or post or to a
lower stage in a time scale, the petitioner had referred to the
following decisions:-
(i) Jagjiwan Chand vs. Rajasthan High Court and Ors. reported
as 1989 LAB.I.C. 826 (Rajasthan)
(ii) Kulwant Singh Gill vs. State of Punjab reported as JT 1990
(4) SC 70
(iii) T.R. Goswami vs. Delhi Electric Supply Undertaking reported
as 1992 LLR 451
12. Mr. J.C. Seth, learned counsel for the respondents/BTPS had
opened his arguments by submitting that the impugned order dated
30.07.1991 passed by the Disciplinary Authority had merged in the
order dated 31.03.1992 passed by the Appellate Authority but for
reasons best known to him, the petitioner had elected not to
challenge the final order dated 31.03.1992. He had pointed out
that the petitioner had filed the present petition in August, 1992,
and by the said date, the Appellate Authority had already passed
the order dated 31.03.1992, upholding the penalty imposed on him
by the Disciplinary Authority, vide order dated 30.07.1991.
Thereafter, the petitioner had waited for seventeen years before
approaching the Court for seeking an amendment to the writ
petition, which request was partly allowed by the Division Bench in
terms of the statement made by his counsel and recorded in the
order dated 07.01.2010. Even at that stage, the petitioner did not
take any step to ask for amendment to the prayer clause by adding
a prayer for challenging the order dated 31.03.1992 passed by the
Appellate Authority. It was therefore urged that when the petitioner
has not questioned the order of the Appellate Authority, then the
writ petition as filed, seeking quashing of the order passed by the
Disciplinary Authority would not be maintainable and is liable to be
dismissed outright.
13. On merits, learned counsel for the respondents/BTPS had
disputed the submission made by the petitioner that though he had
approached the respondents with a request for furnishing him
certain documents so as to enable him to prepare a response to the
memorandum dated 28.12.1990, they had declined the said
request. To counter the said submission, he had drawn the
attention of the Court to the document filed on behalf of the
respondents at page 125 of the paper book, which is a part of the
original counter affidavit, filed under index dated 30.10.1993. The
said document is a copy of the letter dated 28.12.1990, addressed
by the petitioner to the Manager (Training), NTPC in respect of the
memorandum dated 28.12.1990 stating inter alia that the
statement of imputation did not contain any enclosure and
requesting that photocopies of all the documents (prescriptions)
referred to in the said statement be supplied to him at the earliest.
Learned counsel for the respondents/BTPS stated that the
documents asked for were duly furnished to the petitioner under
cover of letter dated 12.01.1991 (Annexure R-6), which had
mentioned the enclosures, namely, a list with the details of the bills
and photocopies of the medical prescriptions (24 Nos). He had also
pointed out that the said letter bears the signatures of the
petitioner in token of acknowledging receipt of the said documents.
14. As for the petitioner‟s claim that vide letter dated
08.08.1991, he had asked the respondents/BTPS to supply him
some documents, which were allegedly not furnished to him,
learned counsel for the respondents had argued that the said letter
had lost its relevance because by the time the petitioner had asked
for more documents, the impugned order dated 30.07.1991 had
already been passed by the Disciplinary Authority, whereafter he
had proceeded to file an appeal against the said order on
30.08.1991.
15. In reply to the second ground taken by the petitioner to assail
the impugned order by questioning the authority and competence
of the officer, who had passed the said order, learned counsel for
the respondents/BTPS had submitted that when the memorandum
dated 28.12.1990 was issued to the petitioner, he was working in
the pay scale of `950-1540 and the Schedule of Delegation of
Powers in respect of the disciplinary matters enclosed with the
amended CDA Rules, would reveal that his Disciplinary Authority
was the "Deputy Manager". He placed reliance on Rule 24 of the
CDA Rules to strenuously urge that the Disciplinary Authority as
specified in the said Schedule or any authority higher than the said
authority, was equally empowered to impose any of the penalties
set out in Rule 23. He submitted that in the present case, no doubt
the Deputy Manager was authorized to impose a minor penalty on
his subordinates, including the petitioner herein, but the penalty
order against the petitioner was passed by the General Manager
who was equally authorized to do so and only because the said
order was communicated to him by the Manager (Training), did not
make it an invalid order. To substantiate the said submission,
learned counsel for the respondents/BTPS had relied on the extract
of the note file of the Department, enclosed as Annexure R-5 to the
affidavit dated 31.07.2014.
16. In support of his argument that communication of an order
approved by the Competent Authority meets the norm even if it has
been communicated by another officer, learned counsel for the
respondents had relied on the decision of the Supreme Court in the
case of Union of India and Ors. vs. Sumitra Devi and Ors. reported
as 2000 (9) SCC 326. To buttress his submission that stoppage
of two increments with cumulative effect would not convert the said
penalty from a minor penalty to a major penalty, he had cited the
following decisions:-
(i) Govind Chandra Rout vs. The State Government of Orissa and
Anr. reported as 1977 Lab.I.C. 1684
(ii) State of Punjab vs. Nirmal Singh reported as 2007 8 SCC
(iii) M.P. State Agro Industries Development Corpn. Ltd and Anr.
vs. Jahan Khan reported as 2007 (10) SCC 88
17. It was sought to be highlighted by the counsel for the
respondents that unlike Rule 25 that lays down the procedure for
imposing major penalties and stipulates that no order imposing any
of the major penalties specified in Rule 23 shall be made except
after holding an inquiry in accordance with the Rules, Rule 27,
which prescribes the procedure for imposing minor penalties as was
imposed in the present case, does not envisage holding of a regular
inquiry. He had clarified that before the impugned memorandum
was issued to the petitioner, only a Fact Finding Inquiry was
conducted by the respondents/BTPS to satisfy itself and when he
had submitted his reply to the memorandum, he too had not asked
for a full-fledged inquiry to be held. It was asserted that in any
event, only a minor penalty was proposed to be imposed on the
petitioner in terms of the memorandum dated 28.12.1990 and on
receiving his request, the petitioner was duly provided all the
relevant documents. Thereafter, he did not demand any further
documents till the impugned order came to be passed by the
Disciplinary Authority. Hence, he cannot raise a grievance
subsequently about non supply of material information/documents.
18. Learned counsel for the respondents had stated that initially,
the Management was in favour of initiating proceedings for
imposing a major penalty against him, but in the course of
gathering information, when the respondents had written on
8.6.1990 to the Deputy Medical Superintendent, Deen Dayal
Upadhyay Hospital, the latter had sent a reply dated 09.07.1990,
stating that he was not inclined to participate in any disciplinary
proceedings that may be initiated against the petitioner. Seeing his
response, the Manager (Vigilance) of the respondent/BTPS had
recorded in the note dated 12.12.1990, that though a case for
imposing a major penalty was made out against the petitioner,
having regard to the reply received from the concerned doctor,
action for initiating a minor penalty may be initiated against him
and the said recommendation was finally approved by the General
Manager, BTPS vide order dated 13.12.1990.
19. Lastly, it was argued on behalf of the respondents/BTPS that
the petitioner had not laid any factual foundation to challenge Rule
23(b) of the CDA Rules as he has elected not to amend the writ
petition by adding any grounds to substantiate his plea that the
punishment envisaged under the said provision is a major penalty
and the same could not have been imposed on him without
adhering to the procedure prescribed in the Rules for imposition of
a major penalty. To fortify the said submission, learned counsel
had cited the decision of the Supreme Court in the case of Seema
Silk & Sarees and Anr. vs. Directorate of Enforcement and Ors.
reported as (2008) 5 SCC 580.
20. The Court has carefully considered the arguments advanced
by both sides, scrutinized the documents placed on record and
examined the judgments referred to by the petitioner and the
counsel for the respondents.
21. Before dealing with the arguments advanced by the parties, it
is necessary to be cognizant of the parameters within which this
Court ought to exercise its powers of judicial review in service
matters when dealing with disciplinary proceedings, where
challenge is laid to the orders passed by the Disciplinary Authority
and the Appellate Authority.
22. It is no longer res integra that in exercising its discretion
under Article 226 of the Constitution of India, the High Court would
not interfere with the decision in respect of a disciplinary action
against an employee unless there is a procedural impropriety that
goes to the root of the matter or the decision is so perverse that it
cannot be sustained. A court will refrain from supplanting its views
for that of a Disciplinary Authority unless and until is found to be
grossly arbitrary or patently capricious. As long as the court is
satisfied that the decision arrived at by the Disciplinary Authority is
bona fide and is supported by relevant material, it would not upset
the said decision only because in its opinion, the said decision is
erroneous. While exercising the jurisdiction under Article 226 of
the Constitution of India, the court is expected to examine the
decision making process rather than delve into the merits of the
decision itself unless and until the said decision is found to be
patently perverse or it shakes the judicial conscience of the court.
It is an equally well established principle that the High Court would
exercise its jurisdiction to do substantial justice between the parties
or where non-interference would result in depriving an employee of
a substantive right.
23. Coming to the doctrine of proportionality, it is a well settled
concept of judicial review that once a charge of misconduct has
been proved, it is the discretion of the decision maker or the
Disciplinary Authority to quantify the punishment and judicial
intervention would be warranted only if the Court is of the opinion
that the quantum of punishment imposed in a case is grossly
disproportionate to the gravity of the misconduct. The litmus test
to be applied when dealing with the question of quantum of
punishment would be as to whether a reasonable employer would
have imposed such a punishment in similar circumstances. [Refer:
Union of India Vs. H.C.Goel, AIR 1964 SAC 364, Moni Shankar Vs.
Union of India, (2008) 3 SCC 484 and Coal India Ltd. Vs. Mukul
Kumar Choudhuri (2009) 15 SCC 620].
24. Coming to the instant case and taking first the objection
raised by the learned counsel for the respondents with regard to
the maintainability of the present petition in the absence of any
challenge laid by the petitioner to the order dated 31.03.1992,
passed by the Appellate Authority, no doubt, when asking for relief,
the petitioner ought to have prayed for quashing of the order
dated 31.03.1992, passed by the Appellate Authority, whereby the
order dated 30.07.1991 passed by the Disciplinary Authority was
upheld, but keeping in view the fact that the Appellate Authority
had dismissed the petitioner‟s appeal and upheld the order of the
Disciplinary Authority, it is not considered a valid ground for the
Court to dismiss the writ petition outright on this count. Moreover,
having regard to the vintage of the present petition, which relates
back to the year 1992, no fruitful purpose would be served by
declining to entertain the same on merits on the aforesaid technical
plea taken by the respondents. The said ground shall therefore not
detain the court as it has heard the parties on merits at some
length and proposes to deal with the arguments raised by them and
pass a substantive order.
25. The first argument advanced by the petitioner was that the
respondents/BTPS had failed to furnish him documents that he had
asked for, which had resulted in depriving him of his right to meet
the allegations levelled against him in the memorandum dated
28.12.1990. However, a perusal of the documents filed by the
respondents/BTPS demolishes the aforesaid plea. The facts on
record reveal that in response to the memorandum dated
28.12.1990, the petitioner had written a letter to the Manager
(Training), NTPC on the very same date, asking for the enclosures
to the statement of imputation and requesting that he be furnished
photocopies of the prescriptions referred to in the said statement.
The documents demanded by the petitioner were duly supplied by
the respondents/BTPS under cover of letter dated 12.01.1991.
Enclosed with the said letter was a list with the details of bills and
photocopies of medical prescriptions, numbering 24 and the said
letter bears the signatures of the petitioner in token of receipt. In
the given facts, the petitioner cannot be heard to state that he had
not been furnished the documents and so he was unable to prepare
an effective reply to the memorandum dated 28.12.1990. The
subsequent letter dated 08.08.1991, addressed by the petitioner to
the respondents/BTPS asking for some more documents was clearly
belated for the reason that by the said date, the impugned order
dated 30.07.1991 had already been passed by the Disciplinary
Authority and aggrieved by the said decision, the petitioner had
proceeded to file an appeal before the Appellate Authority on
30.08.1991.
26. The second grievance raised by the petitioner was with
regard to the authority of the Manager (Training) to have issued
the impugned order dated 30.07.1991, when he was not the
Competent Authority as envisaged under the Rules. Coupled with
the said argument was a plea taken by the petitioner that the
respondents/BTPS had failed to furnish him a copy of the Inquiry
Report and the documents that formed the basis of the decision
taken by the Management to impose a penalty on him.
27. In this context, it is considered necessary to refer to the
relevant Rules under the NTPC Conduct, Discipline & Appeal Rules,
1977, as amended upto 1993 which are reproduced hereinbelow :
"Rule 3: Definitions: In these rules, unless the
context otherwise requires-
xxx
(d) "Board" means the Board of Directors of the
Company and includes, in relation to the exercise of
powers, any committee of the Board/management or
any officer of the Undertaking to whom the Board
delegates any of its powers.
(e) "Chairman/Managing Director" means the
Chairman/Managing Director of the Company.
(f) "Disciplinary Authority" means the authority
specified in the Schedule appended to those rules and
competent to impose any of the penalties specified in
Rule 23.
(g) "Competent Authority" means the authority
empowered by Board of Directors by any general or
special rule or order to discharge the function or use the
powers specified in the rule or order.
xxx
Rule 5 : Misconduct
xxx
Rule 23: Penalties: The following penalties may be
imposed on an employee as hereinafter provided, for
misconduct committed by him or for any other good and
sufficient reasons:
Minor Penalties
(a) Censure;
(b) withholding of increments of pay with or without
cumulative effect;
(c) withholding of promotion;
(d) recovery from pay or such other amount as may
be due to him, or the whole or part of any pecuniary
loss, caused to the Company by negligence or breach of
orders.
Major Penalties
(e) reduction to a lower grade or post, or to a lower
stage in a time scale;
(f) removal from service which shall not a disqualification
for future employment;
(g) dismissal.
Rule 24: Disciplinary Authority
The Disciplinary Authority, as specified in the schedule,
or any authority higher than it, may impose any of the
penalties specified in Rule 23 on any employee.
Rule 25: Procedure for imposing major penalties
xxx
Rule 26: Action on the inquiry report
xxx
Rule 27: Procedure for imposing minor penalties
(1) Where it is proposed to impose any of the minor
penalties specified in clauses (a) to (d) of Rule 23
the employee concerned shall be informed in
writing of the imputations of misconduct or
misbehavior against him and given an opportunity
to submit his written statement of defence within a
specified period not exceeding 15 days. The
defence statement, if any submitted by the
employee shall be taken into consideration by the
disciplinary authority before passing orders.
(2) The record of the proceedings shall include:
(i) a copy of the statement of imputations of
misconduct or misbehavior delivered to the
employee;
(ii) his defence statement, if any; and
(iii) the order of the disciplinary authority together
with reasons therefor.
Rule 28: Communication of Order
Orders made by the disciplinary authority under Rule 26
or 27 shall be communicated to the employee
concerned, who shall also be supplied with a copy of the
report of inquiry, if any.
xxx
Rule 36A :Notwithstanding anything contained in these
rules for the purpose of disciplinary proceedings under
Rules 20 to 35 (both inclusive) wherever the terms
Disciplinary Authority and Competent Authority have
been used either interchangeably or otherwise, they
shall mean the authorities as specified in the Schedule
appended to the CDA Rules for exercising various powers
as detailed therein.
xxx
Schedule of Delegation of Powers in respect of
Disciplinary Matters under NTPC Conduct,
Discipline and Appeal Rules
Subject Matter Extent of Authorities to
Powers Exercise powers
1. Authority Full powers in Executives not
competent to respect of the below rank of
issue charge employees in Deputy Manager or
sheet the grades of equivalent
Rs.950-
1530/1540 and
below under
their control
xxx xxx Xxx
4. Authority Same as in Same as in Sl.No.1
competent to Sl.No.1
impose penalties
xxx xxx xxx
6. Appellate Full powers in Executive/Authority
authority in the respect of next higher to the
matter of employees one which imposed
disciplinary cases under their the penalty.
(minor & major control
penalties, other
than removal
from service and
dismissal)
28. Rule 24 as above states that a Disciplinary Authority
prescribed in the Schedule or any authority higher than it, is
empowered to impose any of the penalties on an employee as
specified in Rule 23. Rule 23, that lays down the nature of
penalties that can be imposed on an employee for the misconduct
committed by him, is split into two parts, (i) Minor Penalties and (ii)
Major Penalties. It is the case of the respondents/Management,
though disputed by the other side, that it had imposed a minor
penalty on the petitioner by withholding two increments of pay with
cumulative effect for which the procedure laid down in Rule 27 was
to be followed.
29. Rule 27 prescribes that when the Management proposes to
impose any of the minor penalties specified in clauses (a) to (d) of
Rule 23, it shall inform the employee in writing of the imputations
of misconduct or the misbehavour against him. Thereafter, the
employee has to be afforded an opportunity to submit his defence
statement, which would be taken into consideration by the
Disciplinary Authority before passing an order. Rule 27 also
mandates that the record of proceedings would include a copy of
the statement of imputation of misconduct that is delivered to an
employee and his defence statement, if any, and the order passed
by the Disciplinary Authority together with the reasons for passing
such an order.
30. As is apparent from a perusal of Rule 27, the Management is
not expected to conduct a full fledged inquiry based on the
imputation of misconduct communicated to an employee and the
defence statement received from him in reply. The said Rule only
requires that the Management should intimate in writing to an
employee, the sum and substance of the misbehavour alleged
against him and afford him an opportunity to reply thereto by
submitting his defence statement, the main object being to comply
with the principles of natural justice. The said defence statement is
required to be submitted by an employee within a prescribed
timeline and after considering the same, the Disciplinary Authority
is expected to pass an order. Sub Rule (2) of Rule 27 further
elaborates that the record of proceedings will include only the copy
of the statement of imputation of misconduct, the defence
statement, if any, submitted by the employee and the order of the
Disciplinary Authority.
31. The report of inquiry referred to in Rule 28, in the context of
Rule 27 can only be held to mean the imputation of misconduct
that spells out the nature of misbehaviour alleged against an
employee. Unlike Rule 25, which prescribes the procedure of
imposing major penalties and makes it obligatory for the
Management to hold a full blown inquiry against an employee
before imposing such a penalty, Rule 27 only requires the
Management to communicate to an employee in writing, the
imputation of misconduct and elaborate the misbehaviour alleged
against him, that may invite imposition of a minor penalty.
Therefore, it cannot be argued that when a minor penalty is
proposed against an employee, the Rule prescribes holding of a
full-fledged inquiry.
32. The records reveal that the respondent had not conducted a
full-fledged enquiry or prepared a report. Therefore, the contention
of the petitioner that failure on the part of the Disciplinary Authority
to adhere to the procedure prescribed in Rule 28 of furnishing him
a copy of the enquiry report, makes the impugned order bad, is
found to be unsustainable. Any reliance placed by the petitioner on
Rule 28 is misplaced as the said Rule prescribes that an order
passed by the Disciplinary Authority under Rule 26 or 27 has to be
communicated to the employee, who shall also be supplied with a
copy of the report of the inquiry, if conducted. When the relevant
Rules do not contemplate that the respondents had to conduct an
enquiry for imposing a minor penalty on the petitioner and nor did
they actually do so, the question of withholding the report from the
petitioner, does not arise. As noted above, before the impugned
order was finally passed, all the relevant documents were duly
supplied to the petitioner and he was afforded a reasonable
opportunity of defending himself in response to the Statement of
Imputations served on him.
33. The decisions referred to by the petitioner to substantiate his
argument that failure to furnish the Inquiry Report to him had
resulted in defeating the principles of natural justice and thus
violated the proceedings, are founded on entirely different facts.
Unlike the instant case, where the Rules do not prescribe holding of
a full fledged enquiry, in the case of Managing Director, ECIL
(supra) and M. Gnanamma (supra), an Inquiry Officer was duly
appointed to conduct an inquiry against the concerned employee on
the basis of the charges served on him. In the case of D.C.
Aggarwal (supra), the order passed by the Disciplinary Authority
was held to be vitiated not on account of non-supply of the Inquiry
Report, but on account of non-supply of the recommendations
made by the CVC, which were stated to have been prepared behind
the employee‟s back and without his participation and were relied
upon by the Disciplinary Authority for arriving at a final decision.
None of the other decisions cited by the petitioner on this point are
of any assistance.
34. The answer to the challenge laid by the petitioner to the
competence of the Manager (Training) to issue the impugned order
also lies in the CDA Rules. The definition clauses contained in Rule
3(f) defines the "Disciplinary Authority" as the authority specified in
the Schedule appended to the Rules and competent to impose
penalties specified in Rule 23. Similarly, under Rule 3(g), the
"Competent Authority" has been defined as the authority
empowered by the Board of Directors or by any general or special
rule or order to discharge function or use the powers specified in
the Rules.
35. In the present case, Annexure-I appended to the Rules is the
Schedule of Delegation of Powers in respect of disciplinary matters
under the NTPC CDA Rules. As per the said Schedule, the authority
competent to issue the charge-sheet to the petitioner, who at the
relevant point in time, was working in the Grade of `950-
1530/1540, has been described as an "Executive not below the
rank of Deputy Manager or equivalent" and the very same authority
was also competent to impose a minor penalty on the petitioner. At
Sr.No.6 of the Schedule is specified the name of the Appellate
Authority who is competent to impose minor and major penalties,
excluding removal from service and dismissal and the authority
competent to exercise such a power in the case of the petitioner
has been described as the Executive/Authority who is next higher
to the one, who imposed the penalty.
36. Though an officer holding the post of Deputy Manager was
one of the officers who was authorized to impose a minor penalty
on the petitioner, the said punishment was imposed on him by the
General Manager. A perusal of the impugned order discloses that it
had been communicated to the petitioner by the Manager
(Training), who had clearly mentioned in the penultimate para that
the said order had the seal of approval of the Competent Authority.
In the present case, as per the records of the department produced
by learned counsel for the respondents, the General Manager of the
project had approved imposition of a minor penalty on the
petitioner, and the said decision was only conveyed to him through
the Manager (Training), under whom the petitioner was working as
a Senior Supervisor.
37. The Schedule of Delegation of Power under the Rules does
not contemplate that the Deputy Manager alone or an officer of
equivalent rank is authorized to impose a minor penalty on the
petitioner. Instead, the said Schedule states that an "Executive not
below the rank of Deputy Manager or equivalent" would be
authorized to impose minor penalties. Simply because the
impugned order was passed by the General Manger would not be a
ground to vitiate the same. The General Manager was well
empowered to pass the impugned order in respect of the petitioner
in accordance with the procedure laid down in Rule 23(b) of the
CDA Rules, whereunder no regular inquiry was envisaged. No
doubt, in the order of hierarchy, the Deputy General Manger, who
the petitioner claims was his Competent Authority, is two steps
below the post of General Manager, who had passed the order, but
under Rule 24 of the CDA Rules, the General Manger of the project,
who is the highest authority in the BTPS, has also been included in
the category of "Disciplinary Authority" and he is equally
empowered to impose any of the penalties spelt out in Rule 23.
38. The petitioner had alluded to the decision of the Supreme
Court in the case of Surjit Ghosh (supra) to urge that in his case,
passing of the impugned order by the General Manger instead of
the Deputy Manager has resulted in causing him grave injury.
What clearly weighed with the Supreme Court in the aforecited case
was that the order of punishment passed against the appellant
therein by a higher authority had resulted in depriving him of the
remedy of appeal, which is a substantive right under the
Rules/Regulations. In the present case, the order passed by the
General Manager did not deprive the petitioner of an opportunity to
prefer an appeal, as provided under the Regulations. The very fact
that the petitioner had exercised his right of appeal, and the said
appeal was duly considered by the Appellate Authority, i.e., the
Executive Director (NCR) of the respondents/BTPS, who had
dismissed the same by passing an order dated 31.3.1992,
demolishes the petitioner‟s argument that he has been deprived of
a valuable right of appeal or suffered a grave injury. In fact, it is
the respondent, who has raised a grievance that though the order
of the Disciplinary Authority had merged in the order passed by the
Appellate Authority, the petitioner had failed to take proper steps to
assail the said order, in accordance with law. It is a different
matter that the court has considered and turned down the said
objection at the very outset.
39. The petitioner‟s argument that no case of misconduct was
made out against him and the charges levelled by the Management
were trumped up, would not be a legal plea available to him to
assail the impugned order as the writ court is expected to test the
impugned order on the anvil of procedural impropriety that goes to
the root of the matter or gross perversity, and not that the court is
expected to examine the merits of the decision. However, just to
satisfy itself, the Court has gone through the Statement of
Imputation of misconduct levelled against the petitioner, as
enclosed with the memorandum dated 28.12.1990. The statement
of imputation narrates the nature of the malafides sought to be
attributed to the petitioner that had resulted in his abusing the
medical reimbursement scheme of the respondents/company and
had caused wrongful pecuniary benefits to himself.
40. The Statement of Imputation mentions that the petitioner had
preferred 12 false medical reimbursement claims, to the extent of
`10,154.05 for his dependent wife and two children for the period
between September, 1989 to March, 1990. Apart from the details
of the prescriptions issued by Dr. Raj Kumar, Deputy Medical
Superintendent, Deen Dayal Upadhyay Hospital for the family
members of the petitioner against which he had claimed
reimbursement, the said Statement also mentions the prescriptions
obtained by the petitioner from three other doctors. The
Management‟s version is that the petitioner had secured 11 out of
the 12 prescriptions from Dr. Raj Kumar in the names of his wife
and children by showing some other patients to the doctor.
41. In the course of arguments, learned counsel for the
respondents/BTPS had highlighted that at the relevant point in
time, the petitioner‟s basic pay was `1,490/- whereas, the medical
reimbursement claimed by him during the said period had mounted
to `10,000/-. The records reveal that before issuing a
memorandum to the petitioner, the respondents/BTPS had made
some discrete inquiries, which included approaching Dr. Raj Kumar,
the Deputy Medical Superintendent, Deen Dayal Upadhyay Hospital
for certain clarifications with regard to the prescriptions prepared in
his hand and submitted by the petitioner for claiming medical
reimbursement. In response, Dr. Raj Kumar had written a letter
dated 09.07.1992 to the Management confirming having prescribed
the medicines to the patients brought by the petitioner but he had
gone on to state that the patients brought by him were not the
petitioner‟s family members, but some of his relatives, who he
would bring for treatment and being a neighbour, the doctor would
oblige him.
42. Based on the information gathered during the inquiry, initially
the respondent/Management was inclined to initiate major penalty
proceedings against the petitioner. However, in view of the
reluctance shown by the Deputy Medical Superintendent to
participate in any inquiry, that the Management may initiate
against the petitioner, though the Competent Authority was inclined
to initiate major penalty proceedings against him, it was decided to
water down the same by initiating only minor penalty proceedings
against him.
43. While the Statement of Imputation of misconduct leveled
against the petitioner refers to prescriptions obtained by the
petitioner for self and family members from four different doctors,
i.e., Dr. Raj Kumar, Dr. Kamlesh Arora, Dr. A.C. Khosla and Dr.
S.P. Mandal, the contents of the final order passed by the
Disciplinary Authority reveal that it had taken into consideration the
representation made by the petitioner and confined the scope of
misconduct to 11 prescriptions obtained by the petitioner from
Dr.Raj Kumar, the Dy. Medical Superintendent, Dean Dayal
Upadhyay Hospital. This clearly demonstrates application of mind
on the part of the Disciplinary Authority, who had apparently
examined the facts and evaluated the documents including the
petitioner‟s reply, before passing the impugned order.
44. In this context, it is also relevant to note that the Vigilance
Department of the BTPS had opined in the note dated 26.03.1991,
that the petitioner had abused the medical reimbursement scheme
and considering the gravity of his misconduct, recommended that a
penalty of two increments with cumulative effect ought to be
imposed on him and additionally, a sum of `2,867.15 be directed to
be recovered on account of the medical claims already paid to him.
Despite receiving the said advise, vide letter dated 01.07.1991, the
General Manager, BTPS had shown leniency and while condoning
the recovery of money from the petitioner, limited his approval to
the proposed minor penalty, that was finally imposed on him.
45. In the given facts and circumstances of the case, the
contention of the petitioner that the respondent/Management had
been harboring some ill-will against him and that the charges
levelled against him were a consequence of the said hostility, is not
borne out. Nor can it be stated that the respondent/Management
was trying to shield the Deputy Medical Superintendent of the
Hospital. But for the reluctance shown by Dr. Raj Kumar to
participate in any enquiry proceedings against the petitioner, the
respondent/Management would have initiated major penalty
proceedings against the petitioner. This Court is not inclined to
delve any deeper in the matter. Suffice it is to state that the
petitioner cannot claim that the charges levelled against him are
cooked up or unfounded and a result of ill-will harboured against
him.
46. This leaves the last limb of the argument advanced by the
petitioner which is that the real effect of imposing a penalty under
Rule 23(b) amounts to imposing a major penalty on him, as
envisaged under Rule 23(e) and such a penalty could not have
been inflicted without following the procedure prescribed under
Rule 25 of the Rules that lays down the procedure for imposing
major penalties. It is trite that the power of imposing a punishment
on an employee is well within the discretion of an employer and
ordinarily, the courts do not interfere unless it is found that either
the inquiry or the proceedings conducted in the course of the
inquiry or the punishment imposed by the Disciplinary
Authority/Appellate Authority is vitiated due to non-observance of
the principles of natural justice and/or non-adherence to the
relevant rules and regulations or in circumstances where the
punishment is found to be completely disproportionate to the
proved misconduct of an employee.
47. The CDA Regulations in the instant case are explicit. A bare
reading of the scheme under the Regulations would show that a
clear demarcation has been made between minor and major
penalties and the quantum of punishment to be imposed in the
case of minor lapses/delinquencies, vis-à-vis major lapses/acts of
omission and commission. Rule 5 of the Rules has defined certain
acts of omission and commission that would be treated as
"misconduct" and Rule 23 has defined the penalties to be imposed
if misconduct is established. Taking into consideration the nature
of the acts of omission and commission on the part of an employee,
the punishments prescribed under Rule 23 for minor lapses that do
not have a perpetual effect, have been placed under the sub-head,
"minor penalties", as against the punishments prescribed for acts of
misconduct, which have serious ramifications, that have been
placed under the sub-head, "major penalties". In other words, the
punishments/penalties falling in the first category have been
treated as minor penalties and punishments inflicted for acts of
misconduct falling in the second category, have been treated as
major penalties.
48. There can be no hard and fast rule that stoppage of
increment with or without cumulative effect ought to be treated as
a major penalty, necessarily requiring a regular inquiry before
inflicting such a penalty. It would have to depend on the relevant
rules and regulations governing the service conditions of an
employee. In the present case, the rules and regulations are
unambiguous and unequivocal. The punishment of withholding
increments of pay with or without cumulative effect have been
placed under the head of "minor penalties". The Court is not
inclined to accept the submission of the petitioner that "the
punishment of withholding of increments" ought to be treated at
par with "reduction to a lower stage of time scale" which is a
"major penalty". These are two different penalties placed under the
two different heads of Rule 23, the former under the head of "minor
penalties", the latter under the head of "major penalties". The said
punishments are therefore not interchangeable.
49. In the absence of a specific regulation, perhaps it could have
been argued by the petitioner that withholding of two increments
with cumulative effect ought to be treated as a major penalty due
to the perpetual effect it had on the tenure of his service. But when
the rules of service state otherwise, it cannot be contended that
withholding of two increments with cumulative effect would be
equivalent to a punishment of reduction to a lower grade or post in
the time scale, thus bringing it in the ambit of "major penalties" for
the reason that withholding of the increments would not have the
immediate effect of reducing the pay to a lower stage in the time
scale. Rather, the pay would remain the same during the period
specified in the order.
50. Furthermore, the decisions referred to by the petitioner to
substantiate the above argument will not be of any assistance to
him for the reason that the said decisions have been rendered in
the context of the relevant Regulations governing the service
conditions of the concerned employees. In case of Kulwant Singh
Gill (supra), the Supreme Court was considering the effect of Rules
8 and 9 of the Punjab Civil Services (Punishment and Appeal)
Rules, 1970, whereas in the case of Jagjiwan Chand (supra), the
Supreme Court was called upon to analyse Rajasthan High Court
(Conditions of Service of Staff) Rules, 1953 and the Rajasthan Civil
Services Rules to decide as to whether withholding grade increment
with cumulative effect is a major penalty. In fact, in the case of
M.P. State Agro Industries Development Corporation Ltd. (supra)
cited by counsel for the respondents, the Supreme Court had
clearly observed that to draw a distinction between two sets of
penalties, one would have to examine the extant Rules and
Regulations.
51. There being no provision in the Regulations of the
respondents of holding an inquiry before inflicting a minor penalty
on an employee of the respondents, the petitioner cannot be heard
to state that the respondents/Management had erred in failing to
adhere to the prescribed procedures before imposing a penalty on
him. This Court is therefore of the opinion that before imposing a
minor penalty on the petitioner as prescribed under the CDA
Regulations, the respondent/BTPS was not under any obligation to
follow the procedure prescribed under Rule 25, meant for imposing
major penalties and having regard to the Regulations governing his
service conditions, nor can the punishment imposed on him, be
treated as a "major penalty".
52. It may also be relevant to note that the petitioner has failed
to lay the factual foundation in the writ petition as originally filed or
in the amended petition, to justify his argument that the scope of
penalties listed under Rule 23 (b) of the CDA Rules would take it
out of the ambit of "minor penalties" and place it under the ambit
of "major penalties", even though such an opportunity came his
way when he had filed an amendment application in the year 2009
that was dismissed and aggrieved by the dismissal order dated
17.9.2009, he had preferred an appeal that was partly allowed by
the Division Bench on 7.1.2010, whereunder he was duly permitted
to add prayer (b), which is for declaring Rule 23(b) as contrary to
law.
53. In view of the aforesaid discussion, it is held that the
impugned order dated 30.7.1991 passed by the Disciplinary
Authority and subsequently, upheld by the Appellate Authority vide
order dated 31.3.1992, does not warrant any interference. The
present petition is accordingly dismissed, while leaving the parties
to bear their own costs.
(HIMA KOHLI)
MAY 05, 2015 JUDGE
rkb/mk/sk
