Delhi High Court
Yogendra Singh vs Indian Oil Corporation Ltd. on 20 December, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: May 02, 2017
Judgment delivered on: December 20,2017
+ W.P.(C) 5237/2000
YOGENDRA SINGH
..... Petitioner
Through: Mr.Ashok Agarwal & Ms.Slomita Rai,
Advs.
versus
INDIAN OIL CORPORATION LTD.
..... Respondent
Through: Mr.V.N.Koura, Mr.P.Banipal,
Mr.Abhinav Tandon, Advs.
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. This petition has been filed by the petitioner with the following
prayers:-
"In the premises aforesaid the Petitioner most humbly
prays that this Hon'ble Court may be pleased to:
(a) declare that the impugned orders dated
08.12.1998, 26.06.1998 and 08.09.1992 (Annexures- A,
B and C respectively) of the Respondent are illegal,
arbitrary, unconstitutional and bad in law and direct the
Respondent to provide to the Petitioner all the
consequential benefits;
(b) pass any such further order or direction as this
Hon'ble Court may in the facts and circumstances of the
present case deem fit and proper in favour of the
Petitioner and against the Respondent: and
(c) allow the present Writ Petition with costs."
2. In substance, the challenge in the writ petition is to the orders dated
December 08, 1998, June 26, 1998 and September 08, 1992. Vide order
dated September 08, 1992, the respondents have, on the failure of the
petitioner to report for duty by a stipulated date August 24, 1992 invoked
Rule 8 of the CDA Rules of the Corporation and struck off the name of the
petitioner from the Rolls of the Corporation with effect from August 25,
1992. Vide order dated June 26, 1998, the respondents have imposed a
penalty of withholding of four increments due on January 01, 1997, January
01, 1998, January 01, 1999 and January 01, 2000 on the petitioner with
cumulative effect and also treated the period between August 25, 1992 to
December 03, 1993 as a period not spent on duty for all purposes and vide
order dated December 8, 1998, the appeal of the petitioner against order
dated June 26, 1998 was dismissed.
3. Some of the relevant facts are, in terms of appointment letter dated
June 21, 1978, the petitioner was appointed as Civil Engineer in Mathura
Refinery Project with effect from June 20, 1978. It is the case of the
petitioner that while he was working as Maintenance Manager (Civil) he was,
vide order dated April 19, 1991 transferred to Guwahati Refinery from
Mathura Refinery as Maintenance Manager (Civil). He reported at Guwahati
Refinery on June 29, 1991. It is his case, that between July 1991 to October
1991, the petitioner was given the Vigilance Investigation Assignment in
Madras Refinery Limited for which he submitted his final report on October
01, 1991 to the Joint Secretary (Marketing) in the Ministry of Petroleum and
Natural Gas. On October 23, 1991, he submitted a leave application to his
Controlling Officer namely Mr. R.P. Kakati for sanction of seven days
Special Compensatory off with effect from November 04, 1991 to November
12, 1991 together with an application dated October 23, 1991 for approval of
LTC encashment towards LTC Block year of 1989-1990. After availing one
day sick leave on November 02, 1991, the petitioner took a train journey on
Sunday morning i.e November 03, 1991. On November 12, 1991, vide a
telegram, the petitioner applied to Mr. R.P. Kakati for extension of his leave
upto November 22, 1991 due to serious condition of his father.
4. It is his case, on November 30, 1991, he applied to Mr. Kakati for
grant of sick leave with effect from November 25, 1991 due to his sickness
AS rest was advised by his Doctor. On December 20, 1991, the petitioner
again gave a telegram informing Mr. R.P. Kakati about his disease of
Spondilitis-C-Sciacitia and therefore, requested him to extend his sick leave
upto January end for treatment. It is his case, vide a confidential letter dated
December 24, 1991, the Joint Secretary (M) in the Ministry of Petroleum and
Natural Gas wrote a letter to the Chairman, IOC stating the directives of
Central Vigilance Commission to investigate certain irregularities at Madras
Refinery Ltd. It is also his case that in the said letter, the Joint Secretary
requested the Chairman of the respondent Corporation to depute the
petitioner for the said purpose. On January 03, 1992, a telegram was sent by
Mr. K.C. Joseph, Additional General Manager (HR) of the respondent
Corporation to the Joint Secretary (M) of the Ministry of Petroleum and
Natural Gas that on contacting Guwahati Refinery, he has been informed that
the petitioner was on leave for about a month and the Guwahati Refinery are
trying to get in touch with him at his leave address. It is averred in the
petition that on January 07, 1992, the PA of the Head of the Personnel and
Administration Department at (R&D) Centre, Faridabad left a message at the
residence of the petitioner that he should contact Mr. K.C. Joseph, Additional
General Manager (HR). It is the petitioner's case that he met with Mr. K.C.
Joseph on January 07, 1992. It is also his case that on the directives of Mr.
Joseph, he met the Joint Secretary (M) in the Ministry of Petroleum and
Natural Gas and undertook the investigation pertaining to MRL. It is also his
case that he apprised the status of the assignment to Mr. Joseph at New Delhi.
5. It is averred that on January 13, 1992, a telegram was sent by the
petitioner to Mr. Kakati at Guwahati Refinery in continuation of his earlier
message of December 20, 1991 for extension of his sick leave till his next
medical check-up during last week of February, 1992. It is averred that on
March 03, 1992, the Petroleum Ministry wrote a letter to the Additional GM
(HR) of the respondent Corporation requesting him to advise the petitioner to
contact the Section Officer (Vigilance) in the Ministry of Petroleum for
completing the investigation assigned in the MRL case. It is also averred that
on March 12/13, 1992, on receipt of the letter dated March 03, 1992 from the
Ministry of Petroleum, the respondent Corporation had left a message
regarding Ministry's assignment at the residence of the petitioner as he was
found out station. That on March 13, 1992 Mr. Joseph wrote back to the
Ministry of Petroleum amongst other things that the Corporation has traced
out the petitioner to his residential address at Faridabad.
6. The petitioner referred to a Medical Certificate dated March 14, 1992
whereby he was declared medically fit by the attending Doctor in his home
town at Gwalior to resume duties on March 16, 1992. On returning from
Gwalior, he again reported to the Ministry of Petroleum on March 16, 1992
for completion of the investigation assigned and started continuously working
with vigilance section of the Ministry. It is his case that he submitted his
findings/ report to the Ministry with a list of balance jobs required to be
completed vide letter dated March 31, 1992. It is his case that he apprised all
concerned Authorities in the respondent Corporation the progress/status of
the assignment by endorsing a copy of the covering letter to Mr. Joseph and
the GM, Guwahati Refinery as well as to Mr. R.P. Kakati.
7. It is averred that on April 14, 1992, he was in receipt of a telegram
from Guwahati Refinery wherein it was stated that he was advised vide
telegram dated February 05, 1992 that his leave from November 25, 1991 has
not been sanctioned. He was, once again called to report for duty by April
15, 1992 with an explanation for his absence to the satisfaction of the
respondent, failing which it will be presumed that he had left the services of
the Corporation on his own accord. It is the stand in the petition that the
telegram dated February 05, 1992 was never received by the petitioner. In
response thereto, it is averred that the petitioner has on April 15, 1992 sent an
express telegram to the respondent, wherein he has stated that he has already
given reasons for his overstaying in the leave being medical and had
requested the respondent not to take any action till the receipt of detailed
reasons. Suffice to state, he had sent a letter dated April 18, 1992 wherein he
has explained that since March 16, 1992, he has been working for the Joint
Secretary (M), in Charge of Vigilance for Ministry of Petroleum and Natural
Gas at New Delhi in connection with a vigilance case investigation and in
respect thereof, he had already submitted his preliminary report on March 31,
1992. It is stated in the writ petition, that on April 28, 1992, the Ministry of
Petroleum and Natural Gas wrote to the CMD of the MRL, New Delhi
requesting them to extend all possible help and cooperation to the petitioner
in order to complete the task at the earliest. It is stated that he visited Madras
on May 26, 1992 to May 30, 1992 for which all required arrangements
including tickets etc were made by the Madras Refinery Ltd, Madras.
8. According to the petitioner, he received a letter dated August 04, 1992
from the respondent whereby the petitioner was asked to report for duty
immediately and in no case, later than August 30, 1992, failing which it was
said that it will be presumed; that he had no interest or intention to continue
in the employment and he has voluntarily abandon the Corporation service.
On receipt of the same, he vide his communication dated August 12, 1992
apprised the Authorities at Guwahati Refinery that he is in the process of
compilation and final typing of his final report on the investigation assigned
by the Ministry and he be allowed to report in the next week. The said
communication was followed by a detailed letter dated August 14, 1992 by
the petitioner reiterating the stand. On August 17/18, 1992 the petitioner
completed the special assignment with the Joint Secretary of Ministry of
Petroleum & Natural Gas and submitted his final report to the Joint Secretary
(M) of the Ministry of Petroleum and Natural gas. He simultaneously
apprised the concerned Authorities in the respondent Corporation about the
completion of his assignment with the Ministry by endorsing a copy of the
covering letter to Mr. Joseph, GM (HR) at IOC Headquarters, to the General
Manager, Guwahati Refinery as well as to Sh. R.P. Kakati. On August 22,
1992, the petitioner received another letter from the Guwahati Refinery
whereby he was asked to rejoin his duties latest by August 24, 1992. On
receipt of the same, the petitioner sent a telegraphic message to the
respondent to Guwahati Refinery thereby stating that he was reaching
Guwahati on August 26, 1992 for reporting to the respondent for duty. The
petitioner on August 27, 1992 joined the duties at Guwahati but he was not
given work and was kept idle till September 08, 1992. On September 08,
1992 the petitioner was served with an impugned order whereby his services
were terminated by way of striking off his name from the rolls of the
respondent Corporation with effect from August 25, 1992. On September
08, 1992 itself, he protested against the termination of his services from the
respondent Corporation. He on September 12, 1992, submitted the detailed
representation to the GM of the respondent Corporation against his
termination. On September 17/22, 1992, the Ministry of Petroleum wrote a
letter to the respondent thereby asking the respondent to appraise the Ministry
as to whether the petitioner had been formally allowed to assist the Ministry
into investigation and if so, a copy of the IOC's letter deputing him for
investigation into the case may be furnished to the Ministry immediately. On
October 07, 1992, the petitioner submitted a brief resume of his case as
desired by the Director (R&P) of the respondent Corporation while
interviewing the petitioner regarding factual position of the petitioner's case
in his office at New Delhi. The Chief Manager (HR), Headquarter of the
respondent Corporation vide his letter dated October 12, 1992 informed the
Ministry that they had never deputed or allowed the petitioner to assist the
Ministry in the said investigation. Be that as it may, on November 05, 1992
the petitioner submitted an Appeal to the Chairman of the respondent
Corporation against his termination order dated September 08, 1992 on which
the petitioner received an office order dated November 18, 1993 directing the
petitioner to report to the General Manager, Guwahati on or before December
04, 1993. The petitioner accordingly reported for duty on December 03,
1993 at Guwahati Refinery and an office order to that effect dated December
06, 1993 was issued by the respondent Corporation.
9. It is his case that he has been continuously working with the
respondent pursuant to order dated November 18, 1993. While working so,
on December 13, 1993 the petitioner received a charge sheet whereby certain
charges of misconduct were leveled against him. The petitioner on receipt of
the same, filed his written explanation dated December 27, 1993 thereby
denying the correctness of the allegations. He also requested the respondent
for furnishing copy of the documents since the respondent neither supplied
the demanded documents nor given any reply. Pursuant thereto, one K. Vijay
was appointed as an Inquiry Officer. Later, he was replaced by another
Inquiry Officer. Be that as it may, the Inquiry Officer conducted the inquiry.
In his report, the Inquiry officer has proved the charges against the petitioner,
which resulted in the order of penalty dated June 26, 1998, as referred to
above. The appeal dated September 05 1998 filed by the petitioner was also
rejected vide impugned order dated December 08, 1998.
10. The respondent has filed their counter affidavit wherein, apart from
making some preliminary submissions, it is their case that the petitioner
while working as Maintenance Manager (Civil) was made In-charge of
execution works related to additional facilities required for the refinery and
lining up of related civil maintenance works. To assist him in effective
performance of his duties related to Guwahati Refinery, adequate manpower
was provided to him at subordinate levels. After reporting for work at
Guwahati Refinery on June 29, 1991, on November 01, 1991 the petitioner
applied for sick leave for November 02, 1991 in combination of 7 days
Special Compensatory off w.e.f November 04,1991 and left his place of
posting i.e Guwahati Refinery, without waiting for any sanction/authorization
for leave for the anticipated sickness or sanction of the above Special
Compensatory off, with full knowledge that neither the sick leave applied for
in advance of sickness nor the said special compensatory off applied for in
combination with sick leave for November 02, 1991 (with intervening
Sunday on November 03, 1991) was permissible under the relevant rules of
the Corporation. He left station and duties at Guwahati Refinery, and instead
of returning for duty on November 12, 1991 he sent a telegram requesting for
extension of leave upto November 22, 1991 on grounds of sickness of his
father, and continued to remain absent without enquiring whether his leave
has been sanctioned or not. The petitioner did not join duties after November
22, 1991, but on the contrary, requested for further extension of leave vide a
telegram dated December 01, 1991 on the grounds of his own sickness from
November 25, 1991. He, however, did not mention the expected date of his
reporting back for duty nor he sent any proof or particulars of his sickness,
and again continued to be absent without enquiring whether his leave had
been sanctioned or not. Thereafter, the petitioner remained absent without
caring to send any information whatsoever regarding his absence. It is stated,
since the petitioner was continuing with his prolonged and unauthorised
absence from Guwahati Refinery, he was advised by a telegram dated
February 05, 1992 at his Faridabad address that his leave beyond November
25, 1991 was not sanctioned, and that his continued absence was
unauthorized and has been viewed seriously. He was advised to report for
duty latest by February 11, 1992 failing which it would be presumed that he
was no longer interested in his employment and action would be taken as per
Rules of the Corporation. However, the petitioner neither responded to the
said letter, nor reported for duty, but continued his unauthorized absence. It
is their case, since the question of the petitioner's continued employment was
involved, the petitioner was, vide telegram dated April 09, 1992 given
another opportunity to report for duties latest by April 15, 1992 with an
explanation for his absence to the satisfaction of the Management, failing
which it shall be presumed that he has left the service of the Corporation on
his own accord and the case shall be treated as a case of relinquishment from
the service without notice from his side and action would be taken as per
Rules of the Corporation. In response, the petitioner sent a telegram which
was received on April 17, 1992 followed by a letter dated April 18, 1992
stating therein he was suffering from spondilitis and was declared to be
medically unfit for four and half months w.e.f November 25, 1991. He also
enclosed a medical certificate in that regard. Vide letter dated April 18,
1992, the petitioner also claimed that he has been working since March 16,
1992 for Joint Secretary, Incharge of Vigilance in the Ministry of Petroleum
& Natural Gas, New Delhi. It is stated, the petitioner was informed by the
respondent Corporation by a letter dated August 04, 1992 that the leave
prayed beyond November 25, 1991 cannot be sanctioned on the grounds
mentioned and that the explanation given by him for not joining duty was
unacceptable. He was also informed that even the medical certificate dated
March 14, 1992 furnished by him certified him to be fit for resuming duties
from March 16, 1992, and that inspite of this he had not resumed duties. The
petitioner was also informed; that it was a matter of surprise to the
Management that inspite of his being an employee of the Corporation, he
claimed to have been working for the Ministry of Petroleum & Natural Gas
without any written approval of the Corporation. It was also made clear to
him that he could not work for the Ministry as claimed. He was reminded
that his unauthorized absence for almost 9 months continuously has caused
the work to seriously suffer. He was given a final opportunity to report for
duty in no case later than August 13, 1992, otherwise it will be presumed, he
has no interest or intention in continuing the employment and will be treated
as having voluntarily abandoned the services of the Corporation. The
respondent Corporation wrote to the petitioner again on August 17, 1992
giving him yet another opportunity to join duties by August 24, 1992.
However, the petitioner did not join duties by August 24, 1992. It is stated,
since the petitioner was given various opportunities to join his duties at
Guwahati Refinery and the last opportunity expired on August 24, 1992, the
respondent Corporation was constrained to treat him as having abandoned his
employment with the Corporation on his own accord and his name was struck
off from the rolls of the Corporation w.e.f August 25, 1992 vide order dated
September 08, 1992 and the petitioner was intimated accordingly.
11. It is stated, in response, the petitioner submitted a representation dated
September 12, 1992 to the GM (Guwahati Refinery) appealing to him to
withdraw the letter dated September 08, 1992. The petitioner was informed
by the Corporation through its letter dated November 17, 1992, that it is
beyond the scope of the General Manager to re-examine/review the decision
taken by Director (R&P) in this regard. The petitioner then preferred an
appeal dated November 05, 1992 addressed to the Chairman against the order
dated September 08, 1992 wherein his name was struck off from the rolls of
the Corporation w.e.f. August 25, 1992. In response, vide office order dated
November 18, 1993, the petitioner was directed to report to GM, Guwahati
Refinery on or before December 04, 1993. The petitioner reported for duty
on December 03, 1993. The petitioner was chargesheeted for his alleged acts
of misconduct and the same was received by him on December 24, 1993. In
response, he submitted his written explanation dated December 27, 1993,
denying the allegations made in the chargesheet. Finding his explanation to
be unsatisfactory, by an order dated January 11, 1994, the Disciplinary
Authority, namely Director (R&P) instituted an enquiry into the charges of
misconduct leveled against the petitioner. Sh. Rajendra Prasad, Principal,
IMA was appointed as an Enquiry Officer. It was also ordered that the
proceedings of the enquiry be completed by June 30, 1994. However, the
petitioner thereafter proceeded on earned leave from January 24, 1994 to
February 19, 1994. By a fax message dated February 16, 1994, he requested
for extension of leave from February 20, 1994 to March 31, 1994 due to
death of his son in a fatal road accident in Delhi on February 05, 1994.
Accordingly, earned leave from February 20, 1994 to March 12, 1994 and
Extraordinary leave without pay from March 13, 1994 to March 31, 1994 was
sanctioned. Thereafter, the petitioner sought extension of leave upto April
30, 1994 on the ground of his wife's mental and physical condition.
Accordingly, earned leave from April 01, 1994 to April 06, 1994 and Extra
Ordinary Leave without pay from April 07, 1994 to April 30, 1994 was
sanctioned. By a letter dated April 30, 1994, the petitioner again requested
for extension of leave till June 15, 1994. He also requested for his transfer to
Delhi. The petitioner was informed by letter dated July 07, 1994 that it is not
possible to accede to his request for transfer to Delhi and that it will not be
possible to sanction his leave/request for regularization of absence beyond
June 15, 1994. He was also advised to resume duty at Guwahati Refinery at
the earliest and cooperate with the enquiry proceedings. The petitioner
finally re-joined on December 08, 1994.
12. It is stated, by its letter dated December 12, 1994 the respondent
Corporation informed the petitioner that he was being permitted to rejoin
duty without prejudice to the decision of the Corporation in respect of period
of his absence. On November 11, 1994, the first sitting of the enquiry was
held at which the petitioner was not present, and the proceedings were
accordingly adjourned. Enquiry proceedings were thereafter held on
December 08, 1994 where the petitioner requested for time to prepare for the
enquiry. The petitioner thereafter applied for and was granted Extraordinary
leave without pay from January 02, 1995 to January 13, 1995, sick leave
from March 13, 1995 to April 01, 1995, earned leave from June 26, 1995 to
September 30, 1995 and earned leave from December 04, 1995 to December
12, 1995. The Enquiry thereafter proceeded with the participation of the
petitioner. The Enquiry Officer prepared his report dated November 19, 1996
wherein he held the petitioner to be guilty of the charges leveled. The report
of the Enquiry Officer was forwarded to the petitioner by a letter dated May
02, 1997 for making representation, if any against the findings of Enquiry
officer within two months of the receipt of the Enquiry Report. The
petitioner submitted a representation dated July 30, 1997 to the Disciplinary
Authority. After considering the enquiry report and the petitioner's
representation and other related factors, the Disciplinary Authority by an
order dated June 26, 1998 awarded the punishment of withholding of four
annual increments due on January 1, 1997, January 1, 1998, January 1, 1999
and January 1, 2000 with cumulative effect to the petitioner. The
Disciplinary Authority also ordered that the period from August 25, 1992 till
December 03, 1993 shall not be treated as on duty for all purposes. The
petitioner preferred an appeal dated September 05, 1998 addressed to the
Chairman against the order date June 26, 1998 passed by the Disciplinary
Authority. The appeal by the petitioner was considered by the Chairman of
the respondent Corporation, who by an order dated November 26, 1998
rejected the appeal and observed that the Charge sheeted officer had not
brought out any ground or fact or any extenuating circumstance that may
warrant review of order dated June 26, 1998 passed by the Disciplinary
Authority. Agreeing with the orders passed by the Disciplinary Authority,
the Chairman disposed of the appeal. The said Order was communicated to
the petitioner by a letter dated December 08, 1998 of the General Manager of
the respondent Corporation, which is under challenge in the present petition.
13. So far as the contention of the petitioner that he was working for the
Ministry of Petroleum & Natural gas w.e.f March 16, 1992, it is their case,
vide a confidential D.O. letter dated December 24, 1991, the Joint Secretary
(Marketing), Ministry of Petroleum & Natural Gas, requested the Chairman
of Indian Oil Corporation Ltd. to depute the petitioner for making certain
technical assessments in a vigilance case in respect of purchase of certain
properties by Madras Refineries Ltd. at Madras. In response, the respondent
Corporation through its letter dated January 3, 1992 informed the Joint
Secretary (Marketing) in the Ministry of Petroleum & Natural Gas that the
petitioner was reported to be on leave and efforts were being made to get in
touch with him at his leave address to see whether his services could be made
available to the Ministry. The Ministry informed the Corporation through its
letter dated March 3, 1992 that the investigation has yet to take place for
which the request was made in December, 1991 and requested the
Corporation to advise the petitioner to get in touch with the Ministry
immediately in this connection. In response to the aforesaid letter dated
March 03, 1992, the Corporation informed the Ministry through its letter
dated March 13, 1992 that the petitioner has been absenting from duty for the
last 4-5 months and has not reported back at Guwahati Refinery. The
Corporation offered the Ministry the services of an alternative Civil Engineer
posted in Delhi in place of the petitioner. The petitioner by a letter dated
March 31, 1992 addressed to the Joint Secretary, CVO, Vigilance, Ministry
of Petroleum & Natural Gas referred to some work done by him in the
Ministry, and endorsed a copy of this letter to the General Manager
(Personnel), Indian Oil Corporation Limited. On receipt of the said letter, the
Corporation forthwith informed the Ministry through its letter NO. P/F-
1/1728 dated April 9, 1992 that the petitioner had been absenting duty at
Guwahati Refinery for a past 5 months, and that he was taking recourse to the
communication addressed to the Ministry to establish his claim that he was
still doing duty on behalf of the Ministry. The Ministry was advised not to
entertain any communication from the petitioner for the said assignment, and
that if the Ministry required assistance another officer will be deputed by the
Respondent Corporation for the said purpose. On receipt of the said letter,
the Ministry of Petroleum & Natural Gas through its letter dated June 16,
1992 requested the Corporation for information in respect of the exact period
for which the Petitioner had been absenting from his duties at Guwahati and
the time a person would have normally taken to complete the task assigned to
him. It was also indicated that the view of the petitioner may also be obtained
in the matter. In response, the Corporation through its letter dated July 10,
1992 informed the Ministry that the Petitioner has been absenting from duty
in spite of various communications addressed to him. It was also clearly
indicated to the Ministry that the Corporation is proceeding with action for
termination of his services from the Corporation. It was further made clear to
the Ministry that the Petitioner has not been assigned any task in connection
with the vigilance case of the Ministry, and that he cannot be assigned any
task either in the Corporation or outside the Corporation. The services of an
alternate officer were again offered. The Corporation issued another letter
dated July 30, 1992 to the Ministry stating that it is not possible to spare the
services of the petitioner for the Ministry's job since he had run away from
his duty post at Guwahati Refinery. It was also again made clear to the
Ministry that the Corporation had not given any clearance to the petitioner for
working with the Ministry, and that if the petitioner approaches the Ministry,
he should be clearly told that his services are not required by the Ministry.
The Ministry of Petroleum & Natural Gas informed the Corporation through
its letter dated August 7, 1992 that the Corporation may proceed against the
petitioner as necessary, and that as for deputation of another officer in place
of the petitioner, the Government would ask as and when any service of an
Engineer is required in future. The Ministry through its letter dated
September 22, 1992 sought to know whether the petitioner had been formally
allowed to assist the Ministry into the investigation and if so a copy of IOC's
letter deputing him for investigation be furnished to them. In response to the
said letter the Corporation by its letter dated October 12, 1992 clarified to the
Ministry that the petitioner was never deputed or allowed by the Corporation
to assist the Ministry in the investigation and in view of his continued
absence and failure to join duty by August 24, 1992, he was deemed to have
deserted / abandoned his employment with the Corporation on his own
accord and therefore he lost lien on the post / service of the Corporation. His
name was struck off from the rolls of the Corporation w.e.f August 25, 1992.
The respondents have justified the impugned action and seeks the dismissal
of the writ petition.
14. Mr. Ashok Agarwal, learned counsel for the petitioner would submit
that the impugned orders are ab-initio, illegal, arbitrary, discriminatory,
unjust, unreasonable, perverse, contrary to the terms and conditions of
employment, violative of the principles of natural justice and as such
violative of Articles 14, 16 and 21 of the Constitution of India read with the
Conduct Discipline and Appeal Rules, 1980 of the Indian Oil Corporation
and as such bad in law. It is his case that vide letter dated February 08, 1996,
the Inquiry Officer had informed the petitioner that proceedings of inquiry
would be held on February 20, 1996, February 21, 1996 and February 22,
1996. The petitioner vide his communication dated February 20, 1996
requested the Inquiry Officer that no witness should be examined on that
date. In spite of the said request from the petitioner, the Inquiry Officer
allowed the Presenting Officer to start examination. During the course of the
proceedings, the Presenting Officer submitted a list of 13 documents and one
witness before the Inquiry Officer and further submitted a list of witnesses.
The Presenting Officer examined MW 1 and the inquiry was adjourned for
the next date i.e February 21, 1996 for cross examination of the said witness.
This procedure to allow the Presenting Officer to examine the witness on
February 20, 1996 has caused great prejudice to the case of the petitioner.
The Presenting Officer had put leading questions to MW 1 in order to get
answer favourably to the case of the Management. Even on February 21,
1996 when the petitioner pointed out to the Inquiry officer that he should get
the copy of the examination of the Management Witness held on February
20, 1996 and the documents as requested by the petitioner vide his letter
dated November 07, 1994, which have not been given and he should be
allowed to inspection of his personal file, which was not allowed. The
documents were very important for his defence and have a direct bearing on
the case and the same were not allowed except, if they are available, the same
be produced before the next sitting. Even on the 5 th sitting held on March 26,
1996, the Presenting Officer submitted three additional documents, requested
to bring one more witness namely Mukut Dutta as additional witness and
eleven documents for inspection. After going through the relevant
documents, the petitioner had stated all the documents are available and have
a direct bearing on the case and therefore, made a request that whatever paper
is not marked as confidential, copies of the letters be provided to him. The
Presenting Officer denied the same on the ground that they are confidential.
The Inquiry Officer instead of directing the Presenting Officer to supply the
copies of those documents to the petitioner directed to maintain status quo
and in view of this order of the Inquiry officer, eleven documents were not
supplied to the petitioner, which has caused great prejudice to the petitioner.
This has also caused great prejudice to the petitioner as he was handicapped
in cross examining the witness in the absence of those documents. Even on
the next date of hearing i.e on March 27, 1996, the petitioner stated he
wanted original of the exhibits submitted by the Presenting Officer so far. In
spite of the fact that the Presenting Officer stated that he would do so, the
same was never done. The petitioner has asked for his leave application for 7
days SCO from November 04, 1991 and his application for LTC encashment
and other intimation about extension of leave from time to time sent to
Guwahati Refinery should be shown to him. The Presenting Officer
mentioned that the specific application for 7 days SCO was not available in
the personal file. On the other documents, the Presenting Officer stated that
he would come back next day after looking into the file. Accordingly, the
cross examination of MW 2 Mr. Dutta was deferred to the next day.
15. It is the case of the petitioner, in the proceedings held on March 28,
1996, the petitioner cross examined MW 2 Mr. Dutta. In the proceedings
held on March 29, 1996, the Inquiry Officer arbitrarily agreed with the stand
of the Presenting Officer that personal file of the petitioner was confidential
and could not be shown to the petitioner, though Inquiry Officer directed the
Presenting Officer to make available the dispatch record of telegram dated
April 09, 1992 for inspection to the petitioner but the same was not available.
It is also the case of the petitioner, as canvassed by Mr. Agarwal that the
petitioner demanded copies of documents/inspection of as many as 21
documents having direct bearing on the case of the petitioner. The same
were not produced by the respondent nor shown to the petitioner. Rather, the
Inquiry officer held that the petitioner should defend his case based on
whatever documents/paper/communication etc are available with him. It is
also observed by the Inquiry Officer that since the petitioner did not produce
any witness, the petitioner should submit his written statement including his
summing up brief in defence of his case with the help of whatever documents
were available to by May 14, 1996. The Inquiry Officer also asked the
Presenting Officer to do the same. Interestingly, the Presenting Officer in the
sitting on June 12, 1996, submitted two copies of written briefs to the Inquiry
Officer. The Inquiry Officer gave only one of the copies to the petitioner on
the alleged ground that the petitioner's copy will be given to him when he
would submit his written brief. The said action of the Inquiry officer was
arbitrary. According to Mr. Agarwal, the impugned orders including the
charge sheet dated December 13, 1993 suffers from the vice of non
application of mind. In substance, it is his submission that the Inquiry
Officer during the course of the inquiry has acted as a Presenting Officer
rather than an Inquiry Officer. The stand of the Inquiry Officer that the
personal file of the petitioner is a confidential file need not be shown to the
petitioner shows the malice on the part of the Inquiry Officer. That apart, the
proceedings are in violation of Rule 31(3) of the CDA Rules, 1980 of the
Indian Oil Corporation, inasmuch the Inquiry Officer was required to ask the
petitioner to present his defence and produce his evidence. In the present
case, the Inquiry officer had not asked the petitioner to present his defence
and produce his evidence and the petitioner was not aware of the procedure
or implication of not producing himself as a witness and thus great prejudice
has been caused to the petitioner resulting in violation of the Rules and
principles of natural justice. The Inquiry Officer has also violated Rule
31(14) of the CDA Rules, inasmuch as no opportunity was afforded to the
petitioner to examine him or on behalf of himself, if he so prefers. When the
petitioner had not examined himself, it was obligatory on the part of the
Inquiry officer to question on the circumstances appearing against him in the
evidence for the purpose of enabling the petitioner to explain any
circumstances appearing in the evidence against him. But the Inquiry Officer
has not done it, thus mandatory Rules 13, 14 and 15 under Clause 31 of the
CDA Rules, 1980 have been violated, which vitiated the proceedings of
inquiry.
16. It is his submission that the report of the Inquiry Officer is perverse,
inasmuch as the findings of the Inquiry officer based on no evidence. The
Inquiry Officer has not taken into consideration the material evidence on
record and on the other hand taken into consideration extraneous and foreign
material. The findings of the Inquiry Officer are bad in law, inasmuch as the
allegations of misconduct were not proved in law. He would state, that the
Inquiry Officer has not even discussed the defence set by the petitioner. The
opinion formed by the Inquiry Officer is contrary to the record. The Inquiry
Officer has overlooked the fact that the material witnesses have been held
back by the respondent. Mr. Joseph could have been a star witness to throw
light on the fact that the petitioner proceeded to work in the Ministry under
the authority of the respondent. The Inquiry Officer had ignored the letter
dated March 13, 1992 of the respondent addressed to the Secretary,
Government of India, Ministry of Petroleum and Natural Gas, which clearly
proves that the petitioner was assigned the work with the Ministry regarding
some investigation. The order of the Disciplinary Authority and the
Appellate Authority are bad in law and have been passed in mechanical
manner without application of mind. It is also his submission that the
findings does not justify the penalty as the same is excessive. He also states,
that the punishment order dated June 26, 1998, could not have been
retrospective as it had withheld the increments due on January 01, 1997 and
January 01, 1998. That apart, it is his submission that the impugned order
dated September 08, 1992 terminating the services of the petitioner with
effect from August 25, 1992 is arbitrary, illegal, contrary to the terms and
conditions of the employment and punitive in nature. That apart, the
petitioner being a permanent employee, the same could not be terminated in
the manner that has been done. Even otherwise, it is his case that the
petitioner having joined back the services, the order dated September 08,
1992 need to be reviewed.
17. Mr. V.N. Kaura, learned counsel for the respondent, on the other hand
justified the impugned orders, by stating that they have been passed in
compliance with the principles of natural justice and the rules. According to
him, it is a clear case where the petitioner did not obey the lawful orders
issued calling upon him to join back. He stated that, the enquiry officer, has
held the charges against the petitioner have been proved in view of sufficient
evidence on record. As there is evidence on record to prove the charges, this
Court would not re-appreciate the same and come to a different conclusion.
He stated the scope of judicial review is very limited only to see that
principles of natural justice have been followed. The final decision is beyond
the judicial scrutiny. He seeks the dismissal of the writ petition.
18. Insofar as the submissions made by Mr. Ashok Agarwal, Mr. Kaura
would submit that the petitioner was given the copies of general documents
exhibited as Ex.1/15 before the Enquiry Officer and also the confidential
documents, which were filed and marked as Ex.C-1 to C-11 were given to the
petitioner for inspection. The inspection of the documents is as good as
giving the same to the petitioner as he was within his right to prepare notes
on the basis of such inspection. He denied that the Enquiry Officer had
allowed the Presenting Officer to continue to examine the Management
evidence in spite of the objections by the petitioner. He also stated that the
petitioner was given opportunity to engage a Co-Officer to defend himself.
However, he failed to bring the Co-Officer. He also stated that the Enquiry
Officer had directed the petitioner to file written submissions, although the
petitioner sought time to file the same as the submissions were under
preparation. The said submissions were duly considered by the Enquiry
Officer. He denied that the findings of the Enquiry Officer are perverse. He
denied that the Enquiry Officer was biased. He also denied that the
proceedings were conducted in violation of principles of natural justice.
19. Having heard the learned counsel for the parties, the issue which arises
for consideration is whether the impugned orders passed by the respondents,
which included the order of imposing penalty of withholding of four annual
increments due on January 01, 1997, January 01, 1998, January 01, 1999 and
January 01, 2000 with cumulative effect and the dismissal of appeal thereof
are just and proper and the petitioner is entitled to the reliefs as prayed for.
20. There is no dispute that the charges imposed against the petitioner
inter-alia were (i) that he left Guwahati Refinery without sanction; (ii) he did
not report for duty on February 11, 1992 and April 15, 1992; (iii) he
remained absent without permission with effect from November 04, 1994 and
continued to remain absent even after receiving telegrams dated February 05,
1992, April 09, 1992 and letters dated August 04, 1992 and August 17, 1992
in an unauthorized manner. He remained unauthorizedly absent on the
pretext of working with the Ministry of Petroleum and Natural Gas, which
was without any authority or permission of the Management. Despite being
conveyed vide letter dated August 04, 1992 and acknowledging the receipt of
the said letter, he did not report for duty on August 13, 1992. Thereafter, yet
another opportunity was given to him to report for duty by August 24, 1992,
which was not complied with.
21. The department had examined two witnesses and had produced sixteen
documents in total to prove the charge against the petitioner. The petitioner
produced six documents, which included various annexures annexed with
Ex.D-2. The analysis of the documents produced by the respondent is as
under:-
"1. That the Ministry on December 24, 1991, wanted the help of
the petitioner for making certain technical assessment in the
vigilance case pertaining to Madras Refinery Ltd.
2. That the Ministry was initially informed by the Addl.l GM
(HR) that the petitioner was reported to be on leave and
effort was being made to contact him at his leave address to
see whether his services could be made available.
3. On March 3, 1992, the Ministry informed the Addl. GM
(HR) that the petitioner was yet to take up investigation of
the case for which request was made in December, 1991.
The Ministry was again informed that the petitioner was
neither available at his duty station nor at his residence at
Faridabad. Ministry was offered an alternative officer in
place of the petitioner.
4. The Ministry was again informed that the petitioner had
been absenting from his duties from Guwahati Refinery for
past five months and that he was taking recourse to the
communication addressed to the Ministry from IOCL Hqrs.
to establish his claim that he was doing duty on behalf of the
Ministry. Hence, the Ministry was advised not to entertain
any communication from the petitioner for the subject
assignment and the Ministry was again indicated that the
services of an alternate officer could be made available by
IOC for the purpose.
5. Vide letter dated June 16, 1992, a communication was
received by the Ministry under which they wanted to
ascertain the period for which the petitioner had been
absenting from duties at Guwahati Refinery and the time
which would have normally been required by a person to
complete the assignment of the Ministry. It was also
indicated therein to obtain the views of the petitioner on the
matter. This communication also shows that the petitioner
was not in contact with the ministry. The above letter of the
Ministry was duly replied under which his absenting from
duties were reiterated and it was indicated that the
Corporation would be proceeding with action for the
termination of the services. It was also clearly mentioned
that since the petitioner had been absenting from duty place
at Guwahati Refinery, he cannot be assigned any task within
or outside the Corporation. The services of an alternate
officer was again offered on which a confirmation was
sought from the Ministry.
6. Since there was no response from the Ministry for quite
some time after making the above offer, the position was
once again clearly communicated that the services of the
petitioner cannot be spared for the Ministry's work. In view
of a copy of the letter received from the petitioner addressed
to the Ministry and a copy marked to Guwahati Refinery
staking his claim that he was working on the Ministry's
assignment, it was made absolutely clear that IOC had not
given any clearance to the petitioner for working with the
Ministry and hence, if the petitioner approaches the
Ministry, he should be told that his services are not required
for the Ministry.
7. The Ministry informed IOC Hqrs. that IOC may proceed
against the petitioner as it may deem necessary and in case
they require the services of an alternate officer, the same
would be made known to IOC in due course.
8. The Ministry further sought to know whether the petitioner
was formally allowed by IOC to assist the Ministry of
Petroleum & Natural Gas on the Vigilance investigation of
MRL and if so, a copy of the IOC's letter deputing the
petitioner for investigation into the case be furnished to
them. It was clarified that the petitioner was never deputed
or allowed by IOC to assist the Ministry in the Vigilance
assignment and that in view of his continued absence and
failure to join duties he was deemed to have deserted /
abandoned his employment in the Corporation on his own
accord and therefore he lost his lien on the post / service of
the Corporation. His name was also struck off from the
rolls of the Corporation."
22. The case as set up by the petitioner in the inquiry was the following>-
- That vide DO letter from Jt. Secretary (M), MOP&NG
dated December 24, 1991 (which the petitioner is
mentioning as December 26, 1991) addressed to the
Chairman his services were requested for by the Ministry.
- That Shri K.C. Joseph, GM (HR), Hqrs. on January 7, 1992
asked the petitioner to contact him while he was suffering
from sickness at his home town and on January 8, 1992, he
met Shri K.C. Joseph and counseled him about the problems
faced by him in Guwahati in discharging his duties due to
excessive undue interventions both from within and outside
the organisation at Guwahati, which were alarming when
he was given the responsibility of tendering and contracting
as well as AF contract jobs during the month of August,
1991.
- That he assured GM(HR), Hqrs. for joining Guwahati
Refinery at the earliest possible as soon as he is allowed by
his family members based on Doctor's advice.
- That Shri Joseph, GM(HR) Hqrs. advised him to call on the
Ministry in connection with the request received from the Jt.
Secretary (M) vide letter dated December 24, 1991 with an
assurance that Guwahati Refinery will be advised
accordingly.
- That on the advice of Shri Joseph he undertook assignment
in the Ministry and he did not report for about 2 months
since January 10, 1992, due to untraceable filed in the
Ministry. On March 13, 1992 information was received at
his house at Faridabad to resume the work at Ministry while
he was at Gwalior for medical check up and on March 16,
1992 he reported to the Ministry.
- That on March 25, 1992 he met Shrit Joseph who enquired
about his inability to join Guwahati Refinery as he was
under the impression that the petitioner has already joined
Guwahati Refinery after completion of work.
- That the Report on findings was submitted by him vide letter
dated March 31, 1992 and copies of the letter were also
endorsed to Shri K.C. Joseph, GM(HR), IOCL, Hqrs. GM &
CMNM- Guwahati Refinery.
- That while he as engaged in the said assignment he received
various communications, telegram from Guwahati Refinery
which were replied by him.
- That in his reply dated January 3, 1994, to the chargesheet
he had asked for various documents which were not
provided to him.
- That he was reinstated pursuant to his appeal made and he
joined his duties at Guwahati refinery on December 3, 1993
and issuing a chargesheet dated December 13, 1993
amounts to dual punishment and therefore all the charges
may be dropped.
- That he narrated his version of the various events in the
case to the Jt. Secretary (R), MOP&NG and reiterated
supply of documents mainly the DO letter of Jt. Secretary
(M) dated December 24, 1991 and various other documents,
he also requested the Jt. Secretary to favour him with a
clarificatory note to safeguard his service and future and
prayed to come to his rescue and defend him in case IOC
goes ahead with the disciplinary proceedings against him.
In nutshell, the petitioner through the above documents
contended that he took over the assignment in the Ministry
as requested by the Ministry vide letter dated December 24,
1991 and as directed by Shri K.C. Joseph, GM(HR), Hqrs.
While he was busy in the Ministry's work as requested
above the Management from Guwahati Refinery was asking
him to join duties through various communications which
were received by him from time to time. Upon finalisation
of the work he resumed duty on August 27, 1992 and
September 8, 1992 the General Manager, Guwahati
Refinery, vide letter no. GR/PF/75142 dated August 8, 1992
intimated him that his name was struck off from the rolls of
the Corporation w.e.f August 25, 1992 on false allegations
that he was deserted his employment. On October 7, 1992,
he personally met the Dir. (R&P), New Delhi and also
submitted an explanation and thereafter vide Office Order
No. P/F/1/1728 dated November 18, 1993 he was directed
to report to General Manager, Guwahati Refinery.
Accordingly, he reported for duties at Guwahati Refinery on
December 3, 1993. Since he worked under the instructions
of superiors it was the Hqrs and Guwahati unit to formalise
the matter and chargesheet was uncalled for."
23. The annexures annexed to the letter dated January 03, 1994 (Ex.D-2)
have been referred to by the Inquiry Officer to be the following:-
1) A copy of letter dated 27.12.93 which is the explanation to
the Chargesheet and an appeal dated 05.11.92 made by the
petitioner to the Chairman showing his explanation which
have already been discussed earlier.
2) Petitioner's letter dated 21.10.92 addressed to the General
Manager requesting him to withdraw the letter of
termination dated 8.9.92.
3) Petitioner's letter dated 12.09.92 addressed to the General
Manager after receiving the termination letter dated
08.09.92.
4) Fax/OILCOMNET message dated 12.8.92 to Shri M. Dutta,
SHRM, Guwahati Refinery giving reference to his
engagement with relation to the Ministry's work requesting
to allow time for reporting to Guwahati.
5) Petitioner's letter dated 14.08.92 addressed to Shri M.
Dutta, SHRM vide which he has explained the events
regarding his absence due to father's sickness, his various
communications and also his engagement with Ministry.
6) Petitioner's letter dated 17/18,08.92 addressed to the Joint
Secretary (M) showing he has forwarded certain findings in
relation to the investigation to the Joint Secretary. The copy
of the letter is also shown to be marked to Shri S.C.
Chakravorty, Shri K.C. Joseph, GM(HR), Hqrs., General
Manager, Guwahati Refinery, Chief Maintenance Manager,
Guwahati Refinery.
7) Copies of ticket from New Delhi to Guwahati for 25.08.92
with a copy of telegram showing a message for Sri M. Dutta
that petitioner is reaching Guwahati on 26th August, 1992.
8) Ministry's letter dated 28.04.92 addressed to CMD, MRL,
New Delhi from the Section Officer, MOP&NG, informing
the CMD, MRL, regarding certain information to be
furnished and Shri Yogendra Singh, Maintenance Officer of
IOC assisting the Ministry in the investigation of the case
proposes to visit Madras during the month of April, 1992.
Help and cooperation to be extended to Shi Singh to
complete the task.
9) General Manager, Guwahati Refinery's letter dated 8.9.92
informing him that he is deemed to have abandoned his
employment with the Corporation and accordingly lost his
lien on the post in accordance with CDA Rules No. 8 w.e.f
25.8.92.
10) Copy of Office Order No. P/F-1/1728 dated 18.11.93, letter
No.IOC-GR/10 dated 30.11.93 of petitioner, Office Order
No. P/PF/93/3333 dated 06.12.93 and petitioner letter dated
03.12.93 are letters connected with his reporting for duties
at Guwahati Refinery on 3rd December, 1993 pursuant to
the order dated 18.11.93 by the Director (R&P).
11) Bio-data of Sri Yogendra Singh dated 29.10.92 prepared by
him.
24. The Inquiry Officer also referred to 73 other documents produced by
the petitioner herein. The findings of the Inquiry Officer are the following:-
From the assessment put forward by the Management both
oral as well as documentary and the cross-examination
done by the CSE and also the assessment of the evidence
given by the CSE which are only documentary, the following
are my findings:-
-The CSE applied for sick leave on 1.11.91 for availing the
same on 2.11.91 and also applied for 7 days Special
Compensatory off w.e.f. 4.11.91 but did not obtain the
permission and sanction of leave and left his Hqrs.
(Guwahati Refinery).
-The CSE applied for extension of leave upto 22.11.91 vide
telegram dated 12.11.91 due to his father's sickness but did
not report for duty on 23.11.91 and applied for further
extension of leave vide telegram dated 1.12.91 on account of
his own sickness since 25.11.91 and the same was not
supported by any medical certificate.
-Shri M.S. Kelkar, DMCL was given officiating to the post
of Maintenance Manager (Civil) during the period of the
absence of the CSE as there was hardship in executing the
work due to such absence.
-The Management at Gauwahati Refinery gave several
opportunities to the CSE to resume duties through various
communications dated 5.2.92, 9.4.92, 4.8.92 and 17.8.92.
The CSE, however, disregard the several advice made by
the above communications and did not resume duties.
Instead the CSE gave reason that he was working for the Jt.
Secretary, Ministry of Petroleum & Natural Gas, New
Delhi. The CSE was informed that he was not permitted or
authorized by the company to work for such assignment
and, therefore, had no authority to work for such
assignment. After the final notice given on 17.8.92 and
upon failure of the CSE to resume duties as advised, the
name of the CSE was struck off from the rolls of the
Corporation w.e.f. 25.8.92 to which effect an order was
passed on 8.9.92.
-The CSE made appeals against the above order dt. 8.9.92
terminating his services. He was directed to report to the
General Manager, Guwahati Refinery on or before 4.12.93
and the CSE reported to Guwahati Refinery on 3rd
December, 1993.
-Thereafter the appropriate authority issued a memo of
charges on 13th December, 1993.
-His medical certificate from a doctor at Gwalior who
happened to be a child specialist is not found convincing
and satisfactory as his hometown was Faridabad.
-He was time and again reminded the possible outcome of
his unauthorized absence, which the CSE did not pay any
importance and refused to comply with the repeated
direction given by the Management from time to time. The
various directions were reasonable orders of the
Management and he disobeyed the same on the pretext that
he was working for the Jt. Secretary, MOP&NG, New Delhi
for which he was made clear that he was not been permitted
or authorized for such assignment. However, he continued
to be absent on the same pretext. The CSE's stand that he
was working with the Ministry with the approval from the
IOC Hqrs. Specially from Shri K.C. Joseph, could not
dislodge the above findings as much as the examination of
Ex. C-1 to C-11 clearly shows that inspite of the efforts
made initially by the Management to make available the
services of the CSE to the Ministry he was not available
with the Ministry and on occasion it was found that he was
out of his home station without any certainty of his return.
The Ministry was also informed not to entertain Shri
Yogendra Singh as he was absenting from duties and was
taking recourse to the communications made by him to the
Ministry to establish his claim that he was doing duty on
behalf of the Ministry. The Ministry was also not knowing
the exact period for which Shri Singh has been absenting
from duties. The Ministry was also informed about his
continued absence and the Management's repeated
reminders and communications to the CSE and lastly
frustrated by the non-availability of the CSE Ministry vide
its letter dated 7.8.92 informed IOC that IOC may proceed
against the CSE and the services of any other alternate
Engineer, if required, will be asked for. The above
documents are clinching evidence of the charges leveled
against the CSE and also shows that the stand taken by the
CSE has no ground.
-On earlier occasions the services of the CSE while he was
posted at New Delhi and Mathura Refinery, specific
approvals on the request of the Ministry was given for the
CSE to assist the Ministry with certain vigilance
investigation. However, on a request received by IOC from
the Jt. Secretary, Ministry of Petroleum & Natural Gas vide
its letter dated 24.12.91 no specific approval was accorded
as because the efforts to locate him from the purpose of
request of Ministry was in vain. The CSE being experienced
in such assignments and also related administrative
requirements, took in granted that this time also the
Management will approve and he will continue to remain
away from Guwahati. The CSE could not approve that he
was working under the instructions from the officials of the
Corporation.
25. Having noted the stand of the parties during the enquiry proceedings,
the finding of the Enquiry Officer and the submissions made by the learned
counsel for the parties, insofar as the plea of Mr. Agarwal, on denial of
documents is concerned, there is no dispute that, some of the documents,
whose copies were not given, were given in inspection. Inspecting documents
meets the requirement of principles of natural justice. During submissions, it
has not been pointed out, which were the documents sought for, their
relevancy and the prejudice caused for non supply of the same. It is noted,
the petitioner had asked for documents which he had written. Surely such
documents were in the possession of the petitioner, and he could have
produced the same. It is also a settled law, that only those documents which
have been relied upon, by the employer need to be given. The respondents in
their counter-affidavit have denied the plea of the petitioner that documents
have not been given. In the absence of any prejudice being shown, the plea is
rejected. In fact, I note the petitioner has cross examined the MW's without
demur. Insofar as plea of perversity is concerned, suffice to state, the
primary plea of the petitioner against the charges framed against him being;
(1) that he was working for the Ministry of Petroleum and Natural Gas; (2) he
has been informing the progress of the investigation to Mr. Joseph, GM (HR)
of the respondent. I may state here that the Inquiry Officer in his report has
stated; (1) there is no proof of the petitioner meeting Mr. Joseph on January
7, 1992; (2) no proof of Mr. Joseph advising the petitioner to call on the
Ministry in connection with the request received from J.S. (M) of the
Ministry; (3) no proof that the petitioner having met Mr. Joseph on March 25,
1992. I may note, the plea of the petitioner that Mr. Joseph was not produced
in the enquiry by the respondent, is without merit as nothing precluded the
petitioner to produce Mr. Joseph as his witness. That apart, this Court is of
the view, that there is no order, issued by the corporation authorizing him to
work in the Ministry, as was done in the past. So it necessarily follows, the
petitioner should have joined back the Guwahati Refinery, which he had not,
as without any order he could not have worked for the Ministry. Further, it is
not a case, where the leaves applied for by the petitioner have been
sanctioned. Rather, in the telegram dated April 14, 1992, he was informed
that the leaves have not been sanctioned and was asked to join back. It is not
only once, on many occasions he was asked to join back. It is not a case of
no evidence at all. There is sufficient evidence to prove the charges as
framed against the petitioner on the concept of preponderance of probability.
The Supreme Court in the case of Bank of India and Anr. v. Degala
Suryanarayana AIR 1999 SC 2407 has inter-alia held, the court while
exercising jurisdiction of judicial review would not interfere with the
findings of fact arrived at in the departmental enquiry proceedings excepting
in a case of malafides or perversity, i.e., where there is no evidence to support
findings or where findings are such that no man acting reasonably and with
objectivity could have arrived at that findings. The Court cannot embark
upon re-appreciating the evidence or weighing the same like an appellate
authority. So long as there is some evidence to support the conclusion arrived
at by the departmental authority, the same has to be sustained.
26. Insofar as the submission with regard to violation of Article 31(14) and
31 (15) is concerned, Rule 31 relates to Procedure for Imposing Major
Penalties. Rules 31(14) and 31 (15) read as under:-
"31(14) The employee may examine himself in his own behalf
if he so prefers. The witnesses produced by the employee shall
then be examined and shall be liable to cross examination and
re-examination according to the provisions applicable to the
witnesses for the disciplinary authority. The Inquiring
authority may also put such questions to the witnesses as it
thinks fit.
31(15) The inquiring authority may, after the employee closes
his case, and shall, if the employee has not examined himself,
generally question him on the circumstances appearing against
him I the evidence for the purpose of enabling the employee to
explain any circumstances appearing in the evidence against
him."
27. A perusal of the aforesaid Rules would reveal that in an eventuality,
the Charged Officer does not examine himself then an obligation has been
put on the Enquiry Officer to question him on the circumstances appearing
against him in the evidence for the purpose of enabling the employee to
explain circumstances appearing in the evidence against him. There is no
dispute that the petitioner has not produced himself as a witness during the
proceedings. In fact, no witness was produced by the petitioner in the
enquiry. If that be so, the Enquiry Officer was required to question the
petitioner on the circumstances appearing against him in the evidence
eliciting his explanation. The consequence of not seeking such an explanation
has been considered by the Supreme Court in the case of Ministry of Finance
v. S.B. Ramesh with regard to Rule 14(18) of the CCS (CCA) Rules, wherein
it was held that such a Rule is mandatory. But in an earlier judgment, the
Supreme Court in the case of Sunil Kumar Banerjee v. State of West Bengal
and ors 1980 (3) SCC 304 which is a judgment of three Hon'ble judges, the
Supreme Court has held that non adherence to Rule 8(19) of the All India
Service Rules, 1969, which is para-materia to Rule 14(18) of the CCS (CCA)
fatal only if it is shown that a delinquent is prejudiced on account of such non
adherence. No such plea of prejudice can be proved in the absence of
evidence. The judgment of Sunil Kumar Banerjee (supra) was followed by
a Division Bench of this Court in the case of Union of India and Ors v.
Pradeep Kumar Modwill & Anr W.P.(C) No. 2850 and 2854 of 2011
decided on August 19, 2013 by holding as under:-
"55. From the afore-noted observations, the ratio of law which
is discernible from the decision in Sunil Kumar‟s case (supra)
is that non- adherence to Rule 8(19) of the All India Service
Rules, 1969 by the Enquiry Officer is fatal only if it is shown
that a delinquent was prejudiced on account of such non-
adherence. A somewhat discordant note was struck by the 2-
Judge Bench of the Supreme Court in the decisions reported as
(2008) 3 SCC 484 Moni Shankar vs. Union of India and (1998)
3 SCC 227 Ministry of Finance vs. S.B. Ramesh which
decisions have not noted the earlier 3-Judge Bench decision in
Sunil Kumar Banerjee‟s case (supra) and thus we are bound by
ratio of law laid down by the 3-Judge Bench in Sunil Kumar‟s
case (supra)."
This plea of Mr. Ashok Agarwal is unsustainable.
28. Insofar as the plea of Mr. Agarwal that, the Appellate Authority has
not applied its mind is concerned, the same is appealing. The petitioner in his
appeal has raised several grounds. Unfortunately, the Appellate Authority in
the impugned order dated December 08, 1998 has rejected the appeal by
holding as under:-
"I have gone through the appeal dt. 5.9.98 by Shri Yogendra
Singh, the Charge Sheeted Officer, along with the charge sheet
No. P/F-1/1728 dated 13.12.93, order of the Disciplinary
Authority dated 26.6.98, report of the enquiry officer and the
records of the disciplinary proceedings and all other records
connected with the disciplinary case.
I find that the Charge Sheeted Officer was given full and fair
opportunity to defend himself during the said enquiry
proceedings. I am also satisfied that the principles of natural
justice were fully observed.
I further observe that the Charge Sheeted Officer in his appeal
had not brought out any ground or fact or any extenuating
circumstance that may warrant review of order dated 26.6.98
passed by the Disciplinary Authority.
I therefore agree with the orders so passed by the Disciplinary
Authority.
Appeal stands disposed off accordingly."
29. There is nothing in the order to show that the Appellate Authority had
applied its mind to the grounds raised by the petitioner in his appeal. In the
case in hand, it is noted that the Appellate Authority has simply stated that
the Charged Officer in his appeal has not brought out any ground or any
extenuating circumstance which may warrant review of order dated June 26,
1998 passed by the Disciplinary Authority. In other words, he, in-toto agreed
with the view of the Disciplinary Authority, which is impermissible in view
of the judgment of the Supreme Court in the case of Director (Marketing),
Indian Oil Corpn. Ltd. And Another v. Santosh Kumar (2006) 11 SCC 147,
wherein in paras 9, 10 and 11 the Supreme Court held as under:-
"9. We have also perused the order passed by the General
Manager (Operations) which is available at page 51 and the
order passed by the Director (Marketing) who is the appellate
authority. A close scrutiny of both the orders would only go to
show that the Appellate Authority has simply adopted the
language employed by the Disciplinary Authority and inflicted
the punishment of dismissal on the respondent herein.
10. For the sake of convenience, we extract both the orders
available at page 51-52 of the paper book:
"I have carefully gone through Shri Santosh Kumar,
Emp. No. 19957, Ex-AM(Ops) Hissar Depot's appeal
dated 25.3.2000 together with all papers relating to the
disciplinary case initiated against him vide charge-sheet
No. IR/1461/(N-113) dated 24.6.97 in the capacity of the
Competent Disciplinary Authority.
I have applied my mind and I find that Shri Santosh
Kumar has not brought out any point in his appeal dated
25.3.2000 which may warrant any change in the said
final order passed by me as the Competent Disciplinary
Authority.
The appeal of Shri Santosh Kumar is hereby forwarded
to Director(M)-the Appellate Authority for his kind
consideration and orders.
General Manager (Operations )
I have carefully gone through Shri Santosh Kumar, Emp.
No. 19957, Ex-AM(Ops) Hissar Depot's appeal dated
25.3.2000 together with all papers relating to the
disciplinary case initiated against him vide charge-sheet
No. IR/1461/(N-113) dated 24.6.97. Shri Santosh Kumar
has preferred an appeal against the order of penalty of
"Dismissal", inflicted upon him by GM(Ops.) - the
Competent Disciplinary Authority vide reference No.
IR/1461/(N-113) dated 30.12.1999 as a measure of
disciplinary action against Shri Santosh Kumar.
I have applied my mind and I find that Shri Santosh
Kumar has not brought out any point which may warrant
my interference with the said orders passed by the
Competent Disciplinary Authority. Accordingly, I hereby
reject the appeal of Shri Santosh Kumar. Let Shri
Santosh Kumar be advised accordingly.
Director
(Marketing)"
11. A perusal of the order passed by the Appellate Authority
would only reveal the total non-application of mind by the
Appellate Authority. We, therefore, have no other option except
to set-aside the order passed by the Disciplinary Authority and
the Appellate Authority and remit the matter for fresh disposal to
the Disciplinary Authority. The Disciplinary Authority shall
consider the detailed representation made by the respondent and
also consider the detailed report of the Enquiry Officer and the
records placed before him in its proper perspective and decide
the matter afresh on merits. The Disciplinary Authority is
directed to consider the entire case only on the basis of records
already on record. The respondent is not permitted to place any
further material or record before the Disciplinary Authority. The
order passed by the High Court is set-aside for the above
reason. We also set-aside the direction issued by the High Court
ordering re-instatement into service with continuity in service
and all consequential benefits. The Disciplinary Authority is also
directed to dispose of the matter, within three months from the
date of receipt of this order, after affording an opportunity to
both the parties. The Civil Appeal is disposed of accordingly. No
order as to costs."
30. Further, in the case of LIC vs. A. Masilamani 2013 (6) SCC 530, the
Supreme Court has held that the order of Appellate Authority itself should
reveal application of mind and he cannot simply adopt language employed by
the Disciplinary Authority and proceed to affirm its order.
31. Insofar as the plea of Mr. Aggarwal that the penalty of stoppage of
increments could not be with retrospective effect, the same is also appealing
as I note, one of the impugned order was passed on June 26, 1998 whereby
the four increments of the petitioner have been stopped. At least to the extent
of stoppage of increments dated January 1, 1997 and January 1, 1998, the
punishment is retrospective. The penalty to that extent being separable with
the penalty of stoppage of increments w.e.f. January 1, 1999 and January 1,
2000 and in view of the position of the law laid by the Supreme Court in the
case of R.Jeevaratnam Vs. The State of Madras, AIR 1966 SC 951, wherein
in paras 3 and 4 it has held as under:
"3. Counsel for the appellant next contended that the order
of dismissal dated October 17, 1950 having been passed with
retrospective effect is illegal and inoperative. Counsel for the
respondent submitted (1) the order of dismissal with
retrospective effect as from the date of the suspension is valid
in its entirety, and (2) in any event, the order is valid and
effective as from October 17, 1950. The High Court accepted
the first contention, and declined to express any opinion on the
second contention. In our opinion, the second contention of the
respondent is sound, ,and in this view of the matter, we decline
to express any opinion on the first contention. Counsel for the
appellant conceded that if the respondent's second contention
is accepted, the appeal must fail.
4. The order dated October 17, 1950 directed that the
appellant be dismissed from service with effect from the date
of his suspension, that is to say, from May 20, 1949. In
substance, this order directed that ( 1 ) the appellant be
dismissed, and (2) the dismissal do operate retrospectively as
from May 20, 1949. The two parts ,of this composite order are
separable. The first part of the order ,operates as a dismissal
of the appellant as from October 17, 1950. The invalidity of
the second part of the order, assuming this part to be invalid,
does not affect the first part of the order. The order of
dismissal as from October 17, 1950 is valid and effective. The
appellant has been lawfully dismissed, and he is not entitled to
claim that he is still in service".
32. Insofar as the plea of Mr. Agarwal that the order dated September 08,
1992 would not survive as the petitioner having been reinstated and on his
reinstatement, he has been proceeded departmentally is concerned, the same
is appealing. There is no dispute that vide letter dated November 18, 1993,
the petitioner was asked to report back to the Guwahati Refinery and it is a
fact that the petitioner did report to the Guwahati Refinery on December 04,
1993 and further on his reinstatement he was issued chargesheet. The
chargesheet culminated in the punishment of withholding of four increments,
which presupposes that the petitioner was on the rolls of the Corporation.
That apart, he had taken voluntary retirement in the year 2006. In view of
this, the order dated September 08, 1992 whereby the petitioner has been said
to have deserted his employment and his name was struck off; from the rolls
of the Corporation with effect from August 25, 1992, has become
infructuous. Suffice to state, he was taken back on the rolls of the
Corporation.
33. Insofar as the connected plea of Mr. Agarwal that the period between
August 25, 1992 to December 03, 1993 could not have been treated as not on
duty for all purposes is concerned, the plea is justified as it is noted that the
petitioner immediately on receipt of letter dated September 08, 1992 had
submitted a representation initially to the General Manager to cancel the
order of termination dated September 08, 1992 and thereafter to the
Chairman on November 05, 1992 making a similar request. The request
having been accepted vide letter dated November 18, 1993, without any
precondition as also clear from the office order dated December 06, 1993, the
period between August 25, 1992 to December 03, 1993 need to be treated as
on duty for all purposes.
34. From my above discussion, the following position emerges:
(1) That the Enquiry Officer was justified in holding the charges as proved
on the concept of preponderance of probability.
(2) That the order of penalty to the extent of stoppage of increment w.e.f.
January 1, 1997 and January 1, 1998 is illegal.
(3) The order of the Appellate Authority is without application of mind as
he did not deal with the grounds raised by the petitioner in his appeal.
(4) The period between August 25, 1992 to December 03, 1993 shall be
treated as on duty for all purposes, as the order dated August 25, 1992,
has become infructuous.
35. Having said that, the question which arises is what relief the petitioner
is entitled to; whether the matter should be remanded back to the Appellate
Authority to pass fresh order. This Court is of the view that the petitioner
having taken voluntary retirement in the year 2006 and the penalty which
would survive, is only to the extent of withholding of increments w.e.f.
January 1, 1999 and January 1, 2000, which is not harsh and 18 years have
passed since the imposition of the punishment and moreover I have upheld
the conclusion of the Enquiry Officer holding the charges as proved, it is not
a fit case where the matter should be remanded back to the Appellate
Authority. I uphold the penalty to the extent of withholding of increments as
on January 01, 1999 and January 01, 2000. The order dated September 8,
1992 and June 26, 1998 to the extent, penalty of withholding of increments
w.e.f January 1, 1997 and January 1, 1998 and the period between August 25,
1992 and till December 3, 1993, was treated not on duty for all purposes are
set aside.
36. In view of the aforesaid, the consequential benefits, if any, shall be
released to the petitioner as per the rules, within a period of three months
from the date of receipt of the order.
37. The writ petition is disposed of in terms of the above. No costs.
V. KAMESWAR RAO, J
DECEMBER 20, 2017/ak
