WP(C)/7096/2017
2021 Latest Caselaw 1511 Gua

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GAHC010050592017




                    THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                     Case No. : WP(C)/7096/2017

                      Protim Patni Dey
                      S/o Sri Pronoy Patni Dey
                      R/o Borhat Habigaon, P.O. Borhat,
                      Pin Code- 785693,
                      Sivasagar, Assam
                                                                       ........Petitioner
                                     Versus

                      1. Oil India Ltd.
                      A Govt. Of India Enterprises Registered Office
                      Duliajan Pin Code- 786602,
                      Assam, Rep. by its Managing Director.

                      2. The Resident Chief Executive
                      Oil India Limited
                      Duliajan Pin - 786602.

                      3. The Deputy General Manager
                      Employee Relations
                      Oil India Limited
                      Duliajan. Pin - 786602.

                      4. The Principal
                      Oil India H.S. School
                      Oil India Limited
                      Duliajan
                      Pin - 786602
                                                                ........Respondents

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

Advocate for the petitioner : Mr. N. Deka

Advocate for the respondents : Mr. S. N. Sarma, Sr. Advocate : Mr. K. Kalita

Date of hearing : 25.03.2021 Date of judgment : 23.04.2021

JUDGMENT & ORDER (CAV)

Heard Mr. N. Deka, learned counsel for the petitioner. Also heard Mr. S. N. Sarma, learned Senior counsel for the respondent No. 4, assisted by Mr. K. Kalita.

2. The petitioner is aggrieved by the Order dated 17.05.2017 passed by the Deputy General Manager (ER) of the Oil India Limited, by which the service of the petitioner, who is on probation, has been terminated. The petitioner's case in brief is that he was appointed as a Graduate Teacher for a period of six months w.e.f. 13.07.2011 in Oil India H.S. School, Duliajan. On the basis of a complaint submitted by the parents of a girl student of Class-IX on 20.09.2011, the petitioner was issued a show cause notice on 23.09.2011 on the charge of sexually harassing the girl student. The petitioner submitted his reply dated 24.09.2011 to the show cause notice denying the charge. Thereafter, notice dated 25.04.2012 was issued by the respondent, wherein it was stated that a formal enquiry was to take place against the petitioner. Then, the respondents issued an Order dated 19.10.2011, by which the show-cause notice dated 23.09.2011 was withdrawn and the enquiry proceedings to be initiated was also cancelled.

Subsequent to the Order dated 19.10.2011 withdrawing the earlier show- cause notice, the petitioner was served with a second show-cause notice dated 19.10.2011, whereupon it was reiterated that the petitioner had sexually harassed a minor girl student of class-IX by making unwelcome remarks and gestures intending to insult the modesty of the girl student. Further, he had been coercing and forcing the Page No.# 3/16

student to agree to his illicit carnal desires for which the student was suffering from mental trauma and agony. The petitioner submitted his reply to the second show- cause notice vide representation dated 24.10.2011 denying the charge. Thereafter, a notice of enquiry dated 05.11.2011 was issued to the petitioner and an enquiry proceeding was initiated against the petitioner. The Enquiry Report was completed on 25.04.2012 and in the Enquiry Report dated 25.04.2012, the finding of Enquiry Officer was to the effect that the charges could not be established against the petitioner. The Enquiry Report centred around whether the petitioner had enquired about the boyfriend of the student and whether he had said " Nari Sukh", which in the present case, would be to the effect that the petitioner had not been fortunate to have a womens love/pleasure. The Enquiry Report with regard to the above is reflected in the Eight and Ninth hearing, which is reproduced below:

"2.8 The eight hearing was held on 03.02.2012. During the enquiry MW1 agreed that she has also offered CE a piece of chocolate on 09.09.2011 and for which he returned a chocolate on 12.09.2011. CE asked whether she has told in the last enquiry regarding about the same for which she said no.

CE asked MW1 that in the compliant letter the term sexual harassment has been mentioned, what kind of sexual harassment happened to her. She replied that since a teacher is talking about Nari Sukh and enquiring about her boy friend which is creating mental disturbance to her. Again when CE asked her that did he said these two words Nari Sukh & about her boy friend she verbally denied.

CE narrated an incident which was given in the explanation letter to the show cause notice. CE stated that on 22.09.2011 he went to meet Mr. Rajkhowa for vacating his temporary house. While he was returning near TDX turning, one Mr. Amir Dutta followed him & tried to assault him for which he took help from security personnel. In the mean time, Amir Dutta called one of his friends who came in a motor bike. CE tried to call two senior teachers namely Munni Singh & Shamanta Bhattacherjee for help but the friend in bike forcefully took his mobile phone and threatened Munni Singh with slang words.

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During the cross examination of MW2, CE asked him that whether he had heard anything which CE&MW1 has discussed while going together towards home on 17.11.2011. MW2 replied that it was not audible as the distance was almost 8 feet. CE asked MW2 that whether he has seen him touching Ms. Rini Sharma, MW2 replied 'No'. MW2 also said that on 17th Sept. 2011 Pratim & Bharoti, one of Ms. Rini Sharma's friend accompanied MW1 & MW2 up to the turning point where one road goes towards Civil Engg. Deptt. & one road goes to B-type quarter.

The enquiry was adjourned for the day & the next date of hearing was fixed on 10.02.2012. Copies of daily order sheet and summary of evidence was given to MR & CE.

2.9. The ninth hearing was held on 10.02.2012 at MTDC. During cross examination by CE to MW1, she told that she knew the names of Protim Patni Dey when her father came to School for giving a verbal complaint. She stated that CE asked her to wait 5/6 times but she waited 2 days. She did not remember the dates. Again she mentioned that before 17 th September, 2011 CE has not met her nor he forcefully accompanied with her to her house or other place. She even stated that CE has not given any proposal of love to her. She also stated that it is not a wrong thing if a teacher gives a chocolate to a student.

During re-examination by MR, MW-1 told that her father informed over phone the Principal about the incident and Principal has not shown any interest. After that she verbally told Principal, Principal replied her that she would look into the matter. Then her parents came and gave the written complaint.

During Cross examination of MW2 by CE, he told that CE asked him to tell her to wait for CE. When he conveyed to MW-1 (Rini Sharma) she said 'OK. But he did not remember how many days she waited for CE. MW2 also agreed that given a chocolate to a student by teacher is not an assault and CE is a good teacher. On 17 th September while they were going together neither he had heard anything nor CE confronted MW-1; only CE and MW-1 were discussing something. During Re-

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examination by MR, MW2 answered the same thing which he had already stated.

Examination started by MR to Mr. Hari Narayan Sharma, father of Miss Rini Sharma (MW-1). During the examination, Mr. Sharma had told that CE has given a proposal of love to his daughter. When he came to know about the incident from his elder daughter over phone, he enquired the same with Miss Rini Sharma (MW-1), and then he gave a call to the Principal of the School. According to him, Principal had not shown any importance on his verbal complaint and therefore he gave the complaint letter to the Principal. When Mr. Sharma was asked who has prepared the complain letter. Mr. Sharma stated that he has many well wishers who know about law, when he narrated the incident they have written the complaint letter for him.

At the time of re-examination by CE, Mr. Sharma has told that the letter was written in Assamese by him and translated by his well wishers. Mr. Sharma also told that the complaint letter was signed by them (parents of Rini Sharma) but he went alone and submitted it in the School.

Many incidents took place in the School which she has admitted during cross examination by CE but Mr. Sharma was unknown about that. Even Mr. Sharma did not know that she has also given a chocolate to CE before CE has returned a chocolate to her. Mr. Sharma being working in Geophysics department he goes to place called Borhat for his duty where CE is hails from.

CE has asked Mr. Sharma, when she was crying and not taking food as per the complaint letter, whether he has taken her to a doctor since you have mentioned in the complained letter the she has been sexually harassed and sexually assaulted. CE has mentioned that according to IPC, medical check-up is necessary after a sexual assault. But Mr. Sharma told that he is unaware of that, that is why he has not done any medical checkup of her, initially he thought she was mentally harassed due to stress for studies.

EO enquired with Mr. Sharma that whether he has consulted with any teacher before he submitted the complaint letter to the Principal but he said that he Page No.# 6/16

has not consulted with any teacher from school.

The Hearing was over; the next date of hearing was fixed on 29.02.2012. EO directed MR to produce Mother of Miss Rini Sharma (MW-1) in the next hearing. Copies of Daily Order sheet and summary of evidence were given to MR and CE."

The conclusion of the Enquiry Officer is as follows:

"CONCLUSION

During the enquiry Proceedings, being an Enquiry Officer have given equal opportunity to both the party to produce their witness of the facts. From the hearing on 17th September, 2011 Shri Protim Patni Dey (CE) met Miss Rini Sharma along with other student namely Pallab Jyoti Baishya (MR2) and Miss Bharati. It is clear from the statements that Charged Employee has not forced her, harassed her by giving proposal of love, forcefully not accompanied with her to house. There is no documentary evidence that she has been Sexually Assaulted.

The allegation of Sexual Harassment/ Assault is far away from the facts that have been established during the course of Enquiry.

All charges levied against the Charged Employee are not substantiated by concrete evidences.

Hence it is concluded the charges against Shri Pratim Patni Dey. Regd. No. 201038, Science teacher of Oil India H. School, Duliajan could not be established."

3. The Principal of the school thereafter forwarded the Enquiry Report dated 25.04.2012 to the petitioner and asked him to submit a representation against the same. The petitioner submitted his representation in respect of the Enquiry Report dated 25.04.2012, requesting the Principal to accept the findings of the Enquiry Report. The Principal of the school instead passed an Order dated 16.08.2012, wherein the petitioner was imposed with the penalty of dismissal from service. In the Order Page No.# 7/16

dated 16.08.2012, the Principal of the school also stated that she had disagreed with the findings in the Enquiry Report made by the Enquiry Officer and accordingly imposed the penalty of dismissal against the petitioner.

4. Being aggrieved by the penalty imposed upon the petitioner vide Order dated 16.08.2012 and as the same had been made without the petitioner being given the reasons made by the Principal, for disagreeing with the Enquiry Report dated 25.04.2012, the petitioner submitted a complaint to the Regional Labour Commissioner, Central at Dibrugarh. The conciliation attempt made by the parties ended in failure and thus the petitioner approached this Court by way of WP(C) 3980/2015. The two issues that were to be decided in WP(C) 3980/2015 was whether the petitioner could be said to be a workman, as defined in the Industrial Disputes Act, 1947. The second issue was whether the Disciplinary Authority should have given the petitioner an opportunity to represent before it the reasons made by the Disciplinary Authority, which disagreed with the findings made in the Enquiry Report by the Enquiry Officer.

5. WP(C) 3980/2015 was disposed of vide Order dated 09.02.2017 by holding that the petitioner, who was a School Teacher, could not be said to be a workman as defined under the Industrial Disputes Act, 1947. Further, this Court also held that no opportunity was given to the petitioner to make a representation against the reasons allegedly made by the Disciplinary Authority, disagreeing with the findings in the Enquiry Report. This Court thus set aside the impugned Order dated 16.08.2012 and also gave liberty to the Oil India Limited to continue with the departmental proceeding, from the stage of furnishing to the petitioner, the reasons made by the Disciplinary Authority which disagreed with the Enquiry Report and giving the petitioner an opportunity to make a representation against those reasons.

6. Consequent to the above Order dated 09.02.2017 passed in WP(C) 3980/2015, the Principal of the Oil India H.S. School, Duliajan issued a letter dated 20.03.2017 to the petitioner, giving the reasons made by the Principal, which disagreed with the findings made in the Enquiry Report and asked the petitioner to submit a Page No.# 8/16

representation/reply with regard to the same. The petitioner thereafter submitted a reply dated 31.03.2017 to the show-cause notice dated 20.03.2017. Thereafter, the impugned Order dated 17.05.2017 was issued by the DGM (ER) of Oil India Limited, holding that as the misconduct was of a grave nature and due to the petitioner's unsatisfactory performance during the probation period, the petitioner's service as a Graduate Teacher (Science) could not be confirmed. His temporary appointment was terminated with immediate effect vide the impugned Order dated 17.05.2017.

7. The petitioner thereafter submitted an appeal dated 17.06.2017 to the Resident Chief Executive, Oil India Limited, Duliajan, as the impugned Order dated 17.05.2017 had stated that the Resident Chief Executive, Oil India Limited, Duliajan was the appellate authority. The appeal was however dismissed vide Order dated 13.10.2017 issued by the appellate authority. The petitioner has thus approached this Court by way of the present writ petition, praying for setting aside the impugned Orders dated 17.05.2017 and 13.10.2017.

8. The petitioner's counsel submits that pursuant to the order passed by this Court in WP(C) 3980/2015, the departmental proceeding was completed as per the provisions of the Modified Standing Orders. However, the appeal filed by the petitioner was disposed of in terms of the Oil India Limited Teachers CDA Rules, 2017, which came into force w.e.f. 01.06.2017.

9. The petitioner's counsel submits that in terms of Clause 21.3.3 of the Modified Standing Orders of the Oil India Limited, the imposition of a major penalty has to be issued by the Head of the Department, which in this case would be the Principal of the School. However, the Principal of the School did not issue the penalty Order dated 17.05.2017 and instead the DGM (ER) has issued the penalty order. He also submits that in terms of Clause 23.1 of the Modified Standing Orders, the petitioner can seek the advice of the DGM (ER) or such other officer of the company as may be deputed by the Director (Operation), if he was to file an appeal against the penalty order imposed upon the petitioner. However, the penalty order has been issued by the DGM (ER), who could have given advice to the petitioner, with regard to filing Page No.# 9/16

an appeal against the penalty order.

10. The petitioner's counsel also submits that the reasons for disagreeing with the Enquiry Report made by the earlier Principal, is the same reason that had been communicated to the petitioner by the new Principal of the School. As the reasons given by the old Principal and the new Principal are the same, the same shows that there has been no application of mind by the new Principal. He also submits that the finding made by the DGM (ER) is perverse, as he has gone beyond the answers given by the girl student to hold that the petitioner is guilty of the charge of sexually harassing the girl student.

11. Mr. S. N. Sarma, learned senior counsel, appearing for the Oil India Limited, submits that this Court vide its Order dated 09.02.2017 passed in WP(C) 3980/2015 had given liberty to the Oil India Limited to continue with the departmental proceeding against the petitioner, from the stage of furnishing the reasons made by the Disciplinary Authority, which disagreed with the Enquiry Report and by giving the petitioner an opportunity to make a representation against the same. As the reasons for disagreeing with the Enquiry Report had been made by the earlier Principal of the School, there was no infirmity with communicating the said reasons by the new Principal of the School. He submits that no prejudice is caused to the petitioner by the fact that the reasoning given by the old Principal had been communicated to the petitioner.

12. Mr. S.N. Sarma also submits that the Deputy General Manager (Industrial Relation) mentioned in Clause 23.1 of the Modified Standing Orders is now known as DGM (ER). He also submits that though the DGM (ER) is not the Disciplinary Authority, the authority higher than the Disciplinary Authority, can pass a valid penalty order. He further submits that the petitioner's appointment order was issued by the Head of Employees Relation, who is also known as Industrial Relation Officer and as such, the DGM (ER) was competent to issue the impugned order. He also submits that the Industrial Relation Officer/ Head of Employees Relation is above the grade of Principal, but below the DGM (ER).

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13. Mr. S.N. Sarma, learned counsel for the Oil India Limited submits that the Principal of the School is the Disciplinary Authority and also the Head of the Department in terms of the letter dated 11.03.1998 issued by the Deputy General Manager (Administration). He thus submits that as the competent authority in the Company authorised the Principal of the said School to run the School administration, the Principal had been functioning as the Head of Department of the School. As a major punishment can be imposed by the Head of the Department under Clause- 21.3.3 of the Modified Standing Orders, there was no infirmity with the Principal of the School disagreeing with the findings made by the Enquiry Officer in the Enquiry Report, wherein the findings against the charges framed against the petitioner could not be established.

14. I have heard the learned counsels for the parties.

15. The extract of para 54 of the affidavit-in-opposition filed on behalf of the respondent Nos. 1 to 4 is to the effect that Oil India Limited Teachers CDA Rule came into effect from 01.06.2017. However, as this Court in the Judgment and Order dated 09.02.2017 passed in WP(C) 3980/2015 had directed the respondent company to complete the departmental proceeding within three months, the departmental proceeding was completed as per the provisions of the Modified Standing Orders. However, the appeal filed by the petitioner was disposed of in terms of the Oil India Teachers CDA Rule, 2017.

16. Clause 21.3.3 (a) & (e) and Clause 23.1 are re-produced below:-

"21.3.3 Imposition of Major Punishment

(a) No major punishment as specified under Section 21.2.1(f), (g) & (h) and Section 21.2.2 of these orders may be awarded by the Head of a Department unless the workmen concerned has been informed in writing of the alleged misconduct and is given opportunity to explain the circumstances alleged against him/her and to adduce evidence, if any, in his/her favour at a domestic/departmental enquiry to be held for this purpose.

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(e) In awarding punishment the Head of the Department shall take into account the gravity of misconduct, the previous records, if any, of the workman and any other extenuating or aggravating circumstances that may exist. A copy of the Order passed by the Head of the Department shall be supplied to the workman concerned.

23.1 If a workmen considers that the final decision of the Head of the Department issued under Section 21.2 of these Standing Orders is unjust, he/she may seek the advice of the Deputy General Manager (industrial Relations) or such other office of the Company as may be deputed by the Director (Operations) for the purpose, who, if he considers, there are ground for so doing, may lodge an appeal on the workman's behalf to the Head of the Department for reconsideration of the case. If the workman concerned is still not satisfied, he/she ay address the Director (Operations) direct. All workmen will have free access to the deputy General Manager (Industrial Relations) about any matter."

17. In paragraph 16 of the affidavit-in-opposition filed by the respondents, it has been stated that the Deputy General Manager (ER), who was the Disciplinary Authority had considered the explanation/representation given by the petitioner vide his letter dated 31.03.2017, which was with regard to the reasons the Principal had disagreed with the Enquiry Report. As the Deputy General Manager (ER), did not find the explanation to be satisfactory or convincing, the petitioner's service was terminated vide the impugned Order dated 17.05.2017.

It is surprising to note that while the Deputy General Manager (ER) is the Disciplinary Authority, the Principal of the said School had disagreed with the findings made by the Enquiry Officer made in the Enquiry Report. It is also clear from the submission of the learned counsel of Oil India Limited that the Principal was not the appointing authority and that he was lower in rank and in grade to the Head of Employees Relation/Industrial Relation Officer, who in turn was lower in rank/grade to the DGM (ER). If the DGM (ER) was the Disciplinary Authority, the Principal was not Page No.# 12/16

competent to disagree with the findings made in the Enquiry Report. Further, the appointing authority was the Head of Employees Relation/Industrial Relation Officer. As such, the disagreement made by the Principal against the Enquiry Report is of no consequence and could have no bearing on the findings made in the Enquiry Report, as the Principal of the said School was not the Disciplinary Authority, he being subordinate to the Head of Employees Relation/Industrial Relation Officer.

18. In the case of State of Madhya Pradesh & Ors Vs. Shardul Singh, reported in 1970 (1) SCC 108, the Apex Court has held that the guarantee under Article 311 (1) of the Constitution includes within itself the guarantee that the relevant disciplinary inquiry should be initiated and conducted by the authorities mentioned in the Article. Article 311(1) of the Constitution provides that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

19. In the case of P.V. Srinivasa Sastry & Ors Vs. Comptroller & Auditor General & Ors, reported in (1993) 1 SCC 419, the Apex Court has held that Article 311 (1) does not say that the departmental proceedings must be initiated only by the appointing authority. It is open to the Union of India or a State Government to make any rule prescribing that the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority.

20. As per the law laid down by the Apex Court in the above cases, it is clear that a departmental proceeding can be initiated against the delinquent officer, by an officer not subordinate to the appointing authority. In the present case, the petitioner was not a member of a civil service of the Union or of the State and did not hold a civil post under the Union or a State. As such, Article 311(1) of the Constitution may not apply to the present case. Be that as it may, the petitioner was appointed as Graduate Teacher by the Head of Employees Relation/Industrial Relation Officer, while he was terminated from service by the Deputy General Manager (ER). However, the departmental enquiry has been initiated against the petitioner by the Principal, who is Page No.# 13/16

subordinate to the appointing authority, i.e., the Head of Employees Relation/Industrial Relation Officer.

21. WP(C) No. 3980/2015 had been disposed of by this Court on the ground that the School Teacher (petitioner) could not be said to be a workman under the Industrial Disputes Act, 1947. Further, the dismissal of the petitioner from service, without giving an opportunity to the petitioner to make a representation against the reasons made by the Disciplinary Authority, disagreeing with the findings with the Enquiry Report, which stated that the charge could not be established against the petitioner, was held to be unsustainable. Accordingly, this Court had set aside the impugned order dated 16.08.2012 and given liberty to the Oil India Limited to continue with the departmental proceeding, from the stage of furnishing to the petitioner, the reasons made by the Disciplinary Authority, which disagreed with the Enquiry Report and by giving the petitioner an opportunity to make a representation against the same.

22. WP(C) No. 3980/2015 had been disposed of on the belief that the Principal of the said School was the Disciplinary Authority. However, as can be seen from the averments made by the respondents in this case, the Principal of the said School was never the Disciplinary Authority in the departmental proceeding. As such, keeping in view the above facts and by invoking the power of judicial review of this Court, this Court holds that the Principal of the said School, was not the Disciplinary Authority and the Principal's disagreement with the findings made in the Enquiry Report can be of no relevance or consequence. As the DGM (ER), who is the Disciplinary Authority, as per paragraph No. 16 of the affidavit-in-opposition filed by the respondents, had not made any disagreement with the findings made in the Enquiry Report, his rejection of the explanation given by the petitioner against the disagreement recorded by the Principal of the said School, is also of no relevance or consequence and is a nullity.

23. In the case of A. Sudhakar Vs. Postmaster General, Hyderabad & Anr., reported in (2006) 4 SCC 348, the Apex Court has held that there does not appear to be an embargo in terms of Article 311 (1) of the Constitution that a higher authority Page No.# 14/16

cannot act as a Disciplinary Authority, wherein the delinquent is not deprived of an opportunity of preferring an appeal against the penalty order. The Apex Court in the above case at paragraph 18 has held as follow:-

"18. It is now trite that an authority higher than the appointing authority would also be the designated authority for the purpose of Article 311 of the Constitution. Even the Appellate Authority can impose a punishment subject, of course, to the condition that by reason thereof the delinquent officer should not be deprived of a right of appeal in view of the fact that the right of appeal is a statutory right. However, if such right of appeal is not embellished, an authority higher than the appointing authority may also act as a Disciplinary Authority."

24. In the case of Chairman, A.P. State Electricity Board & Ors Vs. M. Kurmi Naidu, reported in (2006) 8 SCC 62, the Apex Court had referred to other judgments of the Apex Court wherein it had been held that an authority lower than the appointing authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority could not take a decision or impose the penalty as the primary authority in the matter of disciplinary action. However, in those circumstances, where the appellate remedy provided under the rules is denied, the same caused prejudice to the delinquent officer, as he would otherwise have availed of the appellate remedy as his right to consider his case by an appellate authority was not available. Thus, though there is no bar for a higher authority than the Disciplinary Authority to impose a penalty as the primary authority in the departmental proceedings, the employee cannot be deprived of the remedy of appeal, which is a substantive right given to him under the Rules/Regulations.

25. In the case of Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank & Ors., reported in (1995) 2 SCC 474, the Apex Court has held that when an appeal is preferred to the higher authority concerned against the order of the Disciplinary Authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a Page No.# 15/16

substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. The higher or appellate authority may choose to exercise the power of the Disciplinary Authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee.

26. Clause 21.2.1 (h) of the Modified Standing Orders states that a workman, if found guilty of any of the aforesaid misconduct may be dismissed from service by the Head of the Department.

In the present case, the impugned Order dated 17.05.2017 terminating the service of the petitioner had been issued by the Deputy General Manager (ER), who is not the Head of the Department. Though the affidavit-in-opposition filed by the respondents states in paragraph 16 that the Deputy General Manager (ER) is the Disciplinary Authority, the Deputy General Manager (ER) is not the Head of the Department. As per Clause 23.1, a workman can seek the advice of the Deputy General Manager (ER) in respect of an appeal to be filed against the decision of the Head of the Department issued under Clause 21.2. The above facts clearly go to show that the petitioner has been deprived of his right to seek the advice of the DGM (ER) while filing an appeal against the penalty imposed upon him.

No doubt a higher or appellate authority can choose to exercise the power of a Disciplinary Authority. However, the same should not deprive the petitioner from availing his remedy to file an appeal.

27. In the present case, as the DGM (ER) is the Disciplinary Authority who imposed the penalty of dismissal upon the petitioner, it is crystal clear that it is only the Disciplinary Authority, who can disagree with the findings made by the Enquiry Officer in his Enquiry Report. The disagreement made by the Principal with the findings in the Enquiry Report cannot be acted upon as the Principal of the School was subordinate to the Appointing Authority and the Disciplinary Authority.

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28. In view of the above reasons and also due to the fact that the impugned termination Order dated 17.05.2017 has not been issued by the competent authority, which is in violation of Clause 23.1 of the Modified Standing Order, the impugned Order dated 17.05.2017 is not sustainable and is accordingly set aside. Consequently, the Order dated 13.10.2017, issued by the Resident Chief Executive, Oil India Limited is also set aside. As the disagreement with the Enquiry Report had not been made by the Disciplinary Authority, this Court was initially of the view that the departmental proceeding should be re-started from the stage of submission of the Enquiry Report by the Enquiry Officer to the Disciplinary Authority, i.e. the DGM(ER). However, the DGM (ER) was the person who had rejected the petitioner's representation made against the disagreement made by the Principal against the Enquiry Report. As such, this Court is of the view that re-starting the disciplinary proceeding from the stage of submission of the Enquiry Report to the DGM (ER) would not serve any purpose as there is a real chance of the petitioner not getting a proper consideration with any disagreement that the DGM (ER) would probably have against the Enquiry Report. In this regard, it would be profitable to refer to the judgment of the Apex Court in the case of H.L. Trehan and Others vs. Union of India and Others, reported in (1989) 1 SCC 764, wherein it has held that post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisioinal hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisioinal opportunity. The writ petitioner should accordingly be reinstated into service. The question of payment of backwages and other consequential benefits is to be decided by the respondents. The writ petition is accordingly disposed off.

JUDGE

Comparing Assistant