WA/153/2021
2022 Latest Caselaw 115 Gua

                                                                              Page No.# 1/17

GAHC010096842021



                                              Judgment reserved on : 13th December, 2021
                                              Judgment delivered on : 11th January, 2022




                             In the Gauhati High Court
         (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)


                          WRIT APPEAL NO.153 OF 2021
                          Oil India Limited, At Duliajan, P.O-Duliajan, District-
                          Dibrugarh, Assam, PIN- 786602, Represented by its
                          Chairman & Managing Director.

                                                                         ........Appellant


                                 -Versus-

                          Protim Patni Dey,
                          Son of Sri Pronoy Patni Dey,
                          Resident of Borhat Habigaon,
                          P.O.-Borhat,
                          Pin-785693,
                          Sivasagar, Assam.

                                                                         ........Respondent

-B E F O R E -

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA Advocate for the appellant : Mr. S. N. Sarma, Senior Advocate.

   Advocate for the respondent      : Mr. N. Deka, Advocate.
                                                                       Page No.# 2/17



                          JUDGMENT AND ORDER (CAV)
(Soumitra Saikia, J)

This appeal is filed against the Judgment and Order dated

23.04.2021 passed in W.P.(C) No. 7096/2017, whereby the termination

order dated 17.05.2017 passed by the Deputy General Manager

(Employees Relations, Oil India Limited, Duliajan) as well as order dated

13.10.2017 issued by the Resident Chief Executive, Oil India Limited to

the respondent/writ petitioner was held to be not sustainable and set

aside and the writ petitioner was directed to be reinstated in service.

2. The respondent was appointed as a Graduate Teacher for a period

of 6 (six) months with effect from 13.07.2011 in the Oil India H.S School,

Oil India Limited, 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 charges levelled against

him. The said show cause notice, however, was thereafter withdrawn and

the enquiry proceedings sought to be initiated were also cancelled by

order dated 19.10.2021. On the same day a second show cause notice Page No.# 3/17

dated 19.10.2011 was again issued to the petitioner/respondent

reiterating the charges that the petitioner had sexually harassed a minor

girl child of class-IX by making unwelcome remarks and gestures

intending to insult the modesty of the girl student. It was further alleged

that he had been coercing and forcing the girl student to agree to his

illicit desires and which had caused mental trauma and agony to the girl

student. The petitioner submitted his reply on 24.10.2011 denying the

charges. Thereafter, by Notice dated 05.11.2011, enquiry proceedings

were initiated against the petitioner. The said enquiry was completed and

in his Enquiry Report dated 25.04.2012, the Enquiry Officer held that the

charges could not be established against the petitioner.

3. The Principal of the school forwarded the Enquiry Report dated

25.04.2012 to the petitioner and the petitioner submitted his

representation requesting the Principal to accept the findings of the

Enquiry Officer as per the Enquiry Report dated 25.04.2012. The principal

of the school, however, refused to accept the findings of the Enquiry

Officer and vide order dated 16.08.2012 the penalty of dismissal from

service was imposed on the petitioner. Being aggrieved the petitioner filed

a complaint before the Regional Labour Commissioner Central at Page No.# 4/17

Dibrugarh. A conciliation proceeding was attempted which however failed

prompting the petitioner to approached this Court for filing a writ petition

being WP (C) No. 3980/2015. The said writ petition was disposed of vide

order dated 09.02.2017 holding that although a school was an

establishment under the Industrial Disputes Act, 1947, the petitioner who

was a school teacher was not a workman under the Industrial Disputes

Act, 1947. This Court further held that since no opportunity was granted

to the petitioner to make any representation against the reasons allegedly

made, by the disciplinary authority, disagreeing with the findings in the

Enquiry Report, the order of dismissal dated 16.08.2012, was set aside

and the appellant/Oil India Limited was given liberty to continue the

departmental proceedings from the stage of furnishing to the petitioner,

the reasons of disciplinary authority disagreeing with the Enquiry Report

and to provide the petitioner with an opportunity to make a

representations against those reasons.

4. Pursuant to the said order passed by this Court in WP (C) No.

3980/2015 the petitioner was furnished the reasons by the Principal of Oil

India Higher Secondary School, Duliajan for disagreeing with the findings

in the Enquiry Report and the petitioner was also afforded an opportunity Page No.# 5/17

to represent against the said reasons. The petitioner accordingly

submitted his representation and thereafter vide order dated 17.05.2017

issued by the Deputy General Manager (Employees Relations, Oil India

Limited, Duliajan), it was held that the misconduct of the petitioner was

of a grave nature and due to the petitioner's unsatisfactory performance

during the probation period, the service of the petitioner as a Graduate

Teacher (Science) could not be confirmed. His temporary appointment

was therefore terminated vide order dated 17.05.2017. The petitioner

preferred an appeal dated 17.06.2017 before the appellate authority

namely, Resident Chief Executive, Oil India Limited, Duliajan. The said

appeal was, however, dismissed vide order dated 13.10.2017 by the

appellate authority. Being aggrieved the respondent as a writ petitioner

approached this Court by way of the writ petition assailing the orders

dated 17.05.2017 and 13.10.2017.

5. The respondent as the petitioner contended before the learned

Single Judge that pursuant to the order passed in the earlier writ petition

i.e. WP (C) No. 3980/2015, the departmental proceeding was conducted

as per the provisions of Modified Standing Orders, although, the appeal

filed by the petitioner was disposed of in terms of Oil India Limited Page No.# 6/17

Teachers CDA Rules, 2017. Before the learned Single Judge it was the

further case of the petitioner that in terms of the Clauses 21.3.3 of the

Modified Standing Orders of the Oil India Limited, imposition of major

penalty was to be issued by the Head of the Department namely the

Principal of the school. However, the penalty order dated 17.05.2017 was

issued by the Deputy General Manager (Employees Relations) instead,

who was not the appropriate authority, according to the petitioner. It was

also contended that as per the clause 23.1 of the Modified Standing

Orders, the petitioner can seek advice of Deputy General Manager

(Employees Relations) in respect of filing any appeal against penalty

orders issued. However, since the Deputy General Manager (Employees

Relations, Oil India Limited, Duliajan) was the authority who issued the

Penalty Order, the employee's right of seeking advice from the Deputy

General Manager (Employees Relations, Oil India Limited, Duliajan) under

the Standing Orders was no longer available to him. It was also submitted

that since the reasons for disagreeing with the Enquiry Officer's Report by

the earlier Principal as well as the new Principal are the same, it is

evident that there is no application of mind by the new Principal and

therefore, the impugned orders were required to be set aside and

quashed.

Page No.# 7/17

6. Before the learned Single Judge, the appellant as the respondent

denied the contentions of the petitioner and submitted that there was no

prejudice caused to the petitioner. It was further submit that as

mentioned under Clause 23.1, the Modified Standing Orders, the Deputy

General Manager (Industrial Relation) is now re-designated as Deputy

General Manager (Employees Relations). It was submitted that although

Deputy General Manager (Employees Relations) is not the disciplinary

authority but it is an authority higher than the disciplinary authority and

therefore it can pass a valid penalty order. It was also submitted that the

petitioner's appointment was issued by the Deputy General Manager

(Industrial Relations) which is now known as Deputy General Manager

(Employees Relations).

7. The learned Single Judge on the issues raised in the writ petition

came to a finding that the Principal of the Oil India Limited H.S. School

was never the disciplinary authority in so far as the petitioner is

concerned and therefore Principal's disagreement with the findings made

in the Enquiry Report can be of no relevance or consequence. The

learned Single Judge arrived at the finding that since the Deputy General

Manager (Employees Relations), who is the disciplinary authority did not Page No.# 8/17

disagree with the findings of the Enquiry Report, his rejection of the

explanation given by the petitioner against the disagreement recorded by

the Principal of the school is of no relevance or consequence and is

therefore a nullity. The learned Single Judge also came to a finding that in

the facts of the case, the petitioner was deprived of his right to seek the

advice of the Deputy General Manager (Employees Relations) while filing

an appeal against the penalty imposed upon him. The writ petition was

accordingly allowed and the impugned orders dated 17.05.2017 and

13.10.2017 was set aside and the writ petitioner was directed to be

reinstated in service leaving the question of payment of back wages and

other consequential benefits to be decided by the respondents. Being

aggrieved the present appeal is filed by the appellant/Oil India Limited

assailing the orders of the learned Single Judge.

8. We have heard the learned counsels for the parties and we have

also carefully perused the case records available. The respondent was

appointed as an Assistant Teacher (Science) on probation in the Oil India

Limited High Secondary School. There is no dispute at the bar that the

respondent being a teacher is not a workman under the provisions of

Industrial Dispute Act, 1947. As a consequence, the Modified Standing Page No.# 9/17

Orders of Oil India will not have a strict application in respect of the

petitioner who is not a workman as defined under the Industrial Dispute

Act, 1947. However, the spirit of the Standing Orders can always be relied

upon as a guiding principle in matters pertaining to departmental

enquiries / disciplinary proceedings as has been initiated against the

respondent. There is also no dispute at the bar that although the Principal

of Oil India Limited Higher Secondary School, under which the

respondent was employed, is the controlling authority although not the

appointing authority of the respondent. The appointing authority of the

respondent was the Deputy General Manager (Industrial Relations) which

post is now is stated to be re-designated as Deputy General Manager

(Employees Relations). The short question which arises in this appeal is

whether disciplinary proceedings against an employee can be initiated by

an authority lower than the appointing authority but higher than the

delinquent employee. The issue raised in this appeal, in our opinion is no

longer res-integra. The Apex Court in P. V. Srinivasa Sastry vs Comptroller

and Auditor General, reported in (1993) 1 SCC 419 had held that initiation

of departmental enquiry by an authority lower than the Appointing

Authority but superior to the delinquent is not violative of Article 311 (1)

of the Constitution of India.

Page No.# 10/17

9. The Apex Court while interpreting the protection guaranteed under

Article 311 (1) of the Constitution of India to a member of a Civil service

of the Union or an All India service or Civil service of the State or a

member who holds a civil post under the Union of the State held that

Article 311 (1) of the Constitution of India, guarantees protection to a

member of a Civil service of the Union of the State that the employee

shall not be dismissed or removed by any authority subordinate to that by

which, he was appointed. The Apex Court held that the protection under

Article 311 (1) does not say that even departmental proceedings must be

initiated only by appointing authority. However, where any Rules have

been framed prescribing departmental proceedings to be initiated by any

officer not subordinate to the appointing authority, the same shall not be

inconsistent with Article 311 of the Constitution. The Apex Court held that

in the absence of any such Rules be framed, the interpretation that

departmental proceedings can only be drawn by the appointing authority

cannot be said to flow from Article 311 of the Constitution. The relevant

paragraphs of the Judgment of the Apex Court in P. V. Srinivasa Sastry

(Supra) is extracted as under:

"4. Article 311(1) says 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 civil post under the Union or a State "shall be dismissed or removed by an authority Page No.# 11/17

subordinate to that by which he was appointed". Whether this guarantee includes within itself the guarantee that even the disciplinary proceeding should be initiated only by the appointing authority? It is well known that departmental proceeding consists of several stages: the initiation of the proceeding, the inquiry in respect of the charges levelled against that delinquent officer and the final order which is passed after the conclusion of the inquiry. Article 311(1) guarantees that no person who is a member of a civil service of the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. But Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority. Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holder of a civil post. But in absence of any such rule, this right or guarantee does not flow from Article 311 of the Constitution. It need not be pointed out that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences, and the framers of the Constitution did not consider it necessary to guarantee even that to holders of civil posts under the Union of India or under the State Government. At the same time this will not give right to authorities having the same rank as that of the officer against whom proceeding is to be initiated to take a decision whether any such proceeding should be initiated. In absence of a rule, any superior authority who can be held to be the controlling authority, can initiate such proceeding.

5. In the case of State of M.P. v. Shardul Singh [(1970) 1 SCC 108] the departmental enquiry had been initiated against the Sub-Inspector of Police by the Superintendent of Police, who sent his enquiry report to the Inspector- General, who was the appointing authority. The Inspector General of Police dismissed the officer concerned from the service of the State Government. That order was challenged on the ground that the initiation of the departmental enquiry by the Superintendent of Police was against the mandate of Article 311(1) of the Constitution. This contention was accepted by the High Court. But this Court said: (SCC p. 112, para 10)

"... we are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that Article."

6. Reliance was placed on behalf of the appellants on the judgment of this Court in the case of Scientific Adviser to the Ministry of Defence v. S. Daniel Page No.# 12/17

[1990 Supp SCC 374 : 1991 SCC (L&S) 355 ; (1990) 2 SCR 440 : (1991) 15 ATC 799] . From the aforesaid judgment it shall appear that Rule 13 of the Central Civil Services (Classification, Control and Appeal) Rules, which was under consideration specifically provided:

"13. Authority to institute proceedings.--(1) The President or any other authority empowered by him by general or special order may--

(a) institute disciplinary proceedings against any Government servant;"

Although Article 311 of the Constitution does not speak as to who shall initiate the disciplinary proceedings but, as already stated above, that can be provided and prescribed by the rules. But no rules have been framed, saying as to who shall initiate the departmental proceedings, then on the basis of Article 311 of the Constitution it cannot be urged that it is only the appointing authority and no officer subordinate to such authority can initiate the departmental proceeding. In the present case, it was not brought to our notice that any rule prescribes that the Accountant General, who is the appointing authority, alone could have initiated a departmental proceeding.

7.It was then urged that even if it is held that the departmental proceeding could have been initiated by the Senior Deputy Accountant General, the Accountant General while imposing the punishment of reduction in rank could not have reverted the appellants from the posts of Auditors to the posts of Lower Division Clerks. According to appellants, P.V. SrinwasaSastry and M. MahadevaSetty, they had been appointed against the posts of Upper Division Clerks by process of direct recruitment, as such they cannot be reverted to the posts of Lower Division Clerks i.e. below the rank of the posts to which they had been appointed initially by process of direct recruitment."

10. The learned Single Judge had correctly referred to the Judgment of

the Apex Court in State of Madhya Pradesh and Others Vs Shardul Singh

reported in 1970 (1) SCC 108 as well as the Judgment of the Apex court

in P.V. Srinivasa Sastry and others Vs Comptroller and Auditor General

and Others reported in (1993) 1 SCC 419. The ratio laid down in these Page No.# 13/17

Judgments by the Apex Court is that the protection under Article 311 (1)

of the Constitution of India guarantees that the employees shall not be

dismissed or removed by an authority subordinate to that, by which, he

was appointed. The Article does not in terms require that the authority

empowered under the provisions to dismiss or remove an official should

itself initiate or conduct the enquiry preceding a dismissal or removal of

the officer or even that the enquiry should be done at its instance. The

only right guaranteed to the civil servant under this provision is that he

shall not be dismissed or removed by any subordinate authority to that,

by which, he was appointed. However, a perusal of the impugned

Judgment of the learned Single Judge reveals that the said ratio was

perhaps, not correctly interpreted by the learned Single Judge as is

evident from the findings of the learned Single Judge in the impugned

Judgment. The learned Single Judge instead interpreted that the law laid

down by the Apex court in the said cases (Supra) is that a departmental

proceeding can be initiated against that delinquent officer by an officer

not subordinate to the appointing authority. This interpretation by the

learned Single Judge, according to us, is clearly in conflict with the law

and the ratio laid down by the Apex Court in the above Judgments.

Page No.# 14/17

11. In the facts of the present proceedings there is no quarrel that the

Principal of the school, although not the appointing authority is certainly

the controlling authority in so far as the respondent is concerned and

therefore a superior authority to the respondent/petitioner, the findings of

the learned Single Judge that the Enquiry initiated by the Principal of the

school, not being the appointing authority cannot be sustained, does not

appeal to us in view of the law laid down by the Apex Court P. V.

Srinivasa Sastry (Supra) that any authority who is not in the same rank or

below or subordinate to the delinquent officer against whom the

proceedings are initiated, can be permitted to initiate disciplinary

proceedings. Accordingly, the findings of the learned Single Judge being

contrary to the law laid down by the Apex Court will have to be interfered

with and the same is accordingly interfered with and set aside.

12. The further findings of the learned Single Judge that the Deputy

General Manager (Employees Relations) being an authority who is

required to assist a delinquent employee to file an appeal cannot be

accepted as well. The provision under the Rule is that the Deputy General

Manager (Employees Relations) is only required to assist which advise the

petitioner in respect of filing an appeal. The Rule does not provide that Page No.# 15/17

the Deputy General Manager (Employees Relations) will be the appellate

authority.

13. As discussed herein above the Modified Standing Orders of the Oil

India Limited, which are referred to, are only to be treated as guiding

principles as the same are not binding on the respondent, who is

admittedly a teacher and therefore not a workman under the Industrial

Dispute Act, 1947. No other rules governing the disciplinary proceedings

in respect of teachers like the respondents have been urged and/or

placed before this Court, although a perusal of the impugned order

passed by the learned Single Judge reveals that a passing reference is

made to a set of Rules, namely, Oil India Limited Teachers CDA Rules,

2017, which was stated to have come into force with effect from

01.06.2017. However, besides making a passing reference to the said

rules, the rules were never pressed into service before the learned Single

Judge by the learned counsels for the parties nor in the present

proceedings. Therefore, effectively the disciplinary proceedings were

conducted as guided by the Modified Standing Orders of the Oil India

Limited.

Page No.# 16/17

14. The learned Single Judge also came to a finding that since the

Deputy General Manager (Employees Relations, Oil India Limited,

Duliajan) was the authority in terms of the Modified Standing Orders, who

is supposed to aid and advice the delinquent employee while preferring

his appeal against disciplinary orders, the right of the delinquent

employee to effectively prefer an appeal has been taken away or denied

as the Deputy General Manager (Employees Relations, Oil India Limited,

Duliajan) was the authority who ultimately passed the order of dismissal.

Such a view arrived at by the learned Single Judge in our opinion cannot

be sustained in view of the fact that the appeal was ultimately decided by

the appellate authority namely, the Resident Chief Executive, Oil India

Limited, Duliajan, who had rejected the same. There is no pleading

and/or any submission made by the respondent either before the learned

Single Judge, or before this Court, that the appeal which was preferred

by the delinquent against the disciplinary order before the appellate

authority, namely, the Resident Chief Executive, Oil India Limited,

Duliajan, was defective or the same could not have been effectively

preferred because of the failure of the Deputy General Manager

(Employees Relations, Oil India Limited, Duliajan) to render proper aid

and advice required to be given as provided under the Modified Standing Page No.# 17/17

Orders. In the absence of any such pleadings or statements to effectively

demonstrate the hardship or the prejudice caused to the delinquent

employee, we are unable to agree with the view arrived at by the learned

Single Judge.

15. In view of all of the above, we are constrained to differ with the

findings of the learned Single Judge. The impugned Judgment and order

dated 23.04.2021 passed by the learned Single Judge in WP (C) No.

3980/2015 is hereby interfered with and set aside.

16. Consequently the orders dated 17.05.2017 and 13.10.2017 issued

by the Deputy General Manager (Employees Relations) and the Resident

Chief Executive, Oil India Limited, Duliajan respectively, are hereby,

restored. Writ Appeal is allowed and the writ petition is accordingly

dismissed.

17. No order as to cost.

             JUDGE                                   CHIEF JUSTICE



Comparing Assistant