Page No.# 1/17 vs Oil And Natural Gas Corporation Ltd. And ...
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Gauhati High Court

Page No.# 1/17 vs Oil And Natural Gas Corporation Ltd. And ... on 23 January, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                Page No.# 1/17

GAHC010026362015




                                                           2025:GAU-AS:890

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

                        Case No. : WP(C)/7264/2015

         RANJAN KUMAR NEOG
         PERMANENT R/O- CHUTIAKARI GAON, ROWRIAH, P.S. and DIST.- JORHAT
         FORMERLY SERVING AS SUPERINTENDING ENGINEER CIVIL, ARAKAN
         BASIN, ONGC



         VERSUS

         OIL and NATURAL GAS CORPORATION LTD. and 4 ORS
         HAVING ITS REGISTERED OFFICE AT JEEVAN BHARATI TOWER, 124
         CONNAUGHT CIRCUS, NEW DELHI AND IS REP. BY ITS CHAIRMAN-CUM-
         MANAGING DIRECTOR, OIL and NATURAL GAS CORPORATION LTD.,
         HAVING ITS REGISTERED OFFICE AT JEEVAN BHARATI TOWER, 124
         CONNAUGHT CIRCUS, NEW DELHI.

         2:DIRECTOR HR
         DISCIPLINARY AUTHORITY
         OIL and NATURAL GAS CORPORATION LTD.
         JEEVAN BHARATI TOWER
         124 INDRA CIRCUS
         NEW DELHI.

         3:THE GROUP GENERAL MANAGER HR
         OIL AND NATURAL GAS CORPORATION LTD.
         EMPLOYEE RELATIONS DEPTT.
         CORPORATE DISCIPLINE AND APPEAL SECTION
         TEL BHAWAN
         DEHRADUN
         UTTRAKHAND.

         4:THE EXECUTIVE DIRECTOR
         BASIN MANAGER
         OIL AND NATURAL GAS CORPORATION LTD.
                                                                       Page No.# 2/17

            ASSAM AND AND ASSAM ARAKAN BASIN
            JORHAT.

           5:THE DY. GENERAL MANAGER CIVIL
           HES
           OIL AND NATURAL GAS CORPORATION LTD.
           ENGINEERING SERVICES ASSAM AND ASSAM ARAKAN BASIN
           JORHAT




      Advocates for the petitioner(s)    :     Mr. P Mahanta



      Advocates for the respondent(s) :        Mr. GN Sahewalla

Senior Advocate Ms. NK Devi

Date of hearing & judgment : 23.01.2025

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT & ORDER(ORAL)

Heard Mr. P Mahanta, the learned counsel appearing on behalf of the petitioner. Mr. GN Sahewalla, the learned Senior Counsel, assisted by Ms. NK Devi, the learned counsel appears on behalf of the respondent Nos.1 to 5.

2. The issue involved in the instant writ petition is as regards the legality of Page No.# 3/17

the initiation of the review proceedings under Rule 54 of the ONGC Conduct, Discipline and Appeal Rules, 1994 (amended 2011), (for short, hereinafter referred to as 'the Rules of 1994') and the order passed on 26.08.2015, whereby the penalty was enhanced to dismissal of service with immediate effect along with disqualification of the petitioner's future employment under the Government or Corporation of the Company, owned or controlled by the Government. To appreciate the dispute raised hereinabove, in the instant proceedings, this Court finds it relevant to briefly state the facts involved in the present proceedings.

3. From a perusal of the facts, it is seen that against the petitioner two proceedings were initiated under Rule 36 of the Rules of 1994 on the basis of memorandum of charges dated 17.08.2011 and memorandum of charges dated 07.05.2012. The petitioner thereupon submitted his written statements of defence. The enquiry officer so appointed submitted two enquiry reports, one dated 21.11.2012 and the other dated 19.05.2013, wherein it was opined by the enquiry officer that the charges so alleged against the petitioner were duly proved. The petitioner thereupon was duly informed about the enquiry reports and copies thereof were furnished asking the petitioner to submit representations.

4. The petitioner duly submitted representations and by the order dated 12.09.2014, the GGM(HR) of the respondent Corporation imposed a penalty in respect to both the proceedings of reduction to two stage lower in timescale of pay for two years with a further direction that the petitioner will not earn any increment during the period of such reduction and on expiry of the said two Page No.# 4/17

years increments shall be payable on the reduced basic pay. The petitioner did not challenge the said order of imposition of penalty dated 12.09.2014.

5. Subsequent thereto, the records reveal that on 05.03.2015, the Chairman- Cum-Managing Director (for short, the CMD) of the respondent Corporation in exercise of his powers under Rule 54 of the Rules of 1994 proposed to enhance the penalty awarded to the petitioner along with three others to dismissal from services. It appears from the very order dated 05.03.2015 of the CMD that directions were issued that show cause notices were to be issued to the four persons, including the petitioner as to why their penalty should not be enhanced as proposed and also further for filing of an FIR. In addition to that, there were also directions that the petitioner and two others be suspended with immediate effect, pending final decision in the matter.

6. The order of the CMD dated 05.03.2015 was specific and clear that the show cause notices were to be issued. Be that as it may, on 09.03.2015 an order was passed by the GGM (HR) mentioning inter alia, that a decision had been taken by the CMD as the reviewing authority to exercise the powers under Rule 54 of the Rules of 1994 to review the penalty imposed upon the petitioner and place him under suspension with immediate effect. On the basis thereof, the said order was passed that the petitioner would be put under suspension.

7. It was only on 20.03.2015, the CMD had issued the Memorandum asking the petitioner to show cause as to why the penalty imposed upon him should not be enhanced as proposed. The petitioner was given the liberty to submit Page No.# 5/17

representation or written reply in that regard within 15 days from the date of receipt of the said memorandum, failing which, action as proposed would be taken without further intimation, holding that he has nothing to state in the matter.

8. The petitioner thereupon on 22.04.2015 submitted a representation. Subsequent thereto, on 26.08.2015, the petitioner was dismissed from service along with the observations that the petitioner would be disqualified for future employment under the Government or Corporation of the Company, owned or controlled by the Government. It is under such circumstances that the present proceedings has been initiated challenging the initiation of the review proceedings as well as the impugned order dated 26.08.2015. Pursuant to the filing of the instant writ petition, this Court vide an order dated 02.12.2015 had Issued Rule.

9. It is seen from the records that the affidavit-in-opposition was filed by the respondents on 19.04.2016, thereby contesting the case of the petitioner and supporting the impugned order dated 26.08.2015. The petitioner thereupon submitted a reply to the affidavit-in-opposition on 20.06.2016, thereby reiterating the statements made in the writ petition and further denying to the contents of the affidavit-in-opposition.

10. It is relevant to take note of that the instant writ petition came up for hearing before this Court on 07.11.2024. Thereupon, as the hearing remained inconclusive, this Court fixed the matter on 12.11.2024. On the said date, Page No.# 6/17

various documents were placed before this Court by the respondent Corporation, which had a vital bearing on the impugned order dated 26.08.2015. Consequently, this Court gave the liberty to the respondent Corporation to bring on record the said documents by filing an additional affidavit. It is seen that pursuant thereto, an additional affidavit was filed on 20.11.2024, bringing on record the orders which formed the basis for initiation of the review proceedings and the basis on which the impugned order dated 26.08.2015 was passed. Pursuant thereto, the petitioner submitted an affidavit- in-opposition to the additional affidavit on 26.11.2024 wherein the petitioner reiterated his stand taken in the writ petition and also alleged that the imposition of penalty of dismissal upon the petitioner was nothing but a case of gross disparity in imposition of punishment. In the backdrop of the above, let this Court take note of the submissions made by the learned counsels appearing on behalf of the parties.

11. Mr. P Mahanta, the learned counsel appearing on behalf of the petitioner submitted that a perusal of Rule 54 of the Rules of 1994 shows that the power so conferred upon the reviewing authority to review the order of penalty is to be exercised within a particular period of time. He submitted that in terms with the proviso to Rule 54(1) action under the said Rule can only be initiated within 6(six) months after the date of the order. The learned counsel submitted that the order of penalty is dated 12.09.2014. However, the Memorandum which was issued by the CMD was only on 20.03.2015, which is after 6(six) months, 10(ten) days and as such, the entire proceedings so initiated by the CMD on the face of it was non est and liable to be interfered with.

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12. Mr. P Mahanta, the learned counsel further submitted that unless and until any action is taken by the reviewing authority in the review proceedings, the question of initiation of proceedings would not arise. The learned counsel submitted that it is a well settled principle of law that merely taking a decision to review the penalty would not amount to initiation of proceedings. Initiation of proceedings would require a further act in the review proceedings. In that regard, the learned counsel for the petitioner has referred to the judgments of the Delhi High Court in the case of Chander Prakash Vs. Union of India, reported in 2002 (65) DRJ 793 (DB) (SN) as well as the judgment of the Andhra Pradesh High Court in the case of Shoukata Khan Vs. Director of Postal Services, Andhra Circle, Hyderabad, reported in 1971 SCC Online AP 78. The learned counsel further submitted that from a perusal of the additional affidavit filed by the respondent authorities on 20.11.2024, it would show that there is a gross disparity in the imposition of punishment. He submitted that the Vigilance Report categorically stated that all the three persons were duly involved in the alleged forgery, however, only the petitioner herein was dismissed. Under such circumstances, he submitted that even on the question of parity, this Court ought to interfere with the impugned order dated 26.08.2015.

13. Mr. P Mahanta, the learned counsel appearing on behalf of the petitioner further submitted that in the circumstance this Court sets aside the impugned order, the petitioner would be entitled to back wages, as well as other benefits which the petitioner would have earned, had the petitioner continued in his service. The learned counsel for the petitioner further submitted that as of now the petitioner had already crossed the age of superannuation, so the question Page No.# 8/17

of reinstatement would not arise. However, the petitioner would be entitled to all pensionery and retirement benefits to which the petitioner would have been entitled to if he was not dismissed from service.

14. Mr. GN Sahewalla, the learned senior counsel appearing on behalf of the respondent Corporation submitted that the word 'initiate' as defined in the Black's Law Dictionary would mean commence, start, originate, introduce, incoherent, etc. He, therefore, submitted that the due intimation being given that the CMD had proposed to exercise his review powers amounts to initiation of the review proceedings. The learned senior counsel further submitted that the petitioner was involved in three cases of forgery as could be found out from various enquiry reports. The allegation of disparity in imposition of punishment is misconceived as the petitioner was the main person involved and the others were not directly involved. Therefore, imposition of penalty of dismissal upon the petitioner cannot under any circumstances be said to be disproportionate. He further submitted that it is a well settled principle of law that when an employer had lost the confidence and consequently had dismissed an employee from the service, the scope of judicial review is very limited. The learned senior counsel submitted that the question of the petitioner being entitled to back wages in the circumstance, this Court interferes with the order of punishment dated 26.08.2015, does not arise as the petitioner had not rendered any service during this period. The learned senior counsel submitted that the allegations which have been proved against the petitioner are egregious and as such, this Court ought not to exercise its extraordinary jurisdiction under Article 226 of the Constitution.

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15. I have heard the learned counsels appearing on behalf of the parties and have given my anxious consideration to their respective submissions. From the materials on record and the delineated facts supra, it would appear that on 12.09.2014, the petitioner was imposed a penalty for reduction to two stage lower in timescale of pay for 2(two) years with a further direction that the petitioner would not earn any increment during the period of such reduction and on expiry of the said two years, increment shall be payable on the reduced basic pay only. This order of penalty was not challenged by the petitioner. The record further reveals that on 05.03.2015, the CMD, who is the reviewing authority, had taken a decision that he would exercise the powers under Rule 54 of the Rules of 1994 and had further directed that show cause notices should be issued and an FIR be filed. The CMD further directed that the petitioner along with two others be put under suspension. In this backdrop, this Court finds it relevant to take note of Rule 54 of the Rules of 1994 as the same has vital relevance to the dispute involved in the instant proceedings. Rule 54 of the Rules of 1994 is reproduced hereinunder:

"54. Review by Reviewing Authority:

(1). The Authroity to which an appeal against an order imposing any of the penalties specified in Rule 34 lies may, of its own motion or otherwise call for the records of the case in the disciplinary proceedings, review any order passed in such a case and pass such orders as it may deem fit, as if the Employee had preferred an appeal against such order:

Provided that no action under this Rule shall be initiated more than six months after the date of the order.

(2). No proceeding for revision shall be commenced until after the expiry of the period of limitation for an appeal.

Explanatory Notes:

Page No.# 10/17

No order imposing or enhancing any penalty shall be made by the Reviewing Authority unless the Employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (vii) to (xi) of Rule 34 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses and if any inquiry under Rule 36 has not already been held in the case, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 36 subject to provisions of Rule 41.

The aforesaid power of review is in the nature of revisionary power and not in the nature of reviewing one's own order. Therefore, notwithstanding anything contained in Rule 54, the Appellate Authority, in his capacity as Reviewing Authority, shall not initiate any review proceedings if the appeal is preferred. Power to review shall be exercised by him only in cases where no appeal is preferred. If the appellate authority has decided the appeal he shall not review any orders made/passed in the appeal."

16. From a perusal of the above-quoted Rule, it would show that the authority to whom an appeal lies against an order imposing any of the penalties specified in Rule 34 of the Rules of 1994 may on its own motion or otherwise call for the records of the case in a disciplinary proceedings, review any order passed in such case and pass such orders as it may deem fit as if the employee had prepared an appeal against such order. The proviso to Sub-Rule (1) of Rule 54 of the Rules of 1994 puts an embargo upon the authority, thereby stipulating that no action under the said Rule can be initiated more than six months after the date of the order. The explanatory notes so part of Rule 54 of the Rules of 1994 stipulates the requirement of the Principles of Natural Justice, inasmuch as, no order imposing or enhancing any penalty shall be made by the reviewing authority, unless the employee concerned had been given a reasonable opportunity of making a representation against the penalty proposed.

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17. Now reverting back to the materials on record, it transpires that the order of penalty was imposed on 12.09.2014 and a decision was taken by the CMD on 05.03.2015 i.e. within the period of six months to initiate proceedings for review and further stating that show cause notices are required to be issued and the petitioner be put under suspension along with two others. Vide the communication dated 09.03.2015, the authority who had imposed the punishment on 12.09.2014 had passed an order informing that the reviewing authority had taken a decision that the said authority would exercise the power of review and further also mentioned that the petitioner had been put under suspension. It was only on 20.03.2015 that the Memorandum was issued by the reviewing authority i.e. the CMD. Be that as it may, it is very pertinent to mention that at this stage that by the time the memorandum was issued, the period of six months had already elapsed, inasmuch as, the said memorandum was issued after 6(six) months and 10 days from the date of the order of penalty.

18. This Court had duly taken note of the judgments passed by the learned Delhi High Court in the case of Chander Prakash (supra) wherein the Delhi High Court was dealing with a provision pertaining to Rule 25 of the Railway Servants Discipline and Appeal Rules, 1968. In the said judgment, the Delhi High Court had observed that the word 'initiate' may mean different things in different situation. It was further observed that in the context of Rule 25 of the Railway Servants Discipline and Appeal Rules, 1968 which is almost pari materia to Rule 54 of the Rules of 1994 that action under the said Rule 25 can be initiated only with issuance of notice and not prior thereto. It was further Page No.# 12/17

observed that when the notice is signed, initiation of a proceeding becomes final and prior there too, although the authority may have applied its mind and tentatively arrived at its decision in the note sheet of the proceeding, such a proceedings cannot be said to be initiated, inasmuch as, the same can be withdrawn before issuance of actual notice. This Court further takes note of the judgment of the Andhra Pradesh High Court in the case of Shoukata Khan (supra), wherein Rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was at issue. In the said judgment, the learned Division Bench of the Andhra Pradesh High Court had observed that the words "may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made after under this rules", would make it clear show that the object of calling for the records is only to examine afresh the whole case, wherever it is considered or felt necessary. If after calling for the records, the authority concerned should come to the conclusion that there is no need to review the order and drops the matter, it can certainly not be said that that step, alone of his would constitute commencement or initiation of proceedings for review, as there would be no question of reviewing the order of the disciplinary authority in such cases. It was observed that mere act of calling for records without anything more can certainly not be equated with initiation of proceedings for review. It was further observed that it is only when the authority competent to review decides upon proceeding further and issues a notice to the delinquent officer calling upon him to show cause why the punishment meted out to him should not be enhanced that the proceedings for review can reasonably be said to have been commenced. Paragraph 9 of the said judgment being relevant is quoted hereinbelow:

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9The words "call for the records of any inquiry and review any order made under these rules" would clearly show that the object of calling for the records is only to examine afresh the whole case wherever it is considered or felt necessary. If after calling for records, the authority concerned should come to the conclusion that there is no need to review the order and drops the matter, it can certainly not be said that that-step, alone of his would constitute commencement or initiation of proceedings for review as there would be no question of reviewing the order of the disciplinary authority in such cases. So, the mere act of calling for records without anything more can certainly not be equated with initiation of a proceeding for review. It is only when the authority competent to review decides upon proceeding further and issues a notice to the delinquent officer calling upon him to show cause why the punishment meted out to him should not be enhanced that proceedings for review can reasonably be said to have been commenced. No doubt, the authority concerned can take a reasonable time for completion of the process of review and it is not necessary to conclude the enquiry within six months; but it is imperative that the proceedings for review by the appellate authority should be commenced before the expiry of six months from the date of the order sought to be reviewed. We are, therefore, in entire agreement with the learned Counsel that the respondent was not entitled to call upon the appellant by his notice, dated 17th September, 1969 to show cause why the penalty imposed upon him by the disciplinary authority should not be enhanced, as the time limited for initiating proceedings for review had expired long before then

19. This Court had duly perused Rule 54 of the Rules of 1994, and more particularly the proviso to Sub-rule (1) of Rule 54. It categorically stipulates that no action under Rule 54 shall be initiated more than six months after the date of the order. The materials on record only show that on 05.03.2015, the CMD only took a decision that he would exercise the powers under Rule 54 of the Rules of 1994 and only on 20.03.2015, the Memorandum was issued to the petitioner. The records further reveal that on 09.03.2015, the GGM(HR) only intimated that the CMD had taken a decision to review the penalty imposed upon the petitioner. Now, therefore, the question arises as to whether such actions taken would amount to initiation of the review proceedings.

20. The decision so made by the CMD on 05.03.2015 in the opinion of this Page No.# 14/17

Court cannot be said to be initiation of the review proceedings inasmuch as the decision taken on 05.03.2015 by the CMD is an internal decision to initiate a review proceedings which cannot be confused with initiation of a review proceedings. In the opinion of this Court, for initiation of review proceedings, there is a requirement of doing a further action in the review proceedings. As held by the learned Division Bench of the Andhra Pradesh High Court in Shoukata Khan (supra), there would be initiation when a show cause notice was signed and not when a decision was taken to initiate review proceedings. In the instant case, the review proceedings was initiated when the Memorandum was signed by the CMD on 20.03.2015.

21. This Court further finds it relevant to observe that the order dated 09.03.2015 was an order passed by the GGM (HR) wherein it was mentioned that the CMD as Reviewing Authority in exercise of powers vested under him under Rule 54, ibid has decided to review the penalty imposed. The said order cannot be construed as initiation of the review proceedings, inasmuch as the review proceedings could have been initiated only by the Authority competent to do so and not the Authority who had imposed the punishment which was proposed to be reviewed.

22. The above observation and analysis are supported by the observations made by the learned Delhi High Court as well as the learned Andhra Pradesh High Court. Under such circumstances, it is the opinion of this Court that the initiation of the review proceedings beyond the period prescribed was unauthorized and without jurisdiction. Consequently, the order dated 26.08.2015 of enhancement of penalty cannot survive as the very initiation of Page No.# 15/17

the review proceedings beyond the period of time prescribed under Rule 54 was without authority and jurisdiction.

23. This Court taking into account the above view would not like to go into the question of proportionality of the punishment as the said submission had become redundant.

24. The next question arises is what relief or reliefs the petitioner herein would be entitled. The counsel for the petitioner duly submitted that at the time when the writ petition was filed the petitioner was 54 years with the passage of time, the petitioner had already crossed the age of superannuation. The learned counsel submitted that the petitioner should be entitled to his backwages till the date of his superannuation deeming that the petitioner had continued in services and thereafter to the pension and other retirement benefits. The learned senior counsel for the respondents had submitted that the petitioner is not entitled to backwages as the petitioner had not rendered any services.

25. This Court had set aside the impugned order dated 26.08.2015 on the ground that the initiation of the review proceedings beyond the prescribed period was without authority and jurisdiction. This Court further takes note of that the petitioner from the date of his dismissal till superannuation had not rendered any service. Further there are no materials on record to show that the petitioner was not gainfully employed during this period. Under such circumstances, this Court is not inclined to grant any backwages for the period from the date of the petitioner's dismissal till the date of his superannuation.

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However, the petitioner, in the opinion of this Court, would be entitled to pension and all retirement benefits as if the petitioner was all along in service till the date of his superannuation.

26. Accordingly, the instant petition stands disposed of with the following observation(s) and direction(s):

(i). The initiation of the review proceedings against the order of penalty dated 12.09.2014 was illegal and beyond authority and jurisdiction as it was initiated beyond the permissible prescribed period.

(ii). The impugned order dated 26.08.2015 was without jurisdiction as the very initiation beyond the permissible prescribed period was bad in law and accordingly set aside and quashed.

(iii). The petitioner herein would not be entitled to any backwages for the period from the date of his dismissal till the date of his superannuation for the reasons above mentioned.

(iv). The petitioner herein would be entitled to pension and all retirement benefits to which the petitioner would have been entitled to if the impugned order dated 26.08.2015 was not passed. In other words, the petitioner would be deemed to be in service till the date of superannuation for calculating/computing his pension and retirement benefits.

(v). The pension and retirement benefits be computed and calculated in the manner stated above within 3(three) months from the date of service of a certified copy of this judgment upon the CMD of the respondent Corporation and further the arrears be disbursed within the said period of 3(three) months.

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JUDGE

Comparing Assistant