Jharkhand High Court
Arvind Kumar Sharma vs Coal India Limited on 18 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.518 of 2024
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Arvind Kumar Sharma, aged about 58 years, son of Late Chandrika
Sharma, resident of Village-Ladu, P.O.-Dema (Bodh Gaya), P.S.-
Mohanpur, District-Gaya (Bihar)..... .... Writ Petitioner/Appellant
Versus
1. Coal India Limited, a Government of India Enterprise, "Coal
Bhawan", Action Area at:1A, New Town, Rajarhat, P.O. & P.S.-
Rajarhat, Kolkata-700156 (W.B.).
2. Chairman-cum-Managing Director, Coal India Ltd., "Coal Bhawan",
Action Area at:1A, New Town, Rajarhat, P.O. & P.S.-Rajarhat,
Kolkata-700156 (W.B.).
3. Chief Manager, Material Management, Head of the Department
(Appeal), Coal India Ltd., "Coal Bhawan", Action Area at:1A, New
Town, Rajarhat, P.O. & P.S.-Rajarhat, Kolkata-700156 (W.B.).
4. Chairman-cum-Managing Director, Central Coalfields Limited, a
subsidiary of Coal India Limited at Darbhanga House, Ranchi,
Kutchery Road, P.O.-G.P.O., P.S.-Lalpur, District-Ranchi.
.... .... Respondents/Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Manoj Tandon, Advocate
Ms. Neha Bhardwaj, Advocate
Ms. Shivani Bhardwaj, Advocate
Mr. Siddharth Ranjan, Advocate
For the Resp.-C.C.L. : Mr. Amit Kumar Das, Advocate
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C.A.V. on 13.02.2025 Pronounced on 18.03.2025
Per Sujit Narayan Prasad, J.
Prayer
The instant appeal preferred under Clause-10 of Letters
Patent is directed against the order dated 31.08.2024 passed by
the learned Single Judge of this Court in W.P.(S) No.6086 of
2022, whereby and whereunder, the writ petition has been
dismissed by declining to interfere with the order of
punishment dated 14.09.2022 passed against the
petitioner/appellant after conclusion of the departmental
proceeding.
Factual Matrix
2. The brief facts of the case, as per the pleading made in the
writ petition, required to be enumerated, which read as under:
3. It is the case of the writ petitioner that he was initially
appointed as Junior Executive Trainee (Mining) on 04.09.1993.
4. Thereafter, vide office order issued under memo no.406
dated 30.03.2020, General Manager (P), Coal India Limited
communicated that the competent authority of Coal India Ltd
has approved "CIL Executive Role Profile of Unique Position" for
providing role clarity to all the incumbents of unique positions
of Executive cadre employee.
5. In the month of August, 2020, the writ
petitioner/appellant was transferred to the post of Project
Officer in Amalgamated Amlo Dhori (AAD) Open Cast.
6. Further, in terms of the decision taken on 31.07.2020
under Special Spot e-auction in respect of Racks Bid and vide
letter no.2516 dated 20.08.2020, the Chief Manager (M&S) Rail
Operation, CCL, Ranchi intimated the Area Sales Manager,
Dhori amongst others.
7. It is the case of the writ petitioner that vide memo no.1051
dated 08.09.2021, a charge-sheet was issued against the
petitioner/appellant under Rule 30.3 of Coal India Executive
Conduct, Discipline and Appeal Rules.
8. On 01.05.2022, the Enquiry Officer has submitted his
report observing therein that the charges being partially proved.
But vide impugned memorandum issued under memo no.702
dated 21.06.2022, the respondent no.2 has observed that the
charge of advertently allowing loading of coal of mixed size to
the non-core consumers who were allotted coal of (-) 100 mm
size in violation of terms and conditions of Special Spot E-
auction held on 31.07.2020 is fully sustainable and the writ
petitioner/ appellant advertently failed to discharge his
duties/obligations as "Project Officer" as laid down in the OM
dated 30.03.2020 of the Coal India Limited, therefore, there are
sufficient grounds to differ with the findings of the enquiry
officer in holding the charge, as partially proved.
9. Thereafter, on 06.07.2022, the writ petitioner submitted
his objection against the memorandum issued under memo
no.702 dated 21.06.2022 inter-alia on the ground that the
respondent no.2 has failed to take into consideration that mere
observation of enquiry officer with respect to charge no.1 at any
stretch of imagination shall not take the shape of proof.
10. Thereafter, the writ petitioner has preferred a writ
application being W.P.(S) No.3360 of 2022 challenging the
memorandum dated 21.06.2022 issued by respondent no.4.
During pendency of the aforesaid writ petition order of penalty
dated 14.09.2022 was passed against the petitioner,
accordingly, the writ petitioner had filed an interlocutory
application being I.A. No.8750 of 2022 in W.P.(S) No.3360 of
2022 with a prayer to challenge the order of penalty dated
14.09.2022 passed during the pendency of the writ petition.
11. Vide order dated 28.09.2022, writ petition being W.P.(S)
No.3360 of 2022 was disposed of by the learned single Judge of
this Court, directing the appellant to file a Departmental Appeal
before the respondent no.2 within a period of two weeks from
the date of the order.
12. On 10.10.2022, the writ petitioner preferred a
Departmental Appeal before respondent no.2 in terms of the
order dated 28.09.2022 passed by this Court in W.P.(S)
No.3360 of 2022.
13. The respondent no.2, thereafter, has dismissed the said
appeal preferred by the writ petitioner vide order dated
22.11.2022 and consequently the order of punishment dated
14.09.2022 has been sustained, whereby, it was ordered for
reduction of two stages lower for a period of 6 months in time
scale of pay without cumulative effect.
14. Aggrieved with the aforesaid the writ petitioner/appellant
had preferred writ petition being W.P.(S) No.6086 of 2022, but
the learned Single Judge has declined to interfere with the
order of appellate authority dated 22.11.2022 as well as order
of punishment dated 14.09.2022 and accordingly dismissed the
said writ petition vide order dated 31.08.2024. Hence, the
instant appeal has been preferred.
15. It is evident from the factual aspect that the writ petitioner
while working as Project Officer in Amalgamated Amlo Dhori
(AAD) Open Cast, has been subject to departmental proceeding
on the ground of commission of irregularities in discharge of his
official duty in the capacity of Project Officer.
16. The allegation against the appellant/writ petitioner, as per
the memorandum of charge which contains imputation of
charges therein that while working as Project Officer, he failed
to discharge his duty with full devotion by flouting the terms
and conditions of the Contract and advertently allowed loading
of ROM coal of mixed size to the consumers who were allotted
coal of (-) 100 mm size, for ready reference, the relevant part of
Charge-sheet dated 08.09.2021 is being referred as under:
"STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST
SHRI ARVIND KUMAR SHARMA, PIS NO. 90167818 CHIEF
MANAGER (M)/PROJECT OFFICER AAD OC PROJECT,
DHORI AREA. CCL.
ARTICLE-I
Shri Arvind Kumar Sharma, Chief Manager (Mining) while
posted and functioning as the Project Officer, AAD OCM Dhori
CCL during the year 2021, committed gross irregularities in
the matters of dispatch of coal through Rail Mode inasmuch
as he in blatant Violation of terms and condition of Special
spot e-auction (Auction id 34469) held on 31.07.2000 for sale
of coal to non-core consumers through Rail made from Dhori-I
Siding which comes under the administrative control of
Project Officer, AAODCM for W-V Grade of coal, advertently
allowed loading of ROM coal of mixed size to the consumer
who were allotted coal of -100 mm size. The above lapses on
the part of Shri Arvind Kumar Sharma caused undue benefit
to the consumers and corresponding loss to the Company.
The above lapses on the part of Shri Arvind Kumar Sharma
was in violation of the Office Memorandum no. CIL/C-
5A(PC)/Role Profile/406 dated 30.03.2020 of General
Manager (P/PC), CIL, Kolkata which inter alia stipulated the
responsibilities of Project Officer for ensuring quality of coal
and timely dispatch in quality and quantity as per
agreement.
Thus, Shri Arvind Kumar Sharma advertently falled to
discharge his duties and obligations as Project Officer of AAD
OCM, Dhori Area, CCL ich was detrimental to the interest
and image of the Company.
Hence the charge
The above acts of omission and commission on the part of
said Shri Arvind Kumar Sharma besides amounting to non-
fulfillment of duties and obligations under Rule 4.1(i)-
Maintain absolute integrity, 4.1(ii) Maintain devotion to duty,
4.1(xix) Maintain discipline in discharge of one's duty and be
liable to implement the lawful orders duly communicated to
the employee, 4.1 (xxi) Perform and discharge one's duties
with highest degrees of professionalism and dedication to the
best of his abilities, 4.2- Every employee of the company
holding a supervisory/managerial post shall take all possible
steps to ensure the integrity and devotion to duty of all
employees for the time being under his control and authority,
4.3-No employee of the company shall, in performance of his
official duties or in exercise of powers conferred on the
employee act otherwise than on his best judgement except
when the employee is acting under the direction of his official
superior of the CIL Executives Conduct, Discipline & Appeal
Rules also tantamount to misconduct in terms of the Rule
5.0(1) Theft, fraud or dishonesty in connection with the
business or property of the company or of property of another
person within the premises of the Company, 5.0(6)Acting in a
manner prejudicial to the interest of the Company 5.0(7)-
wilful insubordination or disobedience, whether or not in
combination with others of any lawful and reasonable orders
of employees superior, 5.0(10) Neglect of work or negligence
in performance of duty including malingering or slowing
down of work & 5.0(27)-Breach of any of the provisions of
these rules or any other statutes or rules of the said Rules."
17. The appellant-writ petitioner had appeared before the
enquiry officer and defended the irregularities said to be
committed by him. The enquiry officer, on conclusion of the
inquiry proceeding, has given its finding, wherein, the charges
have been dealt with on the basis of applicability of the
Conduct Rules, save and except, non-compliance of the Rule as
contained under Rule 4.1(i) of CDA Rule all the charges
concerning other Conduct Rules, are not found to be proved.
The said inquiry report was forwarded before the disciplinary
authority.
18. But, vide impugned memorandum issued under memo
no.702 dated 21.06.2022, the respondent no.2 while differing
with the finding of inquiry authority has observed that the
charge of advertently allowing loading of coal of mixed size to
the non-core consumers who were allotted coal of (-) 100 mm
size in violation of terms and conditions of Special Spot E-
auction held on 31.07.2020 is fully sustainable and the writ
petitioner/ appellant advertently failed to discharge his
duties/obligations as "Project Officer" as laid down in the OM
dated 30.03.2020 of the Coal India Limited, therefore, there are
sufficient grounds to differ with the findings of the enquiry
officer in holding the charge, as partially proved.
19. The aforesaid impugned memorandum issued under
memo no.702 dated 21.06.2022 is being quoted, as under:-
"Memorandum
WHEREAS, a Memorandum of charge under Major
Penalty Proceedings under Rule 30.0 of the Coal India
Executives Conduct, Discipline and Appeal Rules, 2021 was
issued to Shri Arvind Kumar Sharma, then Chief Manager
(M)/Project Officer, AADOCM, Dhori Area, CCL in matters of
Memorandum of charge vide Ref. No. CCL/VIG/RDA-
07/21/2021/1051 dated 08.09.2021.
AND WHEREAS, the charge against said Shri Arvind
Kumar Sharma was that he, while posted and functioning as
the Project Officer, AAD OCM, Dhori Area, CCL during the
year 2021, committed gross irregularities in the matters of
dispatch of coal through Rail mode inasmuch as he, in
blatant violation of terms and conditions of Special Spot e-
auction (Auction Id: 34469) held on 31.07.2020 for sale of
coal to non-core consumers through Rail mode from Dhori-1
Siding which comes under the administrative control of
Project Officer, AAQDCM for W-V Grade of coal, advertently
allowed loading of ROM coal of mixed size to the consumer
who were allotted coal of (-)100 mm size. The above lapses
on the part of Shri Arvind Kumar Sharma caused undue
benefit to the consumers and corresponding loss to the
Company.
The above lapses on the part of Shri Arvind Kumar
Sharma was in violation of the Office Memorandum no.
CIL/C-5A(PC)/Role Profile/406 dated 30.03.2020 of General
Manager (P/PC), CIL, Kolkata which inter alia stipulated the
responsibilities of Project Officer for ensuring quality of coal
and timely dispatch in quality and quantity as per
agreement.
Thus, Shri Arvind Kumar Sharma advertently failed to
discharge his duties and obligations as Project Officer of AAD
OCM, Dhori Area, CCL which was detrimental to the interest
and image of the Company.
AND WHEREAS, said Shri Arvind Kumar Sharma
submitted his reply dated 11.10.2021 denying the charge.
AND WHEREAS, the aforesaid reply of Shri Arvind
Kumar Sharma having been found not satisfactory, it was
decided to hold an inquiry into the charge levelled against
him for which Shri Pradip Kumar, Ex- GM(MM), CMPDIL,
Ranchi was appointed as the Inquiring Authority (IA) vide
Order Ref No. CCL/VIG/RDA-07/21/2022/1937 dated
12.01.2022 and Shri Aman Kumar, Sr. Manager(Fin),
Vigilance department, CCL was appointed as Presenting
Officer vide Order Ref No. CCL/VIG/RDA-07/21/2022/1938
dated 12.01.2022 to present the case on behalf of
Management.
AND WHEREAS, the IA submitted his report on
03.05.2022 holding the charge levelled against Shri Arvind
Kumar Sharma as 'Partially proved'.
AND WHEREAS, the undersigned has carefully and
impartially perused the report of the IA in the light of the
charge and the evidences led during the enquiry. The
grounds taken by the IA in holding the charge as 'partially
proved' and the reasons why his findings are not acceptable
are mentioned against each finding:
(i) That ROM coal was supplied along with allotted coal
of (-) 100 mm size in contravention of agreement terms of
supply, whereas the instructions dated 18.02.2021 issued
by M&S department clearly mentioned that ROM coal are not
to be supplied to the power consumer. It is evident from the
CCTV footage that (+) 100 mm coal were available on the
date of rake loading and that mixed coal was spread all over
platform no. 1 with lumps of (+) 100 mm size.
This observation of the IA is ipso facto sufficient to
establish that the irregularity of supply of (+) 100 mm size
coal along with crushed coal was rampantly being committed
at Dhori-I Siding. This was in gross contravention of the
terms and conditions of Special Spot e-auction (Auction Id:
34469) held on 31.07.2020 for sale of coal to non-core
consumers as also the instruction given by M&S Department,
CCL.
(ii) That responsibility of maintenance of Feeder
Breaker (F/B) was entrusted to E&M Official and the Siding
Manager, Shri Rajesh Kumar, supplied the coal provided to
him. He has also informed about the complaints related to
size received from customers and requested for rectification
of the F/B from time to time. The responsibility of supplying
the coal as per contract terms was of Project Officer on whose
direction all the subordinates were working. Further, he has
posed a question whether PO is the whole and sole
responsible person for execution of the contract and his
higher ups were not aware of the details of violation. The
matter of complaints received from customers were well in
knowledge of Area GM and all violation of contract terms
were with his silent permission.
Supply of crushed coal mixed with (+) 100 mm size coal
to the non-core consumers who were allotted coal of (-)100
mm size was a clear breach of the contract. To ensure supply
of assured quality, quantity and size of coal to the consumers
to achieve consumer satisfaction as per terms of contract,
both the Project Officer and the Siding Manager were jointly
and severally responsible insofar as supply of sized coal as
per terms of e-auction was concerned It is not at all disputed
that complaints of oversized coal were lodged by power
houses frequently and even reported to the Project Engineer
(E&M), AADOCM Project time and again. This proved to be a
mere formality and did not yield any positive results and the
irregularity of supplying crushed coal with (+) 100 mm size
coal was being committed day to day. This itself proves that
oversized coal was being regularly supplied also to non-core
consumers and no complaints were ever raised by them
relating to supply of oversized cool. Therefore, the possibility
of concomitant gain to the non-core sectors by supply of
mixed coal cannot be ruled out outrightly. There is no lota of
doubt that the instructions to supply (-)100 mm size coal was
grossly violated for which none other than Shri Arvind Kumar
Sharma was responsible as the Project Officer and cannot be
absolved of his responsibility to ensure supply of crushed
coal to the non-core consumers through his Siding Manager
who was deputed at the Siding specifically to ensure the
supply of assured quality, quantity and size of coal to the
consumers to achieve consumer satisfaction. Such liability
cannot be stretched too far up to the level of Area General
Manager.
There is also no basis for the IA to make an
unwarranted and scandalous remark that the mixing of (+)
100 mm size coal with crushed coal was being done with the
silent permission of Area GM. This is clearly in transgression
of the powers of conferred upon him as the IA.
(iii) That MW-1 and MW-2 have deposed that they
found substantial amount of uncrushed coal at PF-1 spread
through the platform in heaps and few heaps of coal were
found dumped besides. feeder breaker number 4 which were
ROM coal. Substantial is relative term, which can be defined
as considerable in quantity or significantly great in amount.
Moreover, neither the exact quantity of mixed ROM Coal nor
percentage of mixing was brought out by Management.
The instructions dated 18.02.2021 of M&S department
mandated supply of (-) 100 mm crushed coal non-core
consumers. Hence, there was no reason for mixed cool being
spread here and there on Platform No. 1 or availability of (+)
100 mm size coal at the Platform No. 1. The availability of
substantial or considerable quantity is also not disputed by
Shri Arvind Kumar Sharma. Hence, whether or not the
quantity has been quantified is of not much relevance
especially when it was not practicable to ascertain the exact
quantity of (+) 100 mm size coal. Hence, this argument does
not mitigate the charge that crushed coal mixed with ROM
coal was being supplied regularly to the non-core consumers
who were allotted coal (-)100 mm size. For this irregularity,
Shri Arvind Kumar Sharma as the Project Officer and his
Siding Manager are jointly and severally responsible: Such
liability cannot be shifted upon any other official. This was
clear cut violation of the Company's instructions by Shri
Arvind Kumar Sharma which defeated the terms and
conditions of Special Spot e-auction (Auction Id: 34469) held
on 31.07.2020.
(iv) As per office orders and circulars issued by M&S
department of CIL from time to time that basic price of ROM is
always less as compared to crushed coal. Moreover Rs. 87/-
extra is taken for crushing. From time to time the reserve
price of ROM increases or decreases by CCL grade-wise,
however Notified price always remains the same.
The case has to be looked into in terms of the specific
order and guidelines in which crushed coal (-)100 mmm size
was to be supplied to non-core consumers. A general passing
remark of the IA to the effect that basic price of (+) 100 mm
size coal is always less as compared to crushed coal does
not suffice to mitigate the charge. The contention of extra
charge payable of crushing is also not of much relevance.
There has never been any complaint of supply of (+) 100 mm
size coal by the non-core consumers and so the possibility of
getting undue advantage by supply of crushed coal with (+)
100 mm size coal cannot be ruled out outrightly.
Hence, the charge of advertently allowing loading of
coal of mixed size to the non-core consumers who were
allotted coal of (-)100 mm size in violation of terms and
conditions of Special Spot e-auction (Auction Id: 34469) held
on 31.07.2020 is fully sustainable. By his failure in ensuring
supply of crushed coal (-)100 mm size as per agreement and
in violation of the terms and conditions of special spot e-
auction, Shri Arvind Kumar Sharma advertently failed to
discharge his duties and obligations as Project Officer of AAD
OCM, Dhori Area, CCL as laid down in OM Dated 30.03.2020
of CIL. Hence, there are sufficient grounds to differ with the
findings of the IA in holding the charge as 'partially proved'.
AND WHEREAS, the above reasons for disagreement
are tentative and a suitable final decision in the matter will
be taken after considering the representation or submission,
if any, received from Shri Arvind Kumar Sharma within the
stipulated time limit.
AND WHEREAS, in terms of Rule 30.0 of the Conduct,
Discipline & Appeal Rules, 1978 of CIL in accordance with
the Rule 31.2 of the Coal India Executives Conduct, Discipline
& Appeal Rules, 2021, a copy of the report of inquiry is being
forwarded to Shri Arvind Kumar Sharma. He is directed to
submit his representation, if any, on the report of the IA and
the points of disagreement as narrated in this Memorandum
to the undersigned within fifteen days of receipt hereof.
Should Shri Arvind Kumar Sharma fail to submit his
representation within stipulated time, it will be presumed
that he has no representation to offer in his defence and
thereafter, the case will be disposed off on its merits without
any further reference.
Receipt of this Memorandum should be acknowledged
by Shri Arvind Kumar Sharma."
20. Thus, it is evident that the disciplinary authority, after
going through the finding recorded by the enquiry officer, has
differed with the charge by assigning the reason, which was
supplied to the appellant/writ petitioner for its comment in
order to provide an opportunity.
21. The appellant/writ petitioner had again defended the
reason of difference shown by the disciplinary authority but the
disciplinary authority has imposed the punishment of
"reduction to two stages lower for a period of six months in time
scale of pay without cumulative effect".
22. The appellant/writ petitioner, being aggrieved with the
order of punishment, has preferred writ petition before this
Court being W.P.(S) No.6086 of 2022.
23. The ground has been taken that the work discharged by
the appellant cannot be said to be mis-conduct, since, the
conduct for which the departmental proceeding has been
initiated by framing charge, has never been assigned to him
and further, the disciplinary authority while differing with the
finding recorded by the enquiry officer, has not given cogent
and valid reason.
24. The CCL has taken point of having no impropriety in the
finding recorded so far as showing the difference of opinion with
the finding recorded by the enquiry officer.
25. The ground has been taken that the appellant in the
capacity of Project Officer having overall supervisory
jurisdiction and as such, whatever lapses have been committed
by his subordinate, i.e., Siding Engineer, he cannot be allowed
to escape from discharge of his official duty, since, the
appellant has flouted the terms and conditions of the Contract
by advertently allowed loading of ROM coal of mixed size to the
consumer who were allotted coal of (-)100 mm size, leading to
financial loss to the Company.
26. The learned Single Judge, on appreciation of the rival
submissions/grounds which has been taken by the parties, has
dismissed the writ petition by holding the writ petitioner liable
for misconduct since he was heading the Project in the capacity
of Project Officer.
27. The said order is under challenge in the instant Letters
Patent Appeal.
Arguments of the learned counsel for the appellant:
28. Mr. Manoj Tandon, learned counsel for the appellant has
taken the following grounds in assailing the impugned order
that:-
(i) The memorandum of charge which contains the
imputation therein cannot be said to be specific charge,
rather, it is omnibus and vague and that has been issued
without taking into consideration the fact that size of coal
for which the allegation has been levelled against the
appellant, was never been assigned as a duty to be
performed by the appellant.
(ii) It has been contended that when the duty of siding of
coal has not been assigned at any time, and as such, it
cannot be said that any mis-conduct has been committed.
(iii) The enquiry officer has not found the charge proved
so far as the applicability of the different Conduct Rules are
there, however, the charge with respect to non-observance
of the terms and conditions of the Contract, has been said
to be proved and thereby, the finding has been arrived at
that the Conduct Rules as contained under Rule 4.1 (i) has
been violated. The enquiry officer, therefore, has come to
the conclusion of charge having partially been proved.
(iv) The disciplinary authority has differed with the
charges, which have not been found to be proved by
assigning the reason but the said reason cannot be said to
be just and proper, reason being that, merely on the basis
of presumption and conjectures, which would be evident
from the reason assigned by the disciplinary authority,
cannot be said to be valid one, since, there is no cogent
evidence to that effect, rather, only on the basis of the
vigilance report, which is totally based upon CCTV footage
coverage, the charge has been framed against the
appellant.
(v) It has been contended that the difference of opinion
is based upon the presumption, which has been carried on
the basis of the fact that in the coal siding area along with
ROM Coal, (-) 100 mm size coal was also there. The,
contention, therefore, has been raised that merely because
along with ROM Coal, (-) 100 mm size coal was also there,
no charge can be framed.
(vi) It has been contended that the Contractor to whom
the Coal was supplied has never been made any complaint
of any violation of terms and conditions of the Contract and
merely on the basis of the inquiry report based upon the
finding of the ROM Coal with (-) 100 mm size coal in the
coal siding place, the same cannot be the basis to frame the
charge. It has been contended therefore that the reason for
differing with the opinion of the enquiry officer, cannot be
said to be just and proper having in absence of valid reason
or difference of opinion.
(vii) The ground has been agitated that it appears from
the impugned order that the learned Single Judge has
declined to interfere with the impugned order of
punishment on the principle of vicarious liability, the writ
petitioner was, in the capacity of Project Officer at the
Project during the relevant time but if the specific duty has
not been assigned to the petitioner then merely on the
basis of the vicarious liability no charge can be issued
against the petitioner/appellant.
(viii) The learned Single Judge has also not appreciated
the reason of difference of opinion shown with the finding of
the inquiry report.
(ix) Learned Counsel has further submitted that the
principle of preponderance of probability although is
applicable in the matter of departmental proceeding but
even in the case of preponderance of probability, the cogent
evidence is to be there and in absence thereof, merely on
the basis of the preponderance of probability, the order of
punishment cannot be passed.
(x) It has been submitted that the aforesaid aspects of
the matter have not been appreciated by the learned Single
Judge, therefore, according to the learned counsel for the
appellant, the order impugned passed by the learned Single
Judge, as also, the order passed by the Administrative
Authority, therefore, suffer from an error, hence, the
present appeal.
Arguments of the learned counsel for the Respondent-CCL
29. Mr. Amit Kumar Das, learned counsel appearing for the
Respondent-CCL has defended the impugned order by taking
the following grounds: -
(i) It has been submitted by Mr. Das that the High
Court under Article 226 of the Constitution of India, is
having very limited jurisdiction to interfere with the
decision taken by the Administrative Authority in the
departmental proceeding and the same can only be taken if
there is procedural irregularity.
(ii) It has been contended that there is no grievance of
the present appellant of any procedural irregularity and as
such, if the learned Single Judge applying the said
proposition of law, has dismissed the writ petition, the
same cannot be said to suffer from an error.
(iii) It has been contended that the charge which has
been framed against the appellant, save and except, the
charge pertaining to violation of Rule 4.1(i) of CDA Rule,
which has been proved but all the other charges related to
applicability of the Conduct Rules, have not been found to
be proved. But the disciplinary authority has differed with
the same assigning the reason which has been supplied to
the writ petitioner in order to met out the principle of
natural justice.
The appellant has responded thereto and on
consideration of the said reply, the same has not been
found to be satisfactory and thereafter, the disciplinary
authority has come to the conclusion that the appellant is
held to be guilty and accordingly, the order of punishment
has been passed.
(iv) It has been contended that in response to the
argument advanced on behalf of the appellant that rest of
the charges which pertain to Conduct Rules, which has
been differed by the disciplinary authority but even
accepting and ignoring the difference of opinion, as has
been recorded by the disciplinary authority but the charge
pertaining to violation of terms and conditions of the
Contract, since, has been flouted and as such, the charge
having been proved and to that extent, the appellant is well
deserve to be punished.
(v) The contention has been raised that the nature of
punishment although has been referred to be major but the
effect is minor, since, reduction of two stages lower for a
period of six months in time scale of pay is without
cumulative effect and the effect of the said punishment
order has already been passed and as such, punishment
order has correctly not been interfered by the learned
Single Judge.
(vi) Learned counsel, based upon the aforesaid grounds,
has submitted that if in these pretexts, the learned Single
Judge since has passed the impugned order, the same
requires no interference, accordingly, the present appeal is
fit to be dismissed.
Analysis
30. We have heard the learned counsel for the parties and
gone across the finding recorded by the learned Single Judge in
the impugned order as also the material available in the
pleading.
31. The admitted facts of the present case are that the
petitioner/appellant was initially appointed as Junior Executive
Trainee (Mining) on 04.09.1993. Vide office order issued under
memo no.406 dated 30.03.2020, General Manager (P), Coal
India Limited communicated that the competent authority of
Coal India Ltd. has approved "CIL Executive Role Profile of
Unique Position" for providing role clarity to all the incumbents
of unique positions of Executive cadre employee. In the month
of August, 2020, the writ petitioner was transferred to the post
of Project Officer in Amalgamated Amlo Dhori (AAD) Open Cast.
32. In terms of the decision taken on 31.07.2020 under
Special Spot e-auction in respect of Racks Bid and vide letter
no.2516 dated 20.08.2020, the Chief Manager (M&S) Rail
Operation, CCL, Ranchi intimated the Area Sales Manager,
Dhori amongst others.
33. Vide memo no.1051 dated 08.09.2021, a charge-sheet was
issued against the petitioner under Rule 30.3 of Coal India
Executive Conduct, Discipline and Appeal Rules. On
01.05.2022, the Enquiry Officer has submitted his report
observing therein that the charges being partially proved. Vide
impugned memorandum issued under memo no.702 dated
21.06.2022, the respondent no.2 has observed that the charge
of advertently allowing loading of coal of mixed size to the non-
core consumers who were allotted coal of (-) 100 mm size in
violation of terms and conditions of Special Spot E-auction held
on 31.07.2020 is fully sustainable and the writ petitioner
advertently failed to discharge his duties/obligations as "Project
Officer" as laid down in the OM dated 30.03.2020 of the Coal
India Limited, therefore, there are sufficient ground to differ
with the findings of the enquiry officer in holding the charge as
partially proved.
34. Thereafter, on 06.07.2022, the writ petitioner submitted
his objection against the memorandum issued under memo
no.702 dated 21.06.2022 inter-alia on the ground that the
respondent no.2 has failed to take into consideration that mere
observation of enquiry officer with respect to charge no.1 at any
stretch of imagination shall not take the shape of proof.
35. Thereafter, the writ petitioner has preferred a writ
application being W.P.(S) No.3360 of 2022 challenging the
memorandum dated 21.06.2022 issued by respondent no.4.
The writ petitioner has also filed an interlocutory application
being I.A. No.8750 of 2022 in W.P.(S) No.3360 of 2022 with a
prayer to challenge the order of penalty dated 14.09.2022
passed during the pendency of the writ petition.
36. Vide order dated 28.09.2022, writ petition being W.P.(S)
No.3360 of 2022 was disposed of directing the appellant to file a
Departmental Appeal before the respondent no.2 within a
period of two weeks from the date of the order.
37. On 10.10.2022, the writ petitioner preferred a
Departmental Appeal before respondent no.2 in terms of the
order dated 28.09.2022 passed by this Court in W.P.(S)
No.3360 of 2022. The respondent no.2, thereafter, has
dismissed the said appeal preferred by the writ petitioner and it
was ordered for reduction of two stages lower for a period of 6
months in time scale of pay without cumulative effect.
38. This Court, before proceeding to examine the propriety of
the order passed by the learned Single Judge, deems it fit and
proper to refer the judgments pertaining to jurisdiction of the
High Court to show the interference with the decision taken by
the Administrative Authority in the departmental proceeding.
39. The Hon'ble Apex Court in the case of Union of India &
Others vs. P. Gunasekaran, (2015) 2 SSC 610 has held at
paragraphs-12 and 13 thereof that the following guidelines
have been laid down for showing interference in the decision
taken by the disciplinary authority and not to interfere with the
decision, which reads as under:-
"12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the enquiry officer.
The finding on Charge No. 1 was accepted by the disciplinary
authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the High
Court is not and cannot act as a second court of first appeal.
The High Court, in exercise of its powers under Article
226/227 of the Constitution of India, shall not venture into
reappreciation of the evidence. The High Court can only see
whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed
in that behalf;
c. there is violation of the principles of natural justice in
conducting the proceedings;
d. the authorities have disabled themselves from reaching a
fair conclusion by some considerations extraneous to the
evidence and merits of the case;
e. the authorities have allowed themselves to be influenced
by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary
and capricious that no reasonable person could ever have
arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit
the admissible and material evidence;
h. the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the
High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the
same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which
findings can be based.
(vi). correct the error of fact however grave it may appear to
be;
(vii). go into the proportionality of punishment unless it
shocks its conscience."
40. Further, in Central Industrial Security Force and Ors.
vs. Abrar Ali, [(2017) 4 SCC 507], following guidelines have
been laid down by the Apex Court for interference by the High
Court and the Hon'ble Apex Court has observed that courts will
not interfere with findings of fact recorded in departmental
enquiries, except where such findings are based on no evidence
or where they are clearly perverse in the matter of punishment
imposed on conclusion of the departmental proceeding. The
extract of relevant passages, i.e., para 13 and 14, are referred
hereinbelow:
"13. Contrary to findings of the Disciplinary Authority, the
High Court accepted the version of the Respondent that he
fell ill and was being treated by a local doctor without
assigning any reasons. It was held by the Disciplinary
Authority that the Unit had better medical facilities which
could have been availed by the Respondent if he was really
suffering from illness. It was further held that the delinquent
did not produce any evidence of treatment by a local doctor.
The High Court should not have entered into the arena of
facts which tantamounts to reappreciation of evidence. It is
settled law that re-appreciation of evidence is not permissible
in the exercise of jurisdiction under Article 226 of the
Constitution of India.
14. In State Bank of Bikaner and Jaipur v. Nemi Chand
Nalwaiya, [(2011) 4 SCC 584], this Court held as follows:
"7. It is now well settled that the courts will not act as an
appellate court and reassess the evidence led in the domestic
inquiry, nor interfere on the ground that another view is
possible on the material on record. If the inquiry has been
fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the
reliable nature of the evidence will not be grounds for
interfering with the findings in departmental enquiries.
Therefore, courts will not interfere with findings of fact
recorded in departmental enquiries, except where such
findings are based on no evidence or where they are clearly
perverse. The test to find out perversity is to see whether a
tribunal acting reasonably could have arrived at such
conclusion or finding, on the material on record. The courts
will however interfere with the findings in disciplinary
matters, if principles of natural justice or statutory
regulations have been violated or if the order is found to be
arbitrary, capricious, mala fide or based on extraneous
considerations."
41. It is evident from the aforesaid judgments that the power
which is to be exercised by the High Court under Article 226 of
the Constitution of India is very limited one. However, the
parameter has been fixed, as to in which case, the interference
is to be made by the High Court in exercise of the power
conferred under Article 226 of the Constitution of India and in
which case, such power is not to be exercised.
42. Further, this Court also needs to refer herein the principle
which has been laid down in the case of Punjab National
Bank & Ors Vrs. Kunj Behari Misra, (1998) 7 SCC 84,
wherein, proposition has been laid down that what remedy is
available with the disciplinary authority in a case where the
enquiry officer has not found the charge proved.
43. It has been laid down that in such a situation, the
disciplinary authority after receipt of the inquiry report from the
enquiry officer, can well differ with the finding so recorded but
based upon the sufficient reason, which is to be communicated
to the delinquent employee for the purpose of response and
only thereafter, the decision is to be taken by the disciplinary
authority, the relevant paragraph of the said judgment is being
quoted as under:-
"19. The result of the aforesaid discussion would be that the
principles of natural justice have to be read into Regulation
7(2). As a result thereof, whenever the disciplinary authority
disagrees with the enquiry authority on any article of charge,
then before it records its own findings on such charge, it
must record its tentative reasons for such disagreement and
give to the delinquent officer an opportunity to represent
before it records its findings. The report of the enquiry officer
containing its findings will have to be conveyed and the
delinquent officer will have an opportunity to persuade the
disciplinary authority to accept the favourable conclusion of
the enquiry officer. The principles of natural justice, as we
have already observed, require the authority which has to
take a final decision and can impose a penalty, to give an
opportunity to the officer charged of misconduct to file a
representation before the disciplinary authority records its
findings on the charges framed against the officer."
44. In the backdrop of the aforesaid settled position of law, this
Court is now proceeding to examine the factual aspect of the
instant case in order to ascertain that whether in the instant
case the interference under Article 226 is required based upon
the aforesaid proposition of law.
45. The admitted fact herein is that the charge as per the
memorandum of charge is that the writ petitioner/appellant at
the time of functioning of the Project Officer, AAD OCM, Dhori
Area, CCL during the year 2021 committed gross irregularities
in the matters of dispatch of coal through Rail mode in blatant
violation of terms and conditions of the Special Spot e-auction
held on 31.07.2020 for sale of coal to non-core consumers
through Rail mode from Dhori-I Siding which comes under the
administrative control of Project Officer, advertently allowed
loading of ROM coal of mixed size to the consumer who were
allotted coal of (-) 100 mm size. The above lapses on the part of
the appellant caused undue benefit to the consumers and
corresponding loss to the Company.
46. At this juncture, this Court, deems it fit and proper to
show the difference in between ROM coal and coal of (-) 100
mm size.
(i) ROM coal is raw coal, while, (-) 100 mm size coal is
the finished coal small in size.
(ii) The finished coal therefore is having highest price in
comparison to that of ROM coal.
47. The main allegation, as per the statement of Article of
charge as under Article-I is commission of gross illegality in the
matter of dispatch of coal which has been found to be in blatant
violation of terms and conditions of Special Spot e-auction held
on 31.07.2020.
48. The consequence of the aforesaid violation has been
considered to be non-fulfillment of Conduct Rules, as contained
under Rule 4.1(i)- Maintain absolute integrity, Rule 4.1(ii)-
Maintain devotion to duty, Rule 4.1(xix)- Maintain discipline in
discharge of one's duty and be liable to implement the lawful
order duly communicated to the employee, Rule 4.1(xxi)-
Perform and discharge one's duties with highest degree of
professionalism and dedication to the best of his abilities, Rule
4.2-Every employee of the company holding a
supervisory/managerial post shall take all possible steps to
ensure the integrity and devotion to the duty of all employee for
the time being under his control and authority, Rule 4.3-No
employee of the company shall, in performance of his official
duties on in exercise of powers conferred on the employee act
otherwise that on his best judgment except when the employee
is acting under the direction of this official superior of the CIL
Executives Conduct, Discipline and Appeal Rules also
tantamount to misconduct, Rule 5.0(1)-Theft, fraud or
dishonesty in connection with the business or property of the
company or of property of another person with in the premises
of the company, Rule 5.0(6) Acting in a manner prejudicial to
the interest of the company, Rule 5.0(7)-Willful insubordination
or disobedience, whether or not in combination with other of
any lawful and reasonable orders of employee superior, Rule
5.0 (10)-Neglect of work or negligence in performance of duty
including malingering or slowing down of work, Rule 5.0(27)-
Breach of any of the provisions of these rules or any other
statutes or rules the said rules.
49. The inquiry has proceeded. The enquiry officer has
considered the entire aspect of the matter based upon the
contention raised on behalf of the parties and given a finding,
as would be evident from the finding so recorded in the inquiry
report, for ready reference, the relevant part of the inquiry
report along with conclusion, is being referred as under:-
"(12) Findings:
After analysis of witnesses, exhibits, Management brief and
Defense brief following facts emerged:
1. It is established beyond doubt that ROM coal was supplied
alongwith allotted coal of (-) 100 mm Size in contravention of
agreement terms of supply, whereas the instructions dated
18.2.2021(ME-4) issued by M&S clearly mentioned that
ROM coal are not to be supplied to the power consumer. It is
evident from the CCTV footage that (+) 100 mm coal were
available on the date of rake loading on dates 24.01.2021,
28.01.21, 03.02.21, 09.02.21, and 16.02.21, as the same
were being loaded into the rakes. Coal spread over platform
no-2 was properly crushed to (-) 100 min and on PF no-1
mixed coal with lumps of (+) 100 mm size may be seen.
2. The responsibility of maintenance of Feeder Breaker
was entrusted to E&M official and as Siding Manager Shri.
Rajesh Kumar supplied the coal provided to him. Not only
that even he informed about the complaints related to size
received from customers and requested for rectification of
Feeder Breaker from time to time. The responsibility of
supplying the coal as per contract terms was of Project
Officer on whose directions all the subordinates were
working.
One vital question arises whether Project Officer is the
whole and sole responsible person for execution of the
contract and his higher ups were not aware of the details of
violation. The matter of complaints received from customers
were well in knowledge of General Manger of the area also.
All the violation of contract terms were with his silent
permission.
3. During deposition MW-I deposed that during the inspection
of Dhori Siding the team members found substantial amount
of uncrushed coal at PF-1 spread throughout the length of
Platform in several places in heaps and few heaps of coal
were found dumped beside Feeder Breaker No-4 which
were ROM coal. Similarly MW-2 deposed that by supplying
mixed coal on the days mentioned above the CO violated
the terms and conditions of summary of 31.07.2020 and
was in violation of their duties. Substantial is very relative
term. Substantial can be defined as " considerable in
quantity or significantly great in amount Moreever neither
the exact quantity of mixed ROM coal nor percentage of
mixing could be brought out by management Hence this
charge could not be substantiated.
4. As per office orders and circulars issued by M&S
department of CIL from time to time that Basic Price of ROM
is always less as compared to crushed coal. Moreover Rs.
87/- extra is taken for crushing From time to time the
Reserve Price of ROM increases or decreases by CCL Grade
Wise however notified price always remains the same.
I. No. CDA Rule Description Finding
clause
1. Rule 4.1(i) maintain devotion to Charged
the duty, 4.1(xix)- officer
maintain discipline in failed to
discharge of one's duty ensure the
and be liable to adherence
implement the lawful of contract
order duly terms.
communicated to the
employee.
2. Rule 4.1(ii) Maintain devotion to Failed on
the duty. this count.
3. Rule maintain discipline in Failed on
4.1(xix) discharge of one's duty this count.
and be liable to
implement the lawful
order duly
communicated to the
employee.
4. Rule perform and discharge Failed on
4.1(xxi) one's duties with this count.
highest degree of
professionalism and
dedication to the best
of his abilities.
5. Rule 4.2 every employee of the Nothing
company holding a adverse
supervisory/managerial could be
post shall take all found on
possible steps to this count.
ensure the integrity
and devotion to the
duty of all employee for
the time being under
his control and
authority.
6. Rule 4.3 no employee of the Nothing
company shall, in adverse
performance of his could be
official duties on in found on
exercise of powers this count.
conferred on the
employee act otherwise
that on his best
judgment except when
the employee is acting
under the direction of
this official superior of
the CIL Executives
Conduct, Discipline
and Appeal Rules also
tantamount to
misconduct in terms of
the
7. Rule 5.0(1) Theft, fraud or Nothing
dishonesty in adverse
connection with the could be
business or property of found on
the company or of this count.
property of another
person with in the
premises of the
company.
8. Rule 5.0(6) Acting in a manner Nothing
prejudicial to the adverse
interest of the could be
company. found on
this count.
9. Rule 5.0(7) Willful insubordination Nothing
or disobedience, adverse
whether or not in could be
combination with other found on
of any lawful and this count.
reasonable orders of
employee superior.
10. Rule Neglect of work or Nothing
5.0(10) negligence in adverse
performance of duty could be
including malingering found on
or slowing down of this count.
work.
11. Rule Breach of any of the Nothing
5.0(27) provisions of these adverse
rules or any other could be
statutes or rules the found on
said rules. this count.
Charges Partially proved."
50. The charge has partially been found to be proved. The
reason for partially proving of charge is the finding recorded
with respect to the violation of Rule 4.1(i). Rule 4.1(xix)-
"Maintain discipline in discharge of one's duty and be liable to
implement the lawful order duly communicated to the
employee".
51. The reason for proving the said charge is that the officer
failed to ensure the adherence of terms and conditions of the
Contract.
52. The enquiry officer has forwarded the charge before the
disciplinary authority. The disciplinary authority has not
accepted the finding recorded by the enquiry officer and differed
with the opinion. Reason has been assigned and has been
supplied to the petitioner to submit his reply.
53. The reply has been submitted. The said reply has not been
found to be satisfactory, hence, the order of punishment has
been passed on 14.09.2022 of reduction of two stages lower for
a period of six months in time scale of pay without cumulative
effect.
54. We have considered the reason for difference of opinion as
has been cited by the disciplinary authority.
55. It is evident therefrom that the basis of showing the
difference of opinion by the disciplinary authority is that the
fact has crept up on the basis of the vigilance report. The
vigilance report is with respect to the fact that in the Coal
Siding Area along with (-) 100 mm size coal, ROM coal, had also
been found. The same has been made basis of initiation of
departmental proceeding against the present appellant since he
was holding the post of Project Officer of the said colliery.
56. The argument has been advanced on behalf of the
appellant that the reason for showing the difference of opinion
which is based upon the CCTV footage coverage, cannot be said
to be justified so far as it relates to non-observance of the
Conduct Rules as contained under Rule 4.1(ii), Rule 4.1(xix),
Rule 4.2, Rule 4.3, Rule 5.0(1), Rule 5.0(6), Rule 5.0(7), Rule
5.0(10) and Rule 5.0(27).
57. Learned counsel for the appellant has also questioned the
charge having been found to be partially proved so far as it
relates to non-observance of the Conduct Rules, since, the
terms and conditions of the Contract has not been followed.
58. This Court, by taking into consideration the ground so far
as it relates to showing the difference of opinion which pertains
to non-observance of Conduct Rules, i.e., Rule 4.1(ii), Rule
4.1(xix), Rule 4.2, Rule 4.3, Rule 5.0(1), Rule 5.0(6), Rule 5.0(7),
Rule 5.0(10) and Rule 5.0(27), is of the view that even if the plea
of the appellant will be accepted then also it cannot be said that
the appellant has not committed any irregularity, since, the
appellant has said to be committed the violation of the Conduct
Rules since, he has not followed the terms and condition of the
Contract.
59. This Court, therefore, is considering the case of the
present appellant by assessing from the angles, as to what
would be the effect in the nature of punishment if the reason
for recording the difference of opinion even if accepted to be not
proper, while, the admitted fact is that the terms and
conditions of the Contract wherein it has been provided that (-)
100 mm coal is to be supplied to the consumers.
60. So far as the issue of assigning the reason for difference of
opinion is concerned, this Court is of the view that if the
disciplinary authority is differing with the finding recorded by
the enquiry officer, then, it is the bounden duty to come with
the valid reason and not on presumption and conjectures.
Herein, the disciplinary authority has shown the difference of
reason on the basis of the CCTV footage coverage, which has
been assessed by the Vigilance Team of the respondent-CIL and
based upon that, the authority has taken a decision to initiate
departmental proceeding against the Project Officer and the
Side Engineer.
61. It has been contended herein by the learned counsel for
the appellant that respondent no.2 is not vested with unbridled
and unfettered power to disagree with the enquiry report
specifically on the point which foreign to charge-sheet.
62. The law is well settled, as has been settled in the case of
Punjab National Bank & Ors Vrs. Kunj Behari Misra (supra)
that the difference of opinion is to be given by the disciplinary
authority if the disciplinary authority is differing with the
finding recorded by the enquiry officer. But such difference of
opinion is only required to be given on the basis of the material
available on record and in view thereof, it is not available for
the disciplinary authority to travel beyond the material
available on record.
63. By applying the aforesaid settled connotation of law of this
Court is of the view that the difference of opinion as has been
shown by the disciplinary authority cannot be said to be valid
reason by taking contrary view to that of the view which has
been taken by the enquiry officer so far as violation of conduct
Rule other than rule 4.1(i).
64. In Sum and substance, the charge is that the terms and
conditions of the Contract has not been followed and in doing
that, the Conduct Rules, have bene flouted.
65. The issue of non-observance of the terms and conditions
of the Contract, wherein, the Contract bilateral in nature is
with respect to supply of (-) 100 mm size coal but in place
thereof, ROM coal has been supplied.
66. The aforesaid fact has not been specifically disputed by
the appellant, since, in defence reply, the denial of entire
allegation has been made but there is no specific denial with
respect to supply of ROM coal of mixed size instead of (-) 100
mm size coal.
67. The appellant, being the Project Officer was duty bound to
see that the terms and conditions of the Contract be complied
with and while doing so, it was his bounded duty to keep vigil
upon the entire transaction, in which, he has failed and that is
the finding given by the enquiry officer while proving the
charge.
68. This Court, therefore, is of the view that even if ignoring
the part of the misconduct said to be covered under Rules, i.e.,
Rule 4.1(ii), Rule 4.1(xix), Rule 4.2, Rule 4.3, Rule 5.0(1), Rule
5.0(6), Rule 5.0(7), Rule 5.0(10) and Rule 5.0(27), then, what
would be its effect in the order of punishment if the charge
pertaining to non-observance of terms and conditions of the
Contract to the effect that (-) 100 mm size coal was to be
supplied but in place thereof, ROM coal of mixed size has been
loaded.
69. This Court, is of the view based upon the fact that the
reason showing the difference of opinion must be valid as has
been observed hereinabove and as such, to that effect,
difference of opinion recorded by the disciplinary authority,
cannot be said to be just and proper. But what would be its
impact in the order of punishment that is to be seen by this
Court.
70. Admittedly herein, the enquiry officer has also found the
charge with respect to non-observance of terms and conditions
of Contract having not been followed by the writ petitioner and
therefore, the Conduct Rules as contained under Rule 4.1 (i)
has been flouted and therefore, the finding is that the charge
has partially been proved.
71. It is not the case of the writ petitioner that he has not
been provided an opportunity with respect to the partially
proved charge. It is also admitted that the terms and conditions
as contained in the Contract has not been followed, since there
is no specific denial with respect to the fact that the appellant
has not loaded ROM coal of mixed size.
72. The argument in this context has been taken that there is
no monetary loss to the CCL. But monetary loss is there or not
it is immaterial if the issue of conduct is there and if the
conduct has been assigned to the particular public servant and
in case of any dereliction or defiance to that conduct, the same
will amount to misconduct.
73. Herein, the violation of Conduct Rule 4.1(i) has been
alleged.
74. Herein, the appellant, in the capacity of the Project Officer
was well conscious with the terms and conditions of the
Contract and as such, he was also conscious that nature of
which coal was to be loaded but even in spite of the aforesaid
instead of (-) 100 mm size coal allowed loading of ROM coal of
mixed size to the consumer.
75. Therefore, this Court is of the view that if the enquiry
officer has come to such finding of lack of devotion of duty due
to non-observance of terms and conditions of the Contract so
far as it relates to loading of coal is concerned, whether the
same requires any interference under the jurisdiction of Article
226 of the Constitution of India.
76. It has also been held by the Hon'ble Apex Court in the
judgment rendered in the case of Union of India & Others vs.
P. Gunasekaran (supra) and Central Industrial Security
Force and Ors. vs. Abrar Ali (supra) that the jurisdiction of
the Court under Article 226 of the Constitution of India so far
as it relates to interfering with the decision taken by the
disciplinary authority, the same is very limited and to be
exercised only in the following situations:
(i) if there is violation of the principles of natural justice in
conducting the proceedings;
(ii) the authorities have allowed themselves to be influenced
by irrelevant or extraneous considerations;
(iii) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person could
ever have arrived at such conclusion; and the disciplinary
authority had erroneously failed to admit the admissible and
material evidence;
(iv) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding; and if
the finding of fact is based on no evidence.
77. This Court has examined the aforesaid charge vis-à-vis the
finding recorded by the enquiry officer, wherefrom, it is evident
that the enquiry officer has come to the conclusion by proving
the said charge partially by considering non-observance of
terms and conditions of the Contract.
78. This Court, therefore, is of the view that so far as the
finding recorded by the enquiry officer with respect to not
performing the duty with devotion which attracted the violation
of the Conduct Rule and if by considering the aforesaid aspect
of the matter, the charge has been found to be proved, the same
cannot be said to suffer from an error which as per the
proposition laid down by the Hon'ble Apex Court cannot be
interfered under Article 226 of the Constitution of India, since,
it is not coming under the parameter of the condition stipulated
therein.
79. Now coming to the propriety of the order of punishment in
the light of the above discussion, the punishment herein is
reduction of two stages lower for a period of six months in time
scale of pay without cumulative effect.
80. The question, therefore, is on quantum of the aforesaid
punishment.
81. We have considered the Conduct Rule, copy of which, has
been provided by the learned counsel for the appellant,
wherein, the nature of punishment has been earmarked in two
heads, i.e., one minor and another major one.
The minor punishment includes:-
(a) Censure;
(b) Withholding increment, with or without cumulative
effect;
(c) Withholding promotion; and
(d)Recovery from pay of the whole of or part of any
pecuniary loss caused to the company by negligence or
breach of order or trust.
The major punishment includes:-
(a) Reduction to a lower grade or post or stage in a time
scale;
Note:-
The authority ordering the reduction shall state the
period for which it is effective and whether, on the
expiry of that period, it will operate to postpone future
increments or, to affect the employee's seniority and if
so, to what extent.
(b) Compulsory retirement;
(c) Removal from service; and
(d)Dismissal.
82. In the major penalties, wherein, it has been provided as
under (a) Reduction to a lower grade or post or stage in a time
scale.
83. Herein, the punishment is of reduction of two stages lower
for a period of six months in time scale of pay without
cumulative effect.
84. The note is there, wherein, while inflicting aforesaid
punishment, the authority shall state the period for which it is
effective and whether, on the expiry of that period, it will
operate to postpone future increments or, to affect the
employee's seniority and if so, to what extent.
85. The punishment herein is of "reduction of two stages lower
for a period of six months in time scale of pay without
cumulative effect", meaning thereby, the caution has been
taken while imposing the punishment on the basis of the
stipulation made in the note as contained under the major
penalties (a), reason being that, the reduction to two stages
lower for a period of six months in time scale of pay is there but
the same is without cumulative effect, meaning thereby, the
effect of lowering down the pay scale is limited only to the
period of six months, and the moment the word "without
cumulative effect" has been inserted in the punishment its
effect will not be in future. If the word "without cumulative
effect" would not have been there, rather, the word "cumulative
effect" would have been there, then certainly, it could have been
said that the said order of punishment will have its effect in the
future avenues.
86. It is further evident from the note that the clarification is
to be there to the extent that it will operate to postpone future
increment or to affect the employees seniority and if so, to what
extent, meaning thereby if the order of punishment has been
passed in the nature to have the rider in the future prospect
then the specific stipulation must be there to the effect that it
will operate to postpone the future increments or to affect
employee seniority and if so to what extent.
87. But herein, reduction of two stages lower for a period of
six months in time scale of pay that too without cumulative
effect clarifies the position that it has got no effect in
postponing the future increments or to affect the seniority of
the present appellant in absence of the aforesaid stipulation
made as contained in the note available in Chapter-IV under
the major penalties head.
88. It has been submitted at Bar, on instruction, by Mr. Amit
Kr. Das, that the effect of the said punishment order has
already been given and now the pay scale of the appellant has
also been revived, the said submission clarifies the position that
the order of punishment is having no effect in the future
prospects either in future increments or seniority of the
employee.
89. Therefore, this Court is of the view on the issue of quantum
of punishment also that when the charge with respect to the
observance of terms and conditions of the Contract has not
been followed and by taking into consideration the aforesaid
fact if the charge has been found to be proved said to be
partially by the enquiry officer, even accepting the said finding
of the enquiry officer, the imposition of punishment to the effect
that reduction of two stages lower for a period of six months in
time scale of pay without cumulative effect, cannot be said to be
disproportionate to the irregularity committed.
90. This Court, based upon the aforesaid discussion, is of the
view that the conclusion as has been arrived at by the learned
Single Judge by declining to interfere with the order of
punishment, therefore, requires no interference.
91. Accordingly, the instant appeal stands dismissed with the
observations made hereinabove.
92. In consequent to dismissal of the instant appeal, pending
interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree
(Navneet Kumar, J.)
(Navneet Kumar, J.)
Rohit/-A.F.R.
