Shri. Pinaki Das vs . North Eastern Electric Power
2022 Latest Caselaw 704 Meg

Serial No. 04
Supplementary List
                            HIGH COURT OF MEGHALAYA
                                  AT SHILLONG

  WP(C) No. 326 of 2022                               Date of Decision: 01.12.2022


  Shri. Pinaki Das                      Vs.         North Eastern Electric Power
                                                    Corporation Ltd. & 7 Ors.

  Coram:
                         Hon'ble Mr. Justice H. S. Thangkhiew, Judge


  Appearance:
  For the Petitioner/Appellant(s) :           Mr. H.L. Shangreiso, Sr. Adv. with
                                              Mr. A. Syiem, Adv.

  For the Respondent(s)             :         Mr. V.K. Jindal, Sr. Adv. with

Mr. V. Kumar, Adv.

  i)         Whether approved for reporting in                  Yes/No
             Law journals etc.:

  ii)        Whether approved for publication
             in press:                                          Yes/No

                            JUDGMENT AND ORDER

1. The writ petitioner being aggrieved with the appointment of an

Inquiry Officer from outside the respondent Corporation, to inquire into

the charges framed against the petitioner, on the ground that, the

Conduct, Discipline and Appeal Rules (CDA Rules) does not provide for

the same, seeks a mandamus to set aside the said appointment, as also

the pending disciplinary proceedings against the petitioner.

2. The petitioner who is serving as an Assistant Accounts Officer

in the respondent Corporation, it is alleged, had shown unruly and rude

behaviour towards his Superior Officer, for which disciplinary

proceedings had been drawn up against him, as per the CDA Rules,

whereafter, a Memorandum of Charges and Statement of Imputation of

Misconduct dated 06.10.2021 was served upon him. Prior to the

institution of departmental proceedings, the respondent Corporation on

the said allegation had on 12.05.2021, appointed a one man inquiry,

which was conducted by a Director (Technical) who had given a report

to the disciplinary authority, which went against the petitioner. As it

appeared that, he was not given adequate opportunity, another inquiry

committee comprising of 3 Executive Directors, to ascertain the

culpability of the petitioner was constituted. On the basis of the report of

the inquiry team, the aforementioned Memorandum of Charges was

issued.

3. The petitioner thereafter, gave a detailed reply to the

disciplinary authority denying of charges, but however, after a gap of 9

(nine) months, vide office order No. 162 dated 12.07.2022, another

Inquiry Officer namely Shri. Pradip Pujari, Retired Superintendent of

Police, Assam, was appointed. The petitioner by his own statements,

cooperated with the said inquiry, but it appears on coming to learn that

the earlier inquiry report submitted by the Inquiry team, was biased and

prepared in haste and further that, the CDA Rules stipulated that an

Officer to conduct a disciplinary inquiry against the employees of the

Corporation should be appointed from amongst the officers of

Corporation, then raised objections before the respondents. The

objection of the petitioner was based on Rule 29.2, which provided that

a disciplinary authority, may itself inquire, or appoint any officers of

Corporation to conduct the inquiry. The petitioner therefore, resisted the

continuation of the disciplinary proceedings, by maintaining that the

Inquiry Officer not being an employee of the Corporation, was

incompetent and lacked jurisdiction.

4. The petitioner after taking the above noted ground, did not

cooperate any further and did not attend the subsequent hearings that

were fixed before the Inquiry Officer. It has also been contended by the

petitioner that, the earlier inquiry report submitted by the inquiry team,

being illegal, in view of the revelation of one of its members, that the

same was arrived at, under duress and intimidation, the entire

proceedings were vitiated.

5. Mr. H.L. Shangreiso, learned Senior counsel assisted by Mr. A.

Syiem, learned counsel for the petitioner submits that the entire

proceedings are vitiated on two grounds, firstly, that the inquiry gone

into by the three member committee of Executive Directors, which

recommended disciplinary action against the petitioner stood disabled by

the admission of one of the members, that the same was a contrived

report and secondly that, the present inquiry being on the basis of the

finding of the biased report and that too being conducted in violation of

the CDA Rules, the entire disciplinary proceedings were liable to be

annulled.

6. The learned Senior counsel submits that the respondent

Corporation cannot deviate from Rule 29.2 of the CDA Rules, which

provides for appointment of officer only from the Corporation itself to

be appointed as Inquiry Officer, and in support thereof, has placed

reliance on the following cases;

i) State of Punjab vs. Bandeep Singh and Others (2016) 1

SCC 724

ii) Bhavnagar University vs. Palitana Sugar Mill (P) Ltd.

and Others (2003) 2 SCC 111.

7. Mr. V.K. Jindal, learned Senior counsel assisted by Mr. V.

Kumar, learned counsel for the respondent Corporation, on the point of

the exercise of powers by the respondent Corporation through the CMD,

with regard to the appointment of an Inquiry Officer from outside the

Corporation, has submitted that, on the allegations against the petitioner,

initially a Director (Technical) NEEPCO, was appointed, who in his

report dated 20.05.2021, opined that a detailed inquiry was necessary,

which led to the constitution of a three member committee of Executive

Directors, to inquire the details. However, he submits, one of the

members, after the report had been submitted, vide his letter dated

01.08.2022, reported to the Director (Personnel) that the Committee was

under external pressure, and that the same was submitted in haste and in

a biased manner, which then led to the appointment of Shri. Pradip

Pujari, Retired Superintendent of Police, as Inquiry Officer, to arrive at

a fair and impartial decision.

8. The learned Senior counsel submits that Rule 29.2 of the CDA

Rules, empowers the CMD, to inquire into the truth of any imputation of

misconduct or misbehaviour against an employee, either by himself or to

appoint any officer of the Corporation. It is further submitted that, the

Department of Public Enterprise, Government of India, had issued an

Office Memorandum dated 26.04.1974, with a model set of CDA Rules,

which were issued to the concerned ministries and departments for

adoption. Later he submits, these Rules were consolidated and a

Consolidated Model Conduct, Discipline and Appeal (CDA) Rules, for

CPSE's-2007, was issued by the Department of Public Enterprise on

11.12.2017. The learned Senior counsel then refers to Rules 25.2 of the

Rules, where he submits gives the liberty to the disciplinary authority to

appoint any Inquiry Authority to inquire into the truth thereof, and that

the respondent Corporation being a Government company, is duty bound

to follow these guidelines, which are issued from time to time. These

guidelines, he submits are squarely applicable to the respondent

Corporation. To illustrate this point, that the respondent Corporation has

been appointing serving or retired officers of other organization, as

Inquiry Officers, the learned Senior counsel has referred to office orders

annexed to the affidavit and marked as Annexure - B series. The learned

Senior counsel lastly submits, that these guidelines issued by the

Department of Public Enterprise, are to be complied with by all Central

Public Sector Enterprises (CPSE) and has produced a Office

Memorandum dated 29.07.2010, to support this contention.

9. I have heard learned counsels for the parties. After considering

the submissions advanced by both sides, the only point that arises for

adjudication is whether, the impugned order appointing Shri. Pradip

Pujari, Retired Superintendent of Police, as the Inquiry Officer is within

the jurisdiction of the disciplinary authority of the respondent

Corporation under the CDA Rules. A brief reprisal of the circumstances,

that have led to the appointment of an Inquiry Officer, who is not an

employee of the respondent Corporation, is that, the initial one man

inquiry was found to be inadequate, and a three man inquiry committee

was then constituted to conduct the inquiry, which also furnished a report

that has been disregarded, in view of the stated biasness of the same.

10. The CDA Rules of the NEEPCO, at Rule 29.2, has provided as

follows.

"29.2. Whenever the disciplinary authority is of the opinion that there are grounds for inquiry into the truth of any imputation of misconduct or misbehavior against an employee, it may itself enquire into, or appoint any officer of the Corporation (hereinafter called the Enquiring Authority) to enquire into the truth thereof."

A plain reading of this rule, stipulates that the disciplinary

authority if not conducting the inquiry itself, is permitted to only appoint

an officer of the Corporation itself.

11. An examination of the guidelines, which had been referred to

by the learned Senior counsel for the respondent Corporation, that is, the

Consolidated Model Conduct, Discipline and Appeal (CDA) Rules, for

CPSE's-2017, under the covering letter dated 11.12.2017, clearly speaks

that the model rules have been forwarded to the respective CPSE's for

adoption, while framing their CDA Rules. However nowhere, in the

CDA Rules of NEEPCO, does the provision 25.2, the content or purport

thereof, are seen to have been incorporated in any manner. The argument

therefore, that the model rules are mandatorily to be followed by the

respondent Corporation, does not hold any water. Further, a perusal of

the Annexure - B series, office orders annexed to the affidavit, all speak

only of exercise of powers under Rule 29.2, of the CDA Rules,

NEEPCO, and there is no mention, that the model rules had been

implemented in the appointment of persons from outside the

Corporation, as Inquiry Officers.

12. Though, it is healthy, to have Inquiry Officers, who are

independent and not an employee, or a member of the concerned

organization, as it will be in furtherance of neutral and impartial

proceedings, however, by operation of Rule 29.2 of the CDA Rules,

NEEPCO, and the non-incorporation of the model guidelines, this option

is not available to the respondent Corporation. It is well settled, that when

an authority is required to do a thing in a certain or particular manner, as

has been laid down by Rule 29.2 of the CDA Rules, NEEPCO, the same

must be done in that manner or not at all. The respondent Corporation in

the instant case, therefore, can be said to have deviated from Rule 29.2

of the CDA Rules of NEEPCO, in appointing an Inquiry Officer from

outside the Corporation.

13. The inquiries and events that have happened, prior to the

present impugned proceedings, emanating from the order dated

12.07.2022, being of no further consequence, no longer deserve any

consideration in arriving at a conclusion to decide this matter.

Accordingly, the impugned Office Order No. 162 dated 12.07.2022, as

far as it concerns, the appointment of Shri. Pradip Pujari, Retired

Superintendent of Police, is held to be beyond the scope of the powers

of the disciplinary authority of the respondent Corporation, and is

accordingly set aside. Consequently, the proceedings are also held to be

without jurisdiction. The respondent Corporation/disciplinary authority

is however, at liberty to restart the disciplinary proceedings on the

appointment of a new Inquiry Officer, in accordance with the rules.

14. For the reasons aforementioned, this writ petition is allowed, to

the extent indicated above and stands disposed of.

Judge Meghalaya 01.12.2022 "D.Thabah-PS"