Sushil Kumar Govil vs The Nuclear Powar Cor.And Anr
2023 Latest Caselaw 563 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13967/2015

Sushil Kumar Govil son of Shri Chandra Mohan Govil, aged about 52 years, resident of T-3/34-K, Anupratap Colony, P.O. Bhabhanagar, Rawatbhata, District Chittorgarh (Raj.).

----Petitioner Versus

1. The Nuclear Power Corporation of India Limited (A Government of India Enterprise), Rawatbhata Rajasthan Site, PO Anushakti, District Chittorgarh (Raj.) through its Site Director.

2. The Operation Superintendent, RR Site-7 & 8, NPCIL, PO Anushakti, Rawatbhata, District Chittorgarh (Raj.).

                                                                     ----Respondents


For Petitioner(s)            :     Mr. Vinay Jain with Mr. Darshan Jain
For Respondent(s)            :     Mr. Sanjay Nahar
                                   Mr. Pushkar Taimni


               HON'BLE MS. JUSTICE REKHA BORANA
                                       Order

13th January, 2023

The present writ petition has been filed being aggrieved of

the suspension order dated 19.02.2015 (Annexure-2) and the

memorandum of charges (charge-sheet) dated 09.04.2015

(Annexure-4) whereby the disciplinary proceedings have been

initiated against the petitioner.

The brief facts of the case are as under :

The petitioner who was working as Technician/G with the

respondent-Nuclear Power Corporation of India ('the Corporation')

was assigned the additional duty of one co-employee namely

Mr. R.C. Lohar from 1500 hrs to 2300 hrs (3.00 PM to 11.00 PM)

on 29.11.2014. The said additional duty was to be continued with

(2 of 8) [CW-13967/2015]

his regular duty from 2300 hrs to 0700 hrs (11.00 PM to 07.00

AM). Meaning thereby, after the continuous duty from 3.00 PM of

29.11.2014 to 07.00 AM of 30.11.2014, he was relieved at 07.00

AM of 30.11.2014.

The dispute arose when vide communication dated

09.02.2015, it was communicated to the petitioner that during the

period of his additional duty, without any information, he left the

plant site from 1905 hrs to 2126 hrs (7.05 PM to 9.26 PM). In

pursuance to the said information, vide order dated 19.02.2015,

the Site Director placed the petitioner under suspension in terms

of Order 20.1 & 20.1(a) of the Rawatbhata Rajasthan Site (NPCIL)

Standing Orders (hereinafter referred to as 'the Standing Orders').

Thereafter, the memorandum of charges dated 09.04.2015 was

served upon the petitioner vide which the disciplinary proceedings

were also initiated against him. The charges as levelled against

the petitioner were firstly, that he abandoned his staff duty

without information/permission and secondly, that he used the

card of other employee Mr. Vipin Garg, who was on leave on that

day for the said purpose. It was alleged that the said actions of

the petitioner fall in the category of 'misconduct' in terms of Order

17.2 & 17.7 of the Standing Orders.

During the suspension period the petitioner was allowed

subsistence allowance @ 50% and is being paid at the same rate

till date. The said grant of subsistence allowance @ 50% is also

under challenge in the present petition on the ground that the

same ought to have been increased @ 75% in terms of the

Standing Orders.

In response to the memorandum of charges, the petitioner,

vide communication dated 21.09.2015, prayed for dropping of the

(3 of 8) [CW-13967/2015]

inquiry proceedings initiated against him with the submission that

the charge-sheet issued by the Site Director in the capacity of the

disciplinary authority is totally illegal in terms of Order 22 of the

Standing Orders as no notification, notifying the disciplinary

authority and the appellate authority had been issued by the

respondent-Corporation. In absence of any notification notifying

the competent authorities, the complete disciplinary proceedings

stood vitiated. The said objection of the petitioner was nullified by

the respondents-authorities and therefore, the present petition

has been preferred.

Learned counsel appearing for the petitioner submitted that

once the Standing Orders dated 31.08.2012 were certified and

adopted by the respondent-Corporation, the same were binding on

the Corporation and all the proceedings subsequent to the said

date were to be governed by the said Standing Orders only. He

further submitted that Order 22 of the Standing Orders specifically

provides for notification of the authorities competent to impose

various penalties mentioned in the Standing Orders. No

notification in pursuance to Order 22 was ever issued by the

respondent-Corporation and therefore, the appellate authority as

well as the revisional authority were never notified. In absence of

any such notification, the petitioner was deprived of his right of

appeal as in his case, the order of suspension was issued by the

Site Director himself who is the highest authority of the plant. The

Site Director is neither the appointing authority nor the

disciplinary authority in terms of the Standing Orders. It is the

Station Director who is the appointing as well as disciplinary

authority for all Group B posts. Therefore, the order of suspension

passed by the Site Director himself is not in conformity with the

(4 of 8) [CW-13967/2015]

Rules/Orders governing the employees. The order of suspension

itself having been passed by the Site Director who ought to be the

appellate authority, the right to appeal, if any, of the petitioner

has been taken away.

It has further been submitted that in terms of the Standing

Orders the revisional authority was also required to be notified

and it is also the mandatory requirement that such authority shall

be higher in rank than the appellate authority. The only authority

available, higher in rank to the Site Director, is the Chairman & the

Managing Director. Therefore, if it is presumed that the Chairman

& the Managing Director would be the appellate authority, then

definitely the right of revision would not be available to the

petitioner. Meaning thereby, the right to appeal/revision of the

petitioner is being jeopardised and therefore, the impugned order

of suspension passed by the Site Director being wholly invalid,

deserves to be quashed.

One more ground been raised by learned counsel is that the

memorandum of charges has also been issued by the Site Director

who, in any manner, cannot be the Disciplinary Authority so far

the Group B employees are concerned. In support of his

contentions, learned counsel for the petitioner relied upon the

judgments passed by Hon'ble Apex Court in the matters of Union

of India (UOI) and Ors. Vs. B.V. Gopinath and Ors. (AIR

2014 SC 88); Surjit Ghosh Vs. Chairman and Managing

Director, United Commercial Bank and Ors. (AIR 1995 SC

1053) and Vaidhya Dev Shankar Sharma Vs. State of

Rajasthan and Ors. (AIR 1966 SC 81).

Per contra, learned counsel appearing for the respondents

submitted that the order of suspension issued by the Site Director

(5 of 8) [CW-13967/2015]

would not in any manner prejudice the rights of the petitioner.

Learned counsel submitted that prior to notification of the

Standing Orders on 31.08.2012, the disciplinary proceedings were

governed by the order dated 21.08.2007 issued by the competent

authority. In terms of the order dated 21.08.2007, the initiation of

the disciplinary proceedings against the petitioner and

appointment of the Enquiry Officer are in conformity with the

prevailing law at the relevant time. He further submitted that

subsequently even the Standing Orders have been duly

notified/certified vide notification dated 26.07.2016 which

specifically provides for the Director (Technical) to be the appellate

authority and therefore, the petitioner would not be deprived of

his right of appeal. So far as the subsistence allowance is

concerned, learned counsel submitted that the suspension of the

petitioner was reviewed from time to time before expiry of 90

days and it is only on recommendation of the Suspension Review

Committee that his suspension was extended further with the

same subsistence allowance. In support of his submissions,

learned counsel for the respondents relied upon the judgments

passed by Hon'ble Apex Court in the matters of A. Sudhakar Vs.

Post Master General, Hyderabad and Ors. (2006 4 SCC 348)

and Secretary, Ministry of Defence and Ors. Vs. Prabhash

Chandra Mirdha (AIR 2012 SC 2250).

In line with the above mentioned facts and averments, the

following questions of law arise for consideration of this Court:

(i) Whether the Site Director was competent to issue order of

suspension and memorandum of charges qua the petitioner ?

(6 of 8) [CW-13967/2015]

(ii) Whether because of the order of suspension/penalty

order having been passed/imposed by the Site Director, the

petitioner would be deprived of his right to appeal/review ?

Heard learned counsel for the parties and perused the

material available on record.

It is an admitted position on record that on the date of

passing of the impugned order dated 19.02.2015 whereby the

petitioner was placed under suspension, the notification certifying

the authorities competent to impose penalties in terms of the

Standing Orders was not notified by the respondent-Corporation.

Meaning thereby, the disciplinary authority as well as the appellate

and the revisional authorities were not notified in terms of the

Standing Orders. In the opinion of this Court, it was a clear

violation of the Standing Orders governing the parties. Admittedly,

the notification in terms of Order 22 was issued on 22.07.2016

and a perusal of the said notification clarifies that the appointing

authority for all Group B posts would be the Station

Director/Project Director, authority competent to impose all

penalties would be the Station Director/Project Director, the

appellate authority would be the Site Director and the revisional

authority would be the Chairman & the Managing Director.

Meaning thereby, even if the notification dated 26.07.2016 is

given a retrospective effect, the appellate authority, even in terms

of the Standing Orders, would be the Site Director. Admittedly, in

the present matter the penalty has been imposed by the Site

Director himself whereas the officer authorised to impose penalty

was the Station Director/Project Director. Therefore, it is clear on

record that there was no authority available to whom an appeal

could have been preferred by the petitioner. Even if it is assumed

(7 of 8) [CW-13967/2015]

that the next higher officer i.e. the Chairman & Managing Director

would be the appellate authority, then admittedly, the right of

revision would automatically go as no authority higher than the

Chairman & the Managing Director is available even in terms of

notification dated 27.07.2016.

In Prabhash Chandra Mirdha's case (supra), the Hon'ble

Apex Court, while dealing with a similar situation, held that the

authority higher than appointing authority may initiate the

disciplinary proceedings and impose punishment but then if it is

proved that prejudice has been caused to the delinquent or right

of appeal of the delinquent is lost, the order of punishment would

definitely not survive. In Surjit Ghosh's case (supra), the

Hon'ble Apex Court specifically held that in absence of any

guidelines or the transmission of power to the higher authority to

exercise the power of disciplinary authority, order of

dismissal/punishment passed by the higher authority would

definitely be termed to be bad in law.

In the present case, it is clear on record firstly, that the Site

Director was neither the appointing authority nor competent to

impose punishment. It was only the Station Director/Project

Director who could have done so. Secondly, the Site Director was

the notified appellate authority and the order of suspension itself

having been passed by him, the right of appeal of the petitioner

was definitely prejudiced. Thirdly, in terms of the Standing

Orders, the Chairman & the Managing Director was the highest

authority available and even if it is presumed that an appeal may

be preferred before him then right of revision will definitely be

lost. Meaning thereby, by all means, the rights of the petitioner

were prejudiced.

(8 of 8) [CW-13967/2015]

Therefore, in view of the above observations, the present

writ petition is allowed. The order impugned dated 19.02.2015

being totally in contravention of law as well as the Standing

Orders governing the parties, the same cannot be sustained and is

hereby quashed and set aside. As a consequence, the charge-

sheet served through a memorandum dated 09.04.2015 also

being issued by an incompetent authority is quashed and set

aside. The petitioner is directed to be reinstated forthwith and

would be entitled to all the consequential benefits arising out of

the present order.

The stay petition and all the pending applications also stand

disposed of.

(REKHA BORANA),J 82-Vij/-

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