High Court
Case Details
WP(C) 7096/2003 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV) By way of this petition under article 226 of the Constitution of India, petition er seeks quashing of order dated 16-06-2003 passed by the General Manager (P, C & F) of Cachar Paper Mill, Hindustan Paper Corporation Limited as the disciplina ry authority whereby the major penalty of removal from service was imposed on th e petitioner. 2. Facts of the case may be briefly noted. 3. Petitioner entered service in the Cachar Paper Mill of Hindustan Paper Corporation Limited (Corporation) as Field Assistant vide order dated 06- 10-1982. In the course of his service, he rose through the ranks and at the rele vant point of time, petitioner was serving as Senior Supervisor (Forest). A memorandum of charges dated 24-06-2002 issued by the General M 4. anager (P, C & F) of the Corporation was served on the petitioner whereby it was stated that an inquiry was proposed against the petitioner in terms of Rule 25 of the Hindustan Paper Corporation Conduct, Discipline and Appeal Rules (Rules) for committing misconduct, the substance of which was set out in the enclosed st atement of article of charge. Though the details of the charges will be delibera ted upon at a later stage of this judgment, at this stage, suffice it to say tha t the gist of the charges was that though he was posted at Taliamura (Tripura), petitioner visited Lailapur / Vairangte in Assam - Mizoram border on 07-04-2002 about 300 kms away from his place of posting without permission from the compete nt authority, where he changed the entry register pertaining to the supply of Mi zoram bamboo by the contractor M/S J.M. Saha in the check gate office of the Cor poration in a malafide manner, suppressing the fact of such change of entry regi ster from the competent authority. The article of charges was accompanied by the statement of imputation of misconduct in support of the charges and the list of documents on which the article of charges against the petitioner was framed. 5. Petitioner submitted his written statement dated 08-07-2002 stat ing that he had accompanied his controlling officer to Lailapur on 07-04-2002 on his instruction and copied the entries of the register of M/S J.M. Saha & Compa ny on a new register as per instruction of his controlling officer as the entrie s in the old register were not legible. His TA bill for the visit to Lailapur wa s settled by the authority. According to him, whatever he did was as per the dir ective of his controlling officer and he had no malafide intention to breach the code of conduct of the Corporation. 6. Not satisfied by the petitioner’s reply, the disciplinary author ity appointed an Enquiry Officer on 05-11-2002. The Enquiry Officer informed the petitioner vide letter dated 12-12-2002 that the enquiry would be held on 14-12 -2002 and asked him to be present on that day at the designated time and place f or the enquiry. Petitioner was further informed that he would be given full oppo rtunity to defend himself by examining his witnesses / producing evidence and al so to cross-examine the witnesses deposing against him.
Legal Reasoning
7. Accordingly, enquiry was held on 14-12-2012. In the enquiry, pet itioner admitted the charges but stated that whatever he had done was as per ins truction of his reporting officer Shri A.K. Bakshi, Deputy Manager (Forest). Sin ce the charges were admitted, the Enquiry Officer concluded the enquiry observin g that no further enquiry was needed. Thereafter, the Enquiry Officer submitted his report dated 30-04-2003 to the disciplinary authority holding that charges a gainst the petitioner stood proved and accordingly, he was found guilty of commi tting misconduct. The disciplinary authority furnished a copy of the enquiry repor 8. t to the petitioner and sought for his reply. Petitioner submitted a representat ion dated 23-05-2003 reiterating his stand that he had only carried out the orde rs of his superior authority Shri A.K. Bakshi while denying that he had committe d any misconduct. 9. Thereafter, the disciplinary authority passed the order dated 16 -06-2003 concurring with the findings of the Enquiry Officer and awarding the ma jor penalty of removal from service without being a disqualification for future employment under Rule 23 (f) of the Rules. 10. Against the above penalty, petitioner filed appeal before the ap pellate authority which was, however, rejected by the appellate authority vide t he order dated 17-07-2003, who confirmed the removal order passed by the discipl inary authority. 11. Aggrieved, petitioner has filed the present writ petition. 12. Petitioner has contended that he had only followed the orders of his superior authority and that cannot be construed to be an act of misconduct. His visit to Lailapur received the seal of official approval when he was paid h is TA bill for the said visit. While replacing the old register with a new regis ter as per order of his reporting officer Shri A.K. Bakshi, he had retained the old register. Petitioner did not commit any offence and there was also no clear charge against the petitioner. Petitioner was also not told by the Enquiry Offic er that he had a right to defence assistance which affected his defence. His sta tement, which was a qualified one, was misconstrued by the Enquiry Officer as an admission of guilt. The Enquiry Officer or for that matter the disciplinary aut hority or the appellate authority did not record any specific finding against ea ch of the charges. It is a case of no evidence. Therefore, impugned penalty as a ffirmed by the appellate authority is bad in law and is as such liable to be set aside. 13. Respondents have filed affidavit. Stand taken is that petitioner alongwith Shri A.K. Bakshi, Deputy Manager (Forest) and others had acted in a m anner prejudicial to the interest of the Corporation. Therefore, they were remov ed from the service of the Corporation after holding enquiry. According to the r espondents, it was observed for quite some time that some officials of the Corpo ration were involved in illegal activities in the procurement of bamboo by makin g false entries in the registers. Corporation conducted investigation at Lailapu r / Vairagte check gate which brought out deliberate lapses on the part of some officials who were found to be aiding and abetting the suppliers to bring bamboo from sources other than Mizoram to give them undue benefit. Allegations levelle d against the petitioner were based on an inspection (vigilance) report. The all egations in the memorandum of charges were supported by documents which were pro duced during the enquiry proceeding. Petitioner admitted the charges during the enquiry proceeding. Enquiry Officer found the allegations brought against the pe titioner to be based on records and which were admitted by the petitioner. Two o fficers and four staff were removed from service after holding departmental enqu iry. Petitioner changed the original entry register of bamboo movement of M/S J. M. Saha and made entries in a new register incorporating new particulars which w ere different from the particulars in the old register. The work of changing the register was carried out hurriedly during night time with the help of candle li ght, that too, by staff not posted at Lailapur / Vairagte check gate. The offici als had abetted the supplier in not bringing Mizoram bamboo through authorized L ailapur forest check gate but from somewhere else near the mill thereby allowing the supplier to make unlawful gain with malafide intention. Petitioner had comm itted misconduct within the meaning of the Rules and after a disciplinary procee ding, the penalty of removal from service was imposed on him by following the du e procedure. In the facts and circumstances of the case, the punishment cannot b e said to be disproportionate to the gravity of the offence so as to be shocking to the judicial conscience. 14. Mr. Dubey, learned Counsel for the petitioner submits that impos ition of the penalty of removal from service on the petitioner is grossly illega l and is liable to be quashed by this Court. Firstly, there was no misconduct by the petitioner. He had gone to Lailapur / Vairagte on orders of his superior au thority. As a disciplined employee, he changed the register at the check gate as the entries in the old register had become illegible. No clear charge was frame d against him. In the enquiry proceeding, he was not made aware of his right to have defence assistance. Consequently, he could not engage a defence assistant, which materially affected his defence. In the enquiry, his statement, which was a qualified one, was misconstrued as an admission of guilt. Enquiry Officer did not record any finding against each of the charges. Taking his statement as an a dmission of guilt, the Enquiry Officer erroneously held the charges against the petitioner to have been proved. The disciplinary authority failed to consider th is aspect of the matter. The order of the appellate authority is also not a rea soned one in as much as he also did not deal specifically with each of the charg es. In support of his submissions, learned Counsel for the petitioner places rel iance on the decision of the Hon’ble Supreme Court in the case of Roop Singh Neg i -Vs- Punjab National Bank reported in (2009) 2 SCC 570. 15. Opposing the submissions made by the learned Counsel for the pet itioner, Mr. J. Roy, learned Counsel for the respondents submits that petitioner did not raise any objection in his written statement that no charge could be fr amed against him or that he did not understand the charge. He submits that simil ar charges were levelled against Shri A.K. Bakshi and following a departmental p roceeding, the penalty of removal from service was also imposed on him. Shri A.K . Bakshi had filed a writ petition before this Hon’ble Court assailing his remov al from service, which was registered as W.P.(C) No.6559/2003. A Single Bench of this Court by the judgment and order dated 11-04-2006 dismissed the writ petiti on. The appeal filed by him, which was registered as Writ Appeal No.196/2006, wa s also dismissed by a Division Bench of this Court by the judgment and order dat ed 08-01-2010. He, therefore, submits that no interference is called for in the penalty imposed on the petitioner. Mr. Roy, learned Counsel for the respondents has placed reliance on the following decisions :- Additional District Magistrate(City), Agra -Vs- Prabhakar Chaturvedi and another (1) (1996) 2 SCC 12 (2) 2000 (3) GLT 62 Union of India -Vs- Mithilesh Singh Regional Manager, U.P. SRTC -Vs- Hoti Lal and another (3) (2003) 3 SCC 605 (4) (2005) 6 SCC 321 Canara Bank -Vs- V.K. Awasthy. In his brief reply, Mr. Dubey, learned Counsel for the petitione 16. r submits that the enquiry should have been confined to each of the charges, whi ch was not done in his case. Referring to the appellate order, he submits that t he appellate authority also failed to apply his mind dispassionately to the fact s of the case and did not record his findings against each of the charges. He ha s placed reliance on the following judgments:- (1) AIR 1957 SC 7 Laxmi Devi Sugar Mills Ltd. -Vs- Shri Nand Kishore Singh (2) (2009) 12 SCC 78 Union of India -Vs- Gyan Chand Chattar Commissioner of Police, Delhi and others -Vs- Jai Bhagwan. (3) (2011) 6 SCC 376 17. Submissions made have been considered. 18. ich reads as under :- At the outset, the charge against the petitioner may be seen, wh (cid:28)Shri Ashok Kr. Roy, SSF on 07-04-02 left his working place Taliamura (Tripura) and visited Lailapur / Vairangtee about 300 KM away for the place of his posting without permission from the Competent Authority. At Lailapur / Vairangtee Check Gate Office of HPC, CPM Shri Ashok Kr. Roy organized changing of the entry part iculars in the Entry Register pertaining to the supply of the Mizoram Bamboo by Contractor M/S J.M. Saha and recorded fresh entry particulars viz. Truck No., Da te, Challan No. TP No. etc. in a new Register on 07-04-02 in a malafide intentio n suppressing the facts of such change from the Competent Authority. Shri Ashok Kr. Roy, SSF has thereby failed to maintain absolute integrity and devotion to h is duty as envisaged in Rule 4(a) (i) and 4(a) (ii) of the CDA Rules. Shri Ashok Kr. Roy acted in a manner prejudicial to the interest of the Corporation. Shri Ashok Kr. Roy is therefore allegedly guilty for committing the following miscond ucts under HPC CDA Rules. Fraud & & 1. Acting in a manner prejudicial to the interest 2. 5 (i) 5 (vi) of the Corporation & &. 3. 4. 5. 6. 7. 8. Absence from the place of work without & &. 5 (xix) permission and without sufficient cause. Commission of any act subversive of discipline and good behavior & & 5 (xxi) Abetment & &.. Willful defacement or destruction of official 5 (xxii) 5 (xxxii) document &.. Suppression of facts &. Willful acts causing damage or loss to the Corporation & &.. (cid:29) 5 (xxxvi) 5 (xxxvii) 19. In the statement of imputation of misconduct in support of the a rticle of charges, it was stated that the petitioner in a clandestine manner org anized unauthorized change / defacement of original register containing records of bamboo supplier M/S J.M. Saha and made fresh entries in a new register incorp orating new particulars in connivance with Shri Biswajyoti Deb, Shri R. Vankal a nd Shri N. Naiding, suppressing the fact of such defacement of original records from the competent authority with malafide intention of illegally benefiting the bamboo supplier and causing loss to the Corporation. It was further stated that against the entry particulars of the aforesaid new register, signatures of the above three persons were obtained though petitioner himself deliberately omitted to put his signature because he was aware of the unauthorized and illegal statu s of the changed register. During the enquiry proceeding, the article of charges was read o 20. ver. The contents of the charges were explained to the petitioner in Bengali and the petitioner declared that he understood the contents of the charges. When he was asked as to whether he admitted or denied the charges, petitioner stated an d this is recorded in the minutes of the proceeding that he admitted the charges but stated that he had done it on the instruction of his reporting officer Shri A.K. Bakshi. On a further question put to him, petitioner stated that he did no t compare the two registers as there was insufficient light. The job had to be c arried out at night in candle light as there was no electricity. It may be perti nent to mention herein that petitioner had signed in the aforesaid proceedings o f enquiry. On the basis of the aforesaid, the Enquiry Officer recorded the 21. following finding :- (cid:28)Shri Ashok Kumar Roy has stated that whatever he has done was with the instruct ion of his Reporting Officer. It is also observed that refusal to do the legal o rders of the Superior officer / Reporting officer amounts to indiscipline which may lead to misconduct under the service rules. But since the work of changing t he Registers / copying the Registers was carried out hurriedly and that at night time with candle lighting and that too by the staff who are not posted at Laila pur / Vairangtee Check Gate Office, some connivance and malafide intention in it cannot be ruled out. Had it been necessary to change the records / Registers in the interest of the Corporation these should have been done by the staff posted in the Lailapur / Vairangtee check gate office and not by those staff posted in long distant places. In view of above admission of charges by Sri Ashok Kr. Roy, Sr. Supervisor (Fore st), the charges leveled against him vide Memorandum of Chargesheet issued under reference No. CPM/PER/E-I/803/984 dtd. 24-06-2002 stands proved and established and accordingly I hold him guilty of misconduct (cid:29). The disciplinary authority furnished a copy of the enquiry repor 22. t to the petitioner and after considering the representation submitted by the pe titioner on the findings of the Enquiry Officer, passed the impugned order dated 16-06-2003 awarding the major penalty of removal from service on the petitioner , without being a disqualification for future employment. As already noticed abo ve, the appeal filed by the petitioner was rejected by the appellate authority b y holding that the petitioner was given reasonable opportunity for defending him self and that the enquiry was fair and proper in which the charges were substant ially proved. 23. Rule 5 of the Rules deals with misconduct. Various acts of omiss ion and commission have been mentioned therein which would be treated as miscond uct. Theft, fraud or dishonesty in connection with the business or property of t he Corporation, acting in a manner prejudicial to the interest of the Corporatio n, absence from the appointed place of work without permission or sufficient cau se, commission of any act subversive of discipline or good behaviour, abetment o f or attempt at abetment of any act which amounts to misconduct, suppressing fac ts from the higher authority in relation to the business or affairs of the Corpo ration are some of the instances of misconduct under Rule 5. 24. From a perusal of the charges brought against the petitioner as proved in the enquiry, it is clear that the petitioner had mis-conducted himself . There was no reason for the petitioner to go to a far of place without the per mission of the competent authority and change official records there in the dead of night, that too, with the help of candle light without informing the local s taff stationed there. If any change was required at the Lailapur / Vairangte che ck gate, the same could have been taken up with the staff stationed there who wo uld have done the needful. This conduct of the petitioner is totally unbecoming of an officer of the Corporation and clearly construes misconduct within the mea ning of Rule 5 of the Rules. Contrary to what the learned Counsel for the petiti oner would like to contend that it is a case of no evidence, it is on the other hand a clear case where facts speak for themselves. 25. Petitioner’s contention that he as a sub-ordinate officer had ac ted as per instruction of his superior officer does not merit consideration as h e was not required to obey and carry out unlawful orders of his superior authori ty. He could have brought this fact to the notice of the higher authorities whic h he failed to do. Infact, as the facts reveal, petitioner was an active accompl ice in the above unlawful activities. Moreover, his superior authority was himse lf charged with misconduct in relation to the above incident. Following a depart mental proceeding, he was removed from service. His challenge to his removal fro m service was rejected by this Court, which was upheld in appeal. The contention advanced by the learned Counsel for the petitione 26. r that no specific findings were recorded against each of the charges was also g one into by this Court in the petition filed by Shri A.K. Bakshi and it was held that mere omission to record findings on each facet of the allegation in the fa ctual backdrop of the case will not vitiate the disciplinary proceeding. 27. The decisions relied upon at the bar deal with the general princ iples regarding the nature and scope of departmental proceeding. In the factual context of the present case, the Court is of the view that a detailed deliberati on on the judgments cited is considered not necessary. 28. In view of the discussions made above, the Court is not inclined to interfere with the penalty imposed on the petitioner, which is not dispropor tionate to the gravity of the misconduct so as to shock the conscience of the Co urt. Therefore, no interference is called for. 29. For the aforesaid reasons, this Court finds no merit in the writ petition, which is accordingly dismissed. 30. No cost.