Madras High Court
R.Senthilkumar vs The General Manager (Drilling) on 19 September, 2014
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2014
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P.No.42597 of 2002
R.Senthilkumar ... Petitioner
vs.
1. The General Manager (Drilling),
Oil and Natural Gas Corporation Ltd.,
Cauvery Project, Neravy, Karaikal.
2. The Group General Manager,
Oil and Natural Gas Corporation Ltd.,
Cauvery Project, Neravy, Karaikal.
3. The Deputy General Manager,
Oil and Natural Gas Corporation Ltd.,
Cauvery Project, Neravy, Karaikal. ... Respondents
Writ petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the proceedings No.SRBC/MAS/1(15)/89, dated 12.08.2002, on the file of the 2nd respondent, confirming the order of dismissal of the petitioner from service in proceedings No.KKL/CR/Estt/RM(D)/99/215, dated 31.08.2000, on the file of the 1st respondent, quash the same and direct the respondents to allow him to join duty and sanction consequential service benefits, including payment of arrears of salary.
For Petitioner : Mr.S.Sadasharam
For Respondents : Mr.G.Masilamani,
Senior Counsel
for Mr.K.Shanmugakani
O R D E R
The petitioner has sought for a Writ of Certiorarified Mandamus, to quash the proceedings No.SRBC/MAS/1(15)/89, dated 12.08.2002, on the file of the Group General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal, 2nd respondent, confirming the order of dismissal from service in proceedings No.KKL/CR/Estt/RM(D)/99/215, dated 31.08.2000, on the file of the General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal, 1st respondent herein and consequently, prayed for a direction to the respondents to allow him to join duty and sanction consequential service benefits, including payment of arrears of salary.
2. According to the petitioner, he was an employee of Oil and Natural Gas Corporation Ltd., (in short "ONGC"). He applied for leave for two days from 25.11.1998 and on 27.11.1998. He has issued a telegram to the General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal, 1st respondent herein, stating that he was not well and requested for extension of leave for one week and that there was no communication, as to whether, leave was extended or not. Therefore, he was under the bona fide impression that leave was sanctioned and extended. Unfortunately, illness continued and there was mental depression. He took treatment from 27.11.1998 to 25.09.2001 and during the interregnum period, the first respondent initiated disciplinary proceedings and dismissed the petitioner from service on 31.08.2000. Though he received the communication about the disciplinary proceedings, he could not act immediately. After getting a fitness certificate from a Psychiatrist, by name Dr.V.S.P.Bashyam, Senior Professor and Head of the Department, Chennai Medical College (Retd., he submitted a representation, dated 26.09.2001, to the 2nd respondent herein, marking a copy to the General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal, 1st respondent herein, to the effect that he was not keeping good health. He also met the Group General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal, 2nd respondent herein, in person and submitted the Medical Certificate, issued by the abovesaid Doctor. Since no favourable orders were passed, he made another representation, dated 06.10.2001. As there was no response, he caused a lawyer's notice, dated 21.12.2001, to consider his representations, dated 26.09.2001 and 06.10.2001 and revoke the order of dismissal from service. In response to the same, the Deputy General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal, 3rd respondent herein, sent a letter, dated 03.01.2002, to the petitioner's counsel, stating that the request for revocation had already been rejected on 11.12.2001. Though a copy of the letter, dated 11.12.2001 was also enclosed in the letter, dated 03.01.2002, the same was not communicated to the petitioner. Therefore, he filed W.P.No.24022 of 2002, challenging the order of dismissal from service. This Court, by order, dated 05.07.2002, disposed of the petition, with a direction to the petitioner, to prefer a regular appeal before the Group General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal, 2nd respondent herein and that the 2nd respondent was also directed to dispose of the appeal, after giving opportunity of being heard. Accordingly, an appeal was filed before the 2nd respondent on 26.07.2002. The appellate authority, vide order, dated 12.08.2002, has rejected the appeal. Aggrieved by the same, the petitioner has filed this writ petition, for the relief, as stated supra.
3. Assailing the correctness of the orders, impugned in this writ petition, Mr.Sadasharam, learned counsel for the petitioner submitted that the respondents have failed to consider that for mental depression and illness, the petitioner could not join duty and for the same reason, he could not participate in the enquiry proceedings. His absence was bona fide. Treatment and medical certificate given by Dr.V.S.P.Bashyam, Senior Professor and Head of the Department, Chennai Medical College (Retd.,), has not been considered in proper perspective. It was not the case of the department that the petitioner had unauthorisedly absented from service. Even taking it for granted that the petitioner had absented for a considerable period, the respondents ought to have imposed a lesser penalty, than dismissing him from service. But for the mental depression and sickness suffered, the petitioner would have joined duty. Inviting the attention of this Court to the procedure to be followed, while imposing major penalties, procedural violation has been alleged.
4. The Deputy Manager (Human Resources), Oil and Natural Gas Corporation, Cauvery Asset, Karaikal, 3rd respondent herein, has filed a detailed counter affidavit. Reiterating the same, G.Masilamani, learned Senior Counsel, submitted that the petitioner has joined the services with ONGC on 15.09.1989. He denied the contention that the petitioner had applied for leave for two days from 25.11.1998 to 27.11.1998 and issued a telegram to the 1st respondent. According to him, the petitioner produced a Medical Certificate, issued by one Dr.V.S.P.Bashyam, stating that he was suffering from acute depression from 27.11.1998 and subsequently, had gone into depression fugitive state and chronic depression and thus, was not attending the work.
5. Learned Senior Counsel further submitted that earlier on 19.01.1999, the petitioner has sent a telegram, requesting for leave, upto 25.01.1999 and thereafter, sent telegrams on various days, viz., 27.01.1999, 02.02.1999, 09.02.1999 and 05.05.1999, for extension of leave. After that, the petitioner stopped sending telegrams/leave applications nor joined duty and remained absent, unauthorisedly. Therefore, he submitted that the period for which, the petitioner had been requesting for leave, did not cover his entire period of absence.
6. Learned Senior Counsel for the respondents further submitted that though the petitioner has acknowledged the communications sent by the respondents, from time to time, he has not responded to the same, but quite contrary to the same, produced a Certificate of Dr.V.S.P.Bashyam, which reads as follows, "Mr.Senthilkumar, Rigman (Drilling) was suffering from Acute Depression from 27.11.1998 and subsequently, he has gone into depression fugitive state and chronic depression and was not attending to his work. He was not attending to personal needs and not eating. On treatment he has improved and is fit to attend to his duties from 26.09.2001.".
7. Learned Senior Counsel for the respondents further submitted that the petitioner was unauthorisedly absent from 27.11.1998 to 31.08.2000, ie., 642 days. An intimation was given to the petitioner, by a telegram on 18.01.1999 and he was advised to report for duty immediately, failing which, action would be taken against him. The petitioner neither sent a reply, nor submitted any leave application. Subsequently, a memorandum was sent to him on 03.08.1999, intimating him that he had committed gross misconduct of unauthorised absence from 27.11.1998. Though the petitioner was also given an opportunity to submit a written statement of his defence, within 10 days, from the date of receipt of the notice, there was no reply. Therefore, the Enquiry was constrained to conduct an exparte departmental enquiry. The said fact was also communicated to the petitioner on 03.11.1999.
8. Learned Senior Counsel for the respondents further submitted that though the petitioner received the enquiry notice, dated 04.11.1999, wherein, intimation was given about the disciplinary proceedings, he has failed to present himself, for the enquiry on 18.11.1999. The petitioner was also intimated that the enquiry would be conducted and completed in his absence and that a report would be submitted to the Management, on the basis of records and evidence available. Against the said communication, the petitioner issued a telegram on 17.11.99, which was received on 18.11.1999, stating that, "Self not well all details and record submit on 22.11.1999. Kind information." The petitioner did not appear on 22.11.1999 also. Hence, the Enquiry Officer conducted the enquiry and based on the materials available on record, submitted a report. Based on the enquiry report and on consideration of the past record of service, the Competent authority has passed an order of dismissal on 31.08.2000. Learned Senior Counsel further submitted that though the petitioner has been given sufficient opportunity, he has failed to avail the same and thus, has failed to avail the opportunity, by not responding to the enquiry notices and in such circumstances, there is no violation of principles of natural justice. According to him, there is a waiver, on the part of the petitioner. He prayed for dismissal of the writ petition.
9. Both the learned counsel appearing for the parties relied on many decisions, which are dealt with in the latter portion of this judgment.
10. Heard the learned counsel for the parties and perused the materials available on record.
11. Statement of imputation of misconduct or misbehaviour in support of Articles of Charge framed against the petitioner is as follows:
STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOR IN SUPPORT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI.R.SENTHILKUMAR, RIGMAN (D), ONGC, CAUVERY PROJECT Shri.R.Senthilkumar, Rigman(D), CPF.No.77535, has remained on unauthorised absent with effect from 27.11.98. He was asked vide this Office message, dated 18.01.99, to report for duty immediately failing which action would be taken against him. However, Shri.Senthilkumar, has not reported for duty.
The past record of Shri Senthilkumar indicate that on many occasions he was irregular in attendance, negligence of duty, wilful and habitual absence from duty, absence without leave, overstaying the sanctioned leave without sufficient cause and absence from the appointed place of work without permission or sufficient cause. In the past, he was issued so many communications for his unauthorised absence on various occasions and he was advised to be careful in future in his own interest vide memo, dated 04.11.98, 22.09.98, 26.02.98, 06.02.98, 13.12.97, 24.01.97, 10/11.02.97, etc., Thus, Shri.R.Senthilkumar failed to maintain devotion to duty and did acts unbecoming of an employee of the Corporation, thereby rendered himself liable for disciplinary action under the provisions mentioned at Sl.No.5 of the Schedule II Rule 3(j) readwith Rule 4(1)(b) and (c) of the ONGC CDA Rules, 1994.
ARTICLES OF CHARGE FRAMED AGAINST SHRI.R.SENTHILKUMAR, RIGMAN (D), ONGC, CAUVERY PROJECT Shri.R.Senthilkumar, Rigman(D), CPF.No.77535, has committed misconduct inasmuch as he has been absenting from duty unauthorisedly with effect from 27.11.98. Inspite of his advise in writing to report for duty Shri Senthilkumar has failed to join duty.
Thus, Shri.R.Senthilkumar failed to maintain devotion to duty and did acts unbecoming of an employee of the Corporation, thereby rendered himself liable for disciplinary action under the provisions mentioned at Sl.No.5 of the Schedule II Rule 3(j) readwith Rule 4(1)(b) and (c) of the ONGC CDA Rules, 1994.
12. The respondents in the typed set of papers have filed documents to show that earlier in the years, 1995, 1996, 1997 and 1998, the petitioner has availed leave unauthorisedly and thereafter, sought for regularisation of his absence. Material on record discloses that his absence in the year 1995, has been regularised, taking a lenient view. Office Memorandum, dated 24.01.1997, has been given, as to why, action should not be taken against the petitioner, under Rule 14(5) of the Leave Rules, 1995, for his absence from duty from 02.10.1996. Considering the reply, dated 30.01.1997, that he was suffering from illness, a lenient view has been taken and once again, absence has been treated as leave. On 13.12.1997, a Memo, has once again been issued to the petitioner that he has not improved his attendance, for which, the petitioner has given a reply, dated 14.12.1997, stating that due to the accident, he was bedridden.
13. On 06.02.1998, the Deputy General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal, 3rd respondent, has issued a Memoranum, as to why, action should not be taken for his unauthorised absence, for which, the petitioner has submitted an explanation on 10.02.1998, which is as follows:
"2. In this regard, I would like to state the period for which I had worked and the off period. During my duty period 03.09.1997 to 16.09.1997, I had performed my duty on 06.09.1997, 10.09.1997, 11.09.1997, 12.09.1997, 13.09.1997, 14.09.1997, 15.09.1997 and 16.09.1997. I had availed Earned Leave/Casual Leave on 04.09.1997, 05.09.1997, 07.09.1997, 08.09.1997. Thus, I worked for 7 days and I am entitled to 7 days off from 17.09.1997 to 24.09.1997 is my off period.
3. Even on 16.09.1997, I submitted an application for leave for 10 days to attend my domestic works from 25.09.1997, ie., from 25.09.1997 to 05.10.1997. My application is available in the Office.
4. On 04.10.1997, I gave a telegram to extend my leave for a further period of one week as I had not completed my works.
Unfortunately, I met with an accident on 05.10.1997 and I had undergone treatment for period of two months. Hence, I could not inform the office about my inability. I had joined duty on 14.12.1997 and I had explained my position with relevant records.
5. I submit I have properly applied for leave and for extension of leave till I met with an accident on 05.10.1997. Therefore, the period in which I was hospitalised may kindly be condoned and my absence may be regularised by granting leave. My leave period has not extended 89 days.
6. I further request my explanations may kindly be accepted and further proceedings may be dropped."
14. Subsequently, on 22.09.1998, a memorandum has been issued to the petitioner, which reads as follows:
"Sri.R.Senthilkumar, Rigman (D), has been absenting from duty unauthorisedly w.e.f. 1.9.98. His previous spells of long absence from duty were regularised taking a lenient view.
From the following long spells of absence, regularised as leave subsequently, it is noted with concern that Sri.Senthil Kumar, has been in the habit of remaining on unauthorised absence and his contribution towards work is very poor and he is not much concerned in continuing his services with ONGC.
1. 09.08.1995 to 12.12.1995 - 126 Days
2. 02.10.1996 to 29.01.1997 - 120 Days
3. 17.09.1997 to 16.01.1998 - 120 Days Since all the efforts made to bring improvement upon his attendance and work became futile, a serious view has been taken, Sri.Senthilkumar is hereby given final opportunity to explain the reasons for his such behaviour and why disciplinary action should not be initiated against him.
His explanation should reach this Office within 7 days from the date of receipt of this communication failing which action as deemed fit will be initiated against him without any further notice."
15. From the above, it could be deduced that the absence for the years from 1995 to 1997, ie., the three different spells, have been regularised as leave. In the Memorandum, dated 22.09.1998, a reference has also been made that the petitioner has absented from duty from 01.09.1998 and called upon to explain, as to why, disciplinary proceedings should not be taken against him. The 3rd respondent in the above Memorandum, has observed that all the efforts made to bring improvement in the attendance and work of the petitioner, has become futile.
16. Subsequently, there is another memorandum, dated 04.11.1998, for which, the petitioner has submitted a letter, dated 09.11.1998. From the above, it could be deduced that though the petitioner had absented on earlier occasions, stated supra and that the period has been regularised as leave. Mentioning the past record of the petitioner, as irregular in attendance, negligence of duty, wilful and habitual absence from duty, absence without leave, overstaying the sanctioned leave, without sufficient cause and absence from the appointed place of work without permission or sufficient cause, charge memorandum has been issued with the statement of imputation.
17. At this juncture, this Court deems it fit to state that once the period of absence has been regularised, as leave to which the petitioner is eligible, the same would not amount to misconduct. Reference can be made to the following decisions,
(i) In K.Orlanto v. Managing Director, Tamilnadu Rubber Corporation Ltd. & Anr., reported in 2000 WLR 848 wherein it is held that the charge itself is not maintainable after the leave is regularised. The said judgment was rendered following the decision of Andhra Pradesh High Court decision reported in AIR 1996 AP 75 (G.Papaiah v. Assistant Director, Medical Services). In the said decision, paragraph 16 reads thus, "16. ......... In that case, charge No.2 relates to absence of the petitioner therein from duty for the period commencing from 16.5.1973 and ending with 25.5.1973. the Major, Officer Commanding in his order dated 18.6.1973, granted ten days EOL from 16.5.1973 to 25.5.1973 (both days inclusive) to the petitioner to regularise his intentional absence for the period. An argument was made on behalf of the employer that notwithstanding the grant of extraordinary leave to the petitioner therein, he can be proceeded against for his absence from duty for that period. Rejecting the said contention learned single Judge has concluded as follows:
I am unable to agree with the learned counsel for the respondent that notwithstanding the grant of the extraordinary leave to the petitioner, he can be proceeded against for his absence from duty for that period. Whether it is an extraordinary leave, ordinary leave, leave on pay, leave on half pay, medical leave, or casual leave, nonetheless it is a leave. The kind of nature of leave is not material but the substance of the matter is that the petitioner was granted leave. When once leave is granted to a public servant, in respect of a particular period, it must be considered that he is permitted to absent himself from duty for that period. In such a case, it is not permissible or open to the employer or any other authority to proceed against the public servant for absenting from duty for the same period and punish him. The employer, either private or public cannot blow hot and cold. The authorities should have refused to grant leave of any kind to the petitioner and then proceeded to punish him after due and proper enquiry and after affording reasonable opportunity to him. When once leave has been granted, it cannot be said that the petitioner had absented himself from duty and thereby made himself liable to be punished. Hence, the second charge relating to the absense of the petitioner from duty from 16th May, 1973 to 25th May, 1973, both days inclusive, is not sustainable. I may add that the very order granting extraordinary leaves states that such leave has been granted to regularise the petitioner's intentional absence for the period. the very purpose of granting the leave being to regularise the petitioner's intentional absence, it is not open to the respondent to initiate any proceedings against the petitioner for his absence from duty for that period. Judged from any angle, the second charge must be quashed and it is not sustainable."
The order passed by this Court in 2000 WLR 848 (cited supra) was challenged in W.A.No.473 of 2000 and the same was dismissed by a Division Bench of this Court on 22.3.2000 stating the following reasons.
"... The counsel for the appellant contended that the respondent was unauthorisedly absent for a long period and therefore the disciplinary authority was justified in dismissing the appellant from service. But it is relevant to note that the respondent herein had submitted application for leave and this application for leave was granted and it was specifically stated that the previous absence was regularised. The counsel for the appellant contended that the regularisation was given only for the purpose of straightening the service records of the respondent and the appellants never treated the absence as authorised. We find no force in the said contention as the leave was applied by the respondent was granted by the appellants-Corporation and the absence was regularised by the concerned authority. The learned single Judge has extracted the order passed by the authority in the impugned judgment. In view of the said circumstances, we do not find any force in the contention now advanced by the appellant. Writ appeal is dismissed."
(ii) In Dr.G.Rajendran v. Secretary to Government, Health and Family Welfare Department reported in (2006) 2 MLJ 686, wherein it was found that after the leave period was regularised, the issuance of charge memo, conduct of disciplinary proceeding, imposition of punishment for the unauthorised absence are all unsustainable and the writ petition was allowed.
18. If any punishment had been imposed and the absence period is regularised as leave, then it can be contended that the misconduct of unauthorised absence is not erased. But if no punishment is imposed and the period of absence is regularised as leave to which he is eligible, then the absence cannot be said to be a misconduct. If the management is permitted to take action for the abovesaid period also, as unauthorised absence, then it would be amounting to reviewing its own decisions, and it would cause great prejudice to any employee. Actions taken already have reached a finality.
19. There are no materials to support the allegations that the petitioner absented from the place of work, without permission or sufficient cause. There are no materials to indicate negligence of duty. It is also to be noted that the absence during one of the spells has been explained to the effect that the petitioner met with an accident. Disciplinary proceedings have been initiated, alleging that the petitioner absented from duty on and from 27.11.1998. Inspite of advice, in writing to report for duty, the petitioner has failed. Office Message, dated 18.01.1999, has been referred.
20. The petitioner himself has admitted that he was aware of the disciplinary proceedings. But, according to him, he was under mental depression and was taking treatment from a Doctor, at Madras, from 27.11.1999. Typed set of papers, filed by the respondents shows that the petitioner has sent telegrams, dated 18.01.1999, 27.01.1999, 02.02.1999, 08.02.1999, 16.02.1999 and 05.05.1999 respectively, to the Management and the contents of the same, are extracted hereunder:
"18.01.1999 Self under treatment. Grant leave upto 25.01.1999. Further proceeding may be dropped.
27.01.1999 Self under treatment. Kindly extend leave. Two days upto 29.01.1999.
02.02.1999 Self under treatment. Kindly extend leave two days.
08.02.1999 Self under treatment. Kindly extend leave three days.
16.02.1999 Eye operation self under treatment kindly extend leave two days 05.05.1999 Self under treatment kindly extend leave three days.
21. Though the petitioner has intimated the concerned that he was under treatment and sent telegrams, seeking extension of leave, typed set of papers, filed by the respondents, do not disclose that the Management has granted either leave or rejected the request. Period from 27.11.1998, has been treated as unauthorised absence. When continuous telegrams have been sent from 18.01.1999 upto 05.05.1999, the Management could have very well rejected his request or even instructed the petitioner to submit proper leave applications. Instead, the DTYS, Polagam, has sent an intimation, dated 06.05.1999, to the Deputy General Manager (P&A), ONGC, Cauvery Project, Karaikal, 3rd respondent herein, as follows:
"Enclosed please find herewith one telegram received on today from Shri R.Senthilkumar, Rigmar(D), CPF.No.77535, stating that he is under treatment and requested for grant of 3 days leave. In this connection, it is not out of the place to mention that the individual is not attending his duties, w.e.f. 27.11.1998 to till date.
The details of his absence has already been mentioned in the monthly absentee statement. Please do the needful with an intimation to the undersigned."
22. As stated supra, receipt of telegrams from 18.01.1999 to 05.05.1999, has not been disputed. It is true that on 18.01.1999, there is a phonographic message to the petitioner to report for duty and for his absence, he has been cautioned that disciplinary proceedings would be initiated. When the Management has expected the telegram sent by them to be responded immediately, failing which, departmental proceedings would be taken against the employee, there is no reason, as to why, telegrams of the petitioner, have not been responded. When the telegram, dated 18.01.1999, is the basis of initiation of the disciplinary proceedings on the ground that the petitioner did not respond, there is no reason, as to why, the Management has also not responded to the telegrams sent by the petitioner. In all the telegrams, the petitioner has intimated that he was under treatment.
23. In the abovesaid circumstances, disciplinary proceedings have been initiated under the provisions mentioned in Sl.No.5 of the Schedule II Rule 3(j) read with Rule 4(1)(b) and (c) of the ONGC CDA Rules, 1994. On 03.11.1999, an Enquiry Officer, has been appointed and he has issued a notice, dated 04.11.1999 to the petitioner, fixing the enquiry on 18.11.1999. In response to the said notice, the petitioner has sent a telegram, dated 17.11.1999 and received by the enquiry officer, wherein, he has stated that, "SELF NOT WELL ALL DETAILED AND RECORD SUBMIT ON 22-11-99 KIND INFORMATION."
24. According to the respondent-Management, the petitioner did not attend the enquiry on 22.11.1999. Thereafter, the Enquiry Officer seemed to have sent a letter, dated 09.12.1999, intimating the petitioner that he had proposed to conduct an enquiry and submit a report. After this communication, dated 19.12.1999, no particulars have been enclosed in the typed set of papers, as to what date, the enquiry officer had adjourned the enquiry. In his letter, dated 09.12.1999, he has only intimated the petitioner that he had failed to present himself on 18.11.1999. A telegram, dated 17.11.1999, has been sent by the petitioner to Mr.M.Sakthivel, Suptdg. Chemist, Enquiry Officer, which states that, "SELF NOT WELL ALL DETAILED AND RECORD SUBMIT ON 22-11-99 KIND INFORMATION." There is absolutely no materials in the typed set of papers, filed by the respondents to the effect that the enquiry to any particular date. After 18.11.1999, there is no proceedings in the typed set of papers, intimating the petitioner that the enquiry officer has fixed the enquiry on 22.11.1999. However it could be deduced that the petitioner has stated that he would submit his explanation on 22.11.1999. For the first time, in the counter affidavit, the 3rd respondent has stated as follows:
"The writ petitioner did not appear for the enquiry on 22.11.1999 also. Hence, the enquiry officer conducted an enquiry based on the materials and evidence.
The enquiry officer conducted enquiry and submitted a report. Based on the enquiry report on consideration part record of service, the competent authority has passed an order of dismissal, dated 31.08.2000."
25. At this juncture, the letter, dated 09.12.1999, of Mr.M.Sakthivel, Suptdg. Chemist, Enquiry Officer, addressed to the petitioner, is reproduced hereunder:
"Whereas the undersigned was appointed as Enquiry Officer vide Office Order of even No. dated 03.11.1999 to conduct departmental enquiry against Shri.R.Senthilkumar, Rigman (D), who has been absenting from duty unauthorisedly w.e.f. 27.11.1998, and Whereas Shri Senthilkumar was intimated by the undersigned vide letter of even No. dated 04.11.1999 to present himself on 18.11.1999 and participate in the enquiry.
Whereas inspite of the said intimation, Shri.Senthilkumar has failed to appear before the undersigned so far.
Now, therefore, the undersigned propose to conduct the enquiry ex-parte and to submit the report."
26. When the enquiry officer has categorically informed the petitioner that he has proposed to conduct an exparte enquiry and therefore, there should be a specific date, as to when, the enquiry was fixed. After 09.12.1999, the enquiry officer has not fixed any date for the exparte enquiry. The report, dated 07.02.2000, reads as follows:
"Shri Senthilkumar was initimated vide letter of even No. dated 04.11.1999 that the enquiry would be held by me on 18.11.1999 at 11.00 Hours and was asked to present himself and participate in the enquiry. It was also explained to him that in case he fails to present himself at the enquiry on the said date, the enquiry may be conducted and completed in his absence and the report would be submitted to the Management on the basis of record and evidence available. Against the said communication, dated 04.11.1999 issued by me Shri Senthilkumar sent a telegram on 17.11.1999 which was received on 18.11.1999 "Self not well all details and record submit on 22.11.99 kind information." However, Shri.Senthilkumar was subsequently did not turn-up on 22.11.99 for attending the enquiry. Shri Senthilkumar was subsequently intimated by me vide note of even No. dated 09.12.99 that inspite of intimation, he had failed to attend the enquiry and therefore, it was proposed to conduct the enquiry ex-parte and submit the report. He has not sent any communication whatsoever thereafter. Hence, it is evident that Shri Senthilkumar is wilfully not attending the enquiry. Therefore, I have no other alternative but to submit the report ex-parte.
I have gone through the personal file of Shri Senthilkumar and verified the record of his past service. Shri Senthilkumar was appointed in ONGC on 15.09.89. It has been observed from the records that he is in the habit of remaining absent unauthorisedly, negligence of duty, overstaying the sanctioned leave, without sufficient cause, etc. He was issued so many communications for his unauthorised absence on various occasions and he was advised to be careful in future in his own interest. Inspite of all the advises and warnings given to him from time to time, Shri Senthilkumar has not changed at all. His irresponsible behaviour is clearly an indication that he is not at all interested in continuing his service with ONGC, presently he is absent w.e.f. 27.11.98 without any sufficient cause and wilfully remaining absent. Such an individual may not be allowed to continue in service."
27. From the above, three things are clear, viz., (1) the date on which, exparte enquiry was fixed, ie., 22.11.1999, is conspicuously absent, (2) the date on which, he proposed to conduct the exparte enquiry and (3) the enquiry officer has gone through the personal file of the petitioner and verified the records of his past service. At this juncture, this Court deems it fit to consider the provisions of ONGC Conduct, Discipline and Appeal Rules, 1994, which deals with the procedure for imposing major penalties.
"36. Procedure for impsoing major penalties:
(1) An order imposing any of the major penalties specified in sub-Rule (vii) to (xi) of Rule 34 shall be made after an inquiry, held as far as may be in the manner hereinafter provided or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.
(2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an Employee, it may itself inquire into or appoint under this Rule an Authority or Board to inquire into the truth thereof.
Provided that where there is a complaint of sexual harassment within the meaning of Rule 4(3), the Complaints Committee established in each Asset/Basin/Plant/ Institute/Work centre or office, as the case may be, for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the Competent Disciplinary Authority for the purpose of these rules and the complaint committee shall hold, if separate procedure has not been prescribed for the complaint committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
Note: Where the Disciplinary Authority itself holds the inquiry, any reference to the Inquiring Authority in sub-rule (8), sub-rules (9) to (15) and sub-rules (17) to (21) shall be construed as a reference to the Disciplinary Authority.
(3) Where it is proposed to hold an inquiry against an Employee under this Rule and Rule 37, the Disciplinary Authority shall draw up or cause to be drawn up:
(a) the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges.
(b) a statement of the imputation of misconduct or misbehaviour in support of each article of charge, which shall contain :
- a statement of all relevant facts including any admission or confession made by the Employee;
- a list of documents by which, and a list of witnesses together with their respective statements, if any by whom, the articles of charge are proposed to be sustained.
(4) The Disciplinary Authority shall deliver or cause to be delivered to the employee, a copy of the articles of charge, the statement of imputation of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the employee to submit, within such time as may be specified, a written statement of his defence.
Note: If the Employee concerned demands the inspection of listed documents he may be allowed to inspect the documents to submit a written statement of his defence.
5) (a) On receipt of the written statement of defence, the Disciplinary Authority may itself inquire into such of the articles of charge as are not admitted or, if it considers it necessary so to do, appoint under sub-rule (2), an Inquiring Authority for the purpose and where all the articles of charges have been admitted by the Employee in his written statement of defence, the disciplinary Authority shall record its findings on each article of charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 37.
(b) If no written statement of defence is submitted by the Employee, the Disciplinary Authority may itself inquire into the articles of charge or Memo, considers it necessary so to do, appoint under sub-rule (2), an Inquiring Authority for the purpose.
(c) Where the Disciplinary Authority itself inquires into any articles of charge or appoints an Inquiring Authority for holding an inquiry into such charge, it may, by order, appoint an Employee or legal practitioner or any other public servant to be known as the Presenting Officer to present on its behalf the case in support of the articles of charge.
(6) The Disciplinary Authority shall, where it is not the Inquiring Authority, forward to the Inquiring Authority: -
(a) a copy of the articles of charge and the statement of imputations of misconduct or misbehaviour;
(b) a copy of the written statement of defence, if any, submitted by the Employee;
(c) a copy of the statements of witnesses, if any, referred to in sub-rule (3);
(d) evidence proving the delivery of the documents referred to in sub-rule (3) to the Employee; and
(e) a copy of the order appointing the Presenting Officer.
(7) The charged Employee shall appear in person before the Inquiring Authority on such day and at such time within ten working days from the date of receipt by him of the articles of charge and the statement of the imputation of misconduct or misbehaviour, as the Inquiring Authority may, by notice in writing specify in this behalf or within such further time, not exceeding ten days, as the Inquiring Authority may allow.
(8) The charged Employee may take the assistance of any other Employee, other than an Employee who is under suspension or against whom disciplinary proceedings are pending, to present the case on his behalf, but may not engage a Legal Practitioner for the purposes unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner, or the Disciplinary Authority having regard to the circumstances of the case so permits.
Note: When on behalf of Disciplinary Authority, the case is presented by a Prosecuting Officer of C.B.I. or Legal Advisor or ONGC's Law Officer (such as Legal Advisor/Deputy Legal Advisor or Asstt. Legal Advisor, etc.) the Disciplinary Authority may for good and sufficient reasons, permit the charged Employee to be assisted by a Law Officer of the Company as referred to herein above or by a legal practitioner. In case a legal practitioner is permitted, it will be at the cost of the charged employee.
Provided further that the employee who undertakes to render such assistance shall have to obtain approval in writing from his Controlling Officer for his absence from duty for the purpose of rendering the assistance to such an employee.
The Controlling Officer may not permit the employee to render assistance in the pending disciplinary proceedings:
(i) If the Employee is already conducting/assisting in one or more pending disciplinary proceedings, or
(ii) If Office work will suffer in the absence of the Employee, or,
(iii) He is of the opinion that the Employee has made it an independent field of practice to render such an assistance, or,
(iv) For any other administrative reason to be recorded.
9) If the charged Employee who has not admitted any of the articles of charge in his written statement of defence or has not submitted anv written statement of defence appears before the Inquiring Authority, such Authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the Inquiring Authority shall record the plea, sign the record and the Employee shall sign such record.
(10) The Inquiring Authority shall return a finding of guilty in respect of those articles of charges to which the Employee pleads guilty.
(11) The Inquiring Authority shall, if the Employee fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding 30 days, after recording an order that the Employee may, for the purpose of preparing his defence:
(a) inspect, within 5 days of the order or within such further time not exceeding 5 days as the Inquiring Authority may allow, the documents specified in the list referred to in sub rule (3).
Note: If the Employee applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3) the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than 3 days before the commencement of the examination of the witnesses on behalf ofthe Disciplinary Authority.
(b) submit a list of additional documents required for his defence and a list of witnesses to be examined on his behalf,
(c) and give a notice within 10 days of the order or within such further time not exceeding 10 days as the Inquiring Authority may allow, for the discovery or production of any documents which are in the possession of the Company but not mentioned in the list referred to in sub-rule (3).
Note: The Employee shall indicate the relevance of the documents required by him to be discovered or produced by the Company.
(12) The Inquiring Authority shall, on receipt of the notice for the discovery or production of documents or copies thereof, forward the same to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition:
Provided that the Inquiring Authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are,in its opinion not relevant to the case.
(13) On receipt, ofthe requisition referred to in sub-rule (12), every authority having the custody or possession ofthe requisitioned documents shall produce the same before the Inquiring Authority:
Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security ofthe State or against the interest of the Company it shall inform the Inquiring Authority accordingly and the Inquiring Authority shall on being so informed communicate the information to the charged Employee and withdraw the requisition made by it for protiuqtion or discovery of such documents.
14 (a) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charges are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority.
(b) The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Employee.
(c) The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross examined, but not on any new matter, without the leave of the Inquiring Authority.
(d) The Inquiring Authority may also put such questions to the witnesses as it thinks fit.
(15) (a) If it appears necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the charged Employee or may itself call for new evidence or recall and re-examine any witness and in such case the Employee shall be entitled to have if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned.
(b) The Inquiring Authority shall give the Employee an opportunity of inspecting such documents before they are taken on the record.
(c) The Inquiring Authority may also allow the Employee to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice.
Note: New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence and such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.
(16) (a) When the case for the Disciplinary Authority is closed, the Employee shall be required to state his defence, orally or in writing, as he may prefer; if the defence is made orally, it shall be recorded and the Employee shall be required to sign the record.
(b) In either case, a copy ofthe statement of defence shall be given to the Resenting Officer, if any appointed.
(17)(a) The evidence on behalf of the Employee shall then be produced and the Employee may examine himself in his own behalf if he so prefers.
(b) The witnesses produced by the Employee shall then be examined and liable to examination, cross-examination, re-examination by the Inquiring Authority according to the provisions applicable to the witnesses for the Disciplinary Authority.
(18) The Inquiring Authority may, after the Employee closes his case, and shall if the Employee has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Employee to explain any circumstances appearing against him.
(19) The Inquiring Authority may, after the completion of the production of the evidence, hear the Presenting Officer, if any, appointed and the Employee or permit them to file written briefs of their respective cases if they so desire within such reasonable period as may be fixed by the Inquiring Authority.
20) If the Employee to whom a copy of the articles of charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiring Authority or otherwise fails or refuses to comply with the provisions of this Rule, the Inquiring Authority may hold the inquiry ex- parte.
21) Whenever any Inquiring Authority, after having heard and recorded the whole or any part of the evidence in an inquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiring Authority which has, and which exercises such jurisdiction the Inquiring Authority so succeeding may act on the evidence so recorded by its predecessor or partly recorded by its predecessor and partly recorded by itself:
Provided that it the succeeding Inquiring Authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine any such witnesses as herein before provided.
(22)(a) The evidence of persons deposing at the Inquiry shall be got signed by the persons deposing and the Employee against whom the inquiry proceedings are being taken.
(b) If any one of them refuses to sign the deposition, the fact shall be recorded by the authority recording the evidence.
(23)(a) After the conclusion of the inquiry, a report shall be prepared which shall contain :-
(i) the articles of charge and the statement of imputations of misconduct or misbehaviour;
(ii) the defence submitted by the Employee in respect of each article of charge;
(iii) an assessment of the evidence in respect of each article of charge.
(iv) the findings on each article of charge and the reasons therefor.
Note: If in the opinion of the Inquiring Authority the proceedings of the inquiry establish any articles of charge different from the original articles of charge, it may record its findings on such articles of charge;
Provided that the findings on such articles of charge shall not be recorded unless the Employee has either admitted the facts on which such articles of charge are based or has had a reasonable opportunity of defending himself against such articles of charge.
(b) The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority, the records of inquiry which shall include.
(i) the report prepared by it under clause (a).
(ii) the written statement of defence, if any, submitted by the Employee.
(iii) the oral and documentary evidence produced in the course of the inquiry.
(iv) written briefs, if any, filed by the Presenting Officer or the Employee or both during the course ofthe inquiry, and
(v) the orders if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry.
37. ACTION ON INQUIRY REPORT:
(1) The Disciplinary Authority, if it is not itself the Inquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 36, asfaras, maybe.
2) On receipt of the report of the Inquiring Authority, a copy thereof shall be made available to the charged employee requiring him to submit his representation it any~within a specified period as may be decided by th Disciplinary Authority.
(3) On receipt of the representation of the charged Employee or otherwise in the event the charged Employee has not responded the disciplinary authority shall if it disagrees with the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose.
Provided, where the findings of the Inquiry Officer are that the charges are not established and the Disciplinary Authority disagreeing with the findings of the Inquiry Officer records its reasons for such disagreement which results into establishing the charges, such reasons shall be communicated to the charged Employee, whose representation thereon shall be called.
(4) On receipt of the representation referred to in sub-rule (2) & (3) above, if the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Rule 34 should be imposed on the Employee, it shall make an order imposing such penalty notwithstanding anything contained in Rule 38 and it shall not be necessary to give the Employee any further opportunity of making representation on the penalty proposed to be imposed."
28. There is absolutely no material to indicate that the enquiry officer has followed the procedure contemplated under Rules 36 and 37 of the ONGC-CDA Rules. There is nothing to indicate that the Disciplinary Authority has appointed any Employee or legal practitioner or any other public servant to be known as the Presenting Officer to present on its behalf, the case in support of the articles of charge. There is nothing to indicate that on the failure of the petitioner, to appear within the specified time, the Enquiry Officer has required the Presenting Officer to produce the evidence, on the basis of which, he proposed to prove the articles of charge.
29. Sub-Rule (3) of Rule 36, states that where it is proposed to hold an inquiry against an Employee under this Rule and Rule 37, the Disciplinary Authority shall draw up or cause to be drawn up:
(a) the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges.
(b) a statement of the imputation of misconduct or misbehaviour in support of each article of charge, which shall contain :
- a statement of all relevant facts including any admission or confession made by the Employee;
- a list of documents by which, and a list of witnesses together with their respective statements, if any by whom, the articles of charge are proposed to be sustained.
30. Even taking it for granted that the petitioner has failed to appear on 18.11.1999, there should have been an order, by the enquiry officer, directing the Presenting Officer to produce evidence, on the basis of which, he proposed to prove the articles of charge. Thereafter, the Enquiry Officer has to adjourn the case to a later date, not exceeding 30 days, after recording an order that the Employee may, for the purpose of preparing his defence. Thus, as per the Rules, there are two stages (1) submission of explanation and (2) preparation of defence after the management has adduced evidence.
31. As per Rule 14 of the abovesaid Rules, on the date fixed for the inquiry, oral and documentary evidence by which the articles of charges are proposed to be proved, shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Employee. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross examined, but not on any new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.
32. There is absolutely no material to indicate that oral and documentary evidence, has been adduced by the Management. Whereas, the enquiry officer, himself has perused the personal file of the petitioner and arrived at a conclusion, which is extracted supra. There is a gross violation of the procedure. As stated supra, earlier spells of absence have been regularised as leave. While that be so, the enquiry officer has simply considered, what has been recorded in the personal file of the petitioner.
33. There are no materials to indicate that there is negligence of duty. No charge has been framed. Equally, no charge has been framed for overstaying the sanctioned leave without sufficient cause. The only charge is unauthorised absence from 27.11.1998, without sufficient cause. While that be so, the enquiry officer has simply carried away the observations in the personal file. As stated supra, no witnesses have been examined.
34. Arriving at a finding, after going through the personal file of the petitioner, without examining any witnesses, is unknown to disciplinary proceedings, which is quasi-judicial in nature. When the duty of the enquiry officer is to assist the Management, by conducting an enquiry, after recording oral and documentary evidence, the enquiry officer has simply gone through the personal file of the petitioner and in that process, has also gone to the extent of observing that the petitioner's behaviour was irresponsible and that he was not at all interested in continuing his service with ONGC.
35. More than that, the enquiry officer has also recorded that there was a wilful absence. As stated supra, when there are series of telegrams sent by the petitioner, expressing his illness and having received the same, which are enclosed in the typed set of papers, there is nothing to indicate, as to whether, the Enquiry officer has considered the same or not. Without adhering to the procedure contemplated under Rules 36 and 37 of the abovesaid Rules, the Enquiry Officer has recorded his recommendations that the petitioner should not be allowed to continue in service. Thus, the enquiry officer has clearly exhibited his over enthusiasm and exceeded in his jurisdiction. Findings recorded are not only violative of the principles of natural justice, but indicative of his mind that the petitioner should not be allowed to continue in service.
36. Note (b) to Sub-Rule 23 to Rule 36 of the abovesaid Rules, states that the Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority, the records of inquiry which shall include.
(i) the report prepared by it under clause (a).
(ii) the written statement of defence, if any, submitted by the Employee.
(iii) the oral and documentary evidence produced in the course ofthe inquiry.
(iv) written briefs, if any, filed by the Presenting Officer or the Employee or both during the course ofthe inquiry, and
(v) the orders if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry.
When the rule contemplates production of oral and documentary evidence, the enquiry officer himself has perused the personal file.
37. In the case on hand, even before the report of the enquiry officer was served on the charged employee/petitioner and on receipt of any representation on the findings, the Disciplinary Authority has concurred with the findings of the enquiry officer. After arriving at a pre-determined finding for dismissing the petitioner from service, a show cause notice, dated 04.11.1999, has been sent to the petitioner, to offer his explanation to show cause, as to why, the petitioner should not be dismissed from service. The enquiry report has not been furnished to the petitioner, nor he was given any opportunity to make his representation.
38. Consideration of appeals is dealt with in Rule 51 of the abovesaid Rules. As per Rule 51(2), in the case of an appeal against an order imposing any of the penalties specified in Rule 34 or enhancing or reducing a penalty imposed under the said Rule, the Appellate Authority shall consider:
(a) Whether the procedure herein prescribed in these Rules had been complied with and the principles of natural justice observed.
(b) Whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) Whether the penalty or the enhanced or reduced penalty imposed is adequate, inadequate or severe; and pass orders:
(i) setting aside, reducing confirming or enhancing the penalty; or
(ii) remitting the case to the authority which imposed or enhanced or reduced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case."
39. In the present case, the appellate authority has failed to advert to the abovesaid aspects and has merely carried away by the findings of the enquiry officer. Rejection of the appeal on 12.08.2002, is on the following grounds and it is as follows:
(a) A message was sent to him on 18.01.1999 intimating him that he was absenting from duty unauthorisedly and cautioning him in case he failed to join duty immediately, action would be taken against him;
(b) Memorandum, dated 03.08.1999 was sent to him intimating about his gross misconduct inasmuch as that he had been absenting from duty unauthorisedly w.e.f. 27.11.1998 and asking him to submit a written statement within 10 days. But no reply had been received;
(c) Vide ONGC letter, dated 04.11.1999, he was asked to be present himself before the enquiry officer on 18.11.1999 at 11.00 hrs., But he did not turn up for enquiry;
(d) Another communication was sent to him on 09.12.1999, intimating him that since he had failed to appeal before the enquiry officer, the action would be taken to decide the case ex-parte.
(e) After conducting the ex-parte enquiry, a show cause notice, dated 14.02.2000 along with the enquiry report was served on him to show cause, as to why, he should not be dismissed from service of ONGC and also he was asked to submit his explanation within one week. But no explanation was received from Shri.Senthilkumar.
(f) After waiting for more than six months, an order dismissing him from the services of ONGC had been issued and sent to him.
(g) As far as his sickness is concerned, there is a clear distinction between mental depression and insanity. He may be mentally depressed but not insane warranting such a long absence from duty.
40. Even the appellate authority has failed to consider, as to whether, when the ex parte enquiry was conducted. The appellate authority has failed to consider that there is a gross violation of procedure. Thought it has been contended, on behalf of Management, that the procedure adopted to, by the authority, was not objected by the petitioner and therefore, the petitioner has waived his right, this Court is not inclined to accept the same. There may be absence from attending duty, but the charge requires to be proved, by adducing oral and documentary evidence. If the word enquiry has to be narrowed down to mere perusal of the personal file and then to arrive at a conclusion, then, there is no need to fix dates for enquiry.
41. Perusal of the personal file of the petitioner by the enquiry officer on his own and passing adverse orders against the petitioner, by observing that he is an undesirable person and should no longer be in service, cannot be accepted. Reflection of bias is per se apparent. Past conduct, though may appear to be repetitive, yet the absence has been regularised as leave. Once it is regularised as leave, to which, the petitioner is eligible, it should not be treated as misconduct.
42. Credentials of the Doctor's Certificate or its veracity, has not been disputed. When telegrams have been received by the Management, atleast the appellate authority ought to have considered the same, in proper perspective. Instead of, observing that there is a clear distinction between the mental depression and insanity and that there may be mentally depressed, but not insane, warranting such a long absence from duty. The appellate authority has rejected the appeal of the petitioner, which is a violation of Rule 51(2) of the abovesaid Rules.
43. Let me consider the decisions relied on, by both sides. At the first instance, the decisions cited by the learned counsel for the petitioner are as follows:
44. In The Imperial Tabacco Company of India Ltd., v. Its Workmen reported in AIR 1962 SC 1348, dismissal of one Akhileshwar Prasad was challenged. The said Akhileshwar Prasad was responsible for the maintenance of leave registers. In December, 1957, he was charged for his wilfully omitting to make entries in respect of annual leave, sick leave and casual leave taken by him, during the period from January 1, 1957 to September 28, 1957. He was also charged with altering and overwriting, without the appellant's knowledge, entries relating to 1957 leave, and leave carried forward from the previous year 1956, in respect of certain other employees, thereby, intentionally causing wrongful gain to himself and to other clerks. The last charge was with respect to negligence of his duty in keeping in safe custody the leave register for 1956, which was missing. Akhileshwar Prasad denied his responsibility with respect to above charges and consequently, an inquiry was conducted. The main contention on his behalf was that the procedure prescribed for the inquiry was not followed and therefore, dismissal of Akhileshwar Prasad was invalid. It was further contended that after two witnesses were examined on behalf of the appellant therein, there was a dispute as to the cross-examination of the second witness. In consequence of this, Akhileshwar Prasad declined to cross-examine the second witness further and withdrew from the inquiry. Thereafter, the inquiry was closed and the Branch Manager passed a dismissal order, against Akhileshwar Prasad. In such circumstances, the Hon'ble Supreme Court, at Paragraph 4, held as follows:
4. There can be no doubt in this case that the inquiry was not conducted in the manner required by the Standing Orders of the appellant. Even though Akhileshwar Prasad had withdrawn from the inquiry-- whether rightly or wrongly--the inquiry should have been completed and all evidence should have been taken ex parte. Thereafter it was the duty of the branch manager to appraise that evidence and record his conclusion as to what misconduct had been proved and also to decide what punishment he intended to inflict. Thereafter he had to ask the employee what he had to say against the intended punishment and it was only after taking the explanation of the employee as to the intended punishment that he could pass an order punishing him. The fact that Akhileshwar Prasad withdrew from the inquiry at an early stage did not absolve the inquiry officer from concluding the inquiry by taking evidence ex parte. It also did not absolve the branch manager from following the procedure prescribed in Clause 18 (b) (10) of the Standing Orders. Even though Akhileshwar Prasad had withdrawn from the inquiry, the branch manager should have appraised the evidence, recorded his conclusions and the punishment he intended to inflict and should have called upon Akhileshwar Prasad to say what he wanted to say against the intended punishment. It was only thereafter that he could proceed to punish Akhileshwar Prasad. What happened in this case however was that as soon as Akhileshwar Prasad withdrew from the inquiry, it was closed and the branch manager proceeded to pass the order of dismissal which we have already set out above, without seeing that the inquiry was completed and all that was required by Clause 18(b)(10) to be done was done. In the circumstances the labour court was right in holding that the inquiry which resulted in the dismissal of Akhileshwar Prasad in this case was not a valid inquiry as required by the Standing Orders of the appellant.
45. In the reported case, the Hon'ble Apex Court has clearly observed that no sooner, the delinquent has withdrawn from the enquiry, the Enquiry Officer has closed the enquiry and proceeded to pass an order of dismissal. He has failed to follow the procedure contemplated for imposing a major penalty of dismissal and hence, held that the procedure contemplated was not followed and accordingly, held that there was no valid enquiry. The said decision squarely applies to the case on hand.
46. In Union of India v. I.S.Singh reported in 1994 Supp (2) SCC 518, the respondent therein was a Superintendent of Statistics in the Field Operations Division, National Sample Survey Organisation, Union of India, the appellant herein. Certain charges were framed against him for unauthorised absence and an inquiry was held. By an order dated May 30, 1980, he was compulsorily retired from service, as a measure of penalty. He filed an appeal which was dismissed on August 30, 1982. Thereafter, he filed a review before the appellate authority, which was not indeed, provided by the rules. This review petition came to be dismissed on July 9, 1985, thereupon, he approached the High Court by way of a writ petition. While the writ petition was pending, the Central Administrative Tribunal was constituted and the writ petition was transferred to that Tribunal. The Tribunal allowed the application, on two grounds, viz., (1) non- furnishing of the report of the Enquiry Officer to the respondent therein before imposing the punishment and (2) irregularities in the conduct of the inquiry. On appeal, the Hon'ble Supreme Court held as follows:
2. So far as the first ground is concerned, it stands negatived by the recent decision of this Court in Managing Director, ECIL, Hyderabad v. B.Karunkar reported in 1993 (4) SCC 727, inasmuch as the order of punishment is of the year 1980. So far as the second ground is concerned, a few facts need be stated. An inquiry was held, in the first instance, which was not found to be in order by the disciplinary authority who directed a fresh inquiry. When notices were issued in the second inquiry, they could not be served on the respondent. On a later date, the respondent sent an application stating that he is suffering from unsoundness of mind and that the inquiry may be postponed till he regains his mental health. The respondent also states that he sent his medical certificate along with he is application. (Indeed, according to him, he sent not one but three letters to the said effect.) The report of the Enquiry Officer, however, does not show that he paid any attention to these letters. If, indeed, the letters were not accompanied by medical certificates, as is now asserted by Shri Mahajan, learned counsel for the appellants, the proper course for the Enquiry Officer was to have called upon the respondent either to produce a medical certificate or to direct him to be examined by a medical officer specified by him. The inquiry report does not even refer to the request contained in the said application nor does it mention why and for what reasons did he ignore the said plea of the respondent. The Enquiry Officer proceeded ex parte, in spite of the said letters and made his recommendation on the basis of which the aforesaid penalty was imposed. It is evident from the facts stated above that the Enquiry Officer has not only conducted the inquiry in a manner contrary to the procedure prescribed by Rule 14(2) of CCS (CCA) Rules but also in violation of the principles of natural justice. The result of this finding would have been to set aside the order of punishment and allow the authority to proceed with the inquiry afresh. In our opinion, however, this is not advisable at this distance of time and also having regard to the nature of the charges levelled against the respondent. We think that the more appropriate course would be to give a quietus to the matter at this stage itself, at the same time providing for some measure of penalty to the respondent. We suggested to the learned counsel for the respondent whether he is agreeable to our suggestion, viz., that the respondent should forego the emoluments for the period commencing from June 1, 1980 to August 31, 1985 (approximating to the date of punishment and the date on which the respondent approached the High Court). Learned counsel, Shri H.M. Singh, agrees to the said course after consulting his client. In the circumstances, we dismiss the appeal but direct that the respondent shall not be entitled to any emoluments for the period June 1, 1980 to August 31, 1985. The said period shall, however, count for seniority and other purposes. The respondent shall be reinstated forthwith.
3. The appeal is disposed of in the above terms. No costs.
47. In State of Uttar Pradesh v. Saroj Kumar Sinha reported in 2010 (2) SCC 772, the Hon'ble Supreme Court, at Paragraphs 27 to 31, held as follows:
26. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.
28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority /Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
48. Reading of the above judgements, makes it clear, as to whether, the enquiry officer should followed the procedure contemplated under the rules, for imposing the penalty. The Hon'ble Apex Court has considered, as to whether, the procedure has been followed and any oral evidence has been adduced or documents marked by the Department to prove the charges. Paragraph 30 of the judgment extracted supra, is very important, i.e., whether the enquiry conducted is with a closed mind. Whether justice is done, but is only manifestly seemed to have been done.
49. Though Mr.C.Masilamani, Learned Senior Counsel appearing for the respondents contended that it is a case of waiver of the delinquent's right and relied on a decision made in Jaswant Singh Mathurasingh and another v. Ahmedabad Municipal Corporation and others reported in AIR 1991 SC 2130(1), this Court is not inclined to accept the same. It is onething to state that the delinquent has not availed the opportunity available to him, under the rules governing the procedure to be followed, but, what is important to be considered is whether the department has followed the procedure scrupulously. For some reasons, either bona fide or otherwise, the delinquent would not have availed the opportunity, provided under the Rules, but it cannot be said that the department can have its own procedure, not contemplated under the rules. To say that the charged official has waived the opportunity, does not mean that to arrive at a conclusion, the procedure followed for imposing a major penalty, is correct. With due respect, the submissions of the Management runs contrary to the decisions of the Hon'ble Apex Court, wherein, it has been affirmatively stated that the procedure requires to be followed. Some of the decisions, relied on by the Learned Senior Counsel, are as follows:
50. In State Bank of Patiala v. S.K.Sharma reported in 1996 (3) SCC 364, the Supreme Court held as follows:
In this case though the copies of the statements of two witnesses were not furnished, the respondent was permitted to peruse them and take notes therefrom more than three days prior to their examination. Of the two witnesses, B was not examined and only K was examined. The respondent did not raise any objection during the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as the case may be, from effectively cross- examining the witnesses or to defend himself. No prejudice has resulted to the respondent on account of not furnishing him the copies of the statements of witnesses. In the circumstances, there has been a substantial compliance with of Regulation 68(ii)(x)(b)(iii) of the Regulations. The Regulation contains provision corresponding to Section 99 CPC or Section 465 CrPC. Therefore, failure to literally comply with sub-clause (iii) of clause (b) of Regulation 68 would not vitiate the enquiry altogether. Setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) would not be in the interest of justice, instead, it would be its negation. (Paras 34, 35, 9, 11 and 32) It would not be correct to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B.Karunkar should govern all cases where the complaint is not that there was no hearing [no notice, no opportunity and no hearing] but one of not affording a proper hearing [i.e., adequate or a full hearing] or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touch-stone of prejudice. The test is: all things taken together whether the delinquent officer/employee had or did not have a fair hearing. [Paras 28 and 11] Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise. These principles cannot be put in a strait-jacket. Their applicability depends upon the context and facts and circumstances of each case. [Paras 32 and 28] While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/ Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. . In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. [Paras 33(6) and (7)] An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. [Para 33(1)] A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. [Para 33(2)] In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision g expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. [Para 33(3)]
51. This Court is in agreement with the decision of the Hon'ble Apex Court in S.K.Sharma's case. But the important point to be considered is whether the violation of the procedure is substantive, causing prejudice to the charged official. If there is any definite procedure to be followed, as per the rules, governing disciplinary proceedings and violation of which is apparent on the face of record, then this Court is of the view that violation of the same, would amount to prejudice, per se, for the reason, that the rule or the procedure has been violated. When absence can be taken as violation of the Discipline and Appeals, than what is the remedy, if the Management violates the rules, setting out the procedure to be followed? What is substantive, depends upon the facts and circumstances of each case. There cannot be a hard and fast rule. But at the same time, it is the bounden duty of the enquiry officer to adhere to the procedure, to be followed. If prejudice is required to be proved, then what is the action to be taken for violation of the procedure? should it be allowed to stand, to the prejudice and detriment of the employees. The answer is clear, No. Procedure means fairness. If fairness in the enquiry and the procedure is not followed, then in my humble opinion, there is prejudice. Just because, the appointing authority is placed in a better position of decision making, it cannot be said that, procedure can be violated. What is fundamental to be considered by the Court is prejudice to the employee, in not following the procedure contemplated, by the authorities.
52. In General Manager, Appellate Authority, Bank of India and Another v. Mohd. Nizamuddin reported in 2006 (7) SCC 410, the Supreme Court, at Paragraph 9, held as follows:
It is now well settled principle of law that the gravity of misconduct must necessarily be measured in terms of the nature of the misconduct. A bank officer holding the post of Middle Management Officer-Grade II which is a responsible post absented himself unauthorisedly for about three years which is undoubtedly detrimental to the public interest cannot be said to be not grave misconduct which would warrant dismissal from service. The High Court's view that the punishment of dismissal from service on the proved misconduct is disproportionate to the gravity of the misconduct, in our view, is fallacious. There can never be a more grave misconduct than a bank officer holding a responsible post absenting himself unauthorisedly for a period of three years detrimental to the public interest. That apart, despite the receipt of several notices issued to him he remained adamant and shy away from participating in the inquiry proceedings. This conduct is also unbecoming or a responsible officer holding the position as Middle Management Officer-Grade II.
53. The case of a bank officer cannot be compared to that of Rigman, the post held by the petitioner. Rigman is stated to be a lower post, probably Group II post and hence, mentioned as Rigman(D).
54. In Union of India v. Alok Kumar reported in 2010 (5) SCC 349, the Supreme Court held as follows:
Earlier, in some of the cases, this Court had taken the view that breach of principle of natural justice was in itself a prejudice and no other `de facto' prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the Rule is merely dictatory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these Rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of non-mandatory rules or violation of natural justice as it is understood in its common parlance. In a departmental inquiry where the Department relies upon a large number of documents, majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof. In the light of the peculiar facts and circumstances of the present case, it is obligatory upon the respondents to show that they have suffered some serious prejudice because of appointment of retired Railway officers as inquiry officers. [Paras 83 and 84] The doctrine of de facto prejudice has been applied both in English as well as in Indian law. To frustrate departmental enquires on a hypertechnical approach, has not found favour with Courts in recent times. Well established canons controlling the field of bias in service jurisprudence can reasonably extend to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. Element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default, which relates statutory violations. It will not be permissible to set aside the departmental inquiries in any of these classes merely on the basis of apprehended prejudice. De facto prejudice is one of the essential ingredients to be shown by the delinquent officer before an order of punishment can be set aside, of course, depending upon the facts and circumstances of a given case. Judicia posteriora sunt in lege fortiori. Prejudice normally would be a matter of fact and a fact must be pleaded and shown by cogent documentation to be true. Once this basic feature lacks, the appellant may not be able to persuade the Court to interfere with the departmental inquiry or set aside the orders of punishment. [Paras 85, 89 and 92]
55. The above reported case deals with non-furnishing of documents. But in the case on hand, the enquiry officer, who is supposed to be acted independently, ought not to have gone to the extent of perusing the personal files of the delinquent to find him guilty of the charges, when the Management has not adduced evidence. Ordinarily, in all the domestic enquiries, the Management would present the case, with the documents through witness(s) and that the same would be recorded, as evidence adduced on behalf of the Management. If there is no defence, then the enquiry officer would arrive at a conclusion, on the basis of evidence adduced. Such a procedure has been given a go bye. Apart from the above, the tenor of the enquiry officer's report itself, speaks about his desire, that the petitioner should no longer be continued in service. He is supposed to give his conclusion on the misconduct, alleged. It is one thing to state that the petitioner cannot be said to have been prejudiced, when he has not availed the opportunity of defending the charge and another to find out, as to whether, the management has followed the procedure. If the enquiry officer verifies all the records by himself and arrives at a conclusion, then, there is no meaning in stating that an enquiry would be conducted, in which, evidence would be adduced. Evidence to be let in, means that the Management has to come forward, adduce evidence and prove the charge. But it is not the case here. The over enthusiastic enquiry officer, on his own, has perused the personal file. He has taken the role of the prosecutor and ultimately, persecuted the petitioner, by holding that the petitioner should no longer be continued in service. Requirement of law is that the person accusing, should prove the allegation, and the role of the enquiry officer is neutral, a quasi judicial authority.
56. For the abovesaid reasons, this Court is of the view that there is a gross violation of the principles of natural justice and the rules, regulating disciplinary proceedings. Therefore, both the impugned orders are liable to be set aside and set aside. Hence, the Writ Petition is allowed. The petitioner is entitled to the consequential benefits. No costs.
19.09.2014 skm To
1. The General Manager (Drilling), Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal.
2. The Group General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal.
3. The Deputy General Manager, Oil and Natural Gas Corporation Ltd., Cauvery Project, Neravy, Karaikal.
S.MANIKUMAR, J.
skm W.P.No.42597 of 2002 19.09.2014