Central Administrative Tribunal - Bangalore
Shaik Rahamatulla vs Kudremukh Iron Ore Company, M/O Steel on 3 September, 2018
1 OA NO.736/2015/CAT/BANGALORE CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH, BANGALORE ORIGINAL APPLICATION NO.736/2015 DATED THIS THE 3" DAY OF SEPTEMBER, 2018 HON'BLE DR.K.B.SURESH . MIEMBER (J) HON'BLE SHRI DINESH SHARMA . -. MIEMBER(A) Sri Shaikh Rahamatulla, Aged 60 years, S/o Sri Late Shaikh Ahamed, Officer on Special Duty (Retired), Office of General Manager, Kudremukh Iron Ore Company Ltd., Kudremukh, Chikmalur District. R/at No.4/81/18, "Panchajanya", Above Star Stoes, Mahatma Nagar Kavoor, Mangalore. . Applicant (By Advocate Shri P.A.Kulkarni) , Vs, 1. The Kudremukh Iron Ore Company Limited, (A Government of India Enterprise), With its registered office at 2" Block, Koramangala, . Bengaluru -- 560 034, Represented by the Chairman and Managing Director, 2. The Chairman and Managing Director, The Kudremukh Iron Ore Company Limited, (Government of India Enterprises), Pannambur, Mangalore-577 010. Respondents (By Standing Counsel Shri M.V.Rao for respondents) ORDER
HON'BLE DR.K.B.SURESH __. ___ +. MEMBER(J) We have heard this matter in great detail. The case put forth by the applicant is that under Rule 13 the applicant was removed from the services of oS en 2 OA NO.736/2015/CAT/BANGALORE the company under the discipline and appeal rules which is produced as Annexure A7. On 28.01.2013 the Tribunal dismissed the OA No.325/2010 filed by the applicant challenging the above removal order dated 24.10.2008, Applicant therefore asked for quashment of the said removal order dated 24.10.2008 with a direction to the respondents to reinstate: him back in the position of Senior Manager (Stores) and for grant of consequential benefits.
2. Further, the Bench at that time had decided otherwise vide order dated 28.01.2013 which are herewith produced in full so that it illuminate issues involved as also a distinction of the decision taken by the Bench at that point of time. But now we have the benefit of full documentation.
The order in Original Application No.325/2010 The present application was earlier filed before the High court of Karnataka (in W.P.No.14734/2008. In the hearing dated 30.3.2010, it was brought to the notice of the Hon'ble High Court that the jurisdiction for the KIOCL (Kudremukh fron Ore Company Ltd.) has since been shifted to CAT, Bangalore, the matter is transferred to this Bench on 6.5.2010.
2. This matter relates to removal of the applicant from service on account of his total failure to ensure the safety and security of the material, viz., Coke belonging to the KIOCL and his negligence shown in handling the issue after the theft was discovered.
3. The main grounds urged by the applicant for quashing the impugned order dated 24.10.2008 (Annexure-A/5) are that:
3 OA NO.736/2015/CAT/BANGALORE1) There was no disciplinary proceedings and the applicant was removed from service. Even though it is permissible under the Rules of the Company to dispense with the departmental enquiry on reasons of security, no specific statement has been made in the impugned order to show that the authority has proposed to dispense with the inquiry. Before issuing the impugned order, a notice was issued to him con 18.10.2008 (Annexure/'G') calling his explanation within 48 hours regarding his alleged negligence in the matter, to which, the applicant has replied on 20.10.2008 (Annexure /'H'). But, the said notice dated 18.10.2008, did not indicate that the department was proposing to waive the inquiry before penalising the applicant.
2) The Rule 13{iii) of the Kudremukh lron Ore Company Limited, Bangalore, Discipline and Appeal Rules, (as amended upto 12.1,1990) is ultravires . as it violates Art.311(2) of the Constitution of India and hence, it cannot be applied to the present applicant.
4, Briefly, the applicant would narrate the events as follows:
1. He joined the services of KISCO (Kudremukh lron and Steel Company Ltd.) as a Manager on 15.7.1998 and he was promoted as Senior Manager. In 2006, KISCO was merged with KIOCL in 2007. KIOCL is engaged in extraction of iron ore and manufacture of pellets and pin iron and requires a large amount of Coke for its operation. This Coke is called LAM Coke mainly from Chine and receiving it at NMPT (New Mangalore Port Trust) in which KIOCL also has a huge yard for storing its LAM Coke. From NMPT yard, the Coke has to be transported tO .4 OA NO.736/2015/CAT/BANGALORE
the stock yard of KIOCL at their BFU (Blast Furnace Unit). One work order for handling 1,50,000 MT of LAM Coke in 5 shipments from NMPT Yard to the BFU Yard was issued to Hasan Hajee & Co. He had to pick up the second batch from a vessel named "M.V.Ocean Friend". Apparently, the said transport company diverted 5 trucks of LAM Coke unauthorisedly and the same was noticed by CISF, ' 1 which is the Security agency engaged by KIOCL.
2. As per the applicant, he received the information of diverted trucks from CISF authorities and rushed to the spot and' also informed the higher authorities at Bangalore. He took steps to augment the security off the assets. The contract with M/s.Hasan Hajee & Co., was terminated with immediate effect and a police complaint was also lodged with Panambur Police. The police recovered all the stolen material and brought it to the plant site along with the _truck. Both the trucks and the material was kept under the safe custody of CISF personnel at the plant site of KIOCL. He reported the matter to the Director of Production and Projects, who in turn, issued a suspension order against one Junior Officer, namely Assistant Manager (Stores) making him responsible | for the | incident. The applicant would say that he lodged a police complaint on 21.9.2008 and informed his senior (Director, P&P) on 27.9.2008.
3. Since the trucks seized by Police were kept in the BFU Yard, the owners of the truck approached the JMFC, Mangalore, who. by order dated 7.10.2008, allowed the application and held that the applicants are entitled for release of the vehicles seized by the Police, on certain conditions mentioned in the ot OA NO.736/2015/CAT/BANGALORE order. In view of this, the Panambur Police released the vehicles from the premises of KIOCL on 15.10.2008. The applicant would submit that he came to know of the release of the trucks only through CISF on 15.10.2008 and he also remained under the impression that the CISF authorities must have informed the higher authorities. The applicant would also say that his normal duties are that he is incharge of Stores and procurement and supply of material to BFU.
4. The applicant would claim that in view of the above sequence of events, the letter issued to him on 18.10.2008 to offer his explanation in the whole matter was done through a misconception that he had failed in the discharge of his duties. He further claims that since he had explained everything through his reply, therefore, the action of the respondents in remaving him from service is bad inlaw. Therefore, he prays for:
(i) a writ of certiorari to declare that clause 13(iii) of the KIOCL Discipline and Appeal Rules (as amended upto 12.1.1990) as ultravires of the proviso to Art. 311(2) of the Constitution of India;
(ii) | quash the order dated 24.10.2008 (Annexure-J) removing him from service; and
(iii) to direct the respondent department to reinstate the applicant in the post of Senior 'Manager (Stores) and grant consequential benefits.
5. The entire case of the respondents rests on the aspects as below.
6. The applicant is the top-most officer available at the station and he is incharge of both NMPT yard of KIOCL and BFU yard. His senior officers are stationed at Bangalore. The field station deals with huge quantities of Coal and Mine materials and all those huge assets of the company will be prone to pilferage and theft unless and until the person mainly incharge of the field station takes a ~ 6 OA NO.736/2015/CAT/BANGALORE proper steps for utmost security including vigilance and' alertness and proper timely communication with the seniors. When LAM: Coke work about Rs.15.00 lakhs belonging to the company filled in 5 trucks were diverted by the contractor, the field officer, who is the applicant herein, should have acted with much higher amount of vigilance and alertness and should have taken every step to ensure that 4 no loss is sustained to the.company, within being casual in his work.
7. In accordance with the terms and conditions of his appointment, the applicant is governed by the Discipline & 'Appeal Rules of the Company. In accordance with Rule 13 of the said rules, the Disciplinary Authority has exercised his powers conferred on him after going through all the aspects of the case and after careful thought and applying mind. There is no violation of any of the rules in this case as the Disciplinary Authority has come to the conclusion that continuance of applicant as Senior Manager (Stores), BLAST FURNACE UNIT, Mangalore, would be a serious security risk for the safety and safe custody of the inventory and assets of BLAST FURNACE UNIT. This reason is mentioned in the order of removal at Annexure-J. A similar power to dispense with enquiry in certain matters exists in the Discipline & Appeal rules of several companies and therefore, the action taken cannot be faulted. It has been clearly stated in the letter dated 24.10.2008 (Annexure-J of the application) that "After careful .. thought and application in the file, ..... continuance as Senior Manager (Stores), BLAST FURNACE UNIT, Mangalore will be serious security risk for the safety and safe custody of the inventory und assets of BLAST FURNACE UNIT."
7 : OA NO.736/2015/CAT/BANGALORE8. The applicant was advised on earlier occasions also to ensure that there is a fool-proof system with regard to transportation and handling the company's materials. The whole approach of the applicant in the reply to the show cause notice (Annexure-H) shows that he was casual about the incidence of theft and had not taken any follow --up action. It was also argued that after the Police had_ sized the trucks on 31.9.2008 and kept them in the yard of the company, there was a gap of nearly 25 days before the trucks were released on 15.10.2008 by order of IMEC, Mangalore. From the casual approach, it is clear that he did not take any anticipatory measures against such a release of the property seized. Nor he remained in effective communication with the higher ups on that matter.
9, We have perused all the documents submitted by both the counsels and especially the Discipline & Appeal Rules of the Company, Rule 13 is made for special procedure in certain cases. Rule 13{(iii) provides where the reasons of security so warrant, the Disciplinary Authority may dismiss an employee from service without following the procedure laid down in Rule 8 and 9. The procedure laid down in Rule 8 is the procedure for imposing major penaity and Rule 9 deals with the record of the enquiry in such cases.
10. 'The learned counsel for the respondents claims that such a provision "is not repugnant to Art.311(2) of the Constitution. The fact that another junior officer, namely, one Assistant. Manager has also been held responsible and a charge sheet has been given to him for the purpose of imposing major penalty 8 OA NO.736/2015/CAT/BANGALORE under Rule 8 is no reason why Rule 13{iii) cannot be applied, considering that the applicant here is the senior most officer and the assets of the company. are not safe in his hands in view of his very casual approach.
11. The learned counsel! for the applicant has cited several judgments, some of which totally irrelevant to the present issue. A few others deals with a proper protection to be provided to a civil servant. In fact, he has --
cited the case of S.K.Saha Vs. Prime Prakash Agarwal & Ors. 1994(1) SCC 431 wherein para 10 states as under:
"10. Where all the functions of a Department of the State or Union Government along with posts are transferred to some University or Government Corporation, which of late has become a common feature, in view of the fact that it has been accepted at all levels that public interest is better served if the activities which were part of the department are entrusted to some autonomous Corporation or University, a question arises as to how to transfer the services of the holders of such posts having protection of Article 311 of the Constitution. A situation is created where the holders of the posts are in service of the State Government. But the activities of the whole department are transferred to some Government Corporation or undertaking. How can the State retain the members of such service against those posts when the department itself becomes defunct. .. such posts either to be. absorbed in some other department or to leave the service of the State and to undertaking in question. Once any such employee of the State opts for the service of the Corporation, he shall cease to be in the service of the State. In such a situation, it cannot be held that the holder of the post, has been deputed to the Corporation holding his lien with the State Government... "
This shows that the protection of Article 311 is not available to the present applicant.
12. The learned Counsel for Respondents has cited Article 310. and 311 of the Constitution.
"Article 310 provide that all civil posts under the Government are held at the pleasure of the Government and are terminable at its will. However, this 9 OA NO.736/2015/CAT/BANGALORE right of the Government is subject to the restrictions of Article 311 (ii) which states that Article 311 (ii): An employee shall not be dismissed or removed by any authority or reduced in rank without any inquiry into the charges against him and without offering him an opportunity of showing cause against the action proposed to be taken in regard to him."
'It is, therefore, argued by the learned counsel that an employees of the Respondents company, not being a civil servant cannot take recourse to Articles 310 and 311 of the Constitution and must be guided only by the Discipline and Appeal Rules of the Company. She also cites the case of Pyarelal Sharma Vs. M.S.Jammu & Kashmir Industires Ltd., - AIR 1989 Supreme Court 1854, where para 19 says:
"19. ..Needless to say that employees of the company are not civil servants and as such they can neither claim the protection of Article 311 (1) of the Constitution of India nor the extension of that guarantee on parity."
This shows that the protection of Article 311 is not available to the present applicant.
13. After considering all these aspects, we come to the conclusion that the respondent department is entitled to apply Rule 13 (iii) of the Discipline & Appeal Rules of the Company. We also feel that the respondents have not made a wrong assessment in concluding that the approach of the applicant to the whole issue was casual, negligent and without proper communication with the seniors. They have therefore concluded that the assets of the company are not safe in his hands and therefore, removed him from service.
10 OA NO.736/2015/CAT/BANGALORE14. We do nat find any reason to interfere with this decision. In view of this, the OA fails, and is dismissed. No order as to costs.
3, Thereafter the applicant approached the Hon'ble High Court of Karnataka . vide W.P. No.8747/2013 and the Hon'ble High Court disagrees with the findings of the Tribunal and holds that rule 13 cannot be held applicable in the case. To illuminate the matter further, we produce the judgment of Hon'ble High Court in full so as to provide a platform to understand the case at a later stage.
Order in W.P. No.8747 of 2013 (S-CAT) Petitioner joined the services of the Kudremukh Iron and Steel Company _ Limited [KISCO] as Manager (Stores) on 15-7-1998 and was promoted as Senior -- Manager in 2006. In the year 2007, KISCO merged with the Kudremukh Iron Ore Company Limited [KIOCL]. KIOCL was engaged in extraction of iron ore and manufacture of pellets and pig iron.
2. The case made out is that the petitioner received information of diversion of trucks carrying materials of the company and rushed to the spot and thereafter informed the same to his higher officers. He took severai remedial measures for the safe custody of the materials. He also informed the matter to the Director (Production and Projects), who in turn issued an order of suspension against a junior officer of the petitioner, who was responsible for the incident. It is stated by the petitioner that he lodged a police complaint and also informed his superiors. The trucks involved were seized and subsequently released. Thereafter, a memo dated 18.10.2008 was issued to the petitioner seeking his explanation as to why 11 OA NO.736/2015/CAT/BANGALORE _ appropriate action should not be initiated against him for not reporting the matter of release of trucks to Director (P&P) immediately. He replied to the same, which was found unreasonable, Therefore, in exercise of the powers under Rule 13(3) of the KIOCL Discipline and Appeal rules [for short, the Rules], the petitioner was dismissed from service.
3. Aggrieved by the order of dismissal, the petitioner filed an Application in TA No.325 of 2010 before the Central Administrative Tribunal, Bangalore Bench, Bangalore. The tribunal, by the order dated 28.1.2013, dismissed the application.
Hence the present writ petition.
4, Heard learned counsel for the parties.
5. Learned counsel for the petitioner submits that the order passed by the tribunal is bad in law and liable to be set aside. That the power exercised by the company under Rule 13(iii) of the Rules is not applicable to the case on hand. That the said Rule runs contrary to the provisions of Article 311 of Constitution of India.
6. On the other hand, learned counsel for the respondents defends the impugned order. She submits that the writ petitions nat maintainable, since the provision of an appeal has not been exhausted. It is further contended that there are admitted facts with regard to the failure on the part of the petitioner in discharging his duties as stores manager. Therefore, the respondents have rightly invoked Rule 13(iii) of the Rules and dismissed the petitioner.
12 OA NO.736/2015/CAT/BANGALORE7. On hearing learned counsels, we are of the considered view. that appropriate relief requires to be granted. The order terminating the petitioner from service is passed in exercise of the power under Rule 13{iii) of the Rules, which reads as under:
13. SPECIAL PROCEDURE IN CERTAIN CASES In cases where:
(i) XXX
(ii) = Xxx
(iii) Where the reasons of security so warrant, the Disciplinary Authority may dismiss an employee from service without following the procedure laid down in Rules (8) and (9).
The above provision could be exercised by the authorities only where reasons of security so warrant that an employee be dismissed from service without following the procedure laid down in Rules 8 and 9. In the instant case, no such security reasons are pointed out. Therefore, the matter should have been dealt with under the provisions of Rules 8 and 9 of the Rules. Rule 13{(iii) is a special procedure with regard to certain acts as enunciated therein. Such extreme power could be exercised only when there are threats to security of the company. In the instant ~ case, what is alleged against the petitioner is with regard to diversion of trucks | carrying coke to the company. Prima facie, this act could not be termed as one touching upon the security of the company. If at all, it could be lack of due diligence etc ., against the petitioner, which certainly is not an act affecting the security of the company. In the circumstances, we are of the considered view that invocation of Rule 13{(ili) for dismissing the petitioner from service without s 13 : OA NO.736/2015/CAT/BANGALORE following the procedure is contemplated under Rules 8 and 9 of the Rules are erroneous. However, if the respondents are desirous of taking any disciplinary action against the petitioner, they can initiate such proceedings as laid down in terms of Rules 8 and 9 of the Rules.
8. In so far as the contention of not availing of an appeal against the order of dismissal is concerned, the same would be inconsequential in view of the fact that when the court holds that the exercise of power under Rule 13{(iii) of the Rules is _ wholly without jurisdiction, the question of availing the alternative remedy by way of an appeal does not arise.
9. For the aforesaid reasons, the order dated 28.1.2013 passed by the Central Administrative Tribunal, Bangalore Bench in TA No.325/2010 is set aside. The application filed by the petitioner is partly allowed. The order bearing No.CMD/2202 dated 24.10.2008 issued by the second respondent is quashed. Writ petition is allowed accordingly.
4, Thereafter the matter was taken up and following the decision of the Hon'ble High Court the applicant was reinstated back in service but does not grant back wages with effect from 24.10'20081 to 19.05.2014 that is date of removal and the date of reinstatement. Therefore, applicant files OA No.1305/2014 for issuance of a direction to the company to regularise the above period as duty period and release of pay and allowances due to the said period. | We had heard and disposed of OA No.1305/2014 vide order dated 21.6.2017 which we produce herewith in full.
14 OA NO.736/2015/CAT/BANGALOREOrder in Original Application No.1305/2014 The matter involves disappearance of LAM Coke imported from China and the disappearance of five trucks loads and Coke from the Port area which was found near the Furnace Blast Unit in the Plant near Elf gas Company. Apparently these trucks, instead of going to Coke stockyard had unauthorisedly diverted. It was also found that four trucks were 10 feet away from the river. The CISF had seized two trucks, one among the two trucks was in empty condition and another fully loaded with Coke. Vide Annexure A6 a Complaint letter dated 27.09.2008 is seen sent to the Chairman, New and other authorities of the New Mangalore Port trust indicating that "irrespective of Cargo/destination/handling agent/consignee, delivery challan is prepared at the gate of facilitate the exit of truck. Apparently without such challan the truck were permitted to pass at the main gate of Port 'Trust as the gate man and other officers of the security incharge of the Port had allowed this truck to depart the Port premises without necessary documentation".
2, Therefore with anxious eyes we had examined this pleading to find a resolution in the pleadings of the respondents. Apparently, no element of objection was raised against this pleading by the respondents in any of their document nor pleadings which were available with us.
3. Therefore, we had called a consultative meeting with both the Counsel to elicit from them whether:
i) The New Mangalore Port Trust had released the five trucks without adequate documentation. (No specific answer). .15 OA NO.736/2015/CAT/BANGALORE
ji) What happened to the fully loaded truck which were also loaded with Coke in BFU yard. (this was unloaded at BFU and the company states that they had not suffered any loss). | | Apparently after these trucks were apprehended by the CISF and after apparently the local police had handed over the trucks to the CISF for safe custody of BFU Plants. The apparent owner of the trucks filed a separate petition under Section 451 of IPC before the Judicial Magistrate in which apparently CISF was also heard.
4. The case of the applicant is that he thought that the CISF would be discussing the matter with Director (P&P) who is incharge of CISF (Security) but in Annexure A7 the concerned official records that the trucks have been released in consultation with the applicant. Therefore we needed to elicit from the respondents'. Counsel whether any such consultation had taken place, at what level and what documentation would prove it. Apparently they only say that at the corporate office sufficient information is not available.
5. But the specific case of the applicant is that the applicant has not been consulted in this matter but he admits that the copy of the order with the seal of | the court was placed before him and the Deputy Manager had visited the local police station and seen the copy of the release.
6. lt seems that the company did not take steps to challenge this order if he thought fit to do so. It raises two questions.
16 OA NO.736/2015/CAT/BANGALORE1} who is the owner of the truck, the company or the operator? (This operator was black listed for one year).
2) Nas the release been of a full loaded truck and did .
the order of the court specify it as fully loaded? (In unloaded condition, the claim of the company is that they did not suffer any loss).
7. In the pleadings no answer is forthcoming from the respondents regarding this as the security matters are concerned with the Director (P&P) only. If the articles had been seized along with the challan issued by the stores incharge then without doubt the applicant is responsible. He is the one to see that the goods would reach from Mangalore Port Trust to the company in such a situation. But it does not mean if it had been in the interregnum stolen theft before it reached the recipient. It cannot be applicant's responsibility and if he has not given or issued the document challan which is required as a gate pass for issuance of the goods then he may not be responsible at all. Further it is brought to our notice that one agency had been given the task of unloading the goods from the ship and bring it ~ to BFU Plant. If during this operation a theft had taken place the question is, at what level the stores incharge will be held responsible. In Annexure A9 in paragraph-4 the concerned authorities' notes:
You are responsible for overall proper planning, development of persons, implementation there off regarding the job for which you are in charge. Even though you are in the Stores Department for long time, you have filed to put in an 17 OA NO.736/2015/CAT/BANGALORE effective system in place. It was reported that, there were lapses on earlier occasions also in case of Iron Ore Fines.
As Sr.Manager (Stores), BFU, you have failed to put in foolproof mechanism in place for ensuring the security of material in transit i.e., from New Mangalore Port to the BFU and Pilferage did take place on 20° & 215 September, 2008, To strengthen your hands, additional manpower was placed at your disposal to augment the checks to be put in place during transportation. Inspite of receiving the support, no effort was made by you to issue written guidelines to these persons, who are inexperienced for this particular type of job, leave alone adequately briefing them across the table. This shows the gross negligence both prior to and during the course of the incident under consideration,
8. But at the same time if the operator had been given a licence to unload the goods from ship and bring it back, what is the level of responsibility to be attached to the stores incharge to receive the goods and nothing else. If there are pilferage in the way, to what extent the applicant would be responsible would be the relevant question. It is noted with concern that atleast in these pleadings no such fixing of accountability had been seen taking place.
9. Under this ground we need to look at the whole scenario of the relief claimed. The relief claimed is only to the effect that from the date of his removal Annexure A$ and date of his reinstatement under the orders of the High Court of Karnataka he must he granted normal benefits as being continued in service. In reply the respondents submits that there is no specific order from the High Court in this regard,
10. Therefore, we had examined the background of the case and found prima facie there is nothing to point to the applicant as if without documentation the Port authorities released the five trucks and it was investigated by CISF and reported to police and the order passed by the local Magistrate under Section 451 .
18 OA NO.736/2015/CAT/BANGALOREof the IPC could have been challenged if trucks contained properties belonging to KIOL. But it is doubtful whether KIOL could have successfully maintained the action against the order of the Magistrate since they not even tried to approach this question. If the trucks were released the question wemains 'unanswered'. Why did the company not challenged it in the court as in the event of after release _ the said order could have been challenged and if successful the material could have brought back in to the custody of the local police. We are advised that the criminal trial in this case is in progress. While so the transporter who was guilty was black listed for only one year.
11. 'It raised another question also what happed to the criminal case of the company shown to facilitate the criminal case. Had the company done anything to find out the quantum of loss because this may not be an isolated incident. The pleadings are absolutely silent on all these aspects. This raised a mountain of suspicion in the internal management system.
12. Therefore, we have to hold. prima facie there did not appear to be much in the level of the infraction of the applicant and since the monetary benefit paid monthly is as the basis of his life and livelihood, it cannot be denied to an _ employee without significant reasons. While it is correct that both sides may not have urged the Hon'ble High Court to pass an order in this respect when the Hon'ble High Court held the dismissal to be ab-initio void, the applicant is entitled to all monetary compensation from the time of his removal and his reinstatement.
19 OA NO.736/2015/CAT/BANGALOREOA allowed. Benefits will therefore be made available to him within two months next. There shall be no order as to costs.
5. This matter was taken up by the respondents herewith to the Hon'ble High Court vide W.P.No.35903/2017 and vide order dated 20.11.2017 the High Court held that the relief granted by the CAT in the order impugned would be in excess of the relief granted by this Court in W.P.No.8747/2013 and held that therefore the impugned order is unsustainable in law and liable to be set aside.
Order in Writ Petition No.35903/2017 (S-CAT)
1. The Kudremukh Iron Ore Company Limited a Government of India Enterprises ('Company' for short and its Chairman have called in question, the order dated 21.6.2017 in OA No.1305/2014 passed by the Central Administrative Tribunal, Bangalore Bench ('CAT' for short).
'2. Though this petition is listed for consideration of |.A.No.2/2017 for vacating the ad-interim order, with the consent of learned Counsel for the parties, the petition is heard for final disposal.
3. We have heard Sri M. Vasudeva Rao, learned Senior Central Government Standing Counsel for the petitioners and Sri P.A.Kulkarni, learned Counsel for the respondent.
4, Briefly stated the facts of the case are, by a communication dated 24.10.2008, invoking Clause 13(iii) of Discipline and Appeal Rules of the Company ('the Rules' for short), the respondent was removed frorn service. The respondent 20 -- OA NO.736/2015/CAT/BANGALORE | challenged his removal before this Court in writ petition No.14734/2008 which stood transferred to the CAT and renumbered as T.A.No.325/2010. | The CAT upheld the removal of respondent by order dated 28.1.2013. The respondent challenged the same before this Court in Writ Petition No.8747/2013 which was decided on 5.1.2014 by the following order:
\ "For the aforesaid reasons, the order dated 28.1.2013 passed by the Central Administrative Tribunal, Bangalore Bench in TA No.325/2010 is set aside. The application filed by the petitioner is partly allowed. The order bearing No.CMD/2002 dated 24.10.2008 issued by the second respondent is quashed. Writ petition is allowed accordingly."
5, The Company reinstated the respondent on 19.5.2014. Subsequently, a charge sheet was issued on 22.9.2014. After holding an enquiry, the Company removed the respondent from service with effect from 30.5.2015. the respondent challenged the said order before the CAT in OA No.736/2015. It was brought to
- our notice, during the hearing, that the CAT has heard the said matter and the judgment is reserved.
6. Even prior to filing OA No.736/2015, the respondent had filed the instant application, OA No.1305/2014 inter alia seeking direction to the appellants to treat the period from the date of removal till the date of reinstatement (i.e. 24.10.2008 to 195.2014), as, 'on duty' and to release monetary benefits. The CAT, by the order impugned, allowed the respondent's applicant has held that he is entitled for monetary benefits.
7. Sri M.Vasudeva Rao, arguing in support of this writ petition vehemently contended that, in compliance with the order passed by this Court in 21 OA NO.736/2015/CAT/BANGALORE W.P.No.8747/2013, the Company reinstated the respondent. Further, availing the express leave granted by this Court in the said Writ Petition, the Company initiated disciplinary action against the respondent and removed him from service on 30.5.2015. The veracity of second order of removal is subject matter of adjudication in OA No.736/2015. The CAT has, since heard the matter 'and the decision is awaited, the respondent is not entitled for any relief in OA No. 1305/2014. In support of his contention, he placed reliance on the judgment of the Hon'ble Supreme Court in Chairman-cum-M.D., Coal India Ltd. & Ors. Vs. Ananta Saha & Ors. reported in (2011) 5 SCC 142.
. 8. Sri P.A.Kulkarni, learned Counsel supporting the impugned order submitted that this Court, in Writ Petition No.8747/2013 has quashed the communication dated 24.10.2008 removing the respondent from service. Therefore, logically, respondent shall be entitled for all the benefits, as if he were 'on duty' from the date of removal till the date of reinstatement. He place reliance on two authorities in the case of Shiv Nandan Mahto Vs. State of Bihar.and others reported in (2013) 11 SCC 626 and in Ramesh Kumar Vs. Union of India and others reported in (2015) 14 SCC 335 in support of is contentions.
9. Incontrovertible facts of this case are, the respondent has been removed from service, after giving an opportunity of hearing, on 30.5.2015. the said order of removal is in furtherance. of the decision rendered by this Court In W.P No.8747/2013, setting aside the earlier order of removal dated 24.10.2008. The Company has availed of the leave granted by this Court to take disciplinary action _-* -
22 OA NO.736/2015/CAT/BANGALOREin terms of Rules 8 and 9 of the Rules. The decision of the CAT with regard to legality and correctness of the second removal order dated 30.5.2015 is awaited.
10, The authority cited by Shri M.Vasudeva Rao, in the case of Coal India Limited supra, it is held by the Hon'bie Supreme Court that an employee would not be automatically entitled for back wages.
41. In the case of Rarnesh Kumar supra, relied upon by Sri P.A.Kulkarni, back wages were granted after recording a finding that, the employer therein namely, the Defence Authority, had proceeded on the footing that the punishment imposed for the second time would not affect the promotion of the employee therein. In the case of Shiv Nandan Mahto supra, it was held that the employee therein was illegally kept out of service. Thus, the back wages were awarded based on the facts of those cases. In contrast, in the instant case, the petitioners- employer has availed the leave granted by this Court in the writ petition, and passed the second order of removal after following the procedure . Further, the second order of dismissal is the subject matter of adjudication before the CAT. Pending such adjudication, in our considered view, the CAT could not have awarded the back wages for the period between his removal pursuant to first order of removal and reinstatement. We say so because, this Court, while deciding the writ petition, has not awarded any back wages. Therefore, the relief granted by the CAT in the order impugned in this weit petition would be in excess of the relief granted by this Court in W.P.No.8747/2013. Hence, the impugned order is unsustainable in law and liable to be set aside.
23 OA NO.736/2015/CAT/BANGALORE6. Hence this OA was filed.
7. The applicant claims that a false enquiry was framed and conducted against him. The order of removal from service of the company vide order dated 30.05.2015 was issued that is on the last day of superannuation as the actual! date of superannuation 31.05.2015 was a Sunday.
8. Therefore let us examine what the charges against the applicant. These are available from Annexure A3 which we quote herewith in full so that anyone who reads it may become aware of these facts.
STATEMENT OF ARTICLE OF CHARGES You were on duty on 20.09.2008 in 'C' shift as a Shift-in-charge. During the said shift, you were assigned the responsibility of supervising smooth movement of coke from NMPT Berth to Blast Furnace Unit stock yard being carried out by our C&F Agent named M/s.Hassan Hajee & Co., Mangalore.
It is reported that early hours'on 21.09.2008 between 2.30 AM and 5.00 AM, 4 (Four) truck loads of coke while transporting from NMPT Berth to Blast Furnace Unit stock yard has been unauthorisedly diverted and has been dumped outside the premises of BFU plant area near ELF Gas Company on the banks of _ Gurupur river and one more truck bearing No.MH-10-Z614 which was about to be unloaded stopped near the said area and the driver of the truck No.MH-10-Z-614 and also driver of empty truck bearing No.MG-06-ac-9376 ran away from the area after seeing the CISF personnel on duty and the said trucks were detained.
Approximately around 35 Tonnes of coke on the spot and 10 Tonnes of coke was found in the truck No.MH-10-Z-614, The approximate cost of the said coke would be around Rs.15.30 Lakhs. It is clear case of theft of company's property. ee -
24 OA NO.736/2015/CAT/BANGALOREFrom the above incident it is evident that you have failed in discharging your duties as a Shift-in-charge and in supervision on 20.09.2008, in "C' shift in ensuring reaching of transported coke from NMPT Berth to Blast Furnace Unit stock yard. You were negligent in your supervision which has-resulted in diversion "of company's property by culprits. Had you been alert on that day in your supervision. You could have avoided the above incident of diversion of materials outside the BFU premises.
The above act on your part amounts to serious misconduct under the following clauses of Discipline and Appeal Rules of the Company.
5(ii) Negligence or neglect of duty i 5(XIV) ee loss of Company's goods or property 5(xxii) Abetment of or attempt at an act of misconduct 5(xxxvii) Acting in a manner prejudicial to the interest of the Company"
9. The elements of this is that on 21.09.2008 between 2.30 am and 5.00 am four truck loads of coke while transporting from NMPT Berth to Blast Furnace Unit stock yard had been unauthorisedly diverted and has been dumped outside the premises of BFU plant area near ELF Gas Company on the banks of Gurupur river and one more truck bearing No.MH-102-614 which was about to be unloaded stopped near the said area and the driver of the truck No.MH-102-614 and also driver of empty truck ran away from the area after seeing the CISF personnel on duty and the said trucks were detained. Therefore it is evident that some roperty belonging to the company were lost and the company has raised a chart of misconduct.
1) - Negligence or neglect of duty
2) - Loss of Company's goods or property 25 OA NO.736/2015/CAT/BANGALORE
3) - Abetment of or attempt at an act of misconduct
4) _ - Acting in a manner prejudicial to the interest of the Company"
Therefore let us examine the elements of, charge themselves and the issue thereof. On 21.09.2008 two trucks were found outside the deliver area of the Blast Furnace Unit, one in a unloaded condition and other still loaded which obviously being stolen. On information from CISF unit Panambur police took these into custody and criminal cases were framed against the concerned. It apparently turns out that later on the owner of the lorry filed a petition under section 451 of CRPC and though the Panambur police was informed there is no indication as to whether the information was brought to the notice of either the applicant. What the DGM has done of this is not available other than the letter
- written by the DGM to the BFU office of the company. It may be noted in this connection that it is nobody's case that trucks belong to the company. It is the case of the company itself that the Coke had been brought in inside the company premises, therefore, the issue which evolves and involved is the misappropriation of the company's property by the drivers of the said trucks which had been engaged by the company themselves for the transit of the goods.
10. The question now is what is the juncture of the applicant in it?
Nobody says that the applicant has been involved with either of the drivers or with the transporter in concealment of the goods. The charge is only that he is negligent in preventing a theft. Therefore, let us examine the methodology following by the company in unloading its material. In Annexure Al2 some more Pa .
points have seem to be added:
26 OA NO.736/2015/CAT/BANGALORE1) Wilful damage or loss of Company's goods or property.
2) Commission of any act subversive of good behaviour or of the discipline of the company.
11. Relating to the second one newly added charge Shri Kulkarni would say that the only mistake committed by the applicant seems to be that he immediately terminated the contract with the transporting company and in fact while new transporting company was given the assignment the earlier transaction of records would prove the same matter. Therefore involvement of the very senior
- of the company, he alleges had clouded the issue. He would say it is they who juncture in all these and not the applicant as it is clear that nine number of additional employees were granted to him from the Kudremukh site after discussion with senior officers. He would say the allegation that the Store Keepers who.are already experienced to this kind of jobs have been posted in BFU Weigh Bridge and the inexperienced manpower from Kudremukh site have been | deployed in the sensitive points at NMPT Warf and NMPT Check Post. He points. out that no expert supervision is necessary and everything is done mechanically and what is needed in only a watch. At the NMPT Check post there are registers kept for transport of transit materials and the CSIF is the guard there. There is no duplicate of work and the check post is guarded by the CSIF as well as the employees of New Mangalore Port. Therefore the mode of transit is sensitive operation as before the truck leaves the ports area which is weighed and weighment is kept at the BFU waiting point since this more sensitive. The learned Counsel for the applicant wouid say that he had only experienced work force at . © 27 OA NO.736/2015/CAT/BANGALORE this sensitive point. It is the aid and debut loss to the company and nothing else. _ He would take us to the list of witness who are of the employees of the company and it would say anything other than what is stated in the document. | The real evidence would have come from the owner of the transporting company and the said two errand drivers as well as the CSIF personnel, none of whom were | examined by the company. This he alleges only to facilitate finding a scapegoat to the issue already had become public. |
12. It is now to be noted Annexure A13 contained the defence to the respondents. We may quote from it. .
"5(I). Negligence' or neglect Of GUtY cisco wilfully showing performance of work or inciting others to do so.
Ans. | have taken every possible step for safe and timely un-loading of the cargo and its transportation to the site. A foolproéf system is in place in the Port and as one among the many port users; we have to follow the system advised by the Port _ and as usually followed by all the Port users. As a matter of abundant precaution, we have recorded the truck entries at not less than 5 places.
NMPT WHABPF (Cart-chit) NMPT Traffic Post (By NMPT) NMPT Traffic Post (By BFU) | BFU near Weigh Bridge Computer generated weighment slips.
MH BRWNE At the end of each shift and at the end of each operation we reconcile all the registers and other related documents to ensure that whatever the trucks left Mangalore Port reach safely to the site. I'm enclosing a copy of all the 4 registers for your reference. Copies of the Cart Chit are supposed to be deposited at the traffic gate on the basis of which, gate pass will be issued by the Port authorities to take the loaded vehicle out of NMPT main gate. -At the main gate, CISF personnel have to collect the gate pass and then only have to release. In the instant case this did not happen. The truck crew on. behalf of the. Contractor, traffic check post employees of NMPT and the CISF personnel in that shift have deliberately felicitated the trucks to go out without proper travel documents, i.e., the gate pass. Since there is a nexus among the above agencies trucks have gone without entries °s being made anywhere.28 OA NO.736/2015/CAT/BANGALORE
Sir, kindly note that even if all the agencies fail to record, at least the CISF should have stopped the vehicle and should have insisted for the gate pass which they didn't do. This is the Crux of the problem and I can prove with documentary proof at the time of enquiry. Because of the connivance of port traffic employees and CISF personnel at the gate with their criminal intent trucks were allowed to ~ go out without gat pass. Thus, | have been subjected to untold misery for no fault of mine, where as the actual miscreants are scot-free.
Coming to the deployment of Man-power, the men came from Kudremukh were mechanics and welders. The purpose of their deployment was to check the . loading. They were deployed on the wharf only to ensure that no truck is over- loaded . Whenever they observe any truck was being over-loaded, they are supposed to do some noise. They have been explained this before they were put on the job. It is alleged that proper training was not given to them before assigning the job. Sir, Kindly note, these employees generally report one hour or two hours before actual discharge of the vessel stars: Just before the discharge we would be entangled with port clearances, customs clearances, Central excise formalities to get anti-dumping duty exemptions, arrangements of trucks, pressuring the port traffic department for extra gangs, so that no delay happens while discharging.
Kindly imagine my position just before actual discharge starts with so much of pressure taking on single handedly if somebody blames that training was not given just to make noise at the wharf, it is very unfair towards me and uncharitable remarks against me.
In the entire operations working of weigh bridges on continuous basis holds the key for smooth discharge of the cargo. Any delay at the weighment point will have cascading effect on the entire operation that leads to demurrages of § 7500 per day/or part there off delay in discharge. All our efforts would be focused on this aspect, so that demurrages can be avoided. I'm pleased to bring to your kind notice that in all 33 shipments of coke, we have completed the discharge in advance and earned lakhs of Rupees as "Dispatch Money". The people came from Kudremukh were not aware of the electronic Weigh Bridge operations hence, | thought in good faith and in the interest of the company it would be better to deploy them on the wharf where they have to do some sort of "Halla Gulla" when they observe any over-loading. Stores employees were regularly handling the weigh bridges. They know the material codes and supplier codes of Pig Iron, Fluxes, lron Ore, Coke, etc. They know how to generate various reports for commercial department, stores and sometime KIOCL (Pellet Plant) Cargo. Apart from the above jobs; stores personnel can come on calt from the Weigh Bridge and help to locate the material, supervise heaping and attend urgent clerical and typing jobs.29 OA NO.736/2015/CAT/BANGALORE
Sir, | started the BFU stores from scratches and operated for ten (10) years successfully within the given frame work without any help whatsoever from Materials Dept of Bangalore. Even though big Heirarchy was in existence over and above me not even a single advisory came to me nor any training offered to me on how to handle Coke shipments, Customs, Excise, railways Port, Insurance, Service Tax etc. When | tried to seek some advice | was told that KISCO is different from.
KIOCL Ltd hence no suggestions and advices can be offered/given. | was told to handle everything myself. Such was the hostile situation prevailing at that time. ' lam enclosing the copies of the registers maintained at different locations for your kind perusal, together with a statement of trucks left from NMPT and reported at BFU. With this, | reiterate the fact that | am not Negligent in any way as attributed to me in the Charge Sheet, instead the main culprits are CISF at the Port gate and the Traffic employees at the Check Post. These two agencies worked in tandem with criminal intent and felicitated the unauthorised exit of Coke trucks with ulterior motives.
(emphasis supplied) .
5(XIV) Wilful damage to or loss of Company goods or Property:
Ans: Sir, | have not indulged myself either directly or indirectly in any such activities that bring loss to the company. Instead, | have saved crores of Rupees to the Company by taking advantage of the commercial laws in force. Coming to the instant case, besides maintaining records at various points strict patrolling is also arranged for safe transfer of entire cargo. As has already been explained to you earlier, the unauthorised truck movement was the result of collapse of the system at post Check Post by not issuing gate pass and at the gate allowing the trucks without insisting for gate pass. Thus the attempt for pilferage is the direct result of the lapses committed by traffic check post by not issuing the gate pass which is vital.to allot the trucks to go out and the same way the total failure on the part of CISF personnel manned at the gate. CISF personnel at the gate are expected to collect the gate pass and to only have to send the trucks to go out. Here, in this case the two trucks in question had come to BFU unit twice with gate _pass issued by the traffic department in the third shift. Entries were recorded in all the five places about these to truck. Subsequently the crew of these two trucks and the traffic department port CSF people have worked in tandem with _ ulterior motives and allowed to go out without port exit gate pass.
! have taken all possible steps to protect the Company Property. (1) | have reached the spot at 5.30 AM as soon as | received the message from CISF.
(2) Informed all the higher officers over phone, who were at Bangalore/Mangalore, for taking instructions.30 i OA NO.736/2015/CAT/BANGALORE
(3) Informed Police and booked a case against the Contractor.
(4) Retrieved all the material to the last gram and kept under CISF custody.
(5) Trucks were kept under the direct supervision of CISF.
(6) Suspended the Lower Officers on the instructions of Director (Production) who was stationed at Mangalore.
(7) Got the contract terminated as advised by the disciplinary authority.
(8) Anew contractor was roped in for discharge of balance cargo without loss of time. | was on the board upto 4.00 AM on that day te to ensure smocth transition of contract without loss of time.
(9) Informed to New Mangalore Port Chairman about the attempt to steal the material, in turn they informed that the matter jis being investigated. Please find enclosed the two letters at PAGE «+...
(10) | invite your kind attention on the enclosed circular No.1758 Dated
-- 4.12.1999 at page No......... .. Which clearly guides us in case of some unpleasant happening . It prescribes mere intimation to the personnel Department and giving necessary inputs to take the case to the logical ~ conclusion, but in the instant case | had gone an extra mile and booked a case in Panambur Police Station. The above explained effort is only with my sincere effort to safeguard the Company property and not otherwise as envisaged in the charge Sheet. Hence this charge is not acceptable. .
(emphasis supplied) 5 (XVII) Breach of any law applicable to the work or of the conduct rules and nay orders issued by the Board from time to time.
Ans: Sir | have not contravened any applicable rules and followed the instructions of the Unit Heads scrupulously. In the present case, there was spillage of material all along the road because of bad road condition. The then Director has noticed and advised us to take corrective action which was later appreciated our effort to reduce the spillage. Thus, the instructions given by higher ups and the applicable laws were respected and followed.
Coming to 3" Para of page 3, it is stated that | have released the trucks, is factually incorrect. Kindly refer explanation dated 18.10.2008 given by the then Deputy General Manager (BFU) to Chairman-cum-
Managing Director where in it is clearly stated by the DGM that the matter had been brought to his notice by CISF on 14.10.2008 itself. The two officers discussed about the release of the trucks on receipt of Court Order. Kindly see no where my name appears in that letter nor I had been consulted by any of the two. Since the custody of --
the trucks was with the CISF they discussed the matter 31 OA NO.736/2015/CAT/BANGALORE with the DGM and released the trucks. I came to know only on 15° evening at about 6.30 pm when I was at home.
Thus I was nowhere in the picture. It was the decision of CISF purportedly in consultation with the then DGM. | have been telling the same in my earlier correspondence also. Please refer the penultimate Para of DGM's explanation wherein he advised me to go to Police Station and collect the copies of the Court Orders addressed to the station house officer. So | humbly submit once again there was no role in mine in releasing the trucks.
Sir, | was subjected to severe punishment with regards to release of these trucks based on wrong perceptions even though | didn't have any role. | have been informed only after releasing the trucks not that. My whole family was made to suffer, children's education and their future were hanging in balance, and my carrier was doomed/suffered irreplaceable loss. It is pertinent to note' here that the trucks matter was very much in the knowledge of DGM as per his own explanation. They have taken a decision to release and incidentally both of them i.e., CISF and DGM were reporting to Director (P&P).
| hope my explanation would receive your kind attention and render justice to me.
13. 'Therefore, if these were entered in the registers of CSIF and not entered in the registers of NMPT. and allowed to go out the employees of New Mangalore Ports and CSIF are only to be blamed, The employees of Kudremukh Company have nothing to do with the 'issue but apparently their rays seems to have focussed against the applicant.
14. The respondents on the other hand would submit that.
The Applicant being HOD of Stores Department has not put in any fool proof system while discharging LAM Coke from NMPT to BFU Stock Yard inspite of advise/direction by the Director (P&P), The Applicant was also provided additional ' manpower for the specific purpose of monitoring/supervision of transportation of LAM Coke. Instead of utilizing the manpower properly for the said purpose by proper deployment, the Applicant was blaming the contractor as responsible for the incident. Posting inexperienced persons for stores functions at sensitive areas and experienced persons at weigh bridge area as established in the departmental enquiry itself speaks about the motive of the applicant. The applicant went to the site of the incident only after receiving information from the CISF Personnel on _ ~ 32° OA NO.736/2015/CAT/BANGALORE duty. The Applicant cannot absolve his responsibility by pointing out at the transport agency by stating about its criminal intent.
It is submitted that being an HOD and a responsible Officer in the company, it was the duty of the Applicant to follow up and take appropriate action in the case filed by him regarding theft of LAM Coke. He has not only failed to follow up the case but also failed to inform his higher ups about release of trucks after getting information from the CISF. Contention of the Applicant that the administration was interested to find out a scapegoat for this episode so. as to _ exhibit its activism in the matter etc..is misleading. The explanation submitted by the Applicant at Annexure A6é has been perused by the Competent Authority before issue of the removal order. Consequent to his reporting for duty, disciplinary action has been initiated against the Applicant by issuing charge sheet dated 22.09.2014 (Annexure A12 of OA). This is in accordance with the liberty given by the Hon'ble High Court vide order dated 05.04.2014.
The order of the Hon'ble High Court with regard to taking any disciplinary action against the petitioner is very clear and the Respondent has merely exercised his right and initiated Disciplinary action without any ambiguity by following Rule 8 and 9 of the Discipline & Appeal of the company. It is submitted that the Hon'ble High Court in W.P.No.8747/2013 has partly allowed the Writ Petition vide order dated 05.04.2014 (Annexure A10 of OA) by setting aside the order dated 28.01.2013 passed by the Central Administrative Tribunal in TA. No.325/2010 and quashed the order dated 24.10.2008 issued by the second respondent. The Hon'ble High Court has not passed any order as to the prayer of the petitioner regarding backwages and continuity of service. The Applicant has not filed any SLP or review petition against the said order of High Court. The said Hon'ble High Court order has attained finality. Clause 16 the Discipline & Appeal Rules is not applicable in this case as the Applicant is reinstated in pursuance/ in compliance with the orders of the Hon'ble High Court and the disciplinary Authority or the Appellate Authority has not passed any order for reinstatement of the Applicant. This is clear from the letter dated 19.05.2014 as at Annexure Al 1 of the OA. Further the OA No.1305/2014 is not maintainable in this Tribunal in view of the fact that the Applicant is praying for direction to the authority for release of pay and allowances for the period from the date of his removal till the date of reinstatement and for direction to regulate the period of absence from service from 24.10.2008 to 19.05.2014, which the Hon'ble High Court has not allowed in the above referred writ petition. The removal order at Annexure A16 of the OA has been issued by the Disciplinary Authority based on the report of the Enquiry Committee and any ill motive in this regard is hereby denied.
The Disciplinary Authority has decided the quantum of punishment after - due application of mind and after consideration of all aspects including the reply | to the charge sheet, representations made by the Applicant in response to the 2m show cause notice. The punishment imposed on the Applicant is just and proper.
33 OA NO.736/2015/CAT/BANGALOREBesides the above, it is submitted that the Applicant was involved in a negligent act during 2006 for which he was issued with a minor charge sheet and was censured vide letter dated 24.04.2008. Copies of the said documents are at Annexure R1 & R2.
if the view of the Company must be that everyone involved in the transaction must be punished, it has come out in evidence at a joint meeting with the Chairman and Managing Director of the Company and its Senior Officers, in connection with another case revealed that:
1) The transporter was appointed by the company Headquarters.
2) The alleged inaction of the applicant is in relation to the interim release of the two trucks under Section 451 of CrPC.
3) If it were so important to the company, and as the Deputy General Manager was apparently made aware of this issue by the CISF Commandant, why was not the legal team of the Company involved.
Will it not point a finger towards the Headquarters at Bangalore.
4) Even otherwise, the Company has no right over the trucks.
5) The Coal and Coke belonging to the company was already recovered.
6) So, what is the loss sustained by the Company.
7) An audit was conducted by the Government and found no losses. Therefore, it is crystal clear that the scape goat operation was in full swing as:
1) The Company did not lose anything.
2) Apparently these same trucks were being used by the subsequent transport contractor inside the Company and even when it was ~ 4 i 34 _ OA NO.736/2015/CAT/BANGALORE apparently pointed out no action was taken (The CMD denied this allegation in joint meeting) Truth must prevail.
15. But then what is the central! issue involved in it can be a charge sheet devoid of common sense and ordinary merit to ascertain the negligence of the applicant. We have to look into what is the apparent duty of the applicant in this . matter.
1) It is company which had appointed a transporting contractor after apparently verifying their antecedents.
2) The company's goods and properties are protected by the CSIF.
3) It is for the owners to ship it and control all the property till all the goods are loaded into the truck which is done mechanically.
4) Nobody had a case that the trucks were unloaded at the disembarkation point.
5) It appears from the communication of the DGM that there had been discussion on how to disembark the coke and following this only applicant sought extra men for this. work. | |
6) It is correct that many of them had no marine experience but that is not relevant in this issue because no infraction took place at that point.
7) Normally when the matter was noted at the CISF check point and give to the next CSIF check point the material quantum should tally. If at the earlier point it was not recorded by the CISF, the element of doubt is on the CISF employees and not any of the company employees. Therefore, we can only find that the applicant had not breached any of the duties legally assigned to.
35 OA NO.736/2015/CAT/BANGALOREhim. It is not the duty of the applicant to go after every lorry and verify its contents and see that it reaches. It is the bounded duty of CISF to record the delivery notes before allowing the trucks to go out of NMPT gate. If it is not done action could be and should be taken against the transporter where the negligence is alleged and allegedly found.
16. Onthe other hand itis the case of both the company and the CISF that the entire property that was brought inside the company and vacant trucks were handed over to the local police and the order passed by the local Magistrate as the CISF did not approach this question even though they knew about it on 7.10.2008 itself. The CISF apparently kept the trucks and no one seem to have asked them what they were doing in-this connection. Between 7.10.2008 and 15.10.2008 things were being handled at their level only and what is it, is not known. The applicant was not involved in these things but even otherwise also the company could not have asked for retention of trucks as it is the part of _ material for trial, it is not the property of the company. These are deep waters which need to be expressed and explained by the company themselves. The allegation that these very same. trucks were operating inside the company, ona later date also seem to speak volumes. This seems that the applicant is made a scapegoat for the negligence or connivance of others. We have therefore held that the charges are absurd in the extreme and nothing more. The charges will not lie for these reasons. |
1) All the properties are recovered immediately by 5.30 am when it was brought inside the company premises.
36 OA NO.736/2015/CAT/BANGALORE2) There cannot be negligence on the part of the applicant that it is not his duty at any point of time to watch over all the trucks and it is also humanly impossible.
3) The witnesses examined on the part of the company are not capable enough for. defending the quantum and nature of the duties of the applicant and explain the negligence either. -- |
17. . Nobody seem to have answered the question put up by the applicant that on the same day the lorry came out in the 2™ and 3™ shift also and the CISF allowed to pass and only because another unit of CSIF caught hold of the Coke being dumped outside the private Gas Company that the whole thing came to light. Therefore the only assumption that can be drawn, if at all there can be any infraction it must be on the part of the NMPT or CSIF personnel along with the transporter and the applicant is being made a scapegoat. Therefore, on these elementary grounds the charge sHeet is absurd and will not lie under law. The presumption of charges with the list of witnesses as shown in the annexure to the charge sheet indicate that it is an attempted cover up and nothing more as if negligence is to be proven, the witnesses must be Senior Officers who are able to defend that their orders for protection of property of the Company were flouted by the applicant. Therefore the charge sheet itself will not lie under law. We | had gone through carefully the documentation and find that in no way had 'the inquiry had proven the charges against the applicant. Therefore, the charge sheet py 37 OA NO.736/2015/CAT/BANGALORE and its consequences are hereby quashed. The applicant will be eligible for reinstatement from the date 24.10.2008 and the suspension period should be treated as duty period for all purposes being blameless in this matter and may be victim of scapegoatism. 'He is eligible to have the entire back wages paid to him within next two months as the rulings of the Hon'ble Apex court in (1) 2001 (5) % SCC 142, (2) 2015 (11) SCC 626 and (3) 2015 (14) SCC 335 would determine , we have found that an absurd charge was burdened upon the applicant, there being not even a factual basis for the charge, it can only be assumed that it was only a "cover to manipulate issues before the Audit Committee appointed by the Government of India (who said that there was no loss). Therefore it was solely due to the fault of the Company and its Senior Officers that the Company could not benefit from the efforts of the applicant. Therefore he cannot be prejudiced and is eligible for all the back wages and allowances within next two months without interest and thereafter at the rate of GPF which is available now. Because we feel an active injustice have been done on him. The OA is allowed with a cost of Rs.10,000/-. The benefit of this shall be made available to the applicant within next two months and thereafter with interest at the rate of GPF now available. OA is allowed. : \, Co fp . | (DINESH SHARMA} | (DR.K.B.SURESH) MEMBER(A) MEMBER(J) sd 38 OA NO.736/2015/CAT/BANGALORE Annexures referred to by the applicant in OA No. 170/00736/2015 Annexure A1 Annexure A2 _ Annexure A3 Annexure A4 Annexure A5 Annexure A6 Annexure A7 . Annexure A8&
- Annexure AQ Annexure A10 Annexure A11 Annexure A12 Annexure A13 Annexure A14.
Annexure A15 Annexure A16 : Copy of order dated 21.09.2008 passed by the applicant terminating the work order issued to Hassan Hajee and Co. .
: Copy of the Complaint dated 21.9.2008 filed by the Applicant before the jurisdictional police.
: Copy of the charge sheet dated 27.09.2008 issued by The Company by the applicant to GM Material.
: Copy of the detailed report dated 27.09.2008 submitted by the applicant to GM Material.
: Copy of Memo dated 18.10.2008 issued by CMD to _ Applicant. .
: Copy of applicant's explanation to memo submitted on 20.10.2008.
: Copy of Discipline and Appeal rules of the Company : Copy of Order dated 24.10.2008 removing the applicant from service under clause 13(iii) of the D&A Rules, : Copy of order dated 28.1.2013 passed by CAT BG in TA No.325/2010. - .
: Copy of order dated 5.4.2014 passed in W.P.No.8747/2013 : Copy of the Reinstatement order dated 19.5.2014, : Copy of Charge memo dated 22.09.2014 ' . (impugned order) : Copy of WS dated 1.10.2014. .
- Copy of second show cause notice dated 24.3.2015 Along with inquiry report dated 73.2015, : Copy of the Representation dated 10.4.2015. | : Copy of the Punishment order dated 30.05.2015 (impugned order).
Annexures referred to by the Respondents
1.
2., Annexure R71 Annexure R2 --
' Copy of the charge sheet dated 06.10.2007 : Copy of the letter dated 24.4.2008 | : | 39 OA NO.736/2015/CAT/BANGALORE Annexures referred to by the applicant in REJOINDER
--k Annexure A' - Copy of the Cumulative Record
2. Annwxure A2 : Copy of the OM dated 1.1.2015 issued by CFTRI, Mysore.
3. Annexure A3 : Copy of the letter dated 24.12.2012 by CFTRI.
4. Annexure Ad : Copy of the letter dated 19.07.2006 issued by CFTRI, Mysore.
5. Annexure A4 : Copy of the letter dated 03.07.2015 issued by ~~ CFTRI, Mysore,
6. Annexure A4 : Copy of the letter dated Jul 2 issued by CFTRI, Mysore.
2 oe ok os ok a ok ok ok oof ok of ok ok