Himachal Pradesh High Court
Yashpal Singh vs National Textile Corporation Ltd. And ... on 28 July, 1998
Equivalent citations: (2000)ILLJ659HP
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
JUDGMENT
Kamlesh Sharma, ACJ.
1. In the above writ petition, the Petitioner has prayed for the quashing of order dated August 29, 1996 (Annexure P-1) whereby major penalty of dismissal from the service of respondent No. 1 Corporation as Senior Salesman and Incharge of Solan Show Room was imposed upon him, and also order dated June 4, 1997 (Annexure P-13) whereby the decision of the Appellate Authority rejecting the appeal of the petitioner against dismissal order was conveyed to him.
2. From the pleadings on record, it is not in dispute that the petitioner joined the service of the respondent-Corporation as Salesman in the year 1980 at Amritsar. He was transferred to Solan Show Room of the respondent-Corporation in the month of November 1988, where he worked till August 29, 1996. According to the petitioner at Solan Show Room, he was only Salesman and one G.K. Sharma was Incharge, who had joined in the year 1991 and even after he was made Incharge of Shimla Show Room later on, he continued holding the charge of Solan Show Room. Denying these allegations, the respondents have stated in their reply that W.e.f. June 1, 1993 till October 15, 1994, the petitioner had been officiating as Incharge of Solan Show Room for which officiating allowance was also drawn by him as per the Rules of the respondent-Corporation and the petitioner is guilty of suppressing these material facts, on which ground alone his writ petition deserves to be dismissed.
3. It is not in dispute that the petitioner was put under suspension vide order dated September 20, 1994 and he was given charge-sheet on May 22, 1995, against which he had filed C.W.P. No.2460/1995 in which besides challenging the order of suspension a prayer was also made for quashing of FIR No. 216 of 1995 dated August 20, 1995. The said writ petition was disposed of by this Court on July 12, 1996 (Annexure R-1) by giving the following directions:--
".......In the facts and circumstances on record that inquiry has been completed by the Enquiry Officer and the investigation in F.LR. No. 216 of 1995 dated August 24, 1995 is at advance stage, no order is required to be passed in this petition save and except that disciplinary authority will pass final order in accordance with law after considering the report of the Enquiry Officer in the disciplinary proceedings within a period of six months from today. The investigation in F.I.R. No. 216/1995 dated August 24, 1995 will also be completed and challan will be put up in the appropriate Court within a period of two months...".
Thereafter, the impugned order dated August 29, 1996 (Annexure P-1) dismissing the petition was passed, against which the petitioner preferred his appeal dated September 13, 1996 (Annexure P-11). Before the outcome of the appeal, the petitioner filed C.W.P. No. 1968 of 1996, which was disposed of on December 10, 1996 with the direction to the Appellate Authority, namely, Chairman-cum-Managing Director of the first respondent to dispose of the appeal within six weeks from the date of the receipt of the said order. Accordingly, the appeal was disposed of by the Appellate Authority on December 23, 1996 as conveyed to the petitioner through his Counsel vide letter dated June 4, 1997 (Annexure P-13). The order dated January 16, 1997 passed by the Appellate Authority is also on record as appendix to Annexure P-13.
4. This Court has heard learned Counsel for the parties and gone through the record. Learned Counsel, Ms. Pratima Malhotra appearing for the petitioner, has assailed the impugned order dismissing the petitioner from the services of the respondent Corporation on two grounds. Firstly, that it was not passed by the competent authority as prescribed under the Rules and secondly, that the inquiry report, which was the basis of the impugned order of dismissal, was vitiated for the reason that the documents asked for by the petitioner by his letters Annexures P-7 and P-8 were not supplied to him. On the other hand, Mr. Bhupender Gupta, learned Counsel appearing for the respondents, has raised preliminary objections that the petitioner has interpolated the words "by incompetent-person" in third line of second para and also the "words "the documents are not even supplied" in the end of second para of his memorandum of appeal and on this ground alone, his writ petition deserves to be dismissed. He has further submitted that if this preliminary objection is upheld, it will be established on record that both these grounds that the impugned order of dismissal is not passed by the competent authority and also that the inquiry report is vitiated as documents asked for by the petitioner were not supplied to him were not raised in the appeal and are being raised for the first time in this writ petition, which should not be permitted. To substantiate his submission, Mr. Bhupender Gupta, Learned Counsel has shown the Memo from the records of the respondents, which was received and dealt with by the Appellate Authority.
5. Be that as it may, this preliminary objection should not hold this Court to decide the points raised by the petitioner on merits for the reason that this objection was not taken in the earlier writ petitions, in which the memorandum of appeal (Annexure P-11) was annexed with the writ petition along with the alleged interpolations. Otherwise also the first point is of jurisdiction which can even be raised for the first time in the writ petition.
6. In support of her first point, Ms. Malhotra has referred to Rule 2 of the National Textile Corporation (Delhi, Punjab and Rajasthan) Limited Employees Conduct, Discipline and Appeal Rules, 1975 (hereinafter referred to as 'the Rules'). It is :--
"Rule 2. Application These rules shall apply to all employees except:
(i) Those in casual employment or paid from contingencies;
(ii) Those governed by the Standing Orders under the Industrial Employment (Standing Orders) Act, 1946;
(iii) Those employed in the Show Rooms (Excluding Manager/Incharge of a Show Room/CDS) of National Textile Corporation (DP&R) Ltd. and governed by the Shops and Establishments Act of the State/Union Territory concerned."
The precise contention of the learned Counsel is that the petitioner was employed in the show room as salesman, therefore, these Rules do not apply and the Shops and Establishments Act of Himachal Pradesh would apply to him.
7. On the other hand, learned Counsel for the respondents has pointed out that as stated in the reply to the respondents, the petitioner at the relevant time i.e. from June 1, 1993 till October 15, 1994 was officiating as Incharge Show Room, for which purpose he had also drawn the officiating allowance as per the rules of the respondent-Corporation and he was referred to as such in the charge-sheet, inquiry report and the impugned order as well as other correspondence exchanged between him and the respondent Corporation, to which he never objected.
8. After considering the respective contentions of the parties and the material on record, we are of the view that the petitioner was officiating Incharge (under suspension) of Solan Show Room at the time the order of dismissal was passed. In all the documents before us, he has been described as Senior Salesman/Incharge, Show Room (under suspension), to which he had never objected before filing this writ petition. In fact, the disciplinary proceedings against the petitioner were held under these Rules and he had never objected to it, which shows that only to wriggle out of these Rules, the petitioner has taken the stand that he, was only an employee of the Show Room being a salesman and was not Incharge thereof. Assuming these Rules do not apply to the petitioner and he is governed by the Shops and Establishments Act of the State of Himachal Pradesh, the learned Counsel for the petitioner has not referred to any provision thereof to show how it helps the petitioner to challenge his order of dismissal. Therefore, we hold that these Rules govern the petitioner and the disciplinary proceedings have rightly been held against him under these Rules.
9. Further submission of Ms. Malhotra, learned Counsel for the petitioner, is that as per Clause 1 of Schedule A to the Rules the appointing authority/disciplinary authority/ competent authority in the case of the petitioner is Chairman-cum-Managing Director as the maximum of his scale of pay did not exceed Rs. 2,000/- but in fact, the impugned order of dismissal was passed by Director (Commercial) of the respondent-Corporation, though it is stated at the end of the impugned order of dismissal (Annexure P-1) that, "This issues with the approval of Competent Authority." In reply to this submission Mr. Bhupender Gupta, learned Counsel for the respondents, has reiterated that the impugned order of dismissal (Annexure P-1) is valid as it is passed by the Competent Authority. In these circumstances, we have perused the record and to our utter surprise we find that the case of the petitioner was placed before the Deputy General Manager, (Show Room) by the Senior Assistant of the respondent-Corporation for passing orders to impose penalty on the petitioner on the basis of inquiry report, who by a cryptic order recommended that major penalty may be imposed in view of serious nature of the charges levelled against him. It was also stated that before placing the matter before the Competent Authority the Senior Manager (Vigilance) and Assistant Manager (Law) may also see it. Accordingly, both these officers had simply seen and signed it without making any note on it. Thereafter, the file reached the Director (Commercial) who placed it before the Chairman-cum-Managing Director with his cryptic note that it will be proper to impose the penalty of dismissal from service upon the petitioner in view of the charges levelled against him, which may be approved. Accordingly, the suggestion of the Director (Commercial) was given approval by writing one word 'approved'.
10. In view of these facts and circumstances on record, we have no hesitation to hold that the Chairman-cum-Managing Director who is the Competent Authority to impose the penalty of dismissal upon the petitioner has not passed the impugned order of dismissal after applying his mind to the inquiry report, representation of the petitioner against the inquiry report and other facts and circumstances on record. He had mechanically approved the proposal of the Director (Commercial), who had also not examined the matter before making his proposal. In fact, the matter has been dealt with as routine administrative matter, whereas, it was a quasi-judicial matter involving service career of the petitioner and the Competent Authority was required to pass speaking order by giving reasons for imposing the penalty after considering the inquiry report, representation of the petitioner and other material concerning disciplinary proceedings on record. We may hold that whenever an Authority decides a matter, which entails civil consequences to the person concerned, it must pass speaking order giving reasons.
11. Therefore, we declare that the impugned order of dismissal (Annexure P-1) is not passed by the Competent Authority in accordance with law, hence it is illegal and void ab initio, and is quashed, as a consequence of which the order (Annexure P-13) passed by the Appellate Authority rejecting the appeal of the petitioner will also stand quashed. However, in the facts and circumstances on record we direct that appropriate decision will be taken by the Competent Authority on the basis of the inquiry report within a period of two months from today. If the decision goes against the petitioner, he may have recourse to legal remedy available to him under the Rules or otherwise. In view of this, we need not decide the other points raised by the petitioner.
12. The writ petition is accordingly disposed of. There is no order as to costs.