Dipak Chandra Choudhuri vs Steel Authority Of India Ltd.& on 6 September, 2016

[Cites 3, Cited by 0]

Jharkhand High Court

Dipak Chandra Choudhuri vs Steel Authority Of India Ltd.& on 6 September, 2016

Equivalent citations: 2017 AJR 193, (2017) 1 JCR 648 (JHA)

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4795 of 2009
Dipak Chandra Choudhuri, son of Late N.C. Choudhuri, resident of Sector-I/C,
Qr. No.80, Bokaro Steel City, P.O. & P.S. Bokaro Steel City, District Bokaro.
.... Petitioner
Versus
1. Steel Authority of India Ltd., through its Chairman, Ispat Bhawan Lodhi
Nagar, P.O., P.S. & District New Delhi.
2. Managing Director, Bokaro Steel Plant, Bokaro Steel City, P.O. & P.S.
Bokaro Steel City, District Bokaro.
3. General Manager (Refractories), Bokaro Steel Plant, Bokaro Steel City, P.O.
& P.S. Bokaro Steel City, District Bokaro.
4. General Manager (M & U ), Bokaro Steel Plant, Bokaro Steel City, P.O.
& P.S. Bokaro Steel City, District Bokaro. .... Respondents
---
CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK
---
For the Petitioner : Mr. R. S. Majumdar, Sr. Advocate &
Mr. Kumar Vaibhav, Adv.
For the Respondents-SAIL : Mr. Rajiv Ranjan, Sr. Advocate &
Mr. Shresth Gautam, Advocate
For the State : Mr. Pravin Kr. Rana, J.C to S.C (L &C)

-----
CAV on 18/04/2016 Pronounced on 06/09/2016
Per Pramath Patnaik, J.

In the accompanied writ application, the petitioner has inter-alia prayed

for quashing the order dated 23.06.2009 (Annexure-7) issued by the

disciplinary authority pertaining to removal of petitioner from the services of

the company and for quashing the order dated 04.09.2009 (Annexure-10)

issued by Chairman (appellate authority) in terms of which the respondent on

upholding the findings of the enquiry officer and disciplinary authority has

modified the order of punishment to reduction to a lower grade of E-6 and to

the lowest pay scale in the reduced grade and for direction to respondents to
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restore the petitioner to his original grade & Pay Scale (i.e. E-7 in the basic

scale of Rs. 25350/-) with all consequential benefits.

2. Sans details, the facts as disclosed in the writ application, in a nutshell,

is that the petitioner was posted as DGM (RMP). In pursuance to office order

dated 29.10.2007, all his actions were subject to the approval of the GM

(Ref.). The main duty assigned to the petitioner was to co-ordinate with other

concerned DGMs and AGMs, develop a plan and execute the same on

approval by the concerned GM. The petitioner was placed under suspension

vide office dated 07.04.2009 in contemplation of a departmental proceeding.

In the said office order vide Annexure-2, the statement of implication of

misconduct has been alleged against the petitioner for contravening Rule 4.0

(1) (ii), 4.0(2) and 5.0(9) of SAIL, Conduct, Discipline and Appeal Rules. In

pursuance to article of charges and implication of misconduct, the petitioner

submitted his reply denying the charges. In the reply, it has been asserted by

the petitioner that on account of inferior refractory bricks, the kiln were not

functioning properly, for which he took proper measures planning and

managing to over come the defects but inspite of his best judgment, not much

could be done to minimize the loss. The petitioner also denied the allegations

of lack of devotion to duty and integrity. The aforesaid reply of the petitioner

was not found satisfactory hence an inquiry committee was constituted and

the petitioner was directed to appear before the enquiry committee. The

petitioner was provided with a questionnaire and was asked to reply to the

queries. The petitioner gave answer to the said queries. During inquiry the

petitioner was not given opportunity to cross examine the management

witnesses. The inquiry committee submitted its report but the same was not

provided to the petitioner to enable him to file his defence against the
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findings of the inquiry committee. On 23.06.2009, the disciplinary authority

vide Annexure-7 to the writ application imposed a punishment of removal

from services of the company, which shall not be a disqualification for future

employment. On receipt of the order of disciplinary authority, the petitioner

preferred an appeal before the appellate authority vide Annexure-10 to the

writ application. The appellate authority modified the order of the

disciplinary authority and imposed a punishment of reduction to E-6 grade

and to the lowest pay scale in the aforesaid grade. B eing aggrieved by and

dissatisfied with the order passed by the disciplinary as well as appellate

authority, the petitioner, left with no other alternative efficacious and speedy

remedy has approached this Court invoking extra-ordinary jurisdiction under

Article 226 of the Constitution of India for redressal of his grievances.

3. Mr. R. S. Majumdar, learned senior counsel for the petitioner has

strenuously urged that the article of charges and statement of implication of

misconduct against the petitioner does not constitute a misconduct under the

SAIL, Conduct, Discipline and Appeal Rules. Learned senior counsel for the

petitioner further submits that the departmental enquiry has been conducted

against the petitioner in violation of the aforesaid provisions and there has

been contravention of principles of natural justice and fair play and the

impugned order inflicting major punishment has been passed in violation of

Article 14 of the Constitution of India. Learned counsel further submits that

the impugned order of punishment by the disciplinary as well as appellate

authority dated 23.06.2009 and 04.09.2009 have been passed without second

show cause notice. Learned senior counsel during course of hearing has

referred to the decisions of Hon'ble Apex Court as reported in (2010) 11 SCC
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278 in the case of Indu Bhushan Dwivedi v. State of Jharkhand at paragraph

nos. 22 and 23, which is quoted hereinbelow-

22. As a general rule, an authority entrusted with the task of deciding
lis between the parties or empowered to make an order which
prejudicially affects the rights of any individual or visits him with civil
consequences is duty-bound to act in consonance with the basic rules
of natural justice including the one that material sought to be used
against the person concerned must be disclosed to him and he should
be given an opportunity to explain his position. This unwritten right of
hearing is fundamental to a just decision, which forms an integral
part of the concept of rule of law. This right has its roots in the notion
of fair procedure. It draws the attention of the authority concerned to
the imperative necessity of not overlooking the cause which may be
shown by the other side before coming to its decision.
23. When it comes to taking of disciplinary action against a
delinquent employee, the employer is not only required to make the
employee aware of the specific imputations of misconduct but also to
disclose the material sought to be used against him and give him a
reasonable opportunity of explaining his position or defending
himself. If the employer uses some material adverse to the employee
about which the latter is not given notice, the final decision gets
vitiated on the ground of the violation of the rule of audi alteram
partem. Even if there are no statutory rules which regulate holding of
disciplinary enquiry against a delinquent employee, the employer is
duty-bound to act in consonance with the rules of natural justice".

Learned senior counsel has also referred to the decisions as reported in 2014

(2) JLJR 5 in the case of Shanti Devi Vs. The State of Jharkhand & Ors. at

paragraph nos. 10 and 11, which is quoted hereinbelow-

"10. On an anonymous complaint as would appear, the matter
has been inquired by the three Deputy Superintendent of
Police of JAP-10 and the petitioner was also called to give her
answer which is enclosed to the inquiry report of the 3 Dy.
S.P.s of JAP-10, Annexure-A to the counter affidavit. On
perusal of the inquiry report it further appears that apart from
the 3 Dy.S.P. Of JAP-10, who had submitted the preliminary
report, one another witness have been examined. It however,
appears that the Inquiry Officer after taking into account the
materials adduced during the course of inquiry and the
preliminary inquiry report reiterated by the 3 prosecution
witnesses has held the petitioner guilty. Apparently, after the
aforesaid findings of guilt by the Inquiry Officer, no second
show cause notice has been issued neither the copy of the
inquiry report was served upon the petitioner to allow her to
offer her reply to the same before the Disciplinary Authority
before he proceeded to pass an order of punishment. The
requirement of second show cause notice and service of the
inquiry report has been held to be an integral part of the
conduct of the Disciplinary proceeding by the celebrated
judgments rendered by the Hon'ble Supreme Court in the case
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of Union of India & others Vrs. Mohd. Ramzan Khan
reported in (1991) 1 SCC 588 and also in the case of
Managing Director, ECIL Hyderabad and Ors. Vrs. B.
Karunakar & ors. reported in (1993)4 SCC 727. Para 15 and
18 of the judgment rendered in the case of Union of India &
others Vrs. Mohd. Ramzan Khan(supra) is reproduced herein
below for better appreciation of the case.
"Para 15:- Deletion of the second opportunity
from the scheme of Article 311(2) of the Constitution
has nothing to do with providing of a copy of the
report to the delinquent in the matter of making his
representation. Even though the second stage of the
inquiry in Article 311(2) has been abolished by
amendment, the delinquent is still entitled to represent
against the conclusion of the Inquiry Officer holding
that the charges or some of the charges are
established and holding the delinquent guilty of such
charges. For doing away with the effect of the enquiry
report or to meet the recommendations of the Inquiry
Officer in the matter of imposition of punishment,
furnishing a copy of the report becomes necessary and
to have the proceeding completed by using some
material behind the back of the delinquent is a
position not countenanced by fair procedure. While by
law application of natural justice could be totally
ruled out or truncated, nothing has been done here
which could be taken as keeping natural justice out of
the proceedings and the series of pronouncements of
this Court making rules of natural justice applicable
to such an inquiry are not affected by the Forty-
second Amendment. We, therefore, come to the
conclusion that supply of a copy of the inquiry report
along with recommendation, if any, in the matter of
proposed punishment to be inflicted would be within
the rules of natural justice and the delinquent would,
therefore, be entitled to the supply of a copy thereof.
The Forty-second Amendment has not brought about
any change in this position.
Para18:- We make it clear that wherever there
has been an Inquiry Officer and he has furnished a
report to the disciplinary authority at the conclusion of
the inquiry holding the delinquent guilty of all or any
of the charges with proposal for any particular
punishment or not, the delinquent is entitled to a copy
of such report and will also be entitled to make a
representation against it, if he so desires, and non-
furnishing of the report would amount to violation of
rules of natural justice and make the final order liable
to challenge hereafter".
11. The Hon'ble Supreme Court held that the Disciplinary
Authority is required to exercise his independent mind before
passing the order of punishment after taking into account the
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material adduced in the inquiry together with the reply to the
second show cause by the delinquent employee. In the instant
cases as it appears the impugned order has been passed
without service of inquiry report and the second show cause,
which obviously has vitiated the conduct of the disciplinary
proceeding and prejudiced the petitioner."

4. Mr. Rajiv Ranjan, learned senior counsel for the respondent-SAIL has

reiterated the submissions made in the counter-affidavit. Learned senior

counsel for the respondents-SAIL has vehemently submitted that the

petitioner has not pleaded as to what prejudice has been caused to him

moreover, the appellate authority has passed modified order of punishment to

lowering down the grade which is commensurate to the proved charges

levelled against the petitioner. Learned senior counsel for the respondent-

SAIL further submits that the petitioner was incharge and head of RMP

which may be seen in the statement of article of charges therefore he was

responsible and accountable for the affairs of the RMP. During course of

hearing, learned senior counsel for the respondents has referred to Rule

4.0(1), (ii) of Conduct, Discipline and Appeal Rules which inter-alia

envisages that every employee of the company shall all time maintain

devotion to duty and its contravention amounts to misconduct. Further, Rule

5.0(9) of the said Rules prescribes the neglect of work or negligence in the

performance of duty including lingering or slowing down of work is

misconduct. Learned senior counsel submits that there has been no

procedural irregularity in the inquiry and therefore, the petitioner had not

been denied natural justice. During course of hearing learned counsel for the

respondents has referred to the decisions of Hon'ble Apex Court as reported

in (2010) 3 SCC 556 in the case of Sarva Uttar Pradesh Gramin Bank Vs.

Manoj Kumar Sinha, at paragraph 38, thereof is quoted hereinbelow-
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38. We have examined the factual situation in this case elaborately to see as
to whether any prejudice has been caused to the respondent. We are unable
to accept the submissions of the learned counsel for the respondent that any
prejudice has been actually caused. We are of the considered opinion that
there has been no failure of justice in the facts and circumstances of this
case by non-supply of the enquiry report to the respondent.

Learned senior counsel has also referred to the decisions as reported in

2010 (5) SCC 349 in the case of Union of India And Others Vs. Alok Kumar

(with Analogous cases).

The Hon'ble Apex Court has held that unless prejudice is shown to

have been caused by non-supply of the inquiry report, it could not amount to

failure of justice.

5. After hearing learned counsel for the respective parties at length and on

perusal of the evidences on records, I am of the considered view that the

petitioner has been able to make out a case for interference due to the

following facts and reasons stated hereinbelow:-

(i) On perusal of the statement of article of charges fell against the

petitioner, who assumed his charge as DGM(RMP). At the relevant point

of time, the lime production have gone down, which has adversely

effected steel and hot metal production. The situation has occurred due

to poor planning and management on the part of the petitioner and the

onus was made to keep the shop in working order but the lime

production has been adversely affected. The action on the part of the

petitioner amounts to lack of maintaining devotion to duty and

negligence in the performance of his duties. It has been alleged that the

charges have been framed against him for contravention of relevant Rule

of SAIL, Conduct, Discipline and Appeal Rules. On perusal of the

statement of defence, Annexure-4 to the writ application, the petitioner

owned the responsibility for forcing shut down of one blast furnace on
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moral grounds. But, from the perusal of the order dated 04.09.2009 of

the appellate authority it is manifestly clear that the appellate authority

was of the opinion that there were 3 more DGMs in the department, who

were also responsible for the mishap on 03.04.2009 and, therefore, the

mishap was not the sole responsibility of the petitioner. However, to the

best of knowledge of the petitioner, no departmental proceeding has been

initiated or any responsibility has been fixed on the other 3 DGMs, who

were also responsible for the alleged misconduct, for which the

petitioner has been charged though the petitioner could not have

abdicated his responsibility, but, at the same time all the blame could not

have been fastened on the petitioner alone.

(ii) Although, the appellate authority has modified the penalty of

removal from the services of the company to the penalty of reduction to

a lower grade in E-6 grade, in the scale of pay but certainly the reduction

of pay is a major punishment. Moreover, as stated in the appellate order,

there are three more DGMs in the department therefore, the mishap

which occurred on 03.04.2009 was not the sole failure on the part of the

petitioner. But, since the petitioner has been subjected to rigors of the

disciplinary proceeding and he has been found guilty by the inquiry

committee, the petitioner cannot be absolved of his guilt. In the

meantime, as stated by the learned senior counsel for the petitioner, the

petitioner superannuated in the month of March, 2010 and the reduction

of pay E-6 grade has adversely affected the pay of the petitioner, which

got adverse affect to the post retiral benefits of the petitioner. Since the

mishap dated 03.04.2009 was due to the collective in-action on the part

of the petitioner as well as other three DGM's, when other three have
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been let off given a clean chit, the petitioner can not be discriminated on

the impugned order of punishment of reduction of pay scale. On the facts

and circumstances of the case the impugned order of punishment dated

04.09.2009

passed by the appellate authority i.e. relating to penalty of reduction to E-6 grade and pay appears to be unjustified being hit by vice of hostile discrimination.

6. The impugned order of punishment dated 23.06.2009 (Annexure-7) being modified by the appellate authority are not legally sustainable. In view of the aforesaid reasons, the impugned order of punishment dated 23.06.2009 passed by the disciplinary authority and the order dated 04.09.2009 (Annexure-

10) passed by the Appellate Authority are hereby, quashed and set aside and the respondents are directed to restore the petitioner with his original cadre and pay scale i.e. E-7 with all consequential benefits.

With the aforesaid direction, the writ petition stands allowed.

(Pramath Patnaik, J.) RKM/-

N.A.F.R.

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