Bombay High Court
Pradeep Rajkumar Jain vs Manganese Ore (India) Ltd., A Govt. Of ... on 4 April, 2017
Author: Vasanti A Naik
Bench: Vasanti A Naik, Swapna Joshi
WP 1780/09 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1780/2009
Pradeep S/o Rajkumar Jain,
aged about 42 years, occupation:nil,
resident of Azad Chowk, 309, Sadar, Nagpur. PETITIONER
.....VERSUS.....
1. Manganese Ore (India) Limited,
A government of India Undertaking,
having its Office at Katol Road,
Chaoni, Nagpur.
2. The Chairman cum Managing Director,
Manganese Ore (India) Limited,
A government of India Undertaking,
having its Office at Katol Road,
Chaoni, Nagpur.
3. Agent and Deputy General Manger (Production),
Group-III, Manganese Ore (India) Limited,
Katol Road, Chaoni, Nagpur.
4. Mine Manager,
Manganese Ore (India) Limited,
Beldongri Mine, Tahsil Ramtek,
District Nagpur.
5. Shri S.K. Lal,
Enquiry Officer, Chief (Personnel),
Manganese Ore (India) Limited,
Katol Road, Chaoni, Nagpur. RESPONDENTS
Shri S. Agrawal, counsel holding for Shri V.S. Mishra, counsel for the petitioner.
Shri Masood Shareef, counsel for the respondents.
CORAM :SMT.VASANTI A NAIK AND
MRS. SWAPNA JOSHI, JJ.
DATE : 4 TH APRIL, 2017.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
By this writ petition, the petitioner challenges the order of the Deputy General Manager (Production), dated 12.08.2008 removing the ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 2 Judgment petitioner from service. The petitioner also challenges the order of the appellate authority, dated 24.10.2008 dismissing the statutory appeal filed by the petitioner and upholding the order of removal of the petitioner.
2. The petitioner was appointed by the respondent-Manganese Ore India Limited on the post of Manager (Finance) on 22.10.1997. At the relevant time when the petitioner was posted at Beldongri mine, the petitioner was served with the notices dated 25.07.2007 and 06.09.2007 asking him to show cause as to why he had reported late for duty from 22.07.2007 to 25.07.2007. The petitioner replied to the show cause notices and submitted that the father of the petitioner had expired untimely on 07.07.2007 and since there were some religious functions at the residence of the father of the petitioner at Nagpur, the petitioner could not report for duty on time. The petitioner tendered his apology for reporting late to the mines from 22.07.2007 to 25.07.2007. A memorandum was, however, issued to the petitioner on 13.09.2007 warning the petitioner that the language used in the first paragraph of his reply to the show cause notice was not proper. It was informed to the petitioner that since the petitioner had tendered the apology for reporting late for duty, the petitioner should ensure that he should not repeat the said act in future. Though by the memorandum, dated 13.09.2007, the petitioner was warned, by an order, dated 05.10.2007, the petitioner was ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 3 Judgment suspended and was informed that a departmental enquiry would be conducted against him. The following four charges were levelled against the petitioner in the departmental enquiry.
"28(viii) - Habitual late coming:
That, the said Shri P.K. Jain, while functioning as Dy. Chief (Fin.) Beldongri Mine on 25.07.2007 has reported to duty at 9.30 a.m. whereas scheduled time of commencement of duty is 8.00 a.m. Shri P.K. Jain has not only came late on 25.07.2007 in the past also he was regularly coming late since 22.07.2007 to 24.07.2007, which shows the habitual late coming trend of Shri P.K. Jain. The above act of Shri P.K. Jain constituted an act of misconduct. Shri P.K. Jain by the above act of misconduct as thereby volated Sub Rule (viii) of Rule 28 of MOIL Conduct Rules, 1978.
B) Charge (II) 28(ii) - Willful insubordination of disobedience, whether or not in combination with other or any lawful and reasonable order of his superior or commission of any acts subversive of discipline or of good behaviour -
Shri P.K. Jain has been instructed to complete the work pertaining to revised budget for the year 07-08 and budget 08-09 pertaining to Beldongri Mine which was an important work. Even after the issuance of several verbal & written instructions vide letter No.26/CH/Bel/07-08/1431 dtd. 25/7/2007 Shri P.K. Jain has not complied the instructions of Mine Manager and left the head quarters Beldongri Mine without obtaining permission.
The above act on the part of Shri P.K. Jain constitute an act of misconduct. Shri P.K. Jain as thereby violated Sub-Rule (ii) of Rule of MOIL Conduct Rules, 1978.
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WP 1780/09 4 Judgment
C) Charge (III)
28(xiii) - Habitual negligence or neglect of work or
indiscipline -
During the inspection of Accounts Department, Beldongri Mine, it is found that as a incharge of Accounts Department of Beldongri Mine, Shri P.K. Jain, Dy. Chief (Fin.) has not maintained the records properly and not followed the rules & regulations of the Company. The above act of misconduct thereby violated the Sub Rule (xiii) of Rule 28 of MOIL Employees Conduct Rules.
D) Charge (IV) 28(xiv) - Willful damage to work in process or to any property of the Company -
Shri P.K. Jain as a professionally qualified executive & an Incharge of accounts department of Beldongri Mine, Shri P.K. Jain is well aware of rules and regulations of the Company and willfully he has tried to damage the work process of the Company by alleged negligence towards his duties which thereby is a violation of MOIL employees (Conduct) Rules, 1978."
3. The petitioner submitted his explanation to the charges. The petitioner stated that since he was already warned for reporting late on duty for four days, i.e. from 22 nd to 25th of July, 2007, a departmental enquiry could not have been initiated against the petitioner. In respect of the first charge, the petitioner pointed out that he had reported late on duty on those days as his father had suffered an untimely death and some religious rituals were required to be performed at the residence of ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 5 Judgment his father at Nagpur on those four days. In respect of the second charge, the petitioner explained that he had tried to complete the work pertaining to the revised budget for the year 2007-08 and the budget for the year 2008-09 pertaining to Beldongri mine and the work sought to be completed by the petitioner was a team work and the petitioner alone could not have been held responsible for the same. In regard to the third charge of habitual negligence, the petitioner informed the respondents that the charge was very vague and no details were provided as to how the petitioner did not follow the rules and regulations and had not maintained the records properly. We would not refer to the explanation of the petitioner to the fourth charge as only three charges are held to be proved against the petitioner in the departmental enquiry. A departmental enquiry was conducted against the petitioner and the enquiry officer held that the first three charges levelled against the petitioner were proved. The disciplinary authority passed the order of removal of the petitioner from service. The appellate authority upheld the order of the disciplinary authority. The petitioner has challenged the orders of the disciplinary and the appellate authority in the instant petition.
4. Shri Agrawal, the learned counsel for the petitioner, submitted that the petitioner is victimized by the respondents. It is submitted that the petitioner was served with a show cause notice and after he tendered his explanation in respect of his reporting late on duty from 22 nd to 25th of July, ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 6 Judgment 2007, a minor punishment was inflicted on the petitioner inasmuch as the petitioner was warned. It is submitted that the charge of not maintaining the record properly and not performing the work as per the rules and regulations, i.e. charge no.3 is as vague as it could be. It is submitted that no particulars or details were mentioned in the charge-sheet to point out as to what duties the petitioner did not perform according to the rules and regulations and as to how he had failed in maintaining the record. It is submitted that in respect of the second charge also, the petitioner had tendered a proper explanation that the work of preparing a revised budget and a budget could not have been done by the petitioner alone and the whole team was required to ensure that the revised budget and the budget should be prepared. It is submitted that the departmental enquiry was conducted against the petitioner in violation of the principles of natural justice. It is stated that though the petitioner had sought for the necessary documents, he was informed that documents could be supplied to him only in respect of charge nos.1 and 2 and the petitioner should verify the documents pertaining to charge nos.3 and 4 only by perusing the original record at the time of the enquiry. It is submitted that when the petitioner sought for a copy of the deposition of the first witness examined on behalf of the respondents so that the petitioner could cross-examine the witness, the petitioner was informed, as could be seen from the enquiry report, that after the culmination of the enquiry, the petitioner would be supplied with the copies of the proceedings in the enquiry. It is submitted that though the ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 7 Judgment enquiry proceedings were fixed at 11.00 a.m. on 23.04.2008, the petitioner had received the notice of the enquiry proceedings at 1.00 p.m. on 23.04.2008. It is submitted that the petitioner was out of station due to the death of his relative till 28.04.2008 and although the petitioner made two applications to the enquiry officer that the enquiry proceedings may be adjourned to a date after 28.04.2008, the enquiry officer deliberately fixed the enquiry on 20.02.2008 and 27.02.2008 on which dates, even the presenting officer was absent. It is submitted that when the petitioner was to return on 28.02.2008, the enquiry was deliberately fixed on 27.02.2008. It is submitted that since the third witness was examined behind the back of the petitioner and the second witness was examined at 11.00 a.m. on 24.03.2008, of which the petitioner did not have a notice, the petitioner could not cross-examine the witnesses. It is submitted that the charge levelled against the petitioner pertained to not staying in the quarter but, the enquiry officer has held that the petitioner was staying at Nagpur and was doing up and down from Nagpur to attend his duties at Beldongri mine, though it was not the charge. It is submitted that since the enquiry is conducted against the petitioner in violation of the principles of natural justice, the orders of the disciplinary and appellate authority are liable to be set aside.
5. Shri Shareef, the learned counsel for the respondents, has supported the orders of the disciplinary and the appellate authority. It is ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 8 Judgment submitted that the enquiry officer, on an appreciation of the material on record, has rightly held that the charge nos.1, 2 and 3 were proved against the petitioner. It is submitted that in respect of the third charge, at the time of enquiry, the petitioner was supplied with the documents to show, what irregularities were committed by him in maintaining the record. It is submitted that the petitioner was asked to be careful at the time of conducting the examination-in-chief of the witnesses examined on behalf of the respondents and to conduct the cross-examination on that basis. It is submitted that the relevant documents were supplied to the petitioner during the course of the enquiry. It is submitted that the original documents were made available at the time of the enquiry and, hence, it was not necessary to supply the copies of those documents to the petitioner in respect of charge nos.3 and 4. It is submitted that the petitioner was made aware of the next date of the enquiry on the previous date on which the enquiry was conducted. The learned counsel sought for the dismissal of the writ petition.
6. On a perusal of the documents annexed to the writ petition, we find much force in the submission made on behalf fo the petitioner that the petitioner is victimized by the respondents and a fair and reasonable opportunity was not granted to the petitioner to defend the charges. Two notices were served on the petitioner on 25.07.2007 and 06.09.2007 asking him to show cause as to why he had reported late for duty from 22.07.2007 to 25.07.2007. The petitioner replied to the said notices that his father had ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 9 Judgment expired untimely on 07.07.2007 and since the rituals were to be performed at his fathers house in Nagpur from the thirteenth day of the death, the petitioner had reported late for duty on those days. The petitioner apologized for his lapse. The respondents accepted the apology and warned the petitioner that he should not commit the same mistake in future. After the memorandum and warning was issued to the petitioner, the respondents again served a charge-sheet on the petitioner in which the charge of reporting late on duty on those four days was framed against the petitioner. The second charge was in respect of not preparing the revised budget and the budget for the year 2007-08. The petitioner had replied to the said charge and stated that the preparation of the revised budget for the current year and the budgetary allocation for the next year requires date in respect of monthly and quarterly payments, future planning and the other aspects need to be discussed with the heads of the various departments, including the in depth examination of proposed budget, etc. It was pointed out by the petitioner that the revised budget for the current year and preparing the budget estimate for the next year would involve team work and the petitioner was already served with a warning in respect of this charge on 13.09.2007 and the chapter in this regard was closed. In regard to the third article of charge, the petitioner had specifically mentioned in the reply that the charge was as vague as it could be. No details were furnished in respect of the third charge to the petitioner. It was vaguely stated in the said charge that the petitioner did not maintain the records properly and failed to ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 10 Judgment perform his duties as per the rules and regulations. What records were not maintained by the petitioner and what were the duties that the petitioner did not perform as per the rules and regulations was, however, not mentioned in the charge. On such a vague charge as Charge No.3, no employee could have furnished an explanation. An explanation could be furnished only if a specific charge mentioning the irregularities or illegalities committed by an employee is framed. In the enquiry, several documents were produced by the respondents and it was held that the petitioner did not sign the Daily Cash Verification Register, Contractors Provisional Account Code was not maintained properly, Local Suppliers Account Entry was not passed in a proper manner, proper provision for trial balance from September-2007 was not made, stores accounts were showing negative balance and there were some irregularities in store entries, etc. If an employee is specifically charged of not signing the daily cash verification register or not passing the suppliers account entry or not maintaining the contractors provisional account code, etc., the employee would be in a position to refute the charges, however the respondent had framed the third charge very vaguely that the petitioner had not maintained the records properly and had not followed the rules and regulations of the company.
7. Apart from wrongful framing of Charge No.3, we find that the petitioner was punished in respect of the first charge of reporting late for duty on four days and a minor penalty of 'warning' was imposed on the ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 11 Judgment petitioner. Within a few days, a charge-sheet was served on the petitioner in which the said charge again finds place. In our view, after having imposed a minor penalty on the petitioner in respect of the charge of reporting late on four days and after having accepted the apology of the petitioner, the petitioner could not have been proceeded against departmentally on the same charge. In the departmental enquiry, we find that the petitioner was not granted a fair opportunity to defend himself. When the petitioner sought for the documents pertaining to the charges levelled against him, the petitioner was informed that only copies of documents pertaining to the first two charges could be supplied to him but the documents pertaining to the third and fourth charge could not be supplied to him. The petitioner was asked to have a look at the original record which contained the documents pertaining to the third and fourth charge during the enquiry. When the petitioner asked for a copy of the deposition of the witnesses examined on behalf of the respondent so that the petitioner could cross-examine the said witnesses as the petitioner was defending himself and had not engaged an assistant to defend him, the petitioner was informed that he would be provided with the copies of the entire proceedings after the proceedings were over. The enquiry officer has made a reference to this, in his enquiry report. The enquiry officer has further mentioned in the enquiry report that before the beginning of the enquiry, the petitioner was informed that he has to be attentive during the enquiry and he should cross-examine the witnesses examined on behalf of the respondents on the basis of what he perceives at ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 12 Judgment the time of the enquiry. This is not the manner in which enquiries are fairly conducted. It was obligatory on the part of the respondents to have supplied a copy of the deposition of the first witness of the respondent, specially when the petitioner asked for the same as he was defending himself. We find that though the petitioner had specifically requested that the enquiry should be fixed after 28.02.2008 as he was out of station due to the death of his relative, the enquiry was fixed on two dates preceding 28.02.2008, i.e. 20.02.2008 and 27.02.2008. When the petitioner had specifically requested that the matter may be fixed after 28.02.2008, we do not find any propriety in the action of the enquiry officer to fix the matter on the immediate previous date, i.e. 27.02.2008 when the petitioner was out of station. Though the petitioner had raised a ground before the appellate authority that the petitioner was not served with a notice of the enquiry to be held on 20.03.2008 and 24.03.2008, we do not find that the appellate authority has properly dealt with this aspect. The petitioner was not only not provided with the copy of the deposition of the witness examined on behalf of the respondents but, the third witness was examined on behalf of the respondents behind the back of the petitioner. It cannot be said in the aforesaid set of facts that the enquiry was conducted by the respondents by adhering to the principles of natural justice. The petitioner was not supplied with the relevant documents pertaining to the charges levelled against him. The enquiry officer had not ensured that the petitioner was made aware about the next date of hearing before the said date and the petitioner was ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 13 Judgment not granted an opportunity to cross-examine the witness by not supplying the copy of the deposition of the witness examined on behalf of the respondents. It is difficult for an employee to perceive the proceedings appropriately and remember each and every statement made by the witness in his examination- in-chief before cross-examining the witness. It was necessary for the enquiry officer to have supplied the copy of the deposition of the witnesses to the petitioner so that the petitioner could have cross-examined the witnesses. Apart from the fact that the principles of natural justice are violated by the respondents while conducting the enquiry, we find that the petitioner was already punished in respect of the first charge with a 'warning'. We reiterate that the third charge levelled against the petitioner is as vague as it could be and the petitioner could not be said to have been given an opportunity to defend himself in respect of the charge. In the circumstances of the case, it could be said that the respondents were annoyed with the language used by the petitioner in his reply to the first show cause notice as a reference is made to the same in the memorandum dated 13.09.2007 by which the petitioner was warned. Since a proper opportunity was not granted to the petitioner and since an enquiry could not have been conducted against the petitioner in respect of the first charge and since the enquiry could not have been conducted against the petitioner in respect of the third charge in the manner in which it is framed, the orders of the disciplinary and appellate authority are liable to be set aside. We are also surprised that though the charges framed against the petitioner were not so grave and serious, the ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:14:15 ::: WP 1780/09 14 Judgment punishment of 'removal' from service is inflicted on the petitioner. We are inclined to set aside the impugned orders passed by the disciplinary and appellate authority and direct the respondents to reinstate the petitioner in service with continuity of service but in the circumstances of the case, we are not inclined to grant the benefit of back wages to the petitioner, specially when the petitioner has not worked during the said period.
8. Hence, for the reasons aforesaid, the writ petition is partly allowed. The orders of the disciplinary and appellate authority are quashed and set aside. The respondents are directed to reinstate the petitioner in service within one month with continuity of service but, without back wages.
Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
APTE
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