Rajasthan High Court - Jaipur
Hindustan Salts Ltd And Anr vs Ram Kumar on 5 July, 2013
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
JUDGMENT
D.B. Civil Special Appeal (Writ) No.514/2013
Hindustan Salts Ltd. & Anr. Vs. Ram Kumar
DATE OF JUDGMENT: 5th July 2013.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II
Mr. N.K. Maloo,Sr. Advocate with Mr. C.S. Katara, for the appellants.
Mr. Dinesh Sharma, for the respondent.
BY THE COURT:
With the consent and at the request of learned counsel for the parties, this intra-court appeal against an interim order passed in a pending writ petition has been considered finally at this stage itself.
In the given set of facts and circumstances, dilatation on all the factual aspects in this judgment does not appear necessary; only a brief reference to the background aspects would suffice.
The respondent No.1 herein, who is in employment with the appellants, has filed a writ petition (CWP No.14962/2011) questioning the order dated 08.08.2011 whereby he has been placed under suspension as also the memorandum dated 06.09.2011 whereby disciplinary proceedings have been initiated against him; and has prayed for the following reliefs:-
It is therefore most respectfully prayed that this writ petition may kindly be allowed and:-
(i) by an appropriate writ, order or direction the order dated 8.8.2011 and the charge sheet dated 6.9.2011 may kindly be declared to be illegal and the same may kindly be quashed and set aside and the petitioner may be put back in service by revoking his suspension with all consequential benefits;
(ii) by further appropriate writ, order or direction the respondents may be directed to regularize the period of suspension of the petitioner and pay him the entire salary of suspension period after deducting the subsistence allowance already paid with interest @ 18% per annum;
(iii) Any other order which this Hon'ble Court considers expedient, just and proper in the facts and circumstances of the case may kindly be granted in favour of the petitioner.
(iv) The costs of this writ petition may kindly be awarded in favour of the petitioner.
The writ petition aforesaid remains pending before the learned Single Judge of this Court. The writ-petitioner had also moved the (first) stay application with the writ petition but no interim relief was granted therein. Then, he moved second stay application that was rejected by the learned Single Judge on 15.03.2013 finding no case for grant of interim relief against the suspension order. It is borne out that during pendency of the petition, disciplinary proceedings against the writ-petitioner continued. According to the appellants, one Shri Rajiv Agnihotri, working on the post of General Manager (Marketing), was earlier appointed as the Inquiry Officer but upon the writ-petitioner's representations and at his request, the Inquiry Officer was changed in the interest of justice; and Shri M.R.Bali, who is not an employee of the company, was appointed to conduct the inquiry in pursuance of the decision taken by the Board of Directors of the appellant-Company on 22.08.2012. The said Inquiry Officer Shri M.R.Bali is said to have retired from the post of Director, National Commission for Scheduled Castes and Scheduled Tribes and was, thereafter, appointed as Advisor to the Commission constituted under Article 338 and 338A of the Constitution of India. According to the appellants, the said Shri Bali has been appointed to conduct all the pending inquiries in the appellant-Company and not for the purpose of the particular inquiry against the writ-petitioner alone.
It appears that the said Inquiry Officer started and continued with the proceedings from 06.10.2012 to 02.03.2013. According to the appellants, the writ-petitioner never raised any objection before this Inquiry Officer on any ground and participated in the proceedings. However, when the Inquiry Officer was only to submit his report, the writ-petitioner filed a representation questioning his appointment on the ground that he was a retired employee and, therefore, his appointment was not in accord with the applicable rules i.e., Hindustan Salts/Sambhar Salts Employees Conduct, Discipline and Appeal Rules, 1965 ('the Rules').
On the basis of the aforesaid objection, the writ-petitioner submitted a third stay application before the learned Single Judge in the aforesaid pending writ petition seeking restraint orders over such departmental proceedings; and, on this third stay application, the learned Single Judge passed the impugned order on 08.04.2013, which reads as under:-
Heard on the third stay application.
It is stated that the enquiry officer has been appointed contrary to the rules so amended on 23.11.2005. As per amended rules, a retired officer cannot be appointed as enquiry officer. Mr.MR Bali was appointed as enquiry officer though not in service as he retired earlier thus appointment of the enquiry officer is illegal hence, proceedings may be stayed.
Learned counsel for the respondents submits that as per Board's decision, Mr.MR Bali was appointed as enquiry officer. It is when petitioner raised objection against the existing enquiry officer. The enquiry has already been concluded thus, at this stage, interim order may not be passed.
I have considered the submissions and find that rules were amended in the year 2005 to clarify that retired person would not be appointed as enquiry officer thus respondents were expected to adhere to the rules. It is not shown that Board of Directors have extra ordinary powers to take a decision in supersession to the rules. In the light of the above, appointment of Mr.MR Bali as enquiry officer cannot be said to be legal. However, instead of staying the proceedings further, I direct the respondents to appoint another enquiry officer as per rules and he should take up the enquiry from the stage it was taken up by Mr.MR Bali. So far as enquiry conducted by Mr.MR Bali is concerned, it should not be given effect. With the aforesaid, third stay application is disposed of. It is directed that the enquiry should be concluded within shortest possible time, if possible, within a period of two months from today.
In this intra-court appeal against the order aforesaid, a co-ordinate Bench, on 29.05.2013, passed an interim order to the effect that the appellants would be entitled to complete the inquiry but will not pass any order of penalty, which may result in the termination of service of the respondent (writ-petitioner). This interim order has hitherto continued.
The learned counsel for the appellants has made some of the submissions on the merits of the case to contend that the appointment of said Shri M.R.Bali was not vitiated and his appointment was within the competence of the appellant-Company. The provisions of Rule 14 of the Rules have particularly been referred. It has also been contended that the writ-petitioner participated in the inquiry without raising any objection and an objection against the appointment of the Inquiry Officer, raised at the fag end of the inquiry, could not have been countenanced by the learned Single Judge in the third stay application, particularly when such an objection was not taken in the writ petition by way of amendment. It has also been submitted that the writ-petitioner having failed to show any case of prejudice, interference in the third stay application was not justified.
The learned counsel for the respondent (writ-petitioner), on the other hand, has duly supported the order impugned and attempted to submit with reference to the Rules that appointment of the Inquiry Officer stood vitiated.
After having taken into comprehension the matter in its totality, we are of the view that for the peculiar facts and circumstances of the case, while setting aside the order impugned, the entire matter in the pending writ petition deserves to be restored for consideration of the learned Single Judge.
Though, ordinarily, this Court is reluctant to interfere in the exercise of discretion by the learned Single Judge in the pending writ petition so far the matter of grant of interim relief is concerned but then, in the present case, when prima facie it appears that the question taken up in the third stay application was not forming the subject-matter of writ petition as such, we are of the view that the prayer made in the third stay application as also in the writ petition deserve to be re-examined by the learned Single Judge.
As noticed, the respondent has questioned the suspension order and has also questioned the charge-sheet in the writ petition. From the contents of the writ petition, it appears that the writ-petitioner has essentially questioned the very intention behind issuance of the charge-sheet. However, it remains a matter of fact that no interim order was earlier passed in the writ petition staying the disciplinary proceedings. Then, the prayer for interim relief against suspension order was declined by the order dated 15.03.2013, as passed while rejecting the second stay application.
In the third stay application, the writ-petitioner has attempted to question the legality of appointment of the Inquiry Officer but then, such an aspect does not appear to have been made a subject of challenge in the writ petition nor any relief in that regard has been claimed in the main petition. In the given status of record, we are of the view that when a particular issue was not forming the subject matter of the pending petition, a final finding thereupon could not have been returned, as indicated in the impugned order, to the effect that the appointment of Inquiry Officer was not legal.
We would hasten to observe that no final comments are being made on the merits of the case either way nor we are entering into the merits of the issue as to whether appointment of the particular Inquiry Officer contravened the Rules or not; and all the relevant aspects are left open to be considered at the appropriate stage in the appropriate proceedings. However, in the totality of circumstances and the given status of record, we are of the view that the third stay application deserves to be examined by the learned Single Judge with reference to the principal matter in the writ petition as also the surrounding factors.
To conclude, we are of the view that interest of justice shall be served by setting aside the impugned order dated 08.04.2013 and restoring the third stay application as moved in CWP No.14962/2011 for re-consideration by the learned Single Judge. We are further of the view that until such re-consideration, the interim order, as passed in this intra-court appeal on 29.05.2013, should govern the field. In the interest of justice, it is also considered appropriate to make it clear that the said interim order shall continue only until the next date of appearance before the learned Single Judge and, thereafter, passing of appropriate orders shall be a matter of consideration of the learned Single Judge, which would include the proposition of taking up the writ petition itself for final disposal, if considered fit and proper.
With the observations aforesaid and in the manner indicated, this appeal stands partly allowed.
It is informed that the writ petition is already fixed to be taken up before the learned Single Judge on 13.08.2013. Hence, the parties are directed to appear before the learned Single Judge on the given date, i.e., 13.08.2013.
No costs.
(NARENDRA KUMAR JAIN-II),J . (DINESH MAHESHWARI),J. Cpgoyal//- All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. CP Goyal PA