Karnataka High Court
Sri K S Krishnan vs The Chairman And Managing Director on 14 March, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:10613
WP No. 20555 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 20555 OF 2022 (S-RES)
BETWEEN:
SRI.K.S KRISHNAN
S/O LATE SRI K SESHAN
AGED 60 YEARS,
PERMANENT RESIDENT OF
ANAGHA F-20, VISTHARA ENCLAVE
VILANGUDI, PARAVAI, MADURAI
TAMIL NADU-625 402.
PRESENTELY RESIDING AT
S-HIG-C1/4, KHB APARTMENT
YELAHANKA NEW TOWN,
BENGALURU-560 064.
...PETITIONER
(BY SRI.V.R.RAGHUNATHAN FOR
SRI.RUDRAPPA.P., ADVOCATE)
Digitally
signed by
KIRAN AND:
KUMAR R
Location: THE CHAIRMAN AND MANAGING DIRECTOR
HIGH
COURT OF M/S HINDUSTAN AERONAUTICS LTD.,
KARNATAKA 15/1, CUBBON ROAD,
BENGLAURU-560 001.
...RESPONDENT
(BY SRI.PRADEEP S.SAWKAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED:15.07.2022 PASSED BY THE
RESPONDENT IN ORDER No.HAL/HR/19(2)/BC/VOLX/2022
APPEARING AS AT ANNEXURE-F, ETC.
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WP No. 20555 of 2022
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 15.12.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
1. The petitioner joined the respondent-Organization viz., M/s.Hindustan Aeronautics Limited (referred to as "HAL" or "the Company", interchangeably) as an Assistant Systems Audit Officer on 24.01.1986 and worked as a General Manager (Finance) until he attained the age of superannuation on 31.05.2022.
2. The facts which are relevant for the purpose of this case are as follows:
3. On 03.08.2021, HAL had lodged a complaint with the Inspector of Police, Commercial Street Police Station stating that there had been an attempt to malign the HAL, in as much as attempts had been made by an 'unknown individual to malign and besmirch the reputation of the HAL and its Board of Directors', and sending e-mails (from [email protected]) containing allegations about the -3- NC: 2024:KHC:10613 WP No. 20555 of 2022 policy decisions taken by the Board, on the ground that allegations were baseless, incomplete and factually wrong.
4. The Police acknowledged the receipt of the complaint and, ultimately, gave an endorsement on 08.09.2021 stating that it was found that the complaint was civil in nature and HAL was directed to approach the appropriate Court.
5. On 22.11.2021, the petitioner was issued with a chargesheet. The chargesheet contained the following Articles of Charge levelled against the petitioner:
"ANNEXURE-I ARTICLES OF CHARGES FRAMED AGAINST SHRI KS KRISHNAN, GENERAL MANAGER (FINANCE), AC:
Shri KS Krishnan, General Manager (Finance), AC is alleged to have committed the acts of omissions & commissions, as indicated below, while functioning as General Manager (Finance), BC:-4-
NC: 2024:KHC:10613 WP No. 20555 of 2022
(a) Shri K.S Krishnan was involved in sending an E-mail dated 13/06/2021 from the E-mail ID of [email protected] to the Cabinet Secretary with copy to Secretary (DP), amongst others, with regard to selection of CEO(MC).
(b) Shri KS Krishnan was involved in sending an E-mail dated 26/07/2021 from the E-mail ID viz. [email protected], to Secretary (DP) with copies to Cabinet Secretary, amongst others, with regard to the visit of the Directors to Koraput Division.
(c) Shri KS Krishnan was in
possession of 05 (five) Nos. of
compact Discs (CDs) in the
dickey of his Official Vehicle
No.KA 03 NV 8460 (Maruthi
Dzire) in the Company premises
containing adult sexual contents
(porn videos). Upon seizure of
the CDs by the Security Officials
for verification/ checking the
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WP No. 20555 of 2022
contents vide Panchanama dated
01/10/2021, Shri KS Krishnan
had refused to sign the
Panchanama."
6. As could be seen from the said Articles of Charge, the first two articles relate to sending e-mails and they are essentially the same charge i.e., sending e-mails to the superior officers, and the third article was that the petitioner was in possession of five compact discs which contained obscene content and were found in the boot of his official car.
7. In response, on 15.12.2021, the petitioner furnished his detailed reply. The petitioner basically denied all the charges and put forth the contention that the Internet Protocol (IP) address used by the petitioner was hacked and the e-mail address referred to in the Articles of Charge had been accessed from eighteen (18) different IP addresses and could not, therefore, be attributed to him.
He also stated that access to his personal computer was -6- NC: 2024:KHC:10613 WP No. 20555 of 2022 also available to other personnel in the company and the charges levelled against him could hence not be accepted.
8. As regards the compact discs found in his car, he stated that the car officially assigned to him was hired by the HAL on contract basis and he could not be held responsible for any offensive material found in the boot of the car.
9. On 12.01.2022, the petitioner was informed that his reply dated 15.12.2021 had been considered by the Managing Committee (the Disciplinary Authority), and that the Committee had decided that the matter was required to be enquired into. Pramod Kumar, Executive Director (Koraput) was accordingly appointed as the enquiry officer.
10. It was also stated that in view of the COVID-19 pandemic, the departmental enquiry would be conducted through virtual/online mode and the petitioner was required to appear and participate in the enquiry. -7-
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11. On 04.02.2022, the enquiry against the petitioner commenced and during the course of the enquiry, which lasted till 11.05.2022, in all, four witnesses were examined on behalf of HAL and twelve documents were marked in evidence.
12. The witnesses examined were - the Deputy General Manager of Security; Chief Manager (IT) of the HAL Corporate Office; Security Inspector, HAL, Aircraft Division, Bangalore; and the Manager (Security), HAL Aircraft Division, Bangalore. These four witnesses were examined and also cross-examined by the petitioner. In addition, 12 documents were marked on behalf of HAL, while 33 documents were marked on the petitioner's behalf.
13. The petitioner neither chose to examine himself nor did he adduce any oral evidence.
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14. On 11.05.2022, the enquiry was concluded and the petitioner's written arguments dated 11.05.2022 was received by the enquiry officer on 19.05.2022.
15. As the petitioner was due to retire on 31.05.2022, an order was passed on 27.05.2022 continuing the services of the petitioner in view of the pendency of the disciplinary proceedings as contemplated under Rule 12(a) of the HAL (Conduct, Discipline and Appeal) Rules, 1984 ("the Rules").
16. On the same day, i.e., on 27.05.2022, the enquiry officer submitted a report holding that all the charges against the petitioner were proved. A copy of this enquiry report was furnished to the petitioner on 30.06.2022 and he was called upon to submit his reply.
17. The petitioner accordingly submitted his representation dated 24.06.2022 and the Managing Committee, on consideration of the enquiry report and the petitioner's representation, recommended that the -9- NC: 2024:KHC:10613 WP No. 20555 of 2022 petitioner be dismissed from service by way of the resolution dated 11.07.2022.
18. On the basis of this recommendation, the Board of Directors took a decision to impose the punishment of 'dismissal from service' (with disqualification from future employment with a Government company or any other entity owned/controlled by the Government) on the petitioner under Rule 6(ii)(j) of the Rules with effect from 31.05.2022.
19. Being aggrieved by this order of dismissal, the petitioner preferred an appeal to the Board on 10.08.2022 and thereafter, on 12.10.2022 i.e., during the pendency of his appeal, the petitioner proceeded to file this writ petition.
20. During the pendency of this petition, the appeal of the petitioner was dismissed on 22.11.2022 affirming the punishment imposed on the petitioner.
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21. The learned counsel for the petitioner urged the following contentions:
i. That the initiation of the proceedings against the petitioner was vindictive and without any basis. ii. That the e-mails alleged to have been sent by the petitioner could not be attributed to him since there was clear evidence on record that the petitioner's IP address was hacked and the e-mail ID from which the e-mails were sent had been accessed from 18 different IP addresses and, hence, the petitioner could not be the person who had sent those e-mails. iii. That the petitioner's personal computer was available for access to many personnel in the company and attributing the source of the e-mail to the petitioner was improper.
iv. That the presence of the compact discs containing obscene material found in the boot of his officially assigned car could not be attributed to him, since the
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NC: 2024:KHC:10613 WP No. 20555 of 2022 vehicle was hired by HAL on contract basis and was neither under the control of the petitioner nor accessible to him for the reason that the car was always under the control of the driver provided by the company. v. That the entire enquiry was vitiated with legal mala fides, since the decision to initiate the enquiry against the petitioner emanated from the Management Committee headed by the Chairman and the allegations in the two e-mails in question were essentially directed against the Chairman himself.
vi. That assuming the e-mails were sent to the Cabinet Secretary with copy to the Secretary (DP) and further assuming that the e-mail was sent by the petitioner, that would not and could not have been alleged as being misconduct, since the only complaint was regarding certain wrongdoings alleged against the top management and the same were sent to the Cabinet Secretary, i.e., the Union Government, to whom any
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NC: 2024:KHC:10613 WP No. 20555 of 2022 person, including an employee of HAL, could have lodged a complaint.
vii. That the mere lodging of a complaint to the higher authorities would not amount to misconduct and would certainly not call for disciplinary action to be taken against the petitioner.
viii. That the enquiry that was conducted was in complete violation of the Rules, inasmuch as none of the witnesses were correctly examined and as a matter of fact, typed statements by the witness were accepted by the enquiry officer.
ix. That the entire enquiry would stand vitiated, since the same was conducted through virtual mode, wherein the enquiry officer was in Koraput, the petitioner was in Lucknow, and the witnesses were at Bengaluru, and there was no way of ascertaining whether the witnesses were making their statements voluntarily.
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NC: 2024:KHC:10613 WP No. 20555 of 2022 x. That the petitioner had made a complaint that the witnesses were being tutored and none of their oral statements were recorded and, therefore, there was no evidence to justify the conclusions of the enquiry officer. xi. The record of the proceedings, including the statement of witnesses, was given after undue delay and was prepared at Bengaluru in the absence of the petitioner and it was thus clear that the veracity of the statements could not be accepted as the truth. xii. While the petitioner was on leave from 25.08.2021 to 27.08.2021, he had received a Local Area Network (LAN) message stating that there was a possibility of a security breach in his computer and that it had been detected that he had logged in from a different machine, which, as per the records of the IT Department, was traceable to the HAL Helicopter Division.
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NC: 2024:KHC:10613 WP No. 20555 of 2022 xiii. That since the petitioner was on leave, it had been established that the access to his personal computer was available to other personnel and it would hence be unsafe to assume that the e-mails originated from him. xiv. The request to conduct the enquiry proceedings in physical mode was not granted, which vitiated the entire proceedings.
xv. That the complaint made by the petitioner in one of the two e-mails in question was regarding the selection of the Chief Executive Officer (CEO) by the Chairman and the complaint was, therefore, essentially against the Chairman, who incidentally also happened to be the Head of the Managing Committee, and who approved the initiation of the enquiry as well as the enquiry report, thereby vitiating the entire proceedings on the ground of obvious bias.
xvi. That the Managing Committee took a decision to impose the punishment of dismissal on 15.07.2022
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NC: 2024:KHC:10613 WP No. 20555 of 2022 which was just about 15 days prior to the retirement of the Chairman and it was, therefore, obvious that the entire proceedings which culminated in the punishment was a vindictive act of the Chairman. xvii. That the punishment meted out to the petitioner was shockingly disproportionate, more so when the punishment was imposed after the petitioner had retired and the punishment was that of dismissal from service.
xviii. That regarding the charge of the compact discs, the driver who was in charge of the petitioner's official car had not been examined and thus, the charge could not have been held to be proved.
22. The petitioners, in support of their arguments, have placed reliance on the decision rendered by the Apex Court in Ajit Kumar Singh1.
1 The Indian Oil Corporation & Ors. v. Ajit Kumar Singh & Anr., AIR 2023 SC 2388.
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23. Per contra, the learned counsel for the HAL refuted the contentions advanced by the petitioner and put forth the following averments:
i. That there were no allegations of bias made by the petitioner in the defence statement, and therefore, the entire arguments advanced in that regard requires to be rejected.
ii. That the Conduct Rules specifically forbade an employee from making representations or sending grievances to the Government, Members of the Board or to the senior Management, except through a proper channel and since the evidence on record established that the petitioner had sent grievance petitions to the Government, the misconduct on his part was grave, for which an enquiry was required to be conducted.
iii. That the petitioner was given a complete opportunity to put forth his defence and he was also
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NC: 2024:KHC:10613 WP No. 20555 of 2022 permitted to cross-examine all four witnesses and he had, in fact, asked 116 questions to the witnesses as well. Therefore, the allegations that the enquiry was improper could not be accepted. iv. That assuming that the prepared written submissions of the witnesses were furnished, the petitioner had failed to establish that prejudice was caused to him and since there was no prejudice established, his argument in this regard could not be accepted.
v. That the enquiry was conducted over a period of three months, and twenty-six sittings were conducted, thus demonstrating that it was a fair and impartial enquiry.
vi. That the petitioner, having chosen not to examine himself, cannot be permitted to say that the conclusion of the enquiry officer was incorrect.
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NC: 2024:KHC:10613 WP No. 20555 of 2022 vii. That since the evidence on record established that the e-mails originated from the IP address of the petitioner, both from his house and the office, the enquiry officer was justified in holding that the petitioner had sent his grievance petition to the Government and was hence guilty of serious misconduct.
viii. That since the compact discs containing obscene material were found in the boot of the petitioner's official car, presumption would have to be drawn that the compact discs belonged to him, more so when the in-charge security had clearly deposed that the compact discs were found in the boot of his car and the petitioner had refused to be a signatory to the Panchnama.
ix. The punishment imposed cannot be termed to be shockingly disproportionate since the charge was in respect of causing disreputation to HAL and malign the image of HAL, which were grave charges.
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24. In furtherance of the averments put forth by the respondents, the following citations have been relied upon to enunciate:
i. On the power of judicial review available to the High Courts, and a High Court ought not to re- appreciate the evidence considered during the course of the disciplinary proceedings in arriving at the conclusion in the enquiry report. In addition, it was also contended that a High Court can only examine issues regarding jurisdiction, prima facie error, principles of natural justice, prescribed procedure, consideration of relevant evidence and other grave errors, and that it is not open to such High Court to exercise its jurisdiction under Articles 226 / 227 of the Constitution unless it does not shock the conscience of the court - in
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NC: 2024:KHC:10613 WP No. 20555 of 2022 P.Gunasekaran2, B.C. Chaturvedi3, Ajai Kumar Srivastava4 and H.V. Nirmala5;
ii. On the necessity of disciplinary action as a response to any conduct that is in violation of the code of conduct, breaches public order or amounts to dereliction of duty, and on the exercise of an employee's freedom of speech being in conflict with the code of conduct of that organisation vis-à-vis the reasonable restrictions prescribed in the Constitution of India - in Tara Chand Vyas6 and M.H. Devendrappa7;
iii. On the objections regarding the constitution of the disciplinary committee, the conflict between "natural justice" and "necessity", and the distinction between "presumption" and "real danger" of bias in providing a fair hearing - as 2 Union of India & Ors. v. P. Gunasekaran, (2015) 2 SCC 610. 3 B.C. Chaturvedi v. Union of India & Ors., (1995) 6 SC 749. 4 Deputy General Manager (Appellate Authority) & Ors. v. Ajai Kumar Srivastava, (2021) 2 SCC 612.
5H.V. Nirmala v. KSFC, (2008) 7 SCC 639. 6 Tara Chand Vyas v. Chairman and Disciplinary Authority, (1997) 4 SCC
565. 7 M.H. Devendrappa v. KSSIDC, (1998) 3 SCC 732.
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NC: 2024:KHC:10613 WP No. 20555 of 2022 elaborated in Lalith Kumar Modi8 and Sheo Shankar Lal Srivastava9;
iv. The argument that an allegation of a violation of the principles of natural justice must be supported by actual prejudice caused, and does not automatically vitiate the proceedings in question - in S.K. Sharma10 and Kailash Chandra Ahuja11.
25. In light of these contentions, the issue that needs to be determined in this writ petition is as to:
"Whether HAL was justified in
terminating the services of the
petitioner on the basis of the
charges that were levelled against him."
26. As could be seen from the three charges levelled against the petitioner extracted above, two charges related to the sending of e-mails to the Cabinet Secretary 8 Lalith Kumar Modi v. BCCI, (2011) 10 SCC 106. 9 State of UP v. Sheo Shankar Lal Srivastava, (2006) 3 SCC 276. 10 State Bank of Patiala & Ors. v. S.K. Sharma, (1996) 3 SCC 364. 11 Haryana Financial Corporation v. Kailash Chandra Ahuja, (2008) 9 SCC
31.
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NC: 2024:KHC:10613 WP No. 20555 of 2022 and the Secretary (DP) in relation to the selection of the Chief Executive Officer by the Chairman and r regarding visit of the Directors to the Koraput Division.
27. Though several contentions were advanced by the petitioner that the charges had not been established, for the purpose of determining whether these charges were grave and amounted to misconduct and justified an enquiry leading to an order of dismissal, it will have to be assumed that the petitioner did send these two e-mails.
28. Sub-clauses (xii) and (xiii) of Rule 5 of the Rules read as follows:
" RULE 5 Further, the following acts would be deemed to be misconduct and officer committing such acts would be liable to disciplinary action : (i) x x x
xii) Making representations to persons or bodies outside the Company, whether official or otherwise on matters connected with the affairs of the Company or in respect of personal grievances against the Management;
xiii) Making representations or sending grievance petitions to Government,
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NC: 2024:KHC:10613 WP No. 20555 of 2022 Members of the Board or the Senior Management except through proper channels; making representations to outsiders or other organisations on matters pertaining to service of the Company."
29. Thus, making of representations to persons outside the Company whether it related to official or unofficial matters connected with the affairs of the Company is considered as misconduct. Making a representation regarding any personal grievances against the management is also termed as misconduct.
30. Rule 5(xiii) deals with making representations relating to grievance petitions to the Government and outsiders or other organisations pertaining to service of the Company. The fact that this Rule clearly specifies that it is relatable only to grievance petitions makes it is clear that this Rule would stand attracted only if the representation contemplated under the Rule related to any personal grievance that an employee may have against the Management.
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31. In other words, if the representation does not relate to any grievance which is personal to the employee, the question of applying the said Rule and terming it as "misconduct" would not arise. It is to be kept in mind that a grievance petition can only be personal, while a complaint regarding maladministration can never amount to a grievance.
32. It is therefore clear that the sending of e-mails relating to appointment of the CEO and visit of the Directors, firstly, to the Government cannot amount to making a representation to persons or bodies outside the Company and, secondly, amount to making a representation regarding a grievance of the petitioner. Thus, the sending of the e-mails, even if it were to be true, can never be considered as "misconduct" as contemplated under Rule 5 (xii).
33. It is, therefore, clear that merely because an e-mail was addressed to the Cabinet Secretary, and the Secretary (DP) regarding a few issues relating to the Company,
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NC: 2024:KHC:10613 WP No. 20555 of 2022 cannot be termed as misconduct as contemplated under the Rules and consequently, it is clear that the initiation of a disciplinary proceeding on such a charge would be wholly untenable.
34. It has to be borne in mind that HAL is a Government Company functioning under the Ministry of Defence and therefore, if a complaint regarding maladministration is made regarding the functioning of the Company, to the Government which owns it, cannot be termed as misconduct.
35. This matter could also be looked at from another angle.
36. The HAL (CDA) Rules were framed in the year 1984 i.e., about four decades ago when the concept of a "whistle blower" simply did not exist. At the beginning of this century, the concept of whistle blowers emerged, whereby persons within an organisation could leak information of glaring wrongs in the working of an
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NC: 2024:KHC:10613 WP No. 20555 of 2022 organisation, which though against the established Rules of Conduct, served a greater public good and thereby became acceptable, if not a heroic conduct.
37. The Ministry of Personnel, Public Grievances and Pensions had, in fact, passed a Resolution way back on 21.04.2004 as follows:
"No.371/12/2002-AVD-III - Whereas while hearing Writ Petition (C) No.539/2003 regarding the murder of Shri Satyendra Dubey "whistle blowers" arose. And whereas the "The Public Interest Disclosure and Protection of Informers' Bill, 2002, Drafted by the Law Commission is under examination. Now, therefore, the Central Government hereby resolves as under :
1. The Central Vigilance Commission (CVC) is hereby authorized, as the Designated Agency, to receive written complaints or disclosure on any allegation of corruption or of mis- use of office by any employee of the Central Government or of any corporation established by or under any Central Act, Government companies, societies or local authorities owned or controlled by the Central Government. The disclosure or complaint shall contain as full
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NC: 2024:KHC:10613 WP No. 20555 of 2022 particulars as possible and shall be accompanied by supporting documents or other material.
2. The designated agency may, if it deems fit call for further information or particulars from the persons making the disclosure. If the complaint is anonymous, the agency shall not take any action in the matter.
3. Not withstanding any thing contained in the Official Secrets Act, 1923, any public servant other than those referred to clauses (a) to (d) of Article 33 of the constitution or any other person including any non-governmental organization, may make a written disclosure to the designated agency.
4. If the complaint is accompanied by particulars of the person making the complaint, the designated agency shall take the following steps :
i) The designated agency will ascertain from the complainant whether he was the person who made the complaint or not.
ii) The identity of the complainant will not be revealed unless the complainant himself has made the details of the complaint either public or disclosed his identity to any other office or authority.
iii) After the identity of the complainant, the designated agency shall make, in the first instance, discreet enquiries to ascertain if there
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NC: 2024:KHC:10613 WP No. 20555 of 2022 is any basis of proceeding further with the complaint. For this purpose, the designated agency shall devise an appropriate machinery.
iv) Either as a result of the discreet inquiry, or on the basis of the complaint itself without any inquiry, if the designated agency is of the opinion that the matter requires to be investigated further, the designated agency shall officially seek comments/or explanation from the Head of the Department of the concerned organization or office. While doing so, the designated agency shall not disclose the identity of the informant and also shall request the concerned Head of the organization to keep the identity of the informant secret, if for any reason, the concerned Head comes to know the identity.
v) After obtaining the response of the concerned organisation, if the designated agency is of the opinion that the investigations reveal either mis- use of office or substantiate allegations of corruption, the designated agency shall recommend appropriate action to the concerned government Department or Organisation. These shall, inter alia, include following:
a) Appropriate proceedings to be
initiated against the concerned
Government servant.
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b) Appropriate administrative steps for redressing the loss caused to the Government as a result of the corrupt act or mis-use of office, as the case may be.
c) Recommend to the appropriate authority/agency initiation of criminal proceedings in suitable cases if warranted by the facts and circumstances of the cases.
d) Recommend taking of corrective measures to prevent recurrence of such events in future.
5. For the purpose of making discreet inquiry or obtaining information from the concerned organization, the designated agency shall be authorized to call upon the CBI or the police authorities, as considered necessary, to render all assistance to complete the investigation pursuant to the complaint received.
6. If any person is aggrieved by any action on the ground that he is being victimized due to the fact that he had filed a complaint or disclosure, he may file an application before the designated agency seeking redress in the matter, who shall take such action, as deemed fit, the designated agency may give suitable directions to the concerned public servant or the public authority as the case may be.
7. Either on the application of the complainant, or on the basis of the information gathered, if the designated agency is of the opinion that either the complainant or the witnesses need protection, the
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NC: 2024:KHC:10613 WP No. 20555 of 2022 designated agency shall issue appropriate directions to the concerned Government Authorities.
8. The machinery evolved herein shall be in addition to the existing mechanisms in place. However, secrecy of the identity shall be observed, only if the complaint is received under this machinery.
9. In case the designated agency finds the complaint to be motivated or vexatious, the designated agency shall be at liberty to take appropriate steps.
10. The designated agency shall not entertain or inquire into any disclosure :
(a) in respect of which a formal and public inquiry has been ordered under the Public Servants Inquiries Act, 1850, or
(b) in respect of a matter which has been referred for inquiry under the Commission of Inquiry Act, 1952.
11. In the event of the identity of the informant being disclosed in spite of the designated agency's direction to the contrary, the designated agency is authorized to initiate appropriate action as per extant regulations against the person or agency making such disclosure.
12. The machinery created herein shall operate till Parliament passes a law on the subject."
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38. As could be seen from the above, the Government itself had passed a Resolution which enabled any person to lodge a complaint with the Central Vigilance Commission (CVC) as a 'whistle blower'.
39. It is, no doubt, true that the Resolution pertains to lodging of a complaint with the CVC and if the complaint was lodged in the manner prescribed, the identity of the complainant would be kept confidential, thereby protecting the individual informant. This concept was to basically to ensure that individuals came forward to disclose wrong- doings in an organisation and, at the same time, protect such a person from any persecution and harmful retaliation.
40. As could be seen from the Resolution, the Union Government had passed said Resolution pending the passing of a law by the Parliament.
41. It may also be pertinent to state here that the Parliament has, in fact, enacted the Whistle Blowers
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NC: 2024:KHC:10613 WP No. 20555 of 2022 Protection Act, 2011 (No.17 of 2014) in the year 2014, though it is a fact that it yet to be made operational by notifying it. The Parliament has made its intent clear that it desires to protect whistleblowers post their disclosure. It is, therefore, clear that the established norms of conduct in relation to an organisation has undergone a sea change and in this regard, the HAL Conduct Rules, which have been framed much before this concept of whistleblower protection came about, would have to be viewed and interpreted in a manner which keeps it in consonance with the changing times and the intent expressed by the Parliament.
42. If the concept of protecting the whistleblowers from any kind of retaliatory attack after a disclosure has been made is the new accepted norm, any Conduct Rule which frowns upon an employee making a complaint or a representation to the Government would have to be viewed as a norm which has become obsolete and has been rendered, more or less, to be completely diluted. In
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NC: 2024:KHC:10613 WP No. 20555 of 2022 other words, the Conduct Rule, which forbids an employee from approaching the Government, will have to be read and also viewed in the changed environment and cannot be applied to have drastic consequences, such as one leading to the dismissal of a whistle blower-employee.
43. The inference that emanates from the Resolution of 2004 of the Union Government and the passage of the Whistle Blowers Protection Act, 2011 is that a person who makes a disclosure of any wrong-doing in public interest should be protected from persecution.
44. The facts and circumstances in Tara Chand Vyas (supra) are wholly different from that in the present case, and would thus be inapplicable - Tara Chand Vyas was with reference to disciplinary proceedings initiated pursuant to allegations of shortcomings in ensuring supply of implements to loanees and in security deposits, in addition to verifying the documents in respect of payment of loans in a Rural Bank.
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45. The decision relied upon by the Management in Devendrappa's case cited supra would be of no avail since the decision related to a case where an Office bearer of an Employees' Association made a scathing attack on the organisation which was political in nature.
46. Viewed from this angle, it is clear that the entire proceedings that had been initiated against the petitioner on the premise that he was the person who had blown the whistle, so to say, against HAL, was clearly untenable.
47. In light of this prevailing legal atmosphere, it would not really be necessary to consider whether the charges against the petitioner were established. It is to be noticed that if, in law, there can be no misconduct if it relates to the disclosure of a wrong-doing in an organisation by an employee of that organisation, the fact as to whether the charges were proved or not would really be superfluous and unnecessary.
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48. Insofar as the allegation regarding the five Compact Discs that were found in the boot of the petitioner's official car is concerned, it has to be stated here that the car in question was not petitioner's personal car. Admittedly and indisputably, the car hired by HAL for the official use of the petitioner would be under the complete control of the driver and an allegation that the petitioner would personally place the Compact Discs in the boot of his car is simply unacceptable.
49. Moreover, admittedly, in this case, the driver of the car was not examined as a witness, and there was absolutely no evidence to indicate that the petitioner had kept the Compact Discs in the boot of his officially assigned car. Merely because the Compact Discs were found in the boot of the car which was hired by the Company for the petitioner's official use, a presumption cannot be drawn that the compact discs belonged to the petitioner and that he had thereby by failed to maintain absolute integrity and devotion to duty, and had exhibited
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NC: 2024:KHC:10613 WP No. 20555 of 2022 conduct which was unbecoming of an Officer of the Company. It is, thus, clear that the third charge held to be proved against the petitioner was also completely baseless and whimsical.
50. In light of the foregoing analysis and the view that I have taken above, it would not be necessary to examine the contention of the petitioner regarding the manner in which the Rules framed to conduct the enquiry was flouted by the Management.
51. Yet another factor which is required to be noticed in this case is the glaring and blatant bias exhibited by the management against the petitioner.
52. The decision to hold an enquiry was taken by the Managing Committee, which was admittedly headed by the Chairman. The subsequent decision to accept the enquiry report and recommend the punishment of dismissal from service was also taken by the Managing Committee which,
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NC: 2024:KHC:10613 WP No. 20555 of 2022 as already noticed above, was also headed by the Chairman.
53. It has to be noticed here that the complaint made in the e-mails were regarding the improper selection of the Chief Executive Officer by the Chairman and regarding the visit of the Directors to Koraput. These e-mails were therefore in relation to the conduct of the Chairman and also the Directors who were admittedly the persons who decided to initiate the enquiry against the petitioner. This, by itself, establishes, without a shadow of doubt, that the persons against whom allegations were made were themselves judging their own cause and they were also, at the same time, punishing the person who had complained against them. There cannot be clearer case of bias than this one, and the arguments made by the petitioner thus merit acceptance. For this reason, the citations relied upon by the respondents in Lalith Kumar Modi and Sheo Shankar Lal Srivastava (both cited supra) also cannot be considered.
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NC: 2024:KHC:10613 WP No. 20555 of 2022
54. The further fact that the Management decided to recommend the punishment of dismissal from service when the complaints were against their own conduct would also render the recommendation completely invalid. This is the ultimate factor to come to the conclusion that the entire proceedings were vitiated by blatant bias.
55. It is also to be stated here that after the recommendation for dismissal was made and the Board ultimately accepted the recommendation, an appeal was preferred by the petitioner to the Board of Directors and this Board of Directors, incidentally, comprised members of the Managing Committee who had themselves made the recommendation and this Board was headed by the Chairman, who was also a Member of the Managing Committee.
56. This Board of Directors that had accepted the recommendation to dismiss the petitioner from service also proceeded to dismiss the appeal. In other words, the consideration of the appeal was a rather meaningless and
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NC: 2024:KHC:10613 WP No. 20555 of 2022 futile exercise, given its composition and given the fact that the members of the Appellate Authority had themselves recommended the punishment. This also indicates that there was total and complete bias in the matter of the proceedings against the petitioner.
57. This bias stands further established by the extreme punishment of dismissal that the Managing Committee has recommended and has been accepted by the Board. It is thus clear that the requirement of having to demonstrate the actual prejudice caused to the petitioner in support of his claim of violation of the principles of natural justice, as per respondent's argument and as per S.K. Sharma and Kailash Chandra Ahuja (both cited supra), is also satisfied.
58. In respect of the charge that the petitioner had sent e-mails to the Cabinet Secretary and the Secretary (DP) alleging the wrongdoings as aforementioned, the extreme punishment of dismissal from service imposed on the petitioner, that too, after he had attained the age of
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NC: 2024:KHC:10613 WP No. 20555 of 2022 superannuation is rather shocking and appalling. I am thus of the view the requirements prescribed under P.Gunasekaran, B.C. Chaturvedi, Ajai Kumar Srivastava and H.V. Nirmala as afore-cited by the respondent, are clearly complied with.
59. It is to be noticed here that the allegations against the petitioner did not in any way impinge upon the discharge of his duties and it did not result in any kind of loss to HAL. Merely because a complaint was lodged against the Chairman, the Board could not have resorted to imposing the extreme punishment of dismissal of an employee who had already attained the age of superannuation.
60. The fact that the extreme punishment of dismissal was imposed on the petitioner is not only shocking, but also indicates an absolute sense of vindictiveness on the part of the Board, which is the reason for the Union Government issuing a circular wishing to protect
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NC: 2024:KHC:10613 WP No. 20555 of 2022 whistleblowers from the effects of their disclosure, and the Parliament has also made a law in this regard.
61. This vindictive conduct of the Board deserves to be deprecated in the strongest manner and simply cannot be sustained. The facts stated above clearly and conclusively establish that the punishment imposed against the petitioner is shockingly disproportionate when the charges levelled against him are considered. Thus, on this score also, the impugned order is liable to be set aside.
62. In the result, the writ petition is allowed, and the impugned order of punishment dated 15.07.2022 at Annexure 'F', the enquiry report dated 27.05.2022 at Annexure 'N' and its affirmation in appeal are set aside.
63. The respondent--HAL shall, as a consequence, compute and pay/restore all the benefits that the petitioner had been deprived of as a result of his dismissal from service, along with interest at six per cent per annum
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NC: 2024:KHC:10613 WP No. 20555 of 2022 within a period of one month from the date of receipt of a copy of this order.
64. In my view, given the fact that the petitioner has been subjected to unacceptable harassment, the HAL would also have to be saddled with costs of Rs.50,000/- (Rupees Fifty thousand), payable to the petitioner within a period of one month from the date of receipt of a copy of this order.
Sd/-
JUDGE RK List No.: 2 Sl No.: 1