Jharkhand High Court
Arvind Kumar Sharma vs Coal India Limited on 18 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.518 of 2024
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Arvind Kumar Sharma, aged about 58 years, son of Late Chandrika
Sharma, resident of Village-Ladu, P.O.-Dema (Bodh Gaya), P.S.-
Mohanpur, District-Gaya (Bihar)..... .... Writ Petitioner/Appellant
Versus
1. Coal India Limited, a Government of India Enterprise, "Coal
Bhawan", Action Area at:1A, New Town, Rajarhat, P.O. & P.S.-
Rajarhat, Kolkata-700156 (W.B.).
2. Chairman-cum-Managing Director, Coal India Ltd., "Coal Bhawan",
Action Area at:1A, New Town, Rajarhat, P.O. & P.S.-Rajarhat,
Kolkata-700156 (W.B.).
3. Chief Manager, Material Management, Head of the Department
(Appeal), Coal India Ltd., "Coal Bhawan", Action Area at:1A, New
Town, Rajarhat, P.O. & P.S.-Rajarhat, Kolkata-700156 (W.B.).
4. Chairman-cum-Managing Director, Central Coalfields Limited, a
subsidiary of Coal India Limited at Darbhanga House, Ranchi,
Kutchery Road, P.O.-G.P.O., P.S.-Lalpur, District-Ranchi.
.... .... Respondents/Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Manoj Tandon, Advocate
Ms. Neha Bhardwaj, Advocate
Ms. Shivani Bhardwaj, Advocate
Mr. Siddharth Ranjan, Advocate
For the Resp.-C.C.L. : Mr. Amit Kumar Das, Advocate
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C.A.V. on 13.02.2025 Pronounced on 18.03.2025
Per Sujit Narayan Prasad, J.
Prayer The instant appeal preferred under Clause-10 of Letters Patent is directed against the order dated 31.08.2024 passed by 1 LPA No.518/2024 the learned Single Judge of this Court in W.P.(S) No.6086 of 2022, whereby and whereunder, the writ petition has been dismissed by declining to interfere with the order of punishment dated 14.09.2022 passed against the petitioner/appellant after conclusion of the departmental proceeding.
Factual Matrix
2. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, which read as under:
3. It is the case of the writ petitioner that he was initially appointed as Junior Executive Trainee (Mining) on 04.09.1993.
4. Thereafter, vide office order issued under memo no.406 dated 30.03.2020, General Manager (P), Coal India Limited communicated that the competent authority of Coal India Ltd has approved "CIL Executive Role Profile of Unique Position" for providing role clarity to all the incumbents of unique positions of Executive cadre employee.
5. In the month of August, 2020, the writ petitioner/appellant was transferred to the post of Project Officer in Amalgamated Amlo Dhori (AAD) Open Cast.
6. Further, in terms of the decision taken on 31.07.2020 under Special Spot e-auction in respect of Racks Bid and vide letter no.2516 dated 20.08.2020, the Chief Manager (M&S) Rail Operation, CCL, Ranchi intimated the Area Sales Manager, 2 LPA No.518/2024 Dhori amongst others.
7. It is the case of the writ petitioner that vide memo no.1051 dated 08.09.2021, a charge-sheet was issued against the petitioner/appellant under Rule 30.3 of Coal India Executive Conduct, Discipline and Appeal Rules.
8. On 01.05.2022, the Enquiry Officer has submitted his report observing therein that the charges being partially proved. But vide impugned memorandum issued under memo no.702 dated 21.06.2022, the respondent no.2 has observed that the charge of advertently allowing loading of coal of mixed size to the non-core consumers who were allotted coal of (-) 100 mm size in violation of terms and conditions of Special Spot E- auction held on 31.07.2020 is fully sustainable and the writ petitioner/ appellant advertently failed to discharge his duties/obligations as "Project Officer" as laid down in the OM dated 30.03.2020 of the Coal India Limited, therefore, there are sufficient grounds to differ with the findings of the enquiry officer in holding the charge, as partially proved.
9. Thereafter, on 06.07.2022, the writ petitioner submitted his objection against the memorandum issued under memo no.702 dated 21.06.2022 inter-alia on the ground that the respondent no.2 has failed to take into consideration that mere observation of enquiry officer with respect to charge no.1 at any stretch of imagination shall not take the shape of proof. 3 LPA No.518/2024
10. Thereafter, the writ petitioner has preferred a writ application being W.P.(S) No.3360 of 2022 challenging the memorandum dated 21.06.2022 issued by respondent no.4. During pendency of the aforesaid writ petition order of penalty dated 14.09.2022 was passed against the petitioner, accordingly, the writ petitioner had filed an interlocutory application being I.A. No.8750 of 2022 in W.P.(S) No.3360 of 2022 with a prayer to challenge the order of penalty dated 14.09.2022 passed during the pendency of the writ petition.
11. Vide order dated 28.09.2022, writ petition being W.P.(S) No.3360 of 2022 was disposed of by the learned single Judge of this Court, directing the appellant to file a Departmental Appeal before the respondent no.2 within a period of two weeks from the date of the order.
12. On 10.10.2022, the writ petitioner preferred a Departmental Appeal before respondent no.2 in terms of the order dated 28.09.2022 passed by this Court in W.P.(S) No.3360 of 2022.
13. The respondent no.2, thereafter, has dismissed the said appeal preferred by the writ petitioner vide order dated 22.11.2022 and consequently the order of punishment dated 14.09.2022 has been sustained, whereby, it was ordered for reduction of two stages lower for a period of 6 months in time scale of pay without cumulative effect.
4 LPA No.518/2024
14. Aggrieved with the aforesaid the writ petitioner/appellant had preferred writ petition being W.P.(S) No.6086 of 2022, but the learned Single Judge has declined to interfere with the order of appellate authority dated 22.11.2022 as well as order of punishment dated 14.09.2022 and accordingly dismissed the said writ petition vide order dated 31.08.2024. Hence, the instant appeal has been preferred.
15. It is evident from the factual aspect that the writ petitioner while working as Project Officer in Amalgamated Amlo Dhori (AAD) Open Cast, has been subject to departmental proceeding on the ground of commission of irregularities in discharge of his official duty in the capacity of Project Officer.
16. The allegation against the appellant/writ petitioner, as per the memorandum of charge which contains imputation of charges therein that while working as Project Officer, he failed to discharge his duty with full devotion by flouting the terms and conditions of the Contract and advertently allowed loading of ROM coal of mixed size to the consumers who were allotted coal of (-) 100 mm size, for ready reference, the relevant part of Charge-sheet dated 08.09.2021 is being referred as under:
"STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI ARVIND KUMAR SHARMA, PIS NO. 90167818 CHIEF MANAGER (M)/PROJECT OFFICER AAD OC PROJECT, DHORI AREA. CCL.
ARTICLE-I 5 LPA No.518/2024 Shri Arvind Kumar Sharma, Chief Manager (Mining) while posted and functioning as the Project Officer, AAD OCM Dhori CCL during the year 2021, committed gross irregularities in the matters of dispatch of coal through Rail Mode inasmuch as he in blatant Violation of terms and condition of Special spot e-auction (Auction id 34469) held on 31.07.2000 for sale of coal to non-core consumers through Rail made from Dhori-I Siding which comes under the administrative control of Project Officer, AAODCM for W-V Grade of coal, advertently allowed loading of ROM coal of mixed size to the consumer who were allotted coal of -100 mm size. The above lapses on the part of Shri Arvind Kumar Sharma caused undue benefit to the consumers and corresponding loss to the Company. The above lapses on the part of Shri Arvind Kumar Sharma was in violation of the Office Memorandum no. CIL/C- 5A(PC)/Role Profile/406 dated 30.03.2020 of General Manager (P/PC), CIL, Kolkata which inter alia stipulated the responsibilities of Project Officer for ensuring quality of coal and timely dispatch in quality and quantity as per agreement.
Thus, Shri Arvind Kumar Sharma advertently falled to discharge his duties and obligations as Project Officer of AAD OCM, Dhori Area, CCL ich was detrimental to the interest and image of the Company.
Hence the charge The above acts of omission and commission on the part of said Shri Arvind Kumar Sharma besides amounting to non- fulfillment of duties and obligations under Rule 4.1(i)- Maintain absolute integrity, 4.1(ii) Maintain devotion to duty, 4.1(xix) Maintain discipline in discharge of one's duty and be liable to implement the lawful orders duly communicated to the employee, 4.1 (xxi) Perform and discharge one's duties with highest degrees of professionalism and dedication to the best of his abilities, 4.2- Every employee of the company holding a supervisory/managerial post shall take all possible steps to ensure the integrity and devotion to duty of all 6 LPA No.518/2024 employees for the time being under his control and authority, 4.3-No employee of the company shall, in performance of his official duties or in exercise of powers conferred on the employee act otherwise than on his best judgement except when the employee is acting under the direction of his official superior of the CIL Executives Conduct, Discipline & Appeal Rules also tantamount to misconduct in terms of the Rule 5.0(1) Theft, fraud or dishonesty in connection with the business or property of the company or of property of another person within the premises of the Company, 5.0(6)Acting in a manner prejudicial to the interest of the Company 5.0(7)- wilful insubordination or disobedience, whether or not in combination with others of any lawful and reasonable orders of employees superior, 5.0(10) Neglect of work or negligence in performance of duty including malingering or slowing down of work & 5.0(27)-Breach of any of the provisions of these rules or any other statutes or rules of the said Rules."
17. The appellant-writ petitioner had appeared before the enquiry officer and defended the irregularities said to be committed by him. The enquiry officer, on conclusion of the inquiry proceeding, has given its finding, wherein, the charges have been dealt with on the basis of applicability of the Conduct Rules, save and except, non-compliance of the Rule as contained under Rule 4.1(i) of CDA Rule all the charges concerning other Conduct Rules, are not found to be proved. The said inquiry report was forwarded before the disciplinary authority.
18. But, vide impugned memorandum issued under memo no.702 dated 21.06.2022, the respondent no.2 while differing with the finding of inquiry authority has observed that the 7 LPA No.518/2024 charge of advertently allowing loading of coal of mixed size to the non-core consumers who were allotted coal of (-) 100 mm size in violation of terms and conditions of Special Spot E- auction held on 31.07.2020 is fully sustainable and the writ petitioner/ appellant advertently failed to discharge his duties/obligations as "Project Officer" as laid down in the OM dated 30.03.2020 of the Coal India Limited, therefore, there are sufficient grounds to differ with the findings of the enquiry officer in holding the charge, as partially proved.
19. The aforesaid impugned memorandum issued under memo no.702 dated 21.06.2022 is being quoted, as under:-
"Memorandum WHEREAS, a Memorandum of charge under Major Penalty Proceedings under Rule 30.0 of the Coal India Executives Conduct, Discipline and Appeal Rules, 2021 was issued to Shri Arvind Kumar Sharma, then Chief Manager (M)/Project Officer, AADOCM, Dhori Area, CCL in matters of Memorandum of charge vide Ref. No. CCL/VIG/RDA-
07/21/2021/1051 dated 08.09.2021.
AND WHEREAS, the charge against said Shri Arvind Kumar Sharma was that he, while posted and functioning as the Project Officer, AAD OCM, Dhori Area, CCL during the year 2021, committed gross irregularities in the matters of dispatch of coal through Rail mode inasmuch as he, in blatant violation of terms and conditions of Special Spot e- auction (Auction Id: 34469) held on 31.07.2020 for sale of coal to non-core consumers through Rail mode from Dhori-1 Siding which comes under the administrative control of Project Officer, AAQDCM for W-V Grade of coal, advertently allowed loading of ROM coal of mixed size to the consumer 8 LPA No.518/2024 who were allotted coal of (-)100 mm size. The above lapses on the part of Shri Arvind Kumar Sharma caused undue benefit to the consumers and corresponding loss to the Company.
The above lapses on the part of Shri Arvind Kumar Sharma was in violation of the Office Memorandum no. CIL/C-5A(PC)/Role Profile/406 dated 30.03.2020 of General Manager (P/PC), CIL, Kolkata which inter alia stipulated the responsibilities of Project Officer for ensuring quality of coal and timely dispatch in quality and quantity as per agreement.
Thus, Shri Arvind Kumar Sharma advertently failed to discharge his duties and obligations as Project Officer of AAD OCM, Dhori Area, CCL which was detrimental to the interest and image of the Company.
AND WHEREAS, said Shri Arvind Kumar Sharma submitted his reply dated 11.10.2021 denying the charge.
AND WHEREAS, the aforesaid reply of Shri Arvind Kumar Sharma having been found not satisfactory, it was decided to hold an inquiry into the charge levelled against him for which Shri Pradip Kumar, Ex- GM(MM), CMPDIL, Ranchi was appointed as the Inquiring Authority (IA) vide Order Ref No. CCL/VIG/RDA-07/21/2022/1937 dated 12.01.2022 and Shri Aman Kumar, Sr. Manager(Fin), Vigilance department, CCL was appointed as Presenting Officer vide Order Ref No. CCL/VIG/RDA-07/21/2022/1938 dated 12.01.2022 to present the case on behalf of Management.
AND WHEREAS, the IA submitted his report on 03.05.2022 holding the charge levelled against Shri Arvind Kumar Sharma as 'Partially proved'.
AND WHEREAS, the undersigned has carefully and impartially perused the report of the IA in the light of the charge and the evidences led during the enquiry. The grounds taken by the IA in holding the charge as 'partially proved' and the reasons why his findings are not acceptable 9 LPA No.518/2024 are mentioned against each finding:
(i) That ROM coal was supplied along with allotted coal of (-) 100 mm size in contravention of agreement terms of supply, whereas the instructions dated 18.02.2021 issued by M&S department clearly mentioned that ROM coal are not to be supplied to the power consumer. It is evident from the CCTV footage that (+) 100 mm coal were available on the date of rake loading and that mixed coal was spread all over platform no. 1 with lumps of (+) 100 mm size.
This observation of the IA is ipso facto sufficient to establish that the irregularity of supply of (+) 100 mm size coal along with crushed coal was rampantly being committed at Dhori-I Siding. This was in gross contravention of the terms and conditions of Special Spot e-auction (Auction Id:
34469) held on 31.07.2020 for sale of coal to non-core consumers as also the instruction given by M&S Department, CCL.
(ii) That responsibility of maintenance of Feeder Breaker (F/B) was entrusted to E&M Official and the Siding Manager, Shri Rajesh Kumar, supplied the coal provided to him. He has also informed about the complaints related to size received from customers and requested for rectification of the F/B from time to time. The responsibility of supplying the coal as per contract terms was of Project Officer on whose direction all the subordinates were working. Further, he has posed a question whether PO is the whole and sole responsible person for execution of the contract and his higher ups were not aware of the details of violation. The matter of complaints received from customers were well in knowledge of Area GM and all violation of contract terms were with his silent permission.
Supply of crushed coal mixed with (+) 100 mm size coal to the non-core consumers who were allotted coal of (-)100 mm size was a clear breach of the contract. To ensure supply of assured quality, quantity and size of coal to the consumers to achieve consumer satisfaction as per terms of contract, 10 LPA No.518/2024 both the Project Officer and the Siding Manager were jointly and severally responsible insofar as supply of sized coal as per terms of e-auction was concerned It is not at all disputed that complaints of oversized coal were lodged by power houses frequently and even reported to the Project Engineer (E&M), AADOCM Project time and again. This proved to be a mere formality and did not yield any positive results and the irregularity of supplying crushed coal with (+) 100 mm size coal was being committed day to day. This itself proves that oversized coal was being regularly supplied also to non-core consumers and no complaints were ever raised by them relating to supply of oversized cool. Therefore, the possibility of concomitant gain to the non-core sectors by supply of mixed coal cannot be ruled out outrightly. There is no lota of doubt that the instructions to supply (-)100 mm size coal was grossly violated for which none other than Shri Arvind Kumar Sharma was responsible as the Project Officer and cannot be absolved of his responsibility to ensure supply of crushed coal to the non-core consumers through his Siding Manager who was deputed at the Siding specifically to ensure the supply of assured quality, quantity and size of coal to the consumers to achieve consumer satisfaction. Such liability cannot be stretched too far up to the level of Area General Manager.
There is also no basis for the IA to make an unwarranted and scandalous remark that the mixing of (+) 100 mm size coal with crushed coal was being done with the silent permission of Area GM. This is clearly in transgression of the powers of conferred upon him as the IA.
(iii) That MW-1 and MW-2 have deposed that they found substantial amount of uncrushed coal at PF-1 spread through the platform in heaps and few heaps of coal were found dumped besides. feeder breaker number 4 which were ROM coal. Substantial is relative term, which can be defined as considerable in quantity or significantly great in amount. Moreover, neither the exact quantity of mixed ROM Coal nor 11 LPA No.518/2024 percentage of mixing was brought out by Management.
The instructions dated 18.02.2021 of M&S department mandated supply of (-) 100 mm crushed coal non-core consumers. Hence, there was no reason for mixed cool being spread here and there on Platform No. 1 or availability of (+) 100 mm size coal at the Platform No. 1. The availability of substantial or considerable quantity is also not disputed by Shri Arvind Kumar Sharma. Hence, whether or not the quantity has been quantified is of not much relevance especially when it was not practicable to ascertain the exact quantity of (+) 100 mm size coal. Hence, this argument does not mitigate the charge that crushed coal mixed with ROM coal was being supplied regularly to the non-core consumers who were allotted coal (-)100 mm size. For this irregularity, Shri Arvind Kumar Sharma as the Project Officer and his Siding Manager are jointly and severally responsible: Such liability cannot be shifted upon any other official. This was clear cut violation of the Company's instructions by Shri Arvind Kumar Sharma which defeated the terms and conditions of Special Spot e-auction (Auction Id: 34469) held on 31.07.2020.
(iv) As per office orders and circulars issued by M&S department of CIL from time to time that basic price of ROM is always less as compared to crushed coal. Moreover Rs. 87/- extra is taken for crushing. From time to time the reserve price of ROM increases or decreases by CCL grade-wise, however Notified price always remains the same.
The case has to be looked into in terms of the specific order and guidelines in which crushed coal (-)100 mmm size was to be supplied to non-core consumers. A general passing remark of the IA to the effect that basic price of (+) 100 mm size coal is always less as compared to crushed coal does not suffice to mitigate the charge. The contention of extra charge payable of crushing is also not of much relevance. There has never been any complaint of supply of (+) 100 mm size coal by the non-core consumers and so the possibility of 12 LPA No.518/2024 getting undue advantage by supply of crushed coal with (+) 100 mm size coal cannot be ruled out outrightly.
Hence, the charge of advertently allowing loading of coal of mixed size to the non-core consumers who were allotted coal of (-)100 mm size in violation of terms and conditions of Special Spot e-auction (Auction Id: 34469) held on 31.07.2020 is fully sustainable. By his failure in ensuring supply of crushed coal (-)100 mm size as per agreement and in violation of the terms and conditions of special spot e- auction, Shri Arvind Kumar Sharma advertently failed to discharge his duties and obligations as Project Officer of AAD OCM, Dhori Area, CCL as laid down in OM Dated 30.03.2020 of CIL. Hence, there are sufficient grounds to differ with the findings of the IA in holding the charge as 'partially proved'.
AND WHEREAS, the above reasons for disagreement are tentative and a suitable final decision in the matter will be taken after considering the representation or submission, if any, received from Shri Arvind Kumar Sharma within the stipulated time limit.
AND WHEREAS, in terms of Rule 30.0 of the Conduct, Discipline & Appeal Rules, 1978 of CIL in accordance with the Rule 31.2 of the Coal India Executives Conduct, Discipline & Appeal Rules, 2021, a copy of the report of inquiry is being forwarded to Shri Arvind Kumar Sharma. He is directed to submit his representation, if any, on the report of the IA and the points of disagreement as narrated in this Memorandum to the undersigned within fifteen days of receipt hereof.
Should Shri Arvind Kumar Sharma fail to submit his representation within stipulated time, it will be presumed that he has no representation to offer in his defence and thereafter, the case will be disposed off on its merits without any further reference.
Receipt of this Memorandum should be acknowledged by Shri Arvind Kumar Sharma."
20. Thus, it is evident that the disciplinary authority, after going through the finding recorded by the enquiry officer, has 13 LPA No.518/2024 differed with the charge by assigning the reason, which was supplied to the appellant/writ petitioner for its comment in order to provide an opportunity.
21. The appellant/writ petitioner had again defended the reason of difference shown by the disciplinary authority but the disciplinary authority has imposed the punishment of "reduction to two stages lower for a period of six months in time scale of pay without cumulative effect".
22. The appellant/writ petitioner, being aggrieved with the order of punishment, has preferred writ petition before this Court being W.P.(S) No.6086 of 2022.
23. The ground has been taken that the work discharged by the appellant cannot be said to be mis-conduct, since, the conduct for which the departmental proceeding has been initiated by framing charge, has never been assigned to him and further, the disciplinary authority while differing with the finding recorded by the enquiry officer, has not given cogent and valid reason.
24. The CCL has taken point of having no impropriety in the finding recorded so far as showing the difference of opinion with the finding recorded by the enquiry officer.
25. The ground has been taken that the appellant in the capacity of Project Officer having overall supervisory jurisdiction and as such, whatever lapses have been committed 14 LPA No.518/2024 by his subordinate, i.e., Siding Engineer, he cannot be allowed to escape from discharge of his official duty, since, the appellant has flouted the terms and conditions of the Contract by advertently allowed loading of ROM coal of mixed size to the consumer who were allotted coal of (-)100 mm size, leading to financial loss to the Company.
26. The learned Single Judge, on appreciation of the rival submissions/grounds which has been taken by the parties, has dismissed the writ petition by holding the writ petitioner liable for misconduct since he was heading the Project in the capacity of Project Officer.
27. The said order is under challenge in the instant Letters Patent Appeal.
Arguments of the learned counsel for the appellant:
28. Mr. Manoj Tandon, learned counsel for the appellant has taken the following grounds in assailing the impugned order that:-
(i) The memorandum of charge which contains the imputation therein cannot be said to be specific charge, rather, it is omnibus and vague and that has been issued without taking into consideration the fact that size of coal for which the allegation has been levelled against the appellant, was never been assigned as a duty to be performed by the appellant.15 LPA No.518/2024
(ii) It has been contended that when the duty of siding of coal has not been assigned at any time, and as such, it cannot be said that any mis-conduct has been committed.
(iii) The enquiry officer has not found the charge proved so far as the applicability of the different Conduct Rules are there, however, the charge with respect to non-observance of the terms and conditions of the Contract, has been said to be proved and thereby, the finding has been arrived at that the Conduct Rules as contained under Rule 4.1 (i) has been violated. The enquiry officer, therefore, has come to the conclusion of charge having partially been proved.
(iv) The disciplinary authority has differed with the charges, which have not been found to be proved by assigning the reason but the said reason cannot be said to be just and proper, reason being that, merely on the basis of presumption and conjectures, which would be evident from the reason assigned by the disciplinary authority, cannot be said to be valid one, since, there is no cogent evidence to that effect, rather, only on the basis of the vigilance report, which is totally based upon CCTV footage coverage, the charge has been framed against the appellant.
(v) It has been contended that the difference of opinion is based upon the presumption, which has been carried on 16 LPA No.518/2024 the basis of the fact that in the coal siding area along with ROM Coal, (-) 100 mm size coal was also there. The, contention, therefore, has been raised that merely because along with ROM Coal, (-) 100 mm size coal was also there, no charge can be framed.
(vi) It has been contended that the Contractor to whom the Coal was supplied has never been made any complaint of any violation of terms and conditions of the Contract and merely on the basis of the inquiry report based upon the finding of the ROM Coal with (-) 100 mm size coal in the coal siding place, the same cannot be the basis to frame the charge. It has been contended therefore that the reason for differing with the opinion of the enquiry officer, cannot be said to be just and proper having in absence of valid reason or difference of opinion.
(vii) The ground has been agitated that it appears from the impugned order that the learned Single Judge has declined to interfere with the impugned order of punishment on the principle of vicarious liability, the writ petitioner was, in the capacity of Project Officer at the Project during the relevant time but if the specific duty has not been assigned to the petitioner then merely on the basis of the vicarious liability no charge can be issued against the petitioner/appellant.17 LPA No.518/2024
(viii) The learned Single Judge has also not appreciated the reason of difference of opinion shown with the finding of the inquiry report.
(ix) Learned Counsel has further submitted that the principle of preponderance of probability although is applicable in the matter of departmental proceeding but even in the case of preponderance of probability, the cogent evidence is to be there and in absence thereof, merely on the basis of the preponderance of probability, the order of punishment cannot be passed.
(x) It has been submitted that the aforesaid aspects of the matter have not been appreciated by the learned Single Judge, therefore, according to the learned counsel for the appellant, the order impugned passed by the learned Single Judge, as also, the order passed by the Administrative Authority, therefore, suffer from an error, hence, the present appeal.
Arguments of the learned counsel for the Respondent-CCL
29. Mr. Amit Kumar Das, learned counsel appearing for the Respondent-CCL has defended the impugned order by taking the following grounds: -
(i) It has been submitted by Mr. Das that the High Court under Article 226 of the Constitution of India, is having very limited jurisdiction to interfere with the 18 LPA No.518/2024 decision taken by the Administrative Authority in the departmental proceeding and the same can only be taken if there is procedural irregularity.
(ii) It has been contended that there is no grievance of the present appellant of any procedural irregularity and as such, if the learned Single Judge applying the said proposition of law, has dismissed the writ petition, the same cannot be said to suffer from an error.
(iii) It has been contended that the charge which has been framed against the appellant, save and except, the charge pertaining to violation of Rule 4.1(i) of CDA Rule, which has been proved but all the other charges related to applicability of the Conduct Rules, have not been found to be proved. But the disciplinary authority has differed with the same assigning the reason which has been supplied to the writ petitioner in order to met out the principle of natural justice.
The appellant has responded thereto and on consideration of the said reply, the same has not been found to be satisfactory and thereafter, the disciplinary authority has come to the conclusion that the appellant is held to be guilty and accordingly, the order of punishment has been passed.
(iv) It has been contended that in response to the 19 LPA No.518/2024 argument advanced on behalf of the appellant that rest of the charges which pertain to Conduct Rules, which has been differed by the disciplinary authority but even accepting and ignoring the difference of opinion, as has been recorded by the disciplinary authority but the charge pertaining to violation of terms and conditions of the Contract, since, has been flouted and as such, the charge having been proved and to that extent, the appellant is well deserve to be punished.
(v) The contention has been raised that the nature of punishment although has been referred to be major but the effect is minor, since, reduction of two stages lower for a period of six months in time scale of pay is without cumulative effect and the effect of the said punishment order has already been passed and as such, punishment order has correctly not been interfered by the learned Single Judge.
(vi) Learned counsel, based upon the aforesaid grounds, has submitted that if in these pretexts, the learned Single Judge since has passed the impugned order, the same requires no interference, accordingly, the present appeal is fit to be dismissed.
Analysis
30. We have heard the learned counsel for the parties and 20 LPA No.518/2024 gone across the finding recorded by the learned Single Judge in the impugned order as also the material available in the pleading.
31. The admitted facts of the present case are that the petitioner/appellant was initially appointed as Junior Executive Trainee (Mining) on 04.09.1993. Vide office order issued under memo no.406 dated 30.03.2020, General Manager (P), Coal India Limited communicated that the competent authority of Coal India Ltd. has approved "CIL Executive Role Profile of Unique Position" for providing role clarity to all the incumbents of unique positions of Executive cadre employee. In the month of August, 2020, the writ petitioner was transferred to the post of Project Officer in Amalgamated Amlo Dhori (AAD) Open Cast.
32. In terms of the decision taken on 31.07.2020 under Special Spot e-auction in respect of Racks Bid and vide letter no.2516 dated 20.08.2020, the Chief Manager (M&S) Rail Operation, CCL, Ranchi intimated the Area Sales Manager, Dhori amongst others.
33. Vide memo no.1051 dated 08.09.2021, a charge-sheet was issued against the petitioner under Rule 30.3 of Coal India Executive Conduct, Discipline and Appeal Rules. On 01.05.2022, the Enquiry Officer has submitted his report observing therein that the charges being partially proved. Vide impugned memorandum issued under memo no.702 dated 21 LPA No.518/2024 21.06.2022, the respondent no.2 has observed that the charge of advertently allowing loading of coal of mixed size to the non- core consumers who were allotted coal of (-) 100 mm size in violation of terms and conditions of Special Spot E-auction held on 31.07.2020 is fully sustainable and the writ petitioner advertently failed to discharge his duties/obligations as "Project Officer" as laid down in the OM dated 30.03.2020 of the Coal India Limited, therefore, there are sufficient ground to differ with the findings of the enquiry officer in holding the charge as partially proved.
34. Thereafter, on 06.07.2022, the writ petitioner submitted his objection against the memorandum issued under memo no.702 dated 21.06.2022 inter-alia on the ground that the respondent no.2 has failed to take into consideration that mere observation of enquiry officer with respect to charge no.1 at any stretch of imagination shall not take the shape of proof.
35. Thereafter, the writ petitioner has preferred a writ application being W.P.(S) No.3360 of 2022 challenging the memorandum dated 21.06.2022 issued by respondent no.4. The writ petitioner has also filed an interlocutory application being I.A. No.8750 of 2022 in W.P.(S) No.3360 of 2022 with a prayer to challenge the order of penalty dated 14.09.2022 passed during the pendency of the writ petition.
36. Vide order dated 28.09.2022, writ petition being W.P.(S) 22 LPA No.518/2024 No.3360 of 2022 was disposed of directing the appellant to file a Departmental Appeal before the respondent no.2 within a period of two weeks from the date of the order.
37. On 10.10.2022, the writ petitioner preferred a Departmental Appeal before respondent no.2 in terms of the order dated 28.09.2022 passed by this Court in W.P.(S) No.3360 of 2022. The respondent no.2, thereafter, has dismissed the said appeal preferred by the writ petitioner and it was ordered for reduction of two stages lower for a period of 6 months in time scale of pay without cumulative effect.
38. This Court, before proceeding to examine the propriety of the order passed by the learned Single Judge, deems it fit and proper to refer the judgments pertaining to jurisdiction of the High Court to show the interference with the decision taken by the Administrative Authority in the departmental proceeding.
39. The Hon'ble Apex Court in the case of Union of India & Others vs. P. Gunasekaran, (2015) 2 SSC 610 has held at paragraphs-12 and 13 thereof that the following guidelines have been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision, which reads as under:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, 23 LPA No.518/2024 reappreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.24 LPA No.518/2024
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
40. Further, in Central Industrial Security Force and Ors. vs. Abrar Ali, [(2017) 4 SCC 507], following guidelines have been laid down by the Apex Court for interference by the High Court and the Hon'ble Apex Court has observed that courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse in the matter of punishment imposed on conclusion of the departmental proceeding. The extract of relevant passages, i.e., para 13 and 14, are referred hereinbelow:
"13. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.
14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, [(2011) 4 SCC 584], this Court held as follows:
"7. It is now well settled that the courts will not act as an 25 LPA No.518/2024 appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
41. It is evident from the aforesaid judgments that the power which is to be exercised by the High Court under Article 226 of the Constitution of India is very limited one. However, the parameter has been fixed, as to in which case, the interference is to be made by the High Court in exercise of the power conferred under Article 226 of the Constitution of India and in which case, such power is not to be exercised.
42. Further, this Court also needs to refer herein the principle which has been laid down in the case of Punjab National Bank & Ors Vrs. Kunj Behari Misra, (1998) 7 SCC 84, wherein, proposition has been laid down that what remedy is available with the disciplinary authority in a case where the 26 LPA No.518/2024 enquiry officer has not found the charge proved.
43. It has been laid down that in such a situation, the disciplinary authority after receipt of the inquiry report from the enquiry officer, can well differ with the finding so recorded but based upon the sufficient reason, which is to be communicated to the delinquent employee for the purpose of response and only thereafter, the decision is to be taken by the disciplinary authority, the relevant paragraph of the said judgment is being quoted as under:-
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
44. In the backdrop of the aforesaid settled position of law, this Court is now proceeding to examine the factual aspect of the instant case in order to ascertain that whether in the instant case the interference under Article 226 is required based upon 27 LPA No.518/2024 the aforesaid proposition of law.
45. The admitted fact herein is that the charge as per the memorandum of charge is that the writ petitioner/appellant at the time of functioning of the Project Officer, AAD OCM, Dhori Area, CCL during the year 2021 committed gross irregularities in the matters of dispatch of coal through Rail mode in blatant violation of terms and conditions of the Special Spot e-auction held on 31.07.2020 for sale of coal to non-core consumers through Rail mode from Dhori-I Siding which comes under the administrative control of Project Officer, advertently allowed loading of ROM coal of mixed size to the consumer who were allotted coal of (-) 100 mm size. The above lapses on the part of the appellant caused undue benefit to the consumers and corresponding loss to the Company.
46. At this juncture, this Court, deems it fit and proper to show the difference in between ROM coal and coal of (-) 100 mm size.
(i) ROM coal is raw coal, while, (-) 100 mm size coal is the finished coal small in size.
(ii) The finished coal therefore is having highest price in comparison to that of ROM coal.
47. The main allegation, as per the statement of Article of charge as under Article-I is commission of gross illegality in the matter of dispatch of coal which has been found to be in blatant 28 LPA No.518/2024 violation of terms and conditions of Special Spot e-auction held on 31.07.2020.
48. The consequence of the aforesaid violation has been considered to be non-fulfillment of Conduct Rules, as contained under Rule 4.1(i)- Maintain absolute integrity, Rule 4.1(ii)- Maintain devotion to duty, Rule 4.1(xix)- Maintain discipline in discharge of one's duty and be liable to implement the lawful order duly communicated to the employee, Rule 4.1(xxi)- Perform and discharge one's duties with highest degree of professionalism and dedication to the best of his abilities, Rule 4.2-Every employee of the company holding a supervisory/managerial post shall take all possible steps to ensure the integrity and devotion to the duty of all employee for the time being under his control and authority, Rule 4.3-No employee of the company shall, in performance of his official duties on in exercise of powers conferred on the employee act otherwise that on his best judgment except when the employee is acting under the direction of this official superior of the CIL Executives Conduct, Discipline and Appeal Rules also tantamount to misconduct, Rule 5.0(1)-Theft, fraud or dishonesty in connection with the business or property of the company or of property of another person with in the premises of the company, Rule 5.0(6) Acting in a manner prejudicial to the interest of the company, Rule 5.0(7)-Willful insubordination 29 LPA No.518/2024 or disobedience, whether or not in combination with other of any lawful and reasonable orders of employee superior, Rule 5.0 (10)-Neglect of work or negligence in performance of duty including malingering or slowing down of work, Rule 5.0(27)- Breach of any of the provisions of these rules or any other statutes or rules the said rules.
49. The inquiry has proceeded. The enquiry officer has considered the entire aspect of the matter based upon the contention raised on behalf of the parties and given a finding, as would be evident from the finding so recorded in the inquiry report, for ready reference, the relevant part of the inquiry report along with conclusion, is being referred as under:-
"(12) Findings:
After analysis of witnesses, exhibits, Management brief and Defense brief following facts emerged:
1. It is established beyond doubt that ROM coal was supplied alongwith allotted coal of (-) 100 mm Size in contravention of agreement terms of supply, whereas the instructions dated 18.2.2021(ME-4) issued by M&S clearly mentioned that ROM coal are not to be supplied to the power consumer. It is evident from the CCTV footage that (+) 100 mm coal were available on the date of rake loading on dates 24.01.2021, 28.01.21, 03.02.21, 09.02.21, and 16.02.21, as the same were being loaded into the rakes. Coal spread over platform no-2 was properly crushed to (-) 100 min and on PF no-1 mixed coal with lumps of (+) 100 mm size may be seen.
2. The responsibility of maintenance of Feeder Breaker was entrusted to E&M official and as Siding Manager Shri. Rajesh Kumar supplied the coal provided to him. Not only that even he informed about the complaints related to size 30 LPA No.518/2024 received from customers and requested for rectification of Feeder Breaker from time to time. The responsibility of supplying the coal as per contract terms was of Project Officer on whose directions all the subordinates were working.
One vital question arises whether Project Officer is the whole and sole responsible person for execution of the contract and his higher ups were not aware of the details of violation. The matter of complaints received from customers were well in knowledge of General Manger of the area also. All the violation of contract terms were with his silent permission.
3. During deposition MW-I deposed that during the inspection of Dhori Siding the team members found substantial amount of uncrushed coal at PF-1 spread throughout the length of Platform in several places in heaps and few heaps of coal were found dumped beside Feeder Breaker No-4 which were ROM coal. Similarly MW-2 deposed that by supplying mixed coal on the days mentioned above the CO violated the terms and conditions of summary of 31.07.2020 and was in violation of their duties. Substantial is very relative term. Substantial can be defined as " considerable in quantity or significantly great in amount Moreever neither the exact quantity of mixed ROM coal nor percentage of mixing could be brought out by management Hence this charge could not be substantiated.
4. As per office orders and circulars issued by M&S department of CIL from time to time that Basic Price of ROM is always less as compared to crushed coal. Moreover Rs. 87/- extra is taken for crushing From time to time the Reserve Price of ROM increases or decreases by CCL Grade Wise however notified price always remains the same.
I. No. CDA Rule Description Finding
clause
1. Rule 4.1(i) maintain devotion to Charged
the duty, 4.1(xix)- officer
maintain discipline in failed to
31 LPA No.518/2024
discharge of one's duty ensure the
and be liable to adherence
implement the lawful of contract
order duly terms.
communicated to the
employee.
2. Rule 4.1(ii) Maintain devotion to Failed on
the duty. this count.
3. Rule maintain discipline in Failed on
4.1(xix) discharge of one's duty this count.
and be liable to
implement the lawful
order duly
communicated to the
employee.
4. Rule perform and discharge Failed on
4.1(xxi) one's duties with this count.
highest degree of
professionalism and
dedication to the best
of his abilities.
5. Rule 4.2 every employee of the Nothing
company holding a adverse
supervisory/managerial could be
post shall take all found on
possible steps to this count.
ensure the integrity
and devotion to the
duty of all employee for
the time being under
his control and
authority.
6. Rule 4.3 no employee of the Nothing
company shall, in adverse
performance of his could be
official duties on in found on
exercise of powers this count.
conferred on the
employee act otherwise
that on his best
judgment except when
the employee is acting
under the direction of
this official superior of
the CIL Executives
Conduct, Discipline
and Appeal Rules also
tantamount to
misconduct in terms of
the
7. Rule 5.0(1) Theft, fraud or Nothing
dishonesty in adverse
connection with the could be
business or property of found on
32 LPA No.518/2024
the company or of this count.
property of another
person with in the
premises of the
company.
8. Rule 5.0(6) Acting in a manner Nothing
prejudicial to the adverse
interest of the could be
company. found on
this count.
9. Rule 5.0(7) Willful insubordination Nothing
or disobedience, adverse
whether or not in could be
combination with other found on
of any lawful and this count.
reasonable orders of
employee superior.
10. Rule Neglect of work or Nothing
5.0(10) negligence in adverse
performance of duty could be
including malingering found on
or slowing down of this count.
work.
11. Rule Breach of any of the Nothing
5.0(27) provisions of these adverse
rules or any other could be
statutes or rules the found on
said rules. this count.
Charges Partially proved."
50. The charge has partially been found to be proved. The reason for partially proving of charge is the finding recorded with respect to the violation of Rule 4.1(i). Rule 4.1(xix)-
"Maintain discipline in discharge of one's duty and be liable to implement the lawful order duly communicated to the employee".
51. The reason for proving the said charge is that the officer failed to ensure the adherence of terms and conditions of the Contract.
52. The enquiry officer has forwarded the charge before the 33 LPA No.518/2024 disciplinary authority. The disciplinary authority has not accepted the finding recorded by the enquiry officer and differed with the opinion. Reason has been assigned and has been supplied to the petitioner to submit his reply.
53. The reply has been submitted. The said reply has not been found to be satisfactory, hence, the order of punishment has been passed on 14.09.2022 of reduction of two stages lower for a period of six months in time scale of pay without cumulative effect.
54. We have considered the reason for difference of opinion as has been cited by the disciplinary authority.
55. It is evident therefrom that the basis of showing the difference of opinion by the disciplinary authority is that the fact has crept up on the basis of the vigilance report. The vigilance report is with respect to the fact that in the Coal Siding Area along with (-) 100 mm size coal, ROM coal, had also been found. The same has been made basis of initiation of departmental proceeding against the present appellant since he was holding the post of Project Officer of the said colliery.
56. The argument has been advanced on behalf of the appellant that the reason for showing the difference of opinion which is based upon the CCTV footage coverage, cannot be said to be justified so far as it relates to non-observance of the Conduct Rules as contained under Rule 4.1(ii), Rule 4.1(xix), 34 LPA No.518/2024 Rule 4.2, Rule 4.3, Rule 5.0(1), Rule 5.0(6), Rule 5.0(7), Rule 5.0(10) and Rule 5.0(27).
57. Learned counsel for the appellant has also questioned the charge having been found to be partially proved so far as it relates to non-observance of the Conduct Rules, since, the terms and conditions of the Contract has not been followed.
58. This Court, by taking into consideration the ground so far as it relates to showing the difference of opinion which pertains to non-observance of Conduct Rules, i.e., Rule 4.1(ii), Rule 4.1(xix), Rule 4.2, Rule 4.3, Rule 5.0(1), Rule 5.0(6), Rule 5.0(7), Rule 5.0(10) and Rule 5.0(27), is of the view that even if the plea of the appellant will be accepted then also it cannot be said that the appellant has not committed any irregularity, since, the appellant has said to be committed the violation of the Conduct Rules since, he has not followed the terms and condition of the Contract.
59. This Court, therefore, is considering the case of the present appellant by assessing from the angles, as to what would be the effect in the nature of punishment if the reason for recording the difference of opinion even if accepted to be not proper, while, the admitted fact is that the terms and conditions of the Contract wherein it has been provided that (-) 100 mm coal is to be supplied to the consumers.
60. So far as the issue of assigning the reason for difference of 35 LPA No.518/2024 opinion is concerned, this Court is of the view that if the disciplinary authority is differing with the finding recorded by the enquiry officer, then, it is the bounden duty to come with the valid reason and not on presumption and conjectures. Herein, the disciplinary authority has shown the difference of reason on the basis of the CCTV footage coverage, which has been assessed by the Vigilance Team of the respondent-CIL and based upon that, the authority has taken a decision to initiate departmental proceeding against the Project Officer and the Side Engineer.
61. It has been contended herein by the learned counsel for the appellant that respondent no.2 is not vested with unbridled and unfettered power to disagree with the enquiry report specifically on the point which foreign to charge-sheet.
62. The law is well settled, as has been settled in the case of Punjab National Bank & Ors Vrs. Kunj Behari Misra (supra) that the difference of opinion is to be given by the disciplinary authority if the disciplinary authority is differing with the finding recorded by the enquiry officer. But such difference of opinion is only required to be given on the basis of the material available on record and in view thereof, it is not available for the disciplinary authority to travel beyond the material available on record.
63. By applying the aforesaid settled connotation of law of this 36 LPA No.518/2024 Court is of the view that the difference of opinion as has been shown by the disciplinary authority cannot be said to be valid reason by taking contrary view to that of the view which has been taken by the enquiry officer so far as violation of conduct Rule other than rule 4.1(i).
64. In Sum and substance, the charge is that the terms and conditions of the Contract has not been followed and in doing that, the Conduct Rules, have bene flouted.
65. The issue of non-observance of the terms and conditions of the Contract, wherein, the Contract bilateral in nature is with respect to supply of (-) 100 mm size coal but in place thereof, ROM coal has been supplied.
66. The aforesaid fact has not been specifically disputed by the appellant, since, in defence reply, the denial of entire allegation has been made but there is no specific denial with respect to supply of ROM coal of mixed size instead of (-) 100 mm size coal.
67. The appellant, being the Project Officer was duty bound to see that the terms and conditions of the Contract be complied with and while doing so, it was his bounded duty to keep vigil upon the entire transaction, in which, he has failed and that is the finding given by the enquiry officer while proving the charge.
68. This Court, therefore, is of the view that even if ignoring 37 LPA No.518/2024 the part of the misconduct said to be covered under Rules, i.e., Rule 4.1(ii), Rule 4.1(xix), Rule 4.2, Rule 4.3, Rule 5.0(1), Rule 5.0(6), Rule 5.0(7), Rule 5.0(10) and Rule 5.0(27), then, what would be its effect in the order of punishment if the charge pertaining to non-observance of terms and conditions of the Contract to the effect that (-) 100 mm size coal was to be supplied but in place thereof, ROM coal of mixed size has been loaded.
69. This Court, is of the view based upon the fact that the reason showing the difference of opinion must be valid as has been observed hereinabove and as such, to that effect, difference of opinion recorded by the disciplinary authority, cannot be said to be just and proper. But what would be its impact in the order of punishment that is to be seen by this Court.
70. Admittedly herein, the enquiry officer has also found the charge with respect to non-observance of terms and conditions of Contract having not been followed by the writ petitioner and therefore, the Conduct Rules as contained under Rule 4.1 (i) has been flouted and therefore, the finding is that the charge has partially been proved.
71. It is not the case of the writ petitioner that he has not been provided an opportunity with respect to the partially proved charge. It is also admitted that the terms and conditions 38 LPA No.518/2024 as contained in the Contract has not been followed, since there is no specific denial with respect to the fact that the appellant has not loaded ROM coal of mixed size.
72. The argument in this context has been taken that there is no monetary loss to the CCL. But monetary loss is there or not it is immaterial if the issue of conduct is there and if the conduct has been assigned to the particular public servant and in case of any dereliction or defiance to that conduct, the same will amount to misconduct.
73. Herein, the violation of Conduct Rule 4.1(i) has been alleged.
74. Herein, the appellant, in the capacity of the Project Officer was well conscious with the terms and conditions of the Contract and as such, he was also conscious that nature of which coal was to be loaded but even in spite of the aforesaid instead of (-) 100 mm size coal allowed loading of ROM coal of mixed size to the consumer.
75. Therefore, this Court is of the view that if the enquiry officer has come to such finding of lack of devotion of duty due to non-observance of terms and conditions of the Contract so far as it relates to loading of coal is concerned, whether the same requires any interference under the jurisdiction of Article 226 of the Constitution of India.
76. It has also been held by the Hon'ble Apex Court in the 39 LPA No.518/2024 judgment rendered in the case of Union of India & Others vs. P. Gunasekaran (supra) and Central Industrial Security Force and Ors. vs. Abrar Ali (supra) that the jurisdiction of the Court under Article 226 of the Constitution of India so far as it relates to interfering with the decision taken by the disciplinary authority, the same is very limited and to be exercised only in the following situations:
(i) if there is violation of the principles of natural justice in conducting the proceedings;
(ii) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(iii) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; and the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(iv) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; and if the finding of fact is based on no evidence.
77. This Court has examined the aforesaid charge vis-à-vis the finding recorded by the enquiry officer, wherefrom, it is evident that the enquiry officer has come to the conclusion by proving the said charge partially by considering non-observance of terms and conditions of the Contract.
40 LPA No.518/2024
78. This Court, therefore, is of the view that so far as the finding recorded by the enquiry officer with respect to not performing the duty with devotion which attracted the violation of the Conduct Rule and if by considering the aforesaid aspect of the matter, the charge has been found to be proved, the same cannot be said to suffer from an error which as per the proposition laid down by the Hon'ble Apex Court cannot be interfered under Article 226 of the Constitution of India, since, it is not coming under the parameter of the condition stipulated therein.
79. Now coming to the propriety of the order of punishment in the light of the above discussion, the punishment herein is reduction of two stages lower for a period of six months in time scale of pay without cumulative effect.
80. The question, therefore, is on quantum of the aforesaid punishment.
81. We have considered the Conduct Rule, copy of which, has been provided by the learned counsel for the appellant, wherein, the nature of punishment has been earmarked in two heads, i.e., one minor and another major one.
The minor punishment includes:-
(a) Censure;
(b) Withholding increment, with or without cumulative effect;41 LPA No.518/2024
(c) Withholding promotion; and
(d)Recovery from pay of the whole of or part of any pecuniary loss caused to the company by negligence or breach of order or trust.
The major punishment includes:-
(a) Reduction to a lower grade or post or stage in a time scale;
Note:-
The authority ordering the reduction shall state the period for which it is effective and whether, on the expiry of that period, it will operate to postpone future increments or, to affect the employee's seniority and if so, to what extent.
(b) Compulsory retirement;
(c) Removal from service; and
(d)Dismissal.
82. In the major penalties, wherein, it has been provided as under (a) Reduction to a lower grade or post or stage in a time scale.
83. Herein, the punishment is of reduction of two stages lower for a period of six months in time scale of pay without cumulative effect.
84. The note is there, wherein, while inflicting aforesaid punishment, the authority shall state the period for which it is 42 LPA No.518/2024 effective and whether, on the expiry of that period, it will operate to postpone future increments or, to affect the employee's seniority and if so, to what extent.
85. The punishment herein is of "reduction of two stages lower for a period of six months in time scale of pay without cumulative effect", meaning thereby, the caution has been taken while imposing the punishment on the basis of the stipulation made in the note as contained under the major penalties (a), reason being that, the reduction to two stages lower for a period of six months in time scale of pay is there but the same is without cumulative effect, meaning thereby, the effect of lowering down the pay scale is limited only to the period of six months, and the moment the word "without cumulative effect" has been inserted in the punishment its effect will not be in future. If the word "without cumulative effect" would not have been there, rather, the word "cumulative effect" would have been there, then certainly, it could have been said that the said order of punishment will have its effect in the future avenues.
86. It is further evident from the note that the clarification is to be there to the extent that it will operate to postpone future increment or to affect the employees seniority and if so, to what extent, meaning thereby if the order of punishment has been passed in the nature to have the rider in the future prospect 43 LPA No.518/2024 then the specific stipulation must be there to the effect that it will operate to postpone the future increments or to affect employee seniority and if so to what extent.
87. But herein, reduction of two stages lower for a period of six months in time scale of pay that too without cumulative effect clarifies the position that it has got no effect in postponing the future increments or to affect the seniority of the present appellant in absence of the aforesaid stipulation made as contained in the note available in Chapter-IV under the major penalties head.
88. It has been submitted at Bar, on instruction, by Mr. Amit Kr. Das, that the effect of the said punishment order has already been given and now the pay scale of the appellant has also been revived, the said submission clarifies the position that the order of punishment is having no effect in the future prospects either in future increments or seniority of the employee.
89. Therefore, this Court is of the view on the issue of quantum of punishment also that when the charge with respect to the observance of terms and conditions of the Contract has not been followed and by taking into consideration the aforesaid fact if the charge has been found to be proved said to be partially by the enquiry officer, even accepting the said finding of the enquiry officer, the imposition of punishment to the effect 44 LPA No.518/2024 that reduction of two stages lower for a period of six months in time scale of pay without cumulative effect, cannot be said to be disproportionate to the irregularity committed.
90. This Court, based upon the aforesaid discussion, is of the view that the conclusion as has been arrived at by the learned Single Judge by declining to interfere with the order of punishment, therefore, requires no interference.
91. Accordingly, the instant appeal stands dismissed with the observations made hereinabove.
92. In consequent to dismissal of the instant appeal, pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) I agree (Navneet Kumar, J.) (Navneet Kumar, J.) Rohit/-A.F.R. 45 LPA No.518/2024