Andhra HC (Pre-Telangana)
P.V. Subbaiah vs Chairman & Managing Director, ... on 19 December, 1997
Equivalent citations: 1998(2)ALD44
ORDER
1. The petitioner was appointed as Male Nurse (Medical) in Electronics Corporation of India Limited-1st respondent. He was an ex-serviceman. He was placed under suspension on 08-06-1992 on a charge that he had committed theft of 30 tablets of Colinol and 100 capsules of 500 Mg. of BAC-Ban (Ampicilion + Cloxoycillin). The charge-sheet dated 13-6-1992 was thereafter issued and an enquiry was conducted against him. But according to the petitioner he was denied the opportunity to take the help and assistance of a co-worker in presentation of his case The whole enquiry, according to the petitioner was an empty formality and no independent witnesses were examined. The version of defence witnesses was not taken into consideration by the enquiry officer. According to the petitioner, the enquiry officer was prejudiced against him and lacked impartiality. Further, according to the petitioner, the Chairman who was the appellate authority exercised the power of disciplinary authority and awarded a drastic punishment of removing the petitioner from service. The petitioner being aggrieved by the order of removal preferred an appeal on 16-2-1993 to the Chairman and Board of Directors of Electronics Corporation of India Limited. Further, according to the petitioner some of the dispensary staff in collusion with the security personnel conspired against him and in fact, according to the petitioner the medicines which were alleged to have been stolen by him were in fact planted in his bag with a mala fide intention of implicating him in the offence of a criminal nature. It is further contended that no shortage of tablets and capsules were reported. The evidence of security personnel was at variance with each other and the names of the alleged medicines were also not properly identified. Further, according to the petitioner, the medicines were not kept in proper security in the dispensary and every one was having free access to the medicines which left open a scope for foul play as was done in the previous cases of theft. Further according to him the statements of the witnesses were not furnished to him before commencing the proceedings of enquiry which constituted denial of reasonable opportunity to the petitioner to defend his case. It is also contended by the petitioner that the order of punishment awarded by the disciplinary authority was a non speaking order and therefore the petitioner was at a loss to understand as to what weighed with the mind of the disciplinary authority to impose the most severe punishment of removing him from service. Further according to him, the punishment order was in fact issued by the appellate authority in the garb of disciplinary authority which was in violation of certified standing orders in force and that the punishment was grossly disproportionate to the gravity of offence alleged against him. It is further submitted by the petitioner that the appeal preferred by him on 16-2-1993 was rejected without giving him an opportunity of personal hearing.
2. In the counter filed by the respondents it is contended that the order" of removal of the petitioner from service was challenged before the appellate authority which also dismissed the appeal by order dated 8-5-1993. According to the respondents, the order of the disciplinary authority stood merged with the order of the appellate authority and the same had not been challenged by the petitioner. It is further pointed out by the respondents that the petitioner made a confessional statement in his own handwriting and therefore the word did not lie in the mouth of the petitioner to refute the charges levelled against him and proved against him. It is also contended by the respondents that the petitioner was permitted to keep with him a co-employer to defend his case including an office bearer of Employees' Union. But the request of the petitioner to engage an advocate was rejected by the enquiry officer. By a letter dated 5-8-1992 the petitioner informed the enquiry officer that he had engaged Sn P. Cheralu, Technical Officer of MID as his defence Counsel. But the enquiry officer informed him that Sri P. Cheralu was not a co-employee, according to the Standing Orders and therefore the petitioner could not be permitted to engage him as his defence Counsel. Further, according to the respondents when the enquiry officer commenced enquiry on 2-9-92, the management's representative and the petitioner were present and on that day, the petitioner stated that he could not arrange for any defence Counsel, but he had no objection if the enquiry was proceeded with. The enquiry officer however, made it dear that the petitioner would be allowed to exercise his right of taking assistance of defence Counsel whenever he felt the need for the same. Thereafter the petitioner appointed one Sri K.P. Rao, Tradesman 'E' from Transport Section as his defence Counsel vide his letter dated 3-9-1992. After several adjournments the enquiry was scheduled to be held 11-9-1992. But on that day the defence Counsel informed the enquiry officer on telephone that he was withdrawing from the proceedings and that he would be sending a written confirmation in that regard and eventually sent his resignation letter to the enquiry officer. Thus, according to the respondents, inspite of opportunities given to the petitioner at every stage of the proceedings the petitioner chose to defend himself without the assistance of a defence Counsel and therefore it was not correct, according to the respondents to allege that no reasonable opportunity was afforded to the petitioner in the enquiry.
In Para 9 of the counter affidavit the respondents comes up with an argument that according to the regulations of the respondent-Corporation the disciplinary authority or any authority higher than the disciplinary authority could impose punishment and in the instant case the 1st respondent was superior to the disciplinary authority and hence as per the regulations the order of removal passed by the 1st respondent was perfectly valid and no prejudice was caused to the petitioner because against the order of the 1st respondent there was a right of appeal to the Board of Directors which right was also availed by the petitioner. Since the right of appeal has not been taken away, the order passed by the 1st respondent could not be held to be illegal.
4. It is well settled that the High Court while exercising judicial review of the order passed in disciplinary proceeding is not required to examine the merits of the case and reappreciate the evidence unless any patent illegality of procedure was committed and rampant inferences were drawn in appreciation of oral and documentary evidence. The enquiry proceedings in question did not appear to have been tainted or marred with any illegality of procedure or inferences of evidence and therefore it is not worthwhile entering into the sphere of examining the merits of the charges levelled against the petitioner. But two factors have come to surface from the submissions made by learned Counsel for the rival parties that the disciplinary authority, which according to the service regulations of the respondent-Corporation was supposed to be the appellate authority pre-empted the grievance procedure which resulted in denying the stage of appeal to the petitioner, and it was not a step in consonance with the principles of natural justice. It is also true that the order of disciplinary authority is not a speaking order and it does not disclose the facts and circumstances which appealed to the conscience of the disciplinary authority to inflict as harsh a punishment as removal from service for an offence which could not be termed as so serious warranting removal of the delinquent from service. These factors viz., the act of pre-emption resorted to by the appellate authority, the order of removal not being a speaking order and the punishment being grossly disproportionate to the misconduct, vitiate the enquiry, not wholly, but from the stage of considering the report of the enquiry grievance procedure.
5. Learned Counsel for the petitioner dextrously took me through every step of the departmental enquiry and endeavoured to justify the submissions made by him with the support of the judicial pronouncements. But having regard to the fact that the Court did not feel satisfied with the concluding part of the enquiry, from the stage of the submission of the report by the enquiry officer, it would not be worthwhile considering the effect of the authorities cited by the learned Counsel at this stage and therefore I have abstained from referring to the same with regard to the applicability or otherwise of the ratio emerging from the same at this stage.
6. Clause 31 of the Standing Orders of the respondent-Corporation provides for appeal which reads as under :
"31. Appeal:--The authorities competent to impose various penalties mentioned in Standing Order No.28, as well as the appellate authorities, shall be notified by the management from time to time. An employee on whom any of the penalties is imposed shall have the right to appeal to the authority notified in this behalf. The appeal shall be submitted within 30 days of the receipt of the order of the punishing authority and the appellate authority shall dispose of the appeal within 30 days of the receipt of the appeal."
7. In Schedule I particulars have been shown in case of administrative posts viz., Appointing Authority, Disciplinary Authority, Appellate Authority and Reviewing Authority. The petitioner is admittedly covered by the last entry of Schedule I, according to which the Appointing Authority is General Manager/ Head of Group; disciplinary authority is the Head of the Group; Appellate Authority is General Manager and reviewing authority is Managing Director. The impugned order of termination dated 20-1-1993 imposing the penalty of removal from service is issued under the signature of Chairman and Managing Director and therefore the appellate stage after the order of the-disciplinary authority and the ultimate stage of review are lost to the petitioner, viz., the appellate authority and the reviewing authority. It is necessary, as shown in Schedule I, that the disciplinary authority who is the Head of the Group should hear the petitioner and after giving him reasonable opportunity of tendering explanation to the findings of the enquiry officer to pass a speaking order without being influenced by what is stated in the impugned order dated20-l-1993. If the petitioner is dissatisfied with the order of the disciplinary authority he will be at liberty to exhaust further remedy of appeal and review as shown in Schedule I.
8. In the interest of justice, therefore, the impugned order is quashed and set aside, and it is hereby ordered and directed that the disciplinary authority being the Head of the Group, after serving 2nd show cause notice to the petitioner, give the petitioner an opportunity of hearing and tendering explanation to the findings of the enquiry officer and thereafter to pass a speaking order without being influenced by what is stated in the impugned orderdated 20-1-1993. This exercise shall be completed by the disciplinary authority within six weeks from the date of receipt of the copy of this order. If the petitioner is not satisfied with the order of disciplinary authority he will be at liberty to exhaust further remedy available to an employee as shown- in Schedule I.
9. In view of the above order the petitioner at once becomes entitled to be reinstated in service, but with prospective effect only and not with back wages. The respondents will have the option not to reinstate the petitioner in service, but merely to pay wages as last drawn subject to the final result of the disciplinary proceedings.
10. With the above directions, the writ petition is disposed of. However, with no order as to costs.