Gauhati High Court
Sri Joy Gopal Debnath vs Hindustan Paper Corporation Limited & ... on 3 October, 2016
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Review Petition No. 142/2015
(In Writ Appeal No. 130/2013)
Sri Joy Gopal Debnath,
Son of Late Jogesh Chandra Debnath,
Hill Line Colony, P.O. Badarpur-788806,
District-Karimganj, Assam
- Review Petitioner/Appellant
-Versus-
1. Hindustan Paper Corporation Limited,
South Tower (4th Floor),
Scope Minar, Laxminagar District Centre,
New Delhi - 110003.
2. Management of Hindustan Paper Corporation Limited,
Cachar Paper Mill, Panchgram,
P.O. Panchgram - 788802,
District - Hailakandi, Assam.
- Opposite parties/Respondents
For the petitioner : Mr. N. Dhar,
Mr. T. U. Laskar, Advocates.
For respondents No. 1 and 2 : Mr. J. Roy,
Mr. S. Borthakur, Advocates,
BEFORE
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
Dates of hearing : 02.09.2016.
Date of Judgement & Order : 03.10.2016
JUDGMENT & ORDER
( Arup K um ar Gosw am i, J)
Heard Mr. N. Dhar, learned counsel for the review petitioner and Mr. J. Roy, learned counsel appearing for the respondent Nos. 1 and 2.
2. A brief narration of facts leading to the filing of the instant review petition may be taken note of at the outset.
3. Review petitioner was appointed as a Field Assistant (Forest) on successful completion of training by an order dated 12.10.1983 passed by the Personnel Officer, Cachar Paper Project (CPM), Hindustan Paper Corporation Limited (HPC). He was promoted to the post of Assistant Forest Supervisor by an order dated 4.11.1987 passed by the Senior Manager (Personnel and Administration), for short, P&A. Thereafter, he was promoted to the post of Forest Supervisor, Grade III by an order dated 1.7.1990 and lastly, to the post of Forest Supervisor, Special Grade by an order dated 29.7.1996, both orders passed by the Deputy General Manager (P&A).
4. A show cause notice dated 24.6.2002 was issued to the review petitioner by the Senior Manager (Forestry). The allegations contained in the said show cause notice are that the petitioner had left for Lailapur-Vairangtee Check Gate Office of HPC which is about 80 KM away from his work place without any permission along with three officials named in the said show cause notice, including one Ashok Kumar Roy, and had made unauthorized change of three numbers of original entry registers containing records of three bamboo suppliers and had made fresh entries in three new Registers incorporating new particulars on 7.4.2002 in order to give undue benefits to the bamboo suppliers. The petitioner in his reply dated 4.7.2002 denied the allegations.
5. Not being satisfied with the reply, the Senior Manager (Forestry), by an order dated 21.10.2002, ordered for an enquiry and appointed an Enquiry Officer as well as Presenting Officer. The Enquiry Officer submitted his Enquiry Report dated 30.4.2003 holding that the charges were proved and established and that the review petitioner was guilty of misconduct. After the review petitioner had submitted his representation against the Enquiry Report, by an order dated 16.6.2003 passed by the Senior Manager (Forestry), the review petitioner was awarded penalty of removal from service under Clause 29(h) of the Certified Standing Orders. As there was an industrial dispute pending before the Industrial Tribunal at Silchar in which the review petitioner was also concerned, an application was simultaneously made under Section 33(2)(b) of the Industrial Disputes Act, 1947, for short, the ID Act, for approval of the action of the Management. Consequently, Misc. Case No. 6/2003 was registered at the Industrial Tribunal, Silchar. The review petitioner filed written objection on 4.8.2003 to the application dated 16.6.2003. By an order dated 2.5.2005, the Tribunal declined to approve the removal of the petitioner on three counts, which are as follows:
(i) the removal order was issued to the workman by an officer lower than the appointing authority, which is in violation of Clause 30(g) of the Certified Standing Order;
(ii) the gravity of the misconduct was not taken into consideration prior to issuance of removal order; and Rev. Pet. No. 142 of 2015 Page 2 of 13
(iii) enquiry was not proper and the management failed to prove prima facie case against the workman.
6. Challenging the aforesaid order of the Tribunal dated 25.2.2005, HPC approached this Court by filing an application under Article 226 of the Constitution of India, which was registered as WP(C) No. 3801/2005. By an order dated 26.4.2013, the writ petition was allowed by allowing the application filed by HPC under Section 33(2)(b) of the ID Act. The review petitioner preferred an appeal being WA No. 130/2013 and by an order dated 22.8.2013, the Appellant Court dismissed the appeal. Against the said order dated 22.8.2013, the review petitioner filed a Special Leave Petition before the Apex Court, being Special Leave Petition (C) No. 35518/2013, and the Special Leave Petition was disposed of by the following order dated 7.11.2014:
"O R D E R It is submitted by Mr. Avijit Bhattacharjee, learned counsel for the petitioner, that the order passed by the High Court rests on the circular dated 29.8.1997 which has never seen the light of the day and, assuming it is in existence, the said circular has been formulated by Hindustan Paper Corporation Limited in violation of Section 9A of the Industrial Disputes Act, 1947.
As we find from the order of the High Court, this issue was not raised. Regard being had to the importance of the point raised, we think it appropriate that the petitioner should file an application for review before the Division Bench of the High Court which has decided the Writ Appeal and the High Court should answer the issue raised before it and not dismiss the review either on the ground of delay or the restrictions imposed on the power of review. Be it noted, we have said so as the pleadings have to be made and a finding has to be returned by the Division Bench.
We request the Division Bench of the High Court to dispose of the matter as expeditiously as possible.
With the aforesaid observations, the special leave petition stands disposed of."
7. It is pursuant to the aforesaid direction, this review application is filed.
8. At this stage, it will be appropriate to take note of the relevant portion of the Circular dated 29.8.1997, which finds reference in the order of the Apex Court and, as such, the same is reproduced herein below:
Rev. Pet. No. 142 of 2015 Page 3 of 13"CIRCULAR Sub: Schedule of Competent Authority for appointing and taking disciplinary action in respect of workman covered under the Standing Orders.
The schedule of Competent Authority for appointing and taking disciplinary action in respect of workman category of employee of Cachar Paper Mill covered under the Standing Orders is given below:
Sl. No. Department to be covered Appointing Authority & Disciplinary Authority **** **** ****
8. Employees working in entire Forestry DGM (Forestry)/Sr. M(Forestry) Department including establishment at Haflong/Karimganj and Silchar Forest Offices.
**** **** **** In the absence of the aforesaid Appointing Authority & Disciplinary Authority of the respective Department (s), the officer in-charge officiating in his place shall exercise the said schedule of powers.
ED, CPM shall be Appellate Authority in respect of all the above employees. This supersedes all the Circulars issued earlier on the above subject."
9. In the review petition filed, it is asserted at paragraph 8 that Senior Manager (Forestry) is not the appointing or disciplinary authority of the review petitioner and a stand is taken that the Senior Manager (P&A), HPC, CPM, continued to be the appointing authority of the workmen in the Forestry Department and relied on a promotion order dated 27.6.2002 of a Forest Supervisor-2 (SG), at the level of W-9, to the post of Forest Supervisor-2 (SG)- Senior Grade, which is at the level of W-9A. Averments are also made that the Senior Manager (Forestry) was not the appointing or disciplinary authority of the petitioner being a workman of Forestry Department is also demonstrated by a letter dated 6.7.2004 issued by the Deputy General Manager (HR & ES) absorbing an incumbent holding the post of Forest Supervisor-2 (SG)-Senior Grade in the post of Supervisor (Forestry). It is stated that the Circular dated 29.8.1997 was not acted upon as it violated Section 9A of ID Act and Clause 30(g) of the Certified Standing Orders.
10. The respondent No. 1 filed an affidavit-in-opposition on 27.7.2016. The review petitioner filed an additional affidavit bringing on record additional documents on 19.8.2016 and in response to the said additional affidavit, the respondent Nos. 1 and 2 filed an affidavit- in-reply on 30.8.2016.
Rev. Pet. No. 142 of 2015 Page 4 of 1311. In the affidavit-in-opposition, the respondent Nos. 1 and 2 have pleaded dismissal of the review petition on the ground of limitations and restrictions imposed in exercise of power of review. However, in view of the observation of the Apex Court in the order dated 7.12.2014 that the High Court has to answer the issue raised in connection with violation of Section 9A of ID Act and not to dismiss the review petition either on the ground of delay or on the ground of restrictions imposed on the power of review, such averments pale into insignificance. It is further pleaded that the review petitioner was appointed by Sri Chandan Dutta, Personnel Officer, vide letter dated 12.10.1983 and after subsequent promotions granted, Sri Dutta was holding the post of Senior Manager (P&A) and therefore, appointing authority of the review petitioner is lower than the post of Senior Manager (Forestry). It is pleaded that no benefit can be derived by the review petitioner on the strength of the order dated 27.6.2002 as the same was subject to adjudication by the Industrial Tribunal and that the order dated 6.7.2004 is not an appointment order in its true sense.
12. In the additional affidavit filed by the respondent Nos. 1 and 2, it is pleaded that from 11.6.1997, there was no Deputy General Manager (Forest) in CPM till Mr. M. Deb Barman, who was the senior-most Senior Manager (Forest), was promoted to the post of Deputy General Manager (Forest) on 1.7.2003 and that in exercise of powers delegated to him by the Chairman-cum-Managing Director vide Circular No. 33/1997 dated 11.8.1997, the Chief Executive of CPM, HPC issued an office order dated 12.8.1997, whereby the Senior Manager (Forest) was entrusted to look after and exercise all the powers delegated to the Head of Department (Forestry Department) until further orders. The review petitioner was promoted to the post of Forest Supervisor (Senior Grade) pursuant to recommendation of the Departmental Promotion Committee with the approval of the Chief Executive and, thereafter, the promotion order dated 29.7.1996 of the review petitioner was issued by Deputy General Manager (P&A) as per prevalent practice to communicate the promotion order from the Personnel Department. In the case of the review petitioner, the Senior Manager (Forest) had exercised the power of Head of the Department of Forest Department in absence of regular Deputy General Manager, Forest. The hierarchy in the Department of Forest is also delineated and it is stated that review petitioner figures in W-9, the lowest category. It is also pleaded that the Circular dated 29.8.1997 was not issued in violation of Clause 30(g) of the Certified Standing Orders.
13. In the affidavit-in-reply that was filed by the review petitioner, it is averred that review petitioner was not removed from service by Mr. M. Deb Barman in his capacity as Deputy General Manager (Forest) and In-Charge of the Forest Department of HPC, CPM. It is Rev. Pet. No. 142 of 2015 Page 5 of 13 denied that the Senior Manager (Forest) was the Head of the Forest Department on the date of removal of the review petitioner on 16.6.2003 and it is asserted that the General Manager (Production, Commercial and Forest) was the Head of the Forest Department on the date of removal of the review petitioner from service on 16.6.2003 and it was he, who had, by passing an order dated 16.6.2003, removed Ashok Kumar Roy, Senior Supervisor (Forest) of HPC, CPM. The General Manager (Production, Commercial and Forest) had also issued a Circular dated 2.5.2002 regarding procurement of bamboo from outside States as Head of Department of Forest Department. Therefore, it is obvious that removal of the review petitioner by the Senior Manager (Forest), being lower in rank than the appointing and disciplinary authority, is unsustainable in law. The General Manager (P&A), HPC,CPM is the appointing and disciplinary authority as per Schedule of the Delegation of Powers, Volume-II, published in the month of May, 1989 and based on delegation of powers available to him, power of appointment was delegated to the Deputy General Manager (P&A) and, accordingly, Deputy General Manager (P&A), passed an order dated 29.7.1996 promoting the review petitioner to the post of Forest Supervisor (Special Grade). Thus, the Deputy General Manager (Forest) of HPC,CPM is also not the appointing and disciplinary authority of the review petitioner. It is also averred that no documents have been produced to show that any notice was issued prior to change in conditions of service vide Circular dated 29.8.1997.
14. It is submitted by Mr. N. Dhar, learned counsel for the review petitioner that the Circular dated 29.8.1997 was issued in violation of Section 9A of the ID Act and Clause 30(g) of the Certified Standing Orders. By drawing attention of the Court to the order dated 27.6.2002 and 6.7.2004, it is submitted that the aforesaid Circular was never acted upon by HPC. He has submitted that there is no escape from the conclusion that the Senior Manager (P&A) was the appointing authority in the year 2002 and, thus, that very fact would go to show that the Circular dated 29.8.97 was not acted upon because if the same had been acted upon, the Senior Manager (Forestry) would have issued the order of promotion. He has also submitted that, even otherwise, no material has been placed by the respondents that any prior notice, as contemplated under Section 9A of the ID Act was issued and as notice under Section 9A of the ID Act is mandatory, the Circular dated 29.8.97 is still-born. In support of his submissions, he has relied upon the judgement of the Apex Court in the cases of Lokmat Newspapers Pvt. Ltd. vs. Shankarprasad, reported in (1999) 6 SCC 275 and Harmohinder Singh vs. Kharga Canteen, Ambala Cantt., reported in (2001) 5 SCC 540.
15. Mr. J. Roy, learned counsel, appearing for the respondents has submitted that the plea taken by the review petitioner that Section 9A of the ID Act is not followed while issuing Rev. Pet. No. 142 of 2015 Page 6 of 13 the Circular dated 29.8.97, is misplaced. While acknowledging that no documents have been produced to demonstrate that notice under Section 9A of the ID Act was issued, he has submitted that Section 9A of the ID Act, in fact, is not attracted inasmuch as the change was not sought to be effected on a condition of service for which notice is required to be given. It is further submitted that the assailment of the order of removal on the ground that the same militates against Clause 30(g) of the Certified Standing Orders is also without merit. It is submitted by him, with reference to the pleadings, that Senior Manager (Forest) was exercising all the powers of the Head of the Department in the Forest Department in absence of Deputy General Manager for the period 11.6.97 to 1.7.7.03 and, therefore, it cannot be countenanced that the removal order dated 16.6.2003 was passed by an authority lower than the appointing authority of the workman. He has submitted that the Circular dated 29.8.97 had specifically mentioned that the Officer Incharge, officiating in the place of the appointing authority as well as the disciplinary authority, shall exercise the powers conferred on the appointing authority and the disciplinary authority. Accordingly, he submits that the review application is liable to be dismissed.
16. We have given our anxious consideration to the submissions advanced and have perused the materials available on record.
17. Clause 2(h) of the Certified Standing Orders defines "Management" as "Management means the Board of Directors, the Chairman and or Managing Director and or General Manager and or Heads of Departments/Divisions and any other officer of the Company authorized by the Managing Director and or General Manager to act on their behalf." Clause 2(l) defines "Appointing Authority" in relation to an employee as "the authority to make appointment to the post in which the employees for the time being are included or the post which the employees for the time being hold or posts which are vacant for the time being." The Certified Standing Orders cover diverse areas such as classification of workmen, publication of working time, attendance and late coming, shift working, lay-off and retrenchment, publication of wage rates, payment of wages, publication of holidays, transfer, leave matters, over-time, acts of misconduct, penalties for misconduct, etc. Whereas, Clause 30(i) deals with procedure for imposing minor penalties, Clauses 30(ii) (a) to (i) deal with major penalties. The acts of misconduct (Clause 28), penalties for misconduct (Clause 29) and procedure for imposition of penalties (Clause 30) are applicable to workmen only. As the learned counsel for the parties had made submissions with regard to Clause 30(g) of the Certified Standing Orders, it will be apposite to re-produce the same, which is as under:
Rev. Pet. No. 142 of 2015 Page 7 of 13" No order for removal and dismissal from service shall be made by an authority lower than the appointing authority of the workman in awarding punishment, the management shall take into account the gravity of the misconduct, the previous record of the workman and any other extenuating or aggravating circumstances, that may exist. A copy of such order passed by the Management shall be supplied to the workman."
18. There is apparently printing error in Clause 30(g). There should have been a full stop in between the words "of the workman" and "in awarding punishment" and a new sentence should have started with the words "In awarding punishment".
19. For better appreciation of the issue raised, Section 9A as well as relevant extract of Fourth Schedule of the ID Act are also re-produced herein below:
"Section 9A. Notice of change . - No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change, -
(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effect; or
(b) within twenty-one days of giving such notice;
Provided that no notice shall be required for effecting any such change -
(a) where the change is effected in pursuance of any settlement or award; or
(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulation, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply."
"THE FOURTH SCHEDULE CONDITIONS OF SERVICE FOR CHANGE OF WHICH NOTICE IS TO BE GIVEN *** *** *** *** *** ***
9. Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders;
*** *** ***"
20. The provisions of Section 9A of the ID Act is mandatory with regard to requirement of issuing notice in respect of conditions of service as laid down in the Fourth Schedule of the Rev. Pet. No. 142 of 2015 Page 8 of 13 ID Act. Notice has to be given before proposing to effect any change to the said conditions and no change can be brought in without giving to the workmen notice in the prescribed manner. To put it conversely, not all changes are required to be notified and only upon fulfillment of the conditions precedent, as laid down in Section 9A of the ID Act, it is mandatorily required to issue notice. The pre-conditions for the applicability of Section 9A are: (i) that there has to be change in the conditions of service, (ii) the change adversely affects the workmen and (iii) the change has to be in relation to any of the matters enumerated in the Fourth Schedule. By a process of interpretation, it is, however, possible to bring in any condition of service, which, though not directly falling within the items listed in the Fourth Schedule, holding the same to be encompassed within the matters expressly enumerated in Fourth Schedule. When a notice under Section 9A is required to be given and the same is not given, the proposed change would not legally come into operation.[See Harmahinder Singh and Lokmat Newspapers Pvt. Ltd.]
21. Clause 30(g) of the Certified Standing Orders in explicit term provides that no order for removal and dismissal from service shall be made by an authority lower than the appointing authority of the workman. The aforesaid provision cannot be read as implying that the order for removal and dismissal must be made by the very same authority which had made the appointment. According to us, the safeguard and guarantee provided under Clause 30(g) is to the extent that no order for removal or dismissal from service shall be made by any authority which is lower in rank than the appointing authority of the workman and that the guarantee given under Clause 30(g) does not include a further guarantee that the disciplinary proceeding must be initiated and conducted by the appointing authority.
22. The review petitioner was appointed as Field Assistant (Forestry) by the Personnel Officer. The Personnel Officer in question had risen to the rank of Senior Manager (P&A) and the plea advanced in the affidavit-in-opposition of the respondent Nos. 1 and 2 on the basis thereof that, as the review petitioner had been removed by the Senior Manager (Forestry), he was not removed by an authority lower in rank than the appointing authority, has no substance. The review petitioner had also earned promotions over the years. It does not stand to reason that notwithstanding promotion orders passed by different authorities, the Personnel Officer will continue to be the appointing authority of the review petitioner. The appointing authority has to be held to be that authority which had either appointed or promoted a workman or an employee to the post substantially last held by him.
23. As already noted earlier, the promotion order of the workman to the post of Forest Supervisor, Special Grade, the last post held by him, was issued by the Deputy General Rev. Pet. No. 142 of 2015 Page 9 of 13 Manager (P&A). The review petitioner has taken different stands with regard to his appointing authority. In Paragraph 8 of the review petition, a stand is taken that Senior Manager (P&A) continues to be the appointing authority of the workmen in the Forest Department. In the affidavit-in-reply, it is pleaded that the General Manager (P&A), HPC, CPM is the appointing and disciplinary authority and on the basis of delegation of powers by him to Deputy General Manager (P&A), the review petitioner was promoted by him and therefore, in that sense, even the Deputy General Manager (P&A) is also not the appointing and disciplinary authority of the review petitioner as per the Delegation of Powers, Volume-II. It is, however, contended by Mr. Roy that there is no such post of General Manager (P&A), HPC, CPM.
24. A close perusal of Annexure-3 to the affidavit-in-reply, which is Delegation of Powers Volume-II, shows that it contains 112 pages. However, only few pages of the same are placed on record. After the 'Introduction', which is dated 25.5.1989, there is a copy of Circular dated 26.11.1976 followed by an Office Order dated 4.5.1989. This Order dated 4.5.1989 apparently wrongly inserted. It is an order by which a Deputy General Manager (P&A) at Corporate Headquarters (CHQ) was directed to look after the work of P&A Department and to exercise powers delegated to General Manager (P&A). Then comes a Circular dated 8.1.1980 followed by Schedule of Powers delegated to General Manager (P&A). It appears from the 'Introduction' that the Circular dated 26.11.1976 has remained the corner stone under the Delegation of Powers Volume-II and the Circular dated 8.1.1980 made certain modifications/amendments to the Circular dated 26.11.1976. So far as appointment is concerned, General Manager (P&A) is given full powers to make appointment on the basis of recommendations of the Selection Committee against sanctioned posts on regular basis in his Department as well as other Departments where power has not been delegated. In respect of award of punishment also he has been granted full powers in respect of employees for whom he is the appointing authority. The Circular dated 8.1.1980 authorizes the General Manager (P&A) to delegate his powers.
25. For the fact that Deputy General Manager (P&A) had promoted the review petitioner to the last post held by him, it will not be unreasonable to draw a conclusion that the General Manager (P&A) had delegated, at least, the power of appointment to the Deputy General Manager (P&A). However, there is no material on record with regard to delegation of disciplinary powers by the General Manager (P&A).
26. We are of the opinion that change of disciplinary authority does not bring about new rules of discipline or alteration of the existing rules within the meaning of Item No. 9 of the Rev. Pet. No. 142 of 2015 Page 10 of 13 Fourth Schedule of the ID Act. It is immaterial whether an officer holding post A is the disciplinary authority or an officer holding post B is the disciplinary authority. Assuming that an officer holding post A was the disciplinary authority and subsequently, officer holding post B is made the disciplinary authority, such order of change of disciplinary authority does not introduce any change in the condition of service. In that view of the matter, it cannot be accepted that the Circular dated 29.8.1997 is inoperative in law for infraction of Section 9A of the ID Act.
27. To buttress the contention that the Circular dated 29.8.1997 was not acted upon, reliance was placed on the promotion order dated 27.6.2002 as well as an order dated 6.7.2004. The order dated 27.6.2002 is an order by the Senior Manager (P&A) by which promotion was given for a period of one month and the order dated 6.7.2004 is an order of absorption passed by the Deputy General Manager (HR&ES). Merely because two such orders had been passed by authorities other than by the authority in the Forestry Department, we are unable to take a view that the Circular dated 29.8.1997 issued by the Executive Director, HPC, CPM was not acted upon. In absence of a specific Circular or an Order keeping in abeyance the Circular dated 29.8.1997, an inference cannot be drawn that the said Circular was not acted upon only on the basis of the two orders aforementioned. The aforesaid orders could be an aberration and not in conformity with the Circular dated 29.8.1997.
28. By the Circular dated 29.8.1997, DGM (Forestry)/Senior Manager (Forestry) was made the appointing authority and the disciplinary authority in supersession of all circulars issued on the subject of the circular. The said order was issued by the Executive Director. In the instant case, the Senior Manager (Forestry) had acted as the disciplinary authority. From the contents of Delegation of Powers, Volume-II, it appears that post of Senior Manager (P&A) is below the post of Deputy General Manager (P&A). From the chart showing hierarchy in the Department of Forestry as reproduced in the additional affidavit of the respondents go to show that the post of Senior Manager (Forestry) is also below the post of Deputy General Manager (Forestry). Senior Manager (Forestry) is in category E-5 and the Deputy General Manager (Forestry) is in category E-6. Thus, a post of Senior Manager is in category E-5 and that of Deputy General Manager is in category E-6. From that stand point, even though the Senior Manager (Forestry) is conferred with the power of disciplinary authority, such authority could not have validly passed an order of removal, he being lower than the appointing authority of the review petitioner, namely, the Deputy General Manager (P&A), in view of Clause 30(g) of the Certified Standing Orders. But there is another facet of the matter.Rev. Pet. No. 142 of 2015 Page 11 of 13
29. It is an admitted position that the post of Deputy General Manager (Forestry) was lying vacant from 11.6.1997 to 1.7.2003. The Circular dated 29.8.1997 had provided that in absence of the appointing authority and disciplinary authority, the Officer In-charge officiating in his place shall exercise said powers. It appears from the office order dated 12.6.1997 issued by the Chief Executive, HPC, CPM that on release of one Shri S.L. Bhattacharyya, Deputy General Manager (Forestry) due to expiry of his deputation period on 11.6.1997, Senior Manager (Forestry) was allowed to look after the works of the Forestry Department and to exercise all the powers delegated to HOD Forestry Department until further orders. A dispute is sought to be raised by the review petitioner that General Manager (Production, Commercial and Forest) was the Head of Forest Department and he, acting as such, had removed Ashok Kumar Roy vide order dated 16.6.2003. We are of the opinion that such contention has no merit. In the hierarchy of the Department of Forestry, post of Deputy General Manager (Forestry) is at the apex and in absence of the Deputy General Manager (Forestry), the Senior Manager (Forestry) had stepped into his shoes to exercise all his powers which will necessarily include the powers of the disciplinary authority. The General Manager (Production, Commercial and Forest) is nowhere shown as an officer in the Forestry Department. As such, there is no violation of the Certified Standing Orders on the ground that order of removal was passed by an authority which is lower than the appointing authority.
30. In the show cause notice dated 24.6.2002, the review petitioner was alleged to have made unfair change and replacement of three numbers of original entry registers, amongst others, with Ashok Kumar Roy. Ashok Kumar Roy was also removed from service on 16.6.2003. His removal was affirmed by an order dated 8.1.2010 in WA No. 196/2006. Ashok Kumar Roy was a Senior Supervisor (Forest) and thus, was in S-2 category, above the review petitioner, who is a workman in W-9 category. In between Senior Supervisor (Forest) and workman of different categories, there is a post of Supervisor (Forest), which is in S-1 category. Removal of Ashok Kumar Roy was passed under Clause 23(f) of the relevant Conduct, Discipline and Appeal Rules and not under Certified Standing Orders. The review petitioner and Ashok Kumar Roy are in different categories and therefore, the analogy sought to be drawn based on the aforesaid letter of removal passed in respect of Ashok Kumar Roy that the General Manager (Production, Commercial and Forest) is also the appointing and disciplinary authority of the review petitioner is not tenable in law.Rev. Pet. No. 142 of 2015 Page 12 of 13
31. In view of the above discussions, we find no merit in the review petition and resultantly, the same is dismissed.
JUDGE CHIEF JUSTICE
madhu
Rev. Pet. No. 142 of 2015 Page 13 of 13