Rajasthan High Court - Jodhpur
The Nuclear Power Corporation Of India ... vs Jitendra Sharma on 28 September, 2022
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 765/2022
1. The Nuclear Power Corporation Of India Ltd., Through Its
Site Director (Rr Site), Rawatbhata, District - Chittorgarh
(Raj.).
2. The Station Director, Unit- 3 And 4 (R.r.site) Nuclear
Power Corporation Of India Ltd. Rawatbhata Dist.
Chittorgarh Raj.
3. Hear (Hr) Rawatbhata Rajasthan Site, Nuclear Power
Corporation Of India Ltd. Rawatbhata Dist. Chittorgarh
Raj.
----Appellants
Versus
Jitendra Sharma S/o Sri B. S. Sharma, Aged About 46 Years, R/o
Type/ii/111 Anudeep Colony P.o. Bhabha Nagar Rawatbhata
Dist. Chittorgarh Raj.
----Respondent
For Appellant(s) : Mr. Sanjay Nahar, Adv.
For Respondent(s) : Mr. Sanjeet Purohit, Adv.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Judgment
PRONOUNCED ON ::: 28/09/2022
RESERVED ON ::: 07/09/2022
BY THE COURT: (PER HON'BLE KULDEEP MATHUR,J.)
The appellants-respondents have approached this Court through this intra-court appeal for assailing the order dated 14.07.2022, passed by the learned Single Bench allowing the S.B. C.W. No.10320/2020 filed by the respondent-writ petitioner whereby the punishment of compulsory retirement awarded to the (Downloaded on 29/09/2022 at 12:13:33 AM) (2 of 10) [SAW-765/2022] petitioner had been modified to stoppage of one annual grade increment with cumulative effect.
The facts leading to the present appeal in a nutshell are as under:
A charge-sheet dated 08.06.2017 was served upon the petitioner alleging that along with the claim for reimbursement of medical expenses incurred qua treatment of respondent-
petitioner's son, amount towards travelling expenses was claimed on the basis of forged documents. The allegation against respondent-petitioner was of manipulating a travelling bill with enhanced amount of ₹833/-. A reply to the charge sheet was filed by the respondent-petitioner, denying the allegations levelled against him. Thereafter, a detailed inquiry as per the procedure provided under Rawatbhata Rajasthan Site (NPCIL) Standing Orders (hereinafter referred to as 'Standing Orders') was conducted against the petitioner. The inquiry officer on 09.03.2018, submitted a detailed inquiry report holding the respondent-petitioner guilty of misdemeanor alleged in the charge-sheet. Disciplinary authority issued a letter on 29.10.2018, calling upon the respondent-petitioner to explain as to why the inquiry report submitted by the inquiry officer be not accepted. By a detailed representation dated 21.11.2018, respondent-petitioner submitted that the findings recorded by the inquiry officer are not in consonance with the factual aspects of the matter. The representation submitted by the respondent-petitioner was not found to be satisfactory, accordingly, the disciplinary authority issued a show cause notice dated 16.05.2019, calling upon the respondent-petitioner to explain as to why the punishment of (Downloaded on 29/09/2022 at 12:13:33 AM) (3 of 10) [SAW-765/2022] 'compulsory retirement from service' be not imposed upon him. A detailed reply dated 30.05.2019, was filed by the respondent-
petitioner requesting that he may be exonerated from the charges levelled against him. In addition thereto, it was stated that punishment proposed is not commensurate with the alleged misconduct. However, vide order dated 11.05.2020, the disciplinary authority imposed punishment of 'compulsory retirement from service' upon the respondent-petitioner. An appeal against the order of punishment dated 11.05.2020, was filed before appellate authority which came to be dismissed vide order dated 13.08.2020.
Learned Single Bench after hearing the parties, was pleased to quash the impugned orders dated 11.05.2020 and 13.08.2020 mainly for the following reasons: firstly, the punishment of compulsory retirement has been imposed upon petitioner while taking into consideration the earlier misconduct or the earlier punishment imposed upon him, though, the show cause notice issued against petitioner pertaining to present matter did not mention any previous misconduct; secondly, the misconduct alleged is not that grave warranting imposition of the punishment of 'compulsory retirement from service'.
Learned counsel, Shri Sanjay Nahar, representing the appellants-respondents vehemently submitted that the penalty of 'compulsory retirement from service' was imposed upon respondent-writ petitioner after following the procedure provided under Standing Orders. Counsel further submitted that in the inquiry conducted, it was established that respondent-petitioner had attempted to make dishonest monetary gain by submitting (Downloaded on 29/09/2022 at 12:13:33 AM) (4 of 10) [SAW-765/2022] forged travelling bills/rail tickets. Counsel urged that clause 21.2 of Standing Orders clearly provides that while imposing a major penalty, past records of the delinquent workman can be considered. It was thus prayed that the order passed by learned Single Bench whereby the punishment imposed on the respondent-petitioner was substituted/modified deserves to be declared bad in the eyes of law.
Per contra, learned counsel, Shri Sanjeet Purohit, representing the respondent-writ petitioner vehemently submitted that the disciplinary proceedings were conducted against the respondent with a predetermined mind only with a view to hold him guilty of the charges. Counsel further submitted that before any adverse order was passed or the reimbursement claim was considered by the department, the respondent, of his own volition, informed the authorities that a wrong ticket had been inadvertently annexed for reimbursement and he had no intention to claim amount more than what was spent on travelling. Counsel urged that the punishment of 'compulsory retirement from service' had been imposed upon the respondent-petitioner considering the past records, without issuing any show cause notice in this regard. It was thus prayed that the punishment imposed was highly disproportionate to the alleged misconduct, therefore, the order passed by learned Single Bench deserves to be upheld.
Having noted the contentions of the parties and after scanning the record, it is apparent that the respondent had admitted the fact that by mistake, corrections were made by him in the rail tickets submitted for reimbursement. It is not in dispute that the claim raised by the respondent was never reimbursed, (Downloaded on 29/09/2022 at 12:13:33 AM) (5 of 10) [SAW-765/2022] thus, no financial loss occasioned to the appellant-department. The learned Single Bench, keeping in view the fact that the respondent had admitted the mistake and clarified the same on 13.12.2016 to the authorities, prior to issuance of charge sheet dated 08.06.2017, found the order of punishment imposed by the disciplinary authority as affirmed by Appellate authority considering the past records, shockingly disproportionate to the proved misconduct.
A Constitution Bench of Hon'ble the Supreme Court in the case of State of Mysore vs. K. Manche Gowda: (1964) AIR SC 506, while dealing with the issue as to whether past conduct of an employee can be considered for imposing punishment, held as under:
"Under Art. 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action:"
In the case of Mohd. Yunus Khan vs. State of Uttar Pradesh & Ors. reported in (2010) 10 SCC 539, Hon'ble the Supreme Court held that the appellate authority could not consider the past conduct of the appellant to justify the order of punishment passed by the disciplinary authority, without bringing it to the notice of the appellant. The relevant portion of the judgment, reads as follows:
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(6 of 10) [SAW-765/2022] "The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show cause notice, before imposing the punishment."
The law can be summarized that it would be against the principles of natural justice, if past conduct of an employee is taken into consideration to substantiate the quantum of punishment, without bringing it to the notice of the delinquent employee.
In the present case, the Standing Orders governing the imposition of major penalties itself provide that an explanation shall be sought from the delinquent-workman, if penalty is proposed to be imposed by travelling beyond the charges.
Clause 21.2 (p) of the Standing Orders is reproduced herein- below for the sake of ready reference:
"If the workman is found guilty of any major charges and if the disciplinary authority wants to impose any major penalty, he shall give a show cause notice to the workman and shall inform him the penalty proposed to be imposed on him, together with the details regarding any extenuating or aggravating circumstances including any adverse remarks or past record and get the explanation from the workman."
In view of above discussion, we have no hesitation in reaching to the conclusion that the order dated 13.08.2020 passed by the appellate authority affirming the penalty imposed upon respondent-workman by the disciplinary authority vide order dated 11.05.2020 considering the past records, without seeking (Downloaded on 29/09/2022 at 12:13:33 AM) (7 of 10) [SAW-765/2022] any explanation from the delinquent employee or without bringing it to his notice, is not tenable in the eyes of law.
The learned Single Bench substituted/modified the penalty imposed upon respondent, by the disciplinary authority, as affirmed by the appellate authority, on reaching to the conclusion that the same suffers from procedural irregularity and the punishment further being shockingly disproportionate to the proved misconduct.
Now, the question is as to whether the learned Single Bench was justified in interfering with the punishment of 'compulsory retirement from service' imposed upon the delinquent workman.
Hon'ble the Supreme Court, in the case of B.C. Chaturvedi vs. Union of India reported in (1995) 6 SCC 749, held as under:-
"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof."
In the case of State of Uttar Pradesh vs. Prabaht Kumar:
Civil Appeal No. 1567/2019, Hon'ble the Supreme court was pleased to hold as under:(Downloaded on 29/09/2022 at 12:13:33 AM)
(8 of 10) [SAW-765/2022] "The allegation against the respondent is of absence from duty for more than 327 days which was made the basis for issuing the charge-sheet. Even after the charge-sheet was served, the respondent failed to participate in the departmental proceedings or to join duties. This Court in Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC 515 held that once the Court set aside an order of punishment on the ground that the enquiry was not properly conducted, the Court should not preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. This Court held as under:
"13. It is a settled legal proposition that once the court sets aside an order of punishment on the ground that the enquiry was not properly conducted, the court should not severely preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. However, resorting to such a course depends upon the gravity of delinquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It is in view of this that courts/tribunals are not competent to quash the charge-sheet and related disciplinary proceedings before the same are concluded on the aforementioned grounds. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] , Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293 : 2003 SCC (L&S) 1033] , U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264 : 2006 SCC (L&S) 78] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126 : AIR 2009 SC 161])".(Downloaded on 29/09/2022 at 12:13:33 AM)
(9 of 10) [SAW-765/2022]
7. This Court in a Constitution Bench judgment reported as ECIL v. B. Karunakar, (1993) 4 SCC 727 held that if the Court finds that furnishing of the enquiry report would have made a difference to the result, in such case it should set aside the order of punishment. Where the Court sets aside the order of punishment, the proper relief which should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome"
Manifestly thus, only in exceptional cases, Courts/Tribunals should modify/substitute punishment imposed upon the delinquent employee. Even otherwise, on finding the punishment to be shockingly disproportionate, the matter is required to be remitted to the disciplinary/appellate authority to reconsider the question of punishment to be imposed. Once the court sets aside an order of punishment on the ground of it being passed without following the statutory provisions for conducting disciplinary proceedings, the same should be remitted to the disciplinary authority from the stage it stood vitiated and to conclude the same in accordance with law.
In view of law enunciated by the Hon'ble Supreme Court and facts of the case, the orders passed by disciplinary authority and appellate authority deserve to be quashed and set aside. (Downloaded on 29/09/2022 at 12:13:33 AM)
(10 of 10) [SAW-765/2022] The special appeal stands allowed in part. The impugned orders dated 11.05.2020 and 13.08.2020, passed by the disciplinary authority and the appellate authority respectively are quashed and set aside and the matter is remanded back to the disciplinary authority. The departmental proceedings from the stage prior to the order of punishment shall be conducted afresh.
The respondent shall be reinstated in service, and for the intervening period, his pay shall be fixed notionally without payment of back wages.
No order as to costs.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
/skm/-
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