Gauhati High Court
Manish Kashyap vs The State Of Assam And 5 Ors on 23 June, 2022
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/6
GAHC010212042018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8008/2018
MANISH KASHYAP
C/O- RABINDRA NATH DAS, KUSHAL KONWAR PATH, LACHIT PATH,
AJANTA PATH, SURVEY, GHY-28
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE ADDL. CHIEF SECY. TO THE GOVT. OF ASSAM, INDUSTRY
AND COMMERCE DEPTT., DISPUR, GHY-6
2:MANAGING DIRECTOR
ASSAM PETRO CHEMICALS LTD.
4TH FLOOR
ORION PLACE ( OPP. AXIS BANK)
CHRISTIAN BASTI
G.S.ROAD
GHY
ASSAM- 781005
3:GENERAL MANAGER (HRM)
ASSAM PETRO CHEMICALS LTD.
P.O. PARBATPUR
NAMRUP
DIST- DIBRUGARH
ASSAM- 786623
4:SENIOR MANAGER (L AND M)
ASSAM PETRO CHEMICALS LTD.
4TH FLOOR
ORION PLACE ( OPP. AXIS BANK)
CHRISTIAN BASTI
G.S.ROAD GHY
ASSAM- 781005
Page No.# 2/6
5:MANAGING DIRECTOR
PRAGJYOTISH CHEMICALS AND FERTILIZERS
AIDC CAMPUS
AIDC R.G.BARUAH ROAD
GHY-24
6:MANAGING DIRECTOR
ASSAM PETRO-CHEMICALS LTD.
PO. PARBATPUR
NAMRUP
DISTRICT. DIBRUGAR
Advocate for the Petitioner : MR. P PATHAK
Advocate for the Respondent : SC, INDUSTRIES AND COMMERCE
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 23-06-2022
JUDGMENT & ORDER (ORAL)
Heard Mr. A Narzari, learned counsel for the petitioner, Mr. A Chakraborty, learned counsel for the respondent No. 1 through the Chief Secretary of the State of Assam, Mr. N Deka, learned counsel for the respondents No. 2, 3, 4 and 6 being the authorities in the Assam Petrochemical Limited (in short APL) and Mr. SK Goswami, learned counsel for the respondent No. 5 being the authorities in the Pragjyotish Chemicals and Fertilizers Limited (in short PCFL).
2. The petitioner was appointed as a Manager (Marketing) in the respondent APL as per the communication dated 28.02.2011 of the Group General Manager, HRM and the initial appointment was on probation. During the probation period, there was an appraisal of the petitioner by the authority where it was appraised that the performance of the petitioner was below the expectation of the management and unsatisfactory and the reasons thereof was that the knowledge required for the job to be performed and the emotional intelligence Page No.# 3/6 of the petitioner were found to be deficit. There was also an assessment potential wherein the petitioner was advised to improve his knowledge of the job and also to undergo a behavioural change in order to remain in the marketing department.
3. Be that as it may, by the order dated 27.02.2013, the petitioner was confirmed in service as a Manager (Marketing) w.e.f. 11.09.2012. By an order dated 24.09.2012, the authorities in the APL deemed it appropriate to place the services of the petitioner with one of the sister Company namely Pragjyotish Chemicals and Fertilizers Limited. For some reasons, the petitioner was not willing to comply with the order of transfer. In the circumstance, a proceeding was initiated against the petitioner as per the show cause notice dated 22.06.2015 containing the charges, which are extracted below:-
"Charge No. 1: wilful insubordination or disobedience whether alone or in combination with other or others of any lawful and reasonable order of his superior, as provided under clause No. 25(i) of Conduct, Discipline and Appeal Rules for Officer of the Company.
Charge No. 2: Habitual absence without leave or absence without leave for eight consecutive days. Habitual late attendance or leaving places or duty before the schedule time without prior permission as provided under clause No. 25(xi) of Conduct, Discipline and Appeal Rules for Officer of the Company. Charge No. 3: Causing damage to work in progresses or to any property or the Company either wilful or through negligence, as provided under clause No. 25(xv) of Conduct, Discipline and Appeal Rules for Officer of the Company. Charge No. 4: Leveling malicious or false allegations as provided under clause No. 25(xviii) of Conduct, Discipline and Appeal Rules for Officer of the Company. Charge No. 5: Any other misconduct deemed so by Management as provided under clause No. 25(xix) of Conduct, Discipline and Appeal Rules for Officer of the Company.
Charge No. 6: Every Officer shall at all times, maintain absolute integrity and devotion to duty and shall conduct himself at all times in a manner which will enhance the reputation of the Company as provided under clause No. 1(i) of Conduct, Discipline and Appeal Rules for Officer of the Company. Charge No. 7: No Officer, shall in the performance of his official duties or in the Page No.# 4/6 exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official Superior and shall, where he is acting under such directions, obtain the direction in writing wherever practicable, and where it is not practicable to obtain such direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible, as provided under clause No. 1(iii) of Conduct, Discipline and Appeal Rules for Officer of the Company."
4. A statement of allegation also accompanied the show cause notice incorporating the charges. The petitioner submitted his reply dated 20.07.2015 to the show cause notice and in respect of charge No. 2, he took a stand that no specific job was assigned to him since he joined in the Guwahati office and that he was admitted to a hospital at Guwahati on 03.04.2015 for a period of nine days, that he is doing his duties sincerely and he was shocked and surprised to find the charge-sheet being submitted against him. On 04.09.2015, the petitioner made a representation to the DGM, HRM stating that he is an employee of APL and not PCFL and his posting at Guwahati was not on deputation and even though the APL had registered office at Guwahati, his posting was in the different organization. He also stated that his salaries and dues were not paid since April, 2015.
5. On 10.09.2015, the DGM, HRM of APL passed an order by which it was provided that the salary of the petitioner was paid based upon the calculation of the monthly absentee statement in respect of the petitioner.
6. Mr. N Deka, learned counsel for the respondents in the APL states that as per the Rule of the Company, the salary of the personnel in the level of Manager are paid according to the number of days the employee attends the office and as the petitioner was found absent, therefore, proportionately his salary was also reduced.
7. The proceeding initiated against the petitioner by the show cause notice Page No.# 5/6 dated 22.06.2015 resulted in an enquiry report dated 26.10.2015 and upon acceptance of the enquiry report, the order impugned dated 04.12.2015 had been passed, by which the penalty of reduction to a lower grade or post or lower stage in the Grade (i.e. E-III) was imposed on the petitioner.
8. The petitioner raises an issue that the respondent authorities had adopted a vindictive approach against him all along since his initial appointment as a probationer and the order of penalty is a result of such attitude on the part of the respondent authorities. But, however, materials on record indicate that the performance of the petitioner in the marketing department was not satisfactory and in a given circumstance, his posting was placed with the organization namely PCFL and admittedly, the petitioner had not favourably responded to such posting. No specific contention has been raised by the petitioner as to in what manner there was any procedural aberration in the departmental proceeding that was initiated against him resulting in the penalty of reduction to a lower grade or post or lower stage in the Grade E-III.
9. In order to arrive at a fair appreciation, we also examined the enquiry report dated 26.10.2015 against the petitioner. The enquiry report reveals that the petitioner was present in the enquiry and he was duly heard and further the petitioner had submitted several documents which also included certain medical documents. Some of the medical documents were not acceptable to the enquiry officer for the reason that the certificates did not contain the name of the doctor, registration number etc, which according to the enquiry officer was necessary.
10. Prima-facie, no infirmity can be noticed in such observation of the enquiry officer to the extent that if the medical certificate did not bear the name of the doctor and the registration number, it may not be acceptable for the purpose.
Page No.# 6/6 But, however, we also take note that certain factors which were extraneous to the charges made against the petitioner were also taken into consideration in the enquiry report. In one of the paragraphs of the enquiry report, reliance had also been placed on certain events that may have occurred in the year 2013, but it was not a part of the charges against the petitioner. Again, the unsatisfactory performance of the petitioner during the probation period was also taken note of, which again was not a part of the charges against the petitioner.
11. For the limited purpose, without interfering with the order of penalty by the order dated 04.12.2015, we allow the petitioner to submit a representation before the Managing Director of APL to bring it to his notice if any extraneous consideration was also taken note of in the enquiry report dated 26.10.2015. If any specific instances of extraneous factors being taken note of is brought on record by the petitioner in such representation, the Managing Director may consider the same and pass a reasoned order thereof.
12 The reasoned order be passed by the Managing Director within a period of one month from the date of receipt of the copy of the representation by the petitioner.
The writ petition is disposed of in the above manner.
JUDGE Comparing Assistant