Bombay High Court
Shri S.P. Naik vs The Board Of Trustees, Mormugao Port ... on 22 February, 1999
Equivalent citations: 1999(4)BOMCR531, [2000(84)FLR328], (2000)ILLJ831BOM, 1999(3)MHLJ351
Author: R.K. Batta
Bench: R.K. Batta, J.A. Patil
ORDER R.K. Batta, J.
1. The petitioner challenges the imposition of penalty awarded to him as a result of departmental inquiry against him. The penalty awarded is withholding of two annual increments for a period of two years with cumulative effect and that the period of suspension be treated as 'non duty' and as such, the subsistence allowance already paid shall be final and no further pay and allowance would be payable to the petitioner for the said period. This penalty was awarded by the Disciplinary Authority vide memorandum dated 7-1-1993 against which the petitioner had filed an appeal, which was dismissed. The petitioner besides challenging the said penalties awarded to him, also seeks direction to consider the petitioner for the promotion to the post of Statistical Analyst with retrospective effect, that is to say, from 19-7-1985; direction to consider the petitioner to the post of Junior Statistical Officer from 1990 as well as consequential benefits arising thereunder. Prior to the filing of the petition, respondent No. 2 had been promoted, on ad hoc basis, to the post of Junior Statistical Officer and the petitioner also challenges his appointment. A statement was made by learned Senior Counsel Shri Nadkarni for respondent M.P.T. that respondent No. 2 shall not be confirmed without prior approval of the Court on the appointed post.
2. The petitioner's case, in brief, is that he joined respondent No. 1 as 'Computer' on 16-3-1971. He was promoted to the post of Investigator in April, 1977. He was entitled to promotion to the next higher post of Statistical Analyst which fell vacant in 1985. The petitioner made representation on 10-10-1985 that he was entitled to promotion to the said post which was not replied, nor any reply was given to the reminder sent in the year 1987. The petitioner was promoted to the post of Statistical Analyst only on 29-10-87, on ad hoc basis and was appointed on regular basis against the said post on 26-5-1988. On 7-8-1989, the petitioner made representation to the Chairman of respondent No. 1 to grant him notional promotion to the post of Statistical Analyst with effect from 1985, but his request was turned down vide memorandum dated 31st October, 1989. According to the petitioner, the said memorandum contained false and misleading statements since it appeared that the D.P.C. had met in the year 1985 and recommended that the petitioner should be promoted to the post of Statistical Analyst, as a result of which, the management had no reason whatsoever not to promote the petitioner with effect from September, 1985 after the said post was dereserved. In the year 1986, post of Junior Statistical Officer, which is a promotional, had fallen vacant, but the management put up an advertisement for direct recruitment to the said post in 1991. The petitioner sent representation dated 1-2-1991 that injustice had been done to him in 1985, in not promoting him to the post of Statistical Assistant (sic Analyst) and that he should be considered for the post of Junior Statistical Officer. After receipt of representation dated 1-2-1991 of the petitioner, the Director (P.M.S.) Shri D.R. Mhambre, who had an animus against the petitioner, recommended the down-grading of the post of Junior Statistical Officer to that of Research Assistant even though the post of Research Assistant was vacant since 1987. The petitioner on 2-4-1991, made representation to the Chairman of respondent No. 1 protesting against the said proposal and again requested for notional promotion with effect from 1985. The petitioner further states that he learnt that on 30-11-91, Chairman convened a meeting, which had approved his notional promotion, as Statistical Analyst with effect from July, 1985 and took a decision to consider the petitioner to the post of Junior Statistical Officer. Respondent No. 2 made a representation dated 18-12-1991 and on this representation, the Deputy Secretary made a note that the petitioner had, in fact, been selected by the D.P.C. on 19-7-1985 for promotion to the post of Statistical Analyst and that the Deputy Secretary had made a note on representation dated 1-2-1991 of the petitioner, confirming that the D.P.C. had recommended on 19-7-1985 that the petitioner should be promoted to the post of Statistical Analyst. On 30-11-1991, the said Shri D.R. Mhambre, suspended the petitioner on charges of insubordination and disobedience. Subsequently, by memorandum dated 25-1-1992, the petitioner was informed that an Inquiry was to be conducted against him on articles of charge furnished to him. The petitioner represented that said Shri D.R. Mhambre could not be the Disciplinary Authority since he was one of the complainants in relation to Article of Charge No. IV in the written statement dated 31-1-1992 as well as by a separate representation dated 10-2-1992 to the Chairman of respondent No. 1. The petitioner made three more representations on the sameline, but his representations were rejected vide memorandum dated 4-6-1992. One Shri Jog was appointed as Inquiry Authority who conducted the Inquiry and submitted report, containing his findings. He held him guilty of Articles of Charge Nos. I and II. Charge No. III was held to be partly proved and Charge No. IV not proved. The Article of Charge I relates to insubordination and disobedience of lawful orders of Superior Officers. Article of Charge II again relates to insubordination, arrogant behaviour, use of abusive language, banging of door, etc. Article of Charge III relates to the habit of the petitioner, leaving his work spot, without permission of his superiors and without writing any movement register about his movements. Article of Charge IV pertains to arrogant behaviour with the Director (P & MS) and his refusal to maintain movement register. The petitioner vide letter Exhibit 15 dated 31-12-1992, made allegations against the Inquiry Officer, Shri, A.S. Jog that he had prepared his report under dictation from Shri R.V. Rao, Assistant Secretary. The Disciplinary Authority Shri D.R. Mhambre accepted the report of the Inquiry Officer and gave opportunity to the petitioner to make representation against the proposed penalty. The appeal preferred by the petitioner before the Deputy Chairman was dismissed. This is how the petitioner has come to this Court in writ petition.
3. Learned Advocate Shri M. D'Costa, appearing on behalf of the petitioner urged before us that the disciplinary proceedings are vitiated and void since Shri D.R. Mhambre, the Disciplinary Authority had himself complained against the petitioner, which was subject matter of inquiry under Article of Charge IV. According to him, the said Shri Mhambre could not act as Disciplinary Authority to be the Judge of his own cause and the principles of natural justice have been totally violated. The representation made by the petitioner for challenge of the Disciplinary Authority was wrongly rejected. It was also urged by the learned advocate for the petitioner that the findings of the Inquiry Officer which have been accepted by the Disciplinary Authority as well as Appellate Authority, are perverse since the charges were not proved against the petitioner. Lastly, it was submitted that in view of the imposition of minor penalty of withholding of two increments, the order of the Disciplinary Authority treating the period under suspension as 'non-duty' cannot be sustained in the light of Government of India's decision on this subject which are applicable to the petitioner, since respondent No. 1 is part of Central Government. Reliance was placed by the learned Advocate for the petitioner on State of Madhya Pradesh and another v. Syed Naseem Zahir and others, 1993 Supp. (2) S.C.C. 225.
4. On the other hand, the learned Senior Counsel Shri V.B. Nadkarni, appearing on behalf of respondent No. 1 urged before us that neither notional promotion nor retrospective promotion as claimed by the petitioner can be granted; that the petitioner was appointed on ad hoc basis in the year 1987 and he would not be eligible for the post of Junior Statistical Officer, which fell vacant in the year 1991. It was stated at the Bar by learned Senior Counsel Shri Nadkarni that No. D.P.C. was held in the year 1985 or in 1991 as alleged by the petitioner and, in fact, the petitioner himself in his representation Exhibit P-3 dated 7-8-89 had stated that the post of Statistical Assistant had been kept unfilled since 1985 and for more than two years the D.P.C. was not held and that vide office Memorandum Exhibit-4 dated 31-10-1989, the Secretary of the respondent No. 1 had informed the petitioner that the D.P.C. had not met in connection with the vacant post of Statistical Assistant from 1985 since cadre review proposal was in offing including abolition of the post of Statistical Analyst and besides that the petitioner had filed a false L.T.C. claim for which he was charge-sheeted, but he was exonerated of the charges only in April, 1987. Accordingly, no one was considered for the post of Statistical Assistant till 1987, after which the petitioner was appointed on ad hoc basis. According to the learned Senior Counsel for respondent, promotion is required to be given effect from the date promotion is ordered and not from the date on which the post fell vacant. In that respect, reliance has been placed on Union of India and others v. K.K. Vadera and others, and Jagdish Ch. Patnaik and others v. State of Orissa and others, .
5. On the question of bias, it has been submitted that the petitioner has made reckless allegations not only against the Inquiry Officer Shri Jog, but also against the Disciplinary Authority, who have not been joined to the petition and they had no opportunity to challenge the allegations made by the petitioner. It was also pointed out that the Regulations of M.P.T. provide for specific authority as Disciplinary Authority and there is no power to relax and there is no challenge to the regulations. Besides, it is argued that the doctrine of necessity would come into play in such an eventuality. It was submitted that the Disciplinary Authority had agreed with Inquiring Authority that Article of Charge IV in relation to which the allegations have been made against Disciplinary Authority, was not proved, which totally rules out bias. According to learned Senior Counsel, there is absolutely no merit in the petition and the petition is liable to be rejected.
6. In reply, learned Advocate Shri M.B. D'Costa for the petitioner states that respondent No. 1 has not filed any affidavit-in-reply. On the question of bias, reliance has been placed on Gullappalli Nageswararao and others and V. Somasankara Sastry v. State of Andhra Pradesh and others, ; Arjun Chaubey v. Union of India and others, and Murari Mohan Deb. v. Secretary to the Govt. of India and others, . Reliance has also been placed on S. Krishnamurthy v. The General Manager, Southern Railway, A.I.R. 1977 S.C. 1868 in support of the submission that since injustice was done to the petitioner, direction relating to retrospective promotion and appointment as well as consequential benefits to be given to the petitioner.
7. To start with, we must say that there is no merit in the claim of the petitioner either for notional promotion to the Statistical Analyst with effect from 19-7-1985 or for direction relating to consideration of the petitioner to the post of Junior Statistical Officer with retrospective effect from 1990. These claims of the petitioner cannot, even, otherwise, be entertained on account of laches on the part of the petitioner in seeking belated remedy in this Court. It appears that the imposition of penalty has prompted the petitioner to make his belated claim. The petitioner had, in fact, already been promoted to the post of Statistical Assistant, on ad hoc basis, with effect from 29-10-1987 and on regular basis from 26-5-1988. His claim for notional promotion was based upon the ground that the D.P.C. has met in the year 1985 and recommended his case for promotion to the post of Statistical Analyst and that the petitioner had, in fact, been selected by the D.P.C. on 19-7-1985. The petitioner has not produced any material to support that the D.P.C. had met on 19-7-1985 or in the year 1991, as alleged by the petitioner. Learned Senior Counsel Shri V.B. Nadkarni had made a statement at the Bar that no D.P.C. was held either in 1985 or in 1991 as alleged by the petitioner. In fact, the petitioner himself in the representation Exhibit P-3 dated 7-8-1989 had stated that D.P.C. had not met for more than 2 years even though the post of Statistical Assistant fell vacant in 1985. In fact, by Office Memorandum Exhibit P-4 dated 31-10-1989, the Secretary of respondent No. 1 had informed the circumstances in which the D.P.C. had not met from 1985 till April, 87. Even though wild allegations are made by the petitioner that the D.P.C. met in 1985 and the petitioner has verified the same as per his own knowledge, yet, there is no material on record to accept his bare allegations in the matter.
8. Coming to the Disciplinary proceedings, the petitioner had made a request of change of Disciplinary Authority, which was rejected. Article of Charge IV was, in fact, reported by Junior Research Officer, Smt. S.S. Keshkamat against the petitioner. It pertains to disrespectful and arrogant behaviour as well as attitude of the petitioner, which took place in presence of Director (P & MS) Shri Mhambre. Ultimately, this charge was found to be not proved and the Disciplinary Authority accepted the findings of the Inquiry Officer. It appears that the petitioner is in habit of making unfounded allegations which were even levelled against the Inquiry Officer Shri Jog. In view of the allegation of bias made by the petitioner against the Disciplinary Authority as well as the Inquiry Officer, it was necessary that he should have made them as parties so that they could have answered the allegation made by the petitioner. The petitioner, for reasons best known to him, did not do so. It is no doubt true that a person cannot be a judge in his own cause and the principles of natural justice have to be adhered to. However, we find that in the circumstances and especially, the acceptance of findings of the Inquiry Officer by the Disciplinary Authority, the allegation of bias not only receded in the background, but the allegations are not substantiated as well. Moreover, the Regulations do not provide for alternate Disciplinary Authority. The petitioner had filed appeal against the imposition of penalty, which was dismissed. On merits of the inquiry, we find that no case has been made out for interference. The findings of domestic Tribunals/domestic inquiry cannot be interfered with in the exercise of writ jurisdiction unless the findings are found to be perverse or there is sufficient justification to interfere with the same.
9. Nevertheless, in so far as the finding of the Disciplinary Authority relating to the period of suspension as 'non-duty' is concerned, there is considerable merit in the submission of the petitioner. Though we do not find any merit regarding the challenge to the penalty of withholding of two annual increments for two years with cumulative effect, which penalty cannot be said to be disproportionate, so as to interfere with in the exercise of writ jurisdiction. This penalty is found to be commensurate with the articles of charge, which have been found to be proved against the petitioner. However, there is considerable force in the contention of the petitioner that in view of imposition of minor penalty, the period of suspension should have been treated as 'on duty'. The Mormugao Port Employees (Classification, Control and Appeal) Regulations, 1964 provide for major and minor penalties. With-holding of increments falls under the category of minor penalty. Regulation 9 deals with nature of penalties. Regulation 11 deals with imposition of major penalties and Regulation 12 deals with the procedure of imposing minor penalties. The penalty of with-holding of increments or promotion falling under Regulation 9(ii) is treated as minor penalty under Regulation 12. When minor penalty is imposed, period of suspension is not to be treated as not on duty. In fact, as per Schedule under the said Regulations, 1964, in case of Officers holding Class I post and above, the Appellate Authority for the imposition of penalty is Central Government. The Government of India, in decision dated 3-12-1985, reported under F.R. 54-B of the Fundamental Rules under heading 'Administrative Instructions', at item No. 3 at page 260 of Swamy's Fundamental Rules, Part-I, Twelfth Edition, has dealt with this issue. In this decision, the Government of India took into consideration the guidelines and instructions on the subject that suspension should be resorted to only in those cases where a major penalty is likely to be imposed on conclusion of the proceedings and not a minor penalty. The Government of India has ruled that when an inquiry has been held for imposition of a major penalty and finally minor penalty is awarded, the suspension should be considered unjustified and in terms of F.R. 54-B the employee should be paid full pay and allowances for the period of suspension by passing a suitable order under F.R. 54-B. The same principle has to be applied in the case under consideration. Thus, in our opinion, the petitioner is entitled to full pay and allowances for the period of suspension and the order of the Disciplinary Authority, treating the said period as not on duty is required to be set aside.
10. For the aforesaid reasons, the petition is partly allowed only to the extent that the period of suspension of the petitioner has to be treated as on duty and he shall be paid full pay and allowances for the period of suspension. The result would be that, the petitioner shall be entitled to the difference of the subsistence allowance already paid and the pay and allowances to which he would be otherwise entitled during the period of suspension. Except for this relief, the other reliefs sought by the petitioner cannot be granted and the petition, in relation to the other claims, putforward by the petitioner is, hereby, rejected. Rule made absolute in the aforesaid terms. In the facts and circumstances, we shall leave the parties to bear their costs.
11. Petition partly allowed.