Calcutta High Court
Ajit Kumar Nag vs General Manager (Pj), Indian Oil ... on 6 February, 2004
Equivalent citations: (2004)2CALLT64(HC), [2004(102)FLR521], (2004)IIILLJ800CAL
Author: D.K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K. Seth, J.
1. The writ petitioner had unsuccessfully challenged the order of termination dated 6th May 1999 in exercise of Clause 20(VI) of the standing order for the Haldia Refinery of the Indian Oil Corporation Limited (Refineries and Pipelines Division) certified under the Industrial Employment (Standing Orders) Act, 1946 in writ petition No. 10667(W) of 1999 since dismissed by an order dated 9th July 2002 passed by the learned single Judge, which is under challenge in this appeal.
Submission on behalf of the appellant:
2. Mr. K.K. Moitra, learned senior counsel, appearing on behalf of the appellant/petitioner, had assailed the judgment on four principal grounds: first, the provisions contained in Sub-clause (VI) of Clause 20 of the standing order is an exception, which can be exercised only in an extremely exceptional case, the test whereof has not since been satisfied in the case of the petitioner. Relying on Motiram Deka and Ors. v. General Manager, North East Frontier Railway, , he contended that right to continue in permanent service cannot be invaded. According to him, this principle has been followed in Paresh Chandra Dutta v. Collector of Calcutta and Ors., (1978)2 CLJ 316 at p. 319. The dismissal of the petitioner was effected on the ground of his misconduct subject to Clause 20 of the standing order in a manner contrary to Article 311(2) of the Constitution of India, which is to be exercised only in special circumstances in view of the power conferred on the authority under Clause (V)(a). Inasmuch as, the allegations under which the dismissal was effected could be met by putting the petitioner under suspension pending enquiry. Second, the grounds disclosed in support of the exercise of the extraordinary power itself goes to show that the power was exercised in a manner mala fide. Inasmuch as, several witnesses were examined before the order of dismissal was passed. The enquiry so held is Itself an indication that the enquiry was practicable and could be held. Third, out of the same allegation, a criminal case was also initiated against the appellant/petitioner. After trial, the appellant/petitioner was acquitted from the case. Therefore, on the self-same, allegation, the dismissal could not be sustained in view of the ratio decided in the decision in Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., . Fourth, the standing order has a statutory force and it has to be applied only in the manner as prescribed. In support of his contention that the standing order has statutory force, he relied on D.K. Yadav v. J.M.A. Industries Ltd., , a three Judge Bench decision. He relied on the decision in Hukam Chand Shyam Lal v. Union of India and Ors., to contend that the power prescribed by a statute has to be exercised in that particular manner and no other.
3. While elaborating the fourth point, Mr. Moitra contended that the special power under Sub-clause (VI) of Clause 20 can be exercised by the General Manager, which in this case is GM(I/C), under whom the General Manager (Project) [GM(PJ)] was working. The impugned order has since been passed by the GM(PJ). The exercise of this special power embraces a policy decision. Unless the statute provides for delegation of power involving policy decision, such power could not be delegated. GM(PJ) was acting as GM(I/C). A person acting cannot exercise statutory powers as was held in T.R. Pandey v. The Chief Commissioner, Andaman & Nicobar Islands and Ors., 1978 Lab IC 41, When a statute provides that a particular action is to be taken or exercised in a particular manner, the same is to be exercised in that manner alone, as was held in The Marathwada University v. Seshrao Balwant Rao Chavan, . With regard to this point, his second limb of argument was that the letter of authorisation empowered GM(PJ) to coordinate. This coordination does not include conferring of special power. According to him, delegation was impermissible. The special power is not an emergency power. There is a distinction between emergency power and special power. In this case, no emergency was pleaded to show that the matter could not wait till 15th of May when GM(I/C) was expected to come back. He also contended that GM(I/C) is the appellate authority, so this power conferred on the appellate authority cannot be exercised by an officer from whose order appeal lies to GM(I/C). The hot-haste in which the action was taken, itself indicates mala fide inasmuch as the GM(PJ) could wait for six days when GM(I/C) was due to return. The expression "coordination" used in the Letter of Authorisation has to be interpreted following the principles of interpretation avoiding the principle of surplusage and superfluity, which, according to him, in this case, would exclude the special power within the scope of the alleged delegation. If in interpreting the provisions contained in the clause adversely affects the fundamental right of a citizen, in that event, either the clause has to be struck off or to be read down as was held in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., .
4. Elaborating his submission further, Mr. Moitra had contended that in case of misconduct, enquiry is essential. The holding of enquiry is a general power. The dispensation of enquiry is a special power. These two powers are distinct. The function of coordination conferred on GM(PJ) cannot be equated with disciplinary power and that too a special power. This special power is not a disciplinary power, but an extraordinary power. This is a power to be exercised in a situation to avoid grave consequence. It is the satisfaction of the GM(I/C) and no other to conclude about the expediency in the interest of security and as such this power could not be exercised by the GM(PJ). The distinction between the disciplinary power and a special power was lost sight of. Such decisions cannot be taken on the basis of some reasons leading to the satisfaction of an officer other than the officer competent or authorised. Inasmuch as to conceive of a situation is a basic feature of the administrative law, which cannot be performed by anyone else except the officer authorised by the statute to do so. Delegation can be made only if the statute provides. Even if the authorisation is construed to be a delegation, the delegation is impermissible and as such bad. To support, this contention, Mr. Moitra relied on Hindustan Brown Boveri Ltd. v. The Workmen and Anr., 1968(16) FLR 325. In these circumstances, the order should be quashed and the petitioner should be reinstated in view of the decision in Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., .
Submission on behalf of the respondent:
5. Mr. Arijit Chowdhury, learned senior counsel, appearing on behalf of the respondent, Indian Oil Corporation, pointed out that the standing order has no statutory force, relying on The Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant, . According to him, the question relating to delegation was not taken before the learned single Judge and as such, a question cannot be permitted to be raised in appeal. According to him, the exercise of special power in this case is not a policy decision. In support of this contention, he relied upon Union of India and Anr. v. Tulsiram Paid followed in Hari Pada Khan, v. Union of India and Ors., . According to him, a policy decision does not require recording of reasons. As soon it is necessary to record reasons, the decision then is to be supported by reasons and as such is not a policy decision. The giving of reasons distinguishes a policy decision is supported by the ratio in Tulsiram Patel (supra). The provision of giving reasons excludes the characteristics of policy matter in respect of Clause 20(VI). This is a power, which is to be exercised in the interest of the security of the establishment. Maintaining public order or law and order or security of the State is distinct from each other. Whereas commercial or industrial activity cannot be equated with the security of the State. On these grounds he prays for dismissal of the appeal. According to him, there are sufficient grounds to invoke this special power.
6. In reply to Mr. Moitra's contention that inspection of documents was not given, he submitted that no inspection was ever asked for on the question of non-supply of the report leading to the exercise of special power. This non-supply will not vitiate the order in view of Order 11 Rule 15 of the Code of Civil Procedure. He submits that it is not necessary to furnish the detailed report. This question is to be looked into on the principle of prejudice. According to him, no prejudice seems to have been caused in the present case. That apart the report on the basis of which the order of dismissal was passed was summarised and incorporated in the order of dismissal itself and, therefore, the petitioner cannot be said to have suffered any prejudice. In support of this contention, he relied on Aligarh Muslim University and Ors. v. Mansoor Ali Khan, . Secondly, he contended that such report need not be served before the order of dismissal is passed but it is open to the Court to ask for the report, if necessary. In support, he relied on Satyavir Singh and Ors. v. Union of India and Ors., . Relying on Needle Industries (India) Ltd. and Ors. v. Needle Industries Newey (India) Holdings Ltd. and Ors., , he contends that the delegation though may appear vague to outsiders but it has a special meaning to the insiders. Mr. Chowdhury had conceded that a statutory power cannot be delegated unless statute provides for. But the standing order not have a statutory force, the delegation is permissible. He distinguished the decision in T.R. Pandey (supra) by referring to page 43 thereof. That apart, he had further contended that the standing order itself provides for delegation. The provision for delegation is provided in Clause 2.6 of the standing order. The Clause 2.6 consists of two independent phrases with different coinage.
7. Mr. Chowdhury had also distinguished the decision in Captain M. Paul Anthony (supra) having regard to the present case and contended that acquittal from criminal case is immaterial in a disciplinary proceeding and that the decision was taken before the acquittal and not after, due to which the ratio in Captain M. Paul Anthony (supra) cannot be attracted. On the other hand, he relied on the decision in Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar, .
8. He lastly contended that the petitioner is due to retire in January 2004. Alternatively he prayed that in case he is unsuccessful, then the petitioner may be given relief other than reinstatement.
The confine:
9. We must appreciate that both the counsel have advanced erudite arguments by which we have been benefited. The arguments went into the details of each aspect of the respective contentions raised by the respective counsel elaborately. Having regard to the facts and circumstances of the case, we would confine ourselves only to the points relevant for our present purpose. We do not think that we are supposed to deal with all the arguments made by the learned counsel for the parties.
10. Admittedly the order of dismissal was passed on account of a misconduct, which is subject to disciplinary proceedings under Clause 20 of the standing order. Only exception is provided in Sub-clause (VI) of Clause 20 where service could be terminated on account of misconduct without holding an enquiry. The grounds mentioned therein having been provided for such power can be exercised only when the tests laid down in the provisions are satisfied. Whether the power has been exercised bona fide or mala fide can be deciphered only if reasons are recorded. Since this is an extraordinary power capable of being abused or misused, the exercise of this power is protected by the mandatory requirement of giving reasons. But these reasons though may form a subject matter of the revisional jurisdiction of the Courts but it cannot be scrutinised by the Court as if sitting on appeal. The Court's jurisdiction, when challenged, to examine the reasons leading to exercise of the special power, is only confined as to whether on the reasons given the action can be justified or not. It cannot examine as to whether a second opinion can be formed or whether the opinion formed is right or wrong. It can examine whether the opinion so formed on the basis of the reasons given or materials disclosed cannot be formed by a reasonable person or in other words the decision is perverse. It can also examine the question of mala fide in the exercise of the power. Unless it appears to the Court that the reasons given are perverse or mala fide, the Court is not supposed to interfere. Whether the situation could wait for a few days or whether the exercise of power under Sub-clause (V) of Clause 20, namely, suspension would have net the situation or could have avoided the apprehension under which the power was exercised is not a matter which the Court can look into until it appears to the Court to be perverse or the exercise appears to be mala fide.
Perversity or mala fide: If established:
11. Mr. Moitra had pointed out to the report as well as the order of dismissal and had led us through each of them in between lines and had attempted to make out a case of perversity and mala fide. We have examined the report and the order. It discloses that there was a situation, which created disorder in the establishment for which police had to be called for and the General Manager (FJ) in-charge had to rush late at the night. It also appears that people were frightened and that there was ultimatum by staffs due to which there was a possibility of break down of the entire system. These are situations with which the person at the spot has to deal with. The authority on the spot is the best judge of the situation prevailing. It is he who has to assess the situation and take steps. When deciding such question, the Court has to put itself at the spot where the decision was taken and think whether such decision could be taken or not. But, in our view, the Court cannot do so either on account of absence of expertise in the administration or in the absence of the overall knowledge about the situation prevailing in the establishment. It cannot consider the question from outside. It cannot be examined with the views of an outsider. Then again in case it appears to the Court that on the basis of such materials a reasonable man could arrive at such a conclusion, then, even if, the Court is of a different opinion, still then it cannot interfere. The Court's power to interfere is only in a case where It appears to the Court that the exercise of the power is mala fide or perverse. Having regard to the facts and circumstances of the case and the materials before us, it does not appear that no reasonable man could take such a decision. As such it does not seem to be perverse.
12. In order to allege mala fide, one has to establish that there are reasons, which might lead to the authority to harbour malice. In fact, when mala fide is alleged, it is the person who alleges mala fide has to establish mala fide by adequate materials. We have not been able to lay our hands upon any material, which can establish mala fide in this case. The submission that GM(PJ) could wait till the return of GM(I/C) or exercise of power under Clause 20(VI) could have served the purpose, are no ground for finding bias or malice in order to impute mala fide in the action. We, therefore, are unable to accede to the submission of Mr. Moitra to the extent that the test laid down in Sub-clause (VI) was not satisfied.
Exercise of special power : Whether a policy decision: Delegation:
13. The order of dismissal is supported by reasons given in the report, which are quite long. It appears that the reasons given in the order of dismissal have summarised each and every part of the detailed report leading to the formulation of the opinion for resorting to the extraordinary power.
14. The giving of reasons distinguishes a decision from being a policy decision and an administrative decision. A policy decision cannot be questioned by the Court. When a decision is a policy decision, it does not require to be supported by reasons. Policy decisions are outside the bounds of the Court's revisional powers. Here, in this case, Sub-clause (VI) mandates giving of reasons. The reasons given are subject to scrutiny by the Courts, which makes the distinction. The power conferred by Sub-clause (VI) is not a policy decision as is apparent from the view taken in Tulsiram Patel (supra). Therefore, this power can be delegated. Statutory power cannot be delegated unless delegation is provided for expressly or impliedly in the statute. The standing order has no statutory force as was held in The Rajasthan State Road Transport Corporation (supra), which had considered the decision in D.K. Yadav (supra). The distinction sought to be made by Mr. Moitra seems to be more pseudo than real. Therefore, the question of delegation of statutory power and the principles relating thereto has no manner of application in the present case.
15. In Paresh Chandra Dutta v. Collector of Calcutta and Ors., (1978)2 CLJ 316, it was held that a statutory power cannot be delegated. The standing order not having statutory force, the principle is not attracted. On similar ground T.R. Pandey (supra) also cannot be attracted since it prohibits delegation of statutory powers, which is not a case here.
16. In Hindustan Brown Boveri (supra) the word "company" used in the standing order has to be read in conjunction with the standing order as was laid down therein namely "Where the standing orders themselves define a "company" for the purpose of distribution of duties and powers it is that definition which is relevant when a question arises as to who is to exercise those powers and perform those duties." We may, therefore, find out the answer from the standing order itself.
17. Clause 2.6 answers the question of delegation. The power under Sub-clause (VI) of Clause 20 empowers the General Manager. Clause 2.6 defines "General Manager" to mean "a person for the time being appointed or authorised to act as General Manager of the Refinery by the Company and includes any other officer authorised to act as General Manager for the time being". Mr. Moitra wanted us to read this definition conjunctively, while Mr. Chowdhury wanted to read it disjunctively. However, we propose to read the definition as a whole, t clearly means a person appointed or authorised to act as General Manager by the Company. This phrase gives a clear meaning. It does not require any further clarification. But when this definition is qualified by the inclusive phrase, which includes any other officer authorised to act as General Manager for the time being without the expression "by the Company", then the officer acting as General Manager is not necessarily to be authorised by the Company. Such authorisation may be made by any competent person. In fact, an establishment is to be managed, supervised and run by a particular person upon whom would vest the authority to manage. It cannot do without any such person. The commercial activities require consistent attention twenty-four hours due to which the General Manager (PJ) had to rush to the spot and had to undertake some exercise to manage the situation in administration of the establishment. Therefore, the definition "General Manager" would also include a General Manager in-charge for the time being though may not be authorised by the Company but by the GM(I/C). Therefore, in our view, GM(PJ) when authorised by GM(I/C) is competent to exercise the power under Sub-clause (VI).
18. Now turning to the Letter of Authorisation, we find that the GM(PJ) was authorised during the period of absence of GM(I/C). The authorisation was couched with the expression "coordinate". Mr. Moitra had attempted to impress upon us that this coordination is not an authorisation for acting as General Manager. Therefore, there was no delegation. The word "coordination" may mean something to us who are outsiders; it might be something more to the insiders, as was held in Needle Industries (India) Ltd. and Ors. v. Needle Industries Newey (India) Holdings Ltd. and Ors., . But then the function of the Manager is a function of coordination. When the power of coordination is given to an officer subordinate, then it includes delegation of his power to take all such steps as are/or may be required for the purpose of managing the establishment for the time being. Therefore, this authorisation includes the power to take disciplinary action, which the GM(I/C) could have taken. Mr. Moitra had pointed out that GM(PJ) has independent power of disciplinary proceedings against some categories of persons. GM(I/C) is the appellate authority in respect of such disciplinary powers exercised by GM(PJ). But this does not exclude GM(I/C) to confer upon GM(PJ) the disciplinary power exercised by him in his absence through authorisation. Then again the appellate authority in respect of order invoking special procedure is the Director of Refineries since such power is exercised by GM(I/C). Thus, in case if GM(PJ) exercises the power of GM(I/C), the appeal would lie to the Director and not to GM(I/C). Therefore, there is no inconsistency in the Notification dated 12th February 1999, annexure-A to CAN 5331 of 2003 affirmed by the appellant on 30th June 2003.
Exercise of the special power: Validity of:
19. The petitioner was holding a permanent post. He has a right to continue in service. This right cannot be invaded except in accordance with law as was held in Moti Ram Deka (supra) followed in Paresh Chandra Dutta v. Collector of Calcutta and Ors., (1978)2 CLJ 316. In this case as we have already found that the service of the petitioner is subject to the conditions of service contained in the standing order, which include Clause 20(VI). Similar clauses have been incorporated in different rules governing service. The vires was raised in Tulsiram Patel (supra) where the Apex Court had held it to be intra vires. Therefore, this power exercised against the petitioner cannot be said to be invasion to his right to continue in service without due process.
20. In Hari Pada Khan v. Union of India and Ors., , a similar question arose with regard to identical clause, the validity whereof was upheld relying on the decision in Tulsiram Patel (supra) on the ground that such rules are made to meet the specified contingency the principle of natural justice by implication stands excluded. In Satyavir Singh (supra) the Apex Court had held as follows:
"58. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of the prevailing situation that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final.
59. It is not possible to enumerate the case in which it would not be reasonably practicable to hold the inquiry.
Illustrative case would be--
(a) where a civil servant, particularly, through or together with his associates, so terrorises, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so, or (b) where the civil servant by himself or together with or through others threatens, intimidates and terrorises the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held, or
(c) where an atmosphere of violence or of general indiscipline and insubordination prevails, it being immaterial whether the concerned civil servant is or is not a party to bringing about such a situation.
In all these cases, it must be remembered that numbers coerce and terrify while an individual may not.
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63. The recording of the reason for dispensing with the inquiry is a condition precedent to the application of Clause (b) of the second proviso. This is a constitutional obligation and if such reason is not recorded in writing, the other dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. It is, however, not necessary that the reason should find a place in the final order but it would be advisable to record it in the final order in order to avoid an allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated.
64. The reason for dispensing with the inquiry need not contain detailed particulars but it cannot be vague or just a repetition of the language of Clause (b) of the second proviso."
21. The principle that an action prescribed by any rules has to be performed in the manner it is prescribed, as was held in The Marathwada University v. Seshrao Balwant Rao Chavan, , is an established provision of law. Having regard to the facts and circumstances of this case, we do not find that it has not been done in the manner as prescribed. Inasmuch as the reasons have been recorded and that the power was exercised by the General Manager for the time being on the strength of the authorisation.
22. The question that an officer acting cannot exercise statutory power as held in T.R. Pandey (supra) is not more germane in the present case since the power exercised is not a statutory power and that we have held that the GM(PJ) could exercise the power under Clause 20(VI) when authorised by GM(I/C) in view of Clause 2(6). Similarly, the decision in the Marathwada University, (supra) will also not help Mr. Moitra on the question of absence of delegation having regard to the facts and circumstances of this case,
23. The provision of Sub-clause (VI) could be exercised only in an appropriate situation. The distinction between emergency power and special power is of no relevance in the present case since the exercise of such power is to be supported by reasons, which we have found against the contention of Mr. Moitra with regard to perversity and mala fide. The circumstances emerging through the reasons given in the order and the detailed report does not lead us to hold that the reasons are perverse or mala fide or that no reasonable man could take such a decision. The allegation that witnesses were examined and that enquiry could be held is of no consequence since the situation was to be assessed at the hour on the spot and upon having so assessed the situation, the authority had taken the decision. The Court is not supposed to sit on appeal with regard to the justification of the reason or the decision. It can only examine whether the decision is perverse or male fide. Having regard to the materials placed before us, it seems that the authority had taken due care to exercise such power and the report indicates that there were reasons which could reasonably lead a reasonable man to take such a decision. The non-supply of detailed report does not affect the decision in view of the fact that the order itself summarised the report, in view of the ratio decided in Satyavir Singh (supra) and that this non-supply does not seem to have prejudiced the petitioner, as was recorded in paragraph 23 in the decision in Aligarh Muslim University (supra).
Acquittal from criminal case: Relevance:
24. The acquittal of the petitioner from the criminal case is of no consequence having regard to the facts and circumstances of the case. The ratio decided in Chairman and Managing Director, United Commercial Bank (supra) helps Mr. Chowdhury and it distinguishes Captain M. Paul Anthony (supra) the decision whereof does not help Mr. Moitra in the facts and circumstances of the case. Inasmuch as disciplinary proceeding is independent of criminal proceeding. The ratio decided in Captain M. Paul Anthony (supra) has since been explained in Bhaskar Mondal v. UCO Bank, 2003(1) AIC 329 (Cal): 2002(4) SLR 601 : 2002(3) ESC 217 : 2002(2) Cal LT 574, sitting singly. Unless the guiding factors indicated in paragraph 14.1 therein are satisfied, the principle laid down in Captain M. Paul Anthony (supra) cannot be attracted. But then these principles are applicable in a where the disciplinary proceeding awaits the decision of the criminal Court acquitting the delinquent and the disciplinary proceeding proceeds on the basis of the self-same materials that were produced before the criminal Court and proceed with the disciplinary proceeding after acquittal relying on the same witnesses, who were examined by the Court. That apart in Sital Chandra Ganguly v. The Nineth Industrial Tribunal, West Bengal and Ors., (2003)2 WBLR (Cal) 181 (DB) (para 15) we had occasion to hold that "such question will arise only in a case where the enquiry is being held after a decision by a Court. Captain M. Paul Anthony (supra) had never laid down that in a case where the enquiry is over and a decision has been arrived at, though, may be a subject matter of a pending proceeding, the order would be re-opened or recalled because of the inconsistent or reverse finding of a Court on the same allegations at a latter point of time after the final order in the enquiry is passed. The ratio decided in Captain M. Paul Anthony (supra) can be attracted to a case where the enquiry is being held after a decision by a Court on the same allegations and the facts have become final, but not in a case where the enquiry had become final before the decision of the Court." In the present case, the decision was taken long before the acquittal took place. The acquittal from the criminal charges does not absolve a delinquent of the finding in a disciplinary proceeding or otherwise. The decision upon exercise of such power is independent of the criminal proceedings. It has to be examined on its own merit without the aid and assistance of the order of acquittal. The order of acquittal cannot lend any presumption to the Court or is not a material to be weighed with while examining the merit of the order challenged.
25. The question of alternative submission relying on O.P. Bhandari v. Indian Tourism Development Corporation Ltd. and Ors., would not be necessary to be gone into in the present case in view of our finding recorded above. The exercise of the power in hoi-haste as we have already discussed is no more necessary to be dealt with in view of the fact that we cannot place ourselves at the spot and in the shoes of the authority. The question of reinstatement as propounded in paragraph 196 in Bhagatram's case (supra), having regard to the facts and circumstances of the case is of no help to us.
Order:
26. In the result, the appeal fails and is hereby dismissed. The order passed by the learned single Judge is hereby affirmed.
There will, however, be no order as to costs.
Urgent xerox certified copy of this judgment be made available to the parties, if applied for.
R.N. Sinha, J.
I agree.