Rajasthan High Court - Jodhpur
Vijay Dhaker vs Nuclear Power Corporation Of India Ltd. ... on 6 April, 2022
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12266/2021
Vijay Dhaker S/o Sh. Balu Lal Dhaker, Aged About 36 Years, R/o-
Type-D, 66/4, Anumala Township, Taluka-Vyara, District- Tapi
(Gujarat) - 394651.
----Petitioner
Versus
1. Nuclear Power Corporation Of India Ltd. (NPCIL), Through
Its Chairman And Managing Director, Nabhikiya Urja
Bhawan, Anushakti Nagar, Mumbai - 400094.
2. The Director, Human Resources (HR), Nuclear Power
Corporation Of India Ltd. (Npcil) Nabhikiya Urja Bhawan,
Anushakti Nagar, Mumbai - 400094.
3. The Site Director, Rajasthan Atomic Power Station, Unit-1
To 8, Nuclear Power Corporation Of India Ltd. (NPCIL),
Rawatbhata, Rajasthan Site, P.o.- Anushakti, Via- Kota.
4. The Head, Human Resources (HR), Rajasthan Atomic
Power Station, Unit-1 To 8, Nuclear Power Corporation Of
India Ltd. (NPCIL), Rawatbhata, Rajasthan Site, P.o.-
Anushakti, Via- Kota.
5. The Chairperson, Internal Complaints Committee,
Rajasthan Atomic Power Station, Unit-1 To 8, Nuclear
Power Corporation Of India Ltd. (NPCIL), Rawatbhata,
Rajasthan Site, P.o.- Anushakti, Via- Kota - 323303.
----Respondents
For Petitioner(s) : Mr. R.S.Saluja.
For Respondent(s) : Mr. Sanjay Nahar.
Mr. Pushkar Tamini.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 06/03/2022 This writ petition has been filed by the petitioner seeking the following reliefs:
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(2 of 11) [CW-12266/2021] "It is, therefore, respectfully prayed that this writ petition of the petitioner may kindly be allowed and by an appropriate writ, order or direction:-
(I) The Inquiry Report prepared by the Internal Complaint Committee (ICC) on07.10.2019 (Annex.3) being in violation of Section 11(1) (2nd proviso) of the Act of 2013 may kindly be quashed and set aside. (II) The Memorandum dated 10.12.2019 (Annex.4) issued on the basis of inquiry report dated 07.10.2019 may kindly be quashed and set aside.
(III) The inquiring committee may kindly be restrained from proceeding further with the inquiry, in pursuance of Memorandum dated 10.12.2019 (Annex.4) issued to petitioner.
(IV) For purpose of granting aforesaid relief, Annex-16 dated 07.07.2021 passed by Disciplinary Authority may kindly be quashed and set aside.
(V) Further to aforesaid, Annexure-27 dated 06.08.2021 purporting to be passed by Board of Directors on appeal of petitioner may kindly be quashed and set aside. (VI) The respondents may further be directed, abide by the directions of the Hon'ble Court in its decision dated 03.11.2020 (Annex.8).
(VII) The petitioner may also be granted relief in consonance with the facts stated and the grounds taken in the memo of writ petition.
(VIII) Writ petition filed by the petitioner may also kindly be allowed with costs."
However, during the course of submissions, on 29/3/2022 learned counsel for the petitioner did not press the reliefs except relief no. (IV) & (V) (supra) in relation to the orders dated 7/7/2021 (Annex.16) and 6/8/2021 (Annex.27), qua other reliefs claimed by the petitioner, it was submitted that review petition in relation to the order dated 3/11/2020 passed by this Court is pending consideration.
A complaint came to be made against the petitioner under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('the Act, 2013'). An inquiry was conducted by the Internal Complaints Committee under the Act, which gave its report dated 5/10/2019 (Annex.3). Pursuant to the said report, wherein, the Committee came to the conclusion that the complaint made by the complainant was proved beyond reasonable doubt, on (Downloaded on 06/04/2022 at 08:43:12 PM) (3 of 11) [CW-12266/2021] 10/12/2019, the CMD and Disciplinary Authority issued charge sheet to the petitioner (Annex.4), which was responded by the petitioner. However, by order dated 4/2/2020 (Annex.6) the Disciplinary Authority appointed the Internal Complaints Committee as the Inquiring Authority in view of proviso to Rule 14(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 ('the Rules, 1965').
The petitioner sought change in the Inquiring authority and, thereafter, approached this Court by filing S.B.Civil Writ Petition No. 8259/2020, which petition came to be decided by order dated 3/11/2020 by a coordinate bench of this Court, wherein, the Court came to the conclusion that no interference at that stage was warranted/no intervention was required and there was no reason to apprehend that the committee constituted to look into the charges framed against the petitioner will not abide by law. The Court also came to the conclusion that in terms of Rule 14(2) of the Rules the same member can conduct disciplinary inquiry and directed that the committee will conduct the inquiry without being influenced by the Internal Inquiry Report dated 7/10/2019 (5/10/2019) and shall adhere to principles of natural justice and proceed in accordance with law. Further the petitioner was left free to take appropriate legal remedy against the final order.
Whereafter, the inquiry proceeded. The petitioner filed several applications before the Inquiring Authority and before the Disciplinary Authority. On 13/5/2021, the petitioner made a complaint to the CMD and Disciplinary Authority, wherein, the petitioner requested the competent authority to quash the inquiry report dated 7/10/2019 before initiation of inquiry proceedings (Downloaded on 06/04/2022 at 08:43:12 PM) (4 of 11) [CW-12266/2021] and constitute a new Inquiry Authority and reinstate afresh inquiry.
The petitioner was informed by communication dated 7/7/2021 (Annex.16) by the General Manager (HR) that the Disciplinary Authority has directed to convey its order on the representation dated 13/5/2021 to the Inquiring Authority, petitioner and the Presenting Officer and quoted the order, wherein, the pleas raised by the petitioner in representation dated 13/5/2021 of bias etc. were rejected. The said order dated 7/7/2021 is now under challenge.
On 13/7/2021 (Annex.19) the petitioner filed an appeal before the Board of Directors with respect to the biased approach by the Internal Complaints Committee/Inquiring Authority and requested that keeping in view the biased approach by the Inquiring Authority, the inquiry report dated 7/10/2019 be quashed, constitute a fresh Inquiring Authority with no earlier involvement in the case and requested afresh inquiry in line with the principles of natural justice.
On the said appeal filed by the petitioner, the General Manager (HR) by communication dated 6/8/2021 (Annex.27) with the approval of the competent authority informed that the petitioner may refer to provisions of appeal envisaged under NPCIL (Discipline & Appeal) Rules, 1996 (the Rules, 1996'), whereby, the appeal filed by him is not maintainable. The said order has also been put in question.
It is submitted by learned counsel for the petitioner that the rejection of petitioner's representation by order dated 7/7/2021 (Annex.16) is vitiated as the order has been passed by the General Manager (HR). Submissions have been made that the (Downloaded on 06/04/2022 at 08:43:12 PM) (5 of 11) [CW-12266/2021] respondents in reply to the writ petition in para 17 clearly admitted that the General Manager (HR) after considering the representation dated 13/5/2021 decided the same and that he has decided the representation dated 13/5/2021 in most appropriate and best possible way. Further, when based on the said response, submissions were made in rejoinder and before the Court indicating that the General Manager (HR) is not the disciplinary authority and, therefore, he could not have passed the order, the respondents by way of sur-rejoinder claimed that the indication about deciding the representation dated 13/5/2021 by the General Manager (HR) was wrongly written as there was an inadvertent error, the representation was considered and decided by the CMD & Disciplinary Authority. It is submitted that once the respondents have taken a plea in the reply regarding dismissal of representation dated 13/5/2021 by the General Manager (HR), it was not permissible for the respondents to change their stand in sur-rejoinder and, therefore, once the representation dated 13/5/2021 has been decided by an incompetent authority, the same cannot be sustained and, therefore, the order dated 7/7/2021 (Annex.16) deserves to be quashed and set aside.
In relation to order dated 6/8/2021 (Annex.27) it was submitted that the appeal was filed by the petitioner before the Board of Directors, however, from the material on record it is apparent that the same has not been decided by the Board of Directors and, therefore, the order dated 6/8/2021 communicating the dismissal of the appeal as not maintainable, also deserve to be quashed and set aside.
Regarding maintainability of the appeal, it is submitted by learned counsel for the petitioner that as the respondents in (Downloaded on 06/04/2022 at 08:43:12 PM) (6 of 11) [CW-12266/2021] earlier writ petition filed by the petitioner had indicated that the petitioner had an efficacious alternative remedy in the form of appeal as per the Headquarter instruction issued by the respondent Corporation, the appeal could not have been dismissed as not maintainable.
Learned counsel appearing for the respondents made submissions that the petition filed by the petitioner seeking to question the validity of the memorandum issued to him as well as the constitution of Inquiring Authority has already been rejected by this Court and ever since the inquiry proceedings have been initiated, the petitioner has indulged in making representation after representation raising baseless objections and/or making allegations for which there is no foundation, only with an attempt to somehow delay the proceedings.
It was submitted that the grounds sought to be raised seeking to question the validity of orders dated 7/7/2021 (Annex.16) and 6/8/2021 (Annex.27) are baseless. It was submitted that from the material produced by the respondents it is apparent that both the orders dated 7/7/2021 and 6/8/2021 have been passed by the competent authority. The petitioner cannot take advantage of the inadvertent error in response to the writ petition, wherein, it was wrongly indicated that the representation dated 13/5/2021 (Annex.15) filed by the petitioner was decided by the General Manager (HR) as from the material produced as Annex.R/3 with the sur-rejoinder it is apparent that the order was passed by the Disciplinary Authority and the same was communicated by order dated 7/7/2021 by the General Manager (HR) and as such the plea raised by the petitioner deserves rejection.
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(7 of 11) [CW-12266/2021]
Further submissions were made qua the order dated
6/8/2021 indicating the dismissal of the petitioner's appeal as not maintainable that from a bare look at the appeal filed and the provisions of Rules, 1996 it is apparent that no such appeal was maintainable and, therefore, the order impugned cannot be faulted.
With reference to the note sheet Annex.R/5 it was submitted that the matter was dealt with by the appropriate appellate authority and, therefore, also the submissions made have no substance and, therefore, the petition deserves dismissal.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
As noticed hereinbefore the petitioner has questioned the validity of communication dated 7/7/2021 (Annex.16) and 6/8/2021 (Annex.27), whereby, the representation and appeal filed by the petitioner, respectively, have been rejected. The challenge laid to the communication dated 7/7/2021 (Annex.16), on the ground that the same has not been passed by the competent authority i.e. the Disciplinary Authority and instead General Manager (HR) has decided the representation dated 13/5/2021, is on its face baseless. A bare look at the communication dated 7/7/2021 (Annex.16), it is apparent that in most categorical terms in para 3 it has been indicated regarding decision made by the Chairman & Managing Director - Disciplinary Authority, which order has been quoted verbatim and, therefore, the plea sought to be raised is wholly baseless.
The relevant portion of the order dated 7/7/2021 (Annex.16) reads as under:
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(8 of 11) [CW-12266/2021] "3. With reference to the representation dated 13.05.2021 vis-a-vis considering the available aspects; the Disciplinary Authority has directed to convey the following Orders of the Disciplinary Authority to the Inquiring Authority, Charged Official and Presenting Officer:
Quote:
(i) ...................
(ii) ..................
(iii) ...................
(iv) .....................
(v) .....................
Unquote:"
(The contents between quote and unquote as indicated in the communication have not been reproduced as the same are not relevant for the purpose of disposal of the issue raised by the petitioner.) From the above, it is apparent that the order was passed by the Disciplinary Authority, which aspect is also fortified from Annex.R/3 filed with sur-rejoinder. The plea raised by the petitioner based on the averments made in reply indicating that the representation dated 13/5/2021 was decided by the General Manager (HR) is totally baseless. Once from the material available on record, rather plain reading of the impugned order dated 7/7/2021 (Annex.16) it is apparent that the order was passed by the Disciplinary Authority, the mere fact that on account of inadvertence something was indicated in the reply, cannot change the fact that the order was passed by the Disciplinary Authority and only on account of the averments contained in the reply it cannot be concluded that the order was passed by the General Manager (HR) so as to interfere with the order.
In view of the above, the challenge laid to the order dated 7/7/2021 (Annex.16) rejecting the representation dated 13/5/2021 has no substance and the same is, therefore, rejected.
Coming to the validity of the order dated 6/8/2021 (Annex.27), a bare look at the purported appeal dated 13/7/2021 (Annex.19) filed by the petitioner before the Board of Directors, (Downloaded on 06/04/2022 at 08:43:12 PM) (9 of 11) [CW-12266/2021] would reveal that in the name of appeal the petitioner had made allegations against the Internal Complaints Committee (ICC)/Inquiring Authority of having biased approach and it was prayed as under:
"I request to the Competent Authority that keeping in view the biased approach by the said Inquiry Authority (IO); kindly officially quash the earlier vitiated inquiry report dated 07/10/2019 (before initiation of the present inquiry proceeding), constitute a fresh Inquiry Authority with no earlier involvement in the case and reinstate afresh inquiry in line with the principle of natural justice."
A perusal of the relief claimed by the petitioner would reveal that the same, though titled as appeal, did not question the validity of any order as such and sought quashing of the inquiry report dated 7/10/2019.
The relevant provisions of the Rules, 1996 relating to appeal reads as under:
"Rule 21.1 - Notwithstanding anything contained in this part, no appeal shall lie against -
i) Any order of an interlocutory nature or of the nature of a step-in-aid of the final disposal of a disciplinary proceedings, other than an order of suspension.
ii) Any order passed by an inquiring authority in the course of an inquiry under Rule -12.
Rule 21.2 An employee including a person who has ceased to be the employee of the Company may appeal against an order imposing on him any of the penalties specified in Rule 10 or against the order of suspension referred to in Rule 6."
A perusal of the above provisions would reveal that the appeal is provided against the order imposing any of the penalties specified in the Rules or against the order of suspension only and the same is barred against any order of an interlocutory nature or order of the nature of a step-in-aid of the final disposal of a disciplinary proceedings or any order passed by an inquiring authority in the course of an inquiry.
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(10 of 11) [CW-12266/2021] From the relevant provision quoted hereinbefore, it is more than apparent that the purported appeal filed by the petitioner did not fall within the appealable orders as the same have been confined to order of suspension and order imposing penalties.
As the petitioner has questioned the inquiry report dated 7/10/2019, the submission made by learned counsel for the petitioner that as in the earlier round of litigation a submission was made on behalf of the respondents that the petitioner had an efficacious alternative remedy in the form of appeal, the same would make the appeal maintainable has been noticed for the purpose of rejection only.
The provisions of appeal are explicit and by making any submission regarding availability of remedy of appeal during course of earlier proceedings, which aspect has not formed the foundation for disposal of the proceedings, the same cannot confer a right on the petitioner to question the validity of any order beyond the appellate provisions.
In view thereof, the plea raised in this regard is wholly baseless. The ground raised that the appeal has not been decided/rejected as not maintainable by the Board of Directors, also stands negated in view of the material produced as Annex.R/5, wherein, the order has been approved by the Executive Director (HR), Director (HR) and Chairman & Managing Director of the respondent Corporation.
Even if the plea regarding requirement of purported appeal dated 13/7/2021 to be decided by the entire Board of Directors was to be accepted, the remand of matter for decision by the entire Board of Directors in the present circumstances would be an (Downloaded on 06/04/2022 at 08:43:12 PM) (11 of 11) [CW-12266/2021] absolute futile exercise, in view of the express appellate provisions, as noticed hereinbefore.
It may also be noticed at this stage that the plea regarding lack of jurisdiction in passing the order dated 7/7/2021 (Annex.16) and 6/8/2021 (Annex.27) was not raised in the writ petition and it is only during the course of filing rejoinder/reply to sur-rejoinder that the issue has been highlighted leaving aside the original pleas raised in the writ petition.
Be that as it may, the plea raised by way of subsequent pleadings also has no substance.
In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.
(ARUN BHANSALI),J baweja/-
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