Jharkhand High Court
Subhra Banerjee vs Union Of India Through Secretary And Ors on 15 April, 2015
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.S. No. 424 of 2015
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Subhra Banerjee, Son of Sri Narendra Nath Banerjee, Resident of
F-41, Sector-III, P.O. Dhurwa, P.S. Dhurwa, District-Ranchi.
.....Petitioner
Versus
1. Union of India, through Secretary, Department of Heavy
Industry, Ministry of Public Enterprises & Heavy Industry,
Government of India, Udyog Bhawan, New Delhi-110011.
2. Heavy Engineering Corporation, a Govt of India Company,
having its head office at Plant Plaza Road, P.O. Dhurwa, Ranchi,
Jharkhand, through its Chairman cum Managing Director.
3. Sri Vishwajit Sahay, Joint Secretary, Department of Heavy
Industries, Ministry of Public Enterprises and Heavy Industry,
Govt of India, Udyog Bhawan, New Delhi-110011.
....Respondents
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Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : In Person
For Respondent No. 1 : Mr.Rajiv Sinha, Advocate
For Respondent No. 2 : Mr. Rajiv Ranjan, Advocate
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C.A.V. On 26.03.2015 Pronounced on_15/4/2015
In this writ application, the petitioner has prayed for quashing
the order of suspension dated 25th July, 2014, whereby and
whereunder the petitioner has been suspended from the post of
Director (Personnel) of Heavy Engineering Corporation Ltd. as also for
quashing the order dated 23.01.2015, by which in purported exercise
of review of the suspension of the petitioner, the same has been
extended for three months, although no departmental proceeding as
contemplated has been initiated against the petitioner. The petitioner
has further prayed for a direction upon the respondents to take a final
decision on the appeal preferred by the petitioner against the order
of suspension and to declare that the entire process of initiation of
suspension order is wholly illegal and arbitrary and actuated with
malice.
The writ petition discloses that the petitioner after being
selected by the Public Enterprises Selection Board joined Heavy
Engineering Corporation Ltd. as Director (Personnel) on 6th March,
2012. The petitioner prior to joining H.E.C. was employed as Senior
General Manager (Corporate HR) in Electro Steel Castings Ltd. from
August, 2010 till Feb 2012 and with Larsen & Toubro Ltd at Vadodara
in the capacity of Senior D.G.M. (Training & Development and
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Administration) from 31 January 2006 till 31 July 2010. The petitioner
had initially been in the Indian Army, from where he retired as a
Colonel on 25th January, 2006. An order was served upon the
petitioner dated 25.07.2014, wherein in contemplation of a
disciplinary proceeding for major penalty for violation of Rule 5 ( 5, 6 ,
20) of Heavy Engineering Corporation Employees' Conduct, Discipline
& Appeal Rules, 1981, the petitioner was suspended with immediate
effect. A representation by way of an appeal for revocation of the
suspension order was preferred by the petitioner on 27th August,
2014, in which the petitioner had detailed his defence with respect to
the allegations levelled against him. The Chairman cum Managing
Director of HEC Ltd. on being asked to give his comments on the
appeal of the petitioner dated 27.08.2014 had lauded the proactive
action on the part of the petitioner and had, therefore, recommended
that the suspension of the petitioner be revoked and the appeal be
allowed. A Review Committee was constituted to review the
suspension of the petitioner, which submitted a report on 23.01.2015
and the disciplinary authority decided to accept the recommendation
of the Review Committee and accordingly the suspension order of the
petitioner was extended for a further period of three months with
effect from 25.01.2015.
Heard Mr. Subhra Banerjee, who has appeared in person. Mr.
Rajiv Ranjan, learned counsel for respondent no. 2 and Mr. Rajiv
Sinha, learned counsel appearing for respondent no. 1.
The petitioner has submitted that the respondents have,
without any basis passed the order of suspension and have
subsequently extended the same for a further period of three months
with effect from 25.01.2015. The petitioner has stated that HEC was
referred to the Board of Industrial and Financial Reconstruction
( BIFR) and was recommended to be closed down but in view of the
order of this Court in WPC No. 4513 of 2004 a revival package was
implemented with the consent of the Central Government, State
Government and HEC.
It has been submitted that the company is facing a severe cash
flow problem and that even the retiral dues are not being paid in a
timely manner to its employees. There is a lack of basic discipline
and gross interference in functioning of the Company by certain
politically powerful persons and the township is always under the
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threat of encroachment with illegal construction being made in a
blatant manner. The petitioner has submitted that his efforts in
reviving the fortunes of the Company in the backdrop of the inherent
weaknesses, plaguing the company is to be lauded inasmuch as the
revenue collection from the township has increased by leaps and
bounds, which is on account of the steps taken by the petitioner by
improving the system as also by monitoring the collections on a
personal basis and taking immediate action against the habitual
defaulters. It has also been submitted that strike, which is a common
problem in the company, seems to be a thing of the past since there
has been no strike after the petitioner took over as Director
(Personnel) in March 2012. The petitioner further submits that there
has been proper interactions with the officials, which has percolated
down to the lowest grade of workers. Continuing with his arguments,
the petitioner has submitted that the township division, which is
under the petitioner, is the only part of the company, which has
created an operating surplus in the balance sheet. The petitioner has
also highlighted his efforts with respect to lease agreements with
allottees of quarters under the long term lease scheme, prevention of
subletting of quarters by allottees, waiver of water dues and
electricity dues by the Government of Jharkhand and also expediting
release of Rs.36 crores from the Government of Jharkhand out of an
outstanding dues of Rs.111 crores. The petitioner has submitted that
in spite of the concerted efforts adopted by the petitioner in order to
turn around the fortunes of the company, instead of appreciating
such valiant steps taken by the petitioner, the petitioner had been
suspended vide order dated 25.07.2014.
Adding to his argument, the petitioner has submitted that the
reasons, which have been assigned in the order of suspension dated
25.07.2014are contrary to the actual facts and in the last 2 and 1/2 years, the petitioner was never served with any notice violating any rule of conduct in his capacity as a Director. It has been submitted that so far as reason-(i) in suspension order dated 25.07.2014 is concerned, the same is totally false and fabricated and has been used as a tool by the detractors, who were miffed by the activities of the petitioner to remove encroachments in the township and taking action against the defaulters. So far as reason (ii), (iii) and (iv) is concerned, it has been submitted by the petitioner that mere -4- difference of opinion cannot be said to be an insubordination or against the spirit of team work. It has also been submitted that clause 2.5 of the Central Vigilance Commission Guidelines is with respect to suspending a government servant and sub clause (5) is refusal or deliberate failure to carry out written orders of superior officers and a note of caution has been put therein that discretion in such cases should be exercised with care. In such circumstance, it has been submitted by the petitioner that the impugned order of suspension dated 25.07.2014 shows that the respondents have acted in a cavalier fashion and against the norms and guidelines of the Central Vigilance Commission. It has further been submitted that before extending the order of suspension for a further period of three months neither any preliminary inquiry was carried out nor an opportunity of hearing was given to the petitioner to put forward his case and in a blatant manner, the suspension of the petitioner was extended.
Per contra, the learned counsel for the respondent no.1
-Mr.Rajiv Sinha, while relying on the counter affidavit, has submitted at the outset that the prayer in the writ application of the petitioner for quashing the order of suspension was based on the fact that no disciplinary proceeding was initiated but as it appears, the memo of charge has already been framed against the petitioner vide Memo No. F. No.4-4/2014-PE.V. Government of India, Ministry of Heavy Industries & Public Enterprises, Department of Heavy Industries dated 20.07.2015, which contains the statement of imputation and list of documents. It has been submitted that the order dated 23.01.2015 was preceded by an inquiry by the Review Committee and only on its recommendation, the order of suspension of the petitioner was extended for a further period of three months. It has been submitted by the learned counsel for respondent no. 1 that during the period of suspension, the petitioner had committed a gross misconduct, which has been found to be true by the Review Committee and, therefore, there is no illegality in extending the order of suspension of the petitioner. It has further been submitted that as per Rule 20, clause 5 of HEC Employees' Conduct, Discipline & Appeal Rules, 1981, all suspensions over six months are subject to special review, which norm was followed and based on the recommendation of the Review Committee, the order of suspension of the petitioner was directed to -5- be continued for a further period of three months. It has also been submitted by the learned counsel for respondent no. 1 that although the petitioner has placed reliance upon the recommendation of the then Chairman cum Managing Director of HEC Ltd. for revoking the order of suspension of the petitioner but the C.M.D. himself was facing a departmental proceeding and was suspended on 10.02.2015, which was revoked with effect from 5.11.2014 and in such circumstances the recommendation of the CMD (HEC) was not taken into consideration. It has been submitted that even otherwise since the Memo of Charge has been framed against the petitioner, the disciplinary proceeding shall take its own course and, therefore, no interference in the order of suspension of the petitioner is warranted in view of the facts and circumstances, which have been enumerated in the counter affidavit.
Although, the petitioner has laid much stress on his achievements from the date he took over as a Director (P) of HEC Ltd. to substantiate his claim that the order of suspension dated 25.07.2015 was arbitrary, illegal and was issued only on account of the fact that in order to turn around the fortunes of the Company, more specially that of the township division, the petitioner had trampled upon several persons, who were enjoying the fruits of encroachment. The petitioner in the writ application had apart from other facets had lastly tried to highlight the fact that the disciplinary proceeding was not being started by the Company while keeping the petitioner suspended. The scenario has changed altogether in view of the counter affidavit filed by respondent no. 1, in which it has specifically been stated that the Memo of Charge has been issued vide order dated 27.02.2015. The appeal, which was submitted by the petitioner, for revocation of his order of suspension was sent to the CMD (HEC) for his opinion and it had been opined by him that the petitioner had never indulged in any insubordination or defiance of directions given to him and that he was victimized on account of the actions taken by him against perpetual offenders and in such circumstances it was recommended that the suspension of the petitioner be revoked.
As it appears from the counter affidavit filed by respondent no. 1, a Review Committee was constituted to review the suspension of the petitioner and from the Minutes of Meeting of the Committee, it -6- appears that the decision of the committee was influenced by Exts-A to D. Ext-A is a letter dated 17.01.2015 of CMD, HEC, in which it was confirmed that the petitioner had unauthorizedly attended the office on 12.11.2014, 14.11.2014 and 20.11.2014 and was found intimidating the officers of the township. The petitioner was also allowed access of the files of the township on 22.11.2014. Ext-B is with respect to a letter written by the Chief Vigilance Officer, HEC dated 26.11.2014, in which it was intimated that the petitioner had been found to have attended the office on 12.11.2014, 14.11.2014 and continued to attend office till 21.11.2014 in his official chamber and was calling senior officers alone with files etc. despite being on suspension. Ext-C is a letter written by the C.V.O. dated 27.11.2014 forwarding a complaint by one Shri Nagesh Jha, senior D.G.M. ( E & S) TA Division, HEC alleging intimidation and threatenings on 20.11.2014. The last exhibit, which was marked as Ext-D, is again a letter of the CMD dated 17.01.2015, which corroborated the fact of the petitioner unauthorizedly attending office during the suspension period and intimidating the officers. The aforementioned exhibits were all taken into consideration and thereafter the committee had given an opinion that the grounds of suspension of the petitioner still holds good and revocation of suspension will not be appropriate for conducting a free and fair inquiry for finalization of the charges contemplated against him. Based on the recommendation of the Review Committee, the order dated 23.01.2015 was issued extending the period of suspension of the petitioner for further three months with effect from 25.01.2015. The Minutes of Meeting of Review Committee , upon which, the impugned order dated 25.07.2014 is based, clearly reveals the acts of the petitioner, which is contrary to the conduct of a suspended officer. The report of the Review Committee is not based on a single instance but were based on four different communications with respect to separate incidents and in such circumstances, it cannot be said that the impugned order dated 23.01.2015 was passed in an arbitrary or illegal manner. Moreover, since the memo of charge has already been framed, the departmental proceeding shall now take its own course while coming to a logical conclusion.
The petitioner has in course of his argument, referred to a judgment of the Hon'ble Supreme Court rendered on 16th February, -7- 2015 in Civil Appeal No. 1912 of 2015 in the case of Ajay Kumar Choudhary Vs. Union of India through its Secretary and another, in which it was directed "that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. "
In the facts and circumstances of the case, under reference, since he was already served with a chargesheet, the directions issued were no longer relevant to him. Applying the matrix of the law laid down by the Hon'ble Supreme Court in the facts of the present case, it appears that the Memorandum of Charges was issued on 27.02.2015 and therefore the suspension of the petitioner could not be revoked. Moreover, although the Memorandum of Charges served upon the petitioner did not include a reasoned order for extension of the suspension but the reasoned order had already been served upon him on 23.01.2015, in which reference was made to the report of the Review Committee. In such circumstances, it cannot be said that the petitioner has been suspended for an indefinite period without there being any review of his period of suspension. The respondents in terms of their rules and guidelines and in pursuance of the appeal preferred by the petitioner had reviewed the order of suspension and as has been discussed above after considering Exts.-A to D, it was recommended by the Review Committee to extend the order of suspension, which culminated in issuance of the order dated 23.01.2015 extending the period of suspension of the petitioner for a further period of three months with effect from 25.01.2015 which is in accordance with law. Therefore, in view of what has been discussed above, I do not find any merit in this application. This application is, accordingly, dismissed.
However, since the petitioner is on suspension from 25.07.2014, it would be desirable that the departmental proceeding be concluded at the earliest.
(Rongon Mukhopadhyay,J) Rakesh/