Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ayoub Bhat And Anr. vs Union Of India And Ors. on 23 February, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No. 615/2015
MP No.01/2015
Date of Order: 23 .02.2018
Mohammad Ayoub Bhat and Anr. V/s Union of India and ors.
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For petitioner(s): Mr. Zahoor Ahmad Shah, Advocate.
For respondent(s): Mr. T.M Shamshi, ASGI
Mr. M.M Dar, Advocate.
i/ Whether to be reported in Yes
Press/Media?
ii/ Whether to be reported in Yes
Digest/Journal?
1. The petitioners, employees of Hindustan Petroleum Corporation Limited have filed this petition jointly challenging the orders of respondent No. 3 issued on 10.02.2015, whereby the petitioners have been held guilty of misconduct in the disciplinary proceedings and have been awarded the punishment of "Reduction of three lower stages in the Scale". The impugned orders are part of the writ petition as annexure "D" and "E". The petitioners have also prayed for a direction to the respondents to allow them all the service benefits ignoring the orders impugned. The impugned orders have been assailed by the petitioners inter-alia on the following grounds:-
(i) That in the charge memo, it was alleged that the petitioners had committed misconduct in terms of clause 31(4), 31(9) and 31(15) of the Certified Standing Orders but were punished for having committed misconduct as defined under clause 31(4) and 31(9), whereas, the charge of misconduct as defined in clause 31(15) was SWP No. 615/2015 Page 1 of 9 not proved. This conclusion of the respondents, submits the petitioners, is not supported by any cogent evidence and material and that it was a case of no evidence.
(ii) That Rule 31(4) of the Certified Standing Orders envisages misconduct if the theft, fraud or dishonesty in connection with Corporation's business or property or theft of another workman's property is committed within the premises of the establishment.
Since it has not been proved or established during enquiry that petitioners were guilty of any of the aforesaid acts, that too, committed within the premises of the establishment and, therefore, the charge under 31(4) of the Certified Standing Orders was not maintainable.
(iii) That the charge under clause 31(9) of the Certified Standing Orders would sustain if an act subversive of discipline or good behaviour is committed on the Corporations premises or outside it, provided further that if the same is committed outside the Corporations premises then it should be proved to have directly affected the discipline or administration of the Corporation. It is submitted that during the course of enquiry, it could not be proved that petitioners had committed any such act either on the premises of the Corporation or outside which affected the discipline or administration of the Corporation.
(iv) That the impugned orders suffer from total non-application of mind and were actuated by extremist considerations.
2. These are in nutshell the grounds of challenge taken by the petitioners to impugn the orders of disciplinary authority, i.e, respondent No. 3 inflicting upon the petitioners the minor punishment of Reduction in three lower stages in the scale in terms of clause 32(1) (d) of the Certified Standing Orders applicable to the petitioners.
SWP No. 615/2015 Page 2 of 93. The respondents have responded to the writ petition of the petitioners by filing detailed objections. The writ petition has been resisted by the respondents primarily on the following grounds:-
(a) That the petitioners have been admittedly working as General Service Assistant in the respondent Corporation and, therefore, fall in the non-
management cadre of workmen. They were, therefore, covered within the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947. That being so, contend the respondents, the petitioners were required to raise the industrial dispute before forums provided under the Industrial Disputes Act, 1947 and, therefore, in the presence of an alternate and efficacious remedy available, the writ petition is not maintainable.
(b) That the orders impugned were passed after conducting a thorough departmental enquiry in which both the petitioners were given adequate opportunity to participate, defend and effectively represent their case. It is stated that since the departmental enquiry was conducted in a fair and the transparent manner and in accordance with principles of natural justice, as such, the petitioners have no cause to maintain this petition.
(c) That the acts of omission, commission attributed to the petitioners were committed by them during the course of duty which included their involvement in pilferage and adulteration of petroleum products as also the harassment of Tank Trucks drivers etc. and, therefore, they were accordingly charge-sheeted for committing misconduct in connection with Corporation's business.
(d) Going by the misconduct of the petitioners duly proved in the enquiry, the petitioners deserved the major penalty of dismissal from service but considering their age as also to give them another chance to SWP No. 615/2015 Page 3 of 9 reform, a lenient view was taken by the disciplinary authority and minor punishments were imposed.
(e) That the acts of omissions committed by the petitioners constituting misconduct were committed by the petitioners on he premises of the Corporation and in connection with Corporation's business.
4. Heard learned counsel for the parties and perused the record of the writ petition as also the record of enquiry produced by the respondents.
5. Learned counsel for the petitioners has not seriously disputed that the disciplinary enquiry against the petitioners was conducted in which the petitioners were given a fair and adequate opportunity of defending themselves nor the disciplinary proceedings have been challenged for want of jurisdiction. Learned counsel for the petitioners, however, urged that the punishment was inflicted upon the petitioners without there being any material to substantiate the allegations of misconduct. He took this Court through the charge-sheet served upon the petitioners as also the orders impugned and submitted that the enquiry officer had miserably failed to collect any material to prove the misconduct alleged against the petitioners. He, therefore, submitted that the orders impugned suffered from total non-application of mind by the disciplinary authority and that it was pure and simple case of no evidence. He, however, fairly conceded that the petitioners have been provided with the copy of the enquiry report to which the petitioners have also submitted their reply. Apart from the aforesaid submissions made by the learned counsel for the petitioners on merit, the petitioners also referred to the provisions of clause 31(4) and 31(9) of the Certified Standing Orders and submitted that the allegations of misconduct even if taken to be true at their face value, yet the same do not constitute misconduct as defined under clause 31(4) and 31(d). For the acts of omission and commission attributed to the petitioners have not been proved to have been committed within the premises of the establishment. It is contended by the learned counsel for the petitioners sine qua non for bringing the case of SWP No. 615/2015 Page 4 of 9 misconduct within the meaning of the term as envisaged under clause 31(4) is that the act or omission alleged must have been committed "within the premises of establishment". He, therefore, submitted that there is not even an iota of evidence on record to prove or even demonstrate that the petitioners were guilty of committing any act or omission within the premises of the establishment. Regarding charge under clause 31(9), learned counsel for the petitioners submits that if the act or omission constituting misconduct is alleged to have been committed outside the Corporation premises then the respondents are required to prove that the same had directly affected the discipline or administration of the Corporation/establishment. He, therefore, urged that in the absence of any material indicating that the acts/omissions attributed to the petitioners had in any way affected the discipline and the administration of the Corporation, the charge under clause 31(9) too was not sustainable.
6. Per contra, learned counsel appearing for the respondents refuted the contentions of the petitioners by submitting that during the course of enquiry, there is ample evidence that has come on record which goes to prove that the acts and omissions constituting misconduct committed by the petitioners were committed within the premises of the establishment and also had the effect of vitiating the discipline and administration of the Corporation.
7. Learned counsel for the respondents further urged that given the nature and scope of interference by the constitutional Court in the findings of the fact recorded by the disciplinary authority, it would not be appropriate for this Court to sit in appeal and substitute the findings of fact recorded by the enquiry officer/disciplinary authority by its own findings. He, therefore, submitted that the impugned orders having being passed after a thorough enquiry wherein the petitioners were given adequate opportunity to defend, cannot be interfered.
8. Before I proceed to appreciate the rival contentions, it would be befitting to remind ourselves of the scope of interference by the Court exercising jurisdiction under Article 226 of the Constitution of India in the disciplinary SWP No. 615/2015 Page 5 of 9 matters. In the case of Apparel Export Promotion Council Vs. A.K Chopra; AIR 1999 SC 625, the Supreme Court held that the High Court would not normally interfere in the findings of the disciplinary authority or in the penalty imposed unless the findings are perverse or based on no evidence or the punishment was impermissible. It is, however, not open to the High Court to re- appreciate and re-examine the evidence led by the disciplinary authority. In another case of Bank of India and anr. Vs. Degala Suryanarayana; (1999) 5 SCC 762, the Apex Court held that the strict rules of evidence are not applicable to the departmental enquiry proceedings and the only requirement of law is that the allegations against the delinquent employee must be established by such evidence acting upon which reasonable person acting reasonably and with objective may arrived at a finding upholding the gravamen of the charge against the delinquent employee. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in a departmental enquiry proceedings excepting in case of mala fides or perversity i.e, where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings. Time and again it has been questioned that the Courts should not embark upon re- appreciating the evidence or weighing the same as if it was acting as an appellate authority.
9. In the present case, the petitioners were served with a charge-sheet of specific allegations by the disciplinary authority. Since the show cause of the writ petitioners was not satisfactory, the disciplinary authority decided to hold an enquiry by appointing an enquiry officer. The enquiry officer, so appointed, held the enquiry in which an adequate opportunity was given to the petitioners to defend themselves.
10. From the perusal of the records, it further transpires that enquiry officer told the petitioners that they had a right to engage a defence counsel to defend their case in the enquiry proceedings but the petitioners desired to defend their case SWP No. 615/2015 Page 6 of 9 themselves. Both the parties i.e, the presenting officer as well as the delinquent petitioners were given adequate opportunity to lead their evidence. On the basis of evidence, which was produced during the course of enquiry, both oral and documentary, the enquiry officer framed the enquiry report and submitted the same with his findings to the disciplinary authority. The disciplinary authority before taking any action in the matter served upon both the petitioners the enquiry reports and provided them an opportunity of ten days to submit their reply there to. Both the petitioners responded and submitted their reply which is also appended with the writ petition as annexure "C". It is upon consideration and the reply submitted by the petitioners to the enquiry reports, the impugned order was passed.
11. From the perusal of record, which includes the report of enquiry, it cannot be said that the findings of fact recorded by the enquiry officer are without any material and, therefore, vitiated. So is the position with regard to the orders impugned passed by the disciplinary authority. Regarding the contention of the learned counsel for the petitioners that the acts and omissions constituting misconduct attributed to the petitioners have not been proved to have been committed on the premises of the Corporation nor the same has been proved to have any adverse impact on the discipline or administration of the Corporation, is also devoid of any merit and, therefore, deserves to be noticed for rejection. Clause 31(4) and 31(9) of the Certified Standing Orders governing the petitioners provides as under:-
"31. Misconduct:
1. ...............
4. Theft, fraud or dishonest in connection with the Corporation's business or property or theft of another workman's property within the premises of the establishment.
9. Commission of any act subversive or discipline or good behaviour on the Corporation's premises, or in the course of duty; or outside the Corporation's premises, if it is proved to SWP No. 615/2015 Page 7 of 9 have directly affected the discipline or administration of the Corporation/establishment ."
It is under these heads of misconduct, the petitioners have been found guilty and have been inflicted the penalties in terms of the orders impugned. Much stress was laid by the learned counsel for the petitioners on the expression used in 31(4) i.e., "within the premises of the establishment". To contend that nothing attributed to the petitioners was committed by them within the premises of the establishment.
12. From the perusal of findings of enquiry officer which after seeking explanation of the petitioners have been accepted by the disciplinary authorities, it is abundantly clear that the petitioners have been found guilty of indulging in illegal activities in the pilferage and adulteration of the petroleum product which is sold on the premises of the establishment. It is also established during enquiry that the behaviour of the petitioners like smoking in the office of the petitioners was unbecoming and that he had been indulging in suspicious practices which are relatable to their activities which have not only been committed within the premises of the establishment but have the definite effect on the discipline and administration of the Corporation. The charges levelled against the petitioners and proved during the course of enquiry do fall within the ambit of clause 31(4) and 31(9) of the Certified Standing Orders. From conjoint reading of clause 31(4) and 31(9), it is evident that the acts and omissions like theft, fraud or dishonesty in connection with Corporation's business or property, if committed within the premises of the establishment would constitute misconduct and similarly, if the act or omission which is specific of discipline or good behaviour is committed outside the Corporation premises but the same is proved to have directed affected the disciplinary administration of the Corporation would also fall within the ambit of misconduct as defined under clause 31(9) of the Certified Standing Orders. The allegations of bias or mala fide are supported by no material and, therefore, deserve only to be ignored.
SWP No. 615/2015 Page 8 of 913. In the given facts and circumstances as narrated above, it would not be open to this Court to interfere with the orders impugned within the limited scope of judicial review available to this Court. I also find that the disciplinary authority had been lenient in dealing with the petitioners and instead of inflicting the major penalty of dismissal, it only inflicted the penalty of reduction of three lower stages in the scale which by no means can be said to be punishment shockingly disproportionate to the misconduct attributed to the petitioners.
14. Accordingly, the writ petition is found to be without any merit and, therefore, dismissed. There shall be no order as to costs.
(Sanjeev Kumar) Judge Srinagar 23.02.2018.
"Tarun"SWP No. 615/2015 Page 9 of 9