Rajasthan High Court - Jodhpur
Sushil Kumar Govil vs The Nuclear Powar Cor.And Anr on 13 January, 2023
Author: Rekha Borana
Bench: Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13967/2015
Sushil Kumar Govil son of Shri Chandra Mohan Govil, aged about
52 years, resident of T-3/34-K, Anupratap Colony, P.O.
Bhabhanagar, Rawatbhata, District Chittorgarh (Raj.).
----Petitioner
Versus
1. The Nuclear Power Corporation of India Limited (A
Government of India Enterprise), Rawatbhata Rajasthan Site, PO
Anushakti, District Chittorgarh (Raj.) through its Site Director.
2. The Operation Superintendent, RR Site-7 & 8, NPCIL, PO
Anushakti, Rawatbhata, District Chittorgarh (Raj.).
----Respondents
For Petitioner(s) : Mr. Vinay Jain with Mr. Darshan Jain
For Respondent(s) : Mr. Sanjay Nahar
Mr. Pushkar Taimni
HON'BLE MS. JUSTICE REKHA BORANA
Order 13th January, 2023 The present writ petition has been filed being aggrieved of the suspension order dated 19.02.2015 (Annexure-2) and the memorandum of charges (charge-sheet) dated 09.04.2015 (Annexure-4) whereby the disciplinary proceedings have been initiated against the petitioner.
The brief facts of the case are as under :
The petitioner who was working as Technician/G with the respondent-Nuclear Power Corporation of India ('the Corporation') was assigned the additional duty of one co-employee namely Mr. R.C. Lohar from 1500 hrs to 2300 hrs (3.00 PM to 11.00 PM) on 29.11.2014. The said additional duty was to be continued with (Downloaded on 14/01/2023 at 12:12:57 AM) (2 of 8) [CW-13967/2015] his regular duty from 2300 hrs to 0700 hrs (11.00 PM to 07.00 AM). Meaning thereby, after the continuous duty from 3.00 PM of 29.11.2014 to 07.00 AM of 30.11.2014, he was relieved at 07.00 AM of 30.11.2014.
The dispute arose when vide communication dated 09.02.2015, it was communicated to the petitioner that during the period of his additional duty, without any information, he left the plant site from 1905 hrs to 2126 hrs (7.05 PM to 9.26 PM). In pursuance to the said information, vide order dated 19.02.2015, the Site Director placed the petitioner under suspension in terms of Order 20.1 & 20.1(a) of the Rawatbhata Rajasthan Site (NPCIL) Standing Orders (hereinafter referred to as 'the Standing Orders'). Thereafter, the memorandum of charges dated 09.04.2015 was served upon the petitioner vide which the disciplinary proceedings were also initiated against him. The charges as levelled against the petitioner were firstly, that he abandoned his staff duty without information/permission and secondly, that he used the card of other employee Mr. Vipin Garg, who was on leave on that day for the said purpose. It was alleged that the said actions of the petitioner fall in the category of 'misconduct' in terms of Order 17.2 & 17.7 of the Standing Orders.
During the suspension period the petitioner was allowed subsistence allowance @ 50% and is being paid at the same rate till date. The said grant of subsistence allowance @ 50% is also under challenge in the present petition on the ground that the same ought to have been increased @ 75% in terms of the Standing Orders.
In response to the memorandum of charges, the petitioner, vide communication dated 21.09.2015, prayed for dropping of the (Downloaded on 14/01/2023 at 12:12:57 AM) (3 of 8) [CW-13967/2015] inquiry proceedings initiated against him with the submission that the charge-sheet issued by the Site Director in the capacity of the disciplinary authority is totally illegal in terms of Order 22 of the Standing Orders as no notification, notifying the disciplinary authority and the appellate authority had been issued by the respondent-Corporation. In absence of any notification notifying the competent authorities, the complete disciplinary proceedings stood vitiated. The said objection of the petitioner was nullified by the respondents-authorities and therefore, the present petition has been preferred.
Learned counsel appearing for the petitioner submitted that once the Standing Orders dated 31.08.2012 were certified and adopted by the respondent-Corporation, the same were binding on the Corporation and all the proceedings subsequent to the said date were to be governed by the said Standing Orders only. He further submitted that Order 22 of the Standing Orders specifically provides for notification of the authorities competent to impose various penalties mentioned in the Standing Orders. No notification in pursuance to Order 22 was ever issued by the respondent-Corporation and therefore, the appellate authority as well as the revisional authority were never notified. In absence of any such notification, the petitioner was deprived of his right of appeal as in his case, the order of suspension was issued by the Site Director himself who is the highest authority of the plant. The Site Director is neither the appointing authority nor the disciplinary authority in terms of the Standing Orders. It is the Station Director who is the appointing as well as disciplinary authority for all Group B posts. Therefore, the order of suspension passed by the Site Director himself is not in conformity with the (Downloaded on 14/01/2023 at 12:12:57 AM) (4 of 8) [CW-13967/2015] Rules/Orders governing the employees. The order of suspension itself having been passed by the Site Director who ought to be the appellate authority, the right to appeal, if any, of the petitioner has been taken away.
It has further been submitted that in terms of the Standing Orders the revisional authority was also required to be notified and it is also the mandatory requirement that such authority shall be higher in rank than the appellate authority. The only authority available, higher in rank to the Site Director, is the Chairman & the Managing Director. Therefore, if it is presumed that the Chairman & the Managing Director would be the appellate authority, then definitely the right of revision would not be available to the petitioner. Meaning thereby, the right to appeal/revision of the petitioner is being jeopardised and therefore, the impugned order of suspension passed by the Site Director being wholly invalid, deserves to be quashed.
One more ground been raised by learned counsel is that the memorandum of charges has also been issued by the Site Director who, in any manner, cannot be the Disciplinary Authority so far the Group B employees are concerned. In support of his contentions, learned counsel for the petitioner relied upon the judgments passed by Hon'ble Apex Court in the matters of Union of India (UOI) and Ors. Vs. B.V. Gopinath and Ors. (AIR 2014 SC 88); Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank and Ors. (AIR 1995 SC 1053) and Vaidhya Dev Shankar Sharma Vs. State of Rajasthan and Ors. (AIR 1966 SC 81).
Per contra, learned counsel appearing for the respondents submitted that the order of suspension issued by the Site Director (Downloaded on 14/01/2023 at 12:12:57 AM) (5 of 8) [CW-13967/2015] would not in any manner prejudice the rights of the petitioner. Learned counsel submitted that prior to notification of the Standing Orders on 31.08.2012, the disciplinary proceedings were governed by the order dated 21.08.2007 issued by the competent authority. In terms of the order dated 21.08.2007, the initiation of the disciplinary proceedings against the petitioner and appointment of the Enquiry Officer are in conformity with the prevailing law at the relevant time. He further submitted that subsequently even the Standing Orders have been duly notified/certified vide notification dated 26.07.2016 which specifically provides for the Director (Technical) to be the appellate authority and therefore, the petitioner would not be deprived of his right of appeal. So far as the subsistence allowance is concerned, learned counsel submitted that the suspension of the petitioner was reviewed from time to time before expiry of 90 days and it is only on recommendation of the Suspension Review Committee that his suspension was extended further with the same subsistence allowance. In support of his submissions, learned counsel for the respondents relied upon the judgments passed by Hon'ble Apex Court in the matters of A. Sudhakar Vs. Post Master General, Hyderabad and Ors. (2006 4 SCC 348) and Secretary, Ministry of Defence and Ors. Vs. Prabhash Chandra Mirdha (AIR 2012 SC 2250).
In line with the above mentioned facts and averments, the following questions of law arise for consideration of this Court:
(i) Whether the Site Director was competent to issue order of suspension and memorandum of charges qua the petitioner ? (Downloaded on 14/01/2023 at 12:12:57 AM)
(6 of 8) [CW-13967/2015]
(ii) Whether because of the order of suspension/penalty order having been passed/imposed by the Site Director, the petitioner would be deprived of his right to appeal/review ?
Heard learned counsel for the parties and perused the material available on record.
It is an admitted position on record that on the date of passing of the impugned order dated 19.02.2015 whereby the petitioner was placed under suspension, the notification certifying the authorities competent to impose penalties in terms of the Standing Orders was not notified by the respondent-Corporation. Meaning thereby, the disciplinary authority as well as the appellate and the revisional authorities were not notified in terms of the Standing Orders. In the opinion of this Court, it was a clear violation of the Standing Orders governing the parties. Admittedly, the notification in terms of Order 22 was issued on 22.07.2016 and a perusal of the said notification clarifies that the appointing authority for all Group B posts would be the Station Director/Project Director, authority competent to impose all penalties would be the Station Director/Project Director, the appellate authority would be the Site Director and the revisional authority would be the Chairman & the Managing Director. Meaning thereby, even if the notification dated 26.07.2016 is given a retrospective effect, the appellate authority, even in terms of the Standing Orders, would be the Site Director. Admittedly, in the present matter the penalty has been imposed by the Site Director himself whereas the officer authorised to impose penalty was the Station Director/Project Director. Therefore, it is clear on record that there was no authority available to whom an appeal could have been preferred by the petitioner. Even if it is assumed (Downloaded on 14/01/2023 at 12:12:57 AM) (7 of 8) [CW-13967/2015] that the next higher officer i.e. the Chairman & Managing Director would be the appellate authority, then admittedly, the right of revision would automatically go as no authority higher than the Chairman & the Managing Director is available even in terms of notification dated 27.07.2016.
In Prabhash Chandra Mirdha's case (supra), the Hon'ble Apex Court, while dealing with a similar situation, held that the authority higher than appointing authority may initiate the disciplinary proceedings and impose punishment but then if it is proved that prejudice has been caused to the delinquent or right of appeal of the delinquent is lost, the order of punishment would definitely not survive. In Surjit Ghosh's case (supra), the Hon'ble Apex Court specifically held that in absence of any guidelines or the transmission of power to the higher authority to exercise the power of disciplinary authority, order of dismissal/punishment passed by the higher authority would definitely be termed to be bad in law.
In the present case, it is clear on record firstly, that the Site Director was neither the appointing authority nor competent to impose punishment. It was only the Station Director/Project Director who could have done so. Secondly, the Site Director was the notified appellate authority and the order of suspension itself having been passed by him, the right of appeal of the petitioner was definitely prejudiced. Thirdly, in terms of the Standing Orders, the Chairman & the Managing Director was the highest authority available and even if it is presumed that an appeal may be preferred before him then right of revision will definitely be lost. Meaning thereby, by all means, the rights of the petitioner were prejudiced.
(Downloaded on 14/01/2023 at 12:12:57 AM)
(8 of 8) [CW-13967/2015] Therefore, in view of the above observations, the present writ petition is allowed. The order impugned dated 19.02.2015 being totally in contravention of law as well as the Standing Orders governing the parties, the same cannot be sustained and is hereby quashed and set aside. As a consequence, the charge- sheet served through a memorandum dated 09.04.2015 also being issued by an incompetent authority is quashed and set aside. The petitioner is directed to be reinstated forthwith and would be entitled to all the consequential benefits arising out of the present order.
The stay petition and all the pending applications also stand disposed of.
(REKHA BORANA),J 82-Vij/-
(Downloaded on 14/01/2023 at 12:12:57 AM) Powered by TCPDF (www.tcpdf.org)