Allahabad High Court
Hemant Kumar Malviya vs Union Of India And 4 Others on 16 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1676
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 36
Case :- WRIT - A No. - 11583 of 2019
Petitioner :- Hemant Kumar Malviya
Respondent :- Union Of India And 4 Others
Counsel for Petitioner :- In Person
Counsel for Respondent :- A.S.G.I.,Anand Tiwari
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Hemant Kumar Malviya, the petitioner, appearing in person and Sri G.K. Singh, learned Senior Advocate assisted by Sri Anand Tiwari, learned Advocate appearing for the contesting respondents.
The petitioner seeks to challenge the order dated 28.6.2019 whereby the appeal filed by the petitioner under the Conduct, Discipline and Appeal Rules challenging the suspension order dated 19.3.2019 has been rejected holding that the merits of the charges contained in the three chargesheets issued to the petitioner would be considered by the enquiry officer and that the charges against the petitioner are such which do not warrant any interference in the suspension order. Another order of the same date ie 28.6.2019 passed by the Director (Pipeline), Indian Oil Corporation, Noida relates to the grievances raised by the petitioner with regard to his posting at the valid location of posting, pursuant to the directions of Division Bench of this Court in Special Appeal No.504 of 2019 (Hemant Kumar Malviya vs Union of India and 4 others). Further reliefs have been sought seeking for quashing of the suspension order dated 19.3.2019 as also the three chargesheets issued by respondent no.5 ie., enquiry officer and mandamus seeking compensation for loss suffered by the petitioner in terms of "Performance Related Pay" and "Annual Performance Appraisal Report" record for the year 2017-2018 and 2018-2019, which he had incurred as a direct consequence of denial of his valid work role assigned to him. Further relief is to issue mandamus directing the respondents to post the petitioner on his valid location of posting with correct designation ie CMNM(Chief Maintenance Manager) and HOD (Maintenance) at Allahabad Maintenance Base, B.K.P.L Allahabad and provide all other consequential benefits to him.
The basic grievance raised by the petitioner during the course of argument is that he was transferred to Allahabad Maintenance Base, B.K.P.L Allahabad from Noida by the order dated 20.3.2017 which was modified on 13.4.2017, relieving the petitioner from the then assignment on or before 30.6.2017 so as to enable him to join as Maintenance Manager, Allahabad Maintenance Base, B.K.P.L Allahabad. The contention is that the petitioner had, accordingly, joined on 3.7.2017 as Maintenance Manager, Allahabad Maintenance Base and his salary was fixed to the said post. He was promoted on 13.3.2018 to the next higher grade in the payscale of Rs.1,00,000/- to Rs.2,60,000/- and posted as Chief Maintenance Manager, B.K.P.L Allahabad. His pay fixation in the higher grade was done accordingly. The joining report of the petitioner to the post of Chief Maintenance Manger Allahabad Maintenance Base on 14.3.2018 has been appended on page '157' of the paper book. An office order dated 12.4.2018 was passed to accord salary of the said post to the petitioner w.e.f 14.3.2018 ie the date of joining. It is contended that at the relevant point of time, Mr Saroj Kumar Pansari was the General Manager in Allahabad Maintenance Base; B.K.P.L Allahabad. The official record of posting of Base Incharge as well as his reporting officer and relevant delegation of power for inter location transfer has been appended from page '159' onwards to assert that the organisational structure of two locations ie: Allahabad Maintenance Base and Allahabad Pump Station of B.K.P.L (Barauni Kanpur Pipelines) clearly indicates that though the parent division is Pipelines of B.K.P.L Allahabad but two locations/departments are distinct from each other, and that the Allahabad Maintenance Base is a Maintenance Department and Allahabad Pump Station is basically "operations" department. Senior most position/designation in Allahabad pump station is Senior Operation and Maintenance Manager. It is contended that only the Director Pipelines, Indian Oil Corporation, Noida was competent to decide the location of posting of the petitioner and since the petitioner was posted in Allahabad Maintenance Base and had joined therein, it was not open for the officers namely the Base Incharge or General Manager and the Deputy General Manager to change the location of posting of petitioner from Allahabad Maintenance Base to Allahabad Pump station. The General Manager Allahabad Base is only the Base Head or Base Incharge, he has no power or authority in the matter of transfer and posting of senior most officers like the petitioner working in Maintenance department of Allahabad Maintenance Base. The organograms of B.K.P.L, U.P Sector appended from page no.'176' to '183' of the writ petition have been placed before the Court to state that the petitioner was not assigned his valid role and has been illegally deprived of his work role.
It is contended that structure of the organisation regarding posting of the officers is such that only an officer posted in the Operations Department can be assigned role at the Allahabad Pump Station and the officers of Maintenance Department cannot be posted in any other location except Allahabad Maintenance Base. The petitioner has been denied and deprived of his lawful work role and was subjected to lots of humiliation and personal loss. On the agitation of the petitioner instead of looking to his grievances, he was unnecessarily harassed by posting as Chief Manager in Allahabad Pump Station where virtually he has no role to play.
Being annoyed by the agitation made by the petitioner raising his lawful grievances, three chargesheets dated 17.12.2018, 8.2.2019, and 1.4.2019 were issued to him, two of them followed by the suspension order dated 19.3.2019. It is vehemently contended by the petitioner that no preliminary enquiry was conducted before issuance of the said charge sheets and passing of the suspension order, he was, thus, denied opportunity of hearing to rebut the allegations levelled in the suspension order. Further none of the charges in the three chargesheets are definite and are repetitive. Looking to the vagueness of charges, the suspension order as also the three chargesheets are liable to be quashed.
Further the chargesheets are defective, in as much as, details with regard to the list of documents and witnesses by which charges were proposed to be sustained, had not been indicated therein. It was, therefore, not possible for the petitioner to submit his reply to the chargesheets. On the said grievances raised by the petitioner before the enquiry officer though list of documents and witnesses were provided to him but the same are cryptic as there is no indication in the said list as to which document or witnesses would be examined in support of which of the proposed charge. The arbitrariness and whimsical attitude of the respondents is writ large on the face of the record by mere reading of the list provided to the petitioner by the enquiry officer at page '135' of the paperbook. The charges are based on hearsay evidence which cannot be sustained in the departmental enquiry.
For the vindictive attitude of the respondents, the petitioner has no hope and trust that he would get fair treatment in the departmental enquiry. The enquiry officer would lean in favour of the departmental authorities as they are proceeding with malicious intention so as to shield their illegal modes of working. The appellate authority has deliberately ignored the factual details and the observations in the appellate order impugned that the petitioner was posted at B.K.P.L Allahabad and the transfer does not specify whether he was posted at Allahabad Pump Station or Allahabad Maintenance Base of the B.K.P.L Allahabad, is not correct.
The transfer from Allahabad Maintenance Base to Allahabad Pump Station is an interlocation transfer and not an intra-location transfer. It is contended that B.K.P.L Allahabad as a location does not exists at all as is substantiated from the official records rather B.K.P.L Unit at Allahabad has two distinct locations viz, Allahabad Maintenance Base and Allahabad Pump Station and any posting and transfer of any officer (including the petitioner) requires inter-location transfer order. The order dated 28.6.2019 passed by respondent no.3 is, thus, flawed at its inception.
It is further contended that posting of two officers, senior in grades to the petitioner in Operations Department of Allahabad Pump Station is derogatory, in as much as, the petitioner was a senior most officer in the capacity of H.O.D Maintenance in the Maintenance department namely Allahabad Maintenance Base. After promotion in the month of March, 2018 he was wrongly assigned roles at Allahabad Pump Station without any inter-location transfer order, in order to deny him his valid work roles in the capacity of Head of the Department, Maintenance at Allahabad Maintenance Base. The charges mentioned in the charge sheets and the suspension order primarily on the ground that the petitioner is avoiding to take charge of the work assigned to him are, therefore, false. The term Base-Incharge for the designation of General Manager with the location Allahabad Maintenance Base has been coined to create confusion and is testimony of the malicious intention of respondent no.3. In any case, as a direct consequence of the action of the respondents, the petitioner has been deprived of "Annual Performance Appraisal Reports for the year 2017-18 and 2018-19. Besides that he has been deprived of 'Performance Related Pay/bonus which is linked with the performance noted in the "Annual Appraisal Report". For the hindrance and humiliation of the petitioner and denial of valid financial benefits, he is entitled for the damages as also the cost of the present petition.
Sri G.K.Singh learned Senior Advocate, however, submits that the grievances raised by the petitioner in the present petition regarding his posting as Chief Maintenance, Manager in Allahabad Pump Station is wholly uncalled for. By placing the transfer order dated 20.3.2017, it is contended that the petitioner was transferred from the Pipelines Division of the Head office Noida to B.K.P.L Allahabad which is "Barauni Kanpur Pipelines". There is no indication in the transfer order that the petitioner was transferred or posted as Maintenance Manager in Allahabad Maintenance Base only, neither there is any such indication in the promotion order. By placing Organograms ie functional structure of the organisation, it is contended that General Manager, Allahabad is the Base Incharge or Base Head of B.K.P.L Allahabad Unit which is the Pipelines Division of Indian Oil Corporation, B.K.P.L Allahabad. It looks after the working of putting pipelines from Mughalsarai to Kanpur and that is why known as "Barauni Kanpur Pipelines". The location for the work of putting pipelines by the unit namely B.K.P.L Allahabad includes both the Pipelines (Maintenance Base) and the Pump Station. There are two Chief Maintenance Managers and one of them is posted in the Maintenance section of the Pump Station whereas another is posted in Allahabad Maintenance Base. Maintenance work of both the pipelines and pumpstation is equally important and the duties are interchangable. The posting of petitioner in Allahabad Pump Station is not an inter-location transfer rather an intra-location transfer; ie., from one location to another location of the unit B.K.P.L Allahabad. The revised roles and responsibilities of Maintenance pertaining to the entire Pump Station at Allahabad assigned to the petitioner on 23.4.2019 with four direct Sub-ordinate officers was crucial for the work of maintenance of Pump connected to the Pipelines. The act of petitioner in refusing to discharge his assigned duties and levelling baseless allegations against his senior officers is wholly uncalled for.
It is, thus, submitted that the representations moved by the petitioner regarding his posting at Allahabad Pump Station have, therefore, rightly been rejected. As far as the merits of the suspension order and chargesheets, it is contended that the charges against the petitioner are serious, in as much as, allegations are of misbehaviour and mis-statement against his senior officials posted at B.K.P.L Allahabad. Further the denial on the part of the petitioner to discharge his duties runs prejudicial to the interest of the Corporation.
Having heard learned counsel for the parties and perused the record.
The assertion of the petitioner that he was transferred to Allahabad Maintenance Base and could not be assigned role of Maintenance of Allahabad pumpstation, which according to him, is a small department comprising of only one officer in the Maintenance Section is not acceptable from the careful persual of the transfer order, promotion order and the diagram of the organisation; ie Organograms of B.K.P.L Allahabad appended with the writ petition. There is no dispute about the fact that B.K.P.L Allahabad is a unit of the Pipelines Division of Indian Oil Corporation. The said unit is Incharge of laying down pipelines from Mughalsarai to Kanpur and both the locations ie, Allahabad Maintenance Base and Allahabad Pump Station are created for the smooth functioning of the aforesaid work. Allahabad Maintenance Base looks after Maintenance of pipelines in the area concerned whereas Allahabad Pump Station is a base of station of pumps connected with the pipelines. The work of Maintenance of both pipelines and pumpstation are equally important and crucial to the work of B.K.P.L Unit, Allahabad. The local Head of the Unit namely B.K.P.L is the General Manager. The contention of the petitioner that the General Manager cannot be said to be Base Incharge and the said designation is misnomer, is unacceptable. From the careful reading of the Organograms appended with the writ petition, the designation of Base Incharge given to the General Manager, Allahabad is to ensure smooth working of B.K.P.L Unit at the local level. These matters of administrative arrangements are not subject matter of scrutiny in exercise of judicial review under Article 226 of the Constitution of India. All the above submissions of the petitioner would not be of any benefit to him, in as much as, no apparent error could be found on the face of the record.
As far as the merits of the suspension order and the charge sheets is concerned, pertinent is to note that the charges are of denial on the part of the petitioner to discharge the duties assigned to him by the organisational Head ie: Base Incharge at the local level. This apart the allegations are of misbehaviour by the petitioner. Having been satisfied that the charges mentioned in three chargesheets require detail departmental enquiry, this Court does not propose to interfere on the premise that no preliminary enquiry was conducted before placing the petitioner under suspension.
Lastly, it is contended by the petitioner that an application dated 6.7.2019 had been submitted by him before the disciplinary authority pleading for change of the enquiry officer on the premise that the enquiry officer is proceeding in a biased manner. Submission is that no decision, whatsoever, has been taken by the disciplinary authority on the said request made by the petitioner and the enquiry is in progress since after 7.5.2019 in utter violation of principle of natural justice.
Considering the said submissions, it is directed that the disciplinary authority shall consider the request of the petitioner, if any, made to him for change of the enquiry officer by passing a reasoned and speaking order within two weeks from the date of receipt of certified copy of this order.
It is, however, clarified that, in any case, the departmental enquiry is required to be conducted by strictly following the principles of natural justice, by providing complete list of witnesses and the documents sought to be proved against the petitioner in the departmental enquiry. Full opportunity be granted to the petitioner to rebut all documentary evidences and cross examine the department witnesses. In no case, the petitioner shall be denied due opportunity by the enquiry officer. At the same time the petitioner is under obligation to co-operate in the departmental enquiry and not to create any hindrance in smooth conduct of the same. Effort shall be made by the enquiry officer to conclude the pending enquiries, at the earliest, preferably, within a period of four months from the date of submission of certified copy of this order, provided the petitioner cooperates.
It goes without saying that independent consideration be given to all the pleas raised by the petitioner in the enquiry without being influenced by any of the observations made above.
The writ petition is, accordingly, disposed of.
No order as to costs.
Order Date :- 16.9.2019 Harshita