Madhya Pradesh High Court
D.K. Saxena vs Coal India Limited And Anr. on 8 February, 1994
Equivalent citations: 1995(0)MPLJ430
ORDER Gulab C. Gupta, J.
1. The petitioner was a Senior Personnel Officer in the Respondent No. 2 and has been removed from employment on a finding of proved misconduct by order dated 15-11-1991 (Annexure P-12). He challenges constitutional and legal validity of the said order of removal by filing this writ petition under Article 226 of the Constitution of India.
2. It is not in dispute that the respondents are Government companies of the Central Government and since they are fully financed and controlled by the said Government, they fall within the definition of 'State' under Article 12 of the Constitution of India and therefore amenable to writ jurisdiction of this Court. It is also not in doubt that the officers like the petitioner are governed by Coal India Executives Conduct, Discipline and Appeal Rules, 1978. These rules are however not statutory and yet they govern service conditions of the petitioner and others as a part of their contract of employment. Since the respondents are State within the meaning of Article 12 of the Constitution, it is also not disputed that they are bound to ensure benefits of Articles 14 and 16 of the Constitution to the petitioner.
3. It appears that the petitioner, while working as Deputy Personnel Manager of Jamuna and Kotma Area of respondent No. 2, he is said to have committed several acts of misconduct and corruption. A charge-sheet dated 6-4-1989 (Annexure P-1) was therefore" served on him by the Chairman-cum-Managing Director of the respondent No. 2 detailing as many as 11 charges against the petitioner. These charges relate to irregularities in office procedure, fraudulently withdrawing the amount of the respondent-company, indiscriminate purchases without approval of the competent authority, embezzlement, misuse and misappropriation of money of the company etc. etc. The charge-sheet stated that this amounts to serious misconduct which may be visited by the penalty of dismissal from service. The petitioner was therefore requested to send his-reply to the charges. The charge-sheet was also accompanied by statement of imputations giving necessary details of the charges. A list of documents in support of articles of charges detailing as many as 66 documents was also sent along with the charges. A list of witnesses to be examined in support of the charges mentioned (12 witnesses) was also given. A reading of the list of documents and list of witnesses indicates that the statements of witnesses were earlier recorded and included in the list of documents. The petitioner submitted his reply to the charges and denied the same. Thereafter, one Shri H. P. Gupta, General Manager (IED) was appointed as Enquiry Officer for holding the enquiry into the matter. From the proceedings of the enquiry which had been made available to us by the learned counsel for the respondents at the time of hearing of this writ petition, it is clear that the petitioner was permitted to inspect all the documents mentioned in the list attached to the charge-sheet. He was also granted facility of taking notes of the documents. It also appears that he asked for photo copies of those documents but the request was rejected. The enquiry seems to have started on 28-11-1989 and continued upto 5-4-1991. The witnesses against the petitioner were examined by the management and were cross examined by the petitioner. The petitioner thereafter gave his written statement on 20-4-1991. Thereafter the evidence was examined by the enquiry officer who recorded his findings holding the petitioner guilty of charges Nos. 1 to 5 and 7 only. Charge No. 7 had so many heads but only (ii), (iii), (vi), (vii), (viii) and (xi) were proved. Charges Nos. 6, 7(i), 7(iv), 7(v) were found not proved. The report of the enquiry officer was submitted to the respondent No. 1 and was examined at various levels. The file indicates that the report received consideration of the Chairman of the respondent No. 1 who eventually passed the impugned order of removal.
4. A perusal of the original file indicates that some other officers viz. J. Y. Ghenekar, H. S. Gupta, V. L. N. Shastri and N. S. Nandi were also charge-sheeted in relation to the charges against the petitioner. They were however exonerated after enquiry and eventually promoted. One of the grievance of the petitioner is that though the charges were the same, the other officers have been favoured and the petitioner victimised by removal. The respondents have denied the same and submitted that the charges against those officers though based on these facts, were different and an action has been taken only on consideration of merits and nothing else.
5. It appears that the petitioner submitted his appeal under Rule 36 of the Coal India Executives Conduct, Discipline and Appeal Rules, 1978. The said appeal did not receive consideration of the appellate authority within the time prescribed, under the aforesaid rules. The petitioner therefore filed a writ petition in this Court which was subject-matter of M. P. No. 1239/92 complaining of delay beyond the period prescribed under the rules and otherwise the illegality of the disciplinary action against him. A Division Bench of this Court by its order dated 24-7-1992, partially allowed the said petition, directing the respondent-Coal India Limited to decide the petitioner's appeal within one and a half month of the date of the receipt of the order. The appeal filed by the petitioner was thereafter decided and dismissed by the Board of Directors of the respondent No. 1 on 29-8-1992. The legal validity of this order (Annexure P-19) is also under challenge in this writ petition. That is how the petitioner challenges not only the constitutional validity of this order of removal but also the order dismissing his appeal.
6. The submission of the learned counsel for the petitioner is that though the disciplinary authority in relation to the petitioner is Chairman of Coal India Limited, he did not initiate the enquiry or issued the charge-sheet. The charge-sheet was issued by the Chairman of the respondent No. 2 who was not competent authority. It is therefore submitted that the entire proceedings are illegal. It is also submitted that the non-supply of the copies of the documents amounts to denial of reasonable opportunity, rendering the enquiry invalid. Reliance is placed on Supreme Court decisions reported in State of Uttar Pradesh v. Mohd. Sharif, 1982 (2) SCC 376 and Kashinath Dikshita v. Union of India, 1986(3) SCC 229. It is also submitted that the report of the Enquiry Officer should have been given to the petitioner before acting upon the same and his explanation obtained in view of the decision of the Supreme Court in Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 471 and Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727 and since this was not done, the petitioner has been denied reasonable opportunity of defending himself. It was also submitted that the appeal had been decided by a non-speaking order which is contrary to law. Ultimately it is submitted that there is discrimination in the matter of awarding punishment. The Officers similarly situated and officers similarly charged, have been exonerated and even promoted but the petitioner has been singled out for punishment of removal from employment. It is therefore submitted that it is a case of hostile discrimination, violating Articles 14 and 16 of the Constitution. The learned counsel for the respondent however denied these allegations and submitted that the rules do not require issue of charge-sheet by the disciplinary authority and therefore issuance of charge-sheet by the Chairman of the respondent No. 2 does not create any illegality in the impugned order which has been passed by the disciplinary authority. As regards documents, it is submitted that all documents were disclosed to the petitioner and a list given to him along with the charge-sheet. He has also been afforded an opportunity of taking notes of those documents. Thus, those documents remained available for his examination and use throughout the enquiry proceedings. This, according to the learned counsel, complies with the requirement of the principles of natural justice. There is no obligation on the part of the respondents and no right of he petitioner to obtain copies of these documents. As regards enquiry report, it is submitted that the law laid down by the Supreme Court in Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 471, was not applicable to the employees of Government Corporation as they were not governed by Article 311 of the Constitution. It is however admitted that by the Judgment in Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727, the aforesaid law has been applied to the employees of the Corporation but the same cannot be applied retrospectively. It is therefore submitted that the said Judgment would not be used for invalidating the enquiry. It is also submitted that if this Court examines the matter to ascertain the prejudice caused to the petitioner, the finding would be that no such prejudice has been caused. The trial of the enquiry officer was made available to the petitioner along with the impugned order against which he preferred an appeal. The memo of appeal does not disclose any grievance of the petitioner about the non-supply of enquiry report nor does it cause any prejudice to the petitioner as a result thereof. As regards appeal, it is submitted that the order gives sufficient reasons. Though the order is short, it is so only because if affirms the findings. There is therefore no illegality in disposing of the appeal. As regards discrimination in the matter of punishment, it is submitted that each case has to be decided on its own merits and therefore the grievance of the petitioner regarding discrimination in the matter of punishment has no substance.
7. Since it is common ground between the parties that the respondent No. 1 is State within the meaning of Article 12, it is obvious that they are bound to ensure compliance of Articles 14 and 16 of the Constitution. The concept of equality as enshrined in these provisions now includes not only non-discrimination but also its positive aspect i.e. fair play in action. Absence of arbitrariness is the basis on which the fairp lay is ensured. This has been the sum and substances of the decisions in E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597; Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 and Central Inland Water Transport Corporation Ltd. v. Tarun Kanti Sengupta, AIR 1986 SC 1571. While considering the aforesaid, principles of natural justice will also require consideration, inasmuch as, the same have become part of the aforesaid, constitutional guarantee. Keeping in view the aforesaid, the submissions of the learned counsel for the petitioner may now be examined to ensure whether there is a breach of the aforesaid constitutional guarantee.
8. As regards issue of the charge-sheet, by an authority, which is not the disciplinary authority, reference may be made to rules Annexure P-28 wherein Chairman-cum-Managing Director of respondent No. 1 has been declared to be a disciplinary authority and entitled to impose all penalties on a delinquent officer. There is nothing in these rules to indicate that the charge-sheet must also be issued by the disciplinary authority. Nothing has been brought to our notice in these rules to indicate that the disciplinary authority must also issue the charge-sheet. No principle of natural justice is involved in such a case nor is there any question of violation of Article 14 of the Constitution in such a situation. Under the circumstances, there is no justification for the submission that since the disciplinary proceedings were not started by the disciplinary authority, they are void. The position might have been different in case the matter was covered by a statutory provision and there was a violation thereof. Under the circumstances, we find no substance in the submission, as aforesaid.
9. As far as the supply of documents is concerned, the matter is without doubt covered by the principles of natural justice which ensure giving a reasonable opportunity to a delinquent officer to defend himself. It is also a part of fair play in action which is the basic philosophy of Article 4. The documents arc used not only for proving charges against the delinquent officer but also for eliciting further information from the witnesses during their cross-examination. Under the circumstances, it is clear that the documents used against a delinquent officer are required by him for the purpose of cross-examination, cannot be withheld. This requirement of law has been clearly brought out in Supreme Court Judgments in State of U. P. v. Mohd. Sharif, (1982) 2 SCC 376 and Kashinath Dikshita v. Union of India, (1986) 3 SCC 229 on which reliance has been placed by the learned counsel for the petitioner. These decisions are rendered in the context of peculiar facts of the case and have to be appreciated as such. As far as, this case is concerned, the facts on record clearly indicate that all documents had been disclosed to the petitioner. In fact a list of documents had accompanied the charge-sheet, a perusal of which would indicate that not only the documents which formed basis of the charge but also those previously recorded statements of witnesses likely to be examined in support of the charges were also disclosed. Then, the documents were made available for inspection not only on any particular date but throughout the enquiry. The petitioner was granted opportunity of taking down notes and referring to those documents whenever necessary. It is further true that the request of the petitioner for supply of the photo copies of these documents was rejected. It was rejected because the petitioner had been given access to those documents whenever he wanted. Under the circumstance it is not a case where the petitioner had not had an opportunity of using documents either before or during the enquiry. Rules of natural justice are not codified and intend to provide a reasonable opportunity to a delinquent officer, to defend himself. In this connection, the classic decision of the Supreme Court in Union of India v. T. R. Verma, AIR 1957 SC 882 which deserves special notice. The fact that the documents were made available for inspection to the petitioner throughout the enquiry is enough to indicate that there is no breach of principles of natural justice in this behalf. The cases referred to above and relied upon by the petitioner do not deal with such a situation. There would be no denial of reasonable opportunity. The instant case is not a case of holding back documents. No prejudice has been caused to the petitioner by following the procedure as aforesaid and therefore there is no breach of principle of natural justice. As a necessary consequence, the arguments based on Article 14 of the Constitution must be rejected.
10. Serious arguments were addressed to this Court based on non- supply of report of the enquiry officer before passing the impugned order. The submission is based on the decision of the Supreme Court in Union of India v. Mohd. Ramzan, AIR 1991 SC 471. This was a case of an employee covered under Article 311 of the Constitution which admittedly does not apply in the instant case. The decision however interprets the concept of natural justice and lays down that "supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted Would be with in the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof." (Para 15) It is thus obvious that supply of the copy of the report of the Enquiry Officer has been made a part of principle of natural justice. Para 18 of the said judgment is however very important and deserves to be quoted for ready reference :
"18. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter."
The aforesaid does not make it obligatory on the part of the enquiry officer or the disciplinary authority to first send the report to the delinquent as was the provision under Article 311 of the Constitution before its amendment by 42nd Constitutional Amendment Act. It only provides that the copy will be supplied and leaves the matter open for consideration whether it will be supplied suo motu or on demand. This case has been extended to cases relating to employees of Corporations by judgment in Managing Director, ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727. This judgment further clarifies the position in Mohd. Ramzan's case (supra) by stating that in case the report has not been made available, the Court should not declare the punishment illegal for that reason alone. The Court should itself examine the matter to ascertain whether any prejudice has been caused to the delinquent by non-supply of the report. It is only when the Court finds prejudice having been caused, the action should be set aside and the Corporation be given an opportunity to supply a report and take further action in accordance with law. Reading of these two judgments together makes it clear that each case has to be examined on its own facts to ascertain whether any prejudice has been caused to the delinquent by non-supply of the report of the enquiry officer to the delinquent.
11. If the facts of this case are examined in the context of the aforesaid, it is clear that no prejudice has been caused to the petitioner and the report of the enquiry officer does not recommend any punishment. It only finds the petitioner guilty of the charges as mentioned above. This report was sent to the petitioner along with the impugned order. There is no dispute that on receipt of the aforesaid, the petitioner submitted his appeal. The memo of appeal does not mention that the petitioner was prejudiced in any manner by late supply of the report of the enquiry officer. It is therefore a case where the report has been supplied to the petitioner though late. The petitioner also had the opportunity of representing against the impugned order by filing the appeal but the memo of appeal does not contain any grievance about the late supply thereof. It is therefore a case where any prejudice has been caused to the petitioner. We therefore find no violation of principles of natural justice in the matter.
12. As regards the appeal having been decided by a non-speaking order, the court finds no substance in the submission. Appellate order Annexure P-19 mentions not only the charges but also the conclusion of the enquiry officer and the disciplinary authority. Para 5 thereof also mentions that the memo of appeal of the petitioner has been taken into consideration and records the conclusion that the appellate authority finds no justification for the appeal. We have been shown the proceedings before the Board of Directors wherein it is mentioned that on detailed consideration, the Board decided to reject the appeal. It is true that the submissions made by the petitioner have not been examined in detail but that, in our opinion, is not the requirement. The only requirement in the case like the present one is the requirement of the application of the mind to the facts and circumstances of the case; and fair and just consideration thereof.
13. As regards mala fide or prejudice, there is no such allegation against the Board of Directors. The application of mind is obvious from the facts on record. There is no legal requirement of dealing with each and every submission of the petitioner and recording a separate and independent finding, thereupon. We would therefore not find, any violation of principles of natural justice in the matter.
14. As regards discrimination in the matter of punishment, the principle to be followed is of equality among equals. Non-equals cannot be treated equally. It is true that certain officers were also involved in the matter but it is not shown that the charges against them and the petitioner were identical. Indeed the part played by all officers could not be the same. In a Corporation where there are several layers of supervisory control, the duties and responsibilities of persons at all levels cannot be expected as identical. If in such a situation, different persons are differently punished and some are even exonerated on consideration of facts and circumstances of the case, no complaint of discrimination can be made. Misconduct is a matter of intention of the person committing the act and not a cold blooded art. This sufficiently empowers the authority considering the matter to take a decision in proper context. Different punishment should therefore be the normal rule. The Court therefore finds no justification for complaint of discrimination.
15. In view of the discussion aforesaid, the Court finds no substance in the petition which fails and is dismissed.