Amitabh Kumar vs Union of India

Akhtar Husain Khan, J.—By means of this writ petition, under Article 226 of the Constitution of India petitioner Amitabh Kumar has challenged order dated 13.5.2014, passed by the Appellate Authority (Opposite Party No. 3) as well as order dated 5.2.2014, passed by the Disciplinary Authority (Opposite Party No. 5).

We have heard Mr. Sameer Kalia, learned counsel for petitioner as well as Sri P.K. Sinha, learned counsel for respondents.

In brief, relevant facts for determination of this petition, are that petitioner Amitabh Kumar was posted as Manager (Works) in HAL, Accessories Division, Lucknow. On 20.8.2012 he was served with chargesheet dated 20.8.2012 (Annexure No. 4 to the Writ Petition) in pursuance of complaint made by Sri R.K. Bhardwaj, D.G.M., (Works) (Annexure No. 3 to the Writ petition) and petitioner was placed under suspension with immediate effect. Petitioner submitted his reply to the chargesheet on 24.8.2012.

After considering reply of petitioner, vide letter dated 29.8.2012 (Annexure No. 7 to the Writ Petition) suspension of the petitioner was revoked and it was decided that the matter needs to be enquired. Therefore, Enquiry Officer as well as Presenting Officer were appointed and inquiry was concluded by the Inquiry Officer. Inquiry Officer submitted his report vide letter dated 21.12.2013 and Copy of Inquiry Report was furnished to the petitioner by the Disciplinary Authority vide letter dated 18.1.2014. (Annexure No. 18 to the Writ Petition). Thereafter, petitioner presented his representation dated 24.1.2014 (Annexure No. 19 to the Writ Petition) to the Disciplinary Authority against the inquiry report. The Disciplinary Authority after having considered representation of petitioner upheld the findings recorded by the Inquiry Officer and passed the impugned order dated 5.2.2014 (Annexure No. 2 to the Writ Petition) whereby he has imposed penalty of ''CENSURE'' under Rule-6 (i) (a) of HAL Conduct, Discipline and Appeals Rules, 1984 (hereinafter referred to as ''Rules, 1984) and ordered that since petitioner has been awarded with punishment, he will not be entitled for any other payment for the period of suspension. Feeling aggrieved with the impugned punishment order, petitioner filed appeal before the Appellate Authority (Opposite Party No. 2) but the Appellate Authority held that there is no ground for interference with the punishment order and dismissed the appeal filed by the petitioner. Ultimately, feeling aggrieved with the punishment order passed by the Disciplinary Authority as well as order passed by the Appellate Authority, petitioner has filed present writ petition before this Court with prayer to quash the order dated 13.5.2014, passed by the Appellate Authority alongwith the order dated 5.2.2014, passed by the Disciplinary Authority. Petitioner has made further prayer to issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to give effect to the order of Disciplinary Authority as well as that of Appellate Authority and to pay salary/remuneration of the period of suspension to him.

Learned counsel for petitioner has assailed enquiry report as well as impugned punishment order, passed by the Disciplinary and impugned order passed by Appellate Authority on following grounds.:

"1. That the enquiry has been conducted in contravention of HAL Conduct Discipline and Appeal Rules, 1984. Neither complainant was produced nor complaint was verified by the complainant.

That the witnesses relied upon by the Enquiry Officer, are not independent witnesses. Two of the witnesses, namely, Mr. P.S. Khemka and Mr. H.K. Tewari are subordinate staff of the complainant while witness D.K. Singh has cordial relation with complainant.

That the Security Officer who has been named as witness in complaint, has not supported version of complainant.

That even after revocation of suspension order, petitioner has wrongly been held guilty and remuneration of petitioner for the period of suspension has wrongly been withheld.

That the disciplinary authority has considered past record of petitioner whereas show cause notice given to petitioner did not show any allegation regarding past conduct of the petitioner. As such, petitioner has been denied opportunity of explanation and defence.

That the Disciplinary Authority and Appellate Authority both have not applied their mind while passing impugned orders.

That the enquiry report as well as punishment order and order passed by Appellate Authority, all are against law and principles of natural justice."

It has been contended by learned counsel for the petitioner that the punishment order as well as order passed by Appellate Authority should be quashed alongwith the enquiry report and petitioner should be exonerated from the charge.

Learned counsel for respondents has supported impugned orders passed by Disciplinary Authority as well as Appellate Authority.

It has been contended by learned counsel for respondents that D.G.M. (Works) made a complaint on 18.8.2012 against the petitioner regarding disorderly and indecent behaviour as well as willful insubordination whereupon petitioner was placed under suspension and explanation of petitioner was found unsatisfactory. Therefore, enquiry was instituted against the petitioner and chargesheet was served upon him. Petitioner filed reply before Enquiry Officer. Thereafter Enquiry Officer concluded enquiry in accordance with Rules, 1984 after affording proper opportunity of hearing to petitioner. On submission of enquiry report, Disciplinary Authority issued show cause notice and furnished copy of enquiry report to petitioner whereupon petitioner filed reply of notice. Thereafter Disciplinary Authority has passed impugned punishment order after having considered reply of petitioner.

Learned counsel for respondents has contended that the findings recorded by the Enquiry Officer as well as Disciplinary Authority are based on evidence. There is no sufficient ground for interference, witnesses relied by Enquiry Officer cannot be disbelieved merely on the ground that they are subordinate staff of the complainant.

Learned counsel for respondents has contended that petitioner has not been fully exonerated from the charges. Therefore, nonpayment of salary to petitioner for the period of suspension is in accordance with Rule 9 of HAL Conduct, Discipline and Appeal Rules, 1984.

Learned counsel for respondents has contended that Appellate Authority has rightly dismissed appeal filed by the petitioner.

We have considered submissions made on behalf of both the parties.

Rule 11 of H.A.L. Conduct Discipline and Appeal Rules, 1984 provides procedure for awarding punishments. Sub Rule (1) of Rule 11 is re-produced below:

"Rules 11 (1): No punishment under Rule -6 except censure shall be awarded to an officer unless he has been informed in writing of the alleged misconduct and has been given adequate opportunity to explain his case in accordance with the procedure laid down in this behalf in Schedule-II. However, while awarding punishment of censure, the Officer concerned should be given adequate opportunity to explain his case."

In schedule-II of Rules, 1984 complete procedure for disciplinary action has been given. It provides that on receipt of report or information that an officer has committed misconduct, competent authority may at his discretion cause an investigation but it further provides that when competent authority is satisfied that no investigation is necessary, he may dispense with investigation and proceed to issue chargesheet.

In present case, complainant R.K. Bharadwaj, D.G.M. (Works) has made complaint making clear and specific allegation of disorderly and indecent behavior as well as willful insubordination against petitioner. Complaint contains names of witnesses also. In view of clear and specific allegation of complaint no investigation is needed. Therefore, issuance of chargesheet without investigation cannot be said against Rules.

Charge-sheet was served on petitioner and petitioner filed his reply. Thereafter having considered reply of petitioner, suspension of the petitioner was revoked but it was decided to continue enquiry. Statements of witnesses have been recorded in presence of petitioner and enquiry has been concluded. After submission of enquiry report, petitioner was served with copy of enquiry report to make representation against it. Thereafter petitioner has submitted his reply and after having considered reply of the petitioner, Disciplinary Authority has passed the impugned punishment order. Feeling aggrieved with Penalty Order, petitioner filed appeal under Rule 14 of Rules, 1984 whereupon the Appellate Authority has given personal hearing to petitioner through video conferencing and after having considered contentions raised by petitioner, has passed impugned order dated 13.5.2014.

In view of above, it cannot be said that the inquiry has been conducted in violation of Rules, 1984 and Disciplinary Authority as well as Appellate Authority have passed impugned orders against Rules.

Petitioner has been awarded punishment vide impugned order dated 5.2.2014. The relevant part of punishment order is extracted below:

"Accordingly, I hereby impose a penalty of ''CENSURE'' under Rule -6 (i)(a) of HAL Conduct, Discipline & Appeal Rules, 1984, applicable to you. Since, you have been awarded punishment, you will not be entitled for any other payment for the period of suspension."

Rule 11 (1) of Rules, 1984, quoted above, shows that for awarding punishment of ''CENSURE'' no enquiry is needed in accordance with procedure laid down in second schedule. This Rule provides that for awarding punishment of ''Censure'' the officer should be given adequate opportunity to explain his case. As mentioned above, petitioner has been given adequate and full opportunity to explain his case. Therefore, penalty imposed on petitioner cannot be said against Rules or law.

Complainant and petitioner both are employees of H.A.L. Witnesses are also employees of H.A.L. Statements of witnesses cannot be disbelieved merely on the ground that they were subordinate staff of the complainant or they have cordial relation with complainant. Witnesses relied by the Enquiry Officer are natural witnesses of the alleged occurrence and cannot be disbelieved.

Finding recorded by the Enquiry Officer and upheld by the Disciplinary Authority is based on evidence.

Complaint has been made by Mr. R.K. Bhardwaj, D.G.M. (Works), HAL, in his official capacity and it is not the case of petitioner that Mr. Bhardwaj has not made complaint. In such situation, verification of complaint before Enquiry Officer is not needed.

Paragraph 6 of impugned Punishment Order reads as follows:

"6. Before taking any decision on the matter, I have also considered your past record. I find that the officer who holds the position of a Manager, is expected to behave and conduct positively. No officer of the company has right for disorderly behaviour with his superiors."

Reading of paragraph 6 of impugned punishment order shows that no adverse past conduct of petitioner has been taken into consideration. The past conduct of petitioner has been referred only to minimise the punishment.

For reasons, recorded above, we do not find sufficient ground for interference in punishment awarded to the petitioner.

Rule 9 (ii)(b) of Rules, 1984 provides that when a delinquent officer placed under suspension is not fully exonerated from the charge, he will receive such portion of the pay and allowances as the competent authority decides and the period spent on suspension shall be treated on duty only to such an extent. It further provides that if the officer so desires, the competent authority may permit the period of absence from duty being converted into leave due and admissible to officer. But petitioner has not been given option to seek conversion of period of suspension into leave due and admissible to him. Therefore, We are of the view that the case should be remitted to the Appellate Authority to give option to petitioner to seek conversion of period of absence from duty during suspension into leave due and admissible to him in accordance with Rule 9 (ii)(b) of Rules, 1984 and to pass order for payment of pay and allowances to the petitioner for the period of suspension accordingly.

In view of above, writ petition is allowed partially and case is remitted to the Appellate Authority to give option to petitioner to seek conversion of period of absence during suspension into leave due and admissible to him in accordance with Rule 9(ii)(b) of Rules, 1984 and to pass order for payment of pay and allowances to the petitioner for the period of suspension accordingly.