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Judgment
S.B. Sinha, J.—This petition is directed against an order dated the 26th March, 1984, passed by the respondent no. 2 as contained in Annexure-1 to the writ application whereby and whereunder the services of the petitioner as Assistant Godown Managar were terminated with immediate effect. The facts of the case lie in a very narrow compass.
The petitioner at the material time was working as an Assistant Godown Manager at Saharsa. By an order dated the 7th May, 1980, the petitioner was placed under suspension. Thereafter, on the 6th March, 1981, the petitioner was furnished with a copy of a draft charge. The said draft charge is contained in Annexure-2 to the writ application. From a perusal of the said charge, it appears that the petitioner was charged with (a) non-adjustment of certain advance, (b) shortage of foodgrains and (c) failure to hand over certain papers.
The petitioner considerd the said purported draft charge to have been issued to him only for the purpose of having an explanation from him. The petitioner thereafter submitted a show cause dated the 26th April, 1981, before Shri M. S. Hodda who was appointed as the conducting Officer. In the said show cause, the petitioner, inter alia, stated that a criminal case was also instituted against him wherein he obtained an order of anticipatory bail. The petitioner, therefore, demanded that the departmental proceeding be kept in abeynce. The petitioner, however, answered the charges by denying the same and by offering his explanations in that regard.
According to the petitioner, the Corporation in the disciplinary matters follows the rules and procedure as applicable to the Bihar Government servants including the rules as contained in the Bihar & Orissa Subordinate Service (Discipline and Appeal) Rules, 1935. The petitioner has asserted that in the said enquiry proceeding, the provisions contained in rule 55 of the aforementioned Rules were not followed nor the instructions contained in rules 165 to 170 of the Bihar & Orissa Boards Miscellaneous Rules, 1939 were followed. The petitioner has further stated that even the guidelines issued by the State of Bihar in such matters (Annexure-4) were not followed in the case of the petitioner. The said guideline is contained in Annexure-4 to the writ application. The petitioners has asserted that, in view of the fact that the chargesheet furnished to him was a draft one, he did not ask the department to supply him copies of the documents.
The petitioner has further asserted that the enquiry initiated against him was merely a fact finding enquiry. The Enquiring Officer Shri M.S. Hodda retired in May, 1982, and thereafter one Shri Sant Saran Prasad Sinha directed the petitioner to appear before him. The petitioner has asserted that no formal order was ever issued by the Managing Director of respondent no. 1 Corporation appointing the said Shri Sinha as the Enquiring Officer nor any information with regards thereto was sent to the petitioner. The petitioner has further asserted that, by an order dated the 18th October, 1982, the order of suspension passed against the petitioner was revoked and the petitioner was allowed to join as an Assistant Godown Manager, Saharsa, on the 16th November, 1982. The petitioner has stated that the District Manager of the Corporation informed the respondent no. 2 that all the vouchers which the petitioner had submitted earlier in respect of the advance taken by him were found to be genuine and regular and that the entire amount of the advance had been adjusted by the District Manager and no amount was outstanding against the petitioner. A copy of the said letter dated the 13th June, 1983, is Annexure-6 to the writ application. Thereafter, the impugned order dated the 29th March, 1984, terminating the services of the petitioner was passed.
The petitioner has stated that no full fledged enquiry was made as against the petitioner. It has further been stated that in the departmental enquiry before Shri Hodda, only Shri Chandrika Prasad Singh was asked certain questions and the petitioner was also asked certain questions as were asked from Shri Chandrika Prasad Singh. The petitioner has further submitted that as Shri Sant Saran Prasad Sinha was not appointed as the Enquiring Officer by the respondent no. 1, the impugned order passed upon the enquiry report of Sri Sinha is illegal. The petitioner has further stated that no copy of any document on the basis whereof the charges were to be proved; was ever supplied to him nor the petitioner was given any reasonable opportunity to defend himself.
The petitioner has further stated that no second show cause notice was issued to the petitioner as was required under note 1 below the explanation III of Rule 2 of the Bihar Subordinate Services (Discipline and Appeal) Rules read with Rule 166 (i) of the Board''s Miscellaneous Rules. The petitioners has also filed a supplementary affidavit wherewith he has appended copies of orders dated 29.1.1986 and 24.4.1987 as contained in Annexure-7 and 8 thereto for the purpose of showing that in respect of shortage of foodgrains the disciplinary authorities passed orders directing the Assistant Godown Managers to pay the amount therefor and no disciplinary proceedings were initiated against them.
In this case, a counter affidavit has been filed on behalf of the respondents. In the said counter affidavit, it has been stated that although the chargesheet was levelled as a draft chargesheet but, in fact, the same was a charge sheet for the purpose of initiating a disciplinary proceeding and the petitioner also treated it to be the same. According to the respondents, the rules and the procedures applicable to Government servants are not applicable to the employees of the respondent no. 1. It has further been stated that, although the departmental proceeding was intitated against the petitioner, he never expressed his desire to look into the documents or papers. It has been accepted in the said counter affidavit that in view of the District Manager''s letter dated the 13th June, 1986, the first charge against the petitioner was not proved. It has however been asserted that the petitoner was not entitled to the second show cause notice.
The petitioner has filed rejoinder to the said counter affidavit wherewith he has annexed a copy of the resolution no. 65/1092 dated the 24th March, 1983 (Annexure 7) whereby and whereunder the respondent Corporation purported to have adopted rale 49(a) of the Civil Services (Classification, Control and Appeal) Rules, 1930 and sub-clause 3A of the Bihar & Orissa Subordinate Service (Discipline and Appeal) Rules, 1935.
Mr. S. Mukherjee, learned counsel appearing on behalf of the petitioner submitted that the disciplinary proceedings are of the employees of the corporation to be governed in terms of the provisions of Rules 55 and 55A of the Bihar Civil Services (Classification Control and Appeal) Rules, 1930 and as there has been a complete failure to observe the mandatory provisions of the said Rules and the same must be held to be wholly illegal and without jurisdiction. The learned counsel has further submitted that in terms of the guidelines issued by the State of Bihar as contained in annexure-4 to the writ application, it is evident that all the documents were to be supplied along with the chargesheet and as, in the instant case, admittedly, the said documents were not supplied, the petitioner was seriously prejudiced thereby and, in fact, had reasons to believe that the purported draft chargesheet was issued not for the purpose of holding a departmental proceeding but for the purpose of conducting a fact finding enquiry. The learned counsel has further submitted that even a copy of the enquiry report was not served upon the petitioner. The learned counsel has also submitted that the very fact that the chargesheet served upon the petitioner was a draft one, there was no reason for the petitioner to believe that a full fledged departmental proceeding would follow the same. According to the petitioner, he always considered it to be fact finding enquiry and, as such did not object to the non-furnishing of copies of the documents and the manner in which the witnesses including the petitioners were examined, i.e. by putting some questions to them.
On the other hand, Mr. Tarkeshwar Dayal, learned counsel appearing on behalf of the respondents submitted that, the said chargesheet although purported to be a draft chargesheet but the same in fact, was a chargesheet issued for intitiating a departmental proceeding. He has further submitted that, in view of the fact that the rules applicable to Government servants are not applicable in the case of employees of the respondent no. 1 Corporation, only the principles of natural justice were to be followed. According to him, there has been a substantial compliance of the principles of natural justice.
It appers to be somewhat curious that the respondent no. 1 Corporation which is an undertaking of the State Government has neither framed its own disciplinary rules nor according to it, follows rules applicable to the Government servants. To me, it appears that the respondents have cot come out with whole truth. If it is true that the respondent no. 1 Corporation does not follow the discipline and appeal rules prescribed for the government servants, in such event, I do not find justification for the Board of Directors'' action in adopting rule 49A of the Bihar Civil Services (Classification, Control and Appeal) Rules and rule 3A of the Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules which mere provide for an interim suspension.
On the facts and in the circumstances of this case, I feel that the contention of the learned counsel appearing for the respondent no. 1 Corporation that it does not follow the discipline and appeal rules meant for the Government servants is not correct. However, even assuming that the respondent no. 1 has neither framed disciplinary rules for its employees nor follows such rules meant for the Government servants, in such an event also, it was obligatory on the part of the respondent no. 1 to follow the minimal requirement of the principles of natural justice. It is now well known that departmental proceedings are quasi-judicial proceedings and in such proceedings fair, play in action is mandatorily required to he followed.
The respondents have not denied that the fact as stated in the writ application, the supplementary affidavit as also the rejoinder to the effect that the witnesses examined on behalf of the prosecution were merely to put some questions by the Conducting Officer and petitioner was permitted to put some question to him and further even the petitioner was also put some question by the Conducting Officer which clearly shows that there has been a complete violation of the principles of natural justice.
It is true that by Annexure-2 the petitioner was directed to submit his explanation before Shri M.S. Hoda who was appointed as the Conducting Officer for showing as to why he should not be held guilty of the charges levelled against him but the very fact that at the top of it was mentioned as a draft charge and further in the manner in which the enquiry proceeding admittedly proceeded could have left an impression in the mind of the petitioner that the same was merely a fact finding enquiry and not a full fledged departmental proceeding. Further, the petitioner admittedly was not furnished with the documents on the basis whereof the charges were sought to be proved.
In order to comply with the minimal requirement of the natural justice, the respondents to have either furnished copies of the relevant documents to the petitioner on the basis whereof the charges against the petitioner were levelled or the petitioner, at least, should have been informed that he would be at liberty to inspect the documents in question and take notes therefrom. Neither of this was done by the respondents. Admittedly, even a copy of the enquiry report was rot furnished to the petitioner.
In absence of a copy of the enquiry report, it was not possible for the petitioner to know as to which charges were proved by the department against him nor is it possible for this Court to find out as to whether the said enquiry was conducted in compliance with the principles of natural justice and fair play.
It further appears strange that there was no charge of misappropriation as against the petitioner and further in view of the admission made in the counter-affidavit itself, the first charge was not proved as against him but from the perusal of the impugned order as contained in Annexure-1 to the writ application, it appears that the order of dismissal was passed against him, as allegedly the charges (a) misappropriation, (b) indiscipline, (c) insubordination and (d) failure to discharge his duties were allegedly proved, against the petitioner. From a perusal of the said order, it, therefore, does not appear that the disciplinary authority has even applied its mind.
It further appears to be curious that the deponent of the counter-affidavit is a law clerk of the respondent no. 1 Corporation. The said deponent does not say in the counter-affidavit that he was associated with the disciplinary proceedings against the petitioner on behalf of the Corporation or otherwise. The contents of the counter-affidavit have been verified as being true to the deponent''s knowledge as derived from the records of the case. It is clear that even the counter-affidavit was not properly verified nor the records at the enquiry proceeding have been produced in this Court. I am, therefore, of opinion that there has been a complete violation of the rule of audi alteram partem, and, as such, the impugned order as contained in Annexure-1 cannot be sustained.
In view of the finding aforementioned I do not intend to deal with the question raised at the bar as to whether a second show cause notice was necessary to be issued before the impugned order as contained in Annexure-1 was passed. However, before parting with the case, one of the submissions made by Mr. Mukherjee may be noticed.
Mr. Mukherjee, with reference to Annexures-7 and 8 to the writ application, argued that in case of other Assistant Godown Managers, there was a charge of shortage of foodgrains and the respondent no. 1 only directed recovery of money from the concerned officers but no disciplinary action was taken against them much less the punishment of termination of service which was awarded to the petitioner. Mr. Mukherjee submitted that, in that view of the matter, as the petitioner was similarly situated to the other employees, there was a clear violation of equality before law and equal protection of law as enshrined under Article 14 of the Constitution of India.
The learned Counsel has placed strong reliance upon a decision of the Supreme Court in the case of Singara Singh reported in (1983) 3 SCC 225. However, it is not possible for this Court to come to the conclusion that the petitioner has been subjected to a hostile discrimination, inasmuch as, the employer may take different action against different employees in a similar charge upon consideration of the facts and circumstances of each case. It is, however, true that disproportionate punishment itself attracts Article 14 of the Constitution but, in view of my finding aforementioned, this question need not be dwelt upon any further.
In view of the finding aforementioned, it is directed that the order dated the 26th March, 1984, as contained in Annexure-1 to the writ application be quashed and the respondents may proceed as against the petitioner in accordance with law and after complying with the principles of natural justice. It is also made clear that, in the event the discipline and appeal rules applicable to the Government servants also apply to the case of the petitioner the respondents must follow the same. In the result, this application is allowed and the order as contained in Annexure-1 to the writ application is quashed, subject to the above observations and directions. However, there will be no order as to costs.