Sri Madhusudan Sahu vs Chairman, Paradip Port Trust and Another

P.K. Mohanty, J.—The petitioner calls in question the action of his disciplinary authority, the Chairman, Paradip Port Trust, in seeking approval of the Central Government in respect of the minor penalty, imposed/proposed to be imposed on the petitioner and in reopening and de novo starting the enquiry, on the advice of the Central Government, as illegal and unauthorised.

After discussing the facts and submissions of counsel appearing, the Hon''ble Court held :

In order to appreciate the contentions raised, it is necessary to consider some relevant provisions of law relating to disciplinary proceeding. In exercise of power conferred by Section 28 read with Section 126 of the Major Port Trust Act, 1963, the Central Government made a regulation to deal with the disciplinary matters of the employees of the Paradip Port Trust called "Paradip Port Employees (Classification, Control and Appeal) Regulation, 1967" which came into force with effect from 1st November, 1967. In Part-I general provisions have been made and in Part-II, the posts have been classified. Part-Ill contains the appointing authorities for different posts. Part-IV is with regard to'' the suspension of the employees. Part-V relates to discipline. Regulation-8 describes minor and major penalties; which is quoted hereunder :

"(8) Penalties : The following penalties, may, for good and sufficient reasons and as herein after provided, be imposed on an employee; namely

Minor penalties :

(i) Censure;

(ii) Withholding of his promotion;

(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Board by negligence or breach of orders;

(iv) Withholding of increments of pay;

Major penalties:

(v) Reduction to a lower stage in a time-scale of pay for a specified period with further directions as to whether or not the employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay;

(vi) Reduction to a lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the employee to the time-scale of pay; grade, post or service from which he was reduced with or without further direction regarding conditions of restoration to the grade or post, or service from which the employee was reduced and his seniority and pay on such restoration to that grade, post or service;

(vii) Compulsory retirement;

(viii) Removal from service which shall not be a disqualification for future employment:

(ix) Dismissal from service which shall ordinarily be a disqualification for future employment.

Regulation-9 speaks of disciplinary authorities and according to this clause, the authorities mentioned in the schedule shall be competent to impose penalties on the employees of different grades and services as indicated in the said schedule. Clause- 10 of the Regulation prescribes procedure for imposing major penalties. Regulation-11 speaks of action on the enquiry report. The Disciplinary authority if it is got itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 10. The Disciplinary Authority, if it disagrees with the findings of the inquiring authority on any article of charge, shall have to record its reasons for such disagreement and records its own findings on such charge, if the evidence on record is sufficient for the purpose. Sub-clause (3) of Clause-11 of the Regulation however contemplates that the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Regulation 8 should be imposed on the employee, it shall notwithstanding anything contained in Regulation-12 make an order imposing penalty, whereas under Sub-clause (4), if the disciplinary authority having regard to its finding on all or any of the articles of charges is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Regulation-8 should be imposed on the employee, it shall make an order imposing such penalty and in such case, it shall not be necessary to give the employee an opportunity of making representation of the penalty proposed to be imposed on the basis of the evidence adduced during the inquiry. Under the proviso to Sub-clause (4) no such order shall be made except with the previous approval of the Central Government if it concerns an employee holding the post referred to in Clause (a) of Sub- section (1) of Section 24 of the Major Port Trust Act, 1963. Regulation 12 prescribes procedure for imposing minor penalty. Contentions have been raised by the learned counsel for the petitioner that in view of Clause (3) of Regulation-11 and Regulation-12 read with the schedule under Regulation-9, the disciplinary authority to impose punishment of minor penalty being the Chairman and Regulation having not contemplated any consultation with the Central Government, the action of the Chairman seeking approval/ consultation with the Central Government which is also the appellate authority against the penalties imposed by the Disciplinary authority, such action is contrary to the Regulation has to be quashed.

The schedule made under Regulation-9 prescribes the disciplinary 12/3/04 2:14SAT12/3/04 2:14SAT12/3/04 2:14SATauthority in respect of several services. Item-I of the schedule which is relevant for our purpose may be quoted hereunder for clarity :

"SCHEDULE (See Regulations 2(b), 2(f), 6,9 and 20) Description Appointing Authority Appellate of post Authority competent to Authority impose penalties and penalties which it may impose (with reference to Clauses (i) to (ix)in Regulation 8 Authority Penalties (1) (2) (3) (4) (5) 1. Posts (a)Chairman (i)to (iv) Central Govt. covered by Central (b)Chairman (v) to (ix) Central govt. clause (a) Government with prior of Sub-section after consul- approval of (1) of Section tation with the central 24 of the Chairman Government. Major Port Trusts Act 1963

Regulation -11 Clause (3) may be quoted hereunder :

"If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Regulation 8 should be imposed on the employee, it shall notwithstanding anything contained in Regulation 12 make an order imposing such penalty."

The procedure for imposing minor penalties also have been prescribed in Regulation-12. Clause 12 (1) of Regulation may be quoted hereunder :

"12. Procedure for imposing minor penalties -

(1) No order imposing any of the penalties specified in Clauses

(i) to (iv) of Regulation 8 shall be passed except after-

(a) informing in writing the employees of the proposal to take action against him and of the allegations on which it is proposed to be taken and giving him an opportunity to make any representation may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in Sub- regulations (3) to (23) of Regulation 10, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;

(c) taking the representation, if any, submitted by the employee under Clause (a) and the record of inquiry, if any, held under Clause (b) into consideration;

(d) recording a finding on each imputation of misconduct or misbehaviour; and

(e) consulting the Central Government where such consultation is necessary."

On a reading of the aforesaid provisions of law, it is manifestly clear that the Chairman is the Disciplinary Authority under Regulation 9 read with the schedule thereto in respect of the petitioner, competent to impose any of the minor penalties contemplated under Clause (i) to (iv) of Regulation 8 and the Central Government is the Appellate Authority to deal with the appeals as against such penalty, The Disciplinary Authority in the event forms an opinion on the basis of the findings recorded that the employee should be imposed or visited with a minor penalty only, then it can impose such minor penalty, as contemplated under Clause (3) of Regulation 11 and it is not necessary to comply with the requirements contemplated under Regulation 12 of the Regulations, 1967. The feter imposed by Regulation 12(l)(e), requiring consultation with the Central Government is not attracted, in such case, where the competent authority is of opinion to impose a minor penalty on the delinquent officer. Clause (e) of Regulation 12(1) otherwise also clearly stipulates that consulting the Central Government is required where such consultation is necessary which obviously means where consultation is necessary under any of the Regulations. The Chairman of the Paradip Port Trust thus, being the competent authority to impose a minor penalty in a disciplinary proceeding against Secretary of the Trust like the petitioner and the Central Government, the Appellate Authority as against such punishment, there cannot be any manner of doubt that it is not required by the Disciplinary Authority, the Chairman to have consultation with the Central Government before imposing such penalty. The action of the Chairman, the Disciplinary Authority of the petitioner in forwarding his opinion to the Central Government for consultation/approval of his decision to impose a minor penalty therefore was unwarranted and misconceived and hence not sustainable in law and liable to be quashed. The contention of sri Parija, learned counsel for the opp. party-Paradip Port Trust that in view of the first proviso to Clause (iv) of Regulation 11, no order imposing minor penalty could be passed except with the previous approval of the Central Government has to be rejected outright being misconceived in law. The proviso referred to and relied upon by the learned counsel, relates to the provisions contemplated under Clause (iv) and not in respect of Clause (iii) of Regulation-11. Clause (iv) relates to major penalty specified under Clauses (v) to (ix) of Regulation-8 and, therefore, rightly perhaps the previous approval of the Central Government is necessary. Such a stipulation of obtaining the prior approval/consultation of the Central Government could otherwise not have been contemplated since the Central Government is the Appellate Authority in respect of minor penalties imposed on an Officer of the rank of the petitioner. If the prior approval/consultation with the Central Government is to be inferred and construed from the provisions of the statute, it would mean that the Disciplinary Authority has to seek prior approval of the appellate authority in respect of any minor penalty to be imposed on the erring Officer, which otherwise would be impermissible and in that event, filing of an appeal or the right to appeal before the Central Government granted under the Service Regulation would be a futile exercise by the aggrieved appellant, since the impugned order under appeal would have a prior concurrence/approval of the appellate authority itself, which cannot be the intention of the Service Regulation..

In Madhusudan Sahu v. Chairman, Paradip Port Trust and Ors.; O.J.C. No. 1844 of 1983. decided on 27.4.1990 which was filed by the present petitioner himself, considering the similar contention, this Court held that the law did not require the disciplinary authority to seek approval of the Central Government inasmuch as in absence of provision seeking approval or consultation with the Central Government which is not required under the Regulation would amount to surrendering the power of the competent authority to the Central Government which was uncalled for.

In view of the specific provision of law as discussed earlier and the decision of this Court supra, there cannot be any manner of doubt that the Chairman of the Paradip Port Trust was the competent authority to impose any minor penalty and it was not required of him to either get the approval or consultation with the Central Government. In such view of the matter the action of the Chairman, Paradip Port Trust in seeking approval of the Central Government was uncalled for and, therefore, cannot be sustained. Consequently, the direction of the Central Government by order dated 24.4.2000 in Annexure-5 series to start the de novo disciplinary proceeding would be illegal and without jurisdiction. The action of the opp. parties in starting a de novo disciplinary proceeding and directing the petitioner to show cause as in Annexure-5 series and the consequential order thereon has to be quashed. Ordered accordingly.

The petitioner has sought for a direction to the opp. parties for settlement of his retiral benefits at an early date. In view of what has been held, it is mete and proper that the opp. parties should settle up the retiral benefits of the petitioner as are available to him under law. The opp. party No. 1, is accordingly directed to consider and settle the retirement benefits and the other entitlements, if any, as are available to the petitioner under law, within a period of 3 (three) months from the date of receipt of this order.

The writ petition is thus allowed to the extent indicated, but in the circumstances there will be no order as to cost.

Petition allowed to the extent indicated.