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Judgment
Heard Mr. A.C. Bhowmik, learned senior counsel assisted by Mr. D. Sarkar, learned counsel appearing for the petitioner and Mr. S. Deb, learned senior counsel assisted by Mr. A.L. Saha, learned counsel appearing for the respondents.
This is the second round of litigation by the petitioner. The petitioner filed another writ petition being WP(C)No.657 of 2017 as he was denied the subsistence allowance after he was placed under suspension by the order dated 27.06.2017. The said writ petition was disposed of, by directing the respondents to release the subsistence allowance by a date as stipulated in the judgment and order dated 24.08.2017.
There is no dispute that when the petitioner was working as the Assistant Superintendent (Chemistry), a disciplinary proceeding was initiated against him on the following charges by the memorandum under No.AGT/HR-ER/D & A/SD1/2017 dated 25.09.2017 [Annexure-B to the reply filed by the respondents] :
"1. He is habitually irregular in attendance, wilfully and habitually absents himself from duty without leave and absents himself from his place of work after signing the attendance register whereby he remains absent from his appointed place of work without permission or sufficient cause. Latest example of his unauthorised absence is from 02.01.2017 to 30.04.2017.
He has neglected his duty and on various occasions, refused to perform his official assignments/jobs and thereby has disobeyed the lawful orders of his superiors and shown insubordination.
He has exhibited threatening, intimidating behaviour and has abused his superiors on being asked to perform his duty or when asked to submit leave applications to regularise his leave. He has also exhibited similar threatening, intimidating behaviour and has abused other regular/contractual employees of ONGC by using insolent, impertinent and unparliamentarily language." [Emphasis as those charges will be referred specially later on]
According to the disciplinary authority, the petitioner had been irregular in attending duty and absenting habitually without leave and thus demonstrated dereliction in discharge of his duties. Even he had failed to obey lawful orders of his superiors, behaved in intimidating manner and abused the fellow employees. Thus, he had acted in the manner subversive of discipline and good conduct. The petitioner had failed to maintain devotion to the duty and absolute integrity as he had acted in a manner prejudicial to the interest of the company [the ONGC Limited], thus violated Clause-4(1)(a),(b) & (c), 4(2)(c), 5(2) of ONGC CDA Rules, 1994 (as amended lastly on 2011) and hence, committed misconduct under rule 3(j) read with clauses 1,5,9(11), 16, 17, 30, 32 & 37 of Schedule II of ONGC CDA Rules, 1994 (as amended lastly on 2011). The petitioner denied those charges and stated that she had been unfairly treated by the respondents for reason unknown to him and he had become grossly frustrated by such treatment. The petitioner has contended that he had received Performance Related Pay (PRP) after verification of "excellent ACRs." So his efficiency was never questioned by the respondents.
On the basis of the charges which are little more dilated below, an inquiry was instituted in the face of the petitioner's denial of those charges :
Article-I
a) Habitually irregular inattendance,
b) Willfully and habitually absenting himself from duty without leave and
c) Absenting himself from his place of work after signing the attendance register.
Article-II
Neglected his duty on various occasions, refused to perform his official assignments and thereby disobeyed the lawful orders of his superiors demonstrating insubordination. The petitioner was given warning/caution for such behavior.
Article-III
Exhibited threat intimidation and abused his superiors for asking him to perform his duty or to observe the official formality.
The petitioner has admitted that he had submitted the written statement of defence on 27.10.2017. The inquiry officer, on completion of inquiry, submitted the inquiry report on 16.07.2018 holding the charges against the petitioner as substantiated. In accordance with Rule 37(2) of the ONGC CDA Rules, 1994 (as amended lastly on 2011), a copy of the said inquiry report was furnished to the petitioner requiring him to submit his representation, if any, within ten days from the date of receipt of the memorandum dated 17.08.2018 [Annexure-3 to the writ petition] with which the inquiry report was enclosed. Despite the said opportunity afforded, the petitioner failed to submit any representation for "Family disturbance and for his illness (acute diabetes and hypertension)" as claimed by him. The disciplinary authority by the order under No. AGT/HR-ER/D & A/SD-78138/2017 dated 09.10.2018 [Annexure-4 to the writ petition] imposed penalty of removal from service which shall not, however, be disqualification for future employment under the government or the corporation/company owned and controlled by the government with immediate effect. The period of suspension has been declared to be treated as dies-non. The petitioner did not prefer any appeal which is provided by Rule 45 of ONGC CDA Rules, 1994 (as amended lastly on 2011) against the said order of removal from service.
By means of this writ petition, the petitioner has raised two fundamental objections to question the said order of removal viz. [a] The evidence as led in support of the charge was not properly scrutinized by the disciplinary authority while accepting the inquiry report. [b] Further, the petitioner at the relevant point of time was seriously stressed by family problems. Even he was referred to consultant Psychiatrist. Thus, the petitioner had contended that he was persuaded by the circumstances in absenting from the duty and those were for the reasons noted, not willful.
Mr. A.C. Bhowmik, learned senior counsel appearing for the petitioner has submitted that the order of removal is grossly disproportionate. He has submitted that some old warnings were considered for imposing the major penalty of removal on the petitioner. According to Mr. Bhowmik, learned senior counsel the major penalties as prescribed in Rule 34(X and XI) can only be imposed if against any officer the charge of possession of assets disproportionate to known source of income or the charge of acceptance from any person of any gratification, other than legal remuneration as a motive or reward for doing or forbearing to do any official act is established, otherwise not.
Mr. Bhowmik, learned senior counsel has further submitted that the said order of penalty as challenged in this writ petition has been prompted by unfairness. Mr. Bhowmik, learned senior has therefore urged this court to set aside the order of removal dated 09.10.2018 and reinstate the petitioner with all service benefits.
Mr. S. Deb, learned senior counsel appearing for the respondents has robustly submitted that the scope of judicial review of the order passed by the disciplinary authority after due inquiry is very limited, generally is available on two grounds viz. if the order of penalty is passed without evidence or denying the reasonable opportunity of hearing. On any of those grounds the court can invoke its power of judicial review. Mr. Deb, learned senior counsel has at the outset submitted that no such ground has been propagated in the writ petition, even the inquiry report is well reasoned on due canonical appreciation of the evidence. As the petitioner has not filed any representation, no objection can be raised against appreciation of the evidence, particularly when the petitioner had hardly attended the inquiry hearing to put forward his defence. The petitioner has submitted his written statement on 27.10.2017 and thereafter he did not care to participate in the proceedings except in two hearings. On the basis of the order sheets of the inquiry proceeding, the respondents have prepared a table showing the petitioner's participation and that assertion has not been challenged by the petitioner. Competence of the disciplinary authority to impose penalty has not been challenged.
Mr. Deb, learned senior counsel has submitted that without filing the appeal, the petitioner cannot be allowed to raise any objection on appreciation of evidence. While exercising the power of judicial review this court may be loath in re-appreciating the evidence as that would amount to acquiring the jurisdiction of the appellate authority. The subjective allegation as made by the petitioner does not have any bearing over the disciplinary proceeding inasmuch as the respondents have afforded all opportunities to the petitioner for defending the charges. The respondents have denied that the impugned order has surfaced from any infirmity or malice.
To buttress his contention, Mr. Deb, learned senior counsel has relied on Union of India and Another versus G. Ganayutham reported in (1997) 7 SCC 463 where the apex court had occasion to observe that the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury :(1947)2 All ER 680 and CCSU : (1984) 3 All ER 935 principles to test the validity of executive action or administrative action taken in exercise of statutory powers, the courts and tribunals in our country can only go into the matter as a secondary reviewing court to find out if the executive or the administrator in their primary roles had arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. Under those two tests, three elements namely illegality, irrationality and procedural impropriety can be made the foundation of challenge. The element of proportionality has not acquired the similar status as yet, even though, in Ranjit Thakur versus Union of India reported in (1987) 4 SCC 611, the apex court has observed that the doctrine of proportionality is part of the concept of the judicial review when the order of sentence (the penalty) is outrageous or in defiance of logic.
Reliance has also been placed on Union of India versus R. Bhusal reported in (2006) 6 SCC 36 where the apex court has observed that the penalty cannot be remoulded ordinarily in the course of the judicial review on principle of proportionality.
In Prestige Lights Limited versus State Bank of India reported in (2007) 8 SCC 449 the apex court has enunciated the law that in absence of pleading or representation in the proceeding by way of afterthought new ground cannot be allowed to be taken.
Mr. Deb, learned senior counsel has placed his reliance on Om Kumar and Others versus Union of India reported in (2001) 2 SCC 386 to refer the following passage :
"26. Lord Greene said in 1948 in the Wednesbury case : (1948) 1 KB 223 that when an statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union(CCSU) versus Minister of Civil Service : (1984) 3 All ER 935 summarized the principles of judicial review of administrative action as based upon on or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility." [Emphasis added]
Having appreciated the submissions made by the counsel for the parties, this court is constrained to observed that the interpretation as proposed to be accepted by this court that the penalty of the removal or dismissal cannot be imposed except in cases of possession of disproportionate property or gratification is contrary to the first proviso below Rule 34 of ONGC CDA Rules, 1994 (as amended lastly on 2011). What has been provided by the said proviso is that in every case where the charge of possession of assets disproportionate to the known source of income or the charge of acceptance from any persons of any gratification other than legal remuneration, as a motive or reward for doing or forbearing an official act to establish, mandatorily the penalty of removal or dismissal shall be imposed [see the second proviso below Rule 34]. Even in those cases also for special reasons to be recorded in writing other penalty may be imposed. It does not forbear imposing the penalty of removal or dismissal in the cases established on any other serious mis-conduct.
What has been projected by the respondents in respect of the scope of judicial review this court does not have any reservation in accepting the proposition of law as noted above.
While considering the inquiry report [part of Annexure-4 to the writ petition] this court did not find that the adequate materials were disclosed to the petitioner at the time of forming articles of charge 2 and 3 [as emphasized] even though some witnesses have come to prove the abusive conduct of the petitioner, but those conducts having not specified or not disclosed in the memorandum of charge enabling the petitioner to represent against it cannot be made basis of any disciplinary action. Those charges are vague, unspecified and instrumental to put the delinquent officer in quandary. If the charge is formed in that manner those cannot be sustained on the ground of vagueness and incomprehensiveness. This court therefore by brushing aside the technical objection of maintainability for not filing the appeal, despite the specific rules accommodating the adequate provision for filing the appeal, would interfere the charges (2) and (3) in the memorandum dated 25.09.2017 [Annexure-B to the reply filed by the respondents]. Accordingly, the articles of charges (2) and (3) are set aside and quashed. But this court finds sufficient materials to hold the article of charge (1) on absenteeism or neglecting the duties well substantiated. But the penalty on that charge appears to be shockingly disproportionate. Hence, the order of penalty is interfered with and set aside. The disciplinary authority shall pass the fresh order of penalty after taking the proportionality vis-a-vis the mis-conduct in consideration. At the time of passing the order of penalty in terms of this direction the authority shall consider the long twenty five years of service as rendered by the petitioner. It is made abundantly clear that the disciplinary authority may impose any penalty lesser than the penalty of removal or dismissal. Such order shall invariably be based within a period of two months from the day of receipt of a copy of this order in accordance with the rules, subject to what has been observed as above.
Having observed thus, the writ petition stands allowed to the extent as indicated above.