Inder Pal Singh vs Indian Telephone Industries Ltd. and Others

Pankaj Mithal, J.—Heard Sri Sameer Sharma, learned Counsel for the petitioner and Sri Gopal Mishra, learned Counsel appearing for the respondent Nos. 1, 2 and 3.

The petitioner and his wife are both, employees of Indian Telephone Industries Ltd. (in short I.T.I.) and are posted at its Naini Unit, Allahabad. The petitioner in a departmental inquiry has been served with a charge-sheet dated 16.6.2007 and an additional charge-sheet dated 15.9.2007. He has been dismissed vide order dated 9.10.2007 passed by the General Manager, I.T.I. Nauru, Allahabad as communicated to him by the Chief Manager, H.R. (P & S) I.T.L Naini, Allahabad.

In the petition as originally filed, petitioner has only challenged the order dismissing him from service. The petition was entertained by the Court, as prima facie the Court was satisfied that the dismissal order was passed without completing the departmental inquiry against the petitioner in utter disregard to the principles of natural justice and an interim order was passed on 25.1.2008 staying the operation of the dismissal order till the next date of listing and the parties were permitted to exchange the pleadings.

Subsequently, the petitioner filed an application for modification of the interim order dated 25.1.2008 and another application for staying his eviction from the house allotted to him being an employee of the I.T.I. Thereafter, an application for amendment of the writ petition was also filed seeking to add two more prayers to the writ petition. First one being for the quashing of the two charge-sheets and the second for the quashing of the subsequent orders dated 11 2 2008 13.2.2008 and 16.2.2008 by one which departmental proceedings were re-initiated and by the other two the petitioner''s allotment of the house was cancelled and he was ordered to vacate the same.

Sri Gopal Mishra, learned Counsel for the contesting respondents "was permitted to file reply to the above applications and the counter affidavit to the writ petition. He has filed two counter affidavits, one to the writ petition including the amendment application and another to the modification and the stay application.

Having heard the parties on the amendment application and on the merits of the petition as if the amendment as prayed for stands allowed, I take up the amendment application first for consideration. The petitioner in the writ petition has made necessary factual averments attacking the charge-sheets to the effect that they are without jurisdiction but has failed to make a specific prayer for the quashing of the charge-sheets. He has moved an application for amendment before the filing of the counter affidavit to the petition by contesting respondents. In the counter affidavit filed on behalf of the I.T.I. nothing has been said in opposition to the aforesaid amendment prayed for, though it was vehemently opposed by Sri. Gopal Mishra, learned Counsel for the I.T.I. The petition has not been admitted and moreover permission to challenge the charge-sheets would not in any way affect and alter the nature of the dispute involved in the writ petition. Therefore, in view of the arguments advanced by both the parties on merits of the petition as a whole, I consider it appropriate in the interest of justice to allow the amendment application to avoid multiplicity of the proceedings. Accordingly, the application for amendment stands allowed.

Now as regards the challenge to the order of dismissal is concerned, it is admitted on record that the said order has been withdrawn by an order dated 11.2.2008 and the I.T.I. has decided to proceed with the departmental inquiry on the basis of the aforesaid charge-sheets afresh. In view of the above position, the prayer of the petitioner for the quashing of the order of dismissal dated 9.10.2007 does not survive any longer and to that effect the petition has been rendered infructuous.

The second aspect is about the validity of two charge-sheets. Learned Counsel for the petitioner has basically raised two points to assail the charge-sheets. First, the charge-sheets have not been issued by the competent authority and as such are without jurisdiction. Secondly, they have been issued with malice and a bias mind.

It is a settled legal position that normally a charge-sheet cannot be subjected to challenge independently and therefore, ordinarily Court do not interfere with the charge-sheets. In Union of India (UOI) and Others Vs. Upendra Singh, it has been ruled by the Apex Court that the Tribunal or Court ought not to interfere with the disciplinary proceedings at the interlocutory stage i.e. at the stage of charge-sheet as they have no jurisdiction to go into the correctness or truthness of the charges in exercise of powers of judicial review which is not an appeal from any decision, unless the charges levelled do not constitute misconduct or have been framed contrary to law.

In the instant case, the attack on the charge-sheets is not on any of the above grounds but is on the grounds of jurisdiction and mala fides.

Admittedly, in the Naini Unit of the I.T.I. previously Executive Director used to be the highest authority and presently the General Manager is the head and there is no Executive Director. Thus, the General Manager has taken the position of the Executive Director. The Executive Director by office order dated 31.1.1998 has authorised and delegated the disciplinary powers vested in him under clause 1 of sub-clause 3 read with clause 14 and clause 15 of the Standing Order to take disciplinary action including the power to suspend/transfer the employee pending an inquiry in respect of any misconduct committed by an employee. It is by virtue of this delegation that the Chief Manager, H.R. (P & S) has issued the impugned charge-sheet to the petitioner.

The submission of Sri Sameer Sharma, learned Counsel for the petitioner is that the said charge-sheets have been issued by the Chief Manager, H.R. (P & S) and one of it refers to having obtained approval of the competent authority. Therefore, it indicates that the Chief Manager, H.R. (P & S) is not the competent authority and the" power actually vests in some other higher person whose designation has not been disclosed. It is true that the charge-sheet dated 16.6.2007 states that it is being issued with the approval of tike competent authority but it does not in any way mean that the Chief Manager, H.R. (P & S) is not authorised to issue the same. Merely for the reason that the Chief Manager in issuing the said charge-sheet has taken the approval of the higher authority presumably the General Manager, it does not vitiate the charge-sheet. In view of the above referred approval of the higher authority the argument that the charge-sheet has not been issued by the competent authority also has no legs to stand.

As far as mala fidies are concerned there are no specific allegations of mala fidies against the General Manager, though he has also been roped into by the petitioner by making allegations of general nature. The allegation; of mala fides depend on proof of facts and such allegations can be established more properly by allowing patties to adduce evidence which is not a very proper exercise in discharge of writ jurisdiction.

This apart, the petitioner appears to have made allegations of mala fides against each and every officer of the I.T.L Thus, leaving none to conduct an inquiry against him. Therefore, in the above circumstances, I am not inclined to examine such allegations of mala fides at this stage in my discretionary jurisdiction.

There is another reason for me in refusing to examine the allegations of mala fidies as raised on behalf of the petitioner at this stage. Basically such allegations are against the authority issuing the charge-sheet and officers subordinate to the General Manager.; These allegations would pale into insignificance once the final decision in the matter is taken by the appointing/disciplinary authority. The malice and the bias of the appointing/disciplinary authority in passing the order of punishment or otherwise can only be raised after such an order has been passed and not at the present moment.

In view of the aforesaid facts and circumstances, I am of the considered opinion that the challenge to the charge-sheet on the ground of jurisdiction cannot be accepted and on the allegations of mala fides are left open to be considered by the appropriate forum at the more appropriate stage.

Now the question remains of petitioner''s right to retain the official accommodation allotted to him. There is no dispute that the petitioner has legally been allotted an official accommodation and he cannot be thrown out from the same without taking recourse to the procedure prescribed. The petitioner''s allotment is said to have been cancelled by an order 10.10.2007 solely on the basis of the order of dismissal dated 9.10.2007. The said dismissal order having been cancelled/withdrawn the order cancelling the allotment of the petitioner based on it automatically falls to the ground. The basis for cancellation of allotment itself having vanished, the order dated 10.10.2007 cannot be allowed to stand.

It has been brought on record that by an order dated. 13.2.2008 the petitioner has been called upon to immediately vacate the house allotted to him on the basis of the order dated 10.10.2007 cancelling the petitioner''s allotment. Since the order dated l0.10.2007 has already been held to be unsustainable, the notice/order dated 13.2.2008 to vacate the house cannot also be sustained in law.

Apart from the above two orders, there is no other order passed by any competent authority cancelling the allotment of the petitioner''s house independently or on any fresh ground.

The notice/order dated 16.2.2008 which is again for vacating the official accommodation, it may be noted that it is in the name of the petitioner''s wife who is not a petitioner in this writ petition and as such the prayer for quashing of the said order/notice at the behest of the petitioner cannot be entertained. Moreover, it has come on record that the petitioner''s wife has challenged the same by filing a civil suit, which is said to be pending.

In view of the aforesaid facts and circumstances, the petition is partly allowed and stand decided. The orders dated 10.10.2007, 13.2.2008 are hereby quashed and a writ of certiorari is issued to this effect with liberty to the respondents No. 1, 2 and 3 to take appropriate action with regard to cancellation of allotment of the house of the petitioner and his eviction in accordance with law and to proceed with the departmental inquiry expeditiously.

However, I am unable to refrain myself without referring to the facts in expressing my astonishment at the behaviour of the petitioner as well as the officers of the I.T.I. This type of behaviour leading to petty infighting appears to have ruined the progress of such public sector undertakings and ought to be avoided on any cost.