J.P. Tewatia vs HSEB and Another

R.P. Nagrath, J.—The petitioner has invoked the jurisdiction of this Court under Articles 226 /227 of the Constitution of India, seeking to quash the order dated 14.01.1991 (Annexure P-8) of his removal from service and the order dated 16.08.1993 (Annexure P-11) by which his appeal was rejected by the respondent-Board. The petitioner was working as Junior Engineer (Field). He was suspended by Superintending Engineer (Operations) on the spot on 10.08.1981, and thereafter served with the charge-sheet dated 20.01.1982 (Annexure P-1) and supplementary charge-sheet dated 31.08.1982 (Annexure P-3). The first charge-sheet contained 9 articles of charges whereas the second dated 31.08.1982 comprised of 12 charges.

It was contended that the petitioner immediately submitted reply to both the charge-sheets but no further action was taken for about 5 years. Rather the petitioner was reinstated in service on 23.04.1983 (pending enquiry) by considering his reply to the charge-sheets. The petitioner could, thus, reasonably presume that his explanation was accepted and charges against him have been withdrawn. But suddenly the matter was revived and the enquiry officer appointed. It is urged that this happened because the S.E. (Operations), Hisar by then had taken over as Chief Engineer (Operations) at Delhi and thus, became the Disciplinary Authority of the petitioner.

I am of the firm view that mere delay in conducting the departmental proceedings may not be a ground by itself to attack the departmental action. The petitioner does not dispute that his reinstatement in service on 23.04.1983 as Junior Engineer (Field) was subject to pending departmental enquiry. It is an admitted fact that S.E. (Operations) was appointed the enquiry officer vide letter dated 20.08.1987. It was held in the enquiry report dated 12.08.1988 (Annexure P-5) on many of the charges that the petitioner and his SDO were hand-in glove with each other. It is not the version of petitioner that any order was passed by the disciplinary authority exonerating him of the charges on the basis of reply furnished by him. In the absence of any prejudice to the petitioner on account of delay, in commencing the enquiry proceedings, this contention would not carry force. The enquiry officer was Superintending Engineer (Operations) and he gave the enquiry report dated 12.08.1988 (Annexure P-5) finding many of the articles of charges to be proved. The petitioner was served with a show cause noticed (Annexure P-6) and he submitted reply to the show cause notice (Annexure P-7).

The petitioner has basically challenged the departmental action on the grounds inter-alia:-

(i) That the S.E. (Operations) who conducted spot inspection and became Chief Engineer later on influenced the punishing authority in passing of the impugned order (Annexure P-8).

(ii) The Chief Engineer (Operations), who passed the order of punishment became Chairman of the Board, when appeal of the petitioner was taken up. (Note: The respondents'' version is that the Chairman of the Board did not participate in the proceedings when the item relating to the appeal preferred by the petitioner was taken up.) and;

(iii) That order passed by the Board in appeal is non-speaking and thus violates the mandatory requirement of law and the settled principles on the subject.

The above challenge of the petitioner deserves to be accepted for the reasons to be stated hereinafter. The petitioner preferred appeal (Annexure P-10) against the punishment order before Member Technical of the Board. The petitioner raised inter-alia the following grounds in his appeal:-

(i) The findings of the enquiry officer only prove procedural irregularities, which cannot lead to termination of service.

(ii) The punishment order was passed due to personal prejudices and vendetta having being let-loose by the Chief Engineer (Operations) South HSEB Delhi.

(iii) The show cause notice was illegally and unauthorizedly served upon the petitioner by the Chief Engineer (Operations) South Delhi under Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules, 1952 and Regulation 10 of HSEB (Punishment & Appeal) Regulation, 1980, which only deal with the imposition of minor penalty.

(iv) That charge-sheet served upon the petitioner related to the period when the HSEB envisaged a crash programme for installation of connections in the years 1980-81 and the work of the petitioner was appreciated by all.

It is admitted that the appeal in fact lay before the Board. The Member Technical called for the comments of the Chief Engineer (Operations) and then examined the matter threadbare, heard the petitioner in person and passed the following order:-

(i) The office order of CE (O) Delhi No. 6/LS-1280 dated 14.01.1991 is hereby cancelled and the official is allowed to join the duty as JE/Field for which the orders will be issued by CE (OP) Hisar immediately. CE (O) Hisar will take care that Sh. Tewatia, JE/Field is posted in an office not having public dealings such as planning, Thermal Design & R & T office at Panclikula and he shall stay there for a period of atleast 3 years.

(ii) I agree to the plea made by the official that the period of over two years i.e., the date from which he was relieved (reported to be 2.2.91) to the date he would join the duty as JE/Field be considered as non duty period without pay for all purposes. This period will not count for increment or period qualifying as service for the purpose of working out pension etc. Forfeiture of this period is considered as adequate punishment. The copy of the appeal (CP-30) be placed in his personal file, recorded in his service book and kept under custody in the office of Additional Secretary, HSEB, Panchkula and CE (O) Zone-III, Hisar and concerned CE where he is posted for reference and record.

This report of Member Technical was placed before the Board vide agenda (Annexure R-2) and the Board took the following decision (Annexure R-1):-

The subject cited item of the Agenda was discussed by the Board in its meeting held on 28.07.1993 and decided as under:-

Appeal dated 05.02.1991 preferred by Sh. J.P. Tewatia, J.E. (Field) against the punishment of removal from the Board''s service was inadvertently put up to the M.T. (OP) for decision who passed his order on the file in this regard. Before the order could be issued it came to the notice of the office that Appeal against the orders of removal/dismissal from the service of the Board lies before the Board. Accordingly the appeal was put up to the Board for final decision. Board considered the appeal in the light of the facts contained in the memorandum and submission made by the officer. After detailed deliberations, Board did not find any merit in the appeal and rejected the same. The officer be informed accordingly.

The petitioner was informed about the rejection of his appeal vide letter dated 16.08.1993 (Annexure P-11) without disclosing the reasons.

The above record clearly shows that the appellate authority turned down the petitioner''s appeal without giving reasons or discussing the relevant factors, simply on one line statement that the decision is being made with due deliberations.

Various reasons set out by Member Technical in his report for accepting the petitioner''s appeal have not been dealt with at all. Even it is not suggested on what basis the said report was distinguished or brushed aside. I would find that there is clear breach of the settled principles on the subject as laid down by the Apex Court. Ram Chander Vs. Union of India (UOI) and Others, was a case relating to a railway employee, who was dismissed from service. Appeal was made to the Railway Board under Rule 22 of the Railway Servants Rules. Rule 22(2) of the Railway Servants Rules provided as under:-

22.2 In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider:-

(a) whether the procedure laid down in these rules has been complied with, and if not, whether such noncompliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice.

(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and

(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders-

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.

The Hon''ble Supreme Court in Ram Chander''s case (supra) laid emphasis on the fact that Rule 22.2 of Railway Servant Rules in express terms requires the Railway Board to record its Findings on these aspects stated in the Rules. It was found that the order passed by the Board in appeal was just a mechanical reproduction of the phraseology of Rule 22(2) of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshall the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. There was also no indication that he Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single lapse in a span of 24 years of service. Dismissal or removal from service is a matter of grave concern to a civil servant who after such a long period of service may not deserve such a harsh punishment. Similar were the requirements under Rule 27(2) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965.

The Hon''ble Supreme Court also held that after the constitutional Change brought about in 42 amendment in Article 311 of the Constitution, it seems that only stage at which now a government servant can have valuable right is by enforcing his remedy by way of departmental appeal or revision or by judicial review. Such being the legal position it is of utmost importance after the Forty-Second Amendment as interpreted by the majority in Tulsiram Patel''s case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. It has been further emphasized that reasoned decisions by tribunals, such as the Railway Board in the said case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the Authority regarding the final orders that may be passed on his appeal. Considerations of fair play and justice also require that such a personal hearing should be given. The order passed in appeal by the Board was set aside and Railway Board was directed to hear and dispose of the appeal after affording a personal hearing to the appellant on merits by a reasoned order in conformity with the requirements of Rule 22(2) of the Railway Servants (Discipline, and Appeal) Rules, 1968, as expeditiously as possible, and in any event, not later than four months.

It may be noted that the Haryana State Electricity Board Employees (Punishment and Appeal) Regulations, 1990 (hereinafter referred to as "1990 Regulations") had already come into force when the punishment order against the petitioner was passed and therefore, the appeal lay under these Regulations. Rule 18 of 1990 Regulations relates to repeal and saving and sub-rule (4) thereof says that as from the commencement of these regulations any appeal or application for revision against any orders made before such commencement, shall be preferred or made under these regulations and not the regulations so repealed. Rule 11 of these Regulations deal with the orders that may be passed by the appellate authority and reads as under:-

The appellate authority shall, while disposing of the appeal, consider the following:-

(a) Whether the facts on which the order was based, have been established;

(b) Whether the facts established afford sufficient ground for taking action; and

(c) Whether the penalty is excessive, adequate or inadequate and shall thereafter pass such order as it thinks proper;

The appellate authority in this case proceeded to dispose of the appeal totally in ignorance of the above provisions.

Exactly similar were the requirements of Rule 11 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952. Rule 21 of the Haryana State Electricity Board Employees (Punishment and Appeal) Regulations, 1980, relating to the orders that may be passed by the appellate authority, under which the petitioner was proceeded against reads as under:-

(1) xx xx xx xx xx

(2) In the case of an appeal against an order imposing any of the penalties specified in Regulation-5 or enhancing any penalty imposed under the said Regulation, the appellate authority shall consider:-

(a) Whether the procedure laid down in these regulations has been complied with, and if not, whether such non-compliance has resulted in the violation of any provision of the constitution of India or in the failure of justice;

(b) whether the findings of the punishing authority are warranted by the evidence on the record;

(c) whether the facts on which the order was based, have been established.

(d) whether the facts established afford sufficient ground for taking action; and

(e) whether the penalty or the enhanced penalty imposed is excessive, adequate, inadequate or severe;

And pass orders:-

(i) Confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may be deem fit in the circumstances of the case.

xx xx xx xx xx

The principle laid down by the Hon''ble Supreme Court in Ram Chander''s case (supra) squarely applies to the facts of this case and no judgment taking a contrary view has been referred for the respondents. The petitioner is rather on a better footing as the Board''s decision even does not even reproduce various requirements for disposal of appeals to justify the application of mind. There is in fact not even a semblance of compliance of the above rules. Therefore, the petition is partly accepted, setting aside the order passed in appeal by the Board and the respondents are directed to hear and dispose of the appeal of the petitioner on merits by a reasoned order in conformity with law and the requirement of Regulation 11 of 1990 Regulations of the Board, as early as possible, and in any event, not later than four months from today.

The petition is allowed in the above terms.