Mr. Mahmood Kasim Sahib vs Indian Railway Construction Co. Ltd. and Another

Valmiki J Mehta, J.—Petitioner, who was an employee of the respondent no. 1/Indian Railway Construction Co. Ltd. (IRCON), by this writ petition, prays for three reliefs. First is for setting aside of the order of the disciplinary authority dated 15.5.1995 by which petitioner was imposed the penalty of reduction of pay by three stages. The second relief which is prayed for setting aside of the order of the disciplinary authority dated 27.11.1998 imposing the punishment of removal from services upon the petitioner. The third relief which is claimed is that since petitioner has allegedly received less pay, the difference being unpaid amount of Iraqi Dinar as payable from 1984 to 1986, he be paid the said amounts. So far as the first relief of challenge to the order of the disciplinary authority dated 15.5.1995 is concerned, the writ petition is liable to be dismissed on the ground of delay and laches inasmuch as the petition has been filed much later only on 4.7.2000 i.e. after about five years from passing of the order dated 15.5.1995 of the disciplinary authority. No doubt, Limitation Act, 1963 does not apply to a writ petition, however, the limitation period provided thereunder is a good guide to decide the applicability of the doctrine of delay and laches. There is no reason given by the petitioner for not challenging the order of the disciplinary authority dated 15.5.1995 till filing of this writ petition in July 2000. Since the ordinary period of limitations is three years, the present writ petition is filed in July 2000 for challenging the order of the disciplinary authority dated 15.5.1995 i.e. after about five years from passing of the order is liable to be and is accordingly dismissed on the ground of delay and laches.

The third relief prayed for is also liable to be rejected on account of delay and laches because for an amount which is claimed to be due for the period from 1984 to 1986, even assuming for the sake of argument that it was payable, the same cannot be claimed by filing of a writ petition after about 14 years in July 2000. When petitioner was asked to point the representation filed by him for claiming of this amount, the first representation which can be pointed out was only of the year 1997. Even assuming representations were filed earlier, filing of repeated representations or pendency thereof without an acknowledgement by the employer of the same being favourably considered, does not entitle the petitioner to approach the Court with delay much less of 14 years as in the present case. The third relief for claiming of a particular amount of monies for alleged difference of pay, is also therefore rejected on the ground of delay and laches.

So far as the second relief prayed being the challenge to the impugned order dated 27.11.1998 of the disciplinary authority; and as affirmed in appeal by the appellant authority''s order dated 16.2.1999, it may be noted that the challenge is liable to be dismissed on the ground that petitioner in spite of three notices failed to appear in the departmental proceedings and, therefore, the enquiry officer proceeded ex parte against the petitioner and gave a report holding the petitioner guilty of misconduct alleged against him in the charge-sheet in view of the evidence led on behalf of the management; being depositions of witnesses as also documentary evidence. There was grave charge against the petitioner of using filthy language in front of lady employees and opening the zip of his pant in front of the lady employees. Such conduct of an employee is unpardonable and it may be noted that for an earlier misconduct petitioner had already been imposed a punishment; by the order of the disciplinary authority dated 15.5.1995; of reduction in pay scale by three stages.

Truth or falsity of the allegations, i.e. the merits of the matter, have to be decided by the enquiry officer and not by this Court which is not an enquiry officer. In order to succeed in a defence, a charged official must not only cross-examine the witnesses of the management but also lead his evidence besides stepping into the witness box and standing the test of cross-examination. The scope of hearing in a petition under Article 226 of the Constitution of India challenging the departmental proceedings is limited to there being perversity in the orders of the departmental authorities or violation of principles of natural justice or violation of rules of the organizations/law. It is settled law that this Court hearing a petition under Article 226 of the Constitution of India does not sit as an Appellate Court to reappraise the findings of facts and conclusions of the departmental authorities.

5(i) In a case where there is an ex parte report, the scope of hearing in this Court is extremely limited. There are two aspects which have to be examined where an ex parte report of the enquiry officer is challenged like in a case such as the present. First is whether petitioner was served and/or good reasons for non-appearance in spite of the service were given. The second aspect is whether the charge-sheet on the face of it shows that no violations of the rules of the organization or law are made out.

(ii) So far as the second aspect is concerned, since the charges are factual of misbehavior of the petitioner, it cannot be said that charges on the face of it did not require any inquiry. So far as the first aspect of the petitioner having a reason not to appear in the enquiry proceedings, it may be noted that petitioner does not dispute before this Court that he had received the notices of the different dates of hearings, however, what is argued is that petitioner was prevented from appearing in the departmental proceedings by the guard of the employer. I have found this reason given by the petitioner of not appearing in the departmental proceedings clearly misconceived because if what the petitioner stated was true, then immediately after each of the three dates of hearings of 3.11.1998, 6.11.1998 and 10.11.1998, petitioner would have written letters of his being illegally prevented from entering the premises, however, there is no such ground which is alleged in the writ petition of communications having been sent at the relevant point of time. A mere self serving averment contained in Ground T of the petition that the security personnel did not allow the petitioner to enter into the premises, cannot be accepted by the Court in view of the blandness of the statements and the same having not been shown to be correct by necessary documentation. This argument of the petitioner is also therefore rejected.

At this stage, it is relevant to refer to the relevant portion of the enquiry officer''s report showing how the case was proved by the department, and which relevant portion reads as under:-

11.0 The Presenting Officer produced documentary evidence and witnesses. The documents produced by the P.O. were taken on record and the evidence of the witnesses was recorded. After completion of the presentation of the witnesses the Presenting Officer argued his case and his argument was recorded. A copy the proceedings of the inquiry held on 10.11.98 is enclosed at Annexure-III. Thereafter the actual inquiry process was closed.

12.0 The charges framed against the Charged Employee are as under:-

While working the Corporate Office, Shri Mehmood Kasim Sahib, Photographer/Artist, has misbehaved in a disorderly manner against certain staff in the Administration Section (Room No. 504) of the Corporate Office at 5 P.M. on 30.6.98. He used highly abusive and offensive language and conducted himself in a manner unbecoming of a public servant, in the presence of lady staff in the section.

The conduct and behaviour of Shri Mehmood Kasim Sahib is found to be unbecoming of IRCON employee and subversive of discipline, calling the action under Rule 4(1) (iii) and Rule 5/(12) (17)(20) of IRCON Conduct Discipline and Appeal Rules.

13.0 The following documents and witnesses were produced by the Presenting Officer

Documents

1.

MEX 1

Complaint of Shri Amar Nath, Messenger

2.

MEX 2

Complaint of Shri Ved Prakash, Sr. Asstt.

3.

MEX 3

Complaint of Sh. Ram Naresh, Messenger

4.

MEX -

Complaint of Smt. Manju Acharya

Witnesses

MW-1

Smt. Manju Acharya

MW-2

Shri Ved Prakash

MW-3

Shri Ram Naresh

MW-4

Shri Amar Nath

14.0 I have carefully analysed the various evidence produced before me by the Presenting Officer

Primarily, the Presenting Officer through the documents and witnesses, have been able to establish the indecent behaviour of Shri Mehmood Kasim Sahib in the premises of the company and commission of an act subversive of discipline and of good behaviour. The Presenting Officer also established that the behaviour of Shri Mehmood Kasim Sahib is unbecoming of a public servant.

MEX-1 to MEX-4 and the evidence of MW-1 to MW-4 establishes the fact that Shri Mehmood Kasim Sahib entered the Room No. 504 of IRCON''s Corporate Office around 5 P.M. on 30.06.98 and abusive and vulgar language and behaved indecently by opening his button/zip of his pant when a lady employee was present in that room. The Charged Official did not produce any defence as he failed to attend the inquiry proceedings held on 10.11.98 inspite of reasonable opportunity has been given to him. The only document in defence of the Charged Official available on record is the defence statement submitted by the Charged Official to the Disciplinary Authority vide his letter dated 24.07.98. The Charged Official only raised certain technical and procedural objections pertaining to the Charge Memo issued by Disciplinary Authority. He stated in the defence statement only general denial of the charges and expressed his desire to be heard in person to defend his case through his Defence Assistant.

15.0 After carefully going through the entire evidences documentary as well as oral, produced before me I have come to the following conclusions:-

I. The charge that the conduct and behaviour of Shri Mehmood Kasim Sahib is found to be unbecoming of IRCON employee under Rule 4(1)(iii) of IRCON CDA Rules 1981 stand proved.

II. The charge that Shri Mehmood Kasim Sahib behaved indecently in the premises of the Company under Rule 5(12) of IRCON CDA Rules 1981 stand proved.

III. The charge that Shri Mehmood Kasim Sahib committed an act which amount to a criminal offence involving moral turpitude under Rule 5(17) of IRCON CDA Rule 1981 could not be completely substantiated although Shri Mehmood Kasim Sahib did use abusive and vulgar language and behaved indecently in the presence of a lady employee but it was neither directed towards the lady employee nor were she directly addressed to.

IV. The charge of commission of an act subversive of discipline and of good behaviour under Rule 5(20) of IRCON CDA Rule 1981 stand proved.

16.0 All the documents/records mentioned in the report are contained in the file No. IRCON/ENQ./01 which is sent along with this report.

(V.H. RAO)

INQUIRY OFFICER

In view of the above, I do not find that the petitioner has made out any case for setting aside the orders passed by the departmental authorities, and therefore, the writ petition is dismissed, leaving the parties to bear their own costs.