Pravin Kumar Pandy vs Bharat Coking Coal Ltd. and Others

D.G.R. Patnaik, J.—Challenge, in this writ application, is to the order dated-22.10.2003 (Annexure-8), passed by the Respondent No. 2, whereby a penalty of reduction to the next lower Grade for a period of two years with cumulative effect, has been imposed against the petitioner. The petitioner has also assailed the order of the appellate authority communicated to him vide letter dated 21.05.2004 (Annexure-10), whereby the appeal filed by the petitioner against the impugned order of his punishment has been dismissed.

The petitioner''s case in brief is as follows:

(i) The petitioner is in employment under the Respondent-B.C.C.L. in the Officers Grade E.-5, with all benefits of service. He was posted at the Putki Balihari Area of the B.C.C.L. as its Area Sales Officer with effect from 12.11.1993.

(ii) On the charge, tint he had failed to ensure implementation of the duly notified grade notification of coal during his tenure at the Putki Balihari Area, resulting in passing of Steel-I Grade Coal as Steel Grade II and thereby causing huge loss to the Respondent-Company, a departmental proceeding was initiated against him. He submitted his explanation to the charges, stating that since he had joined on transler at the Pulki Balihari Area in the last week of November, 993 and as such, the fault of non-implementation of the tacking arrangements as per the Company''s Notification, during the period between 01.04.1993 till prior to his date of joining, cannot be attributed to him. He had also pleaded that the stacking arrangements for different grades of coal at the production/dispatch point, do not fall within the ambit of his duties and responsibilities as Area Sales Officer and that such responsibility was the exclusive duty of the Colliery Management. Me had also tried to explain that the sale orders issued by him were in conformity with the grade wise production and stock statement submitted by the management of the concerned Colliery to him and during the period between 12.11.1993 to August, 1994, the Management of the concerned Colliery did not report any stock or production of Steel Grade I coal.

(iii) After conducting enquiry and affording opportunity to the petitioner to defend his case, the enquiry was concluded by the Enquiry Officer by recording a finding that the charge was not proved against the petitioner.

(iv) However, disagreeing with the findings of the Enquiry Officer, the disciplinary authority, namely the Respondent No. 2 issued a show cause notice to the petitioner enclosing therewith a copy of the enquiry Report, and calling upon the petitioner to submit his show cause replies.

(v) In response to the notice, the petitioner submitted his detailed replies explaining all the circumstances, which he deemed relevant.

(vi) By the impugned order, the disciplinary authority proceeded to punish the petitioner for the charges by demoting him to the next lower Grade for a period of two years with cumulative effect.

(vii) The appeal preferred by the petitioner against the impugned order of his punishment was dismissed by the disciplinary authority by the impugned order (Annexure-10).

Explaining the grounds for assailing both the impugned orders, Mr. Mahesh Tewari, learned Counsel for the petitioner would argue that the impugned orders are bad in law and not sustainable, basically because while differing from the findings of the Enquiry Officer, the disciplinary authority did not assign any reason for differing from the findings of the Enquiry officer and neither did he give his own findings on the basis of the evidences on record. Learned Counsel argues that such conduct of the disciplinary authority was against the provisions of Rule 30.1 of the Conduct, Discipline & Appeal Rules. 1978.

It is further argued that the impugned order dated-22.08.2003 (Annexure-8) is apparently cryptic in nature without discussion of any evidence, devoid of any statements relating to the facts or circumstances of the case and of the pleadings of the petitioner stated in his defence and is therefore, perverse and is against the principles of natural justice.

Learned Counsel argues further that the impugned order of the appellate authority also suffers from the same vice as because the same was passed without application of mind by merely adopting the order of the disciplinary authority.

Refuting the claim of the petitioner, the Respondents have filed their counter affidavit. The stand taken by the Respondents is that there is no perversity, much less illegality, in the impugned order of punishment. The petitioner was given due and reasonable opportunity to defend his case in the departmental enquiry. Though the enquiry officer may have found the petitioner not guilty of the charge, but the disciplinary authority had every right to differ from the findings of the Enquiry Officer and to impose punishment upon the delinquent employee upon being satisfied that the charge has been proved.

Mr. A.K. Mehta, learned Counsel for the Respondent-B.C.C.L. would argue that the principles of natural justice was duly adhered to by not only serving upon the petitioner the second show cause notice but also by serving a copy of the Enquiry Report indicating categorically that the disciplinary authority did not accept the findings of the Enquiry Officer and had differed from such findings and there was reason for him to differ and to draw the inference from the materials available on record, of the guilt of the petitioner in respect of the charge. Learned Counsel adds further that the petitioner did avail the opportunity of submitting his replies, which was duly considered by the disciplinary authority before passing the impugned order of punishment. It Is further submitted that the Appellate Authority had also considered the issues involved in the matter including the grounds of appeal and thereafter, had passed the order of imposing punishment

From the rival pleadings, the admitted facts as would appear are:

(i) The petitioner was proceeded on the basis of a charge in the departmental proceedings and on considering the evidences and other relevant materials on record, the Enquiry Officer did not find him guilty of the charge.

(ii) By Annexure-6. dated 11.07.2003, the disciplinary authority had informed the petitioner that he differs from the findings of the Enquiry Officer and by recording his own observations on the Enquiry Report,, has declared that true was failure on the part of the petitioner to implement the duly notified grade, thereby enabling precious coal to be pass off and sold as sub-standard coal which has caused huge financial loss to the Company.

From a bare reading of the aforesaid letter (Annexure-6), it would be manifest that though the disciplinary authority declares that the petitioner was at fault but there is no discussion of the findings recorded by the Enquiry Officer or of the evidences brought on record in the Enquiry proceedings nor any specific reason assigned as to the grounds on which the disciplinary authority bad chosen to differ from the findings of the Enquiry Officer.

The inference from the reading of he impugned order is that the conclusion that the petitioner is guilty, has been damn by the Disciplinary Authority on the basis of conjectures and surmises and not on the basis of the actual evidence adduced and in the light of certain undisputed facts pleaded by the petitioner that no fault could be attributed to him for any lapse, which may have occurred prior to his joining the post. No discussion appears to have been made as to whether at all it was a part of the petitioner''s duty to segregate the various categories of coal by way of implementation of the Notified Oracle. Mo discussion appears to have been made on the petitioner''s claim that during the relevant period none of the concerned collieries had reported of extraction or collection of the higher quality Steel-I Grade Coal during the relevant period.

No discussion appears to have been made on the evidences adduced in the enquiry proceedings. Such omissions on the part of the disciplinary authority would obviously suggest that he has in conduced himself in accordance with the principles of natural justice and equity and in accordance with the Rules stipulated in Clause 30.1 of the Conduct. Discipline & Appeal Rules, 1978 which makes it incumbent upon the'' disciplinary authority to assign reasons for differing with the findings of the Enquiry Officer.

It also appears that despite the petitioner having pleaded the aforesaid grounds in his appeal, the appellate authority has ignored the same and in fact, has not even discussed the grounds advanced and had dismissed the appeal suggestively in a mechanical manner.

In the light of the above discussions, I am satisfied that the impugned order of punishment, dated-22.10.2003 as passed by the Respondent No. 2 vide Annexure-8 and the impugned order dated-17.04 2004 of the Respondent No. 5 (Annexure-10), suffers from illegality and perversity and the same cannot be sustained in the eyes of law. Both the impugned orders therefore, are hereby quashed. The matter is remitted back to the concerned disciplinary authority of the petitioner for passing a fresh order on the basis of the Enquiry Report and the findings recorded therein. If the disciplinary authority would choose to differ from the findings of the enquiry officer as declared in the Enquiry Report, he shall assign reasons for the same and intimate the petitioner accordingly, to enable him to submit his explanations and only after considering the explanations, pass appropriate orders in accordance with law. The concerned authority of the Respondents shall complete the entire exercise within a period of three months from the date of receipt/production of a copy of this order. If no order is passed within the period stipulated herein, it will be deemed that the findings of the Inquiry Officer in the disciplinary proceeding is accepted and the petitioner is restored to his original grade from which he was demoted and he shall be entitled to all monetary benefits which would have accrued to him had he not been demoted by the impugned order.

With these observations, this writ application stands disposed of.

Let a copy of this order be given to the learned Counsel for the Respondent-B.C.C.L.