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Judgment
Huluvadi G. Ramesh, J.—Petitioner has sought for quashing the order of termination dated 25.1.2006 - annexure H; the Minutes of the Board Meeting held on 26.5.2006 - annexure S; the show cause notices dated 8/11.9.2006 and 23/26.9.2006 - annexures N and P; the order dated 20.3.2007 -annexure A4 passed by the 2nd Respondent and also the orders dated 28.5.2007 and 29.6.2007 annexures A 6 & 7 passed by the 2nd Respondent.
Petitioner was appointed as a Factory Manager by the 1st Respondent Company during 1988. The 2nd Respondent is the management and disciplinary authority. 3rd Respondent is the appellate authority. Petitioner was in charge of Doddaballapur Unit and during 1999 when one R.B. Agwane, Government Officer was appointed to make a general investigation regarding non-supply/inadequate supply and supply of low quality energy food and energy food mixes, on the ground that the State has suffered loss, a Report was given finding fault in the supply of energy food and energy food mixes. It is stated, no individual officer is held responsible as per the Report. Based on this report, internal inquiry was instituted by the 1st Respondent during 2001 appointing a retired District Judge regarding possibility of wheat being sold in the open market for profit in which the Petitioner was also notified and he had participated. The Inquiry Officer gave a report stating that there is no apparent mistake or negligence on the part of the Petitioner in lifting Wheat and supplying it to the private miller and getting it converted into (sic) or weaning food on time. However, it is stated there is no delay in supply during the relevant period 1993-96. Based on the second Report, show cause notice was issued during December 2001 for which reply was given, on framing charges. During January 2004, Inquiry Officer was appointed to inquire into the charges levelled against the Petitioner and three more persons who were holding posts.
It is the grievance of the Petitioner, the 2nd Respondent issued a show cause notice to the Petitioner during January 2006 and without considering the reply, order came to be passed on 25.1.2006 imposing a major penalty of termination holding that the charges have been proved. According to the Petitioner, it is a major penalty against minor charges. Against which, appeal was preferred before the 3rd Respondent during February 2006. In the meeting held on 25.6.2006, order of dismissal came to be passed as at annexure K. According to the Petitioner, it is without hearing him. Communication was sent on behalf of the 3rd Respondent to the request of the Petitioner to furnish copy of the order, on 1.9.2005. Subsequently on two or three occasions, he made a request for copy of the order which was not made available. Further, according to the Petitioner, one more show cause notice was issued making charges of calibration of equipments when the Petitioner was the Unit. Head at Chitradurga However, during September 2006, Petitioner wrote a letter to allow him to join duty in view of the subsequent show cause notice alleging that it amounts to withdrawal of termination. However, the Petitioner received the order of the appellate authority annexure S daring October 2006 wherein it is stated, since Petitioner was terminated on 26.5.2006, he is not permitted to report for duty and in this regard, it appears there is correspondence. It is also stated to the Petitioner that to the show cause notice issued, he has not answered. Petitioner has challenged the order of termination - annexure H. It appears, against the show cause notice 2.11.2006 framing charges against the Petitioner as noted above, an inquiry officer was appointed on the fresh charges. The date of inquiry was fixed on 14.11.2006. However, the Petitioner waited for acceptance of his reply to the show cause notice and the charges, but, to no avail. However, he received only an exparte report of inquiry during February 2007. According to the Petitioner, the 1st Respondent passed an order that the company has suffered loss to the tune of Rs. 80,71,152/- as such an amount of Rs. 2,45,409/- towards gratuity and encashment amount of Rs. 2,00,831/- was forfeited and it was also ordered to initiate recovery proceedings. Once again, during April 2007, another show cause notice was issued enclosing the final report and also stating that the Company has suffered loss of Rs. 27,903/- as such, salary for the period 1.1.2006 to 25.1.2006 is forfeited. The Petitioner, challenging those orders and issuance of show cause notice, contending that once the order of termination is passed, subsequently an inquiry cannot be initiated, is before this Court urging various grounds.
Heard the counsel for the parties.
In the course of argument, Petitioner''s counsel submitted that in the two inquiry reports there is no specific allegation against the Petitioner except the loss suffered (sic) by the Respondents 1 and 2/Company. Of course, inquiry report reveals there is Rs. 1.2 crores loss alleging all the Unit Heads have contributed for the negligence and also there is delay in procuring, not verifying and not subjecting for quality control.
The grievance of the Petitioner is, in the two reports submitted when the Petitioner was not indicted, the proceedings initiated against the Petitioner and imposing major penalty of termination is without any basis and the inquiry ought not to have been initiated. Further more, according to the Petitioner, as per the Conduct Rules there is no termination by way of penalty as such, order of termination is non-est and also it is grievance that the order of termination has been passed on 25.1.2006 and another inquiry has been ordered on 11.9.2006.
Per contra, counsel representing the Respondents submitted, termination is by way of punishment and it amounts to removal and it is only a change of nomenclature. On technicality, punishment imposed cannot be set aside and accordingly relied upon the case of Mohammad Abdul Salam Khan Vs. Sarfaraz Ahmad Khan and Others, .
Having heard the counsel for the parties, it is noticed in WP 17095/2007 and connected matter i.e., the Deputy General Managers who were heading the Mysore Unit and other Unit have filed the writ petitions, in that petitions this Court in similar situation, on similar grounds raised, noting the stand taken by the Petitioners therein that the order of termination itself is bad and is not in conformity with the Rules and that the Inquiry Officer held the charges levelled against the Petitioner are proved, the Disciplinary Authority pursuant to the order dated 25.1.2006 accepted the Inquiry Report and imposed the punishment of termination and the writ appeal filed by the Petitioner is also dismissed, has opined that the finding recorded by the inquiry Officer as well as the acceptance of the report by the Disciplinary authority cannot be faulted. It has also observed, having regard to the limited jurisdiction which could be exercised under Article 226 of the Constitution and also observed that if there is any fallacy in the process of decision making, there could be judicial review and not on the decision itself. It has noted that Petitioners have been given sufficient opportunity and they were permitted to participate in the proceedings and the finding recorded by the Inquiry Officer as well as the acceptance of the Report by the Disciplinary Authority cannot be faulted.
In the penultimate para, it is observed that Petitioners had raised a specific ground in the memorandum of appeal that the termination itself is bad in as much as it is not in conformity with the Service Rules. The appellate authority was required to consider the said ground and pass appropriate orders. Noting that the order of the Appellate Authority does not indicate such exercise has been done, having opined that the matter requires re-consideration, petitions were allowed and the matter was remanded.
In that view of the matter, it is ordered, the order of the appellate authority is quashed and the matter is remitted to the appellate authority who shall take into consideration the ground of appeal and pass appropriate orders. It is also made clear, whether the Petitioner is directly involved in financial irregularity or not is a matter to be ascertained by the appellate authority.
Petition is allowed