Tariq Ahmad Pattan vs National Hydroelectric Power Corpn. And Others

Sanjay Dhar, J

1 The petitioner has challenged order No.NH/NB/Disc./CE/Conf./2008/573-78 dated 10.09.2008 issued by respondent No.2 whereby the services of the petitioner have been terminated. A further direction has been sought upon the respondents to allow the petitioner to resume his duties at his new place of posting, namely Sewa-II HE Project and to pay him all consequential and other service benefits.

2 According to the petitioner, he was appointed as Pharmacist Grade-II in National Hydroelectric Power Corporation (NHPC) and he joined his duties in Uri HE Project Dispensary at Gantamulla in terms of order dated 29.10.1996 issued by the Senior Manager (P&A), Uri Hydroelectric Project. The petitioner completed his period of probation on 27.10.1997 in terms of office order dated 02.04.1998. However, vide order dated 17.08.2004, the petitioner came to be transferred and posted to Nimmo Bazgo HE Project, Leh. The said order was challenged by the petitioner by way of a writ petition bearing SWP No.1249/2004 before this Court and, on 06.09.2004, an interim order came to be passed in the said writ petition whereby the petitioner was allowed to continue at his present place of posting till next date of hearing. Accordingly, the petitioner was allowed to continue at his present place of posting i.e at Uri Power Station.

3 It seems that the petitioner was subjected to medical check up by the Medical Board pursuant to the directions passed by this Court and the said Board found no abnormality in the health of the petitioner, whereafter, on 03.08.2005, the respondents issued another order whereby the petitioner was relieved from Uri Power Station w.e.f 06.08.2005 and he was directed to report to Chief Engineer, Nimmo Bazgo HE Project.

4 According to the petitioner, he was not in a position to join at Nimmo Bazgo HE Project, as such, he applied for leave on 04.08.2005 which was granted to him and was subsequently extended from time to time. The leave was applied by the petitioner on medical grounds as he was not feeling well. Again, on 22.09.2005, the respondents addressed a letter to the petitioner to join his duties within 15 days and the same was replied to by the petitioner vide his communications dated 23.09.2005 and 29.09.2005 explaining therein that he is still not feeling well and he would resume the duty once he recovers from the ailment. It seems that the respondents, vide letter dated 14.10.2005 asked the petitioner to join his duties within 15 days or to apply for medical leave in case he is not well. The petitioner is stated to have responded to the said letter vide his application dated 29.10.2005 whereby he applied for leave for three months w.e.f 18.08.2005 and also annexed a medical certificate.

5 Another communication dated 28.12.2005 was issued by the respondents to the petitioner wherein he was directed to explain the reasons for his absence from duty despite the expiry of leave period. The petitioner is stated to have responded to the said communication vide his letter dated 18.01.2006 stating therein that he was still not feeling well. A number of subsequent communications are stated to have been addressed by the petitioner to the respondents requesting for grant of leave, but respondent No.2, vide his communication dated 21.8.2006 informed the petitioner that he proposes to hold an enquiry against him. Along with the said communication, respondent No.2 had issued memorandum and the articles of charge against the petitioner, who is stated to have responded to the charge-sheet dated 21.8.2006 stating that he is not in a position to go to Nimmo Bazgo, therefore, he should be transferred to Uri Power House on humanitarian grounds.

6 Respondent No.2 issued orders/communications dated 13.10.2006 and 20.10.2006 whereby the petitioner was informed that respondent No.3 has been appointed as an Inquiry Officer and he was asked to intimate the name designation and address of the public servant who will be assisting him in the enquiry which was to be held at Nimmo Bazgo. The said communications were responded to by the petitioner vide letter dated 08.12.2006 and it was conveyed by the petitioner to the respondents that it was not possible for him to attend the enquiry at Leh. However, vide letter dated 10.01.2007, respondent No.3, the Inquiry Officer informed the petitioner that he is given final opportunity to defend his case and to appear before him on 08.02.2007 at Nimmo Bazgo. Vide his letter dated 27.01.2007, the petitioner informed respondent No.3 that, due to the road blockade, he would not be in a position to appear before him. On 23.02.2007, the petitioner was again informed by respondent No.3 that he may reach Leh on any date between 11.04.2007 to 15.04.2007 but the petitioner could not appear before respondent No.3 even on these dates. Vide letter dated 15.04.2007, respondent No.3 asked the petitioner to appear before him on 31.05.2007. Again the petitioner informed respondent No.3 that he is not physically fit to resume his duties at Leh and that his father has suffered an accident. A prayer was made by the petitioner that he should be transferred to Uri NHPC. A series of applications in this regard were made by the petitioner on 25.05.2007 04.08.2007, 07.08.2007 and 09.10.2007.

7 By virtue of order dated 12.09.2007, the petitioner was transferred from Nimmo Bazgo to Sewa-II HE Project. The petitioner requested respondent No.2 vide his letter dated 05.11.2007 to relieve him from Nimmo Bazgo, so as to enable him to join his duties at Sewa- II HE project. This was followed by two more applications dated 25.01.2008 and 12.03.2008. However, respondent No.4 was informed by the Assistant Manager, NHPC Nimmo Bazgo that because the petitioner had not joined at Leh, therefore, he cannot be relieved and a request was made to respondent No.4 to modify the order of transfer.

8 The petitioner is stated to have sought information from the respondents about the action taken in the matter, but, instead of furnishing the said information, the Inquiry Officer proceeded to hold an enquiry in absence of the petitioner and submitted his report dated 11.08.2007 . On the basis of the said report a show cause notice was issued to the petitioner on 29.05.2008 asking him to make a representation against the proposed action of terminating him from service. The petitioner submitted his reply dated 23.06.2008 to the aforesaid show cause notice, but, instead of taking note of the said reply, respondent No.2, by virtue of the impugned order, terminated him from service.

9 The petitioner has challenged the action of the respondents on the ground that respondent No. 2, being not the appointing authority of the petitioner, was not competent to issue the impugned termination order. It has been contended that the petitioner has been handed down a major punishment without following the principles of natural justice and that the enquiry has been conducted at his back at a place which was not convenient to him. It has been contended that, without modifying the order regarding transfer of the petitioner from Nimmo Bazgo HE Project to Sewa II HE Project, the respondents could not have taken any action against the petitioner. It has been further contended that the enquiry report submitted by the Inquiry Officer is bereft of any reasons and, as such, on the basis of such a report, the impugned order of termination could not have been passed. Lastly, it has been contended that respondent No.2, the Disciplinary Authority has, in a mechanical manner, passed the impugned order of termination without considering the issues raised by the petitioner in his representation against the show cause notice.

10 The respondents have contested the writ petition by filing filing a reply thereto. It has been submitted by the respondents that regarding transfer of the petitioner from Uri Power Station to Nimmko Bazgo HE Project, he approached this Court by way of a writ petition and in terms of the directions of this Court, the petitioner was medically examined by the State Medical Board, whereafter, he was found fit to serve at any place. It has been submitted that, in view of the medical report, the petitioner was relieved from Uri Power Station on 06.08.205 with a direction to join at Nimm Bazgo H.E. Project. It has been submitted that, instead of joining the new place of posting, the petitioner addressed several communications raising inconsistent pleas and avoided joining at new place of posting as per his transfer order. It has been further contended that the petitioner has been afforded several opportunities to explain his case and to defend himself before the Inquiry Officer, but, he has failed to avail these opportunities. It has been also submitted that the petitioner was even offered reimbursement of Air fare for attending the enquiry at Leh, but, in spite, of this, he failed to present himself before the Inquiry Officer and, instead kept on requesting for his transfer back to Uri. It has been submitted that the transfer order of the petitioner to Sewa-II HE Project from Nimmo Bazgo was a routine/general transfer. However, the exact status of joining of the petitioner in Nimmo Bazgo HE Project was not known to the transferring Authority, as such, his transfer order was kept in abeyance. It has been further submitted that respondent No.2 is the competent person to pass the order of termination against the petitioner and that there was no justification for the petitioner to avoid joining his new place of posting at Nimmo Bazgo.

11 I have heard learned counsel for the parties and perused the material on record including the record produced by learned counsel for the respondents.

12 The petitioner has challenged the impugned order of termination primarily on the grounds that respondent No.2 was not the Competent Authority to issue the impugned order of termination; that he has not been given opportunity of hearing and presenting his case before the Inquiry Officer; and, that the report of enquiry as well as the impugned order of termination are bereft of any reasons and that the same have been issued in a mechanical manner.

13 So far as the first ground urged by the petitioner is concerned, the same is without any substance because respondent No.2, Chief Enginee (Civil), Nimmo Bazgo HE Project, Leh is an Authority equivalent in rank to the appointing Authority of the petitioner as is clear from the Annexure to the NHPC Conduct, Discipline and Appeal Rules. The said officer also happens to be the Disciplinary Authority for the officials of the rank of the petitioner. Therefore, the order of termination issued by him against the petitioner cannot be termed as ‘without jurisdiction’. Respondent No.2, having regard to his rank, was also competent to issue charge-sheet to the petitioner and to appoint an Inquiry Office in terms of NHPC Conduct, Discipline and Appeal Rules. The judgments referred to and relied upon by learned counsel for the petitioner in the cases of Ghulam Mohi-ud-din vs. Unversity of Kashmir and others, 1987 SLJ 300, Mohd Maqbool and others vs. State of J&K, 1994 SLJ 539, and Shiv Paul Singh Slathia vs. Director General of Police J&K, 1996 SLJ 288, are of no help to the case of the petitioner because in all these, the charge-sheet was not framed by the Competent Authority which is not the case at hand. .

14 That takes us to the question, as to whether the principles of natural justice have been adhered to by the respondents while dealing with the case of the petitioner.

15 If we have a look at the sequence of events of the present case which are admitted by the petitioner in his writ petition, it becomes clear that the respondents have been more than considerate and accommodative while dealing with the petitioner. He was relieved from Uri Power Station on 06.08.2005. Thereafter, one after the other, he submitted applications before the respondents asking for medical leave, even though, in terms of orders of this Court, in an earlier writ petition, filed by the petitioner, he was subjected to medical check and found hail and hearty. The respondents kept on extending his leave from time to time. Ultimately, on 18.08.2005, the respondents extended leave period of the petitioner up to 17.11.2005, but even after expiry of the said period, he did not join his duties, as a result whereof, vide letter dated 28.12.2005, a show cause notice was issued to him. On 18.01.2006, another letter was dashed off by the petitioner to respondents. This time, he pleaded before the respondents that, due to his ill health and domestic conditions, he is not in a position to join. But, instead of requesting for further extension of leave, the petitioner sought his transfer back to Uri.

16 From the above events, it was clear to the respondents that the petitioner never intended to honour the order of his transfer and join his new place of posting at Leh. It is, in these circumstances, that respondent No.2 initiated enquiry against the petitioner for his unauthorized absence and issued memo of charges against him. In answer to the memo of charges, the petitioner did not deny that he was not absent from duty, but he only claimed that, due to his health and domestic conditions, he should be transferred. The Inquiry Officer, as per the petitioner’s own case, deferred the enquiry proceedings on numerous occasions taking note of the requests made by him on the grounds of blockade of road, ill health, domestic conditions etc. Vide communication dated 23.02.2007 of the Inquiry Officer, the petitioner was given more time to attend the enquiry proceedings and was even offered reimbursement of air tickets. Vide letter dated 14.05.2007, the Enquiry Officer informed the petitioner that the road link between Leh and rest of the Country has been established and he was, accordingly, asked to appear before the Inquiry Officer by 31.05.2007. The petitioner failed to avail all these opportunities and kept on harping for cancellation of his transfer to Nimmo Bazgo.

17 From the foregoing sequence of events, it is clear that the respondents have gone out of way to accommodate the petitioner and provided him more than enough opportunities to join his duties and to defend himself before the Inquiry Officer.

18 It has been contended by learned counsel for the petitioner that the place of enquiry was fixed at Leh which is a far off place where it was impossible for the petitioner to participate in the enquiry proceedings and that, this, in itself, amounts to violation of principles of natural justice. He has relied upon the judgment of the Supreme Court in the case of A.V.Mohal vs. Senior Superintendent of Post Office and others, 1991 Supp (2) SCC 503 in support his contention.

19 The ratio laid down in the aforesaid judgment relied upon by learned counsel for the petitioner is not applicable to the instant case because, in the said case, the delinquent official was unable to attend the place of enquiry because no subsistence allowance was being paid to him. However, in the instant case, the Inquiry Officer offered to reimburse the Air fair of the petitioner for reaching the place of enquiry, but, still then, the petitioner did not avail the said opportunity. In fact, the petitioner has nowhere pleaded that, because of paucity of funds, he was unable to attend the enquiry at Leh. His only stand throughout has been that he should be transferred back to Uri. So, in these circumstances, it cannot be stated that the principles of natural justice have not been adhered to by the respondents while dealing with the case of the petitioner, either during the course of enquiry, or prior to that.

19 It has been next contended by learned counsel for the petitioner that no reasons have been assigned by the Inquiry Officer while rendering its findings against the petitioner. Learned counsel has submitted that a report which is devoid of any reasons does not stand in the eyes of law and, as such, no punishment could have been inflicted upon the petitioner on its basis. In this regard, reliance has been placed upon the judgment of this Court in the case of Sudesh Kumar Puri vs. State of J&K, 1974 JKLR 363.

20 Law is settled that the Writ Court would be slow in interfering with the findings of fact recorded by the Inquiry Officer on the basis of evidence. It is also well settled that when a finding is recorded by the Disciplinary Authority on the basis of some relevant material and the principles of natural justice have been followed by the said Authority, it would not be open to the Writ Court to interfere in the findings of fact arrived at by the Disciplinary Authority/Inquiry Officer. However, the findings should be based on relevant material and on the basis of reasons and logic. The Supreme Court has, in the case of Union of India and others vs. P. Gunasekaran, (2015) 2 Supreme Court Cases 610 explained the position of law on this aspect of the matter in the following manner:

“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer.

The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

(a.) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d).The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g). the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h). the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i). the finding of fact is based on no evidence.

13.Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience”.

21 From the above, it is clear that scope of interference in the findings of fact recorded by the Inquiry Officer in departmental enquiry proceedings is very limited and it is only in cases where irrelevant or extraneous considerations have influenced the decision of the Inquiry Officer or there is violation of principles of natural justice or that the findings of fact recorded are not based on any evidence that the Writ Court would step into.

22 In the instant case, though the enquiry report dated 11.08.2007 rendered by respondent No.3 does not give elaborate reasons, but, it refers to all the communications exchanged between the petitioner and the Inquiry Officer to drive home the point that the petitioner has been given ample opportunity of hearing in presenting his case before the Inquiry officer, therefore, while recording his findings, the Inquiry officer has adhered to the principles of natural justice. The same is clearly discernible from the documents referred to by the Inquiry Officer in his report.

23 So far as the charge of unauthorized absence is concerned, the petitioner in his reply to the charge-sheet has nowhere denied the fact that he has, after being relieved from his previous place of posting at Uri, not joined his duties at new place of posting i.e Nimmo Bazgo. It is also not in dispute that no leave in favour of the petitioner was granted beyond 17.11.2005 and, in fact, the petitioner has not even applied for extension of leave beyond the said date. The only contention which the petitioner has made in reply to the charge-sheet is that he should be transferred back to Uri on humanitarian ground. So, the charge of unauthorised absence has not even been specifically denied by the petitioner in his reply to the charge-sheet. Therefore, merely because the enquiry report does not refer to these aspects of the matter, does not alter the position that the petitioner has remained unauthorizedly absent from duty after 17.11.2005 without any justification. Even in his reply to the show cause notice against the proposed punishment, the petitioner has not even claimed that he was present on duty or that he had applied for leave beyond 17.11.2005.

24 In the face of aforesaid material on record that was available before the Enquiry Officer, the finding recorded by him in his report that charges against the petitioner stand established, is absolutely justified.

25 So far as the impugned order passed by respondent No.2, the Disciplinary Authority is concerned, the same also refers to the background in which the said order has been passed. It was not necessary for the Disciplinary Authority to deal specifically with each and every contention raised by the petitioner in his representation against the show cause notice and to give elaborate reasons particularly when the charges against him stood proved and he did not even show any intention of joining back his duties at his new place of posting i.e Nimmo Bazgo.

26 It has been contended by the petitioner that his order of transfer from Nimmo Bazgo to Sewa II HE Project was recommended to be modified and while he waiting for the said modification, he has been terminated from service. It has been submitted that the petitioner intended to join his new place of posting at Sewa II HE Project, but, because of the inaction of the respondents, he could not do so.

27 In the above context, the respondents have produced the record which clearly shows that the said order had been kept in abeyance, meaning thereby that the petitioner’s order of transfer from Uri to Nimmo Bazgo was kept intact and, as such, he was supposed to join his place of posting at Leh. Even otherwise, the order of transfer of the petitioner to Sewa-II HE Project was issued on 12.09.2007 and even if it is assumed that the said order was in force, still then, there was no justification for the petitioner to remain absent from duty w.e.f 06.08.2005 the date when he was relieved from Uri Power Station upto 12.09.2007 when fresh order of transfer was issued by the respondents.

28 The charge-sheet was issued by the respondents on the basis of petitioner’s absence from duty from 06.08.2005 and it has been established that beyond 17.11.2005, his leave was not extended and he remained unauthorisedly absent thereafter. Therefore there is no relevance of the subsequent order of transfer dated 12.09.2007 on the fate of the enquiry initiated against the petitioner.

29 However, one thing that is required to be noted is that the petitioner has been terminated from service w.e.f 06.08.2005 the date when he was relieved from Uri Civil Project, but as per letter dated 28.12.2005 issued by the respondents, he was granted medical leave up to 17.11.2005. So, it cannot be stated that the petitioner was absent unauthorisedly w.e.f 06.08.2005 to 17.11.2005. The said period of absence of petitioner was authorized by the respondents. Therefore, his termination order has to be treated from 17.11.2005 and not from 06.08.2005 as has been done by the respondents in terms of the impugned order of termination.

30 From the foregoing discussion of the facts established on record, it appears that the conduct of the petitioner has been defiant and obstinate, inasmuch as, he has refused to comply with the order of transfer which is an incident of service. It is not the case of the petitioner that his services were not transferable, therefore, he could not claim to remain at a particular place or at a particular post. Once the petitioner accepted the appointment with the respondents, he had to follow the administrative discipline and obey the transfer orders, but instead of doing so, he, on one pretext or the other, avoided to join new place of posting which was inconvenient to him. The petitioner could not claim to remain in service of the respondents at his own terms. By not submitting himself to the Rules and Regulations applicable to an employee, the petitioner has exposed himself to the charge of unauthorized absence and, therefore, he has rightly been held guilty of the said charge which has resulted in termination of his service.

Therefore, no fault can be found with the impugned action of the respondents.

31 For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. However, in view of what has been discussed hereinbefore, it is directed that the order of termination of the petitioner’s services shall take effect from 17.11.2005 instead of 06.08.2005 and he shall be paid his salary as per Rules for the period up to 17.11.2005.

Record be returned to the concerned.