advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, November 9, 2013

Service - matter = Disproportionate punishment to the negligence proved - Dismissal orders quashed - directed to pay retire benefits and pension as he was dismissed just 6 days prior to his retirement date = GIRISH BHUSHAN GOYAL APPELLANT Versus B.H.E.L. & ANR. RESPONDENTS = Published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40954

Service - matter = Disproportionate punishment to the negligence proved - Dismissal orders quashed - directed to pay retire benefits and pension as he was dismissed just 6  days  prior  to  his  retirement  date =

“25(1). No order imposing any of  the  major  penalties  specified  in
      Clause (f), (g), (h), (i) and (j) of Rule  23  shall  be  made  except
      after an enquiry is held in accordance with the rule.
      Proceedings under this Rule may be initiated, for conduct which  lends
      itself to both criminal prosecution as well  as  disciplinary  action,
      not withstanding that a criminal case against the employee in  respect
      of the same conduct is under investigation or trial”.
                                        (Emphasis supplied)


  13. The major punishment which is awarded to  the  appellant  through  the
      order of dismissal dated 18.3.2009, is covered  under  Rule  23(i)  of
      BHEL Conduct Rules considering that the appellant had reached the  age
      of superannuation. 
However, the order of termination does not  mention
      any form of criminal  charges  against  him,  which  is  necessary  to
      attract penalty under Rule 23(i) of BHEL Conduct  Rules  amounting  to
      dismissal from service. 
On the  other  hand,  the  nature  of  charges
      leveled against the appellant was such that he omitted from performing
      his duty of being a responsible vigilant  officer  which  amounted  to
      being negligent as against being an active  participant  in  colluding
      with the  employees  against  his  employer  and  acting  against  the
      interest of the Company.=

In the case of  Surendra  Prasad  Shukla  v.  State  of
      Jharkhand & Ors.[1], at paras 9-10, this Court held as under:

      “9. There was no charge against the appellant that he had in  any  way
      aided or abetted the offence under Section 392 IPC  or  that  he  knew
      that his son had stolen the car and yet he did not inform the  police.
      
The appellant, as we have held, was guilty of negligence of not having
      enquired from his son about the car kept in front  of  the  government
      quarters occupied by him. 
The appellant had served the Government as a
      Constable and thereafter as a Head Constable from 7-8-1971 till he was
      dismissed from service on 28-2-2005 i.e. for 34 years,  and  for  such
      long service he had earned pension. In  our  considered  opinion,  the
      punishment of dismissal of the appellant from service so as to deprive
      him of his pension for the service that he had rendered  for  34  long
      years was shockingly disproportionate to the negligence proved against
      him.=


dismissal order served
      on the  appellant  just  6  days  prior  to  his  retirement  date  is
      exorbitant  and  disproportionate  to  the   gravity   of   misconduct
      particularly, because he was not involved in active collusion with the
      other employees of the Company who were involved in this incident, for
      causing financial loss to the respondent-Company but was negligent  by
      an act of omission. 
We also should not lose sight of the fact that the
      appellant took steps to retrieve the materials which were due  against
      the Bill from the suppliers which rectified  the  error.  
Accordingly,
      the order of dismissal served on him is liable to be  quashed  and  is
      accordingly, quashed.  
However, we cannot lose sight of the fact  that
      his negligence has caused financial loss  to  the  respondent-Company.
      Therefore, keeping at par with the punishment awarded to Sh. B.S. Rana
      on ground of misconduct in terms of demotion  to  lower  grade  for  3
      years as per letter dated 6.6.2011  from  Central  Public  Information
      Officer, we award the similar punishment  of  deduction  of  one  year
      increment on the appellant as per Rule 23 (b)  of  the   BHEL  Conduct
      Rules since the appellant already reached the  age  of  superannuation
      when the order of dismissal was served on him.  Accordingly, the Civil
      Appeals arising out of SLP (C) Nos.30883-30884 of 2012 are allowed.

Answer to point Nos. 2 and 3

  16. Since, we have answered point No. 1 in affirmative while allowing  the
      Civil Appeals arising out of SLP (C) Nos.30883-30884 of 2012  and  the
      dismissal order served on the  appellant  is  quashed,  the  appellant
      becomes entitled to all the retiral and pensionary benefits under  the
      relevant Rules for which he is statutorily entitled  to.  
Accordingly,
      the Civil Appeal arising out of SLP (C) No.30877 of 2012 filed by  the
      appellant is also allowed.  
All  the  arrears  in  pension  and  other
      retiral benefits should be paid to him with interest at the rate of 9%
      per annum from the date of  application  till  the  date  of  payment.
      Since, the appellant was terminated from his service just 6 days prior
      to his retirement whereby there was  no  further  possibility  of  any
      increment, his last one year increment is liable to be  deducted  from
      the arrears which he is statutorily entitled to.

  17.  The  appeals  are  accordingly  allowed.  

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                     CIVIL APPEAL NOS. 9868-9869 OF 2013
              (ARISING OUT OF SLP(C) NOS. 30883-30884 OF 2012)


GIRISH BHUSHAN GOYAL                        APPELLANT

                                   Versus

B.H.E.L. & ANR.                             RESPONDENTS


                                    WITH

                        CIVIL APPEAL NO. 9870 OF 2013
                  (ARISING OUT OF SLP(C) NO. 30877 OF 2012)



                               J U D G M E N T



V. Gopala Gowda, J.


      Leave granted.


   2. The appellant has filed two separate Civil Appeals before this  Court.
      The Civil Appeals arising out of SLP (C) Nos. 30883-30884 of 2012  are
      filed questioning the correctness of  the  judgment  and  order  dated
      20.12.2010 passed in the Writ Petition No. 129 of 2009 (S/B) and order
      dated 28.6.2011 passed in the Review Application No. 431  of  2011  to
      the Writ Petition No. 129 of 2009 (S/B), whereas Civil Appeal  arising
      out of SLP (C) No.30877 of 2012 is filed against  the  judgment  dated
      22.2.2011 passed in Writ Petition No. 292 of 2009 (S/B)  by  the  High
      Court of Uttarakhand at  Nainital,  urging  various  facts  and  legal
      contentions in justification of his claim.

   3. Through Civil Appeals arising out of SLP (C) Nos.30883-30884 of  2012,
      the appellant challenged the impugned order of the High Court by which
      the High Court dismissed the Writ Petition No. 129 of 2009 and  Review
      Application No. 431  of  2011  filed  by  the  appellant  against  the
      termination Order of his service. Through the Civil Appeal arising out
      of SLP (C) No.30877 of 2012, the appellant claims the  pensionary  and
      other monetary service benefits due to him against  three  decades  of
      service rendered by him which has been  withheld  by  the  respondent-
      Company.

   4. Necessary relevant facts are stated hereunder to appreciate  the  case
      of the appellant and  also  to  find  out  whether  the  appellant  is
      entitled for the relief as prayed in these appeals.

   5. The appellant joined the service of the respondent-Company in 1970 and
      rose to the post of D.G.M. [Deputy General Manager]. He was to  retire
      on 24.3.2009. It is the case of the appellant that four  months  prior
      to his retirement, an enquiry was initiated against him. The appellant
      accepted the charges of negligence on his part and also explained that
      the negligence was a part of  the  chain  system  which  included  his
      superiors as well as his subordinates.

   6. It is further the case of the appellant that it is he who carried  out
      a routine verification of the stock in the month of July-August,  2008
      when he realized that there  were  some  major  discrepancies  in  the
      stocks of tea-leaves and milk powder in the canteen  which  was  under
      his supervision by virtue of being in-charge of the canteen  (HR).  He
      therefore carried out a physical  store  checking  and  a  report  was
      prepared accordingly on 30.8.2008. The appellant thereafter, issued  a
      notice to Sh. B.S. Rana, the in-charge of Canteen Store  Operation  on
      10.9.2008. Since there was no  reply  to  the  aforesaid  notice,  the
      appellant informed the superior  authority  regarding  the  matter.  A
      notice was also sent to the suppliers of  the  tea-  leaves  and  milk
      powder. The suppliers – ‘Gupta & Co.’ and ‘Bombay Sales’ have admitted
      to the discrepancy in supply. They further  admitted  that  the  goods
      which have not been supplied against the Bill were lying with them and
      they were ready to supply the deficient material. However,  after  the
      conclusion of enquiry and six days prior to the retirement date of the
      appellant, he was served with the notice of termination.

   7. It is further the claim of the appellant that his  termination,  which
      is based on the findings of the Enquiry Officer,  is  not  sustainable
      for various reasons.  Firstly,  the  report  of  the  Enquiry  Officer
      nowhere mentions the loss of Rs.35 lakhs caused by the appellant as is
      blamed  against  him.  Secondly,  no  charges   of   embezzlement   or
      misappropriation have been leveled against the appellant either in the
               charge-sheet or anywhere in the  report.  Thirdly,  the  term
      ‘irregularity’ used in  the  Enquiry  Report  has  been,  without  any
      reason, converted to the term ‘malpractice’ in the  termination  order
      served on the appellant. Therefore, it is urged by the appellant  that
      a bona fide mistake has been portrayed as a malicious act on the  part
      of the appellant for extraneous reasons.

   8. It is the further claim of the appellant that his superiors  who  were
      also involved in the chain of  events  have  been  relieved  from  any
      accusation. His juniors were  also  meted  with  minor  punishment  of
      stopping one increment, whereas the  appellant  was  served  with  the
      notice of termination  just  six  days  prior  to  his  retirement  on
      attaining  the  age  of  superannuation  thereby  negating  pensionary
      benefits for which the appellant is legally entitled  to  in  lieu  of
      three decades of service rendered to the respondent-Company.

   9. The High Court vide its judgment  dated  20.12.2010  opined  that  the
      claim of the appellant of being targeted for being  a  whistle  blower
      cannot be sustained since he did not raise this issue when enquiry was
      being held against him. Further, even  if  it  is  presumed  that  the
      appellant was a whistle blower, the same, according to the High Court,
      would suggest that the  appellant  was  aware  of  the  people  taking
      advantage of him to cause financial gain at the cost of  the  employer
      of the appellant. Despite that, the appellant did not produce anything
      on record to prove that he was doing something to protect the interest
      of the employer. Also, regarding the claim made by the appellant  that
      other people against whom the charge of negligence was made  were  not
      proceeded  against,  it  was  held  by  the  High  Court  that  though
      initiating simultaneous disciplinary proceedings against other persons
      involved in the issue may have been  possible,  the  appellant  at  no
      time, made any  request  to  any  authority  to  conduct  disciplinary
      proceeding against him along with others.

  10. In the light of the facts and circumstances of the case, the following
      points would arise for consideration:
   1. Whether the High Court was right in dismissing the appeal filed by the
      appellant against the Order of his dismissal  served  on  him  by  the
      respondent-Company?
   2. Whether the appellant is entitled to the pensionary and other monetary
      benefits which accrued to him against the service provided by  him  to
      the respondent-Company?
   3. To what relief is the appellant entitled to?


Answer to point No. 1

  11. While deciding on this issue, it is pertinent for us to ascertain  the
      responsibility of  the  appellant  against  which  he  has  been  held
      negligent and also his role in the same.
As  per  the  Enquiry  Report
      produced  against  him  which  is  annexed  with  the  appeal  by  the
      appellant, he was held negligent under Rules 5(5) and 5(9) of the BHEL
      Conduct, Discipline and Appeal Rules, 1975 (hereinafter referred to as
      the “BHEL Conduct Rules”) for being  negligent  while  performing  his
      duty and acting in a manner which is prejudicial to  the  interest  of
      his employer.
The Enquiry Report reads as under:
      “….As in-charge  of  the  canteen  [HR-  Canteen],  it  was  incumbent
      responsibility of Shri G.B. Goyal to conscientious  discharge  on  his
      side responsibility as the irregularities stated above amply prove has
      complicity beyond any shadow of doubt in the sordid  state  of  affair
      present in the canteen operations.


             XXX             XXX              XXX


      Mr. G.B. Goyal  has  admitted  the  charges  leveled  against  him  as
      contained in the Article of charges  as  elaborated  in  Statement  of
      Imputations of Misconduct stating that he had been  negligent  in  the
      performance of his duties in the  capacity  of  overall  in-charge  of
      canteen by placing blind reliance upon his subordinates operating in a
      three tier system of checking and verification”.



  12. From the perusal of the above findings  of  the  Enquiry  Report,  the
      allegation of misconduct of negligence  was  established  against  the
      appellant under Rules 5(5) and 5(9) of the BHEL Conduct Rules.

      It is therefore imperative  to  discuss  the  BHEL  Conduct  Rules  to
decipher if the conduct of the appellant amounts  to  misconduct  under  the
Rules to attract ‘major penalties’ to be imposed upon him  as  mentioned  in
Rule 25 of the BHEL Conduct Rules.
Rule 25 of BHEL Conduct  Rules  reads  as
under:
      “25(1). No order imposing any of  the  major  penalties  specified  in
      Clause (f), (g), (h), (i) and (j) of Rule  23  shall  be  made  except
      after an enquiry is held in accordance with the rule.
      Proceedings under this Rule may be initiated, for conduct which  lends
      itself to both criminal prosecution as well  as  disciplinary  action,
      not withstanding that a criminal case against the employee in  respect
      of the same conduct is under investigation or trial”.
                                        (Emphasis supplied)


  13. The major punishment which is awarded to  the  appellant  through  the
      order of dismissal dated 18.3.2009, is covered  under  Rule  23(i)  of
      BHEL Conduct Rules considering that the appellant had reached the  age
      of superannuation. 
However, the order of termination does not  mention
      any form of criminal  charges  against  him,  which  is  necessary  to
      attract penalty under Rule 23(i) of BHEL Conduct  Rules  amounting  to
      dismissal from service. 
On the  other  hand,  the  nature  of  charges
      leveled against the appellant was such that he omitted from performing
      his duty of being a responsible vigilant  officer  which  amounted  to
      being negligent as against being an active  participant  in  colluding
      with the  employees  against  his  employer  and  acting  against  the
      interest of the Company.

  14.  The consequence of the dismissal order served on him at  the  end  of
      his service tenure not only  results  in  inflicting  disproportionate
      punishment on him in terms  of  bad  name  and  reputation,  but  also
      deprives the appellant of his retiral benefits for which  he  has  got
      statutory entitlement for rendering three decades of  service  to  the
      Company whereas his negligence attracts minor penalty under Rule 23 of
      BHEL Conduct Rules. It is pertinent to mention the observation made on
      this issue  by  this  Court  on  the  premise  of  similar  facts  and
      circumstances. 
In the case of  Surendra  Prasad  Shukla  v.  State  of
      Jharkhand & Ors.[1], at paras 9-10, this Court held as under:

      “9. There was no charge against the appellant that he had in  any  way
      aided or abetted the offence under Section 392 IPC  or  that  he  knew
      that his son had stolen the car and yet he did not inform the  police.
      
The appellant, as we have held, was guilty of negligence of not having
      enquired from his son about the car kept in front  of  the  government
      quarters occupied by him. 
The appellant had served the Government as a
      Constable and thereafter as a Head Constable from 7-8-1971 till he was
      dismissed from service on 28-2-2005 i.e. for 34 years,  and  for  such
      long service he had earned pension. In  our  considered  opinion,  the
      punishment of dismissal of the appellant from service so as to deprive
      him of his pension for the service that he had rendered  for  34  long
      years was shockingly disproportionate to the negligence proved against
      him.


      10.  We  accordingly,  allow  this  appeal  in  part  and  modify  the
      punishment of dismissal from service to compulsory retirement. The LPA
      and the writ petition filed by the appellant before the High Court are
      allowed in part. There shall be no order as to costs.”



  15. Therefore, in view of the principle laid down by  this  Court  in  the
      above referred case, we are of the opinion that 
dismissal order served
      on the  appellant  just  6  days  prior  to  his  retirement  date  is
      exorbitant  and  disproportionate  to  the   gravity   of   misconduct
      particularly, because he was not involved in active collusion with the
      other employees of the Company who were involved in this incident, for
      causing financial loss to the respondent-Company but was negligent  by
      an act of omission. 
We also should not lose sight of the fact that the
      appellant took steps to retrieve the materials which were due  against
      the Bill from the suppliers which rectified  the  error.  
Accordingly,
      the order of dismissal served on him is liable to be  quashed  and  is
      accordingly, quashed.  
However, we cannot lose sight of the fact  that
      his negligence has caused financial loss  to  the  respondent-Company.
      Therefore, keeping at par with the punishment awarded to Sh. B.S. Rana
      on ground of misconduct in terms of demotion  to  lower  grade  for  3
      years as per letter dated 6.6.2011  from  Central  Public  Information
      Officer, we award the similar punishment  of  deduction  of  one  year
      increment on the appellant as per Rule 23 (b)  of  the   BHEL  Conduct
      Rules since the appellant already reached the  age  of  superannuation
      when the order of dismissal was served on him.  Accordingly, the Civil
      Appeals arising out of SLP (C) Nos.30883-30884 of 2012 are allowed.

Answer to point Nos. 2 and 3

  16. Since, we have answered point No. 1 in affirmative while allowing  the
      Civil Appeals arising out of SLP (C) Nos.30883-30884 of 2012  and  the
      dismissal order served on the  appellant  is  quashed,  the  appellant
      becomes entitled to all the retiral and pensionary benefits under  the
      relevant Rules for which he is statutorily entitled  to.  
Accordingly,
      the Civil Appeal arising out of SLP (C) No.30877 of 2012 filed by  the
      appellant is also allowed.  
All  the  arrears  in  pension  and  other
      retiral benefits should be paid to him with interest at the rate of 9%
      per annum from the date of  application  till  the  date  of  payment.
      Since, the appellant was terminated from his service just 6 days prior
      to his retirement whereby there was  no  further  possibility  of  any
      increment, his last one year increment is liable to be  deducted  from
      the arrears which he is statutorily entitled to.

  17.  The  appeals  are  accordingly  allowed.  
The  respondent-Company  is
      directed to pay the pension to which the appellant is entitled to  and
      also the arrears due to him, within eight weeks of the  receipt  of  a
      copy of this order. 
There will be no order as to costs.





                                                ……………………………………………………………………J.


                          [SUDHANSU JYOTI MUKHOPADHAYA]




                                     ……………………………………………………………………J.
                                   [V. GOPALA GOWDA]


New Delhi,
November 1, 2013
-----------------------
                           [1]    (2011) 8 SCC 536

                           -----------------------
                                     15


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.