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SCA/2115/1997 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2115 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=============================================================
MANOJ
H MISHRA - Petitioner(s)
Versus
UNION
OF INDIA & 3 - Respondent(s)
Appearance
:
MR GIRISH PATEL for
Petitioner(s) : 1,
MR JD AJMERA for Respondent(s) : 1 -
4.
==============================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 31/1/2007
ORAL
JUDGMENT
By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed for an appropriate writ, direction and/or
order declaring the order of revisional authority the respondent No.3
dated 20-8-1996 removing the petitioner from services, as illegal.
Petitioner has also challenged the order dated 20-8-1996 passed by
the appellate authority confirming the order of removal dated
30-3-1996.
2. Facts
leading to the present Special Civil Application as per the
petitioner are that the petitioner was working in the Nuclear Power
Corporation at Kakarapar Atomic Power Project (for short ?S the
KAPP??) in the post of Tradesman and was the President of Kakarapar
Unit Kendriya Sachivalaya Hindi Parishad. That he was selected as
General Secretary of the recognized union of Class III and Class IV
of KAPP on 7-2-1993. It is the case on behalf of the petitioner that
monsoon of 1994 was violent and there were heavy rains and water of
Kakarapar dam was flowing beyond the danger level. As a result, the
dam authorities had to open the gates and let water flow. That the
Kakarapar lake received the dam water through a canal which is an
inter-link. The water of the lake is used by the respondent
authorities for power generation. On the night of 15-7-1994, the
flood water entered in the Kakarapar lake and within no time, the
flood water entered into the plant. Before the next morning, more
than 25 ft. of the turbine which is adjacent to the Nuclear reactor
was submerged into the water and entire record room and computer room
were washed away. That apart, some of the barrels containing nuclear
wastes were also washed away by the flood water. On 16th
July, emergency was declared and the respondent authorities started
taking preventive measures. It is the case on behalf of the
petitioner that every one raised questions as to why and how the
flood water could not be prevented by the engineers in charge and why
emergency measures were not taken in the night to prevent flood water
from entering into turbine and other areas of the plant in the
operation island. That the respondent authorities placed the
petitioner under suspension by an order dated 5-7-1994 intimating him
that the disciplinary proceeding for major penalty was being
contemplated. The petitioner was served with a charge sheet dated
4-8-1994 alleging inter alia that the petitioner while functioning as
Tradesman/B in KAAP established contacts with press correspondence
and fed him with information which might have come to his possession
in course of his duty and has thereby criticized the project
management and cast aspersions on the authorities and has thus
committed breach of oath of secrecy warranting major penalty. An
inquiry officer was appointed by the disciplinary authority and the
preliminary hearing took place on 26-12-1994. It is the case on
behalf of the petitioner that a assurance was given by the respondent
No.2 that if the petitioner accepts the charges, in that case, a
lenient view will be taken of the entire matter and leniency would be
shown while imposing the punishment and therefore, the petitioner has
resigned on 23-9-1995 from the preliminary membership of the Union
and also admitted all the charges levelled against him and requested
the inquiry officer to close the proceeding through his Defence
Assistant. The inquiry officer declared the inquiry as closed. It is
the case on behalf of the petitioner that the inquiry officer
submitted the report and while concluding his report dated 20-12-1995
held all the charges against the petitioner as proved on the basis of
admission of all the charges by the petitioner. The inquiry officer
submitted his report on 20-12-1995 to the disciplinary authority. The
petitioner was served with the inquiry report on 4-1-1996 along with
a letter from the disciplinary authority giving a petitioner a chance
to make representation in view of the report submitted by the inquiry
officer. The petitioner made his representation on 16-3-1996. After
examining all the records and the inquiry report, the disciplinary
authority passed an order dated 30-3-1996 removing the petitioner
from service holding him guilty of charges framed against him. Being
aggrieved by and dissatisfied with the order of removal, the
petitioner preferred appeal before the respondent No.4 which came to
be rejected by order dated 27-5-1996 against which the petitioner
preferred representation before the revisional authority which also
came to be dismissed by order dated 20-8-1996. Against which, the
present Special Civil Application has been preferred under Article
226 of the Constitution of India.
3. Shri
Girish Patel, learned senior advocate appearing on behalf of the
petitioner has only made one submission that looking to the
allegations and the charges proved against the petitioner, the order
of removal is too harsh and the penalty imposed upon the petitioner
is disproportionate. It is submitted that when in good faith the
petitioner admitted all the charges and on assurance by the
respondent No.2 that if he admits all the charges, a lenient view
will be taken while imposing the punishment and therefore, it is
requested to consider the question of penalty.
4. Shri
JD Ajmera, learned advocate appearing on behalf of the respondents
while opposing the present Special Civil Application has vehemently
submitted that looking to the allegations and the charges proved
against the petitioner and when all the charges have been admitted by
the petitioner, the order passed by the respondents in removing the
petitioner is just and proper. It is submitted that looking to the
facts and the charges admitted and proved against the petitioner,
there is no question of taking any lenient view and the only penalty/
punishment which is required to be imposed is removal from service.
It is also specifically denied in the affidavit with regard to any
assurance given by the respondent No.2 as alleged by the petitioner
to the effect that if the petitioner accepts all the charges, a
lenient view will be taken. It is submitted that against the order of
removal, appeal was preferred which was considered by the appellate
authority and the appellate authority dismissed the appeal, against
which a further revision was filed and the same was also considered
by the revisional authority and the revisional authority also
confirmed the order of removal. Therefore, when all the three
authorities have taken a decision to remove the petitioner, it is
requested to dismiss the present Special Civil Application.
5. Heard
the learned advocates appearing on behalf of the parties.
6. The
petitioner was the employee of the Nuclear Power Corporation which is
under the department of Atomic Energy and which is a very sensitive
department, where strict discipline, more particularly
confidentiality is required to be maintained. The charge levelled
against the petitioner which has been subsequently admitted by the
petitioner are as under:
Article I: That Shri
Manoj Mishra, while functioning as Tradesman/B in the Kakrapar Atomic
Power Project, vide his letter on 18-6-1994 to the Editor, ?SGujarat
Samachar?? newspaper, Surat, unauthorisedly communicated with the
Press.
Article II: That the
said Shri Manoj Mishra, while functioning as Tradesman/B in the
aforesaid project, in the letter dated 18-6-1994 written by him to
the Editor, Gujarat Samachar made certain statement or expressed
certain opinions, which amounted to criticism of the Project
management or casting of aspersion on the integrity of its
authorities.
Article III: That the
said Shri Manoj Mishra, while functioning as Tradesman/B in the
aforesaid project, though his letter dated 18-6-1994, he wrote to the
Editor of the Gujarat Samachar unauthorisedly communicated to the
Press official information concerning the Kakrapar Atomic Power
Project.
Article IV: That the
said Shri Manoj Mishra, while functioning as Tradesman/B in the
aforesaid project established contact with a Press correspondent to
feed information enabling the press to create news story about the
Project containing inflammatory and misleading information causing
embarrassment to, and damaging the
reputation of the Project and the NPCIL.
Article V: That the
said Shri Manoj Mishra, while functioning as Tradesman/B in the
aforesaid project, established contacts with the Press correspondent
and fed him with vital information which has come into his possession
in the course of his duty as Tradesman/B in the Project, enabling the
press to create a news story about the Project creating embarrassment
to the Project as swell as to the State authorities. Shri Manoj
Mishra has thus committed breach of oath of secrecy which he took at
the time of joining the Project.
It
is required to be noted that the petitioner admitted all the charges.
Now it is the contention on behalf of the petitioner that an
assurance was given by the respondents that if the petitioner admits
the charges, a lenient view will be taken. However, the same has been
denied by the respondents. As per the respondents, no such assurance
has been given. Even, otherwise, assuming that the petitioner would
not have accepted the charges, in that case also, looking to the
documentary evidence, more particularly, the press report, it was not
possible for the petitioner to get out of the same. The petitioner
was serving in a department of Atomic Energy which is most sensitive
department and where strict discipline, more particularly
confidentiality is required to be maintained. The petitioner went to
the press, shared the information with the press which was not
required to be shared and when considering the said, charges held and
proved and even admitted by the petitioner, when the order of removal
ha been passed which has been confirmed by two higher authorities, it
cannot be said that the order of removal is disproportionate to the
charges held and proved against the petitioner. It is required to be
noted at this stage that the charges are very serious in nature, more
particularly considering the department in which the petitioner was
serving. Petitioner came to be removed against which an appeal was
filed which came to be dismissed, against which revision application
was filed which also came to be dismissed.
This Court is not sitting as an appellate authority against the
decision of the disciplinary authority. At this stage, the judgment
of the Hon’ble Supreme Court in the case of Govt. of A.P. And
others V. Mohd. Nasrullah Khan reported in (2006) 2 SCC 373 and
in the case of Syed T.A. Naqshbandi and others V. State of Jammu
and Kashmir and others reported in (2003) 9 SCC 592 are required
to be referred to and considered. It is observed by the Hon’ble
Supreme Court that the High Court exercising the power of judicial
review under Article 226 of the Constitution does not act as an
Appellate Authority. Its jurisdiction is circumscribed and confined
to correct errors of law or procedural error, if any, resulting in
manifest miscarriage of justice or violation of principles of natural
justice. It is also observed by the Hon’ble Supreme Court in the case
of Damoh Panna Sagar Rural Regional Bank and another V. Munna Lal
Jain reported in (2005) 10 SCC 84 that the Court would not go
into the correctness of the choice made by the administrator open to
him and the Court should not substitute its decision for that of the
administrator. The scope of judicial review is limited to the
deficiency in decision making process and not the decision. The Court
should not interfere with the administrator’s decision unless it is
illogical or suffers from procedural impropriety or is shocking to
the conscience of the Court, in the sense that it is in defiance of
logic or moral standards. Unless the punishment imposed by the
disciplinary authority or the appellate authority shocks the
conscience of the Court/tribunal, there is no scope for interference.
Further, to shorten litigations it may, in exceptional and rare
cases, impose appropriate punishment by recording cogent reasons in
support thereof. When a Court feels that the punishment is shockingly
disproportionate, it must record reasons for coming to such a
conclusion. Mere expression that the punishment is shockingly
disproportionate would not meet the requirement of law. In the normal
course, if the punishment imposed is shockingly disproportionate it
would be appropriate to direct the disciplinary authority or the
appellate authority to reconsider the penalty imposed.
7. In
view of the above and seriousness of the charges admitted by the
petitioner and thereafter held proved against the petitioner by the
disciplinary authority and when the petitioner is removed from
service, it cannot be said that there is any illegality committed by
the respondents and that looking to the charges proved against the
petitioner, it cannot be said that order of removal is
disproportionate to the charges. Even on the facts of the case and
charges levelled against the petitioner, this Court is also of the
firm opinion that except punishment of removal, no other punishment
is required to be imposed against the petitioner.
8. For
the reasons stated above, the petition fails and dismissed
accordingly. No costs.
(M.R.SHAH,J.)
shekhar/-
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