B. Balachandra Rai vs Indian Telephone Industries … on 3 February, 2003

Karnataka High Court
B. Balachandra Rai vs Indian Telephone Industries … on 3 February, 2003
Equivalent citations: 2003 (5) KarLJ 79
Author: V G Gowda
Bench: V G Gowda


ORDER

V. Gopala Gowda, J.

1. The petitioner, who is the Personnel Officer of Indian Telephone Industries (hereinafter referred to as ‘the Company’), has filed this writ petition seeking to quash the impugned memorandum at Annexure-P, dated 19-3-1996 issued by the 2nd respondent-Chairman and Managing Director of the Company imposing penalty by reducing him to lower post of Grade II with condition that he should be restored to Grade III after two years and treating the period of suspension as not spent on duty, A direction is also sought by him to grant him all the consequential benefits and to restore the order of memorandum produced at Annexure-Q by which he was exonerated from the charges levelled against him.

2. The facts of the case in brief are stated as under.-

(i) The Central Bureau of Investigation (CBI) filed C.C. No. 2503 of 1992 under Sections 417, 419 and 420 read with Sections 511 and 120B of the IPC against the petitioner and one M.V.V.

Reddy, Chairman of All India Economic Offences Awareness Bureau (AIEOAB), a voluntary organisation engaged inter alia in the prevention of malpractices of the big industrialists. The allegation was that they demanded amounts from some of the industries like Widia (India) Limited, BPL etc. Consequently, the petitioner was kept under suspension by the Company. The Magistrate Court vide order at Annexure-A, dated 22-2-1993 discharged the accused person’s holding that there are no grounds to frame charges. The CBI challenged the said order in Cri. R.P. No. 217 of 1993 and this Court upheld the order of the Magistrate Court vide order at Annexure-T, dated 28-9-1997.

(ii) On 4-10-1993, the Company served charge-sheet upon the petitioner alleging that he had unauthorisedly accepted the appointment order as Regional Director (Vigilance) of AIEOAB and along with others attempted to obtain amounts on 2-7-1991 and 3-7-1991 thereby failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of an employee of the Company and thus he had contravened Rule 4 of Indian Telephone Industries (Conduct, Discipline and Appeal) Rules, 1975 (hereinafter referred to as ‘the rules’). The petitioner submitted his written statement as per Annexure-C, dated 13-2-1993 denying the charges and requested to drop the proposed disciplinary proceedings against him. However, Enquiry Officer was appointed to conduct departmental enquiry proceedings against the petitioner to enquire into the truth or otherwise of the charges alleged against him. In the first instance, one Prabhakaran of the Company was appointed as the Presenting Officer but subsequently an Inspector of CBI by name M. Ramesh was appointed as the Presenting Officer though he was not nominated by the Disciplinary Authority to present the case before Enquiry Officer. It is alleged by the petitioner that enquiry was conducted with certain procedural irregularities, which has caused prejudice to him, This will be dealt with later. The Enquiry Officer after concluding the enquiry has submitted his report as per Annexure-G, dated 27-4-1995 holding that the petitioner is guilty of the charges.

(iii) The Disciplinary Authority has disagreed with the enquiry report and exonerated the petitioner from the charges. However, a further enquiry report was submitted as per Annexure-H, dated 20-9-1995 at the instance of the Disciplinary Authority wherein it is stated that there is no need to change the earlier report submitted by the Enquiry Officer at Annexure-G. The Disciplinary Authority vide Annexure-J, dated 25-7-1995 disagreed with the enquiry report and held that the petitioner was not guilty of the charges. The same was reiterated under Annexure-L, dated 14-11-1995 after receipt of the second report of the Enquiry Officer.

(iv) Against the conclusion of the Disciplinary Authority as per Annexure-L, dated 14-11-1995, the Executive Director (Vigilance) of the Company had preferred revision petition under Rule 33 of the Rules to the 2nd respondent as per Annexure-M, dated 4-1-1996 seeking to set aside the order of the Disciplinary Authority and to impose major penalty of dismissal from service upon the petitioner as the Enquiry Officer held that the charges are proved and therefore, it warrants major penalty. It is asserted that the order of exoneration passed by the Disciplinary Authority is not only contrary to evidence on record but erroneous in law. The petitioner has filed his reply to the show-cause notice issued to him as per Annexure-N inter alia questioning the locus standi of the Executive Director (Vigilance) to file revision petition. The 2nd respondent passed the impugned order at Annexure-P, dated 19-3-1996 imposing the penalty on the petitioner as mentioned in the first paragraph of this order. The legality, validity and correctness of the same is questioned in this writ petition by the petitioner urging various legal contentions.

3. In this case, admittedly, the Disciplinary Authority twice disagreed with the enquiry report of the Enquiry Officer and held that the petitioner is not guilty of the charges levelled against him. When the Disciplinary Authority himself came to the said conclusion, there was no occasion for filing revision petition against the said order from the management side. On this ground alone the impugned order is liable to be set aside.

4. The Executive Director (Vigilance) who filed the revision petition is not a party to the proceedings nor he is ‘aggrieved person’. In the case of Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors., , relied upon by the learned Counsel for the petitioner, the Apex Court has held that “Party aggrieved” or “person aggrieved” means directly and immediately affected persons. In this case, the Executive Director (Vigilance) is neither a person directly affected nor immediately affected. He is not Competent Authority under the rules to exercise his revisional power under Rule 33 of the Rules. Such being the case, he had no locus standi to file the revision. The revision petition filed by him is without the authority of law and therefore the revisional proceedings initiated by the second respondent are not maintainable in law. It follows that the impugned order passed by the second respondent on such revision is not legal and valid and is wholly unsustainable in law.

5. The very fact that the Executive Director (Vigilance) has took interest to file revision petition and sought for imposition of penalty of dismissal of the petitioner from service clearly shows that he is biased against the petitioner. Otherwise, there was no occasion for him to do so. Since the filing of revision petition itself is by a biased person, the 2nd respondent ought not to have entertained the same.

6. In the criminal case filed against the petitioner and others since they have been discharged holding that there are no grounds to frame charges and as the said order has been affirmed by this Court in Cr. R.P. No. 217 of 1993, insofar as this petitioner and another, initiation of proceedings on the same charges by the Disciplinary Authority were wholly unwarranted. Consequently, the order passed thereon cannot be sustained in law.

7. The interesting aspect of the case is, the allegation against the petitioner is with regard to attempts made to obtain money from other industrial establishments at Bangalore as a personnel of AIEOAB, which is not connected to the Company nor is it a part or unit or department of the Company. The allegations do not constitute ‘misconduct’ related to Company affairs or an act committed in the discharge of the duties of the Company. Even if the allegations are to be true, it was for the persons affected by the act of the petitioner to take appropriate legal action. In fact, such action was taken by the CBI filing case against the petitioner and others and that had culminated in discharge. In the circumstances, the Company ought not to have initiated disciplinary proceedings on the similar charges in respect of the alleged misconduct under the rules. Consequently, the order passed based on such proceedings is wholly unwarranted and cannot be sustained in the eye of law.

8. Though in the first instance the Manager of Internal Audit of the Company was appointed as Presenting Officer, subsequently he was replaced by an Inspector of CBI. The subsequent Presenting Officer does not belong to the Company and he cannot present the case on behalf of the Company. The Inspector of CBI could not be Presenting Officer for the management as the case filed by the CBI against the petitioner and another ended in futile exercise. He also cannot be the Presenting Officer especially when he was not nominated by the Disciplinary Authority. It follows that the case presented by him is bad in law as he was incompetent to do so. In other words, the case presented on behalf of the Company by an incompetent person, the enquiry report submitted and the order passed based on the same are all bad in law and liable to be quashed.

9. The Enquiry Officer relied upon the Xerox copies of 14 documents produced on behalf of the Company in proof of the charges levelled against the petitioner. Neither the originals nor certified copies of the same are produced and proved the contents of the same as required in law. Mere production of Xerox copies do not amount to proof of the same unless foundation is laid for adducing secondary evidence as the substantive provisions of the Indian Evidence Act are applicable to the enquiry proceedings in view of the fact that the adverse findings recorded in the enquiry proceedings on the basis of such evidence would entail serious civil consequences upon the petitioner. Further, the contents of the said documents are not proved by examining either the authors of such documents or competent persons. In the elaborate statement of objections filed to this writ petition by the respondents, at paragraph 5.10 production of Xerox copies is admitted. The Company justified the same in paragraph 5.11 as under.-

“5.11. The petitioner has not challenged during the cross-examination of the concerned witnesses that the originals of these documents are not the same as these copies. Since the Enquiry Officer has no power, authority or jurisdiction to issue summons to the High Court to send the originals of these documents which are on the file of criminal revision petition referred to above and since the petitioner was insisting for an early disposal of the inquiry and as the High Court had fixed the period during which the enquiry had to be concluded the procedure followed by the Inquiry Officer is justified and moreover, it is not made out by the petitioner that any injustice has been caused to him”.

The justification sought to be made cannot be accepted. Once a document is relied upon, the same will have to be proved in the manner prescribed by law. Non-challenge of the copies or time-limit prescribed to complete the proceedings or production of original in this Court are not valid reasons. If the original documents had been produced before this Court, nothing prevented the management from obtaining the certified copies and produce them in the enquiry proceedings. The enquiry report based on the documents not proved in accordance with law is bad in law and the order impugned passed based on the findings of the enquiry report is wholly unsustainable in law.

10. One more peculiarity of this case is that the Enquiry Officer submitted his report as per Annexure-G, dated 27-4-1995 holding the petitioner is guilty of the charges. The Disciplinary Authority vide Annexure-J, dated 25-7-1995 disagreed with it and held the petitioner not guilty of the charges. Thereafter, from the opening sentence of Annexure-H, it is seen that the Disciplinary Authority wrote a letter dated 4-8-1995 to the Enquiry Officer. The contents of the same are not known. In reply to the same, the Enquiry Officer sent his parawise comments and concluded that there is no need to change the enquiry report dated 27-4-1995. After the Disciplinary Authority held that the petitioner is not guilty of the charges, there was no occasion for him to write to the Enquiry Officer and the Enquiry Officer should not have sent his parawise comments. Thus, the procedure adopted by the Enquiry Officer vitiates the proceedings.

11. I have carefully perused the enquiry report at Annexure-G. The details of the same are as under.-

1. Introduction

2. Discharge order

3. Enquiry process

4. Gist of the charges

5. Objections raised by the petitioner

6. Involvement of petitioner with AIEOAB and reactions of CBI

7. Deposition of witnesses

8. Delay in submission of report

9. Summary

10. Conclusion

In the headings 1 to 9 only the facts of the case or contents of documents and evidence adduced are narrated. The conclusion is ended as under.-

“With the foregoing, I as the enquiring authority, after having carefully gone through the material evidence and the deposition of witnesses find Shri B. Balachandra Rai, St. No. 3626 L, Assistant Personnel Manager, charged officer, guilty of the charges levelled against him in the charge-sheet”.

From the above it is crystal-clear that the Enquiry Officer has not assigned reasons for his conclusions in support of the findings recorded in the report. All that he has stated is that “after having carefully gone through the material evidence and the deposition of witnesses” he found the petitioner guilty of the charges levelled against him. This Court cannot accept such report of the Enquiry Officer, which contain mere narration of facts or statements and contents of documents without appreciating the same and assigning valid and cogent reasons in support of the conclusions and findings recorded against the petitioner. The impugned order based on such a bald report is wholly unsustainable in law.

12. The Revisional Authority has not properly considered the reply statement filed by the petitioner to the show-cause notice calling upon him to state as to why the order of exoneration of the Disciplinary Authority shall not be reversed. On this ground also the impugned order is liable to be quashed.

13. The impugned order is double jeopardy as it not only brought the petitioner to lower grade but put him on observation for two years for restoration. It is nothing but a probation order. Either the petitioner has to be exonerated from the charges or if he is held guilty, punishment should have been imposed without imposing the condition of observation for two years. The punishment imposed upon the petitioner is strange and unknown to disciplinary proceedings. On this ground also the impugned order is liable to be quashed.

14. For the reasons stated above, the justification of the impugned order sought to be made out by the respondents in the statement of objections or by their learned Counsel, is wholly untenable and deserves rejection. On the other hand, arguments advanced by the learned Counsel for the petitioner are well-founded. Hence, I proceed to allow the petition.

15. Writ petition is allowed and the impugned order is quashed. Respondents are hereby directed to grant the consequential benefits to the petitioner.

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