JUDGMENT
1. The petitioner, who has been removed from service under rule 23 of Bharat Heavy Electricals Limited (Conduct, Discipline and Appeal Rules, 1975 (hereinafter referred to as ‘the Rules’), has filed this writ petition challenging the order of removal from service and for directions that after quashing the impugned order the petitioner be declared to have continued in service with all benefits.
2. The facts, in brief, are that the petitioner, who is a qualified science graduate with Bachelor of Engineering Degree from Roorkee and who is stated to have brilliant academic record and had also received training in U.S.S.R. in design and production and held certain responsible positions in different public undertakings had joined the respondent undertaking as Senior Manager with effect from February 15, 1977, and was promoted as Deputy General Manager with effect from April 2, 1982, in the pay scale of Rs. 2250-2750, was dealt with disciplinary proceedings on the basis of the two charges against him, firstly, that he while functioning as Deputy General Manager, Panipat, during the period December 1982 to January 1983 had preferred false LTC claim in respect of the journey from Howrah to Varanasi purported to have been performed by him and his family members from December 31, 1982 to January 1, 1983, in First Class against ticket Nos. 9014-9017 and 3229 and 3226 which shows that he had failed to maintain absolute integrity and acted in a manner unbecoming of a public servant thereby violating Rule 4 of the Rules and secondly, that while he applied for grant of one advance increment and cash incentive in terms of relevant instructions on the basis of certificate of Dr. P. N. Shukla, Senior Surgeon, Combined Hospital, Chandauli countersigned by its Superintendent certifying that the petitioner was vasectomised on January 1, 1983, in that hospital and another certificate without any date issued by Dr. B. N. Shukla certifying that the sperm count of the petitioner found that vasectomy operation had been completely successful whereas, in fact, the petitioner did not get any vasectomy operation and sperm count done at the said hospital at any time and had sought advance increment and cash incentive on false grounds which acts of the petitioner showed that he had not maintained absolute integrity and acted in a manner unbecoming of a public servant thereby violating Rule 4 of the Rules.
3. The backdrop of the holding of disciplinary inquiry was on the basis of suspicion entertained by Shri Anil Khanna, Senior Personnel Manager, regarding the genuineness of the petitioner’s claim of grant of advance increment on the basis of vasectomy operation undergone by him as he opined that good facilities for such like operation are available at Panipat and Delhi and it was really somewhat abnormal that the petitioner who was enjoying his LTC trip should have got himself operated by breaking journey at Varanasi and the too from a far flung hospital from Varanasi and he should travel after the operation on the same day and reach Delhi on the next day and resume his duty in time. Shri R. N. Sharma, Senior Security and Vigilance Officer, made certain spot inquiries at the hospital and submitted his report dated July 29, 1983, recommending for holding an inquiry. On July 4, 1984, a memorandum containing charges mentioned above was served on the petitioner and after recording evidence the Inquiry Officer Shri A. R. Banerjee held the petitioner guilty of both the charges and on the basis of the inquiry report the penalty of removal from service was imposed on the petitioner by the respondent. It is undisputed fact that Shri B. S. Samant, Director (power), had ordered for holding of disciplinary inquiry and he had also passed the impugned order of removal of the petitioner from service.
4. Counsel for the petitioner has challenged the impugned order on the following grounds, firstly, that the appointing and disciplinary authority in respect of the petitioner was Chairman and Managing Director as mentioned in Rule 8.5 of the Recruitment Rules of BHEL and also according to the delegation of powers on disciplinary matters under Rules 20, 34, 30 of the Rules, whereas Shri B. S. Samant, Director (power), neither being the appointing authority nor being the disciplinary authority, had no power to order the holding of disciplinary inquiry against the petitioner and to pass the impugned order; secondly. That the whole of the disciplinary inquiry stood vitiated on account of petitioner being not provided with any proper defense assistant in as much as his request to have the service of a retired employee of BHEL, who was practicing as an advocate, was declined, whereas the Presenting Officer, who was conducting the proceedings on behalf of the department before the Inquiry Officer was a duly qualified legal man; thirdly, that the evidence produced before the Inquiry Officer was totally deficient from which no prudent man could have come to the conclusion that the charges against the petitioner stood proved; and lastly, that the punishment imposed on the petitioner was totally disproportionate to the nature of the charges proved against the petitioner. I will take up these points in seriatim for decision.
5. FIRST POINT :
Rule 8.5 of the Recruitment Rules of the respondent makes it clear that the Chairman and Managing Director is the appointing authority for appointments to the posts in E-5 grades and above except to which appointments are made by the Government. It is significant to mention that this fact was clearly pleaded by the petition in paragraph 26 of the writ petition but corresponding para 26 of the counter filed by the General Manager on behalf of the respondent only says this particular paragraph quotes merely Rule 8.5 but the appointment order in respect of the petitioner was signed by Deputy General Manager (PP&CD) and that Rule 8.5 has no relevance in this case and it was pleaded that the Functional Director has full power to order dismissal or removal of all employees and reference shall be made to the necessary rules at the time of arguments. It was also pleaded by the respondents in that counter that Functional Director is competent to award the major penalty to the petitioner as per delegation of power under the disciplinary rules. In ground No III in the writ petition, the petitioner had again reiterated his plea that the disciplinary proceedings have not been ordered by the competent authority and order of removal also has not been made by the competent authority. In reply in the counter a bald plea has been taken that the disciplinary proceedings were initiated and punishment was awarded by a competent authority. In para 25 of the counter, it was pleaded that Shri B. S. Samant, Director (Power), was fully competent to order the departmental inquiry against the petitioner under the relevant rules of the company. At nowhere in whole of the counter it was pleaded that Shri B. S. Samant, Director (Power) was working as Functional Director under the Rules. It is evident that the appointing authority in respect of the petitioner is clearly the Chairman and Managing Director. Now coming to the BHEL (Conduct, Discipline and Appeal) Rules 1975, the petitioner in para 27 of the writ petition produced the relevant extracts showing the competent authorities for imposing the penalties. It is mentioned therein that Chairman and Managing Director and Functional Directors have full powers of dismissal or removal from service of all the employees. In the book titled “Personnel Manual”, third edition (July 1985), prepared by the respondent, at page (iv) ‘Originisation Chart’ has been printed which shows that at the top of the Organisation there is Board of Directors, then comes Chairman and Managing Director and then the Management Committee and there are then Director (Personnel) heading one department, Director (Power) heading another department and similarly there are different Directors heading different departments shown in this Organisation Chart. No Director has been shown as Functional Director in this Chart. Assuming for the sake of arguments that Director (Power) and other Directors holding different departments could be termed as “Functional Directors” as they are performing certain duties and functions in the Organisation with regard to the business of the Organisation, even then such a Functional Director cannot act as disciplinary authority for the petitioner in as much as in the schedule showing the delegation of powers of disciplinary matters appearing at page 6.5.28 there is appended a note to the following effect :
“If an authority higher than the authority shown above actually appointed an employee, then the disciplinary powers will be exercised by such higher authority.”
6. The learned counsel for the respondents did not dispute the fact that Chairman and Managing Director is a higher authority than the Functional Director. That is obvious even from the pay scales of the said officers at page 1.71. This shows that the salary grade for Chairman and Managing Director is Rs. 4500 whereas the salary grade for the Director is Rs. 4000-125-4500. So, in the present case, the appointing authority of the petitioner is Chairman and Managing Director and it is not shown by the respondent that petitioner was actually appointed by any other authority. It has to follow that in view of the aforesaid provisions the disciplinary authority in respect of the petitioner could be only Chairman and Managing Director and not any Director even though that Director has been designated as Functional Director. On this point alone, the petitioner is liable to succeed. However, in order to complete the judgment, I give my findings on other points as well.
7. SECOND POINT :
At the time of commencement of the disciplinary proceedings against the petitioner the Rules provided that the delinquent employee could take assistance of any other employee but he was not entitled to engage the services of any ‘legal practitioner. On February 25, 1985, it was made clear that an employee may also take assistance of any retired BHEL employee. In the present case Shri D. N. Gupta, whom the petitioner wanted as defense assistant, was a retired BHEL employee, but he had become a lawyer and thus was not entitled to represent the petitioner. The request of the petitioner to have the assistance of Shri D. N. Gupta was declined on the sole ground that he was a practicing lawyer. The petitioner was required to select any other employee as his defense assistant but the petitioner did not select any other employee and rather the petitioner wanted the respondent to give him the names of the employees who might be Law Graduates from whom he could select anyone as his defense assistance. It was no part of the obligation of the respondent to supply any such information to the petitioner. It was for the petitioner to have made his choice from any of the employees of BHEL so that he could seek his assistance in the disciplinary proceedings. Mere fact that the departmental representative was holding a Law Degree does not mean that he was practicing lawyer so that petitioner should have been also allowed to have assistance of a legal practitioner. The charges framed against the petitioner were not so complicated as to need the assistance of any legally qualified person by the petitioner. In Sunil Kumar Banerjee v. State of West Bengal and others the question arose whether rejection of the prayer of the employee for engaging services of a lawyer in the disciplinary proceedings results in vitiation of the inquiry proceedings or not. It was held that where the employee has himself cross-examined the witnesses properly, no prejudice could be deemed to have been caused by declining the request of the employee for engaging a lawyer to defend him in the inquiry proceedings. Counsel for the petitioner has cited C. L. Subramaniam v. The Collector of Customs. Cochin (1972-I-LLJ-465) in which Rule 15(5) of the Central Civil service (Classification, Control and Appeal) Rules 1967, which provides that the Government servant may not engage a legal practitioner unless the disciplinary authority, having regard to the circumstances of the case, so permits, came up for consideration. In the cited case, it was found that the Presenting Officer was also a qualified legal person and complicated question arose during the inquiry proceedings and sound reasons had been given by the employee for getting the permission to engage the services of a lawyer but his prayer was declined without giving any good reasons. So, in the light of these facts it was held that refusal to permit the appellant to engage a legal practitioner in such circumstances had caused serious prejudice to the appellant and the same amounted to denial of reasonable opportunity to defend. The facts of the said case are distinguishable. Here, as already mentioned by me above, the charges of the petitioner were not complicated. They involved only questions of fact and there is nothing wrong in the department declining the prayer of the petitioner for engaging the services of a lawyer.
A perusal of the copies of the statements of the witnesses examined by the Inquiry Officer shows that they have been cross-examined by the petitioner on all relevant points. So, it cannot be held that any prejudice has been caused to the petitioner in his inability to have assistance of any lawyer. So, I do not find any merit in this point urged by the petitioner.
8. THIRD POINT
It is a settled law that this Court is not to act as appellate Court in appraising the evidence led before the Inquiry Officer to a different conclusion but if it is shown that the findings of the Inquiry Officer are based on no evidence or are perverse i.e. to say that no prudent man can give such findings on the basis of the evidence led before the Inquiry Officer or the Inquiry Officer had ignored certain material evidence which goes to the root of the matter or has misinterpreted some important evidence which has bearing on the merits of the charges, the Court can in such cases always interfere and set aside the findings of the Inquiry Officer upholding the charges.
9. Now coming to the first charge, it is indeed not even disputed by the Inquiry Officer that the petitioner had gone to Howrah as claimed by him and he had come back to Delhi via Varanasi from Howrah. The charge against the petitioner was that he committed a fraud in showing that he travailed from the Howrah to Varanasi on the basis of the tickets mentioned therein. The case of the petitioner, as put up before the Inquiry Officer and was almost proved from the evidence, was that he had made necessary reservations from Howrah to Varanasi bearing tickets Nos. 6764-67 and a B.P.T. for his child, in train No. 49 UP which was to leave on December 31, 1982, at 2.10 P.M. and he had boarded that train with his family members, but as he had not been provided berths, so he and his family members were feeling inconvenienced and they had the reservation only against cancellation and some person approached him and told him that he can help him in getting the necessary berths and in good faith he handed over the tickets to the said person and the said person disappeared with the tickets and the petitioner brought this fact to the notice of the Guard who issued a telegram on the same day regarding the loss of such tickets and copy of that telegram was duly proved in the Inquiry proceedings. It so happened that the petitioner was advised to alight from that train at Burdwan located at 100 Kms from Howrah so that he could go back to Howrah and purchase new ticket and catch another train going to Varanasi. It was also not disputed before me that the petitioner has already made booking for leaving Varanasi on January 1, 1983, in a train leaving at 9.00 P.M. So, it was necessary for the petitioner to reach Varanasi in time so that his reservations in the train leaving Varanasi do not fall through. So, according to the petitioner, he along with his family members returned to Howrah in the first available train from Burdwan and there he purchased tickets from a person who offered to render him help and the petitioner travelled by 5 UP Punjab Mail and reached Varanasi at 3.55 A.M. on the following day. He had put up the claim for LTC on the basis of the tickets which he procured from some person for travailing in 5 UP Punjab Mail. He also made clear that he had not taken any refund of tickets which he had lost in respect of the other train. The Inquiry Officer had held the charge against the petitioner only on the ground that the tickets, by which the petitioner claimed to have travelled, did not stand in his name and the Railway Rules and Regulations make it an offense for any person to travel on ticket reserved in the name of any other person. The charge against the petitioner was not that he had travelled in that particular train the tickets for which were not in his name; the charge against the petitioner was that he committed a fraud in showing that he travelled in that train against those tickets meaning thereby that, in fact, the petitioner had not at all performed the journey in that particular train and against those particular tickets. The Inquiry Officer had, for reasons unknown, ignored the material evidence produced by the petitioner in the shape of telegram given by the Guard of the train in which the petitioner had the proper reservation against cancellation as per tickets Nos. 6764-67 and a B.P.T. which clearly clichs that the story given by the petitioner was true that he lost those tickets and he was hard pressed by the circumstances to come back to Howrah and purchase new tickets, may be from some unauthorised person so that he and his family could leave Howrah for Varanasi on the same day so that the petitioner should not miss his train in which he had booked his seats at Varanasi. It is not out of place to mention that the petitioner was to join his duty on expiry of the earned leave on January 8, 1983. So the petitioner was definitely in a predicament as he had lost his tickets and perhaps he was not given proper advice that he should go on traveling in the same train and he could be issued duplicate tickets on payment of some money by the Guard but the petitioner cannot be blamed if the petitioner acting on the advice of the Guard thought it fit to go back to Howrah for purchasing new tickets and travel in another train. No fraud appears to have been committed by the petitioner vis-a-vis respondents in traveling against due tickets in the name of some other persons. The petitioner has been charged for misconduct. Rule 4 of the BHEL (Conduct, discipline and Appeal) Rules, 1975 defines in general manner as to the integrity and devotion expected from all employees of the respondent company. ‘Misconduct’ has been defined in various clauses. Clause (1) pertains to fraud or dishonesty committed by an employee in connection with the business or property of the company. The petitioner could be stated to have committed fraud with regard to the property of the company if the petitioner had put up any claim regarding LTC. From the facts as had come out in the inquiry, no prudent man could reach the conclusion that the petitioner had committed any fraud or dishonesty in connection with the business or the property of the company by putting up a claim in respect of the journey the petitioner actually performed but against tickets which were not in the name of the petitioner and his family members. Mere fact that the petitioner holding a high position in the company was expected not to purchase any tickets which are not in his name but it the names of some others does not mean that the petitioner had committed fraud as far as the respondent-company is concerned. If the petitioner had committed any violation of the Railways rules the petitioner could be prosecuted by the Railway. It is also to be highlighted here that it is only if the act or omission of the petitioner falls in any of the clauses covered by Rule 5 defining the ‘misconduct’ that the petitioner could be punished under Rule 23. Rule 23 lays down that penalties may be imposed on an employee for misconduct committed by such employee or for any other good and sufficient reasons. The words “for any other good and sufficient reasons” have to be read ejusdem generis with the words “for misconduct” appearing prior to these words in this very rule. So, unless and until the act or omission of the petitioner is covered by the term “misconduct” as defined in Rule 5 or may other rules appearing subsequent to Rule 5, the charge could not be brought home to the petitioner.
10. Rule 4 only lays down high expectation from the employees that they shall maintain absolute integrity and devotion to duty but the rule by itself does not define “misconduct” and it is not laid down in the Rule that any violation of Rule 4 by the employee would amount to misconduct. As the facts, which had come on the record before the Inquiry Officer, did not show that the petitioner had committed any misconduct as contemplated by Rule 5, so the petitioner could not be held guilty of this charge. In A. L. Kalra v. Project and Equipment Corporation of India Limited, (1984-II-LLJ-186) Rules 4 and 5 of the Rules of the company, which were similarly worded as Rules 4 and 5 of the respondent company, came up for consideration. It was held in this judgment by the Supreme Court that Rule 4 styled as “General” specifies a norm of behavior but does not specify that its violation will constitute misconduct. In Rule 5 it is nowhere stated that anything violative of Rule 4 would be a misconduct under any of the subclauses of Rule 5 which specifies “misconduct”. Rule 4, thus, being general and vague, cannot be telescoped into Rule 5. So, unless and until the facts alleged and proved against the petitioner show that the petitioner had committed misconduct as contemplated by Rule 5, the petitioner cannot be held guilty of the charges framed against him.
11. Now coming to the second charge, the petitioner had set up the case that the wanted his vasectomy operation to be done by his brother Dr. P. N. Shukla, who was posted in Kamlapati Tripathi Combined Govt. Hospital, Chanduali, at a distance of 32 kms. from Varanasi and so, on reaching Varanasi at 9.55 A.M. he left his family with his brother’s family, at Varanasi and he proceeded to the said Hospital at Chandauli and operation was performed by his brother in that hospital which took about 10 or 15 minutes and he, on that very day, took the train from Varanasi and reached Delhi on the following day. He had submitted the necessary certificate duly signed by his brother and countersigned by the Medical Superintendent for getting the increment in accordance with Rules of the respondent. Another certificate was also produced by the petitioner showing that the said operation had been successful. Before the Inquiry Officer the evidence was led in the shape of entries from the Admission Register of the Hospital and also entries from the Patholgist’s Register of the relevant dates to show that the name of the petitioner had not been mentioned in the said registers. It was tried to show that for a person who is to admitted in the said hospital his name has to appear in the Admission Register and if anaesthesia is administered to a particular patient then his name has to appear in the Register of Pathology Lab, and similarly if any sperm test was to be carried out the Pathology Register has to show the name of the patient of whom such test has been performed. The case of the petitioner, on the other hand, has been that as he was to get himself operated, he thought it fit to have the operation done from his own brother in whom he could have more confidence and as he was not admitted in the hospital, so there was no question of any entry being made in the General Admission Register of that hospital. He proved before the Inquiry Officer entries from the Register of the operation theatre wherein name of the petitioner appears showing that the operation had been performed on him by his brother. He examined his brother as a witness, who deposed that he did perform the said operation on the petitioner on that day. He also proved his certificate regarding carrying out of the sperm test on February 11, 1983, directly through the microscopic examination. The Inquiry Officer had held this charge against the petitioner on the ground that at first no entries appeared in the Admission Register of the hospital regarding petitioner’s admission in that hospital and that no entry appeared in the Pathology Lab. Register. But the Inquiry Officer forgets that the petitioner was not actually admitted in the hospital. So, mere fact that his name did not appear in the Admission Register would not belie the case of the petitioner that he was operated upon by his brother in that hospital on that day. Even departmental witness Dr. Srivastava who appeared as SW2 admitted that sperm test could be done by direct microscopic examination. So, mere fact that no Chemical was available in that hospital for carrying out the sperm test with the help of Chemical is of no consequence, once it is admitted by the departmental witness that the sperm test could be done by direct microscopic examination. Dr. Srivastava was on leave admittedly on the day the operation was performed on the petitioner in that hospital. So, he could not have possibly any knowledge whether such operation was performed on the petitioner on that day or not. It is not disputed that the vasectomy operation is now a very simple operation and does not require any hospitalisation or even any rest. So, mere fact that the petitioner had travelled from Varanasi to Delhi on the day he was operated upon would not lead any prudent man to draw an inference that in fact the petitioner was not operated upon at all. It is admitted by Shri Anil Khanna that in case any suspicion had arisen regarding the fact whether any operation had been done or not the petitioner could have been got physically examined from any expert to verify the fact whether any vasectomy operation on him had been performed or not; but no such steps were taken. It is true that with the passage of time the traces of the operation on the body may disappear and it may become difficult for any expert to opine with any certainty as to the period them operation was performed. But when the petitioner had put up his claim for getting the benefit of such operation and any doubt had arisen, it would have been advisable for that department to have got the petitioner examined from an expert immediately so that it could be verified whether he had undergone such vasectomy operation recently or not. The Inquiry Officer had ignored on the basis of some conjectural suspicions the Operation Theatre Registrar (copy Exs. D1 and D2) which do show that the operation was performed on the petitioner. No prudent man could have come to any conclusion from the evidence led before the Inquiry Officer that, in fact, petitioner had not been operated upon at all on that day. So, the Inquiry Officer had held the charge against the petitioner on ignoring material evidence and the circumstances appearing in the case. So, this finding of the Inquiry Officer also stands vitiated. I hold this point in favor of the petitioner.
12. The fourth point does not arise for decision as the impugned order has to be set aside completely.
13. I allow the writ petition, make the Rule absolute and set aside the order of removal from service and direct the respondents to reinstate the petitioner in his post from the date of his removal and give him all necessary benefit regarding arrears of salary etc. The petitioner shall have his costs from the respondent which I quantity at Rs. 2,000/-