JUDGMENT
S.B. Sinha, J.
1. This application is directed against the order dated 4-7-1990 passed by respondent Nos. 2 and 3 (Annexure-7) whereby and where-under the petitioner was inflicted with a punishment, of stoppage of promotion for a period of three years and the order dated 5-11-1989 whereby the petitioner was transferred to Bhawanathpur unit of the respondent-company.
2. The fact of the matter lies in a very short compass.
3. The petitioner was appointed as Labour Welfare Inspector. He was interviewed with one S.P. Sinha for promotion to the Senior Labour Welfare Inspector and both of them were bracketted together as allegedly they got equal marks. However, the said S.P. Sinha was given the scale of Senior Welfare Inspector by a letter dated 5th November, 1971, but the petitioner was given a lower scale of pay.
According to the petitioner, if he had been put in the seniority list of of Senior Labour Welfare Inspector at per with Mr. Sinha, his seniority would have been just below him, that is, serial No. 5 and not at serial No. 2 and consequently thereupon, he would have been promoted to the present post much earlier.
4. The petitioners have given some instances of purported, malicious acts on the part of respondent No. 3 in paragraph 8 of the writ application. On 15-2-1989, the petitioner applied for grant of casual leave which was sanctioned. The petitioner has annexed a photo copy of the said order which is contained in Annexure-4 to the said writ application.
However, when he came back, he found that respondent No. 3 made interpolations by pre-adding and post-adding to the word ‘sanctioned’ in the following manner:–
Will be’ sanctioned’ if Shri Saggi or a senior person from H. Q. reports here temporarily
The said orders are annexed as Annexure Nos. 4 and 4/1 respectively.
5. However, allegedly as the petitioners absented himself without leave, a chargesheet was issued as against him which is contained in Annexure-5 to the writ application. The petitioner filed a show cause as contained in Annexure-6 to the writ application inter alia stating:
Kindly refer your above, I beg to invite your kind attention that I had submitted my Casual Leave application for 2 days i.e. 17th and 18th February, on 15-2-1989, with a permission to leave head quarter on 16th evening. I personally contacted General Manager on 15th and 16th and he intimated me to proceed on leave for 2 days i.e. 17th and 18th (l9-2-1989 being Sunday) after sending telephonic message to HQ to send an official from personnel department at Durgapur. The undersigned intimated in the house of GM (P&A) at Calcutta on 16th on telephone to send an official at Durgapur for 17th and 18th as I am proceeding on leave. The above stated facts speaks very clearly that the undersigned has left Head Quarter with proper information and permission. The work was started on 14th and the industrial relations situation became normal on 16th and the work was going on.
Sir, neither my leave was refused nor it was informed to stay at Durgapur till to the posting of a substitute during my leave period, rather it was categorically informed to proceed on leave after sending a telephonic message to HQ to send an official from personnel department and the same has been done by the undersigned.
Sir, as the undersigned has left head quarter on 16th with information and permission, the alleged charges:
(a) Wilful in subordination and disobedience of lawful reasonable orders of the superior;
(b) Commission of an act subversive of discipline and of good behaviour, may kindly be withdrawn.
6. In the disciplinery proceeding as against the petitioner, an enquiry officer was appointed. The petitioner prayer before the disciplinary authority for change of the Enquiry, Officer allegedly in view of the attitude of the respondent No. 3, but his request was not accepted. According to the petitioner, the Enquiry Officer closed the enquiry upon having been influenced by respondent No. 3 without completing the same and submitted a report. No copy of the enquiry report was also supplied to the petitioner. The petitioner submitted a representation pointing out the deficiencies in the enquiry and contravention of the provisions laid down in Clause 15 of the Conduct, Discipline and Appeal Rules, 1978 of the respondent-company. However, by reason of an order dated 4-71990, the disciplinary authority imposed punishment of withholding of promotion for a period of three years with immediate effect. The said order is contained in Annexure-7 to the writ application.
7. An appeal was preferred by the petitioner which was also dismissed. The petitioner has further contended that while the enquiry was going on, the petitioner was transferred to Bhawanathpur although there was neither any post nor any requirement of any officer of the rank and seniority of the petitioner. Allegedly the Resident Engineer Bhawanathpur has also opined that a senior officer like the petitioner is not required to be posted there. The petitioner, however, was relieved by office order dated 2-12-1989 which is contained in Annexure-9 to the writ application. According to the petitioner, the said order of transfer is violative of the circular dated 29th July, 1987 which is contained in Annexure-10 to the writ application.
8. The petitioner has contended that in the enquiry proceedings he had asked for various documents but the same were not furnished to him. The petitioner has also given an extract of questions put to and answers given by the Management-witnesses in as taken from the records of the proceeding which is contained in Annexure-17 to the supplementary affidavit. According to the petitioner, when in a question he suggested that an interpolation has been made in the order (Annexure-4/1), the said question was ruled out by the enquiry officer stating:–
‘The question is ruled out by the Inquiry Officer. The accused officer has time an I again been advised to put -relevant question keeping in view the charges framed against him to avoid delay in completing the enquiry proceeding. But he is all the time putting irrelevant questions. He is again advised to put relevant questions keeping in view the statements of allegation and the charges framed against him. He has been further assured that he will be given full opportunity to defend his case before the committee and the principle of natural justice will be followed all the time.
9. The other questions put to the witnesses are as follows:
Is it correct that you have reported this position to GM at our Billet Mill site office on 16-2-1989?
Ans: I want to know which position.
Qn. The position is regarding arrival of officer of personnel Deptt. from Calcutta. As clarified by the Accused officer.
Ans. to question No. 5: I did not convey this message to GM on 16-2-1989 and instead I conveyed this message on 17-2-1989 at 9 a.m. inside plant in the office where Mr. Sharan and Mr. Tiwary is sitting.
10. In this case, no counter-affidavit has been filed on behalf of the respondents.
Despite the order dated 9-7-1991 the file concerning the departmental proceeding against the petitioner had not been produced.
11. Mr. V.N. Ojha, learned Counsel appearing for the petitioner has raised a number of contentions in support of this application. Learned Counsel firstly submitted that from as comparison of Annexures-4 and 4/1, it will be evident that interpolations have been made in the order sanctioning leave to the petitioner and, thus, the entire disciplinary proceeding initiated as against him must be held to be mala fide.
It was further submitted that in the instant case, there has been a blatent violation of the mandatory provision of Conduct, Discipline and Appeal Rules of the respondent-company insofar as neither the enquiry was completed within a period of 30 days nor the mandatory provisions as laid down in Rule 15 thereof were followed nor the petitioner was supplied with a copy of the enquiry report.
It was further submitted that even the appeal was disposed of after inordinate delay and as would be evident from the appellate order as contained in Annexure-18 to the writ application that the same had been passed without assigning any reason.
12. My attention was further drawn to a letter dated 23-3-1990 sent to the Enquiry Officer with a copy to the disciplinary authority. The said letter is contained in Annexure 13 to the writ application.
My attention was further drawn to various documents for the purpose of showing that as the petitioners had been making representations for giving him his due seniority, which if allowed, would have adversely affect the career of his immediate senior, he has been victimised.
13. Learned Counsel further submitted that the impugned order of transfer dated 29-7-1989 pursuant whereof he was relieved, must be held to be mala fide inasmuch as the petitioner could not have been transferred from Durgapur to Bhawanathpur as there was no requirement of personnel of the stature of the petitioner as would be evident from the wireless message of the Resident Engineer as contained in Annexure-8.
Learned Counsel in this connection has relied upon an unreported decision of the Karnataka High Court in Writ Petition No. 4940 of 1987 (A.L. Lamba v. SA’IL and Ors.).
14. In this case, as noticed hereinbefore, no counter affidavit was filed nor the records of the departmental proceedings had been produced before this Court.
15. Hindusthan Steel Works Construction Ltd. is a ‘State’ within the meaning of Article 12 of the Constitution. It is thus not only expected of it to act fairly but also expected to place before this Court all relevant records in order to enable it to do complete justice to the parties, It is not expected of a State that it would deal with its employees in a vindictive manner not its action in trying to shield an officer of the status of General Manager, Hindusthan Steel Works Construction Ltd. can be appreciated.
16. From a bare comparison of Annexures 4 and 4/1 there cannot be any doubt that the application for grant of casual leave by the petitioner for 17th and 18th had been allowed by respondent No. 3.
17. Mr. M.M. Banerjee learned Counsel appearing for the respondents, when questioned as to whether the respondents denied the signature of respondent No. 3 on Annexure-4, he very fairly stated that he is not in a position to say anything in the matter.
18. I have no doubt whatsoever in my mind that respondent No. 3 had made interpolations in his order for the reasons best known to him. The submission made by the petitioner to the effect that interpolation has been made in the order sanctioning leave to the petitioner appears to be justified.
19. It is also not in dispute that the charge-sheet was issued as against the petitioner on the basis of the aforementioned interpolated order dated 5-12-1989. If the interpolated order was the basis for drawing up of a disciplinary proceeding as against an officer of the status of Manager (Personnel), the action of the concerned authorities of respondent No. 4 Corporation has to be condemned.
20. Not only respondent No. 3 has committed a blatent interpolation in his order for which no action appears to have been taken against him by the higher authorities, but it also appears that despite the said fact having been brought to the notice of the Chairman-cum-Managing Director, a disciplinary action was initiated by him against the petitioner.
21. Further, from a perusal of the petitioner’s application before the Enquiry Officer dated 23-3-1990 (Annexure-13) it appears that although the petitioner asked for certain documents in order to enable him to cross-examine the Management. Witness No. 2, but the same had not been furnished to him. Even no reason was assigned for not bringing on record the application for casual leave filed by the petitioner.
The grievances raised by the petitioner before the Disciplinary authority-Chairman-cum-Managing Director to the effect: as the enquiry officer is putting a spoke in the wheel of justice, I am sure that without giving me an opportunity of natural justice in course of Enquiry proceeding and he will proceed for ex parte enquiry. As such, either enquiry officer may kindly be changed or an observer preferably Shri Sinha, Dy. C.M. (Law) be deputed to seek modicum of natural justice’ were not considered by the Disciplinary authority at all.
It is further evident from Annexure-17 to the writ application that purported overruling of the petitioner’s question to respondent No. 3 to the effect that he had sanctioned leave but after his departure he had changed his decision and tampered his note, was wholly unjustified. The question put to the said witness was absolutely relevant observation of the enquiry officer that the petitioner had been putting irrelevant question clearly shows that he was biased with the subject matter of the proceeding and has failed to keep his neutrality and impartiality in the matter.
22. It has further been brought to my notice that even Md. Abbas, Management Witness No. 2 stated that he had gone to intimate the petitioner about the order of the General Manager not to leave the Station unless a competent officer from Calcutta arrives had been conveyed on 17th February, 1989 although according to the petitioner he had left Durgapur in the night of 15th February, 1989 itself.
Management witness No. 2 clarified that he met the General Manager on 17-2-1989 and as such the question of informing the petitioner on 16th February, 1989 when he had already proceeded on leave demonstrates that the entire story was fabricated.
23. It. has also not been disputed that the petitioner has not been supplied with a copy of the enquiry report as is necessary under Rules 26 and 27 of the Conduct, Discipline and Appeal Rules.
It also does not stand to any reason as to why during the pendency of the departmental proceeding, the petitioner was transferred and abruptly relieved although according to the Resident Engineer of Bhawanathpur unit there was absolutely no requirement for posting a Manager (Personnel) at that place.
24. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot interfere with an order of transfer, but I cannot help observing that the exercise of power of transfer by the respondents in the facts and circumstances of this case smack’s of malice. In a case of this nature^ it was obligatory on the part of the appellate authority to try to pass order which would have shown that he had applied his mind to the facts and circum stances of this case. The order as contained in Annexure 18 is not an order, but merely a communication and it is not an order of respondent No. 2. The respondents have not brought anything to show that the order has been passed by respondent No. 2.
In A.L. Lamba’s case (supra) the Karnataka High Court deprecated an order of transfer which was held to have been issued with an ulterior motive to impair the promotional opportunity of the petitioner of that case.
It appears that a Division Bench of the Karnataka High Court in Writ Appeal Number 926 of 1989 affirmed that part of the order whereby the direction to grant promotion to A.L. Latriba (petitioner in Writ Petition No. 4940 of 1987 of that Court) by the learned Single Judge whereby he was promoted with effect from 1st July, 1985 was not interfered with.
25. In this view of the matter, the impugned orders as contained in Annexures-7 and 18 cannot be sustained and accordingly are quashed.
Learned Counsel for the petitioner has prayed for quashing of Annexure-10 to the writ application, but in my opinion, no such order can be passed as the petitioner had been relieved as far back as on 2-12-1989. However, it is observed that if the petitioner files a representation in this regard, the respondent concerned shall consider the same keeping in view the fact that the Resident Engineer Bhawanathpur has objected to such transfer an contained in Annexure-8 to the writ application. It is also expected that the respondents concerned shall look into the grievances of the petitioner regarding his seniority and consequential promotion with utmost expedition and preferably within a period of two months from the date of receipt of a copy of this judgment.
In the facts and circumstances of this case, the petitioner is also entitled to costs of this application from the respondents which is quantified at Rs. 1,000.