//
you're reading...
legal issues

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

 

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,937,047 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,874 other followers

Follow advocatemmmohan on WordPress.com