#enquiryreport

[keralatimesnews]

‘കളക്ടറുടെ’ കുറ്റസമ്മതം പൊളിയും; പിപി ദിവ്യയ്ക്ക് ജാമ്യം കിട്ടില്ല; നവീന്‍ ബാബുവിനെ ‘വാക്കുകൊണ്ട്  കൊന്ന സഖാവിനെ രക്ഷിക്കാന്‍ സിപിഐയിലും ചരട് വലികള്‍; കണ്ണൂര്‍ ലോബിയുടെ കളി റവന്യൂ വകുപ്പിലും തുടരുന്നു; ”കപടനാടകങ്ങൾ”

[seemabhatnagar]

Punishment must be proportionate to the misconduct proved

Union of India & Others v. Yashpal

WP 15295/2023 before Hon'ble Allahabad High Court

Gravity of misconduct, past conduct, nature of duties, position in organization, previous penalty, if any and requirement of discipline to be enforced are relevant to be considered by the disciplinary authority before awarding the punishment to the employee.

 Case of the Petitioner-Union of India

1.     This is a case where a khalasi of the Railway was dismissed from service on the ground of being habitual absentee.

2.     He was dismissed by the Disciplinary Authority on 29.05.2023 as he was absent without any intimation for about 10 months.

3.     He was asked by the Department to Report to the Railway Hospital but he failed to comply with the Directions and continued to remain on unexplained leave.

4.     Hence, it was necessary to award major punishment of dismissal from service for continued and repeated acts of remaining absent without leave.

 Case of the Respondent-Employee

1.     He joined service on 22.10.1999.

2.     He was absent from work for nine months from 09.05.2005 to 18.2.2006.

3.     He joined on 29.06.2006 and he remained on duty without any further complaint of absenteeism. He was not unwell which had prevented him from performing his duties. Respondent had produced medical certificate in support of his claim of illness, there was prima facie evidence in support of the explanation furnished by the Employee-Respondent.

 Central Administrative Tribunal

1.     Looking into the facts and evidence in support of the submission of the Employee-Respondent, the Central Administrative Tribunal had set aside the punishment ordered and remitted the matter back to the disciplinary authority to pass a fresh order which is proportionate to the misconduct found proven.

 Argument of the Counsel of the Petitioner-Union of India

1.     The Tribunal has completely erred in setting aside the punishment, and in remitting the matter back to the Disciplinary authority.

 Argument on behalf of the Petitioner

1.     No accentuating fact or circumstances was found proven in the enquiry report which may have warranted the wholly disproportionate punishment of dismissal from service. The fact of the respondent that he remained ill was not found to be false.

2.     These mitigating circumstances haven’t been considered by the disciplinary authority. Thus, wholly excessive punishment of dismissal from service was awarded to the respondent after he had joined back in service and had continued to work without break.

Observation of the Hon’ble Court

 1.     Tribunal has not committed any error in setting aside the orders of punishment, appeal and revision and remitting the matter to the disciplinary authority to consider the matter afresh.

 2.     Gravity of misconduct, past conduct, nature of duties, position in organisation, previous penalty, if any and requirement of discipline to be enforced are relevant to be considered by the disciplinary authority before the punishment was awarded to the respondent-employee.

 3.     It is undisputed that the respondent was appointed as a Khalsi on 22.10.1999. In the context of the present proceedings, he was found absent from work for nine months from 9.5.2005 to 18.2.2006. Thereafter, there was a brief break up to 28.06.2006 but there is no dispute to the fact that the respondent had worked continuously from 29.06.2006 onwards.

 4.     In the context of absence from duty without leave, all factors should have been examined by the disciplinary authority before award of major punishment of dismissal.

 5.     The Tribunal has protected the interest of the present petitioner by taking note of all the relevant factor and by observing that the disciplinary authority may observe the past record of the respondent.

 Order of the court

The writ petition was dismissed by Division Bench of the Allahabad High Court comprising Hon’ble Mr. Justice Saumitra Dayal Singh J & on’ble Mr. Justice Arun Kumar Singh Deshwal J on 20.09.2023.

 Seema Bhatnagar

[seemabhatnagar]

Disciplinary Authority can't assume the role of Enquiry Officer

Bhaskaran KP v. Kerala State Electricity Board Limited

Writ Petition 40499/2017 allowed on 31.07.2023

By Hon’ble Mr. Justice Devan Ramachandran,

Kerala High Court

Petitioner Bhaskaran KP, filed Writ Petition (WP) before the Kerala High Court seeking quashing of the order passed by Disciplinary Authority of Kerala State Electricity Board (KSEB) and confirmation of the modified order by the Appellate Authority.

Background

1.    Petitioner, an Assistant Engineer at Electrical Section – Desamanglam retired on 31.03.2015 but was denied retiral benefits on account of uncorroborated shortfall in materials of which he was in charge.

2.    Charge memo was issued to the petitioner to which he denied.

3.    Enquiry was conducted and two charges were framed against him. First charge was account for the material. This charge was not proved in the absence of proper verification of the accounts and the materials. Second Charge was gross insubordination, it was proved.

4.    Consequent to the enquiry report an investigating team was constituted to quantify the liability against the petitioner which found Rs. 14,51,286/ as shortfall amount.

5.    Disciplinary Authority imposed Rs.14,51,286/ as personal liability of the petitioner but didn’t impose any punishment on account of second proved charge of gross misconduct.

6.    Disciplinary Authority however modified its earlier order and reduced the liability to Rs.10,54,844/- by another order.

7.    Petitioner Challenged modification of order by Disciplinary Authority before the Appellate Authority.

8.    Appellate Authority confirmed the order of Disciplinary Authority that Rs. 10,54, 484 is personal liability of the petitioner thus the amount is liable to be recovered from the retiral benefits.

Contention of the Petitioner’s Counsel

1.    Review of its order by Disciplinary Authority is improper and impermissible.

Contention of the Counsel of the KSEB

1.    Report of the investigating team is not available because of lapse of time.

2.    On humanitarian ground figure of Rs.14,51,286/- was reduced to Rs. 10,54,844/- by the Disciplinary Authority.

3.    Thus, Disciplinary Authority issued another order treating the amount as personal liability.

4.    Thus, order of the Disciplinary Authority and Appellate Authority can’t be challenged by the petitioner.

Observation of the Court

1.    Disciplinary Authority didn’t impose any punishment on the proved charge rather inflicted Rs.14,51,286 as personal liability of the petitioner. This is the first error.

2.    The matter should have gone back to the Enquiry Officer for completing the disciplinary proceedings. Instead, Disciplinary Authority himself took the role of the Enquiry Officer and found the petitioner guilty and concluded that Rs.14,51,286/- be reckoned as his ‘personal liability’.

3.    The input of the investigating team ought to have gone back for enquiry and enquiry officer should have concluded the guilt or otherwise of the petitioner.

4.    Disciplinary Authority reviewed its own order and reduced the liability to Rs.10,54, 884/- and affirming this as his personal liability.

5.    The Appellate Authority failed to notice that the order of the Disciplinary Authority was not one which emanated out of the disciplinary enquiry, but was based on his own assessment of liability. The second error committed by the Appellate Authority.

6.    The failure of the KSEB to produce the report of the Investigating Team casts aspersion on the manner in which the proceedings against petitioner were taken forward and completed by them.

7.    Court fails to understand how the Appellate Authority affirmed the order of the Disciplinary Authority reducing personal liability to Rs. 10,54,884/- on the basis of untraceable report against the petitioner.

Decision

The modified order of the Disciplinary Authority & affirmation of the order by the Appellate Authority is set aside. The KSEB is directed to pay the petitioner his eligible amounts within a period of two months from the date of receipt of a copy of this judgment issue.