1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 940 OF 2009 J. P. MAKWANA ) residing at 74/118, BPCL Colony, l ) Gokuldham, Goregaon (East) ) Mumbai - 400 063 ) .. PETITIONER Versus 1. BHARAT PETROLEUM ) CORPORATION LTD., having its ) registered address at Bharat Bhavan ) 4 & 6 Currimbhoy Road,Ballard Estate P. B. No. 688, Mumbai 400 001 ) 2. Mr. Vinod Giri, General Manager ) (Marketing Corporate), B.P.C.L. ) Bharat Bhavan, 4 & 6 Currimbhoy ) Road, Ballard Estate, P.B. No. 688 ) Mumbai 400 001. ) 3. Mr. S. Radhakrishnan ) 2 Director (Marketing), B.P.C.L., ) Bharat Bhavan, 4 & 6 Currimbhoy ) Road, Ballard Estate, P.B. No. 688 ) Mumbai 400 001. ) 4. Mr. Ashok Sinha ) Chairman & Managing Director,BPCL) Bharat Bhavan, 4 & 6 Currimbhoy ) Road, Ballard Estate, P.B. No. 688 ) Mumbai 400 001. ) 5. Mr. S. Mohan ) Director (Human Resources), BPCL ) Bharat Bhavan, 4 & 6 Currimbhoy ) Road, Ballard Estate, P.B. No. 688 ) Mumbai 400 001. ) 6. Mr. Somnatha T ) General Manager & Liaison Officer for Scheduled Castes/Scheduled Tribes ) B.P.C.L., Bharat Bhavan, 4 & 6 ) Currimbhoy Road, Ballard Estate, ) P.B. No. 688, Mumbai 400 001. ) 3 7. Mr. S. A. Narayan ) Former Director (H R), B.P.C.L., ) 1203, Sky Height Tower, Shankar ) Gali, Off S. V.Road, Kandivali (West) ) Mumbai ) 8. UNION OF INDIA ) Through the Secretary, Ministry of ) Petroleum & Natural Gas ) Shastri Bhavan, New Delhi-110 003 ) 9. Mr. Chetan Prabhu ) An Advocate & Inquiry Officer ) C/o Mr. Vinod Giri ) General Manager (Marketing ) Corporate) B.P.C.L., Bharat Bhavan, ) 4 & 6 Currimbhoy Road,Ballard Estate P.B. No. 688, Mumbai 400 001 ) 10. Estate Officer, B.P.C.L. ) Bharat Bhavan No. 1, 1st Floor, ) 4 & 6 Currimbhoy Road,Ballard Estate Mumbai 400 001. ) .. RESPONDENTS 4 Mr. J. P. Makwana – Petitioner-in-person Mr. J. P. Cama, Senior Advocate with B. P. Saraf i/b M/s. Udwadia & Udeshi for respondents 1 to 7,9 & 10. CORAM:-SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 1ST DECEMBER, 2009 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 16th DECEMBER, 2009 P.C. In this petition filed under Article 226 of the Constitution of India, the petitioner has inter alia prayed that dismissal order dated 31/10/08 passed by the Director (Marketing) of the 1st respondent dismissing the petitioner from the service of the 1st respondent be quashed and set aside and the notices issued to him directing him to vacate the flat belonging to the 1st respondent be quashed and set aside. 2. The case of the petitioner as stated in the petition is that on 17/6/85 he joined the 1st respondent as an Officer Trainee in Job Group ‘A’ in the category reserved for Scheduled Tribes. On 1/7/86 5 he was confirmed. On 1/4/89 he was promoted as a Senior Officer (Engineering), Grade “B”. Thereafter he was not given promotion. According to him at the instance of one Vinod Giri, who is respondent 2 herein and who was working as a General Manager (Marketing Corporate) he was harassed. The petitioner’s case is that there is a conspiracy to dismiss him. The inquiry report dated 3/3/08 is fabricated with a view to snatching his livelihood. According to him the respondents have damaged his social image. His case further is that the respondents have failed in their constitutional obligation and in conspiracy with Gujarat officials they have got his scheduled caste certificate cancelled. According to the petitioner before the National Commission for Scheduled Tribes the respondents could not justify the 3 departmental inquiries held against him. The Commission observed that the inquiries are bad in law. According to the petitioner even the notices calling upon him to vacate the premises which he is occupying is bad in law. According to the petitioner the entire exercise is malafide and illegal and must be set aside. 3. From the charge-sheet it appears that the petitioner was charged under clause 27 of the Conduct, Discipline and Appeal (CDA) Rules for Management Staff for absence from duty without 6 permission. In the year 2005 he remained absent for 79 days. In the year 2006 he remained absent for 124 days. In the year 2007 he remained absent for 188 days. Thus his total unauthorised absence is 391 days. Charge-sheet dated 27/9/07 was served upon the petitioner and the petitioner was called upon to give his explanation within 10 days of the receipt of the charge-sheet. The proceedings of the inquiry commenced on 18/12/07. The impugned order indicates that the petitioner remained absent on as many as five occasions despite having received notice of inquiry well in advance. In order to give fair opportunity to the petitioner, the Enquiry Officer adjourned the inquiry proceedings. The petitioner did not submit his summation report to the Enquiry Officer though he was given time to submit it. After following due procedure and after observing principles of natural justice, the Enquiry Officer submitted inquiry report on 3/3/2008. On examination of the inquiry proceedings and the Enquiry Officer’s report the Disciplinary Authority vide the impugned order dismissed the petitioner from service with immediate effect. As the petitioner did not vacate the premises which were allotted to him action under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was initiated. By order dated 2/6/09 the petitioner was held liable to be 7 evicted from the said premises. He was also directed to pay damages for unauthorized occupation of the said premises. Admittedly the petitioner has not vacated the said premises till today. The petitioner has challenged the above actions of the respondents. 4. The petitioner appeared in person. He submitted that the inquiry is a farce. According to him principles of natural justice were not followed. He submitted that the inquiry was conducted at the instance of respondent 3 through Shri Vinod Giri, the General Manager (Marketing Corporate) BPCL, who was on enmical terms with the petitioner. He submitted that the National Commission for Scheduled Tribes vide its order dated 27/10/05 observed that the petitioner was given inhuman treatment. He pointed out that the National Commission has observed that the inquiry was not properly conducted and that punishment was wrongly awarded. He submitted that his service record is excellent and the respondents had earlier promoted him on several occasions. He submitted that in the circumstances this court may quash and set aside the impugned order dismissing him from service and the impugned order asking him to vacate the premises allotted to him and directing him to pay damages. 8 5. We have heard Mr. Cama, learned counsel appearing for the 1st respondent. Mr. Cama submitted that the petitioner is guilty of insubordination with absence from duty without permission and conduct subversive of discipline. He submitted that on three earlier occasions also departmental inquiries were conducted against the petitioner in which the petitioner was found guilty and was punished. Learned counsel submitted that before the National Commission for Scheduled Tribes the 1st respondent was not a party. He submitted that in any case the National Commission’s observation does not relate to the present inquiry. He submitted that no case is made out for interference with the impugned order. 6. It is well settled that in its jurisdiction under Article 226 of the Constitution of India, this court does not interfere with departmental enquiries unless the decision is perverse. This court cannot deal with the departmental proceedings as if it is dealing with an appeal. It is, therefore, necessary to see whether the inquiry proceedings are vitiated by malafides or whether there is any breach of principles of natural justice or any serious procedural irregularity which goes to the root of the proceedings. Unless the decision is illogical or shocks the conscience the court will not interfere with it. The scope 9 of judicial review is limited to the deficiency in decision making process and not the decision (Damoh Panna Sagar Rural Regional Bank & Ors. And Munna Lal Jain, 2005 (1) LLJ 730 SC). 7. To ascertain the facts it is necessary to first refer to the affidavit filed by Mr. R. Ramesh Nair, Dy. General Manager (HRs) of the 1st respondent. The gist of the affidavit is as follows: In or about 1993 inquiry proceedings were initiated against the petitioner for repeatedly absenting himself without prior permission of the Head of the Department. A detailed inquiry was conducted and the petitioner was found guilty of charges levelled against him. The petitioner did not cooperate with the inquiry proceedings. He repeatedly asked for adjournments. The Enquiry Officer noted that the delay was attributable to the postponments and adjournments sought by the petitioner. Pursuant to the report of the Enquiry Officer the petitioner was issued a warning vide letter dated 29/9/2000. The petitioner’s conduct did not improve. In or about November, 2003 he made false and malicious complaints that one of the tanker lorries had hit him and he made complaint to the District 10 Superintendent of Police. The petitioner made personal allegations against Senior Installation Manager and Manager Installation. The complaint was found to be false and the police refused to register an offence. Subsequent to the said incident another charge-sheet dated 18/1/94 was issued against the petitioner for having lodged false and malicious complaints against the management staff. The Enquiry Officer conducted the inquiry. The petitioner adopted delaying tactics. On five occasions inquiry proceedings had to be adjourned because of him. The last opportunity was given to him to attend the inquiry on 5/10/94. He did not make any attempt to cross examine the management witnesses though he remained present on that day. He did not send his comments on the summation report. In the circumstances the Enquiry Officer on the basis of the evidence led held that the petitioner was guilty of levelling false and malicious complaints against the management staff. The Enquiry Officer observed that the petitioner had adopted delaying tactics. The Disciplinary Authority imposed a punishment of reduction of basic pay by three stages in the existing scale. In December 1997 the petitioner made a false complaint against the officers of the 1st respondent under the Schedule 11 Caste/Schedule Tribe (Prevention of Atrocity) Act, 1989 setting out offences under the I.P.C. The Investigating Officer registered the case and after detailed inquiry held that the complaint was false. The petitioner then approached the Gujarat High Court by filing Special Criminal Application No. 4 of 1998. The Gujarat High Court disposed of the application by observing that the complaint was lodged with malafide intention only with a view to harassing the officers of the BPCL. A warning letter was issued to the petitioner on 29/2/2000 by the 1st respondent, however the petitioner’s conduct did not improve. He continued to threaten his colleagues and lodged false complaints against them under the Atrocity Act. A third charge-sheet dated 3/11/98 was issued against the petitioner for various acts of misconduct detailed in the charge- sheet . The inquiry was conducted. The petitioner tried to delay the proceedings. The Enquiry Officer concluded the inquiry proceedings and held the petitioner guilty of misconduct. The Enquiry Officer observed as under: “Instead of answering the question the CSE preferred to talk irrelevant things and wanted that some loose papers in his hand be 12 first taken on record. In spite of telling the CSE that he can produce the papers at appropriate time, the CSE left the room in which said enquiry proceedings were going on”. “On 29/8/2002 when the CSE attended the enquiry proceedings before me the original computerized copy of the proceeding for that day was given to him for obtaining his signature after the same was signed by IO & PO. However, instead of simply signing it, the CSE started writing something and did not stop doing so inspite of IO’s instructions not to do so.” The petitioner preferred appeal against the said order, however, the appeal came to be dismissed. The petitioner remained absent unauthorizedly for 391 days during February 2005 to August 2007. Hence charge-sheet dated 27/4/2007 was issued to him (that charge-sheet is the subject matter of this petition). The charge-sheet was served on him. He acknowledged the service. The inquiry was conducted by Shri Chetan Prabhu, the 9th respondent herein. The inquiry commenced on 18/12/07. On that date the petitioner remained absent though he had received notice of inquiry on 3/12/07. The inquiry was further adjourned to 2/1/08. It was postponed to 22/1/08 as the petitioner 13 requested for three weeks’ time. The petitioner remained absent on 22/1/08, 31/1/08 and 7/2/08 despite having received notices well in advance. Two management witnesses deposed during the inquiry. Fair opportunity was given to the petitioner to cross-examine the 1st Management Witness. However, he did not attend the inquiry on 31/1/08. He did not cross-examine the Management Witness No. 1. Management Witness No. 2 was examined. The inquiry was adjourned to 7/2/08 for cross-examination of Management Witness No. 2, however the petitioner remained absent on that day despite notice. On 14/2/08 the petitioner came for the proceedings 45 minutes late. He requested that the witnesses be recalled. His request was allowed, however, the petitioner asked for time till 10/3/08 to bring his counsel, which request was turned down and the inquiry was adjourned to 15/2/08 for cross-examination of the management’s witnesses. On 15/2/08, the petitioner remained absent. The management witnesses, who were recalled for cross- examination had to be discharged. The inquiry proceedings were then held on 21/2/08 when the petitioner again arrived 40 minutes late. The petitioner adopted adamant approach, did not cross- examined the witnesses and demanded that he may be allowed to cross-examine the witnesses with the help of his counsel, that too 14 after 10/3/08. During the entire proceedings the petitioner did not disclose the name of his counsel nor did he produce letter of appointment of his counsel. The petitioner refused to sign any record and proceedings. The inquiry was finally concluded. The petitioner was given time to submit his summation report but he did not submit it. The Enquiry Officer submitted his report to the Disciplinary Authority in which he found the petitioner guilty of all charges levelled against him as per the charge-sheet dated 27/9/07. The Enquiry Report dated 31/3/08 was served on the petitioner on 6/3/08. The petitioner failed to submit any representation to the Disciplinary Authority though he was given sufficient time. In the circumstances the petitioner was dismissed from service vide Disciplinary Authority’s order dated 31/10/08 which was served on the petitioner on 4/11/08. The above details of the inquiry indicate that the petitioner never cooperated with the inquiry officer and only attempted to delay and defeat the inquiry. 8. It is also pertinent to note that the order of the Disciplinary Authority is dated 31/10/08. It was served on the petitioner on 4/11/08. The present petition is filed in May, 2009 which is almost six months after the order of the Disciplinary Authority. In the meantime 15 the order of dismissal has already been implemented. The petition thus suffers from gross laches. 9. Having gone through the petition and the affidavit in reply, we are unable to come to the conclusion that the petitioner was ill- treated, victimised or discriminated against by the respondents. The petitioner has not been successful in refuting what is stated in the affidavit-in-reply. The allegations that he was harassed or there was any conspiracy are without substance. Equally baseless are the petitioner’s allegations that promotions were denied to him due to the personal grudge of the officers of the 1st respondent against him. The petitioner’s contention that there is a violation of the principles of natural justice cannot be accepted. He was given sufficient time to cross-examine the witnesses and to place his case before the Enquiry Officer. However, he purposely did not avail of the opportunity and tried to delay the proceedings. From the affidavit of Mr. Ramesh Nair, the Deputy General Manager of the 1st respondent it is clear that out of total seven hearings of the inquiry proceedings in the five hearings the petitioner remained absent. Whenever he attended the proceedings, he arrived late and did not participate in the inquiry, did not sign any documents and walked out of inquiry 16 proceedings. Mr. Nair has stated that this is the petitioner’s modus operandi. Even in the earlier inquiries he never cooperated for expeditious completion of the inquiry. 10. So far as the allegation of the petitioner that he was illtreated because he belongs to a Scheduled Tribe is concerned, we are not inclined to accept it. Affidavit of Mr. Nair indicates that in December’97 the petitioner had made a false complaint against the officers of the 1st respondent under the Scheduled Caste/Scheduled Tribe (Prevention of Atrocity) Act, 1989. The investigating officer registered the case and after conducting a detailed inquiry, he held that the complaint was false. The petitioner then filed Special Criminal Application No. 4 of 1998. It was dismissed by the Gujarat High Court by observing that the said complaint was lodged with malafide intention only with a view to harassing the officers of the 1st respondent. Thereafter on 22/9/2000 a warning letter was issued to the petitioner, but the petitioner did not improve. Therefore, the allegation that the petitioner was being humiliated by the officers of the 1st respondent because he belongs to a scheduled tribe is false. So far as the letter addressed by the National Commission for Scheduled Tribes dated 29/5/06 is concerned it is advisory in nature. 17 It refers to three earlier inquiries which are not the subject matter of the present petition. In that letter comment is made on delay in completing the earlier departmental inquiries. We have already referred to the affidavit of Mr. Nair which states how the petitioner delayed the proceedings. It is quite apparent from the said affidavit that the petitioner was responsible for the delay. The petitioner has also tried to delay the 4th departmental inquiry which is the subject matter of this petition. So far as the order of the Commission for Scheduled Tribes is concerned that also refers to earlier inquiries and has no relevance to the present inquiry. We are informed that the 1st respondent was not represented when the order was passed. In our opinion, the petitioner has not been able to substantiate his case that he was given inhuman treatment by the 1st respondent. 11. It is also pertinent to note that the petitioner was dismissed from service vide order dated 31/10/08 which was duly received by him on 4/11/08. The petitioner was given 30 days’ time to vacate the company accommodation commencing from 4/11/08. The petitioner did not care to vacate the accommodation even after 7 months from the date of his dismissal from service. The said accommodation was allotted to the petitioner purely on service occupancy basis. It 18 appears that the 1st respondent moved an application under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 before the Estate Officer vide application dated 21/4/09 seeking direction for eviction of the petitioner from the said premises. The Enquiry Officer commenced proceedings on 8/5/09 and finally concluded the same on 1/6/09. Though the date and the continuance of proceedings was informed to the petitioner, the petitioner remained absent and did not attend the proceedings on 8/5/09 and on 19/5/09. In order to give him fair opportunity the proceedings were adjourned from 19/5/09 to 27/5/09. The petitioner did not submit his written statement though he attended the proceedings on 27/5/09. He sought adjournment. One more opportunity was then granted to him and the matter was kept on 1/6/09. The petitioner did not attend the proceedings. Hence the Estate Officer concluded the proceedings. The matter was kept on 2/6/09. On 2/6/09 the Estate Officer passed an order directing the petitioner to handover peaceful possession of the said premises to the 1st respondent by 30/6/09. The petitioner was also directed to pay damages for unauthorized stay. The said orders have been communicated to the petitioner. We are informed that the petitioner has yet not vacated the said premises. He has challenged the 19 notices issued to him on untenable grounds. 12. In view of the above, we have no hesitation in holding that there is no substance in the petition. The petition is, therefore, dismissed. (Smt. Ranjana Desai, J.) (Smt. Mridula Bhatkar, J.) 20 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 940 OF 2009 DATE ON WHICH THE JUDGMENT IS RESERVED : 1ST DECEMBER, 2009. DATE ON WHICH THE JUDGMENT IS PRONOUNCED :______DECEMBER, 2009. Transcription of Judgment / Order. Submitted for approval. THE HON'BLE (SMT.) JUSTICE RANJANA DESAI : THE HON'BLE (SMT.) JUSTICE MRIDULA BHATKAR : 1. Whether Reporters of Local Papers be allowed to see the Judgment ? ) ) 2. To be referred to the Reporters or not ? ) 3. Whether Their Lordships wish to see the fair copy of the Judgment ? ) ) 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder ? ) ) ) ) 5. Whether it is to be circulated to the Civil Judges ? ) ) 6. Whether the case involves an important question of law and whether a copy of the judgment should be sent to Nagpur, Aurangabad and Goa Offices ? ) ) ) )