1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1080 OF 1994 Shri Maharaj Singh S/o Ramsharan Singh Bharti Age : 49 Yrs., Occ. Nil., R/o : 300, Hema Park, Ambikanagar, GIDC Odhav, Ahmedabad. .... PETITIONER V E R S U S 1. M/s National Textile Corporation (South Maharashtra ) Ltd., Nanded Textile Mills, Mill Road, Nanded. 2. The Union of India Through the Standing Counsel at High Court, Aurangabad. 3. The State of Maharashtra Through the Govt. Pleader, at High Court, Aurangabad. ( Respondent nos. 2 & 3 - deleted as per Order of Court dated 19/8/2004 ). .... RESPONDENTS Mr. T.K.Prabhakaran, Advocate for petitioner. Mr. P. G. Godhamgaonkar, Advocate for respondent no. 1. CORAM : B.R. GAVAI AND S.V.GANGAPURWALA, JJ. 2 DATE OF JUDGMENT : 17/6/2010 ORAL JUDGMENT : [ PER – S.V. GANGAPURWALA, J. ] 1. The petitioner takes exception to the order of termination issued by the respondent and prays that the petitioner be allowed to resume work and that he should be paid full salary and other service benefits from the date of termination till the date of resumption of work and also claim compensation. By efflux of time, the relief of allowing the petitioner to resume work has become infructuous as the petitioner had already attained the age of superannuation. 2. The petitioner was appointed as a Weaving Master in NTC Mills vide appointment order dated 12/5/1987 issued by the Director ( personnel ). His services were confirmed and on 5/4/1988, the petitioner was promoted as Production Manager of the Nanded Mills. According to the petitioner, his basic pay in the year 1991-92 was Rs. 5150/- and gross pay was Rs. 8400/- per month. It is his contention that on 27/10/1991, the General Manager issued show cause notice alleging that the petitioner had put his initials at 4 places in respect of the corrections of the quotation submitted by M/s Agrawal Engineering Works. The petitioner has submitted his explanation to show cause notice dated 30/10/1991. The respondent did not accept the explanation and the enquiry was initiated. Thereafter, on 7/11/1992 show cause notice for termination was issued by the General Manager, which was replied by the petitioner on 30/11/1992. The same was not accepted by the respondent and as such on 15/12/1992, the General Manager issued order of termination. On 18/12/1992, the petitioner preferred 3 Appeal before the Director, the same was also rejected. 3. Mr. Prabhakaran, the learned counsel for the petitioner canvassed following prepositions : (I) The whole proceedings right from issuance of the show cause notice till the issuance of the order of termination is without jurisdiction, null and void abinitio as - (a) The petitioner was appointed by the Director ( Personnel ). As such, the disciplinary authority/competent authority can not be any person below the rank of appointing authority; and (b) As per the National Textile Corporation ( South Maharashtra ) Ltd. Conduct, Discipline and Appeal Rules, if the salary of an employee is more than Rs. 2750/- then the disciplinary authority is a Chairman – cum – Managing Director. In this case the disciplinary authority, who had issued the show cause notice and, the order of termination is the General Manager. (II) The enquiry has travelled beyond the scope of the show cause notice, which is not permissible. The show cause notice issued by the General Manager only contemplates that the petitioner had initialed the correction made. It did not level charge against the petitioner of having made corrections and the Enquiry Officer gave finding that the corrections have been made by the 4 petitioner and initialed it and the termination order is also passed on the same premise . (III) Principles of natural justice are violated. No charges were framed. Enquiry report was also not given to the petitioner . In this respect he relied on the decision of Apex Court in case of the Managing Director, ECIL, Hyderabad V/s Karunakar - reported in 1993 II Clr - 1129.) (IV) On merits, he submitted that the other persons had made corrections and initialed, but they were not prosecuted. It was only the petitioner, who was prosecuted. It has also come in evidence that the petitioner had not influenced the authorities to accept the particular tender. Still, the petitioner was made a scape goat due to internal rivalry. (V) The disciplinary authority was not the enquiry authority. As such, he ought to have independently considered and discussed the whole evidence produced at the time of departmental enquiry and he was bound to pass a reasoned order. 4. Mr. P. G. Godhamgaonkar, the learned counsel for the respondent no. 1 submitted that the petitioner was holding a high position and a person holding such a position, should not indulge in such activities of misconduct. He was holding important position and since he was found indulging in such activity, the respondent has taken proper step by issuing the order of termination. The 5 respondent Corporation can not take risk of keeping such a person in their service. According to him, principles of natural justice were followed. Opportunity was given to the petitioner at every step. He has further submitted that the Rules have been amended and the payment of salary is not the criteria for being a disciplinary authority. According to him, the petitioner had not raised the issue of the jurisdiction or the authority of the General Manager to act as a disciplinary authority at the inception or during pendency of enquiry proceeding or in Appeal and as such would not be entitled to raise this point for the first time in the Writ Petition. He has further contended that this Court may not sit as an appellate Court over the decision of the disciplinary authority. 5. The objection of Shri. Godhamgaonkar that the petitioner had not raised the issue about authority of General Manager at earlier stages is not correct. The petitioner had preferred an appeal before the appellate authority. In the said Appeal memo itself, the petitioner has specifically raised a ground pertaining to the authority of the General Manager to act as disciplinary authority. So, it is no gain saying that the petitioner is raising this issue for the first time in the writ jurisdiction. More over, any disciplinary action taken by a person without jurisdiction, even can not be cured by ratification. The petitioner has rightly relied on the Judgment of the High Court of Kerala in case of Ananthakrishnan V/s Oriental Fire & General Insurance Co. Ltd. reported in 1988 II LLJ – 526, in this respect. 6. On perusal of the Rules, it is manifest that General Manager could 6 not have acted as a disciplinary authority because even as per the amended rules relied by the respondent, in respect of the persons holding the post of Heads of the Units ( i.e. Chief Executive Officers/Managers), the disciplinary authority would be a Director in charge. It is not disputed that the petitioner at the relevant time was working as a Production Manager. As such, as per the rules relied by the respondent, the disciplinary authority can not be a person other than the Director in charge. So, on the face of it, the General Manager was not the competent authority designated in the rules and as such did not have the authority and jurisdiction to act as a disciplinary authority thus rendering the decision taken by him is a nullity. The Division Bench of this Court in case of Ashok Udaram Pathrabe V/s Maharashtra Remote Sensing reported in 2007 – I Mh. L.J. - 517 ( Bom. ) has held that the appointing authority only would have the power to give punishment to an employee. As such, when the appointing authority was the Director ( Personnel ) and even the rules contemplate that for the person working as a Manager, the disciplinary authority would be only the Director in charge, the General Manager could not have acted as a disciplinary authority and thus the whole enquiry would stand vitiated, on this short ground. 7. The contention of Mr. Prabhakaran that the principles of natural justice are violated as the petitioner was not supplied with the enquiry report before the disciplinary authority issued him the notice and gave punishment, is worth considering. It is held by the Apex Court in the case of Managing Director, ECIL, Hyderabad ( referred supra ) that the delinquent employee’s right to 7 receive report of the Enquiry Officer is a part of reasonable opportunity of defending himself and failure to give the report of the Enquiry Officer before such decision, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of principles of natural justice. On this count also, the order under challenge deserves to be set aside. 8. Even on merits, we find that the enquiry has travelled beyond the show cause notice issued to the petitioner. The show cause notice only alleges regarding initials being made by the petitioner on the corrections in the tender. The show cause notice never alleged that corrections in the tender were made by the petitioner. But, from the perusal of the whole proceedings and the second show cause notice prior to issuance of order of termination, it is clear that the petitioner was being hauled for making corrections in the tender. The same is impermissible. The enquiry could not have travelled beyond the show cause notice issued to the petitioner. On this count also, the enquiry stands vitiated. 9. It has also come on record that the tender on which the initials were made by the petitioner was not accepted. It has also come on record that on some of the pages in some other tenders, the other persons had made initials on the corrections. But, it is only the petitioner, against whom an enquiry was initiated. When there is no evidence that the corrections were made by the petitioner and no show cause notice was issued to him for the said charge, then orders of termination issued to him on the premise of the said charge being proved, would be illegal. 8 10. Since we find that the petition deserves to be allowed on the aforesaid grounds, we do not find it necessary to consider rival contentions regarding other grounds. 11. The impugned order of termination is quashed and set aside. The respondent/Corporation is directed to pay the back wages to the petitioner, from the date of his termination till date of his superannuation along with all other consequential benefits. 12. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. [ S.V. GANGAPURWALA ] [ B.R. GAVAI ] JUDGE JUDGE knp/WP 1080.94