1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Bhukhal Mahato v. The General Manager (N.R.), IBP Co.Ltd., New Delhi & Ors. S.B.CIVIL WRIT PETITION NO.6632/2008 under Articles 226 and 227 of the Constitution of India. Date of Order :: 5th January, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Girish Sankhla, for the petitioner. Mr. K.K.Shah, for the respondents. .... BY THE COURT : To challenge the order dated 13/18.8.2008, issued under the signatures of the Divisional General Manager (Human Resources), Northern Region, Indian Oil Corporation Ltd., New Delhi, dismissing the petitioner from service, this petition for writ is preferred. The chronology of the facts, giving rise to the lis, are as follows:- 1. An appointment was given to the petitioner as Assistant with the IBP Company Ltd. in the year 1996 against a vacancy reserved for Scheduled Tribes; 2 2. On 19.9.2006 the petitioner was instructed by the General Manager (Northern Region) of the Company to submit an explanation regarding caste certificate dated 16.2.1983 submitted by him to get appointment as Assistant in the year 1996. As per the respondents the certificate aforesaid was not issued by the District Magistrate Saran-Chapra, Bihar and as such was a forged one; 3. On being dissatisfied by the explanation given, the respondents vide memorandum dated 10.10.2006 charge-sheeted the petitioner for following allegations of misconduct:- (1) Your caste certificate is not issued by the District Magistrate, Saran Chapra, Bihar and as such the caste certificate submitted by you with IBP Co. Limited at the time of your employment is forged/fake. (2) You have obtained employment with IBP Co. Limited on the strength of a forged fake caste certificate. (3) Your employment with IBP Co. Limited is based on your willful declaration of false statement/information and thus with ulterior motives you have sought employment with the Company on the basis of fake/forged caste certificate you have submitted with IBP Co. Limited at the time of seeking your employment. 3 (4) By using a fake caste certificate you have obtained the employment with IBP Co. Limited and thus willfully deprived the rightful employment of a ST candidate having a genuine caste certificate, which is prejudicial to the interest of the Company. (5) Your above acts are subversive of good behavior and against the discipline of the Company. 4. It was mentioned in the charge sheet itself that false information given by the petitioner in the application seeking appointment is a major misconduct and that makes him liable to be dismissed from service as per clause 33.2.33 of the certified standing orders of the IBP company limited business group (petroleum); 5. The petitioner, while reiterating genuineness of the certificate concerned, denied all the charges, however, under an order dated 1.2.2007 the respondents appointed Shri N.K.Das as inquiry officer to inquire into the charges framed against the petitioner. By the same order Shri Bishan Singh, Major (OLI), Regional Office, Noida, was appointed to act as presenting officer; 6. The petitioner availed services of Shri N.Burman as “defending workman”; 4 7. During the course of inquiry the management produced 11 documents to support the charges and those were exhibited as SE-1 to SE-11. The management also produced Shri S.K.Joshi (SW-1) and Shri T.N.Gupta (SW-2) as witnesses to establish the allegations; 8. As per the inquiry officer an opportunity was given to the “defending workman” to cross examine SW-1 and SW-2; 9. The delinquent petitioner produced 11 documents to defend himself and those were exhibited as DE-1 to DE-11. The statements of one Shri Parmanand Mahato were recorded as defence witness; 10. The request made by the delinquent to produce certain additional documents such as attestation form, verification report, caste certificate relating to co- employees viz. Parmanand Mahato and Shiv Prasad Mahato was denied by the management being the documents confidential and personal; 11. After taking on record statements of the defence and general clarification from the delinquent, the inquiry officer concluded the inquiry by submitting his report to the disciplinary authority on 30.9.2007; 12. The Divisional General Manager (Human Resources) Northern Region, Indian Oil Corporation, New 5 Delhi, by an order dated 13/18.8.2008 inflicted upon the petitioner a penalty of dismissal from service of the Corporation with immediate effect. A copy of the report submitted by the inquiry officer was also given to the petitioner alongwith the order imposing penalty; 13. The order imposing penalty of dismissal upon the petitioner reads as follows:- “Reference is drawn to the Chargesheet ref. : 'BM' dated 20.10.96 and the subsequent Departmental Inquiry held in this connection against you for your misconduct of seeking employment with erstwhile IBP Co. Limited now Indian Oil Corporation Limited (MD) on the basis of a forged / fake caste certificate submitted by you. I would like to inform you that I have carefully gone through the Charge Sheet ref.'BM' dtd 20.10.96 and details of the Enquiry Proceedings. Enquiry Report dtd 30.09.07 as submitted by the Enquiry Officer and your defence reply, all other relevant records and after having applied my mind, I find you guilty of misconduct mentioned in the Charge-sheet ref.'BM' dated 20.10.06. A copy of the Enquiry Report is attached herewith. Taking into consideration the gravity of act of misconduct committed by you i.e. submitting fake caste certificate on the basis of which you have got employment with erstwhile IBP Co. Limited, I hereby order for 6 inflicting upon you the penalty of Dismissal from the service of the Corporation with immediate effect. You may collect your all dues within a period of one month.” 14. The order imposing penalty was passed by an officer of the Indian Oil Corporation due to merger of IBP Company Limited with Indian Oil Corporation Limited in the month of May 2007. While assailing validity of the order imposing penalty and also the entire inquiry that resulted into an order of penalty, the contentions of counsel for the petitioner are as follows:- 1. The entire disciplinary proceeding is bad as the same was initiated with bias and prejudice. A decision regarding dismissal of the petitioner from service of the Corporation was as a matter of fact taken by the employer even while charge-sheeting him. It is pointed out by counsel for the petitioner that the charge sheet dated 10.10.2006 itself refers that the petitioner is liable to be dismissed from service as a consequent to commission of a major misconduct; 2. The inquiry officer, while holding the petitioner guilty for all the allegations, erred by ignoring the documents dated 31.7.2006 whereby the District Magistrate, Saran-Chapra, Bihar in 7 unambiguous terms declared the caste certificate 16.2.1983 a genuine one. As per counsel for the petitioner a material and conclusive evidence has been ignored and that resulted into perverse conclusion; 3. No conclusive evidence was available with the employer to reach at the conclusion that the petitioner, while seeking appointment, produced a false certificate or gave a false statement/ information in the application for appointment; 4. The inquiry officer relied upon the document Ex.SE-8 without getting its contents verified by author of the document or by any person concerned with relevant knowledge or possession of the document aforesaid; 5. A gross violation or principles of natural justice occurred while holding inquiry due to denial by the management to produce the documents demanded by the petitioner such as attestation form, verification report, caste certificate relating to employees viz. Parmanand Mahato and Shiv Prasad Mahato. As per counsel for the petitioner those documents were necessary to establish that the caste Kharia is among the Scheduled Tribes and that community is having population in District Saran-Chapra, Bihar. It is also said that the inquiry officer made no efforts to call those relevant documents merely by relying upon the 8 statement of management that such documents are confidential and personal; 6. The order passed by the disciplinary authority deserves to be quashed being absolutely non speaking and unreasoned order. The findings given under the order impugned being not supported by any reasons are in violation of principles of natural justice. 7. The order passed by the disciplinary authority deserves to be quashed as no copy of the inquiry report was supplied to the petitioner before imposing penalty of dismissal upon him though the report concerned is used as an adverse material. While contesting claim of the petitioner, the stand of the respondents is that Hon'ble Delhi High Court in Civil Writ Petition No.5976/2003, directed Central Bureau of Intelligence on 14.7.2004 to verify and confirm details of all persons who obtained employment under Scheduled Tribes category since 1995 with Government of India, Government of National Capital Territory of Delhi and its agencies. On preliminary verification it appeared that about 30% of the certificates submitted by the aspirants for appointment against the vacancies relating to Scheduled Tribes were either forged or false, therefore, the Government of India decided to make 9 necessary inquiry of all such certificates produced before various appointing authorities even in public sector units. A coordinative mechanism was set up in this regard by the Government under Chairmanship of Shri M.L.Sharma, Additional Director, Central Bureau of Intelligence. The Chief Vigilance Officers of various Ministries and Departments were also made part of this coordinative set up. The coordinative mechanism established as above sought information from IBP Company also and Chief Vigilance Officer of the Company forwarded all necessary information to the Ministry of Petroleum and Natural Gas on 20.6.2005. During the course of investigation some doubt was created about certificate submitted by the petitioner, hence an explanation was sought from him on 19.9.2006. The explanation submitted by the petitioner was not found satisfactory, therefore, a regular inquiry was initiated as per applicable standing orders under memorandum dated 10.10.2006. The allegation of violation of principles of natural justice is denied by the respondents while stating that “a well reasoned order has been passed by the disciplinary authority after full application of his mind. The disciplinary authority has perused the entire enquiry report, the defence reply of the petitioner and all other relevant records before passing the order of dismissal”. 10 The respondents accepted that a copy of the inquiry report was provided to the petitioner only with the order imposing penalty of dismissal. It is asserted that the caste certificate produced by the petitioner was not issued by a competent authority i.e. the District Magistrate Saran-Chapra, Bihar. A rejoinder to the reply is filed by the petitioner mainly reiterating the facts averred in petition for writ. Heard counsel for the parties. Though the petitioner was subjected to disciplinary action for five allegations of misconduct, however, the main charge against him is relating to violation of clause 33.2.33 of the applicable certified standing orders and that reads as follows:- “Giving false statement/information made in his application for appointment or at any time and/or when physical fitness examination record is being done.” As per the applicable standing orders to the employees of the IBP Company the procedure for imposition of penalties is as follows:- 11 “36.1 When a workman is found or reported to have committed a misconduct, he shall be informed in writing of the allegations/ charges against him and shall be given an opportunity to make representation within a period of not less than 7 days. On receipt of the workman's explanation, if the allegations are denied by him, an enquiry shall be held. Such enquiry will be conducted by an officer of the Company or any other Competent Person or a retired officer of Indian Judiciary other than the officer who has made the allegation as may be nominated by the Competent Authority. At the enquiry, the workman concerned shall be entitled for explaining and defending his action by a co- workman of the same establishment or office bearer of the Trade Union of which he is a member. 36.2 In awarding punishment, the Competent Authority shall take into account the gravity of the misconduct, the previous record of the workman and any other extenuating or aggravating circumstances that may exist. A copy of the order passed by the Competent Authority shall be supplied to the workman concerned. 36.3 No order of removal or dismissal from service shall be made by authority lower than the Appointing Authority of the workman.” Though various contentions as already referred in preceding paras are advanced by counsel for the petitioner to challenge the order passed by the disciplinary authority, however, I am inclined to 12 accept this petition for writ on two grounds relating to those the facts are admitted. The order of dismissal which is reproduced in para 13 while giving chronology of facts is apparently a non-speaking and unreasoned order. It is well settled that a disciplinary authority while imposing a major punishment is required to consider entire record of inquiry and then to give his finding against each charge with reasons. In the present case neither the finding is given by the inquiry officer nor any reason is given to held the petitioner guilty for alleged misconduct. Nothing is said by the disciplinary authority in the order impugned as to how he found the evidence produced by the prosecution adequate to penalise the petitioner and how and why the defence advanced by the petitioner was not credit worthy. The disciplinary authority though has said that he applied his mind but such application of mind does not reflect in the order imposing penalty of dismissal. The decision of the disciplinary authority in the instant matter is apparently an out come of the mechanical exercise of powers and as such the same is violative of principles of natural justice. It is the position admitted that before imposing penalty of dismissal no copy of inquiry report was supplied to the petitioner. The decision of the disciplinary authority is founded on the findings given by the inquiry officer and as such the report 13 concerned was used as an adverse material. Such an adverse material should have been supplied to the petitioner by the respondents before imposing severest penalty of dismissal. Though the reference of punishment of dismissal in the charge sheet itself is quite strange, however, as I am inclined to accept this petition for writ on two grounds already discussed above, I am not examining all other contentions raised by counsel for the petitioner including the issue regarding bias and prejudice. In view of whatever discussed above, this petition for writ deserves acceptance and, therefore, the same is allowed. The order passed by the disciplinary authority dated 13/18.8.2008 is declared illegal and, therefore, the same is quashed. By the force of an interim order passed on 4.9.2008, the petitioner is continuing in service and as such there is no need to say anything about entitlement of the petitioner regarding back wages and other consequential benefits. If the respondents want to proceed against the petitioner afresh, they may do so from the stage of asking the petitioner to submit his comments on the inquiry report submitted by the inquiry officer. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.