HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 4027 of 1997 J. Prasad (dead) Versus Board of Directors of the Hindustan Steel Work Construction Ltd. & Others Post for pronouncement ofthe judgment and order on l7—4—2009 sci/L Sau'sh K. Agnihotn' Judge 7 HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 4027 of 997 1 J. Prasad (dead), son of Late Shri B.S. Sharma, Ex. Asstt. General Manager, Hindustan Steel Works at present residing at Bhilainagar, District Durg. Leqal representative : Anand Kishore, S/o Late Shri Jintendra Prasad, aged about 43 years, R/o Plot No.157/130, Street — 2, Steel Colony, Nehuru Nagar—Wst, Tah. & District Durg (CG). Versus RESPONDENTS 1. Board of Directors of the Hindustan Steel Work Construction Ltd., Registered Office 1, Shakesphere Sarani, 6th Floor, Calcutta, through its Managing Director. 2. Shri Ashin K. Mukherjee, Chairman- cum—Managing Director, Hindustan Steel Work Construction Ltd., Shakesphere Sarani, 8th Floor, Calcutta. 3. Shri Rajendra Singh, Enquiry Officer in Prasad‘s case. 4. Shri P.C. Chaturvedi, D.l\/l. (Vigilance), No.3 and 4 care of Hindustan Steel Work Construction Ltd., Shakesphere Sarani, 8th Floor, Calcutta. PETITIONER (Writ petition under Article 226/227 ofthe Constitution of India) Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Present :- Despite service of notice, none appears on behalf of the respondents. Shri V.G. Tamaskar, counsel for the petitioner. JUDGMENT & ORDER (Passed on this llhday of April, 2009) The petitioner — J. Prasad filed this petition on 30—9-1997, duing pendency of this petition, J. Prasad died on 3—1—2002 and he was substituted by his legal representative i.e. Anand Kishore (elder son) by order dated 20-1-2009. 2) By this petition, the petitioner seeks a direction/order for quashing the charges, the departmental enquiry, the enquiry report, the order of punishment, the order of rejecting appeal and the order rejecting the prayer for leave encashment without specifying the dates of the orders in the prayer clause of the petition. 3) The indisputable facts, in nutshell, as projected by the‘ petitioner, are that Jr Prasad was the Assistant General Manager of the respondent company, which is a Government of India undertaking unit, and he retired from the service on 30-4-1997 in compliance of the retirement notice dated 31—12-1996 (Annexure — PM). 'On 10/19-9—1996 (Annexure — P/3) the respondent company framed certain charges against the petitioner. While issuing the charge sheet the respondents relied on large number of documents and the petitioner requested for providing the same, but the respondent company refused to provide the same by letter dated 28—10-1996 (Annexure — P/5). Thereafter, the petitioner submitted his reply to the charge sheet on 8-1 1—1996 (Annexure — P/6) by denying the charges leveled against him. The enquiry officer without appreciating the reasons and grounds mentioned by the petitioner in his reply, completed the enquiry proceedings and submitted the enquiry report on 28—4-1997 (Annexure — P/9). After obtaining the enquiry report, the punishment order dated 29—4-1997 (Annexure ~ P/11) has been passed by the Chairman-cum— Managing Director (for shon‘ “the CMD’§ of the respondent company. Being aggrieved by the said order, the petitioner filed an appeal before the Board of Directors and the same has been returned to the petitioner by letter dated 25—7-1997 (#‘nnexure — P/13) on the ground that the appeal lies only with the Appellate Authority i.e. CMD, HSCL. Thus, this petition. 4) The petitioner seeks the above stated reliefs on the ground that the departmental enquiry was instituted with ma/a fide intention knowingfully well that the petitioner was to retire on the basis of vague charges and no evidence. The enquiry officer and the presenting officer deliberately acted against the petitioner with malice. Copies of the documents and the copies of deposition should have been supplied to the petitioner in‘proper time and enquiry report should also have been supplied well in advance. The petitioner was entitled to be heard in appellate jurisdiction to get the favourable decision. 5) ‘ Shri Tamaskar, learned counsel appearing on behalf ofthe petitioner, would submit that the sole ground of challenge in the-petition is the impugned orderofremovalfrom service. Other grounds have not been pressed by Shri Tamaskar except that the impugned dismissal order dated 29—4-1997 (AnneXure — P/1 1) was passed by the CMD is vitiated. The CMD is an appellate authority, not the disciplinary authority on account of passing of dismissal order; the petitioner has been deprived of his right of appeal. Shri Tamaskar placed reliance on the decision of the learned Single Judge of Calcutta High Court rendered in D.N. Mondal vs. Hindustan Steel Works Construction Ltd. & 0rs.1. In the said decision the learned Single Judge Hon’ble Shri Altamas Kabir, J. (as His Lordship then was) has quashed the order of dismissal in the same facts of the case. 6) The respondents after having filed reply have chosen not to appear in the Court despite several opportunities. ln the reply dated 7-1—1998 the stand taken by the respondents is as under : “4. Of paragraph 5.4 it is submitted that the contention of the petitioner that Board of Directors is the Disciplinary Authority to frame the charge is not correct. As per the amendment to the HSCL CDA Rule 1978 circulated vide PER/RR/501 dated 10—6-1993 the Disciplinary Authority for the post of Asstt. General Manager is Functional Director/ Executive Director. The Chairman-cum-Managing Director being the higher authority to Functional Director/Executive Director has full power to initiate disciplinary action against Shri J. Prasad who was Asstt. General Manager during the period. Since there was no Functional Director/Executive Director Incharge of the Bhilai Unit of HSCL at the time of initiation of disciplinary proceedings, CMD being the Higher Authority approved initiation of RDA and issued charge sheet as the competent disciplinary authority. In view of above, the contention of the petitioner that Board of Director. was the a ppointing and disciplinary authority is not correct.” 7) i have heard learned counsel appearing for the petitioner, perused the pleadings and the documents appended thereto. 8) Without going into the merits of the disciplinary enquiry asto whether the same was conducted in accordance with law, as during the course of arguments the petitioner has not raised any issue with regard to irregularity or illegality in the departmental enquiry. The admitted position is that the disciplinary authority in case of Assistant General Manager, pursuant to the ‘WP No.15358 (W) or 1998 circular dated 10—6-1993 (Annexure — R/1) was the Functional Director/Executive Director. The CMD was the appellate authority as well as reviewing authority. Thus, the CMD, while exercising the power of the disciplinary authority i.e. the Functional Director/Executive Director has deprived the petitioner from availing the appellate jurisdiction. 9) Identical issue came into consideration before the Hon’ble Supreme Court in Surjit Ghosh vs. Chairman & Managing Director, United Commercial Bank and othersz. The Supreme Court observed as under: “5. Some grievances have been made by the appellant in the present appeal touching upon the illegalities in the conduct of the proceedings such as that (a) the disciplinary proceedings were initiated by an incompetent disciplinary authority in breach of Regulation 8(2)(ii/) read with Regulation 3(g) of the Regulations; (b) the statement of witnesses recorded earlier were not supplied to him in breach of Regulation 8(10)(b)(ii/) and (c) he was denied opportunity to explain circumstances appearing against him in evidence in breach of Regulation 6(17) of the Regulations. However, it is not necessary to go into the merits of the said grievances since we are of the view that one of the objections taken by the appellant to the dismissal, viz., that the appellant was deprived of an opportunity to prefer an appeal provided under the Regulations, goes to the root of the dismissal order. The undisputed facts relating to the said grievance of the appellant are that the disciplinary action was taken against him by the Deputy General Manager As the Regulations stood then the disciplinary authority for officers in Grades E, D, C and B (excepting Divisional Managers in Grade B) was the Divisional Manager/AGM (Personnel) and the appeal against their order lay to the Deputy General Manager or any other officer of the same rank. Against the order of the Deputy General Manager, the review lay to the General Manager. It is not disputed that the appellant was an officer in Grade D. Hence in his case, as per the said Regulations, the disciplinary authority was either the Divisional Manager or the AGM (Personnel) and if the action was taken by either of them, he had an opportunity to appeal to the Deputy General Manager or any other officer of the same rank, and thereafter he had a further right of review to the General Manager. However, since the action against him was taken by the Deputy General Manager although the Divisional Manager and AGM (Personnel) were available for taking the action, the appellant was denied the right of an appeal and also the right of a review which lay only against the appellate order. The impugned order of dismissal passed by the Bank, therefore, suffers from an inherent defect.” 2 (1995) 2 SCC 474 @> 10) The dicta laid down by the Supreme Court in Surjit Ghosh (supra) was referred in Goa Shipyard Ltd. vs. Babu Thomas3. The same was distinguished in view of the facts of the case wherein the impugned order was passed by the appellate authority, but thereafter the petitioner had an opportunity to prefer an appeal and, in fact, the same was availed and the appeal filed by the employee was dismissed before the Board of Directors. 11) ln the facts of the case, on hand, the petitioner has preferred an appeal against the impugned order dated 29-4—1997 passed by the CMD to the Board of Directors on 28-5—1997 (Annexure — P/1 2), which was returned by the CMD to the petitioner observing that : “Under the rule of the company, appeal lies only r with the Appellate Authority, that is, Chairman— cum-Managing Director, HSCL and hence your purported memorandum of appeal to the Board is invalid and hence returned." 12) Thus, it is clear that the right of the petitioner to prefer an appeal was taken away by the CMD. Further no reasons have been assigned asto why the impugned. dismissal order was passed by the appellate authority not by the disciplinary authority. 13) For the reasons mentioned hereinabove and applying the well settled principles of law, the impugned order of dismissal dated 29—4-1997 (Annexure — P/11) suffers from an inherent defect. Accordingly, the same is quashed and the petition is allowed with the consequential benefits. No I/d 5; Sd/—’ satish K. Agnjhotri Judge Gowri order asto costs, 3 (2007) 1O SCC 662