Writ Petition No.2857 of 2001

15th April, 2016.

Petitioner Counsel: Ms. K.K. PATHAK
Respondent Counsel: Shri G.G. MODAK

Cases Cited:
M/s. Sterling Agro Industries Ltd. Vs. Union of India and others, AIR 2011 Delhi 174 [Para 14]
Kusum Ingots & Alloys Ltd. Vs. Union of India and another, 2004(5) ALL MR 700 (S.C.)=(2004) 6 SCC 254 [Para 15]
State Bank of Patiala and others Vs. S.K. Sharma, 1996 (3) SCC 364 [Para 21]

JUDGMENT

B. P. DHARMADHIKARI, J. :- By this petition filed under Article 226 and 227 of Constitution of India, petitioner/employee has assailed the punishment of dismissal imposed upon him on 16.3.2001 after disciplinary inquiry.

2. We have heard Adv. Pathak for the petitioner and Adv. Modak with Adv. Kale for the respondents.

3. Adv. Pathak has mainly raised following contentions :

(i) The petitioner has been appointed by Chairman-cum-Managing Director of Manganese Ore (India) Limited and hence, that Authority alone is Appointing Authority and Disciplinary Authority in case of petitioner. Charge sheet served upon petitioner on 31.7.1998 was by Agent and Deputy General Manager (Mines) i.e. by subordinate Authority. Hence, initiation of proceedings itself is bad.

(ii) During departmental inquiry, petitioner was not permitted to engage a Lawyer and, therefore, a serious prejudice is caused to him.

(iii) Though petitioner submitted list of six witnesses to be examined in defence, Enquiry officer did not allow those witnesses to be examined and, therefore, entire enquiry and findings recorded by the Enquiry Officer are vitiated.

(iv) The order of dismissal dated 16.3.2001 is passed by Agent and Deputy General Manager ( Mines) and, therefore, same is without jurisdiction.

Adv. Pathak has placed reliance upon certain judgments to which we will make reference little later.

4. Adv. Modak appearing for respondents has raised preliminary objection. He points out that entire service put in by petitioner was in Sate of Madhya Pradesh and within jurisdiction of High Court of Madhya Pradesh at Jabalpur. During this departmental inquiry, at least on four occasions he approached the High Court at Jabalpur by filing writ petitions. In view of this history, that High Court alone has got jurisdiction to entertain writ petition. He points out that though petitioner challenged order of dismissal dated 16.3.2001 in departmental appeal before Appellate Authority at Nagpur and that appeal has been dismissed by Chairman-cum-Managing Director as appellate Authority on 16.4.2001, that order passed at Nagpur has not been questioned in writ petition. He submits that in the light of previous challenges before Madhya Pradesh High Court, challenge to order passed by the appellate Authority at Nagpur must be raised before that High Court. According to him, a miniscule part of cause of action, at the most, could have been said to have accrued within jurisdiction of this Court, but it is not sufficient and this Court has no reason to exercise its discretionary jurisdiction in such matters as doctrine of 'forum conveniens' is specifically attracted. He has relied upon the judgment of Hon'ble Apex Court to buttress his preliminary objection.

5. Without prejudice to the preliminary objection, on merits, Adv. Modak sates that the provisions of MOIL Employees (Disciplinary) Rules, 1978 which regulated departmental proceedings conducted against petitioner have been specifically amended on 11.8.1995 and the Head of the establishment in which petitioner was working has been constituted as Disciplinary Authority. He has invited our attention to the assertion in paragraph 4 of petition that the petitioner along with two other officers were appointed by General Manager (Personnel), Nagpur on behalf of Chairman-cum- Managing Director. He contends that the Disciplinary Authority as is being pressed into service by petitioner has never appointed petitioner and Chairman-cum- Managing Director was not the appointing authority.

6. Adv. Modak has invited our attention to the provisions contained in the said Rules to show that Rules do not permit engagement of an outside person during departmental inquiry and a Lawyer is also not permitted. Our attention is invited to specific finding in enquiry report that petitioner did not wish to examine any witness in the defence. Adv. Modak submits that though petitioner objected to several findings recorded by Enquiry officer, this particular fact mentioned therein was never refuted.

7. Adv. Modak further submits that in this situation, the order of punishment, which is in accordance with provisions of 1978 Rules, cannot be interfered with in the writ jurisdiction. He points out that though in the return filed in 2002, preliminary objection has been specifically raised, no amendment to petition was sought and appellate order was never challenged.

8. In reply arguments, Adv. Pathak submits that though Madhya Pradesh High Court was approached by the petitioner earlier, that High Court has not decided anything, at least on merits, and after his dismissal, as he is staying at Nagpur, this Court has got jurisdiction. She points out that in writ petition, grounds to challenge adjudication of appeal are specifically raised. She further submits that inadvertent omission in not expressly seeking quashing and setting aside of appellate order cannot be held against petitioner. By way of abundant precaution, she also seeks leave to add a prayer expressly assailing the adjudication of appeal vide order dated 16.4.2001.

9. Adv. Modak on behalf of respondents is strongly opposing any such amendment at this stage. He points out that after the matter was fully argued, such a leave is being sought and it should not be allowed.

10. Perusal of memo of writ petition reveals the challenge to the appellate order in paragraph 20. In the said memo, two consecutive paragraphs are numbered as paragraph 20, but both paragraphs raise the grounds to assail the adjudication by appellate Authority. In prayer clause, vide prayer 1, declaration that order of dismissal is bad is sought. In prayer 2, along with prayer to quash and set aside the order of dismissal dated 16/3/2001, there is a further prayer to require respondents to reinstate the petitioner in service with continuity, back wages and all other consequential benefits. It is obvious that if these prayers are granted, appellate adjudication cannot stand. Apart from this, vide prayer 3, there is also request to grant any further relief including one which may be deemed to be appropriate in the circumstances of the case. Thus, though there is no express challenge to adjudication by appellate Authority dated 16/4/2001, one cannot conclude that the appellate order is not assailed before this Court. In this situation, though Adv. Modak has strongly opposed the request for amendment, we have granted oral leave asked by Adv. Pathak and permitted her to add prayer clause for quashing and setting aside the appellate order dated 16/4/2001. Necessary amendment be carried out forthwith.

11. We are aware of objection raised by Adv. Modak that it is adjudication of appeal at Nagpur, which may give rise to some cause of action at Nagpur and, therefore, enable petitioner to approach this Court. Actually when hearing began, we have permitted Adv. Modak to address the Court on those objections first. The fact that entire service of the petitioner is rendered in State of Madhya Pradesh is not in dispute. The petitioner has disclosed challenges earlier raised by him at Jabalpur in various writ petitions. He has pointed out the relevant facts in paragraphs 6 and 7 of the writ petition. The respondents have stated that petitioner was chargesheeted on 28/10/1997 while working at Chikhala Mines and thereafter was reverted. Because of this reversion, he came under non-executive cadre. The petitioner challenged this order of reversion in High Court of Madhya Pradesh at Jabalpur in Writ Petition No.2478/1999. According to respondents, said writ petition was pending on 28/6/2002 when affidavit in support of return was sworn in. Adv. Pathak, however, has made a statement that that petition is not pending. In return, it is further pointed out that after his reversion, petitioner was posted at Ukwa Mines where he was served with suspension order dated 19/6/1998 for committing certain misconducts. The petitioner challenged suspension order and validity of disciplinary rules by filing Writ Petition No. 3878/1999 at Jabalpur and that petition was admitted for final hearing. He thereafter preferred Writ Petition No. 932/1999 and assailed appointment of an outsider as an Enquiry Officer. He also challenged competency of the Authority issuing charge-sheet dated 31/7/1998 in that Writ Petition No. 932/1999. However, that writ petition was dismissed as in the meanwhile, petitioner participated in departmental enquiry and he was dismissed from service on 16/3/2001.

12. It is, therefore, obvious that challenge to order of reversion in Writ Petition No. 2478/1999 has got no bearing on mis-conduct and departmental enquiry, which form subject matter of present challenge. Writ Petition No. 3878/1999 questioned validity of Rules and order of suspension. It was only admitted for final hearing at Madhya Pradesh. The learned Counsel for petitioner has stated that it is not pending. Writ petition allegedly filed thereafter, i.e. Writ Petition No.932/1999 has been disposed of because of dismissal of petitioner from employment. Perusal of order passed by the learned Single Judge of that High Court shows an observation that grounds of challenge were rendered infructuous. The petitioner was, therefore, given liberty to pursue remedy in accordance with law against the final order passed in domestic enquiry. It has been expressly mentioned that grounds raised in Writ Petition No. 932/1999 would remain available to the petitioner while assailing the final order.

13. Thus, no adjudication on merits or on any aspect of controversy which can operate as res judicata between parties has been pointed out to us. The respondents have not pointed out any benefit either direct or indirect which petitioner has obtained by not approaching Madhya Pradesh High Court. Similarly, respondents could not point out any prejudice suffered by them because of act of petitioner in approaching this Court.

14. The judgment in M/s. Sterling Agro Industries Ltd. v. Union of India and others (AIR 2011 Delhi 174) is delivered by Special Bench of Delhi High Court. Hon'ble five Judges there have pointed out what constitute essential facts. It has been explained in paragraph 29 that facts pleaded in writ petition must have a nexus on the basis whereof a prayer can be made and the facts, which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a Court. In paragraph 26, it is noted that facts, which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. It is in this background that in paragraph 30 onwards, the Special Bench has proceeded to consider the doctrine of forum conveniens. In paragraph 32, the view of Full Bench of that High Court that as appellate Authority which passed the order was situated in Delhi, the Delhi High Court should be treated as forum conveniens was not accepted. In paragraph 33, it has been held that an order passed by the appellate Authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate Authority is situated, but it cannot be a singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

15. In Kusum Ingots & Alloys Ltd. vs. Union of India and another {(2004) 6 SCC 254} : [2004(5) ALL MR 700 (S.C.)], Hon'ble Apex Court has reiterated the same view. It has been held that in appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

16. Here we have already noted that after his dismissal from service, petitioner is staying at Nagpur and his appeal preferred against the dismissal order has been decided by the appellate Authority, which is located at Nagpur. Perusal of appeal memo sent by petitioner shows that it was sent from Ukwa Mines, Balaghat on 25/3/2001. Memo of amendment to that appeal memo dated 16/4/2001 again shows that petitioner was at Balaghat on 16/4/2001. The appellate Authority has dismissed the appeal on 16/4/2001 only. Dismissal of appeal was communicated to petitioner by mentioning him Ex-Senior Superintendent (Materials), Ukwa Mine. The petitioner, therefore, has not demonstrated that he was served with copy of order dismissing appeal at Nagpur.

17. In this situation, we find that only because later on petitioner has come to stay at Nagpur, it cannot be contended that any part of cause of action has accrued at Nagpur. The memo of petition is conspicuously silent on place of accrual of cause of action. If after service of order dismissing his appeal, petitioner has shifted to Nagpur, fact of his shifting to Nagpur has got no bearing on lis between the parties. Therefore, we find that no such part of cause of action has accrued at Nagpur within the jurisdiction of this High Court to persuade us to exercise the extraordinary jurisdiction.

18. Considering the fact that challenge is pending before this Court since 27/7/2001 and rule was issued by this Court on the very first date of hearing without giving opportunity to respondents to raise any objection, we find it appropriate to briefly record our findings on contentions raised by learned Counsel for the petitioner on merits. This consideration may hold good, if seat of appellate Authority at Nagpur is found sufficient to persuade us to take cognizance on merits.

19. The fact that petitioner had submitted list of six persons as defence witnesses is not in dispute. Enquiry Officer has in his report dated 11/1/2001 specifically observed that after prosecution side was over, the charged Officer submitted six names as his defence witnesses, but did not wish to examine them. This finding or conclusion or fact recorded in enquiry report is not assailed as incorrect by petitioner though he has submitted his lengthy explanation on findings therein on 18/2/2001. As such, mere contention that defence witnesses were not allowed to be examined is not sufficient to hold that enquiry is vitiated. On the contrary, facts reveal that petitioner himself did not wish to examine witnesses in defence.

20. Similarly, the submission that petitioner was not given opportunity to engage Advocate or Lawyer is not sufficient to conclude that enquiry is vitiated. No provision in Service Rules enabling employee to seek such permission or leave has been pointed out. It is not the case of petitioner that either Enquiry Officer or Presenting Officer was having necessary expertise in the legal field and he was ill equipped. As such, mere denial of opportunity to engage Advocate by itself cannot be viewed as sufficient to declare the enquiry as vitiated. Here it needs to be noted that the petitioner has passed M.A. (Sociology), M.A. (Political Science), M.A. (Public Administration). He has also Diploma in Business Management and a degree, which he has described as DHMS, apart from law degree.

21. The Hon'ble Apex Court in State Bank of Patiala and others vs. S.K. Sharma (1996 (3) SCC 364) has laid down the principles to examine whether mere breach of principles of natural justice results in vitiating departmental enquiry. The Hon'ble Apex Court has held that in circumstances as placed before this Court, it is incumbent for the petitioner to demonstrate accompanying prejudice also. The petitioner has not pleaded and pointed out any prejudice.

22. The facts that charge-sheet is served upon the petitioner by Agent and Deputy General Manager as also the dismissal order is issued by the very same Authority are not in dispute. Perusal of Employees (Disciplinary) Rules, 1978 shows that on 11/8/1995, a corrigendum was issued and as per that corrigendum, for employee like petitioner, who held non executive post and was posted at Mines, Disciplinary Authority competent to impose major penalty is specified to be Mines Manager, In-charge of Mines. The appellate Authority for major penalties is Agent of the Mines. Rule 6 which deals with Disciplinary Authorities stipulates that appointing Authority or Authority mentioned in Schedule to the 1978 Rules is competent to impose penalties specified in Rule 5. Rule 5 provides for dismissal from service, which ordinarily is declared to be disqualification for future employment. Thus, appointing Authority, namely, Chairman-cum- Managing Director or Authority mentioned in the Schedule is competent to impose punishment of dismissal. In the wake of corrigendum noted supra, It is apparent that punishment is imposed by a person, who is Agent and Deputy General Manager. The said person is in fact an appellate Authority after such order is passed by the Disciplinary Authority. It cannot, therefore, be said that dismissal order is passed by an incompetent Authority or any subordinate Authority in the matter.

23. Hence, even on merits, we find that no case is made out warranting interference.

24. The writ petition is, therefore, dismissed. Rule is discharged. No costs.

Petition dismissed.