BV SHRIHARI RAO vs. OIL AND NATURAL GAS CORPORATION LTD AND ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P (C) No. 141/2011& CM. No. 9248/2012
rd
% Judgment reserved on: 23 July, 2013
nd
Judgment delivered on: 2 September, 2013

BV SHRIHARI RAO ..... Petitioner
Through: Mr. Ashok Rajagopalan and
Ms. Madhu Tyagi, Advs.

Versus

OIL AND NATURAL GAS CORPORATION LTD
AND ANR. ..... Respondents
Through: Mr. V.M. Koura and Ms.P.K.
Benipal, Advs.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.
1. Instant petition has been preferred against the impugned order
dated 02.12.2010, whereby, penalty of „removal from service‟ has been
imposed upon the petitioner.
2. To adjudicate the instant petition, it is necessary to record the
background of this case. Petitioner was appointed for the post of
Geologist on 06.07.1989. In the year 2009, he was in Level E4 and
was posted at Rajahmundry in the State of Andhra Pradesh. He was
the President of the Association of Scientific and Technical Officers
(ASTO) of Rajahmundry Unit of ASTO, ONGC. In the month of
W.P (C) No. 141/2011 Page 1 of 39

January, 2009, Officers of Public Sector Oil Companies had decided to
go on nation-wide strike from 07.01.2009 to 09.01.2009. The
petitioner, being the President of ASTO of Rajahmundry Unit,
participated in the said strike. Being enraged by the Strike, respondent
no. 1 decided to impose penalty of „removal from service‟ on all the
office bearers of the various units of ASTO including the petitioner
herein.
3. Accordingly, by an order dated 08.01.2009 petitioner was
slapped with a penalty of „removal from service‟ in connection with
the strike, which commenced on 07.01.2009.
4. Being aggrieved by the order dated 08.01.2009, petitioner
preferred an appeal to the Chairman and Managing Director of
respondent no. 1, the appellate authority under the CDA Rules.
5. By an order dated 29.01.2009, Board of Directors directed that
the petitioner and 61 other office bearers of ASTO to be reinstated in
service.
6. Vide the said order it was further directed that the petitioner
shall be placed under suspension with immediate effect till further
orders with Rajahmundry as Headquarters. Accordingly, disciplinary
authority (Director, HR) issued a chargesheet dated 05.03.2009 calling
upon the petitioner to show cause against the imputation of misconduct
and misbehaviour in support of each article of charge which was
annexed as Annexure-II to the said charge sheet.
W.P (C) No. 141/2011 Page 2 of 39

7. After receiving the reply from the petitioner, Director (HR) vide
its order dated 09.05.2009 appointed an Enquiry Officer to enquire into
the charges framed against the petitioner and six others. The Enquiry
Officer commenced the enquiry proceedings on 08.06.2009 and the
enquiry was held at Rajahmundry.
8. It is pertinent to mention here that during his suspension, the
petitioner was transferred from Rajahmundry to Bokaro, however, his
relieving order was not issued, rather extended time to time.
Thereafter, vide order dated 24.05.2010, respondent no. 1 advised the
petitioner to join duty immediately and seek regularization of period of
absence by appropriate leave.
9. Due to this action of the respondents, petitioner filed
W.P.(C) 18601/2009 before the High Court of Andhra Pradesh by
assailing his transfer declaring the said order as arbitrary, illegal and
violative of Articles 14, 21 and 300(A) of the Constitution of India.
Also sought to suspend the order dated 17.02.2009 of respondent no. 3
as arbitrary, illegal and violative. The said petition was dismissed by
Hon‟ble Single Judge of High Court of Andhra Pradesh by observing
as under:
“I have perused the retention and transfer policy, which
makes it clear that the impugned order is not in violation
of any of the clauses of the said policy...... The legal
position has been crystallized in a number of judgments
that transfer is an incidence of service and transfers are
made according to administrative exigencies. No
employee as a matter of right can seek continuance of a
particular place / station for an indefinite period.
W.P (C) No. 141/2011 Page 3 of 39

Having regard to administrative exigencies, and the
policy notified by the employer, it is always open for the
employer to effect transfers, as per the requirements. In
these circumstances, I see no discrimination meted out to
the petitioner and it cannot also be said that his transfer
is in violation of the policy notified.
For the foregoing reasons, the writ petition deserves to
be dismissed and is accordingly dismissed, however, in
the circumstances, without any order as to costs.”
10. The petitioner issued a letter dated 11.06.2010, wherein it is
stated as under:
“The legality of the actions of the Management of ONGC
in suspending me and subsequently transferring me to
CBMDP while under suspension are the issues under
consideration by the Hon‟ble High Court of Andhra
Pradesh, Hyderabad and is subjudice. Therefore, it may
not be possible to join at CBMDP at this stage as it may
amount to showing disrespect to the legal system of this
country.”
“Subsequently, I came to know that the suspension
imposed on me was revoked vide order dated 16.06.2009.
The said other was not served on me till date to be
received by me. However, I came to know about the said
order only when a copy was filed in the High Court by
the Management of ONGC along with their counter
affidavit and that it was mentioned therein that I may
join at CBMDP accordingly.
Since the very issues of suspension and transfer during
suspension are before the court of decision, the
revocation of suspension after giving effect to the
transfer orders will not alter the nature of the case
before the Hon‟ble Court.”
11. On 18.06.2010, Bokaro Office of ONGC issued another Office
W.P (C) No. 141/2011 Page 4 of 39

Memorandum to petitioner stating inter alia as follows:-
“4. Besides above, such your acts amounts to
misconduct in terms of Rule 3 (i) and Rule 5 of ONGC
CDA Rules.
5. This is to inform you that your continued
unauthorized absence from duty without good and
sufficient reasons has rendered by your liable to
disciplinary action under ONGC CDA Rules.
Sh. Hari Rao, SG, ID No. 76491 is, therefore, advised to
join for duty immediately in his own interest and seek
regularization of the period of absence by appropriate
leave which has to be supported with valid reasons and
documents for the same.”
th
12. It is pertinent to note that the minutes of the 207 meeting of the
Board of Directors of ONGC, held on 29.07.2010 at New Delhi is as
under:
“ 207.21 WORK ARRANGEMENTS FOR HOLDING
ADDITIONAL CHARGE OF DIRECTOR (HR) BY CMD
AND TEMPORARY DELEGATION OF CERTAIN
POWERS VESTED IN DIRECTOR (HR) AS PER BDP-
2009
207.21.1 CMD apprised that Ministry of Petroleum &
th
Natural Gas (MOP&NG) vide its letter dated 15 July,
2010 had conveyed the approval for acceptance of
resignation of Dr. A.K. Balyan, the then Director (HR)
from the services of ONGC with immediate effect.
th
Further, MOP&NG vide its letter dated 29 July, 2010
has entrusted additional charge of Director (HR), ONGC
on ad-hoc basis to CMD, ONGC for a period of 3 months
th
from 16 July, 2010 or till regular incumbent is
appointed or until further orders, whichever is the
earliest.
W.P (C) No. 141/2011 Page 5 of 39

207.21.2 It was further informed that presently about 18
senior executives report directly to Director (HR), and
Dr. A.K. Balyan as Director (HR) was also assigned
additional responsibility as Director-In-Charge Business
Development. He was also on the Board of a number of
JV companies. CMD stated that in view of the aforesaid
orders of MOP&NG and considering the need to manage
the various responsibilities of Director (HR) efficiently, it
is deemed necessary to assign / delegate certain
functions to other functional directors / senior executives
(not below ED level). It was however clarified that the
core responsibility for the functions of Director (HR)
shall rest with CMD only, in conformity to the
Government of India orders.”
13. Thereafter, ONGC issued an office order dated 03.08.2010,
wherein it is stated as under:
“ Re: Temporary Delegation of Powers of Director (HR)
Consequent upon entrusting of additional charge for the
post of Director (HR), ONGC to CMD, ONGC by
th
MOP&NG, the Board of Directors in its 207 meeting
th
held on 29 July, 2010 have accorded approval for
assignment and sub-delegation of certain existing
delegated powers of Director (HR) to other Functional
Directors and ED-Chief-ER/Chief-HRD as a temporary
arrangement, till such time a regular incumbent is
appointed as Director (HR) by the Government of India.
However, the overall responsibility of HR area remains
with CMD.”
14. The Petitioner had challenged the order of Single Judge of High
Court of Andhra Pradesh before the Division Bench. Same was also
dismissed vide judgment dated 16.08.2010 wherein it is observed as
under:
W.P (C) No. 141/2011 Page 6 of 39

“It needs to be placed on record that the learned counsel
for the petitioner was pointedly asked to advance if
anything in his armoury to justify non compliance with
the order of transfer without any interim direction from
the writ court or this court to the contrary. He was
reminded about the legal obligation that is cast upon the
appellant to discharge his duties attached to the office.
He was also reminded that failure to discharge his duties
could visit him with penalties. Responding thereto, he
pleaded lack of knowledge of revocation of suspension
on the part of the appellant. Amazingly denial of
knowledge is urged notwithstanding the fact that the
order of revocation of suspension accompanies the
counter of the respondents filed on 07/12/2009. In the
given facts is it ipsi dixit of the appellant or what, we
would like to refrain from expression of opinion because
we are not dealing with the consequences of non-
compliance of the order of the employer......”
15. Since the petitioner still refused to report to the Bokaro Office in
spite of the dismissal of the appeal by the Division Bench of Andhra
Pradesh High Court, show cause notice dated 03.11.2010 was issued to
the petitioner. He filed reply dated 09.11.2010 to the said show cause
notice.
16. Thereafter, vide order dated 02.12.2010, disciplinary authority
imposed a penalty of „removal from service‟ to the petitioner. Same is
under challenge in the instant petition.
17. It is pertinent to mention here that petitioner filed an SLP in the
Supreme Court which was dismissed vide order dated 01.04.2011 in
the following terms:-
“Mr. Rakesh Dwivedi, ld. Senior Counsel appearing for
W.P (C) No. 141/2011 Page 7 of 39

the petitioner, seeks leave to withdraw the petition,
stating that since the petitioner has already challenged
the order of the dismissal, he would like to urge all the
grounds, including the allegation of suppression of the
factum of revocation of order of suspension, before the
Writ Court. Accordingly, the special leave petition is
dismissed as not pressed.
We clarify that we have not expressed any opinion on the
merits of the grounds urged in the present petition. The
writ petition, stated to have been filed by the petitioner
questioning the validity of the order of his dismissal shall
be considered on its own merits, uninfluenced by any
observation in the impugned judgment.”
18. The main ground of the instant petition is that impugned order is
bad inter-alia for the following reasons:
a) Director (Onshore) is not the competent authority.
b) Order does not contain reasons for arriving at satisfaction
for invoking Rule 41 (b) or for the penalty.
c) Order does not contain reasons as to why several points
raised by the petitioner were rejected.
d) The order of transfer is bad.
e) Only the authority that suspended him could revoke the
suspension.
f) The impugned order was passed on the basis of the
directions of the CMD (who is also the Appellate
Authority)
19. Counsel for the petitioner submitted that the affidavit in reply to
the petition was filed by junior officer, who could not have had any
knowledge of the basis of satisfaction of the Director (Onshore) either
W.P (C) No. 141/2011 Page 8 of 39

for invoking the emergency clause 41(b) of CDA Rules or for
awarding the penalty of removal service or for rejecting various other
defences raised / contentions taken by the petitioner in his reply to
show cause issued by respondent no. 2 or allegations made in the Writ
Petition that the order of „removal from service‟ was done at the behest
of the appellate authority – the CMD. Such affidavit could not be
relied upon especially as no reasons have been stated as to why
respondent no. 2 or the CMD could not file an affidavit.
20. He further submitted that the perusal of Annexure P-22 clearly
shows that the petitioner stated as under:
“(a) he could not leave the Head Quarters as it was ordered by
the Board of Directors.
(b) he cannot be transferred under the F.I.F.O (First in First
Out) principle of the Transfer Policy as many E-4 level
officers of his discipline, with more years of stationed
seniority, are still placed at Rajahmundry and
(c) as per the MOU dated 29.07.1990 between the respondent
no. 1 and the Association, the office bearers could not be
transferred. The said MOU was circulated by the
Respondent no. 1 on 10.09.1990. Many E-4 level officers
of his discipline with more years of station seniority are
still at Rajahmundry.
(d) he was awaiting Revocation of Suspension Orders from
the board of Directors, which had originally passed the
suspension order.”
21. Ld. Counsel has raised the issue on competency of Director
(Onshore) as under:
W.P (C) No. 141/2011 Page 9 of 39

“13.1. It is the case of the Respondents that the Director
(Onshore) got the authority to pass the impugned order by virtue
of the minutes dated 29.07.2010. The power was stated to be a
temporary delegation which was consequent upon entrusting of
additional charge of Director (HR) to the CMD.
13.2 The office order dated 03.08.2010, however, clarifies that
overall responsibility of HR area remains with CMD. In other
words, the Director (Onshore) was only to be acting on behalf of
the CMD. The minutes of the board meeting dated 29.07.2010
clarifies that core responsibility for the functions of Director
(HR) shall rest with CMD only. Thus, the delegation of the
power to impose major penalty could not have been sub-
delegated to Director (Onshore).
13.3 In order to get over the Petitioner‟s oral submissions that
Director (Onshore) could not have acted as Director (HR) after
15.10.2010, the Respondents annexed further documents to an
affidavit filed on 06.07.2012. In the said documents they
enclosed a letter purported to have been received from the
Government of India by which the CMD was empowered to act
as Director (HR) for a further period. The Respondent did not
produce any document by which the Board has passed any
resolution empowering the CMD to continue to act as Director
(HR) as it did by its resolution dated 29.07.2010.
13.4 The power to assign / delegate is contained in 207.21.2
which stipulates that 18 senior executives report directly to
Director (HR). Director (HR) had additional responsibility of
business development. The CMD stated that in view of the
Orders of Ministry and the need to manage various
responsibilities of Director (HR) efficiently it was necessary to
assign / delegate certain functions (not powers) to other
functional Directors / senior executives. The Decision of the
Board of Directors further clarified that the core responsibility
for the functions of Director (HR) shall rest with CMD only.
13.5 The CMD stated that in view of the Orders of the Ministry
and the need to manage various responsibilities of Director (HR)
W.P (C) No. 141/2011 Page 10 of 39

efficiently it was necessary to assign / delegate certain functions
(not powers) to other functional Directors / senior executives.
13.6 Thus the Board of Directors did not authorize the
delegation of disciplinary powers or authority.
13.7 The delegation of powers contained in the Office Order
dated 03.08.2010 is itself stated to be a temporary delegation.
13.8 In any event the power to remove a person would always
vest with the appointing authority. This power cannot be
delegated to any other authority as it would violate the basic
principle of Industrial Jurisprudence that “only he who appoints
can remove”. Further, a perusal of the Schedule attached to
Annexure P-16 shows that it is a delegation of powers. Thus the
power to act as a disciplinary authority cannot be sub-delegated
on the maxim “delegatus non potest delegare”. The CDA
Rules do not contain any provisions for further delegation of
powers. In other words, only the CMD could have exercised the
powers of Director (HR) and the same could not have been sub-
delegated to the Director (Onshore).
13.9 It is therefore clear the impugned order has been passed
by a person who could not have any authority to pass the order
as the responsibility of the functions of Director (HR) rested
with the CMD only.”
22. Ld. Counsel submitted that the alleged competent authority has
not recorded the satisfaction for invoking Rule 41(b) or for the penalty.
The impugned order does not give the basis of satisfaction as to why
an enquiry could not be conducted. It does not disclose any
independent material on the basis of which such a satisfaction could be
arrived at.
23. When there was a pending enquiry in which the petitioner had
participated, there could not have been any valid reason to invoke Rule
W.P (C) No. 141/2011 Page 11 of 39

41 (b).
24. It is pertinent to mention here that the petitioner was removed
from service for participating in the strike on 07.01.2009 and the order
of „removal from service‟ was made on 08.01.2009 by invoking Rule
41 (b) without giving any show cause. Thus, it is clear that Rule 41 (b)
is invoked for urgent actions.
25. In the instant case, petitioner was transferred on 17.02.2009. A
show cause notice was issued on 03.11.2010 and that too after the
notice of filing a Writ Petition No. 7473/2010 was served upon the
respondent no. 1.
26. Further submitted that invocation of Rule 41 (b) is bad in law for
the following reasons:-
a) The Respondents have not produced any independent
material to show why it was not reasonable practical to conduct
the enquiry.
b) There was no urgency in the matter except probably for
the reasons set out in Para 6 of the Writ Petition.
c) A perusal of the CDA Rule 41 (b) would show that the
respondent no. 2 was bound to give reasons for arriving at the
satisfaction as to why it was not reasonably practical to hold the
enquiry.
d) The reason set out in the order is that (i) the petitioner did
W.P (C) No. 141/2011 Page 12 of 39

not obey the order of transfer and (ii) Director (Onshore) was
not satisfied with the reply given by the petitioner. These are
not reasons for invoking the said clause.
27. To strengthen his arguments, on the issue raised above,
ld. Counsel for the petitioner has relied upon a case of Jaswant Singh
v. State of Punjab & Ors. 1991 1 SCC 363 wherein it is held as under:
“It was incumbent on the respondents to disclose to the
Court the material in existence at the date of the passing
of the impugned order in support of the subjective
satisfaction recorded by respondent No. 3 in the
impugned order. Clause (b) of the second proviso to
Article 311(2) can be invoked only when the authority is
satisfied from the material placed before him that it is
not reasonably practicable to hold a departmental
enquiry. This is clear from the following observation at
p. 270 (of 1985 (Supp)2 SCR 131):at P. 1479 of AIR
1985 SC 1416) of Tulsi Ram's case:
A disciplinary authority is not expected to
dispense with a disciplinary authority lightly or
arbitrarily or out of ulterior motives or merely
in order to avoid the holding of an inquiry or
because the Department's case against the
government servant is weak and must fail.”
28. Ld. Counsel for the petitioner further submitted that decision to
dispense with the departmental enquiry cannot be rested solely on the
ipse dixit of the concerned authority. When the satisfaction of the
concerned authority is questioned in the court of law, it is incumbent
on those who support the order to show that the satisfaction is based on
W.P (C) No. 141/2011 Page 13 of 39

certain objective facts and is not the outcome of the whims or caprice
of the concerned authority.
29. Ld. Counsel submitted that as per the CDA Rules, the order of
removing the petitioner from service is an appealable order. The main
ground for „removal from service‟ is that the petitioner did not join
duty at Bokaro even after the suspension was revoked. The impugned
order does not set out any reasons for rejecting the other contentions
but only records that the contentions are rejected.
30. To strengthen his arguments, ld. Counsel has relied upon a case
of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 , wherein it
is held as under:

31. He submitted that order of „removal from service‟ is arbitrary
and violative of principles of natural justice. The impugned order has
been made vindictive and the procedure of enquiry was given a go-bye
only to hasten the process of removal.
W.P (C) No. 141/2011 Page 14 of 39

32. The provisions for appeal is not an equally efficacious remedy.
He submitted that the impugned order was made by Director (Onshore)
exercising power to take HR as the alleged delegatee of the CMD.
33. As per the CDA Rules, CMD is the Appellate Authority in
respect of major penalties. The petitioner belongs to category E-4.
This is therefore a case where an appeal to an order of CMD (through
his delegate) would lie to the CMD himself. This is no appeal in the
eyes of law. This is more so when it is the case of the petitioner that
order of removal was passed without an enquiry only on the
instructions of CMD himself. This allegation has been met by the
respondents by stating that it was a figment of the petitioner‟s
imagination.
34. It is further submitted that petitioner sought to have the
grievance redressed by the Management, but no reply was given to
him. Provision for appeal is, therefore, not an efficacious remedy so as
to oust the jurisdiction of this court. In any event, the existence of an
alternate remedy is not an absolute power for entertaining a writ. The
alternate remedy must be an equally efficacious one.
35. Ld. Counsel for the petitioner submitted that petitioner has not
challenged the proprietary of the order dated 02.12.2010, but he has
challenged the legality of the order on the ground that it is violative of
Article 41 (b) of the Constitution.
36. The Rules operate entirely in the realm of private law and
private contract is untenable as it is not part of the pleading. In any
W.P (C) No. 141/2011 Page 15 of 39

event, even contracts between the state and the citizens are amenable
to writ jurisdiction of this court, settled law is that the Respondent is
“State” within the meaning of Article 12 of the constitution.
37. The order dated 02.12.2010, as has been passed by disciplinary
authority, is erroneous. Respondent no. 2 is not the ordinary party in
so far as the petitioner is concerned. As per the Government‟s order
and resolution of respondent no. 1, which was brought on record by the
respondents, it was the Chairman and the Managing Director who was
authorized to act as Director (HR) and even this authority had expired
prior to passing of the order.
38. As per the CDA Rules, the Chairman and the Managing Director
is the Appellate Authority against an order passed by the Director
(HR). This would, thus, be a case of Appeal from Ceaser to Ceser and
is not a provision for appeal in the eyes of law. The existence of a
provision for appeal is not a bar to invocation of the writ jurisdiction
especially, when the provision is not equally efficacious remedy.
39. The petitioner has relied upon a case of Isha Beevi on behalf of
the Minor Umaiben Beevi and Ors. Vs. The Tax Recovery Officer
and Addl. P.A. to Collector, Quilon and Ors. AIR 1975 SC 2135,
wherein it is held as under:
“We may point out that the reliefs claimed in the Writ
Petitions were Writs of Certiorari, and Mandamus and
Prohibition. It is clear to us, after perusal of those so
called "orders" sought to be quashed that they were only
notices of commencement of recovery proceedings by
W.P (C) No. 141/2011 Page 16 of 39

40. On the issue of res judicata, as rightly submitted by the
petitioner that the orders passed by Division Bench of Andhra
Pradesh High Court both in Writ Appeal No. 301/2010 and Review
Petition No. 1558/2010 were the subject matter of the SLP. The
Hon‟ble Supreme Court vide its order dated 01.04.2011 specifically
recorded that the Writ Petition filed by the petitioner questioning the
validity of the order of his dismissal shall be considered on its own
W.P (C) No. 141/2011 Page 17 of 39

merit, uninfluenced by any observation in the impugned judgment.
Thus, it is clear that, the Supreme Court has given liberty to this
court to decide the validity of the order of transfer, (which the
petitioner allegedly disputed) which is the main reason for „removal
from service‟. Thus, the order of Andhra Pradesh High Court did not
become final especially when the High Court did not decide the
question whether there could be a transfer when a person is under
suspension.
41. The respondents were made aware of the order of the Supreme
Court, but they did not take any steps to seek any clarification from
the Apex Court. The submissions also go on the premise that the
SLP is only against the order of Review whereas it was against the
order passed in Writ Appeal.
42. Respondents have filed counter-affidavit to the instant petition
and taken preliminary objection that to the impugned order dated
02.12.2010, passed by respondent no.2, an equal efficacious remedy is
available to the petitioner by way of an appeal to the appellate
authority under Rule 45 of the ONGC Conduct, Discipline and Appeal
Rules, 1994.
43. The various facts and events stated in the petition prior to the
issuance of the impugned order dated 02.12.2010 referred to and
pleaded in the Writ Petition, were also pleaded by petitioner in a Writ
Petition filed before the High Court of Andhra Pradesh vide Writ
W.P (C) No. 141/2011 Page 18 of 39

Petition No. 18601/2009 which was dismissed by ld. Single Judge of
the said High Court vide order dated 08.04.2010.
44. Against the order of the Single Judge, the petitioner preferred an
appeal before the Division Bench of the same Court vide Appeal
No. 301/2010 and the same was also dismissed vide order dated
16.08.2010.
45. It is further stated that in the absence of Director (HR), the
additional charge of the Post of Director (HR) was entrusted to the
Chairman and Managing Director, ONGC by the Ministry of
Petroleum and Natural Gas. Thereafter, the Board of Directors of
ONGC in a meeting held on 29.07.2010 accorded approval for
assignment and sub-delegation of certain existing delegated powers of
Director (HR), inter alia , to other Functional Directors as a temporary
arrangement till such time a regular incumbent was appointed as
Director (HR) by the Govt. of India. Thereafter, by Office Order
dated 03.08.2010, the Officers who were earlier reporting directly to
the Director (HR), were directed to report, inter alia , to other
Functional Directors as per the list annexed as Annexure-1 of the
Office Order.
46. In terms of said Office Order, the Director (Onshore) was the
competent authority under the delegation of powers during the relevant
time, and as such, was duly authorized to pass the impugned order
dated 02.12.2010. The revocation of the petitioner‟s suspension order,
the issuance of the transfer order dated 17.02.2009 to the petitioner and
the events connected with the same, have already been considered by
W.P (C) No. 141/2011 Page 19 of 39

ld. Single Judge and Division Bench of the High Court of Andhra
Pradesh.
47. On the very same ground, petitioner‟s challenge against the
transfer order dated 17.02.2009 was duly rejected by the High Court of
Andhra Pradesh.
48. It is admitted by the respondents that the appointing authority
for E1 to E4 Level Officers, as the petitioner is, is the Director (HR);
yet, as already stated above, during the relevant time when the show
cause notice was issued to the petitioner, the post of Director (HR) was
vacant and powers of appointing authority as well as to act as the
disciplinary authority for the employees in the E1 to E4 level had been
delegated to the Director (Onshore) in terms of Office Order dated
03.08.2010. The order passed by the Disciplinary Authority is subject
to an Appeal under Rule 45(b) of the Conduct, Discipline and Appeal
Rules. For convenience, same is reproduced as under:
“45. ORDERS AGAINST WHICH APPEAL LIES:..........
an Employee (including one who has ceased to be such)
may prefer an appeal against all or any of the following
orders, namely:
(b) an order imposing any of the penalties specified in
Rule 34, whether made by the Disciplinary Authority or
by any Appellate or Reviewing Authority;”
(e) The attendant Rules 46 and 51 of the said Rules provide as
follows:
“46. APPELLATE AUTHORITIES:
An employee including a person who has ceased to be in
the service of the Company, may prefer an appeal
W.P (C) No. 141/2011 Page 20 of 39

against all or any of the orders specified in Rule 45 to the
Competent Authority (as specified in the Schedule I of
these Rules)”
“51. CONSIDERATION OF APPEALS:
(1) In the case of an appeal against an order of
suspension, the Appellate Authority shall consider
whether in the light of the provisions of Rule 33 and
having regard to the circumstances of the case, the order
of suspension is justified or not and confirm or revoke the
order accordingly.
(2) In the case of an appeal against an order imposing
any of the penalties specified in Rule 34 or enhancing or
reducing a penalty imposed under the said Rule, the
Appellate Authority shall consider:
(a) Whether the procedure herein prescribed in
these Rules had been complied with and the
principles of natural justice observed.
(b) Whether the findings of Disciplinary Authority
are warranted by the evidence on the record; and
(c) Whether the penalty ........ imposed is adequate,
inadequate severe; and pass orders:
(i) Setting aside, reducing confirming or
enhancing the penalty; or
(ii) Remitting the case to the authority
which imposed or enhanced or reduced the
penalty or to any other authority with such
direction as it may deem fit in the
circumstances of the case.
(3) In the case of an appeal against any order
specified in Rule 45, the Appellate Authority shall
consider all the circumstances of the case and pass such
orders as it may deem just and equitable.”
W.P (C) No. 141/2011 Page 21 of 39

49. Ld. Counsel appearing on behalf of the respondents has
submitted that petitioner has approached this court without availing of
the alternate remedy of appeal, therefore, this court has no jurisdiction
to interfere with the order passed by the Disciplinary Authority.
50. To strengthen his arguments on this issue, ld. Counsel has relied
upon a case of Star Papers Mill Ltd. V. State of UP, 2006 10 SCC
201 , wherein it is held that Article 226 of the Constitution confers all
the High Courts a very wide power in the matter of issuing writs.
However, the remedy of writ is an absolutely discretionary remedy and
the High Court has always the jurisdiction to refuse to grant any writ if
it is satisfied that the aggrieved party can have an adequate or suitable
relief elsewhere.
51. The Constitutional Bench of the Supreme Court in the case of
State of MP v. Bhailal Bhai AIR 1964 SC 1006 held that the remedy
provided in writ jurisdiction is not intended to supersede completely
the modes of obtaining relief by an action in a Civil Court or to deny
defence legitimately open in such actions. The power to give relief
under Article 226 of the Constitution is a discretionary power.
52. In the case of Punjab National Bank v. O.C. Krishnan 2001 6
SCC 569 it is held that where hierarchy of appeals is provided by the
statute, the party must exhaust the statutory remedies before resorting
to writ jurisdiction.
53. Counsel for the respondent submitted that the present writ is
barred by res-judicata . He submits that petitioner has impugned the
order of removal primarily on the ground that the punishment is for his
W.P (C) No. 141/2011 Page 22 of 39

disobedience of the transfer order and since the order of transfer was
invalid his disobedience of the order of transfer was justified. He
submitted that prior to the present Writ Petition, his Writ Petition
before the ld. Single Judge and Division Bench of the same High Court
have already been dismissed. Thereafter, petitioner filed an SLP
before the Supreme Court. Same was also dismissed vide its order
dated 01.04.2011. Consequently, the order of the ld. Single Judge, as
confirmed by the Division Bench upholding the validity of the transfer,
has become final and binding on the petitioner. The principle of res-
judicata is applicable to writ proceedings and the petitioner cannot
therefore challenge or impugn the validity of the order of transfer in
the present petition.
54. Ld. Counsel has relied upon a case of Pandit M.S.M. Sharma v.
R. Shree Krishna Sinha & Ors. 1961 1 SCR wherein it is held as
under:

W.P (C) No. 141/2011 Page 23 of 39

55. Ld. Counsel submitted that impugned order dated 02.12.2010
has considered all the facts and recorded as under:

W.P (C) No. 141/2011 Page 24 of 39

56. Ld. Counsel submitted that there is no infirmity in the order, but
if the petitioner still has any grievance, he should address the grievance
by filing an Appeal in accordance with the Conduct, Discipline and
Appeal Rules. Therefore, the present petition is misconceived.
57. He further submitted that there was no need to conduct an
enquiry and removal orders passed under the Rules discussed above.
He has relied upon a case of Ashok Kumar Sonkar v. Union of India
& Ors. JT 2007 (6) SC 127 wherein it is held as under:
“28. A court of law does not insist on compliance of
useless formality. It will not issue any such direction
where the result would remain the same, in view of the
fact situation prevailing or in terms of the legal
consequences. Furthermore in this case, the selection of
the appellant was illegal. He was not qualified on the cut
off date. Being ineligible to be considered for
appointment, it would have been a futile exercise to give
him an opportunity of being heard.
29. In Aligarh Muslim University and Ors. v. Mansoor
Ali Khan : AIR2000SC2783 , the law is stated in the
following terms:
25. The useless formality theory, it must be noted, is
an exception. Apart from the class of cases of
admitted or indisputable facts leading only to one
conclusion referred to above, there has been
considerable debate on the application of that
theory in other cases. The divergent views
expressed in regard to this theory have been
elaborately considered by this Court in M.C.
Mehta referred to above. This Court surveyed the
views expressed in various judgments in England
by Lord Reid, Lord Wilberforce, Lord Woolf, Lord
W.P (C) No. 141/2011 Page 25 of 39

Bingham, Megarry, J. and Straughton, L.J. etc. in
various cases and also views expressed by leading
writers like Profs. Garner, Craig, de Smith, Wade,
D.H. Clark etc. Some of them have said that orders
passed in violation must always be quashed for
otherwise the court will be prejudging the issue.
Some others have said that there is no such
absolute rule and prejudice must be shown. Yet,
some others have applied via media rules. We do
not think it necessary in this case to go deeper into
these issues. In the ultimate analysis, it may depend
on the facts of a particular case.
30. In Karnataka State Road Transport Corporation and
Anr. v. S.G. Kotturappa and Anr. : (2005)IILLJ161SC ,
this Court held:
...The question as to what extent, principles of
natural justice are required to be complied with
would depend upon the fact situation obtaining in
each case. The principles of natural justice cannot
be applied in vacuum. They cannot be put in any
straitjacket formula. The principles of natural
justice are furthermore not required to be complied
with when it will lead to an empty formality. What
is needed for the employer in a case of this nature
is to apply the objective criteria for arriving at the
subjective satisfaction. If the criteria required for
arriving at an objective satisfaction stands fulfilled,
the principles of natural justice may not have to be
complied with, in view of the fact that the same
stood complied with before imposing punishments
upon the respondents on each occasion and, thus,
the respondents, therefore, could not have improved
their stand even if a further opportunity was
given....
31. In Punjab National Bank and Ors. v. Manjeet Singh
and Anr. : AIR2007SC262 , this Court opined:
W.P (C) No. 141/2011 Page 26 of 39

The principles of natural justice were also not
required to be complied with as the same would
have been an empty formality. The court will not
insist on compliance with the principles of natural
justice in view of the binding nature of the award.
Their application would be limited to a situation
where the factual position or legal implication
arising thereunder is disputed and not where it is
not in dispute or cannot be disputed. If only one
conclusion is possible, a writ would not issue only
because there was a violation of the principle of
natural justice.”
58. To adjudicate the instant petition, it is necessary to deal with the
Show Cause Notice dated 03.11.2010 issued to the petitioner which is
as under:-
“Whereas, in connection with his participation in
OSOA/ASTO strike started on January, 7, 2009, Shri B.V.
Srihari Rao, S.G., Id No. 76491, ONGC Rajahmundry
Asset was imposed with penalty of „„removal from
service‟‟ vide order No.O-DHR/D&A/16/2008-2009
dated 08.01.2009.
Whereas, in consideration of appeal against the
aforementioned orders dated 08.01.2009, vide order No.
O-DHR/D&A/16/2008-09 dated 29.01.2009 Shri Srihari
Rao was reinstated in service; however, he was placed
under suspension till further orders.
Whereas, Shri Srihari Rao, was transferred from
Rajahmundry to CBM-Dev. Project, Bokaro vide order
No. DDN/CE/GEOL/AT-2009 dated 17.02.2009 with
date of relieving as 27.02.2009.
Whereas, in consideration of his requests, the date of his
relieving from Rajahmundry was extended at three
occasions to 01.04.2009 to 15.04.2009 and 15.05.2009
W.P (C) No. 141/2011 Page 27 of 39

vide orders dated 03.03.2009, 02.04.2009 and
24.04.2009 respectively.
Whereas, Shri Srihari Rao was relieved from
Rajahmundery w.e.f 15.05.2009 vide order NO.
RJY/HR/ESTT-1/DS/76491 dated 14.05.2009.
Accordingly, Shri Srihari Rao was supposed to join at
CBM-Dev. Project, Bokaro latest by 24.05.2009 after
availing admissible joining time.
Whereas, Shri Srihari Rao did not comply with the
aforementioned transfer order and did not report to
CBM-Dev. Project, Bokaro for joining on transfer.
Whereas, vide order No. O-DHR/D&A/16/2008-09 dated
16.06.2009, concerning revocation of his suspension;
also Shri Srihari Rao was again advised to join his duty
at CBM-Dev. Project, Bokaro.
Whereas, Shri Srihari Rao has neither reported for
joining his duty at CBM-Dev. Project Bokaro nor did
submit any valid reasons for not joining his duty.
Whereas, GM-HR, CBM-Dev. Project, Bokaro vide
memorandum NO. BKRO/ONGC/CBM/HR-ER/Estt./76
491 dated 18.11.2009 advised Shri Srihari Rao to join his
duty at Bokaro immediately and to seek regularization of
his absence through appropriate leave; else he may be
liable for action under ONGC Rules and Regulations.

Whereas, I/C HR-ER CBM-Dev. Project, Bokaro vide
another memorandum NO. CBMDP/BKRO/D&A/76491
/2010 dated 24.05.2010 again advised Shri Srihari Rao
to join his duty at Bokaro immediately and to seek
regularization of his absence through appropriate leave;
else his continuous un-authorized absence may leave him
liable for action under Rule 14 (5) of ONGC Leave
Rules, 1995, as well as under provisions of ONGC CDA
Rules, 1994.

W.P (C) No. 141/2011 Page 28 of 39

Whereas, Shri Srihari Rao was further informed by I/C
HR-ER CBM-Dev. Project, Bokaro vide memorandum
No. CBMDP/BKRO/D&A/76491/2010 dated 18.06.2010
that his continuous un-authorized absence amounts to
misconduct under provisions contained in ONGC CDA
Rules, 1994 and has thereby rendered him liable for
disciplinary action under Rule ibid.
Now, therefore, in view of above, Shri B.V. Srihari Rao is
directed to explain as to why he has been unauthorizedly
absenting from duty with effect from
15.05.2009/24.05.2009 and as to why he disobeyed the
orders of his superior authorities and further as to why
action should not taken against him under Rule 5 (2),
4(1)(b), (c) and items Number 1,5,30 and 32 annexed to
Rule 3 (j) of ONGC CDA Rules, 1994 for his
aforementioned un-authorized absence and disobedience
of lawful orders of his superior authorities.
Accordingly, Shri B.V. Srihari Rao is hereby directed to
explain as to why the proposed action should not taken
against him under ONGC CDA Rules, 1994. The
explanation of Shri B.V. Srihari Rao against this show-
cause notice must reach the undersigned within 10 days
of the receipt of this notice.
59. It is important to note that petitioner replied Show-Cause Notice
on 09.11.2010 and mainly submitted as under:-
“I submitted appeals for revocation of suspension and
for cancellation of the transfer order.
A memorandum dated 05.03.2009 with some charges for
a major penalty was issued by the Director (HR) and I
replied denying the charges. An inquiry was initiated by
the Director (HR).
As a suspended executive, I could not hand over any
charge as my services were temporarily under abeyance,
not entitled to attend the office, not entitled for any leave,
W.P (C) No. 141/2011 Page 29 of 39

not entitled to take over any charge to discharge any
duties and not entitled for the full emoluments.
I joined Rajahmundry in 2001 and many of my senior
colleagues who were not suspended and who had more
station seniority were available at Rajahmundry as on
15.05.2009. I was also the President of recognised
ASTO Rajahmundry as on 15.05.2009.
Therefore, I appealed for the revocation of suspension
and for the cancellation of my transfer.
Again, I have submitted an appeal dated 13.08.2009 for
revocation of suspension and for cancellation of transfer.
I categorically mentioned in the said letter that I was
awaiting the order of revocation of suspension.”
60. After considering the reply of the petitioner, the Disciplinary
Authority passed the impugned order dt. 02.12.2010, whereby, penalty
of „removal from service‟ has been imposed upon the petitioner.
61. I have heard ld. counsel for the parties.
62. Admittedly, earlier also, the petitioner was removed from
service vide order dated 08.01.2009 and was reinstated vide order
dated 29.01.2009 by the order issued by Executive Director (EF) as
under:
“Now therefore the Board of Directors as the Appellate
Authority having perused the appeal of Shri B.V. Srihari
Rao, having gone through the undertaking facts and
circumstances of the case and in exercise of the powers
under rule 51 (2) of ONGC CDA Rules 1994 have
decided to set aside the said order of the Disciplinary
Authority and to remit the case to the CDA with the
direction to complete the necessary disciplinary action
under the CDA Rules.
W.P (C) No. 141/2011 Page 30 of 39

Further, it has been directed that Shri B.V. Srihari Rao
is placed under the suspension with immediate effect
and he shall remain under suspension until further
orders with Rajahmundry as HQ.”
63. In the year 2009, the petitioner was in level E4 and was posted
at Rajahmundry in the State of Andhra Pradesh. At that time, he was
the President of the Association of Scientific and Technical Officers
(ASTO) of Rajahmundry Unit of ASTO, ONGC. In the month of
January, 2009, Officers of Public Sector Oil Companies had decided to
go on nation-wide strike from 07.01.2009 to 09.01.2009. The
petitioner, being the President of ASTO of Rajahmundry Unit,
participated in the said strike. Being enraged by the Strike, respondent
no. 1 decided to impose penalty of „removal from service‟ on all the
office bearers of the various units of ASTO including the petitioner.
Accordingly, by an order dated 08.01.2009 petitioner was slapped with
a penalty of „removal from service‟ in connection with the aforesaid
strike.
64. Being aggrieved by the order dated 08.01.2009, petitioner
preferred an appeal to the Chairman and Managing Director of
respondent no. 1, the Appellate Authority under the CDA Rules. By
an order dated 29.01.2009, Board of Directors directed that the
petitioner and 61 other office bearers of ASTO to be reinstated in
service. However, further directed that the petitioner shall be placed
under suspension with immediate effect till further orders with
Rajahmundry as Headquarters. Accordingly, disciplinary authority
(Director, HR) issued a chargesheet dated 05.03.2009 calling upon the
W.P (C) No. 141/2011 Page 31 of 39

petitioner to show cause against the imputation of misconduct and
misbehaviour in support of each article of charge which was annexed
as Annexure-II to the said charge sheet. After receiving the reply from
the petitioner, Director (HR) vide its order dated 09.05.2009 appointed
an Enquiry Officer to enquire into the charges framed against the
petitioner and six others. The Enquiry Officer commenced the enquiry
proceedings on 08.06.2009 and the enquiry was held at Rajahmundry.
It is pertinent to mention here that during his suspension, he was
transferred from Rajahmundry to Bokaro, however, his relieving order
was not issued rather extended time to time. Thereafter, vide order
dated 24.05.2010, respondent no. 1 advised the petitioner to join duty.
65. Being aggrieved with the above action of the respondent, the
petitioner filed W.P.(C) 18601/2009 before the High Court of Andhra
Pradesh by assailing his transfer order. The said petition was
dismissed. Being aggrieved, the petitioner challenged the same before
the Division Bench of Andhra Pradesh High Court, the same was also
dismissed. Thereafter, the petitioner preferred an SLP before the Apex
Court. Since the petitioner still refused to report at Bokaro Office in
spite of the dismissal of the appeal by the Division Bench of Andhra
Pradesh High Court, show cause notice dated 03.11.2010 was issued to
the petitioner. He filed reply dated 09.11.2010 to the said show cause
notice. Thereafter, vide order dated 02.12.2010, disciplinary authority
imposed a penalty of „removal from service‟ on the petitioner. Same is
under challenge in the instant petition.
66. It is pertinent to mention here as stated above that petitioner
W.P (C) No. 141/2011 Page 32 of 39

filed an SLP in the Supreme Court which was dismissed vide order
dated 01.04.2011 as not pressed. Accordingly, the Apex Court has not
expressed any opinion on the merits of the grounds urged in the
petition. However, liberty was granted to the petitioner of questioning
the validity of the order of his dismissal which shall be considered on
its own merits, uninfluenced by any observations in the impugned
judgment passed by the High Court of Andhra Pradesh.
67. On the issue of res judicata, as rightly submitted by the
petitioner that the orders passed by Division Bench of Andhra
Pradesh High Court both in Writ Appeal No. 301/2010 and Review
Petition No. 1558/2010 were the subject matter of the SLP. The
Hon‟ble Supreme Court vide its order dated 01.04.2011 specifically
recorded that the Writ Petition filed by the petitioner questioning the
validity of the order of his dismissal shall be considered on its own
merit, uninfluenced by any observation in the impugned judgment.
Thus, it is clear that, the Supreme Court has given liberty to this
court to decide the validity of the impugned order. Therefore, there is
no bar to adjudicate the instant petition on the limited issue of
legality of the impugned order.
68. The main ground raised in the instant petition is that the
impugned order of dismissal from service is bad in law for the reasons
that the Director (Onshore) was not the competent authority to issue
the same. Also raised the issues that the impugned order does not
contain reasons for arriving at satisfaction for invoking Rule 41 (b) or
for the penalty; the order does not contain reasons as to why several
W.P (C) No. 141/2011 Page 33 of 39

points raised by the petitioner were rejected; the impugned order was
passed on the basis of the directions of the CMD (who is also the
Appellate Authority).
69. The impugned order is of dated 02.12.2010. In the minutes of
th
the 207 meeting of the Board of Directors of ONGC, held on
29.07.2010, prior to issuing the impugned order, at New Delhi, the
CMD apprised that the Ministry of Petroleum & Natural Gas vide its
th
letter dated 15 July, 2010 had conveyed the approval for acceptance
of resignation of Dr. A.K. Balyan, the then Director (HR) from the
services of ONGC with immediate effect. Further, the aforementioned
th
Ministry vide its letter dated 29 July, 2010 has entrusted additional
charge of Director (HR), ONGC on ad-hoc basis to CMD, ONGC for a
th
period of 3 months from 16 July, 2010 or till regular incumbent is
appointed or until further orders, whichever is the earliest. It was
further clarified that the core responsibility for the functions of
Director (HR) shall rest with CMD only, in conformity to the
Government of India orders.
70. Thereafter, vide office order dated 03.08.2010 issued by ONGC
it was conveyed that temporary delegation of powers of Director (HR)
with the overall responsibility of HR area remained with CMD.
71. Vide the present petition the petitioner has raised the issue of
competency of Director (Onshore) who has issued the impugned order
dated 02.12.2010. The case of the Respondents is that the Director
(Onshore) got the authority to pass the impugned order by virtue of the
W.P (C) No. 141/2011 Page 34 of 39

minutes dated 29.07.2010. The power was stated to be a temporary
delegation which was consequent upon entrusting of additional charge
of Director (HR) to the CMD. The office order dated 03.08.2010,
however, clarified that overall responsibility of HR area remains with
CMD. In other words, the Director (Onshore) was only to be acting on
behalf of the CMD. The minutes of the Board meeting dated
29.07.2010 clarifies that core responsibility for the functions of
Director (HR) shall rest with CMD only. Moreover, the delegation of
the power to impose major penalty could not have been sub-delegated
to Director (Onshore). The Director (Onshore) could not have acted
as Director (HR) after 15.10.2010 in view of the letter received from
the Government of India that the CMD was empowered to act as
Director (HR) for further period. The Respondent did not produce any
document by which the Board had passed any resolution empowering
the CMD to continue to act as Director (HR) as it did by its resolution
dated 29.07.2010.
72. The power to delegate is contained in 207.21.2 of the minutes
th
of the 207 meeting of the Board of Directors of ONGC, held on
29.07.2010 at New Delhi, which stipulates that 18 senior executives
report directly to Director (HR). Director (HR) had additional
responsibility of business development. The CMD clarified that in
view of the Orders of Ministry and the need to manage various
responsibilities of Director (HR) efficiently it was necessary to assign /
delegate certain functions to other functional Directors / senior
executives. Accordingly, only certain functions were delegated, not
W.P (C) No. 141/2011 Page 35 of 39

the powers of Director (HR). The decision dated 29.07.2010 of the
Board of Directors further clarified that the core responsibility for the
functions of Director (HR) shall rest with CMD only.
73. In view of the Orders of the Ministry and the need was to
manage various responsibilities of Director (HR) efficiently, therefore,
it was necessary to assign / delegate certain functions, not powers, to
other functional Directors / senior executives. Thus, the Board of
Directors did not authorize or delegated the disciplinary powers or
authority to Director (Onshore). The delegation of powers contained
in the Office Order dated 03.08.2010 is itself stated to be a temporary
delegation.
74. It is pertinent to mention that this power cannot be delegated to
any other authority as it would violate the basic principle of service
jurisprudence that “only he who appoints can remove”. A perusal of
the Schedule attached to Annexure P-16 at page 163 of the petition
shows the delegation of powers. According to the said „Schedule of
Delegation of Powers in respect of Disciplinary Power‟, the
Disciplinary authority of E-1 to E-4 level of employees is the Director
(HR) not the Director (Onshore). Moreover, the power to act as a
disciplinary authority cannot be sub-delegated on the maxim
“delegatus non potest delegare”. The CDA Rules do not contain any
provisions for further delegation of powers. In other words, only the
CMD could have exercised the powers of Director (HR) and the same
could not have been sub-delegated to the Director (Onshore).
W.P (C) No. 141/2011 Page 36 of 39

75. It is, therefore, clear that the impugned order has been passed by
a person who did not have any authority to pass the order as the
responsibility of the functions of Director (HR) rested with the CMD
only. The impugned order was made by Director (Onshore) exercising
power to take HR as the alleged delegatee of the CMD. As per the
CDA Rules, the CMD is the Appellate Authority in respect of major
penalties. The petitioner belongs to category E-4. Therefore, an
appeal to an order of CMD (through his delegate) would lie to the
CMD himself.
76. In view of the above discussion, I am of the considered opinion
that the impugned order dated 02.12.2010 passed by the Director
(Onshore) is without jurisdiction. Consequently, the same is liable to
be quashed.
77. Now, I will deal with the issue of arriving at satisfaction for
invoking Rule 41(b) of CDA Rules by the disciplinary authority.
78. While invoking Rule 41(b), the disciplinary authority is bound
to give reasons for arriving at the satisfaction as to why it was not
reasonably practical to hold the enquiry. The disciplinary authority is
not expected to dispense with its authority lightly or arbitrarily or out
of ulterior motives or merely in order to avoid holding of an inquiry or
because the department's case against the government servant is weak
and must fail. As has been held in the case of Jaswant Singh (supra),
Clause (b) of the second proviso to Article 311(2) can be invoked only
when the authority is satisfied from the material placed before it that it
is not reasonably practicable to hold a departmental enquiry.
W.P (C) No. 141/2011 Page 37 of 39

79. In the present case, the respondents have not produced any
independent material to show why it was not reasonably practical to
hold an enquiry. Moreover, there was no urgency in the matter to take
a drastic decision and passing the impugned order, whereby the
petitioner has been removed from service. The reason set out in the
order is that the petitioner did not obey the order of transfer and
Director (Onshore) was not satisfied with the reply given by the
petitioner. In my considered opinion, these are not sufficient reasons
for invoking Rule 41(b) by the disciplinary authority. A decision to
dispense with the departmental enquiry cannot be rested solely on ipsi
dixit of the concerned authority.
80. As per the CDA Rules, the order of removing the petitioner from
service is an appealable order. The ground for removal from service is
that the petitioner did not join duty at Bokaro even after the suspension
was revoked. The impugned order does not set out any reason for
rejecting the other contentions but only records that the contentions are
rejected. Therefore, the order of removal from service is arbitrary and
violative of principles of natural justice. The said impugned order has
been made vindictive and the procedure for enquiry was given a go-
bye only to hasten the process of removal. Therefore, in my
considered opinion, the impugned order cannot be sustained in law.
81. In the result, the writ petition is allowed on the grounds
discussed above. The petitioner be reinstated in the service and he
shall be entitled to all consequential benefits, except the back wages.
W.P (C) No. 141/2011 Page 38 of 39

82. No order as to costs.
CM No.9248/2012 (for recalling the order)
With the disposal of the writ petition, the instant application has
become infructuous. The same is disposed of accordingly.


SURESH KAIT, J.
SEPTEMBER 02, 2013
Jg/RS/ sb


W.P (C) No. 141/2011 Page 39 of 39