Full Judgment Text
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PETITIONER:
INDIAN OIL CORPORATION LTD. & ANR.
Vs.
RESPONDENT:
ASHOK KUMAR ARORA
DATE OF JUDGMENT: 05/02/1997
BENCH:
J.S. VERMA, SUHAS C. SEN, S.P. KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.P.KURDUKAR, J.
The first appellant is a company incorporated under the
Companies Act, 1956 and carries on business at various
places/centres in India having its registered office at
Bombay. The first appellant (for short ‘the Corporation’)
carries on its business of selling petrol and petroleum
products at various places in India. The second appellant is
the Director. Research and Development Centre, Faridabad in
Haryana State.
2. The respondent-Ashok Kumar Arora joined the service of
the Corporation as a Junior Stenographer on August 6, 1974
and thereafter came to be promoted as Senior Stenographer on
December 26, 1977.
3. In the year 1964, it had come to the notice of the
corporation that some of its employees were presenting false
medical bills and getting them reimbursed from the
Corporation. In order to verify the truth or otherwise of
such claims, a vigilance enquiry was held by the office of
Chairman of the Corporation (Indian Oil Corporation Ltd.)
which unearthed a racket of its employees claiming
reimbursements on presenting false medical bills. The report
was accordingly submitted by the vigilance department to the
Corporation identifying the respondent as the organiser and
the principal man behind the said racket amongst other
employees of the Corporation. The Corporation after
obtaining the approval of its Chairman on April 10, 1984
lodged the FIR of forgery and cheating by preferring claims
on the basis of false medical prescriptions from Dr. Mrs.
Puja Kundra and false medical bills showing the purchase of
various medicines. The vigilance department also suggested
to initiate proceedings against the employees who obtained
the benefits by cheating the Corporation. This action was
suggested under the Conduct, Discipline and Appeal Rules,
1980 of the Indian Oil Corporation Ltd. (for short ‘CDA
Rules’).
4. Pursuant to the FIR lodged on April 10, 1984, the
investigating agency on completing the investigation filed a
charge sheet in the court of Metropolitan Magistrate,
Faridabad on May 1, 1985 against the respondent for the
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offences punishable under Sections 420, 468 and 471 of the
Indian Penal Code. In the meantime, on July 7, 1984, the
respondent came to be arrested by the local police and was
detained in the police custody for over 48 hours. The
Corporation taking recourse to CDA Rules suspended the
respondent on July 11, 1984 with effect from the date of his
arrest and detention in the police custody for over 48
hours. The Addl. Chief Judicial Magistrate, Faridabad, on
conclusion of the trial convicted the respondent on two
counts i.e. under Sections 420 and 471 of the Indian Penal
Code and sentenced him to undergo RI for two years and to
pay a fine of Rs. 500/-; in default of payment of fine to
undergo further imprisonment for a period of three months
and RI for one year and to pay a fined of Rs. 500/-; in
default of payment of fine t undergo further RI for three
months respectively. Substantive sentences were directed to
rune concurrently. On such convictions by an order dated
February 21, 1989 dismissed the respondent from service of
the Corporation.
5. The respondent being aggrieve by the order of
conviction and sentence passed by the Addl. Chief Judicial
Magistrate, Faridabad, preferred an appeal to the Session
Court, Faridabad and the Addl. Sessions Judge vide his order
dated July 13, 1989, allowed the appeal and set aside the
convictions and sentence of the respondent and acquitted him
of all the charges. The revision against the order of
acquittal filed before the Punjab & Haryana High Court by
the Corporation came to be dismissed. The S.L.P. to this
Court was also dismissed. The net result, therefore, was
that the respondent stood acquitted of the criminal charges.
6. The respondent who was dismissed from the service of
the Corporation pursuant to the order dated February 21,
1989 filed a writ petition before the Punjab & Haryana High
Court at Chandigarh challenging the said order on the ground
that since he had been acquitted by the criminal courts, his
order of dismissal was illegal and not sustainable. The
respondent, therefore, sought the reliefs of reinstatement
including the back wages etc. In the meantime, the
respondent had also preferred an appeal under CDA Rules to
the Appellate Authority challenging his order of dismissal
from service of the Corporation passed on February 21, 1989.
Since the departmental representation of the respondent was
pending when the writ petition was filed, the High Court
vide its order dated August 28, 1989 directed the
Corporation to dispose of the respondent’s representation
expeditiously. In pursuance of the directions issued by the
High Court, the Corporation considered the representation
filed by the respondent and opined that having regard to the
facts and circumstances of the case, it was necessary to
hold a departmental enquiry against the respondent. The
Corporation, therefore, in exercise of its power under Rule
26(4) CDA Rules directed that the departmental enquiry be
held against the respondent and he be deemed to be under
suspension from the date of his dismissal order dated
February 21, 1989.
7. The Corporation on February 22, 1990 charge sheeted the
respondent for gross acts of misconduct which in the opinion
of the Corporation constituted acts of dishonesty in
connection with the business or the property of the
corporation and acts subversive of discipline and good
behaviour. On service of the charge sheet, the respondent
submitted his reply on March 5, 1990 which was considered
being not satisfactory by the Corporation. The Corporation,
therefore, on May 25, 1990 directed that a domestic enquiry
be held against the respondent.
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8. On November 10, 1991, the respondent filed another writ
petition before the High Court of Punjab & Haryana being
writ petition No. 3170 of 1992 praying therein, inter alia,
for the grant of certain reliefs including a direction to
reinstate him in service with effect from July 7, 1984 and
release the salary and other consequential benefits with
effect from the said date i.e. July 7, 1984.
9. During the pendency of this writ petition, the Enquiry
Officer appointed by the Corporation held the enquiry and
submitted his report dated June 26. 1992. The Inquiry
Officer found the respondent guilty of acts of misconduct.
he held as under;-
"The nexus of the delinquent in
collusion with Dr. J.K. Kundra in
fabricating and furnishing
prescriptions and bills and
providing the same to other
employees as well as presenting
them himself with the purpose of
cheating the Corporation and to
make wrongful gain to him and
wrongful loss to the Corporation is
established. The bills on the
letter head of Dr. S.C.Saxena and
Dr.(Ms.) Puja Kundra are in the
same handwriting. Dr. J.K.Kundra
made available false and forced
bills to Shri Arora, who in turn,
to Shri Kirat Singh, Shri Ram
Ashray and Shri Amar Singh. The
aforesaid employees in turn paid
the premium of Peerless Policy and
for this purpose Shri Arora was
personally interested to earn
commission on Peerless premium as
the Agency of Peerless was in the
name of his wife.
It stands proved that Shri Arora
was guilty of procuring and getting
false medical bills reimbursed from
the office of the I.O.C. for
himself and other employees and it
is further proved that he had
submitted false and fabricated
medical bills and got reimbursed on
the strength of the same having
full knowledge that they were false
and bogus documents. He has thus
been dis-honest in connection with
the business and property of I.O.C.
I further hold that the above acts
are subversive of discipline or of
good behaviour."
The Corporation (Disciplinary Authority) on perusal of
the report of the Enquiry Officer vide its order July 21,
1992 passed an order dismissing the respondent from service
of the Corporation with immediate effect. It further
directed that no recovery of payment already made to the
respondent during the period of suspension will be effected.
The respondent was directed to contact the finance
department for collecting his dues, if any, on any working
day within a period of one month from the date of issuing
the order.
10. The respondent on July 23, 1992 filed an appeal against
his order of dismissal from service to the Appellate
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Authority who after considering the grounds taken up in the
appeal memo and other materials on record, vide its order
dated September 28, 1992, dismissed the said appeal.
11. The respondent being aggrieved by the order passed by
the Appellate Authority on September 23, 1992 filed yet
another writ petition being CWP No. 13934 of 1992 before the
Punjab & Haryana High Court challenging the legality and
correctness of the order of dismissal dated September 28,
1992 passed by the Appellate Authority.
The first appellant-Corporation filed the detailed
written statement pleading, inter alia, that the writ
petition was not maintainable since the respondent had
already filed the writ petition No. 3170 of 1992 and this
court cannot sit over the order of the Disciplinary
Authority as an Appellate Court/Authority. The respondent
had not exhausted the alternative remedy available under the
Industrial Disputes Act, 1947 and, therefore, the writ
petition be dismissed as pre-mature. The writ petition
raised several disputed questions of facts which cannot be
decided in a writ jurisdiction. The impugned order of
dismissal does not suffer from any illegality and this court
in exercise of its extra jurisdiction should not interfere
with the order passed by the Disciplinary Authority after
holding the enquiry. The Corporation, therefore, prayed that
the writ petition be dismissed.
12. Both the writ petitions bearing C.W.P. Nos. 3170 of
1992 and 13934 of 1992 were heard together by the Division
Bench of the High Court and the learned court vide its
impugned judgment dated May 27, 1993 allowed both the writ
petitions filed by the respondent and passed the following
order:-
"In view of the aforesaid position,
we are satisfied that the impugned
order imposing the punishment of
dismissal of the petitioner is
wholly arbitrary. Accordingly we
allow both these writ petitions and
quash the impugned orders dated 21-
7-1992 (annexure P-12) and 9-10-
1989 (annexure P-3) eg. deeming the
petitioner under suspension from
the date of his original dismissal,
i.e. 21-2-1989. Resultantly, the
petitioner stands reinstated to his
service and he shall be entitled to
the back wages by way of arrear of
salary and allowances etc. to which
he would have been entered
(entitled), had he not been placed
under suspension and dismissed from
service."
13. The appellants thereafter filed review application No.
429/93 in CWP no. 13934 of 1992 and review application No.
430/93 in CWP No. 3170 of 1992 praying therein that the
judgment dated May 27, 1993 he reviewed and re-called on the
grounds set out in the review applications. The High Court
however did not agree with the contentions raised in the
review applications and consequently vide its impugned order
dated November 25, 1993 dismissed both the review
applications.
14. Feeling aggrieved by the orders dated May 27, 1993 as
well as November 25, 1993 passed by the High Court in writ
petitions as well as in review applications, the appellants
on obtaining leave, have filed these appeals challenging the
legality and correctness of the orders passed by the High
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Court. Since these appeals arise out of a common judgment,
they are being disposed of by this judgment.
15. Mr. N.B. Shetye, Learned Senior Counsel appearing in
support of these appeals urged that the High Court had
committed a serious jurisdictional error while interfering
with the order of dismissal dated July 21, 1992 and order
dated February 21, 1989 removing respondent’s name from the
rolls of R & D Centre. He urged that the High Court could
not have re-appreciated the evidence adduced by the parties
during domestic enquiry and interferred with the findings
recorded by the Enquiry Officer and affirmed by the
Disciplinary Authority. The High Court cannot sit over the
findings of the Enquiry Officer as an Appellate
Court/Authority and, therefore, the impugned judgments of
the High Court are unsustainable. He, therefore, prayed that
the appeals be allowed and the impugned orders passed by the
High Court be quashed and set aside.
16. The respondent Mr. Ashok Kumar Arora appeared in person
and tried to justify the orders passed by the High Court. He
submitted that the Enquiry Officer had totally misconstrued
the materials on record and erroneously found him guilty of
the charges levelled against him. There was no sufficient
material before the Enquiry Officer to hold him guilty of
misconduct and, therefore, the High Court has rightly
interferred with the findings of the Enquiry Officer. He
also submitted that there is patent discrimination while
awarding the extreme penalty of dismissal against him
whereas other employees were let off on minor punishments.
The order passed by the Disciplinary Authority was thus
discriminatory and the High Court had committed no error
while ordering his reinstatement. There is no substance in
the appeals and the same be dismissed.
17. We have give our anxious thought to the various
contentions raised before us and have gone through the
materials on record since the respondent was appearing in
person. On careful scrutiny of the materials on record, we
are of the considered view that the impugned orders passed
by the High Court are unsustainable for the following
reasons.
18. At the outset, it needs to be mentioned that the High
Court in such cases of departmental enquiries and the
findings recorded therein does not exercise the powers of
appellate court/Authority. The jurisdiction of the High
Court in such cases is very limited for instance where it is
found that the domestic enquiry is vitiated because of non-
observance of principles of natural justice, denial of
reasonable opportunity; findings are base on no evidence,
and or the punishment is totally disproportionate to the
proved misconduct of an employee. There is catena of
judgments of this Court which had settled the law on this
topics and it is not necessary to refer to all these
decisions. Suffice it to refer to few decisions of this
Court on this topic viz., State of Andhra Pradesh Vs. S.Sree
Rama Rao, 1963 (3) SCR 25, State of Andhra Pradesh Vs.
Chitra Venkata Rao, 1976(1) SCR 521, Corporation of City of
Nagpur and Anr. Vs. Ramachandra, 1981 (3) SCR 22 and Nelson
Motis Vs. Union of India and Anr., AIR 1992 SC 1981.
19. The Enquiry Officer on appraisal of the materials
before him held that the respondent was actively involved
and a brain behind procuring false medical certificates and
medical bills not only for himself but for other employees
and on the basis of which the reimbursement claims were made
by the respondent and other employees. The corporation
sanctioned these reimbursement claims of the various
employees which had resulted into monetary loss to the
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corporation. Before the Enquiry Officer except the
respondent other employees of the Corporation admitted the
charges and consequently a minor penalty was awarded to
them. The respondent contested the charges levelled against
him and denied that he was instrumental in cheating or
committing forgery of the medical bills. On consideration of
report and findings of the Enquiry Officer, the Disciplinary
Authority took a lenient view in respect of other employees.
Having regard to the involvement of the respondent in the
entire episode, the Disciplinary Authority awarded him the
penalty of dismissal from service. The order of dismissal
passed by the Disciplinary Authority against the respondent
was also affirmed by the Appellate Authority. Curiously
enough, the High Court in its impugned judgment compared the
case of the respondent with the other employees who have
been awarded a lesser penalty and opined that there is a
discrimination resorted to by the Disciplinary Authority in
the matter of awarding the punishment. It is this action of
the Disciplinary Authority in awarding the penalty being
discriminatory and violative of Article 14 of the
Constitution. In support of this reasoning, the High Court
placed reliance on the decision of this Court in Sengara
Singh and others Vs. State of Punjab and others, 1983 (3)
S.L.R. 685 and the passage therefrom was reproduced in the
impugned judgment which is distinguishable on facts. We have
gone through the impugned judgment of the High Court dated
27th May, 1993 and were of the view that the High Court was
wrong in interferring with the punishment awarded by the
Disciplinary Authority. The High Court has totally
overlooked the finding of the Enquiry Officer and affirmed
by the Disciplinary Authority that the respondent w as
instrumental in obtaining forged medical bills not only for
himself but also for other employees and he was the main
actor behind the cheating to the corporation. It is because
of this finding, the Disciplinary Authority, in our opinion,
rightly considered the award of penalty/punishment to the
respondent differently than the other employees who although
got the benefit of reimbursement on the forged bills but
they accepted their guilt before the Enquiry Officer. Having
regard to the facts and circumstances of this case, we are
of the opinion that the High Court had committed serious
jurisdictional error while interferring with the quantum of
punishment. There is neither any discrimination resorted to
by the Disciplinary Authority nor the punishment awarded to
the respondent was disproportionate to his misconduct. The
impugned judgment and order of High Court, therefore, are
unsustainable.
20. Coming to the next submission of the respondent that he
was denied a reasonable opportunity by the Enquiry Officer,
we find that the same is devoid of any merits. The
respondent was unable to illustrate in what manner he was
denied a reasonable opportunity.
21. The impugned orders made in the review applications
filed by the appellants are also unsustainable. In the
review applications, all these contentions were specifically
taken up, yet the High Court without adverting to any of
these contentions has dismissed these review applications
without assigning sustainable reasons.
22. In the result, the appeals filed by the appellants are
allowed. The impugned judgments and orders of High Court
dated may 27, 1993 and November 25, 1993 are quashed and set
aside. In the circumstances, there will be no order as to
costs.
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