IMPORTANT POINT
Dismissal order just 6 days prior to his retirement date is exorbitant and disproportionate to the gravity of misconduct particularly, because the employee was not involved in active collusion with the other employees of the Company who were involved in the incident, for causing financial loss to the respondent-Company but was negligent by an act of omission.

Headnote:BHEL Conduct Rules- Rule 23(i), Rule 25-Disciplinary inquiry- Major penalty- The major punishment which is awarded to the appellant through the order of dismissal dated 18.3.2009, is covered under Rule 23(i) of BHEL Conduct Rules considering that the appellant had reached the age of superannuation. However, the order of termination does not mention any form of criminal charges against him, which is necessary to attract penalty under Rule 23(i) of BHEL Conduct Rules amounting to dismissal from service. On the other hand, the nature of charges leveled against the appellant was such that he omitted from performing his duty of being a responsible vigilant officer which amounted to being negligent as against being an active participant in colluding with the employees against his employer and acting against the interest of the Company. (Para 13)
       Facts of the case :
        The nature of charges leveled against the appellant was such that he omitted from performing his duty of being a responsible vigilant officer which amounted to being negligent as against being an active participant in colluding with the employees against his employer and acting against the interest of the Company. Dismissal order was served on the appellant just 6 days prior to his retirement date. The appellant claimed the pensionary and other monetary service benefits due to him against three decades of service rendered by him which has been withheld by the respondent-Company.
       Findings of the Court :
        The consequence of the dismissal order served on him at the end of his service tenure not only results in inflicting disproportionate punishment on him in terms of bad name and reputation, but also deprives the appellant of his retiral benefits for which he has got statutory entitlement for rendering three decades of service to the Company whereas his negligence attracts minor penalty under Rule 23 of BHEL Conduct Rules. Punishment of deduction of one year increment on the appellant as per Rule 23 (b) of the BHEL Conduct Rules was ordered since the appellant already reached the age of superannuation when the order of dismissal was served on him. All the arrears in pension and other retiral benefits should be paid to him with interest at the rate of 9% per annum from the date of application till the date of payment. Since, the appellant was terminated from his service just 6 days prior to his retirement whereby there was no further possibility of any increment, his last one year increment is liable to be deducted from the arrears which he is statutorily entitled to.
       Result : Appeal allowed.

JUDGMENT

V. Gopala Gowda, J.

Leave granted.

2. The appellant has filed two separate Civil Appeals before this Court. The Civil Appeals arising out of SLP (C) Nos. 30883-30884 of 2012 are filed questioning the correctness of the judgment and order dated 20.12.2010 passed in the Writ Petition No. 129 of 2009 (S/B) and order dated 28.6.2011 passed in the Review Application No. 431 of 2011 to the Writ Petition No. 129 of 2009 (S/B), whereas Civil Appeal arising out of SLP (C) No.30877 of 2012 is filed against the judgment dated 22.2.2011 passed in Writ Petition No. 292 of 2009 (S/B) by the High Court of Uttarakhand at Nainital, urging various facts and legal contentions in justification of his claim.

3. Through Civil Appeals arising out of SLP (C) Nos.30883-30884 of 2012, the appellant challenged the impugned order of the High Court by which the High Court dismissed the Writ Petition No. 129 of 2009 and Review Application No. 431 of 2011 filed by the appellant against the termination Order of his service. Through the Civil Appeal arising out of SLP (C) No.30877 of 2012, the appellant claims the pensionary and other monetary service benefits due to him against three decades of service rendered by him which has been withheld by the respondent- Company.

4. Necessary relevant facts are stated hereunder to appreciate the case of the appellant and also to find out whether the appellant is entitled for the relief as prayed in these appeals.

5. The appellant joined the service of the respondent-Company in 1970 and rose to the post of D.G.M. [Deputy General Manager]. He was to retire on 24.3.2009. It is the case of the appellant that four months prior to his retirement, an enquiry was initiated against him. The appellant accepted the charges of negligence on his part and also explained that the negligence was a part of the chain system which included his superiors as well as his subordinates.

6. It is further the case of the appellant that it is he who carried out a routine verification of the stock in the month of July-August, 2008 when he realized that there were some major discrepancies in the stocks of tea-leaves and milk powder in the canteen which was under his supervision by virtue of being in-charge of the canteen (HR). He therefore carried out a physical store checking and a report was prepared accordingly on 30.8.2008. The appellant thereafter, issued a notice to Sh. B.S. Rana, the in-charge of Canteen Store Operation on 10.9.2008. Since there was no reply to the aforesaid notice, the appellant informed the superior authority regarding the matter. A notice was also sent to the suppliers of the tea- leaves and milk powder. The suppliers – ‘Gupta & Co.’ and ‘Bombay Sales’ have admitted to the discrepancy in supply. They further admitted that the goods which have not been supplied against the Bill were lying with them and they were ready to supply the deficient material. However, after the conclusion of enquiry and six days prior to the retirement date of the appellant, he was served with the notice of termination.

7. It is further the claim of the appellant that his termination, which is based on the findings of the Enquiry Officer, is not sustainable for various reasons. Firstly, the report of the Enquiry Officer nowhere mentions the loss of Rs.35 lakhs caused by the appellant as is blamed against him. Secondly, no charges of embezzlement or misappropriation have been leveled against the appellant either in the charge-sheet or anywhere in the report. Thirdly, the term ‘irregularity’ used in the Enquiry Report has been, without any reason, converted to the term ‘malpractice’ in the termination order served on the appellant. Therefore, it is urged by the appellant that a bona fide mistake has been portrayed as a malicious act on the part of the appellant for extraneous reasons.

8. It is the further claim of the appellant that his superiors who were also involved in the chain of events have been relieved from any accusation. His juniors

Click Here to Read the rest of this document

2013 Supreme(SC) 1018

Cases Referred (1)