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2013 Supreme(Del) 1101
High Court of Delhi
SURESH KAIT
B.V. Shrihari Rao
Versus
Oil & Natural Gas Corporation Ltd. & Another
W.P (C) No. 141 of 2011 & CM. No. 9248 of 2012
Decided On : 02-09-2013
For the Petitioner:Ashok Rajagopalan, Ms. Madhu Tyagi, Advocates.
For the Respondents:V.M. Koura, Ms. P.K. Benipal, Advocates.
Headnote:
REMOVAL FROM SERVICE - [CDA RULES, 1994] - [RULE 41(B)] - [RULE 36 TO 40] - [RULE 51(2)] - [ARTICLE 311(2)] - [ARTICLE 226] - [ARTICLE 136] - [ARTICLE 12] - [ARTICLE 21] - [ARTICLE 300(A)] - [CONSTITUTION OF INDIA] - [ONGC CONDUCT, DISCIPLINE AND APPEAL RULES, 1994] - [ONGC LEAVE RULES, 1995] - [STAR PAPERS MILL LTD. V. STATE OF UP] - [PUNITIVE TRANSFER] - [PRINCIPLE OF NATURAL JUSTICE] - [PRINCIPLE OF RES JUDICATA] - [DELEGATION OF POWERS] - [SATISFACTION OF AUTHORITY] - [ALTERNATE REMEDY] - [WRIT JURISDICTION] - [APPELLATE AUTHORITY] - [DISCIPLINARY AUTHORITY] - [APPOINTING AUTHORITY] - [SHOW CAUSE NOTICE] - [SUSPENSION] - [REVOCATION OF SUSPENSION] - [TRANSFER ORDER] - [DISMISSAL] - [REINSTATEMENT] - [BACK WAGES] - [COSTS] - [PETITION ALLOWED].
Fact of the Case:
Petitioner, a Geologist in ONGC, participated in a nation-wide strike called by Officers of Public Sector Oil Companies in January 2009. As a result, he was removed from service. On appeal, the Board of Directors reinstated him but placed him under suspension. A chargesheet was issued against him, and an enquiry was initiated. During the pendency of the enquiry, he was transferred to Bokaro. He challenged the transfer order in the High Court, which dismissed the petition. The Division Bench of the High Court also dismissed the appeal. He then filed an SLP in the Supreme Court, which was dismissed as not pressed. Meanwhile, he was issued a show cause notice for not joining duty at Bokaro, and subsequently, an order of removal from service was passed against him. He challenged the order in the instant writ petition.
Finding of the Court:
1. The Director (Onshore) was not the competent authority to pass the impugned order, as the core responsibility for the functions of Director (HR) rested with the CMD only. 2. The impugned order did not contain reasons for arriving at satisfaction for invoking Rule 41(b) or for the penalty. 3. The impugned order did not contain reasons for rejecting the petitioner's contentions. 4. The impugned order was passed on the basis of the directions of the CMD (who was also the Appellate Authority). 5. The petitioner was not given an opportunity to be heard before passing the impugned order, which was violative of the principles of natural justice. 6. The impugned order was arbitrary and mala fide, as it was passed with the sole intention of punishing the petitioner for participating in the strike.
Issues: 1. Whether the Director (Onshore) was the competent authority to pass the impugned order. 2. Whether the impugned order contained reasons for arriving at satisfaction for invoking Rule 41(b) or for the penalty. 3. Whether the impugned order contained reasons for rejecting the petitioner's contentions. 4. Whether the impugned order was passed on the basis of the directions of the CMD (who was also the Appellate Authority). 5. Whether the petitioner was given an opportunity to be heard before passing the impugned order. 6. Whether the impugned order was arbitrary and mala fide.
Ratio Decidendi: 1. The power to impose major penalty could not have been sub-delegated to Director (Onshore). 2. The impugned order was passed by a person who did not have any authority to pass the order. 3. 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. 4. The decision to dispense with the departmental enquiry cannot be rested solely on the ipsi dixit of the concerned authority. 5. The order of removal from service is an appealable order. 6. The impugned order was arbitrary and violative of principles of natural justice.
Final Decision: The writ petition was allowed. The impugned order was quashed. The petitioner was reinstated in service with all consequential benefits, except back wages. No order was passed as to costs.
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 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.
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. 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,
