GIRISH BHUSHAN GOYAL Vs B.H.E.L
Bench: SUDHANSU JYOTI MUKHOPADHAYA,V. GOPALA GOWDA
Case number: C.A. No.-009868-009869 / 2013
Diary number: 10387 / 2012
Advocates: D. N. GOBURDHAN Vs
PARIJAT SINHA
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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 9868-9869 OF 2013 (ARISING OUT OF SLP(C) NOS. 30883-30884 OF 2012)
GIRISH BHUSHAN GOYAL APPELLANT Versus
B.H.E.L. & ANR. RESPONDENTS
WITH CIVIL APPEAL NO. 9870 OF 2013
(ARISING OUT OF SLP(C) NO. 30877 OF 2012)
J U D G M E N T
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
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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
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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
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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.
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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 were also meted with minor punishment of
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stopping one increment, whereas the appellant was
served with the notice of termination just six days
prior to his retirement on attaining the age of
superannuation thereby negating pensionary benefits
for which the appellant is legally entitled to in
lieu of three decades of service rendered to the
respondent-Company.
9. The High Court vide its judgment dated 20.12.2010
opined that the claim of the appellant of being
targeted for being a whistle blower cannot be
sustained since he did not raise this issue when
enquiry was being held against him. Further, even
if it is presumed that the appellant was a whistle
blower, the same, according to the High Court,
would suggest that the appellant was aware of the
people taking advantage of him to cause financial
gain at the cost of the employer of the appellant.
Despite that, the appellant did not produce
anything on record to prove that he was doing
something to protect the interest of the employer.
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Also, regarding the claim made by the appellant
that other people against whom the charge of
negligence was made were not proceeded against, it
was held by the High Court that though initiating
simultaneous disciplinary proceedings against other
persons involved in the issue may have been
possible, the appellant at no time, made any
request to any authority to conduct disciplinary
proceeding against him along with others.
10. In the light of the facts and circumstances of the
case, the following points would arise for
consideration:
1.Whether the High Court was right in dismissing the
appeal filed by the appellant against the Order of
his dismissal served on him by the respondent-
Company?
2.Whether the appellant is entitled to the pensionary
and other monetary benefits which accrued to him
against the service provided by him to the
respondent-Company?
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3.To what relief is the appellant entitled to?
Answer to point No. 1
11. While deciding on this issue, it is pertinent for
us to ascertain the responsibility of the appellant
against which he has been held negligent and also
his role in the same. As per the Enquiry Report
produced against him which is annexed with the
appeal by the appellant, he was held negligent
under Rules 5(5) and 5(9) of the BHEL Conduct,
Discipline and Appeal Rules, 1975 (hereinafter
referred to as the “BHEL Conduct Rules”) for being
negligent while performing his duty and acting in a
manner which is prejudicial to the interest of his
employer. The Enquiry Report reads as under:
“….As in-charge of the canteen [HR- Canteen], it was incumbent responsibility of Shri G.B. Goyal to conscientious discharge on his side responsibility as the irregularities stated above amply prove has complicity beyond any shadow of doubt in the sordid state of affair present in the canteen operations.
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Mr. G.B. Goyal has admitted the charges leveled against him as contained in the Article of charges as elaborated in Statement of Imputations of Misconduct stating that he had been negligent in the performance of his duties in the capacity of overall in-charge of canteen by placing blind reliance upon his subordinates operating in a three tier system of checking and verification”.
12. From the perusal of the above findings of the
Enquiry Report, the allegation of misconduct of
negligence was established against the appellant
under Rules 5(5) and 5(9) of the BHEL Conduct
Rules.
It is therefore imperative to discuss the BHEL
Conduct Rules to decipher if the conduct of the
appellant amounts to misconduct under the Rules to
attract ‘major penalties’ to be imposed upon him as
mentioned in Rule 25 of the BHEL Conduct Rules. Rule 25
of BHEL Conduct Rules reads as under:
“25(1). No order imposing any of the major penalties specified in Clause (f), (g), (h), (i) and (j) of Rule 23 shall be made except after an enquiry is held in accordance with the rule. Proceedings under this Rule may be initiated, for conduct which lends itself to both
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criminal prosecution as well as disciplinary action, not withstanding that a criminal case against the employee in respect of the same conduct is under investigation or trial”.
(Emphasis supplied)
13. 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.
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14. 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. It is pertinent to
mention the observation made on this issue by this
Court on the premise of similar facts and
circumstances. In the case of Surendra Prasad Shukla v. State of Jharkhand & Ors.1, at paras 9- 10, this Court held as under:
“9. There was no charge against the appellant that he had in any way aided or abetted the offence under Section 392 IPC or that he knew that his son had stolen the car and yet he did not inform the police. The appellant, as we have held, was guilty of negligence of not having enquired from his son about the car kept in front of the government quarters occupied by him. The appellant had served the Government as a Constable and thereafter as a Head Constable from 7-8-1971 till he was dismissed from
1 (2011) 8 SCC 536
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service on 28-2-2005 i.e. for 34 years, and for such long service he had earned pension. In our considered opinion, the punishment of dismissal of the appellant from service so as to deprive him of his pension for the service that he had rendered for 34 long years was shockingly disproportionate to the negligence proved against him.
10. We accordingly, allow this appeal in part and modify the punishment of dismissal from service to compulsory retirement. The LPA and the writ petition filed by the appellant before the High Court are allowed in part. There shall be no order as to costs.”
15. Therefore, in view of the principle laid down by
this Court in the above referred case, we are of
the opinion that dismissal order served on the
appellant just 6 days prior to his retirement date
is exorbitant and disproportionate to the gravity
of misconduct particularly, because he was not
involved in active collusion with the other
employees of the Company who were involved in this
incident, for causing financial loss to the
respondent-Company but was negligent by an act of
omission. We also should not lose sight of the fact
that the appellant took steps to retrieve the
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materials which were due against the Bill from the
suppliers which rectified the error. Accordingly,
the order of dismissal served on him is liable to
be quashed and is accordingly, quashed. However,
we cannot lose sight of the fact that his
negligence has caused financial loss to the
respondent-Company. Therefore, keeping at par with
the punishment awarded to Sh. B.S. Rana on ground
of misconduct in terms of demotion to lower grade
for 3 years as per letter dated 6.6.2011 from
Central Public Information Officer, we award the
similar punishment of deduction of one year
increment on the appellant as per Rule 23 (b) of
the BHEL Conduct Rules since the appellant already
reached the age of superannuation when the order of
dismissal was served on him. Accordingly, the
Civil Appeals arising out of SLP (C) Nos.30883-
30884 of 2012 are allowed.
Answer to point Nos. 2 and 3
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16. Since, we have answered point No. 1 in affirmative
while allowing the Civil Appeals arising out of SLP
(C) Nos.30883-30884 of 2012 and the dismissal order
served on the appellant is quashed, the appellant
becomes entitled to all the retiral and pensionary
benefits under the relevant Rules for which he is
statutorily entitled to. Accordingly, the Civil
Appeal arising out of SLP (C) No.30877 of 2012
filed by the appellant is also allowed. 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.
17. The appeals are accordingly allowed. The
respondent-Company is directed to pay the pension
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to which the appellant is entitled to and also the
arrears due to him, within eight weeks of the
receipt of a copy of this order. There will be no
order as to costs.
……………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
……………………………………………………………………J. [V. GOPALA GOWDA]
New Delhi, November 1, 2013
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