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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.

      XXX XXX XXX

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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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