Judgment & Order

Ashutosh Kumar, C.J.

1. We have heard Mr. B. Chakraborty, learned Advocate for the appellant in Writ Appeal No.223/2024 and for the sole respondent in Writ Appeal No.40/2024 and Mr. M.K. Choudhury, learned Senior Advocate, assisted by Mr. M.P. Sarma, learned Advocate for the appellants in Writ Appeal No.40/2024 and for all the respondents in Writ Appeal No.223/2024.

2. Both the appeals, the one preferred by M/s Hindustan Petroleum Corporation Limited (hereinafter to be referred as “HPCL”) and three others (Writ Appeal No.40/2024) and the other preferred by Abhijit Kumar Barua (Writ Appeal No.223/2024) have been heard together and are being disposed off by this common judgment.

3. Abhijit Kumar Barua (the appellant in Writ Appeal No.223/2024) while serving as Deputy Manager at HPCL resigned from his position in the year 2002. At that time, he had an outstanding housing loan amounting to Rs.5,55,645/-. His resignation was not accepted initially and he, therefore, withdrew it; applying instead for the voluntary retirement scheme brought by the HPCL. This application for voluntary retirement was also rejected. He, therefore, sought to rejoin the service, but that too was denied.

4. Challenging this denial, Abhijit Kumar Baruah filed a writ petition [WP(C) No.7022/2005] which he later withdrew based on assurance from the HPCL that he would be allowed to rejoin. When the HPCL failed to honour this assurance, he filed a second writ petition [WP(C) No.330/2007].

5. The stand of the HPCL in the afore-noted writ petition was that the employee was not entitled to rejoin since the employer-employee relationship had been severed.

6. This Court vide judgment dated 03.04.2008 passed in WP(C) No.330/2007 opined that the employee still remained in service. When the employee was not reinstated thereafter, it was observed by the Court that HPCL was in contempt, against which finding the HPCL preferred a Special Leave Petition, challenging the contempt findings but the same was rejected by the Hon’ble Supreme Court.

7. The appellant was reinstated in service on 13.04.2009 but was immediately placed under suspension and subjected to a departmental proceeding. During this period, HPCL had deducted 2/3 (two-third) of his salary and thereby had recovered, it is alleged, an amount of Rs.17,22,000/- against the housing loan of which Rs.5,55,645/- only had been disbursed.

8. In the departmental proceeding, three charges were framed against the employee which are as follows:-

                   “Articles of Charge –I

                   “Shri Abhijit Kumar Barua, while he was working as Executive Operations Officer at Budge Budge Terminals, had submitted his resignation from the service of the Corporation vide his letter dated 19.10.2002 effective immediately. Since acceptance of resignation of Shri Abhijit Kumar Barua was subject to the clearance of all the outstanding dues to the Corporation, Shri Abhijit Kumar Barua -was advised vide letter dated 08.11.02 that he continues to be an employee of the Corporation and that he should attend to such assignment as are entrusted to him by his immediate supervisor till the time he is issued ‘Letter of Release’.

                   However, it is reported that Shri Abhijit Kumar Barua did not report to duty and remained absent unauthorisedly without any approval of leave pérmission of his supervisor continuously from 23.10.2002 onwards.

                   Thus, Shri Abhijit Kumar Barua has been negligent and has shown lack of interest, by willfully remaining unauthorisedly absent without prior permission. Shri Abhijit Kumar Barua’s unauthorized absence, as mentioned above, has been causing disruption in day to day functioning of the operations of Budge Budge Terminal. Shri Abhijit Kumar Barua’s unauthorized absence has also caused additional financial burden on the Corporation since an officer had to be deputed to look after the jobs which were assigned to Shri Abhijit Kumar Barua and consequential expenditure on the same.

                   By the above actions, Shri Abhijit Kumar Berua failed to maintain discipline, devotion to duty and behaved in a manner unbecoming of an officer of the Corporation and thereby, violated Clause 2, 4 (a), (b) and (c) of Part-I of conduct rules and committed misconducts 8, 10, 22 & 31 under Part II A of the Discipline and Appeal Rules as per the Conduct, Discipline and Appeal Rules applicable to the Management employees of the Corporation.

                   ARTICLE OF CHARGE – ll

                   It is reported that Shri Abhijit Kumar Barua while he was working as Executive Operations Officer, Budge Budge Terminals effective 23.09.2002, started his own IT business while continuing in the services of the Corporation without the previous permission of the Competent Authority of the Corporation. Shri Abhijit Kumar Barua had disclosed / admitted this fact vide his letter dated 27.04.2004 addressed to the then DGM-I/C-EZ stating as under,

                   “I request you kindly to allow me few months for returning the outstanding payable by me. Sir, you will appreciate that after resigning from the services, I have started my own business like IT education training and computer sales & service in partnership with my Friends. I am struggling hard to make my earning. I have taken loan from different sources to establish my business. I am sure within one year I will be financially stable and will be in a position to pay the dues to HPCL.”

                   Shri Abhijit Kumar Barua did not submit any application for obtaining the prior approval of the Competent Authority of the Corporation before starting his trade or business which he was required to obtain as per the Conduct, Discipline and Appeal Rules for Management Employees of the Corporation.

                   Thus, Shri Abhijit Kumar Barua started his own business without the prior approval of Competent Authority of the Corporation.

                   By the above actions, Shri Abhijit Kumar Barua failed to maintain discipline, devotion to duty and behaved in a manner unbecoming of an officer of the Corporation and thereby violated Clause 2, 4 (a), (b), (c) and 11(a) of Part I of conduct rules and committed misconducts 22, 25 & 31 under Part II A of the discipline and Appeal Rules as per the Conduct, Discipline and Appeal Rules applicable to the Management employees of the Corporation.

                   Article of Charge – Ill

                   It is reported that as per the policy of the Corporation, Shri Abhyit Kumar Barua had applied for housing loan vide application dated 20.06.2000 for availing housing loan of Rs 653700/-(Rupees six lacs fifty three thousand and seven hundred only) for purchasing a flat at Radha Krishna Apartment, Ananda Nagar, Guwahati781012. Shri Abhijit Kumar Barua was sanctioned the aforesaid amount vide letter dated 16.08.2000. Accordingly, Corporation executed the housing loan Agreement with Shri Abhijit Kumar Barua to enable him to purchase the aforesaid flat. The said amount was to be released to Shri Abhijit Kumar Barua in 10 installments as per the schedule of loan sanctioned by the Corporation.

                   Shri Abhijit Kuamr Barua was released an amount of Rs. 392220/(Rupees three lacs ninety two thousand two hundred & twenty only) on account of his 1 to 5" installments, Shri Abhijit Kumar Barua submitted the receipt dated 21.09.2000 of Rs. 3,92,220/- issued ‘by the Builder. ‘Thereafter, Shri Abhijit Kumar Barua had drawn the amount of installments being 6th, 7th and 8th installments of Rs. 1,63,425/- (Rupess one lacs sixty three thousand four hundred and twenty five only) at a time on 04.04.2001, but as per clause of the agreement, Shri Abhijit Kumar Barua did not submit the receipt of payment of the amount of loan of Rs. 163425/-. Shri Abhijit Kumar Barua vide letter dated 10.09.2002 informed the Corporation that due to the dispute with the promoter, he has cancelled the deal of purchase of the Flat and he has not paid the amount of Rs. 163425/-to the promoter.

                   As per the housing loan policy of the Corporation, upon cancellation of the deal, Shri Abhijit Kumar Barua was required to refund the total amount disbursed to him alongwith the interest and penal interest. However it is reported that Shri Abhijit Kumar Barua did not refund the said amount to the Corporation.

                   Shri Abhijit Kumar Barua misutilized the said disbursed amount of Rs. 5,55,645/- (3,92,220+1,63,425) to fulfill his personal interest which is the public money. Hence Shri Abhijit Kumar Barua misappropriated the property of the Corporation and accordingly violated the rules and regulations of the Corporation.

                   By the above actions, Shri Abhijit Kumar Barua failed to maintain absolute integrity, to maintain devotion to duty and behaved in a manner unbecoming of an officer of the Corporation and thereby violated Clause 2, 4 (a), (b), (c) of Part I of conduct rules and committed misconducts I, 22, 30 & 31 under Part II A of the discipline and Appeal Rules as per the Conduct, Discipline and Appeal Rules applicable to the Management employees of the Corporation.”

9. Along with the articles of charges, the statement of allegations of misconduct/misbehavior in support of the article of charges under the Conduct, Discipline and Appeal Rules, applicable for the Management of the Employees of the Corporation; the list of documents and the list of witnesses to be relied upon by the Management during the enquiry process were enclosed.

10. The employee submitted his written statement of defence denying all the charges leveled against him. Though he had admitted that he had started an IT business and that at the relevant point of time he had already submitted his resignation, which had not been accepted by the Management, but the business never started.

11. Upon conclusion of the inquiry, the Inquiry Officer submitted his report holding the charges framed against the employee to have been proved. The Disciplinary Authority accepted the inquiry report and by order dated 03.10.2011, penalty of removal of the employee from service was imposed.

12. This was challenged by the employee before this Court vide WP(C) 6506/2013 alleging that it was a case of harassment and highhandedness of the HPCL. After submitting his resignation on 19.10.2002, he had handed over the charge to one Sri Palash Acharya (a defence witness in the proceeding). The employee was informed by his Supervisor that his resignation would be accepted if he cleared his housing loan dues. Since he had already handed over the charge to afore-noted Palash Acharya and was not allotted any other responsibility by the Management all the while, he proceeded to Guwahati in connection with medical treatment of his mother. He thus was under the bona fide belief, for the reason of the assurance given by the Management, that his resignation would be accepted subject to clearance of dues receivable from him.

It was further urged by him that ever since notice was issued by this Court to HPCL under contempt jurisdiction, the HPCL Management became hostile to him.

The other contention of the employee before the Writ Court was that the finding arrived at by the Inquiry Officer was not based on any evidence and, therefore, was perverse, which ought not to have been relied upon by the disciplinary authority in imposing major punishment on him.

13. The HPCL Management expostulated that the disciplinary proceeding against the employee was initiated pursuant to the liberty granted by this Court. It was only thereafter that the employee was put under suspension and the disciplinary proceedings were drawn up. All procedural formalities had been complied with whereafter the Inquiry Officer found all the three charges to be proved. The HPCL Management therefore urged that no interference ought to be made with the finding of the Inquiry Officer and the resultant decision by the disciplinary authority, removing the employee from service.

14. In sum and substance, the charge against the employee was of his having willfully remained unauthorizedly absent from the duties without prior permission; while working as Executive Operations Officer, the employee started his own IT business without prior approval of the competent authority of the HPCL; and that he had availed a housing loan of which Rs.5,55,645/- only was disbursed to him, which he misutilized and misappropriated violating the rules and regulations of the HPCL.

15. The learned Single Judge, on an analysis of the facts of the case, found that so far as the charge No.I was concerned, there was no dispute that the employee had submitted his resignation which was not accepted and that he had handed over the charge to one Palash Acharya during the enquiry proceedings. The employee was never assigned any specific duty by the employer/HPCL and therefore, there was no evidence or material before the Inquiry Officer to substantiate the charge that he had absented from duties.

Though on behalf of the HPCL, the communication dated 08.11.2002 issued by the Manager, Installation, was brought to the notice of the Inquiry Officer, which categorically stated that till the time his resignation would be accepted, he would continue to be an employee of the Corporation and would attend such assignments which would be entrusted to him by his immediate superior, which communication had been denied by the employee but in the absence of any evidence/material on behalf of the HPCL to show that any assignment was issued to the employee, it was only a conjecture that the employee never attended to the assigned duties.

16. With respect to charge No.II, the learned Single Judge was of the view that the same was based only on the statement given by the employee himself but what the Inquiry Officer missed out was that the employee had also indicated that the IT business actually had never been started. Thus, in the estimation of the learned Single Judge, there was no complete evidence available before the Inquiry Officer to arrive at the conclusion that the employee had actually started his own IT business. During the enquiry process, nothing was paid to the employee without there being any evidence of the employee having gainfully employed himself elsewhere. Thus, the finding of the Inquiry Officer that the charge No.II was proved was also not backed by sufficient material.

17. With respect to charge No.III, the learned Single Judge was of the view that the Inquiry Officer was right in holding that such charge was proved.

18. The learned Single Judge, therefore, found that with only one surviving charge which has effectively been proved, the punishment of removal would be disproportionate; more so, when the entire amount due from the employee had already been recovered. The case, therefore, was remanded to the Disciplinary Authority to reconsider and review the penalty imposed on the employee and if possible, impose a lesser penalty. The Disciplinary Authority was directed to complete that exercise within a period of 60(sixty) days from the date of receipt of the order passed by the High Court.

19. This judgment of the High court has been questioned by the Management of HPCL as well as the employee in the afore-noted 2(two) appeals.

20. The sheet anchor of the argument on behalf of the HPCL is that when the inquiry proceedings were conducted in accordance with the applicable Rules, the adequacy or reliability of that evidence ought not to have been evaluated or questioned in a writ proceeding under Article 226 of the Constitution of India. The learned Single Judge, it was urged on behalf of the HPCL, acted as an Appellate Authority and reappreciated the evidence led before the Inquiry Officer, which is not permissible.

21. Mr. M.K. Choudhury, learned Senior Advocate appearing for the appellant/HPCL referring to the judgment of the Supreme Court in Union of India & Ors. -Vs- P. Gunasekaran :: (2015) 2 SCC 610 submitted that under Article 226/227 of the Constitution of India, the High Court does not reappreciate the evidence; nor interferes with the conclusions in the enquiry in case the same has been conducted in accordance with law; does not go into the adequacy or reliability of the evidence; nor does it interfere normally if there is some legal evidence on which the findings are based; nor would it correct the errors of fact, howsoever grave it may appear to be and shall not go into the proportionality of the punishment unless it shocks its conscience. He has also referred to the judgment of the Supreme Court in B.C. Chaturvedi -Vs- Union of India & Ors. :: (1995) 6 SCC 749; Chairman & Managing Director VSP & Ors. -Vs- Goparaju Sri Prabhakara Hari Babu :: (2008) 5 SCC 569; State Bank of Bikaner & Jaipur -Vs- Nemi Chand Nalwaya :: (2011) 4 SCC 584 and Sanjay Kumar Singh -Vs- Union of India & Ors. :: AIR 2012 SC 1783 to canvass that judicial review is not an appeal from a decision of the Disciplinary Authority but a review of the manner in which the decision is made and that once it is found that all the procedural requirements had been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee.

22. In the present case, it was urged, invocation of the doctrine of proportionality was not called for. In a Disciplinary Inquiry, the strict proof of legal evidence and findings on that evidence may not be relevant. Adequacy of evidence or reliability of it cannot be permitted to be canvassed before the Court or the Tribunal. Removal from service with no fetters on future employment, in this case, cannot be said to be shocking to the judicial conscience.

23. Mr. B. Chakraborty, learned Advocate for the appellant in Writ Appeal No.223/2024, however, has submitted that the learned Single Judge was not justified in holding that the charge No.III was proved. The learned Single Judge did not take into account that against the principal loan amount of Rs.5,55,645/-an amount of Rs.17,22,000/- has already been recovered from the employee and that for recovering the amount, the Corporation had already filed a Money Suit, which eventually was dismissed. Thus, the amount remaining due as regards the Housing Loan could not have formed part of a charge. When the employee was directed to be reinstated in service, the employer/HPCL, passed an order to recover 2/3rd of his salary and as such, the employer/ HPCL has deducted much more in excess of the actual liability of the employee. He has further submitted that the facts of this case require the employee to be fully exonerated from all the charges.

24. On having gone through the records of this case, the judgment of the learned Single Judge and on hearing the learned counsel for the parties, we are of the view that for proving charge Nos.I & II, there were no commensurate materials on record. Where the findings arrived at by the Inquiry Officer are not based on evidence and borders on perversity, a Writ Court would not stand at the fence, toothless, but can effectively exercise his powers to interfere with such finding and consequent penalty imposed. [Refer to – United Bank of India -Vs- Biswanath Bhattacharjee :: (2022) 13 SCC 329].

There is practically no evidence or material to substantiate charge Nos.I & II.

25. After having said that, we are further of the view that the employee ought to have been careful in returning the amount released to him under Home Loan Account, if his agreement with the promoter was cancelled. Not doing so and dilly-dallying in that matter is sufficient evidence for finding the charge to be proved.

26. Over the issue of remand with a stipulation that lesser penalty must be imposed upon the employee, this Court is of the view that with only one charge having survived the legal scrutiny in the wake of 3(three) charges having been framed against employee, a Court of law would be required to examine whether the surviving charge is independent and grave and that the punishment imposed could be sustained solely on that charge. If these 2(two) considerations are missing then, perhaps, remand is the only appropriate decision.

27. In the present case, we find that the punishment of removal is based on the 3(three) charges, 2(two) of which were found to be unsustainable. The Writ Court could not have speculated whether the same punishment would have been imposed on the surviving charge. Thus, a limited remand in this case over the quantum of punishment is justified.

28. The punishment of removal for charge No.III appears to be highly disproportionate.

We do reckon that punishment reconsiderations primarily lies with the Disciplinary Authority but on the considerations of irrationality, Wednesbury unreasonableness and disproportionate nature of punishment vis-à-vis charge No.III, we do not wish to interfere with the judgment passed by the learned Single Judge of limited remand for reviewing the quantum of punishment. [Refer to – Ranjit Thakur -Vs- Union of India & Ors. :: (1987) 4 SCC 611; Union of India & Anr. -Vs- G. Ganayutham :: (1997) 7 SCC 463; Om Kumar & Ors. -Vs- Union of India :: (2001) 2 SCC 386; Chairman cum Managing Director, Coal India Limited & Anr. -Vs- Mukul Kumar Choudhuri & Ors. :: (2009) 15 SCC 620 and Pravin Kumar -Vs- Union of India and Ors. :: (2020) 9 SCC 471].

29. Thus, we find that the judgment of limited remand by the learned Single Judge is not liable to be interfered with and the same is upheld.

30. Resultantly, both the appeals are dismissed.

31. The Disciplinary Authority shall take a final decision regarding the quantum of punishment to be imposed upon the employee within a period of 8(eight) weeks from the date of receipt of a certified copy of this judgment.