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PETITIONER: INDIAN OIL CORPORATION LTD. & ANR.

       Vs.

RESPONDENT: ASHOK KUMAR ARORA

DATE OF JUDGMENT:       05/02/1997

BENCH: J.S. VERMA, SUHAS C. SEN, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.P.KURDUKAR, J.      The first appellant is a company incorporated under the Companies Act,  1956 and  carries  on  business  at  various places/centres in  India having  its  registered  office  at Bombay. The  first appellant  (for short  ‘the Corporation’) carries on  its business  of selling  petrol  and  petroleum products at various places in India. The second appellant is the Director.  Research and Development Centre, Faridabad in Haryana State. 2.   The respondent-Ashok  Kumar Arora joined the service of the Corporation  as a  Junior Stenographer on August 6, 1974 and thereafter came to be promoted as Senior Stenographer on December 26, 1977. 3.   In the  year 1964,  it had  come to  the notice  of the corporation that some of its employees were presenting false medical  bills   and  getting   them  reimbursed   from  the Corporation. In  order to  verify the  truth or otherwise of such claims,  a vigilance  enquiry was held by the office of Chairman of  the Corporation  (Indian Oil  Corporation Ltd.) which  unearthed   a  racket   of  its   employees  claiming reimbursements on presenting false medical bills. The report was accordingly submitted by the vigilance department to the Corporation identifying  the respondent as the organiser and the principal  man behind  the  said  racket  amongst  other employees  of   the  Corporation.   The  Corporation   after obtaining the  approval of  its Chairman  on April  10, 1984 lodged the  FIR of forgery and cheating by preferring claims on the  basis of  false medical  prescriptions from Dr. Mrs. Puja Kundra  and false medical bills showing the purchase of various medicines.  The vigilance  department also suggested to initiate  proceedings against  the employees who obtained the benefits  by cheating  the Corporation.  This action was suggested under  the Conduct,  Discipline and  Appeal Rules, 1980 of  the Indian  Oil Corporation  Ltd. (for  short  ‘CDA Rules’). 4.   Pursuant to  the FIR  lodged on  April  10,  1984,  the investigating agency on completing the investigation filed a charge  sheet  in  the  court  of  Metropolitan  Magistrate, Faridabad on  May 1,  1985 against  the respondent  for  the

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offences punishable  under Sections  420, 468 and 471 of the Indian Penal  Code. In  the meantime,  on July  7, 1984, the respondent came  to be  arrested by the local police and was detained in  the police  custody  for  over  48  hours.  The Corporation taking  recourse  to  CDA  Rules  suspended  the respondent on July 11, 1984 with effect from the date of his arrest and  detention in  the police  custody  for  over  48 hours. The  Addl. Chief  Judicial Magistrate,  Faridabad, on conclusion of  the trial  convicted the  respondent  on  two counts i.e.  under Sections  420 and 471 of the Indian Penal Code and  sentenced him  to undergo  RI for two years and to pay a  fine of  Rs. 500/-;  in default of payment of fine to undergo further  imprisonment for  a period  of three months and RI  for one  year and  to pay  a fined  of Rs. 500/-; in default of  payment of  fine t  undergo further RI for three months respectively.  Substantive sentences were directed to rune concurrently.  On such  convictions by  an order  dated February 21,  1989 dismissed  the respondent from service of the Corporation. 5.   The  respondent   being  aggrieve   by  the   order  of conviction and  sentence passed  by the Addl. Chief Judicial Magistrate, Faridabad,  preferred an  appeal to  the Session Court, Faridabad and the Addl. Sessions Judge vide his order dated July  13, 1989,  allowed the  appeal and set aside the convictions and sentence of the respondent and acquitted him of all  the charges.  The  revision  against  the  order  of acquittal filed  before the  Punjab &  Haryana High Court by the Corporation  came to  be dismissed.  The S.L.P.  to this Court was  also dismissed.  The net  result, therefore,  was that the respondent stood acquitted of the criminal charges. 6.   The respondent  who was  dismissed from  the service of the Corporation  pursuant to  the order  dated February  21, 1989 filed  a writ petition before the Punjab & Haryana High Court at Chandigarh challenging the said order on the ground that since he had been acquitted by the criminal courts, his order of  dismissal was  illegal and  not  sustainable.  The respondent, therefore,  sought the  reliefs of reinstatement including  the   back  wages   etc.  In  the  meantime,  the respondent had  also preferred  an appeal under CDA Rules to the Appellate  Authority challenging  his order of dismissal from service of the Corporation passed on February 21, 1989. Since the  departmental representation of the respondent was pending when  the writ  petition was  filed, the  High Court vide  its   order  dated   August  28,   1989  directed  the Corporation to  dispose of  the respondent’s  representation expeditiously. In  pursuance of the directions issued by the High Court,  the Corporation  considered the  representation filed by the respondent and opined that having regard to the facts and  circumstances of  the case,  it was  necessary to hold a  departmental enquiry  against  the  respondent.  The Corporation, therefore,  in exercise of its power under Rule 26(4) CDA  Rules directed  that the  departmental enquiry be held against  the respondent  and he  be deemed  to be under suspension from  the  date  of  his  dismissal  order  dated February 21, 1989. 7.   The Corporation on February 22, 1990 charge sheeted the respondent for gross acts of misconduct which in the opinion of  the   Corporation  constituted  acts  of  dishonesty  in connection  with   the  business  or  the  property  of  the corporation and  acts  subversive  of  discipline  and  good behaviour. On  service of  the charge  sheet, the respondent submitted his  reply on  March 5,  1990 which was considered being not  satisfactory by the Corporation. The Corporation, therefore, on  May 25, 1990 directed that a domestic enquiry be held against the respondent.

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8.   On November 10, 1991, the respondent filed another writ petition before  the High  Court of  Punjab &  Haryana being writ petition  No. 3170 of 1992 praying therein, inter alia, for the  grant of  certain reliefs  including a direction to reinstate him  in service  with effect from July 7, 1984 and release the  salary and  other consequential  benefits  with effect from the said date i.e. July 7, 1984. 9.   During the  pendency of this writ petition, the Enquiry Officer appointed  by the  Corporation held  the enquiry and submitted his  report  dated  June  26.  1992.  The  Inquiry Officer found  the respondent  guilty of acts of misconduct. he held as under;-      "The nexus  of  the  delinquent  in      collusion with  Dr. J.K.  Kundra in      fabricating     and      furnishing      prescriptions   and    bills    and      providing   the   same   to   other      employees  as  well  as  presenting      them himself  with the  purpose  of      cheating  the  Corporation  and  to      make  wrongful   gain  to  him  and      wrongful loss to the Corporation is      established.  The   bills  on   the      letter head  of Dr.  S.C.Saxena and      Dr.(Ms.) Puja  Kundra  are  in  the      same  handwriting.  Dr.  J.K.Kundra      made  available  false  and  forced      bills to  Shri Arora,  who in turn,      to  Shri   Kirat  Singh,  Shri  Ram      Ashray and  Shri  Amar  Singh.  The      aforesaid employees  in  turn  paid      the premium  of Peerless Policy and      for this  purpose  Shri  Arora  was      personally   interested   to   earn      commission on  Peerless premium  as      the Agency  of Peerless  was in the      name of his wife.      It stands  proved that  Shri  Arora      was guilty of procuring and getting      false medical bills reimbursed from      the  office   of  the   I.O.C.  for      himself and  other employees and it      is  further   proved  that  he  had      submitted  false   and   fabricated      medical bills and got reimbursed on      the strength  of  the  same  having      full knowledge that they were false      and bogus  documents. He  has  thus      been dis-honest  in connection with      the business and property of I.O.C.      I further  hold that the above acts      are subversive  of discipline or of      good behaviour."      The Corporation  (Disciplinary Authority) on perusal of the report  of the  Enquiry Officer  vide its order July 21, 1992 passed  an order dismissing the respondent from service of  the   Corporation  with  immediate  effect.  It  further directed that  no recovery  of payment  already made  to the respondent during the period of suspension will be effected. The  respondent   was  directed   to  contact   the  finance department for  collecting his  dues, if any, on any working day within  a period  of one  month from the date of issuing the order. 10.  The respondent on July 23, 1992 filed an appeal against his  order  of  dismissal  from  service  to  the  Appellate

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Authority who  after considering the grounds taken up in the appeal memo  and other  materials on  record, vide its order dated September 28, 1992, dismissed the said appeal. 11.  The respondent  being aggrieved  by the order passed by the Appellate  Authority on  September 23,  1992  filed  yet another writ petition being CWP No. 13934 of 1992 before the Punjab &  Haryana High  Court challenging  the legality  and correctness of  the order  of dismissal  dated September 28, 1992 passed by the Appellate Authority.      The  first  appellant-Corporation  filed  the  detailed written  statement  pleading,  inter  alia,  that  the  writ petition was  not  maintainable  since  the  respondent  had already filed  the writ  petition No.  3170 of 1992 and this court  cannot   sit  over  the  order  of  the  Disciplinary Authority as  an Appellate  Court/Authority. The  respondent had not exhausted the alternative remedy available under the Industrial Disputes  Act,  1947  and,  therefore,  the  writ petition be  dismissed  as  pre-mature.  The  writ  petition raised several  disputed questions  of facts which cannot be decided in  a  writ  jurisdiction.  The  impugned  order  of dismissal does not suffer from any illegality and this court in exercise  of its  extra jurisdiction should not interfere with the  order passed  by the  Disciplinary Authority after holding the enquiry. The Corporation, therefore, prayed that the writ petition be dismissed. 12.  Both the  writ petitions  bearing C.W.P.  Nos. 3170  of 1992 and  13934 of  1992 were heard together by the Division Bench of  the High  Court and  the learned  court  vide  its impugned judgment  dated May  27, 1993 allowed both the writ petitions filed  by the  respondent and passed the following order:-      "In view of the aforesaid position,      we are  satisfied that the impugned      order imposing  the  punishment  of      dismissal  of   the  petitioner  is      wholly  arbitrary.  Accordingly  we      allow both these writ petitions and      quash the impugned orders dated 21-      7-1992 (annexure  P-12)  and  9-10-      1989 (annexure P-3) eg. deeming the      petitioner  under  suspension  from      the date of his original dismissal,      i.e.  21-2-1989.  Resultantly,  the      petitioner stands reinstated to his      service and he shall be entitled to      the back  wages by way of arrear of      salary and allowances etc. to which      he   would    have   been   entered      (entitled), had  he not been placed      under suspension and dismissed from      service." 13.  The appellants  thereafter filed review application No. 429/93 in  CWP no.  13934 of 1992 and review application No. 430/93 in  CWP No.  3170 of  1992 praying  therein that  the judgment dated May 27, 1993 he reviewed and re-called on the grounds set  out in  the review applications. The High Court however did  not agree  with the  contentions raised  in the review applications and consequently vide its impugned order dated  November   25,  1993   dismissed  both   the   review applications. 14.  Feeling aggrieved  by the  orders dated May 27, 1993 as well as  November 25,  1993 passed by the High Court in writ petitions as  well as in review applications, the appellants on obtaining leave, have filed these appeals challenging the legality and  correctness of  the orders  passed by the High

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Court. Since  these appeals  arise out of a common judgment, they are being disposed of by this judgment. 15.  Mr. N.B.  Shetye, Learned  Senior Counsel  appearing in support of  these appeals  urged that  the  High  Court  had committed a  serious jurisdictional  error while interfering with the  order of  dismissal dated  July 21, 1992 and order dated February  21, 1989 removing respondent’s name from the rolls of  R &  D Centre.  He urged that the High Court could not have  re-appreciated the evidence adduced by the parties during domestic  enquiry and  interferred with  the findings recorded  by   the  Enquiry  Officer  and  affirmed  by  the Disciplinary Authority.  The High  Court cannot sit over the findings  of   the   Enquiry   Officer   as   an   Appellate Court/Authority and,  therefore, the  impugned judgments  of the High Court are unsustainable. He, therefore, prayed that the appeals be allowed and the impugned orders passed by the High Court be quashed and set aside. 16.  The respondent Mr. Ashok Kumar Arora appeared in person and tried to justify the orders passed by the High Court. He submitted that  the Enquiry Officer had totally misconstrued the materials  on record and erroneously found him guilty of the charges  levelled against  him. There  was no sufficient material before  the Enquiry  Officer to  hold him guilty of misconduct  and,  therefore,  the  High  Court  has  rightly interferred with  the findings  of the  Enquiry Officer.  He also submitted  that there  is patent  discrimination  while awarding  the  extreme  penalty  of  dismissal  against  him whereas other  employees were  let off on minor punishments. The order  passed by  the Disciplinary  Authority  was  thus discriminatory and  the High  Court had  committed no  error while ordering  his reinstatement.  There is no substance in the appeals and the same be dismissed. 17.  We  have  give  our  anxious  thought  to  the  various contentions raised  before us  and  have  gone  through  the materials on  record since  the respondent  was appearing in person. On  careful scrutiny  of the materials on record, we are of  the considered  view that the impugned orders passed by the  High  Court  are  unsustainable  for  the  following reasons. 18.  At the  outset, it  needs to be mentioned that the High Court in  such  cases  of  departmental  enquiries  and  the findings recorded  therein does  not exercise  the powers of appellate court/Authority.  The  jurisdiction  of  the  High Court in such cases is very limited for instance where it is found that  the domestic enquiry is vitiated because of non- observance of  principles  of  natural  justice,  denial  of reasonable opportunity;  findings are  base on  no evidence, and or  the punishment  is totally  disproportionate to  the proved  misconduct  of  an  employee.  There  is  catena  of judgments of  this Court  which had  settled the law on this topics and  it is  not  necessary  to  refer  to  all  these decisions. Suffice  it to  refer to  few decisions  of  this Court on this topic viz., State of Andhra Pradesh Vs. S.Sree Rama Rao,  1963 (3)  SCR 25,  State of  Andhra  Pradesh  Vs. Chitra Venkata  Rao, 1976(1) SCR 521, Corporation of City of Nagpur and  Anr. Vs. Ramachandra, 1981 (3) SCR 22 and Nelson Motis Vs. Union of India and Anr., AIR 1992 SC 1981. 19.  The Enquiry  Officer  on  appraisal  of  the  materials before him  held that  the respondent  was actively involved and a  brain behind procuring false medical certificates and medical bills  not only  for himself but for other employees and on the basis of which the reimbursement claims were made by the  respondent  and  other  employees.  The  corporation sanctioned  these   reimbursement  claims   of  the  various employees which  had resulted  into  monetary  loss  to  the

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corporation.  Before   the  Enquiry   Officer   except   the respondent other  employees of  the Corporation admitted the charges and  consequently a  minor penalty  was  awarded  to them. The  respondent contested the charges levelled against him and  denied that  he was  instrumental  in  cheating  or committing forgery of the medical bills. On consideration of report and findings of the Enquiry Officer, the Disciplinary Authority took a lenient view in respect of other employees. Having regard  to the  involvement of  the respondent in the entire episode,  the Disciplinary  Authority awarded him the penalty of  dismissal from  service. The  order of dismissal passed by  the Disciplinary Authority against the respondent was also  affirmed by  the  Appellate  Authority.  Curiously enough, the High Court in its impugned judgment compared the case of  the respondent  with the  other employees  who have been awarded  a lesser  penalty and  opined that  there is a discrimination  resorted to by the Disciplinary Authority in the matter  of awarding the punishment. It is this action of the Disciplinary  Authority in  awarding the  penalty  being discriminatory  and   violative  of   Article  14   of   the Constitution. In  support of  this reasoning, the High Court placed reliance  on the  decision of  this Court  in Sengara Singh and  others Vs.  State of  Punjab and others, 1983 (3) S.L.R. 685  and the  passage therefrom was reproduced in the impugned judgment which is distinguishable on facts. We have gone through  the impugned  judgment of the High Court dated 27th May,  1993 and were of the view that the High Court was wrong in  interferring with  the punishment  awarded by  the Disciplinary  Authority.   The  High   Court   has   totally overlooked the  finding of  the Enquiry Officer and affirmed by the  Disciplinary Authority  that  the  respondent  w  as instrumental in  obtaining forged medical bills not only for himself but  also for  other employees  and he  was the main actor behind  the cheating to the corporation. It is because of this finding, the Disciplinary Authority, in our opinion, rightly considered  the award  of penalty/punishment  to the respondent differently than the other employees who although got the  benefit of  reimbursement on  the forged  bills but they accepted their guilt before the Enquiry Officer. Having regard to  the facts  and circumstances of this case, we are of the  opinion that  the High  Court had  committed serious jurisdictional error  while interferring with the quantum of punishment. There  is neither any discrimination resorted to by the  Disciplinary Authority nor the punishment awarded to the respondent  was disproportionate  to his misconduct. The impugned judgment  and order  of High  Court, therefore, are unsustainable. 20.  Coming to the next submission of the respondent that he was denied  a reasonable opportunity by the Enquiry Officer, we  find  that  the  same  is  devoid  of  any  merits.  The respondent was  unable to  illustrate in  what manner he was denied a reasonable opportunity. 21.  The impugned  orders made  in the  review  applications filed by  the appellants  are  also  unsustainable.  In  the review applications, all these contentions were specifically taken up,  yet the  High Court  without adverting  to any of these contentions  has dismissed  these review  applications without assigning sustainable reasons. 22.  In the  result, the appeals filed by the appellants are allowed. The  impugned judgments  and orders  of High  Court dated may 27, 1993 and November 25, 1993 are quashed and set aside. In  the circumstances,  there will  be no order as to costs.

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