TMI Blog2013 (4) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, before the learned Single Judge, the learned counsel for the appellant made only one submission that looking to the allegations and the charges proved against the appellant and the penalty of removal imposed upon the appellant is disproportionate to the misconduct. However, in the Letters Patent Appeal, a draft amendment was moved by the appellant seeking to challenge the order of removal from service on the ground that the acts committed by the appellant did not constitute misconduct. The application for amendment was rejected. 3. We may very briefly notice the relevant facts for deciding the limited issue as to whether the punishment imposed on the appellant is shockingly disproportionate to the misconduct. 4. On 14th October, 1991, the appellant, who had studied upto 12th standard, was appointed as Tradesman/B Class III post at Kakarapar Atomic Power Project (KAPP) at Surat, Gujarat, a public sector enterprises. He was placed on probation for two years in accordance with the statutory rules. It is his case that on completion of the probation period, he is deemed to be confirmed w.e.f. 14th October, 1993. Thereafter, on 17th December, 1993, he was elected as General S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid incident. A translated copy of the letter has been placed at Annexure : P1 to the Special Leave Petition and reads as under :- Date : 18-6-1994 To, The Editor, Gujarat Samachar, Surat. In the Kankarapar on 16-6-94 there was water filled in, due to this reason about 25 to 30 feet water was filled in the Kankarapar, due to this reason the machines lying in the Atomic Centre shut down Unit No. 1 several machines have moved back, and if this same unit No. 1 was in the running condition then the situation would have been very grave, the Unit No. 2 is not yet started. On 16-6-94 night there was water filled in the Pali Mahi Scheme, but some engineers in the department who were present at night in Pali they did not find it important to take any action due to this reason the water level went on rising slowly and the situation became so worse that there was emergency declared and the employees were sent away, the staff that was left behind there was no proper facility for food and water made, the employees leader Manojbhai Mishra says that all this is a result of grave corruptions. The department has incurred expenses worth lakhs of rupees and several big cana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the crime of talking to the press and his suspension continues even today, five months after the event. While all those who displayed singular dereliction of duty continued merrily along, the one man who put the interest of the country above his own selfish interest has been made to suffer as an example to others that in the nuclear establishment the only leaks that matter are leaks of authentic information. 7. The appellant claims that it was only after the news was published on the 22nd June, 1994 that people outside and even the nuclear establishment in Bombay took cognizance of the event. The Station Superintendent made a dash to Surat and issued a statement along with the District Collector of Surat assuring all and sundry that all was well under control. The appellant claims that his honest approach was, however, not appreciated by the Management and in fact he was singled out for action, instead of taking action against erring officials on account of negligence. He had only performed his duty in alerting the authorities to the imminent danger to KAPP. 8. As a reward , the respondent authorities placed him under suspension by an order dated 5th July, 1994, in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day and he assured similarly to me also. In view of the above facts, Shri Mishra admits all the charges levelled against him and accordingly requests closure of the proceedings. We now request the I.O. also to take a lenient view of the case. 10. The Enquiry Officer, however, declined to accept the conditional admission with the following observations :- I.O. Such admissions in the inquiry are not valid. Your meeting M.D. is an extraneous matter with which I am Inquiry Officer is not concerned. Further I also would not like you to admit the charges on reasons other than facts. I therefore, request you to categorically tell me whether on your own you admit the charges or not. 11. In response to the aforesaid request of the Enquiry Officer, the appellant, i.e., C.O. stated thus :- C.O. I admit the charges. I request the inquiry to be closed. 12. In view of the aforesaid admission, the Enquiry Officer closed the enquiry proceedings. The charges were held to be proved against the appellant. Acting on the aforesaid enquiry report by order dated 30th March, 1996, the Disciplinary Authority ordered the removal of the appellant from service of KAPP w.e.f. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gency situation. However, the KAPP authority did not alert the authorities of the district administration on 16th June, 1994. In fact the District Authority visited the site only on 23rd June, 1994 after the new stories were published in the local dailies on 22nd June, 1994. Mr. Prashant Bhushan has made a reference to the letter dated 2nd July, 1994, in which the Disciplinary Authority has informed the appellant that : As a result of the appearing of the highly inflammatory news stories in the press, the authorities of the District Administration had to rush to the Plaint Site on 23-6-1994 to ascertain the veracity of the story and to take corrective measures for removing the apprehensions caused all around on account of the news story. The project authorities too had to rush to the District Headquarters on 23-6-1994 for taking appropriate immediate action to issue clarificatory information to the Press. All these could have been avoided had Shri Manoj Mishra and his accomplices behaved themselves in the responsible manner and desisted themselves from interacting with the press and passed on distorted information. Since the action on the part of Shri Manoj Mishra and his ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not have led to a major catastrophe. The appellant had only alerted the Civil Authorities, which was required to be mandatorily done by the respondents, under the rules. Mr. Bhushan reiterated that the description of the incident given by the authorities themselves clearly shows that ultimately action was taken on a war footing to control the flood situation at the site. Various officers were contacted and it was on their action the situation was brought under control. Learned counsel also reiterated the Extracts from Manual on Emergency Preparedness for KAPP Volume I Part II, Page 3 and Action Plan for Site Emergency. He brought to our notice, in particular, that on hearing the emergency signal and/or on getting information of the same through telephone (or any other means), the Director shall immediately proceed to the main control room. He is required to alert Collector and District Magistrate, Surat, SDM of Vyara, Mandvi, Olpad, DSP (Rural), Surat. Under Clause 5 of the aforesaid extracts from Manual. The authorities are required to depute one Assistant Health Physicist to the assembly areas for general contamination and radiation checks. Arrangements have to be made for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has failed to exercise the jurisdiction vested in it under Article 226 of the Constitution of India. The Single Judge, even having noticed the principle that the Court can interfere with the decision of the Disciplinary Authority, if it seems to be illegal or suffers from procedural impropriety or is shocking to the judicial conscience of the Court, erroneously failed to apply the same to the case of the appellant. 20. The punishment imposed on the appellant suffer from all the vices of irrationality, perversity and being shockingly disproportionate and ought to have been set aside and substituted by a lesser punishment. In support of the submissions, he relies on Ranjit Thakur v. Union of India Ors. - (1987) 4 SCC 611, in which this Court held as under :- 25. Judicial review generally speaking, is not directed against a decision, but is directed against the decision-making process . The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions were to be taken. Therefore, follow up exercises were being diligently carried out when everyone was busy in tackling the situation to save Atomic Power Plant, the appellant, using the official telephone contacted the following members of the media :- (i) 623375 - The Editor, Gujarat Samachar, Surat (ii) 20760 - Shri Vilasbhai Soni, Press Reporter, Sandesh, Vyare (iii) 30225 - Hasmuklal and Company, Sardar Chowk, Bardoli. 23. On 18th June, 1994, at about 11.30 a.m., the appellant telephoned the pass section of CISF and told Mr. A. Srikrishna, CISF Constable, that a person asking for him will come to pass section. The Constable was told to tell the person to wait for the appellant. After the press reporter arrived, the appellant met him in his official quarters. Thereafter, the appellant wrote the letter to the Daily Gujarat Newspaper having the largest circulation in Gujarat. Relying on the aforesaid, the newspaper published the news. Soon thereafter on 22nd June, 1994, another news story appeared in Gujarat Samachar with the title that Half of Gujarat would have exploded on June 15 . In this news story, it was stated that at the same time chances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited at every stage. Even this Court had only issued notice with regard to the question of punishment. He points out that the appellant is correct in saying that he is not an employee of a cloth mill or sugar mill, he was an employee of the highly sensitive Atomic Centre. He was required to maintain highest degree of confidentiality at the time of the incident. The appellant, instead of assisting the control of flood situation, was busy giving disinformation to the press. He submitted that under the rules and regulations applicable at the Atomic Centre, press can not be contacted by any employee other than the Specified Officer. This is so as the workers in the nuclear power facility are a special category of employees. They are required to maintain a very high standard with regard to confidentiality to prevent the leakage of very sensitive information. Mr. Parekh emphatically denied the claim of the appellant that he is a whistle blower . At the time when the water was entering into the nuclear plant the appellant made three telephone calls to the Media divulging the information which he was not permitted to give. The appellant had even informed the constable on duty to keep one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the Revisional Authority. Thereafter, it was not even argued before the learned Single Judge. Learned counsel had confined the submission to the quantum of punishment. In LPA, the Division Bench declined to reopen the issue. In such circumstances, we are not inclined to exercise our extraordinary jurisdiction under Article 136 for reopening the entire issue at this stage. Such power is reserved to enable this Court to prevent grave miscarriage of justice. It is normally not exercised when the High Court has taken a view that is reasonably possible. The appellant has failed to demonstrate any perversity in the decisions rendered by the Single Judge or the Division Bench of the High Court. 28. Having examined the entire fact situation, we are unable to accept the submission of Mr. Bhushan that the appellant was acting as a whistle blower . This Court in the case of Indirect Tax Practitioners Association (supra) has observed as follows :- At this juncture, it will be apposite to notice the growing acceptance of the phenomenon of whistleblower. A whistleblower is a person who raises a concern about the wrongdoing occurring in an organisation or body of people. Usually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and await a response or corrective action for a reasonable time before taking any other action. During the pendency of the aforesaid contempt case, the respondent had written a number of detailed letters to the Finance Minister and other higher authorities in the Government of India highlighting the specific cases of irregularities, malfunctioning and corruption in CESTAT. After the notice of contempt was discharged, the respondent wrote two more letters to the Finance Minister on the same subject and also pointed out how the appointment and posting of Mr. T.K. Jayaraman, Member CESTAT was irregular. He wrote similar letters to the Revenue Secretary; President, CESTAT; Registrar, CESTAT and the Central Board of Excise and Customs. Since no cognizance of the aforesaid letters were taken by any of the five authorities, the respondent wrote the editorial in which he made the comments, which led to the filing of the Contempt Petition by the appellant. 30. This Court took notice of the conduct and the credentials of the respondent. It is noticed that the respondent is not a novice in the field of Journalism. For decades, he had been fearlessly using his pen to highlight malfunctionin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber. The orders had been set aside by the High Courts of Karnataka and Kerala as well as by this Court. In these circumstances, this Court observed :- 38. It is not the appellant s case that the facts narrated in the editorial regarding transfer and posting of the members of CESTAT are incorrect or that the respondent had highlighted the same with an oblique motive or that the orders passed by the Karnataka and Kerala High Courts to which reference has been made in the editorial were reversed by this Court. Therefore, it is not possible to record a finding that by writing the editorial in question, the respondent has tried to scandalise the functioning of CESTAT or made an attempt to interfere with the administration of justice. 41. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behaviour or report it. There is some reason to believe that people are more likely to take action with respect to unacceptable behaviour, within an organisation, if there are complaint systems that offer not just options dictated by the planning and contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable to the general public. The primary motivation for the action of a person to be called a whistleblower should be to cleanse an organization. It should not be incidental or byproduct for an action taken for some ulterior or selfish motive. 35. We are of the considered opinion that the action of the appellant herein was not merely to highlight the shortcomings in the organization. The appellant had indulged in making scandalous remarks by alleging that there was widespread corruption within the organization. Such allegations would clearly have a deleterious effect throughout the organization apart from casting shadows of doubts on the integrity of the entire project. It is for this reason that employees working within the highly sensitive atomic organization are sworn to secrecy and have to enter into a confidentiality agreement. In our opinion, the appellant had failed to maintain the standard of confidentiality and discretion which was required to be maintained. In the facts of this case, it is apparent that the appellant can take no advantage of the observations made by this Court in the case of Indirect Tax Practitioners Association (supra). This now brings us to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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