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2016 (3) TMI 152 - BOMBAY HIGH COURT

2016 (3) TMI 152 - BOMBAY HIGH COURT - TMI - Termination of services of peon - According to the Official Liquidator the misconduct against Shri Shetty, Peon has been proved considering the report of the enquiry officer and the explanation offered by Shri Shetty and it is grave and of serious nature warranting the punishment of removal from service - Held that:- The power vested on the disciplinary authority is a discretionary power and courts will not interfere in the quantum of punishment but i .....

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and has very drastic consequences. Termination from service is worse. The Competent Authority while passing an order or recommending the punishment should keep in mind the adverse effect which its order may have on the rights, liberties or interest of persons keeping in mind the purpose for which the rules framed were intended to serve. The person not only gets less or no pay but goes through the ignominy of having to face all his colleagues, family and friends while under suspension and after .....

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ty should be given all benefits including increments and promotion that he would have obtained during the period after 16th January, 2006 had he not been under suspension. His salary/emoluments to be fixed/determined accordingly.

In the circumstances, have no hesitation in setting aside the inquiry report dated 20th May, 2011 of Shri N. Chinnachamy.

Since setting aside the enquiry report itself, the leave sought by the Official Liquidator in his further report dated 18th F .....

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with immediate effect the services of Shri S.M. Shetty, company paid Group 'D' Peon. According to the Official Liquidator the misconduct against Shri Shetty has been proved considering the report of the enquiry officer and the explanation offered by Shri Shetty and it is grave and of serious nature warranting the punishment of removal from service. The Official Liquidator states that he has also considered the past record of the employee and there are no extenuating circumstances warrant .....

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by an order dated 26th April, 1994. It will be useful to reproduce paragraph 4 (xii), (xiii) and (xv) of the said order and it reads as under:- "(xii) No person shall be employed as a Company Paid Staff without prior sanction of this court. (xiii) Services of the Company Paid Staff shall not be terminated without prior sanction of this court. (xv) In case it is found that any member of the Company Paid Staff is guilty of dereliction of duty, it will be open for the Official Liquidator to t .....

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hetty, company paid Peon and Shri C.L. Saraiya, the then Junior Technical Assistant (JTA) to proceed to the factory site of M/s. Otoklin Plants & Equipments Limited at Kandla, Gandhidham, Gujarat to hand over through the Court Receiver the leased assets that belonged to CBL. The factory premises it should be noted was situated at Sector IV, Kandla Special Free Trade Zone, Kandla, which means inside a customs notified area. 4. Shri Saraiya and Shri Shetty reached the site on 1st July, 2003. W .....

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the customs for obtaining permission to give delivery of the leased equipments to CBL through Court Receiver. The necessary permission was granted only on 2nd July, 2003 and hence the delivery commenced from 3/4th July, 2003 and it went on till 9th August, 2003. On 3/4th July, 2003 the representative of the Court Receiver - P.S. Rao who was also a valuer, identified the leased equipments by putting a mark on each of the equipment - "CBL" - denoting Centurion Bank Limited. At the time o .....

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he then was) that the general conditions of all the equipments/machineries were found to be in deteriorated condition due to lack of maintenance. Equipments were also found to be exposed to atmosphere, the roofing sheets/shed having fallen, broken and the shed was found to be extensively damaged due to natural calamities. Some of the parts forming part of the equipments were also found in dismantled condition with no markings over it. 7. Shri Shetty after the delivery was over returned to mumbai .....

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ty Director (Tech.), Shri S.D. Patil, STA and Shri Mohanan P.N., Senior Assistant. Thereafter Shri Shetty addressed a letter dated 6th January, 2004 to the Official Liquidator. The enquiry officer has placed reliance on both these documents, viz., statement recorded on 23rd December, 2003 and letter dated 6th January, 2004 in his report dated 20th May, 2011 while holding Shri Shetty guilty of dereliction of duty and concealment of fact of removal of the machines belonging to Al-Qahtani which has .....

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sion and praying that he be resumed in his regular employment. The said petition came to be disposed by an order dated 16th January, 2006 whereby this court directed the Union of India through Official Liquidator to pay full salary to Shri Shetty towards subsistence allowance but declined to grant the prayer of resumption in regular employment. Since 25th November, 2004 Shri Shetty has been under suspension and as on date it is more than 11 years and he is getting 100% subsistence allowance. 10. .....

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port which reads as under:- "15. Based on the statement made by Mr. S.M. Shetty on 16th April, 2011, the statement made by Mr. C.L. Saraiya on 2nd May, 2011, the statements made by Shri A.W. Ansari and Shri S.R. Kom the then Officers of the Official Liquidator and on examination of documents available in the files of the company in liquidation, while delivering the leased machines to Court Receiver belongs to CBL and during the same period the machines of Al-Qahtani were also been removed b .....

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the machines belongs to Al-Qahtani have also been removed by the dismantling agent of the CBL. In this manner Mr. Shetty derelict his duty and concealed the fact of removal of the machines belongs to Al-Qahtani from the site." 11. I have heard the counsels and considered the enquiry report and documents. It is true that Shri Shetty was present at site between 1st July, 2003 to 9th August, 2003 but in the entire report the enquiry officer has not dealt with as to what was the role of Shri S .....

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iquidator have been examined on 2nd May, 2011 and 4th May, 2011 and the witness except Shri P.N. Mohanan have submitted their statement in writing with regard to the enquiry against Shri Shetty. 12. The counsel for the Official Liquidator in fairness stated that none of these witnesses were made available for cross examination by Shri Shetty. Infact Shri Shetty has also, as recorded in paragraph 8 of the enquiry report, mentioned that he had sought details vide his letter dated 15th April, 2011 .....

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Ministry of Company Affairs, Office of the Regional Director, Western Region to Shri C.L. Saraiya; copy of the true translation of the FIR lodged by Prakash K. Kale from the office of the Official Liquidator with the Gandhidham Police Station; copy of the minutes circulated by the Official Liquidator recorded at the time of taking possession of the assets of the company (in liquidation) on 12th June, 2002; the memorandum issued to Shri Saraiya by the Regional Director in the Ministry of Company .....

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4. The enquiry officer has not even referred to any of these documents in his report particularly the FIR, examination in chief of Shri Shetty recorded by the Regional Director, who was the enquiry officer on 12th/13th July, 2005 and the statement of Shri Prakash K. Kale. If one considers the FIR which was filed with Gandhidham Police Station on behalf of the Official Liquidator, Shri Shetty is not one of the accused. The FIR has been filed against Shri Mahesh Rane, Shri Srinivasan, both represe .....

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FIR dated 20th January, 2004 it is stated that the accused with the help of 20 labourers loaded the machinery belonging to Al-Qahtani and having no CBL mark representing that the same belonged to CBL and having full knowledge that the same did not belong to them and dishonestly and to ensure gain for them and without taking into confidence Official Liquidator's representative Shri Shetty. From the FIR it also appears that when the items were being removed not just these accused, the 22 labou .....

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ve taken the same. From the FIR lodged by the Official Liquidator it is quite apparent that Shri Shetty himself was a victim of misrepresentation by third parties. 15. From the minutes of the meeting recorded at the time of taking possession of the equipments by the representative of the Official Liquidator, it appears that the site was a 50 acres plot of land at Kandla Special Free Trade Zone and the plot did not have any compound wall though the Kandla Special Free Trade Zone has a Metallic Fr .....

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ason identification was to be done. It is also mentioned that there were frequent theft happening in the site. It is necessary to reproduce the following portion from the statement: "Question: Whether, you were aware of the complaints made by the Security deployed there, were theft at the site very frequently due to poor fencing of the factory premises? Answer: I was present at the time of security person complaining to representative of Bank of Baroda and Official Liquidator about frequent .....

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g his duties but they told him to carry on his stay and he had nothing to do rather than signing delivery challan. The question and answer recorded by the enquiry officer, Officer of the Regional Director, Western Region of Shri Shetty some of which are reproduced are as under:- "Question: Since how long you were there? Answer: From 1.7.03 to 9.8.03, I was there. Question: What are the works you attended over there? Answer: They took me to customs office on the first day along with 7 person .....

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the process of exercising my duties. But they said you carry on your stay and you have nothing to do rather then signing delivery challan. So you are, therefore, directed to stay till the completion of handing over the machine to CBL and further one more order was issued and faxed to me on 5.8.04 to hand over deliver process of Pipes (398) to ONGC. Question: Do you have any knowledge during the course of handing over the machineries to CBL some other machineries was also picked up by bank peopl .....

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tem that were being lifted from the premises by the CBL? Answer: I have no knowledge what were the items being lifted. In fact, it was job of Court Receiver. I was only directed to be physically present and sign the challans. Question: How long dismantling work took place? Answer: Dismantling and delivery work were carried for a period of 40 days. Question: How many hours per day did the work was carried on? Answer: 10.00 A.M. To 7-8 PM. Question: How many persons were involved in this work? Ans .....

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that Shri Shetty also has been a victim of misrepresentation by the representatives of CBL. As to the removal of machines belonging to Al-Qahtani, Shri Kale has stated as under:- "Document No.9 is the FIR, that I have lodged with the Gandhidham Police Station at Kutch on 20.1.2004 before filing FIR, I called for relevant documents from the Office of the Official Liquidator as required by SHO. Thereby, I came to know that Mr. Saraiya in has stated that "During the period from 3.7.03 to .....

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saying falsely that all the properties belong to them only to Shri S.M. Shetty, the representative of Official Liquidator and took away in the above said 51 trucks used for the said purpose" I further mentioned in the FIR that "On 16.12.03 while examining the facts, Shri Dhiraj Kumar, Security Supervisor and Shri Vijay Pal Singh, the Gunman informed that during 1.7.03 to 9.8.03 the representative of Centurian Bank took away the machineries of M/s. Al- Qahtani pipe and caoting terminal .....

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belonging to M/s. Al-Qahtani pipe and coating terminal and which they were knowing that it was not belonging to the Centurian Bank and intentionally for their personal benefit and without taking into the confidence the representative Shri S.M. Shetty of the Office of the Official Liquidator and without informing any thing, took away by cheating and by making fraud the machineries of M/s. Al-Qahtani pipe and coating terminal along with their CBL machineries of ₹ 4 crores appropximately in 5 .....

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made in Gujarati Language on 16.12.03. I am identifying the same which is accompanying the FIR I have already identified." 18. None of this even find a mention in the enquiry report given by Shri N. Chinnachamy. Moreover the enquiry by the office of the Official Liquidator itself began only on or about February/March, 2011 almost 8 years after that incident. This delay itself vitiates the enquiry. 19. The counsel for the Official Liquidator submitted that even if there is a delay it can aff .....

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tion is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings .....

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a and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. Now, let us see what are the factors in favour of the respondent. a. .............. b. .............. c. .............." 20. The counsel for the Official Liquidator also submitted that Shri Shetty was not given opportunity to cross examine Shri Kom, Shri Ansari, Shri Mohanan and Shri S.D. Patil because he had already admitted that he was guilty. The counsel relied upon .....

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and no prejudice has been caused to him. The fact is, the enquiry officer has called four gentlemen as witnesses and also relied on statement of three (one did not give his statement). We do not have the benefit to consider these statements as they are not available in records and proceedings before this court but at the same time it was necessary to make them available to cross examination by Shri Shetty. It should not be forgotten that Shri S.M. Shetty was in the post of a Group 'D' Pe .....

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, 16th April, 2011 and letter dated 6th January, 2004 Shri Shetty has confessed that there was lapse on his part in discharging his duties and apologised. For the statement on 23rd December, 2003, the enquiry officer has called four persons who were present while the statement was recorded as witnesses. None of them was made available for cross examination by Shri Shetty. As regards the statement dated 16th April, 2011 Shri Shetty by his letter dated 18th April, 2011 has stated that his signatur .....

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a in the matter of M/s. Otoklin Plants and Equipments Ltd. for delivery of leased machineries to Centurion Bank Limited through the Court Receiver, the representatives of Centurion Bank Limited, Court Receiver, the purchaser brought by Centurion Bank and their dismantling agent were present. During the delivery of machineries, on some occasions I have noticed that the representatives of Centurion Bank Limited trying to remove machineries not belonging to them and I have stopped the same. But it .....

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idator, if any machineries which are not belonging to them are removed, they threatened me that if I report such things to the Official Liquidator then they will put me liable for the same since I have also signed the delivery challans which were prepared by the representative of Centurion Bank, Mr. Mahesh Rane in his own handwriting. Since I have stopped and prevented them from lifting machineries other than of Centurion Bank Ltd., the machineries must have dismantled in my absence during early .....

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nce I have stopped the representatives of Centurion Bank Limited from dismantling and lifting machineries other than the machineries belonging to them in my presence. I have not reported the matter to the Official Liquidator. I also recollect that at the time of sending the loaded truck on the basis of delivery challan of used to furnished a zerox copy of letter no.F.No.FTZ/Otoklin/Offence/15/95-96/2884 dated 2.7.2003 and on the said letter the Supdt. of P and I marked to P.O. who had to write v .....

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and stopped them. The representative from the Court Receiver's office was also present and he was giving delivery to CBL's buyers. The role of Shri Shetty was only to sign the delivery challans which were also signed by customs officers. It appears that in his absence during early morning or in the night when he was not around, machineries were being dismantled and it was not possible to identify as to which belonged to CBL or which belonged to Al-Qahtani. Mr. Shetty has also stated that .....

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Shetty has stated when he asked for extra help to Official Liquidator and Deputy Official Liquidator it was refused as his job was only to sign delivery challans and the responsibility to see CBL machines were removed was that of the representative of the Court Receiver. There were security agents present, there were customs officers present. It was 50 acres plot and it was inside a custom bonded Free Trade Zone. None of these points which he has mentioned have been even dealt with by the enqui .....

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d the enquiry report was correct, the Official Liquidator has not explained as to why the maximum punishment of termination has to be given to Shri Shetty. The enquiry officer has also stated he has considered the past record of the employee and there are no extenuating circumstances warranting any lenient view. This is nothing but a bald statement. He has not mentioned what should have been there if he had to take a lenient view. Has there been such an incident involving Shri Shetty before? Not .....

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as the duty of the Official Liquidator to examine whether the enquiry officer has taken into account the other statements of Shri Shetty, the FIR lodged and the other circumstances, in which he was working etc. Without going into these details he has simply recommended the harshest punishment - removal from service. 26. The enquiry officer and disciplinary authority, viz., the Official Liquidator have relied upon the alleged confession by Shri Shetty but they have not considered as to why in the .....

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in the quantum of punishment but if it appears that the punishment being suggested is based on a report, which has not considered all facts and circumstances or it has relied on statement recorded by persons who the employee states have forced him to give that statement and those people who are not made available for cross examination when the punishment recommended is unreasonable, the courts generally interfere. The discretionary power has to be judicially exercised by giving cogent reasons. S .....

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while under suspension and after termination. He is shamed. When applied to public functionaries to recommend a punishment, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. He has to discern between right and wrong; and therefore, whoever, hath power to act is bound by the rule of reason and law. It is to be not arbitrary, vague .....

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make this assumption that the rights of Shri Shetty has been prejudiced due to unexplained delay. 29. The Apex Court in the judgment delivered as recently as on 16th December, 2015 in the matter of Prem Nath Bali vs. Registrar, High Court of Delhi and another Civil Appeal No.958 of 2010 in paragraphs 30 to 33 has stated as under:- "30) We are constrained to observe as to why the departmental proceeding, which involved only one charge and that too uncomplicated, have taken more than 9 years .....

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n cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee. 32) As a matter of experience, we often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of the inquiry proceedings have .....

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cluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year." 30. Taking into account the totality of the facts and circumstances, I am of the view that the recommendation of the Official Liquidator in his further report dat .....

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