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TMI Blog2000 (5) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... shi (Sn. Asst.) your superior officer instructed you to operate the Cop Winding M/c. No. 10 but inspite of his instructions you did not deliberately comply and refused to obey the said order. Moreover when Shri P.K. Bakshi wanted to know the reasons for which you did not operate the M/c No. 10, you gave arrogant and insolent reply in a very rough manner in presence of some other workmen and you said that I will not operate the M/c as per your order. I will operate the M/c according to my own choice and if you do not allow me to operate the M/c as per my choice, I will assault you in the department . Again at 2 P.M. when you resumed your duty, you were instructed to operate the said M/c No. 10 by your superior Shri Tapan Das (Assistant) but you repeated your same conduct of- denying to comply with the reasonable instructions. Further, when under instruction of Shri P.K. Bakshi and Tapan Das Shri Kurban MK/2785 counselled you to comply with the said instructions, you abused the said Shri Kurban and also assaulted him inside the department in presence of other workers. You are charged with the above offence. which is to be treated as misconduct under Rule 14 (c) (i) and (viii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in consideration of your past record of misconduct, the punishment warranted in terms of the Standing Orders of the company is that of dismissal from the Company's service. You are therefore dismissed from the services of the company with effect from August 1, 1983. You are advised to collect all your dues, if any from the Mill Security Office on any working day with prior intimation to the Management. The said order of dismissal was issued by the Manager of the Corporation. From paragraph 8 of the affidavit-in-opposition filed on behalf of the respondents No, 2 and 3 it appears that Shri P.K. Bakshi, Senior Assistant of the Corporation was present at the enquiry all along, first as a witness and thereafter as company's representative. The respondents No. 2 and 3 in their affidavit-in-opposition in paragraph 8, inter alia, stated: Shri P.K. Bakshi, Senior Assistant of the Company was also present at the enquiry all along, first as a witness and thereafter as Company's representative. It appears from the charge-sheet that Shri P.K. Bakshi, Senior Assistant issued the charge-sheet against the workman. 4. Mr. Dipak Kumar Ghosh, advocate as Amicus Curiae ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here there is no Manager the employer is authorised to initiate departmental proceeding. The said Order 14 (e) laid down that a workman should not be dismissed without the approval of the Manager of the establishment and where there is no Manager, of the employer. There is no expressed or implied provision in the said Order 14 (e) which prohibits Senior Assistant to issue charge-sheet. If it is construed that no officer below the rank of Manager is authorised to initiate a disciplinary proceeding then Court has to re-write the said Order 14 (e), which the Court cannot. In my opinion, an officer can initiate a disciplinary proceeding against his subordinate workman. There is no dispute that the petitioner, at the material time, was a workman subordinate to Senior Assistant who issued the charge-sheet. Under these circumstances I hold that the charge-sheet against the petitioner was issued by a competent officer. Re: Points No. 2 and 3. 6. It is apparent on the face of the record that on April 15, 1982 the petitioner was directed by the Senior Assistant to operate heavy Cop-Winding Machine and the petitioner expressed his inability as per advice of the doctor. On April 17, 1982 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rishnan, wherein Supreme Court in paragraph 19 of the reported decision observed as follows: It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors., Cal.L.T. 1988 (1)HC 431 wherein a single Bench of this High Court in paragraph 8 of the reported decision held - Turning back to the facts and circumstances of the case as also to the respective submissions of the learned advocates for the parties, it is proper for the Court to examine them. It is an admitted fact that the Presenting Officer appeared as witness. Mr. De, learned advocate could not justify the action of the authority in adducing the Presenting Officer as a witness in the departmental proceedings. It should be borne in mind that the criterion should be that the prosecutor cannot be witness applies in a departmental proceedings. The act of the Presenting Officer in having his own testimony recorded in the case beyond any shadow of doubt evidences a state of mind which clearly demonstrates a considerable bias existed. It is completely foreign to the fundamentals of the Service Rules and Service jurisprudence that a Presenting Officer should be allowed to participate as witness. Whatever could not be said otherwise before the Enquiry Officer was sought to be filled up by the deposition of the Presenting Officer as a supplemental to the case of fee prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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