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TMI Blog1996 (11) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No. 1060 of 1989 before this Court seeking a relief to quash the order of promotion dated 1.12.89 passed by respondent Company promoting illegally to Shri R.K. Goyal and Shri Magha Ram, both juniors to the petitioner. 4. In the aforesaid writ petition, in paragraphs 9 and 10, serious allegations of mala fide were made by the petitioner against the officers of Oil (India) Limited (hereinafter referred to as 'the Company'). It is alleged in paragraph 3 of the instant writ petition that the petitioner was pressurised to withdraw the aforesaid writ petition by Shri Deependra Sharma, Superintending Engineer (Inquiry Officer in the present case) and when he expressed his inability to yield to the pressure, a false case of misconduct was concocted against him alleging that he along with process server of the Court went to deliver the notices in S.B. Civil Writ Petition No. 1060 of 1989 to Shri Y.K. Mishra of the Accounts Department. Shri Y.K. Mishra went to Shri N.K. Bhatt, Superintending Accounts Officer to seek his advice to receive the said notices then the petitioner entered in his room and started shouting by using abusive language and made an attempt to assault the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts raised a preliminary objection to the effect that as the respondent-Company does not fall within the definition of State as contemplated under Article 12 of the Constitution of India, therefore, the instant writ petition is not maintainable. In support of his contention, he placed reliance on a decision rendered by the Apex Court in case of Chander Mohan Khanna v. National Council of Educational Research and Training and Ors. reported in (1992) ILLJ 331 SC. 11. It is to be noticed that earlier, the present writ petition was dismissed on 30.10.95 by the learned Single Judge of this Court on the ground of alternative remedy following ratio decidendi laid down by Full Bench decision of five learned Judges of this Court in Gopi Lal Teli (Supra) against which, a Special Appeal under the Rules of the Court was filed before the Division Bench. The Division Bench of this Court disposed of the special appeal on 17.4.96 with a direction to rehear the writ petition on merits. 12. In view of the aforesaid decision dated 17.4.96 rendered by the Division Bench of this Court, the argument raised by the learned Counsel appearing on behalf of the answering-respondents is not acceptable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings yet its principles are applicable to the writ proceedings for the reason that all the provisions including provisions of Sub-section (2) of Section 105 CPC are based on principles of natural justice and fair play. The principles emanating from the provisions envisaged under Sub-section (2) of Section 105 CPC intend to advance judicial propriety in the present hierarchal justice system and are also based on sound jurisprudence, therefore, even if the provisions of the aforesaid section are not applicable to the writ proceedings yet its principles can be extended to the writ proceedings. 17. Here in the present case, the answering-respondents were at liberty to file a Special Leave Petition under Article 136 of the Constitution of India against remand order dated 17.4.96 passed by Division Bench of this Court and if they failed to do so and allowed the decision rendered by the Division Bench of this Court dated 17.4.96 to attain finality then they are precluded from disputing the correctness of the decision rendered by the Division Bench of this Court on the ground of maintainability of the writ petition before me. The ratio of the decision rendered by the Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of instrumentality or agency of the Government is not limited to a Corporation created by a Statute but is equally applicable to a Company or Society and in a given case it would have to be decided on a consideration of the relevant factors whether the Company or Society is an instrumentality or agency of the Government so as to come within the meaning of Article 12 of the Constitution of India. A juristic entity which may by State for the purpose of Part III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. 22. In the instant case, it goes without saying that the Oil (India) Limited is a Company of Central Government and its shares are not open for the private individuals. Its annual Budgets require approval of the Parliament. The financial assistance from the State is so much as to meet the entire expenditure of the Oil (India) Limited and the share Capital of the Company is completely held by the Central Government, which is clear indication of the Company being impregnated with governmental character. It is important to mention that the Company enjoys monopoly status which is conferred by the Central Government and also prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there is no prohibition for removal or dismissal being ordered by an authority sub-ordinate to the appointing authority. Learned Counsel for the respondents reiterated paragraph(n) of the reply. 27. It is pertinent to mention that in support of the fact that the power to take disciplinary action against the petitioner has been conferred on the departmental head i.e. Superintending Engineer (Drilling) and he was competent to take disciplinary action against the petitioner, no material has been brought on record. The answering-respondents failed to produce any Standing Order of the Company or any Model Standing Order in support of their aforesaid contention except reiterating that since Article 311 of the Constitution is not applicable to the respondent-Company, therefore, there is no explicit bar for passing dismissal order against the petitioner by an Authority subordinate to the appointing authority i.e. General Manager. 28. It is also argued in alternative on behalf of the answering-respondents that as the General Manager of the respondent-Company on appeal has considered and affirmed the order of dismissal passed by the Superintending Engineer (Dilling), therefore, it sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as cross-examined all the witnesses produced before the enquiry officer and he has not suffered any prejudice due to non-supply of statements of witnesses examined behind his back. Suffice it to say in this regard that the enquiry officer and now answering respondents incorrectly presumed that the petitioner was not entitled to have the copies of the statements of the witnesses examined by the Administration ex parte before cross- examining them. Denial of request of the petitioner by the enquiry officer to make available copies of the statements which were recorded ex parte behind his back, has caused serious prejudice to him. As a matter of fact, cross-examination is only a potent weapon in the hands of delinquent employee to demonstrate that the witnesses examined by the administration are not witnesses of truth. A delinquent employee by effective cross examination can successfully demolish veracity of the witnesses examined by the administration in support of his delinquency leading to his dismissal or removal. A meaningful cross-examination by a delinquent employee is not possible unless examination-in-chief of the witnesses of the administration are recorded in his presence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural justice and fair play. Even if the standing order or model standing order are silent on the aforesaid issue yet justice of common law will supply omission of the standing orders or model standing orders or statute as the case may be and a delinquent employee will be entitled to summon and examine his defence witnesses provided the Enquiry officer is satisfied about the relevancy of statements of such defence witnesses. In my considered opinion the evidence during the disciplinary proceedings should always be recorded in presence of the delinquent employee and he should always be given an opportunity to cross-examine the witnesses produced by the administration in support of his delinquency. Further where there are previously recorded statements of the witnesses of administration, the delinquent employee must be furnished copies thereof if he wants to cross-examine the witnesses of administration. After closer of departmental evidence, the enquiry officer even if the statute, rules, standing orders or model standing orders as the case may be, are silent on examination of defence witnesses yet as a part of principles of natural justice, the delinquent employee should be afforde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the part of the Enquiry Officer to have examined the process server when he was readily available for examination even as a defence witness. The Enquiry Officer has no justification whatsoever to close the enquiry without examining the process server who was an independent eye witness to the accusation made against the petitioner. It would be pertinent to mention here that the process server Shri Ram Singh has filed his affidavit before this Court stating in paragraph 3 of his deposition that he has gone to the office of the Oil (India) Limited situated at Residency Road, Jodhpur with six notices of the respondents residing at Jodhpur received from Rajasthan High Court, Jodhpur in S.B. Civil Writ Petition No. 1060 of 1989-Deepak Kumar v. Chairman-cum-Managing Director, Oil (India) Limited for 13.7.89 which were assigned to him. It is also stated in paragraph 4 of his deposition that when he went to serve notices on the respondents at the address mentioned in the notices, he was not accompanied with any one. It is also deposed in paragraph 5 that he did not know the petitioner before 15.7.89 when he met him for the first time with the certified copies of served notices and enquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussed in detail in the preceding paragraphs is against the principles of natural justice and fair play and the petitioner has been denied reasonable opportunity of being heard therefore, the order impugned dated 23.1.90 Annx.29 and the order dated 19.4.90 Annx.33 to the writ petition are liable to be quashed. 42. Learned Counsel appearing on behalf of the respondents urged before me in feeble voice that as in the present case, where the employer has lost confidence in the petitioner-employee instead of reinstating him in service, compensation may be awarded to him. In support of his contention, he placed reliance on a decision rendered by the Apex Court in case of Steel Authority of India Limited v. R.B.Rao and Anr. reported in 1991(2) SCC (Suppl) 339. Facts of the case of Steel Authority of India (supra) are not applicable to the facts and circumstances of the present case, especially when, the management miserably failed to establish existence of delinquency alleged against the petitioner. 43. I am of the view that if the argument of the learned Counsel for the respondents is accepted and instead of re-instating the petitioner, a compensation is awarded to him, then it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employee of public company on the ground of provincialism, casteism, nepotism, religious fanaticism or any other irrelevant consideration. To my mind, these dangers may be imaginary in the private sectors as in such private sectors profit orientation is deep seated leading to personal gain or loss to managerial cadre which can be achieved through meritorious and efficient workers alone whereas such dangers are real in public sectors where perks to be paid to the disciplinary authorities are safe and they have to suffer nothing. 46. Suffice it to say in his regard that in the same business activities, the private sectors are earning crores of rupees yearly profits with less capital and less workmen whereas public sectors in the same business activities with more capital and more workmen are running into losses of crores of rupees per year. It is to be noticed that the trend of huge losses in some of the public sectors went arrested during emergency in the year 1975-76 and 1976-77. Reasons are not far to seek but judicial restraint does not permit me to observe more than necessary on such sensitive issues affecting national economy. 47. The question about payment of compensati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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