- (1.) PETITIONER has challenged the order dated 6.11.2003 (Annexure -6) issued by the respondent no. 4, whereby the petitioner's services were terminated. Challenge is also against the orders dated 7/ 8.10.2004 (Annexure -7) passed by the Appellate Authority (respondent no. 3), by which the petitioner was informed that his appeal has been dismissed. The petitioner has prayed for issuance of an appropriate writ for quashing the aforementioned orders and also for issuance of a direction commanding upon the respondents to re -instate the petitioner in services with full back wages, on the ground that the order of termination of the petitioner's services and the order of the Appellate Authority, are illegal and against the principles of natural justice.
(2.) FACTS of the petitioner's case in brief are as follows: The petitioner was employed as a Security Guard and was posted at Karo -1 Open Cast Project at Bermo in the district of Bokaro. On 11 .12.1995 he was posted in the third shift from 10.00 PM to 6.00 AM at the residence of the Project Officer, Karo -1 alongwith another security guard namely, Shri Ram Nath. In the evening hours of 11.12.1995 a jeep bearing registration no. BRY 2985 which was used mostly by the Sales Officer Shri B.K. Banerjee and Electrician Shri Dey and seldom by the Project Officer, was parked on the road in front of the quarter of the Project Officer. After completing his rounds in the early hours of the next morning at about 4.00 AM, the petitioner noticed that the jeep which was parked in front of the residence of the Project Officer was missing. On the vehicle found to have been stolen, a Disciplinary Proceeding was initiated against the petitioner on the charge that "while the petitioner was on duty on 11.12.1995 in the third shift at the official residence of the Project Officer/Agent, Karo -1, a jeep bearing registration no. BRY 2985 was stolen away from the petitioner's place of duty". The petitioner was put under suspension and a Departmental Proceeding was initiated against him on the aforesaid charges. Petitioner contested the charge by filing his written statements, denying and disputing his responsibility for the theft of the vehicle. The stand taken by the petitioner in his defence was that on being posted as a Security Guard at the official residence of the Project Officer, petitioner's duty was confined only for the security of the official residence and he was not assigned with additional duty of guarding the vehicle which was parked outside the residence on the road at a distance of 20 -25 meters. In fact, when he came to the place of duty in the night shift, he found that the vehicle stood parked on the road side and left by its driver facing towards the slope of the road. Further stand of the petitioner was that as per the regular practice, the vehicle was never kept in the garage of the quarter of the Project Officer since it used to be kept, as per usual practice, in the GM's office. On conducting the inquiry in presence of the petitioner, the Inquiry Officer in his report had recorded his findings that charge against the petitioner was not fully proved. It was also observed by the Inquiry Officer that it was not established in the inquiry that the key of the vehicle was kept with the petitioner or that the petitioner posted in the shift duty was the custodian of the key of the vehicle. Inquiry report was submitted by the Inquiry Officer to the Disciplinary Authority. A copy of the inquiry report was served upon the petitioner also. On receipt of the inquiry report, the petitioner has submitted his second show -cause reply to the Disciplinary Authority. After considering the second show -cause reply, the Disciplinary Authority vide the impugned order, terminated the petitioner's services. The petitioner preferred an appeal on 29.11.2003 before the appropriate Appellate Authority challenging the order of his dismissal. After about 11 months thereafter, the petitioner was informed by the impugned order dated 7.10.2004, that his appeal was rejected. The grounds advanced by the petitioner challenging the impugned orders are, i. That, the impugned order as passed by the Disciplinary Authority, is without application of mind and without considering the findings of the Inquiry Officer that charge against the petitioner have been found to be only partly proved and not fully proved, as claimed by the Disciplinary Authority. ii. That, the Disciplinary Authority has apparently differed from the findings of the Inquiry Officer by contending that charge was fully proved against the petitioner. Under such circumstances, it was incumbent upon the Disciplinary Authority to assign reasons as to why it has differed from the findings of the Inquiry Officer, if it had contemplated to impose severe punishment of termination of services upon the petitioner. iii. That, the findings of the Inquiry Officer is perverse in as much as, even though Inquiry Officer has recorded his finding that no evidence could be established that the petitioner was also assigned additional responsibility for guarding the company's property lying outside the place of the official residence of the Project Officer. This fact was ignored by the Disciplinary Authority. iv. That, the petitioner posted in the shift duty was not the custodian of the key of the vehicle and further, it could not be established that the key of the vehicle was kept with the petitioner, the Inquiry Officer could not have recorded a finding that charges against the petitioner was even partly proved. v. That charge on the basis of which Disciplinary Proceeding was initiated against the petitioner, does not accuse the petitioner of having committed any misconduct or dereliction of duty and therefore, charge cannot be said to be proved even in part against a person for negligence in a case of non -authorized act.
(3.) A counter -affidavit has been filed on behalf of the respondents, denying and disputing the entire claim of the petitioner. The stand taken by the respondents is that the present writ application is not maintainable in as much as, this court in exercise of its powers under Article 226 and 227 of the Constitution of India, cannot be expected to act as a Court of Appeal to interfere with the findings recorded by the Inquiry Officer and to re -appreciate the evidence led in the Departmental Proceeding. It is explained that the petitioner alongwith another Security Guard was posted in the night shift duty at the official residence of the Project Officer. Though, the vehicle was parked at the road outside the residence, but the same was within the knowledge of the security guards including the petitioner and the key of the vehicle was also entrusted to the petitioner with instruction that he should hand over the key to the driver when he reports for duty. Though, the petitioner's duty was to guard the official residence of the Project Officer, but he cannot shirk his responsibility to keep watch on the property of the respondent Company which is kept adjacent to the official residence of the Project Officer. Had the petitioner been alert in discharging his duty, the theft of the vehicle could have been averted. The petitioner was therefore found by the Inquiry Officer to be non -alert in performance of his duty. The further stand of the respondents is that the petitioner was served with a copy of the inquiry report alongwith the second show -cause notice, to which the petitioner had responded by submitting his written statements. The Inquiry Officer did find the charge against the petitioner as partly proved and accepting such findings of the Inquiry Officer, the Disciplinary Authority had imposed punishment upon the petitioner. The petitioner filed an appeal against the order of the Disciplinary Authority, but his appeal was rejected.;