DIBESH CHANDRA CHOUDHURY Vs. O N G C DEHRADUN

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India challenging the order dated 28/29.9.81 of the Project Manager, Oil & Natural Gas Commission, Agartala, suspending the petitioner in contemplation of disciplinary proceedings and the order dated 17/ 21.2.83 of the Deputy General Manager (T-C), Oil & Natural Gas Commission, Agartala, dismissing the petitioner from service on the charge of mis-conduct.

(2.) The facts briefly are that while the petitioner was working as medium vehicle driver under the Oil & Natural Gas Commission(for short "ONGC"), in its Tripura project, an FIR was lodged by the Transportation Officer, ONGC, Tripura Project, with the Officer-In Charge, Amtali Police Station. Amtali, alleging that on 17.09.81 at 6.30 a.m., the Ambassador Car No.ASW-1849 of the ONGC was taken . out by the petitioner for doing the duties of Rakhia Drilling-in-Charge and the car was in shaded at 10.20 a.m. But again at 10.30a.m, the petitioner took out the said vehicle without informing the control room and without making any formal entry in the control room register and the petitioner had not reported back along with the car to the control room and has remained absent. Thereafter on 28/29.09.81, the Project Manager, ONGC, Tripura Project, Agartala, placed the petitioner under suspension with immediate effect in contemplation of disciplinary proceedings. Thereafter this disciplinary proceedings were initiated against the petitioner under Memorandum dated 10/ 17.11.81 of the Project Manager, ONGC, Tripura Project, Agartala, on the charge of misconduct. Simultaneously the police also completed investigation on the aforesaid FIR dated 19.09.81 and a charge-sheet was filed against the petitioner in GR Case No. 1849/81. Pursuant to the said order dated 10/17.11,81 initiating disciplinary proceedings against the petitioner, an enquiry was conducted by the Enquiry Officer and after receipt of the report of the Enquiry Officer, a show cause notice dated 28.12.81 was issued to the petitioner to show cause as to why he should not be dismissed from service. The petitioner submitted his reply dated 14.1.83 but he was dismissed from service by the impugned order dated 17/21.02.83 of the Deputy General Manager, ONGC, Tripura Project, Agartala, on the finding that he had absconded with the Commission's vehicle and had remained absent till 24.09.81 and had committed misconduct. Aggrieved, the petitioner filed an appeal before the General Manager, ONGC, Central Region Business Centre, Calcutta by the petitioner didnot receive any communication from the appellate authority about the disposal of his appeal. In the meanwhile, the petitioner was also prosecuted in the criminal case but acquitted by judgment dated 26.07.83 of the Judicial Magistrate, First Class, West Tripura, in the aforesaid GR Case No. 1849/81. By letter dated 25.08.83 by the petitioner informed the Deputy General Manager, ONGC, Tripura Project, Agartala, about the said judgment in the criminal case and requested him to reinstate him in service, but the petitioner didnot receive any reply. He finally served a demand notice dated 16.3.89 through registered post with A/D on the respondents and when he did not get any response he filed the present writ petition under Article 226 of the Constitution for appropriate relief.

(3.) At the hearing of this Civil Rule, Mr. D.K. Biswas, learned counsel for the petitioner, submitted that since the criminal proceedingss were pending against the petitioner and the disciplinary proceedings were in initiated on the same set of facts, the petitioner was unable to defend himself in the enquiry conducted in the disciplinary proceedings lest he may be prejudiced in the criminal proceedings. He submitted that since the petitioner has been acquitted of the charge against him in the criminal case which were based on the same set of facts as in the disciplinary proceedings, the impugned order of suspension as well as the impugned order of dismissal passed in the disciplinary proceedings are liable to be quashed, In support of this submission, he cited before the Court an unreported judgment of the learned single Judge of this Court in the case of Shri Promode Rn. Das Vs The United Bank of India and others, Civil Rule No. 127/89.He also relied on the judgment of the Supreme Court in the case of Pritam Singh Vs The State of Punjab, AIR 1956 SC 415, in which the Supreme Court has held that a verdict of acquittal pronounced by a competent Court is binding and conclusive in all subsequent proceedings between the parties to the adjudication. Mr. Biswas submitted that so far as the charge of absconding with the vehicle is concerned, since the criminal Court has given a finding exonerating the petitioner of the said charge, the said finding was binding on the ONGC and no punishment could have been imposed on the petitioner on the said charge. What remained, therefore, was only the charge of unauthorised absence of seven days and for such minor mis-conduct, the punishment of dismissal was too harsh and disproportionate. In support of his submission Mr. Biswas cited the judgment of the Supreme Court in the case of Ranjit Thakur Vs Union of India and others, AIR 1987 SC 2386, in which the Supreme Court has held that although the question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial, the sentence has to suit the offence and the offender and should not be vindictive or unduly harsh and it should not be so disproportionate to the offence as to shock the conscience of the Court. In the peculiar circumstances of the present case, therefore, the Court should quash the impugned order of dismissal passed by the disciplinary authority and direct reinstatement of service. Alternatively, Mr. Biswas argued that it has been held by the Supreme Court in the case of Workmen Vs. Bharat Fritz Werner Ltd. (1990) 3 SCC 565, that in case the employer is not inclined to take back the employee for want of trust and confidence in him and the Court felt that it will not be desirable and expedient to direct reinstatement, the Court can direct the employer to compensate the employee monetarily in lieu of reinstatement for loss of future employment.