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IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11-8-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR Writ Petition No.8306 of 2006 P.S.Neelakantan ... Petitioner Vs. 1. Madras Fertilizers Ltd., (A Govt. of India Undertaking) Manali, Chennai 600 068 2. The Chairman & Managing Director, Madras Fertilizers Ltd., Manali, Chennai 600 068. ... Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the Chairman and Managing Director, the second respondent herein in his PF.1235, dated 21.12.2005 and quash the same. For Petitioner : Mr.R.Thiagarajan, Senior Counsel for Mr.M.Muthappan For Respondents : Mrs.Rita Chandrasekar for M/s.Aiyar & Dolia O R D E R
The prayer in the writ petition is to quash the charge memo dated 21.12.2005, issued against the petitioner.
2. The brief facts necessary for disposal of the writ petition are as follows:
(a) The petitioner was the Executive Director (Technical) of the first respondent Company, a Government of India Undertaking, which produces fertilizers. The petitioner is functioning with the assistance of various department heads viz., Deputy General Manager (Production Front End); Deputy General Manager (Production Back End); Joint General Manager (Maintenance); Deputy General Manager (Technical Services) and Deputy General Manager (Materials).
(b) The job responsibilities of each of the persons in different levels are also defined. The Deputy General Manager (Production Front End) has the responsibility of operation of the plant and machinery to achieve the desired level of production as well as to maintain quality of products. The Deputy General Manager (Production) interacts with his counter part like the Deputy General Manager (Technical services) and Deputy General Manager (Maintenance) for such purpose. The responsibility of the Executive Director (Technical) is also well defined.
(c) The impugned charge memo was issued against the petitioner alleging that on 29.12.2004, 5.1.2005 and 10.1.2005 there had been instances of "shut down" of the factory for which one Suresh John, Deputy Manager (Corporate Planning) submitted his report to the Chairman and Managing Director on 7.3.2005, based on which the petitioner has to offer his comments on the shut down for the said three occasions. Petitioner submitted his comments and stated that the first shut down on 29.12.2004 was not due to any human error; the second shut down on 5.1.2005 was at the instance of the officials of the Pollution Control Board to avoid deterioration in the environment; and the third shut down happened on 10.1.2005 was due to human error and pointed out the persons who were responsible for the shut down.
(d) It was also pointed out that on 10.1.2005 the Chairman and Managing Director came to the site for inspection immediately after the shut down. Based on the said inspection action was initiated against the shift Engineer by name Thirumoorthy, for his lapse for the shut down on 5.1.2005 and no action was taken against any person for the third shut down on 10.1.2005.
(e) According to the petitioner on 7.3.2005 the Deputy Manager (Corporate Planning) viz., Suresh John while attempting to plug the leakage in one of the valves meddled with the said plant and to avoid further leakage there was a shut down. The same was recorded on 8.3.2005.
(f) The petitioner submitted a report to the Chairman and Managing Director on 10.3.2005. The President of the Madras Fertilizers Limited Officers Association wrote to the Chief Vigilance Officer about the shut down dated 7.3.2005. However, the Chairman and Managing Director had given a clean chit by order dated 11.3.2005 to the said Suresh John.
(g) In September, 2005 another Vigilance Officer took charge. On 15.9.2005 the New Chief Vigilance Officer requested the petitioner to send a report regarding the shut down dated 7.3.2005 and on the same day the Chairman-cum-Managing Director requested the petitioner to make a draft report and give the same by 25.9.2005, pursuant to which the petitioner made a report on 3.10.2005 and sent the same to the Chairman-cum-Managing Director, who was on leave on the said date.
(h) On 7.10.2005 the Chief Vigilance Officer visited the factory and asked about the report called for by him. Petitioner gave a copy of the report dated 3.10.2005 which was addressed to the Chairman-cum-Managing Director. On return from leave on 10.10.2005, the Chairman-cum-Managing Director questioned the petitioner as to how he sent the report directly to the Chief Vigilance Officer and threatened the petitioner. On 2.11.2005 the Chairman-cum-Managing Director wrote to the Chief Vigilance Officer stating that the report given by the petitioner is not factually correct and the Chief Vigilance Officer need not take any action on the basis of the petitioner's report dated 3.10.2005. He further stated that he is separately examining the negligence committed by the officers for initiating disciplinary action.
(i) On 11.11.2005 the Chief Vigilance Officer sent a communication to the Chairman-cum-Managing Director to take disciplinary action against three officers, who were found responsible for the shut down. On 9.5.2005 the Chairman-cum-Managing Director sent letters to those three officers and requested them to offer their comments, who also gave their comments during the middle of December, 2005. Thereafter the impugned charge memo was issued to the petitioner.
(j) On 29.12.2005 the Chief Vigilance Officer has written to the General Manager (Personnel and Administration) with copy of the memo issued to the petitioner and expressed his concern about the CMD's insistence that all Vigilance report to the Ministry and the Chief Vigilance Commission be routed through him and the Vigilance Officer should work only as assistant as per his instructions and the departmental heads should not provide any access to the records to the Vigilance Department without CMD's permission and also requested to issue necessary amendment in the instructions of the Company in that regard.
(k) On 17.1.2006, the CMD passed an order against the recommendation of the Chief Vigilance Officer dated 11.11.2005 requesting initiation of disciplinary action against one R.Srinivasan, Manager (Maintenance), K.Sureshkumar, Deputy Manager and J.Srinivasan, Technical Assistant. The said recommendation was ignored and contrary to the instructions of the Chief Vigilance Officer, the impugned charge memo was issued against the petitioner on various grounds.
(l) The main contentions raised are that the CMD who is the appellate authority, has called for remarks from the three officers even though General Manager (Personnel and Administration) is the disciplinary authority. On 17.1.2006 the report of the Chief Vigilance Officer was rejected and the CMD gave a clean chit to the three officers and initiated action against the petitioner, against whom no recommendation was made by the Chief Vigilance Officer. For the earlier shut downs viz., on 5.1.2005 and 10.1.2005, proceedings were initiated against others, who were found responsible and the proceedings were also finalised and therefore initiating action against the petitioner even for those shut downs is clearly motivated. The impugned charge memo was issued at the fag end of the service of the petitioner, who is to retire by 31.8.2006.
3. The respondents have filed counter affidavit by contending as follows:
(i) The MFL is a Public Sector Undertaking under the Ministry of Fertilizers, Government of India. Disciplinary action against 54 officers and 34 non-supervisory employees for their acts of negligence and lack of devotion to duties were initiated within a period of three years.
(ii) The primary duty of the Executive Director (Technical) was to manage and supervise the activities of the plant consisting of operations, production, planning, maintenance, Engineering services and process automation departments. He is to lead, guide and co-ordinate the activities of those departments to achieve better productivity and profit. The petitioner is responsible for the compliance of the provisions for safety under the Factories Act, Pollution Control under the Environment and Pollution Act and production of fertilizers according to the standards prescribed by the Fertilizer Control Order. He is required to obtain daily reports on the performance of the departments and submit the same to the second respondent. He has to submit periodical reports to the Board of Directors on the performance of the plant.
(iii) The petitioner failed to discharge his duties initially as General manager Plant and later as Technical Director. He failed to submit timely reports on the performance of the departments of the second respondent. There were three repeated shut downs of Urea Plant was on 29.12.2004, 5.1.2005 and 10.1.2005 for various reasons.
(iv) Disciplinary actions were initiated not only against the petitioner but also against Shift Engineer viz., Thirumoorthy, who was primarily responsible for some of the lapses. Disciplinary actions were also completed against other employees, whose acts of negligence have attributed to production and pecuniary loss.
(v) It is further stated in the counter affidavit that even though 7.3.2005 incident is stated, action was initiated against the petitioner through the impugned charge memo not for the said incident and only for the earlier instances i.e., from 29.12.2004 to 10.1.2005. The petitioner submitted his explanation for the charge memo which was carefully considered.
(vi) The management having not satisfied with the explanation submitted by the petitioner, ordered enquiry by appointing two officers as Enquiry Officers. No allegation is made against the Enquiry Officers. The writ petition filed challenging the charge memo is premature and only after final order is passed the same can be questioned, if the petitioner is aggrieved.
4. Heard the learned Senior Counsel appearing for the petitioner and the learned counsel for the respondents.
5. The point for consideration is whether the charges framed against the petitioner are maintainable and the respondents can be permitted to proceed with the charges, as the petitioner was allowed to retire on 31.8.2006 without prejudice to the charge memo.
6. The charges framed against the petitioner through charge memo dated 21.12.2005 are as follows:
"1. You did not prevent draining the contents of F.211 First Absorber in Urea Plant. The Absorber was drained more than 6 times in third shift, leading to pollution.
2. You permitted operation of K.111 Compressor above 370 amps as against the normal continuous current of 265 amps on December 28, 2004 in Urea Plant.
3. You permitted operation of K.111 above its full load on December 27, 2004.
4. You allowed storage of ammonia in the Ammonia Storage Tank G.122, beyond high alarm level.
5. You permitted operation of Urea KD 827 Carbmate pump beyond recommended speed, resulting in repeated packing failure.
6. You permitted operation of Reactor "A" with very low mole ratio.
7. You permitted start of Urea plant on January 6, 2005 with contaminated Ammonia from G-122.
8. You permitted start of Urea plant on January 10, 2005 without replacing the F.211 Pressure Relief Valve Upstream Rupture Disc.
9. You permitted start of Urea Plant on January 10, 2005 with contaminated ammonia from G.122.
10. You failed to submit report on the failure on December 29,2004, January 5, 2005 and January 10, 2005.
11. You failed to submit report on pollution on January 6, 2005."
7. It is admitted in the counter affidavit in paragraphs 18 that the second respondent has not initiated action against the petitioner for his dereliction of duty on 7.3.2005 and the impugned charge memo pertains to the petitioner's failure to discharge his duties from 29.12.2004 to 10.1.2005. Thus, the controversy in issue is whether the charges for the shut downs on 29.12.2004, 5.1.2005 and 10.1.2005 can be proceeded further or not.
8. The shut downs mentioned in the charge memo are dated 29.12.2004, 5.1.2005 and 10.1.2005. The learned Senior Counsel appearing for the petitioner and the learned counsel for the respondents fairly submitted that no one can be blamed for the shut down on 29.12.2004 as it was not due to human error. Therefore the two shut downs happened on 5.1.2005 and 10.1.2005 are the real allegations made against the petitioner.
9. For the shut down dated 5.1.2005 a charge memo was issued to one C.Thirumoorthy, Assistant Manager, in-charge of panel (Urea Plant) in the second shift on 5.1.2005. In the said charge memo, a copy of which is filed in typed set of documents filed by the respondents at page No.1, it is clearly stated that the said C.Thirumoorthy was responsible to monitor the operation of parameters and he failed in his duties viz., to take necessary action to contain the level, leading to entrainment of Absorber effluent to Ammonia Storage Tank G-122, which resulted in shut down of urea plant. From the reading of the above charge memo it is evident that except the said C.Thirumoorthy, no allegation against any other person or officer was made including against the petitioner. Departmental enquiry was conducted against the said Thirumoorthy and he was punished for his dereliction and he was imposed with punishment of reversion to the position of Senior Production Engineer in E1 scale with basic pay reduction with further condition that he will become eligible for next promotion on completion of five years from the date of issue of the order of punishment. The said punishment was imposed by order dated 24.11.2005. In the appeal filed by the said Thirumoorthy, the said punishment was reduced by stating that he would become eligible for next promotion on completion of one year from the date of issue of the punishment order. The appellate authority passed the order on 5.12.2006.
10. It is to be noted that for the shut down dated 5.1.2005 another charge memo was issued against one M.Shnmugasundaram, who was the Technical Assistant in charge of Compressor section in Urea Plant on 5.1.2005 (first shift) for his failure to adopt the normal set of procedures for stopping and handing over the carbonate pump to maintenance, thereby the Company incurred major pecuniary loss as the plant could be brought back to production only on 12.1.2005. The said M.Shanmugasudaram submitted his explanation and pleaded for pardon. The respondents magnanimously accepted the same and further proceeding was dropped on 15.9.2005 by giving advise to him that he should be more careful in his future assignments. One M.A.Rafiq, Senior Technical Assistant in-charge of field operations Synthetic Section in Urea plant in the second shift (14 hours to 22 hours on 5.1.2005) was also issued with charge memo for the said shut down by memo dated 28.1.2005.
11. Thus it is clear that for the shut down happened on 5.1.2005, the above said C.Thirumoorthy was solely held responsible and he was imposed with punishment. No accusation was made against the petitioner till the punishment was imposed against the said C.Thirumoorthy on 13.10.2005. In view of the said finding, initiation of action against the petitioner for the very same shut down on 5.1.2005 belatedly, merely because he was a superior Officer at that time without any material is not proper. If really the petitioner was also responsible in his capacity of superior Officer, nothing prevented the respondents from initiating action against the petitioner also along with the said C.Thirumoorthy or with other persons already proceeded. On the contrary, the charge against the said C.Thirumoorthy was that he was solely responsible for the shut down on 5.1.2005. The said stand taken by the respondents in the impugned charge memo is self-contradictory of their stand.
12. For the shut down dated 10.1.2005 one B.Muralimohan, Deputy Manager, in charge of Urea plant in the second shift on 10.1.2005 for field operations was issued with charge memo dated 28.1.2005 stating that due to his negligence in not taking corrective action after receiving the analysis and also not informing the Plant Manager about the contamination, has caused delay in start up of Urea Plant for about ten hours. The said B.Muralimohan submitted his reply and prayed for dropping of charges on 8.2.2005. Enquiry was conducted and it was held that he was not responsible for the delay in start up of Urea plant. The said report was filed on 29.4.2005.
13. Thus it is evident that even for the shut down dated 10.1.2005, person who was directly in charge was proceeded stating that he was primarily responsible for the shut down and finality was reached. At this stage the issuance of charge memo against the petitioner, who was the Executive Director (Technical) at the fag end of his service cannot be sustained for more than one reason. It is not the case of the respondents that during the enquiry conducted against other persons against whom action was initiated the petitioner's culpability was in any way established. If the petitioner was also to be proceeded for the shut down dated 5.1.2005 and 10.1.2005, the respondents could have initiated action against the petitioner along with other persons, who were found responsible according to the respondents and who were proceeded for their dereliction of duties for the said shut downs.
14. Service rules of the Madras Fertilizers limited was also produced before me by the learned counsel for the respondent. Policy No.4.8.0 reads as follows:
"4.8.0 Common Proceedings Where two or more employees are concerned in a case, the Authority Competent to impose a Major Penalty on all such employees may make an order directing that Disciplinary Proceedings against all of them may be taken in a common proceedings and the specified Authority may function as a Disciplinary Authority for the purpose of such common proceedings."
From the perusal of the above service rule also it is evident that common proceedings is to be initiated against the employees or persons responsible for any specific delinquency, if more number of officers are involved in dereliction of duty.
15. The allegation of official bias against the petitioner is also established. The Chief Vigilance Officer based on the report submitted by the petitioner on 3.10.2005 for the shut down dated 7.3.2005, concluded as follows:
"Vigilance Analysis From the records provided to and perused by the Vigilance Deptt., it is observed that:
1. The Committee (of which Shri K.Suresh John is a member) has only an advisory role on Plant "problems of specific nature" and has no executive mandate.
2. The risky decision 'to open the vent valve and close it' to arrest the leak was not conveyed, before execution, to any of the Plant personnel concerned, viz., ED (Technical), DGM (Production), Chief Manager (Nitrogen), Plant Manager (Urea) and the Shift-in-Charge-Urea Plant who were the authorized people to clear/carry out the recommendations of the Committee.
3. The recommendations of the Committee were not being minuted and circulated to the authorities concerned for necessary information and approval before execution. (In the absence of such record of minutes, the contradictory claims by the JGM (Maintenance) and the Manager (Maintenance) on the one hand and the DGM (Production), also the Chairman of the Committee, on the other as to the knowledge of the decision taken by S/Shri K.Suresh John and R.Srinivasan could not be verified.)
4. Though a member of the Technical Committee Shri K.Suresh John did not have the mandate to directly instruct the Plant Personnel, which he did. Therefore, he had acted unauthorisedly in as much as he, throwing caution to the wind, directly instructed the Technical Assistant in charge of Reactors to open the valve (thus increasing the leak) and close the valve (to no avail) with total disregard to the risk involved in the operation.
5. Shri R.Srinivasan, Manager-Maintenance cannot be absolved of the blame in as much as he too was a party to not communicating to the Competent Authority the decision taken to open and close the valve to arrest the leak and to the incident of the actual opening of the valve. (His statement, in his letter dated 11.3.2005 to the JGM Maintenance that the decision to open the valve was conveyed to the Committee Chairman who gave his clearance to Shri K.Suresh John stands repudiated by Shri P.R.Kosalram, Committee Chairman and remains unauthenticated. Similarly, his other statement in the same letter that "the valve was opened slowly by the Field Technical Assistants who got the clearance with the SE" is not corroborated by any of the field log sheets/DM's log).
6. Shri J.Srinivasan, the Technical Assistant for Reactors who had opened the leaky valve without the explicit orders of the Shift-in-Charge (who was supposed to be the man-in-command at the site), had also violated the procedure.
Conclusion
1. The contention of the complainant, terming the entry of Shri K.Suresh John into the plant premises on 7.3.05 as unlawful, is not valid. He, being a member of the Technical Committee on Plant Problems, had the right to visit the Plant whenever required for the purpose of trouble-shooting. Also, in the instant case, he was reportedly asked by the JGM (Maintenance), "to go to the site and assess the leak and explore the possibility" along with Shri R.Srinivasan the other Committee Member.
2. There is substance in the allegation that a highly risky and unsafe operation of opening a leaky reactor vent valve (when the equipment was at a very high pressure) was carried out, the consequence of which could have been catastrophic as assessed by none less than the ED (Technical). That the catastrophe did not take place is no excuse for those responsible for the lapse to be reprieved. It has to be viewed in the context of the possible damage to the Plant and the threat to the lives of employees at work as well as the inhabitants in the vicinity of the Plant.
3. There is also substance in the allegation that there was a tangible loss of production due to the forcible shut down of Reactor-A as reported by ED (Technical).
Thus, there exists a prima facie case against:-
(i) Shri K.Suresh John, Deputy Manager-Internal Audit;
(ii) Shri R.Srinivasan, Manager-Maintenance;
(iii) Shri J.Srinivasan, Technical Assistant in charge of Reactors.
The above officials:
(a) acted in excess of their delegated powers/jurisdiction and failed to report the same to the competent authority;
(b) acted recklessly;
(c) caused undue loss to the organization;
(d) flagrantly violated the norms, systems and procedures of the organization."
After the said Vigilance Officer's report, the Chairman-cum-Managing Director was forced to initiate action against the said three officers and called for remarks from the three named persons on 11.11.2005.
16. The said action being initiated pursuant to the vigilance report submitted, which in turn was based on the petitioner's report dated 3.10.2005, which was directed to be ignored by the Chairman-cum-Managing Director by his request dated 2.11.2005, has caused prejudicial attitude against the petitioner, which resulted in issuing the impugned charge memo dated 21.12.2005. Thus, there is an element of likelihood of bias in initiating the disciplinary proceeding against the petitioner by the Chairman-cum-Managing Director.
17. This court, considering the above facts, admitted the writ petition on 24.3.2006 and granted interim stay initially for three weeks, which was extended until further orders by order dated 14.3.2006. Petitioner also retired from service on attaining the age of superannuation on 31.8.2006 and he was also allowed to retire subject to the charge memo. However his terminal benefits were not paid. The retirement benefits having not been paid the petitioner filed WPMP No.270 of 2010 and prayed for a direction directing the respondents to pay the terminal benefits. Earlier this Court by order dated 24.10.2008 directed the respondents to pay gratuity and Provident Fund due to the petitioner and the said amount was also paid.
18. In the decision reported in (2006) 12 SCC 28 (Union of India v. Kunisetty Satyanarayana) in para 16 the supreme Court held that 'in some very rare and exceptional cases the High Court can quash a charge sheet or show cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However ordinarily the High Court should not interfere in such a matter.'
19. The Division Bench of this Court in W.A.No.1872 of 2009 dated 21.12.2009, upheld the order of a single Judge made in W.P.No.10858 of 2009, dated 30.11.2009, wherein the learned single Judge quashed the charge memo as the petitioner therein was to retire shortly and considering the nature of the charge.
20. I am aware that the Courts cannot interfere with the disciplinary proceeding at the charge memo level normally and it could be quashed only if the charges are vague or no useful purpose would be served by proceeding with the charges further or if there is unexplained delay, which would cause serious prejudice to the delinquent officer.
21. As the petitioner has already retired from service on 31.8.2006 no useful purpose will be served in continuing the charge memo any longer as the petitioner would be prejudiced if the charges relating to shut downs dated 5.1.2005 and 10.1.2005 are allowed to proceed at this stage.
22. The allegation levelled against the petitioner in short is lack of supervision on the part of the petitioner, who was the Executive Director, thereby the shut downs have taken place in the Unit on 5.1.2005 and 10.1.2005.
23. Taking into consideration all the above aspects and the facts and circumstances of this case, I am of the view that the petitioner has made out a case to quash the charge memo.
24. In the result, the writ petition is allowed and the charge memo dated 21.12.2005 is quashed. No costs. The respondents are directed to settle the terminal benefits due to the petitioner, within a period of four weeks from the date of receipt of copy of this order. Connected miscellaneous petition is closed.
Index : Yes Internet : Yes 11-8-2010 vr N. PAUL VASANTHAKUMAR, J. Vr Pre-Delivery Orders in W.P.No.8306 of 2006 11-8-2010