STAY ON DEPARTMENTAL INQUIRY BY RAJASTHAN HIGH COURT JAIPUR

The following information are very important for the person who are facing disciplinary proceedings..

 

 

CASE OF LAW ON STAY ON DISCIPLINARY PROCEEDINGS BY RAJASTHAN HIGH COURT JAIPUR 

Initiation of Disciplinary Proceedings

Simultaneous disciplinary action – Discretion is with Disciplinary Authority: 

(S. A. Venkataraman v. Union of India, AIR 1954 SC 375)

(S. Pratap Singh v. State of Punjab, AIR 1964 SC 72)

D. A. pending investigation

(B. Balaiah v. DTO Karnataka, SITC, 1982 SLR KAR 675)

(R.P.Kapoor v. Pratap Singh Kairon, 1964 CrLJ SC. 224)

D. A. Pending Prosecution

Delhi Cloth & General Mills Ltd., Vs. Kushal Bhan, AIR 1960 SC 806 Where case is of grave nature involving complicated questions of fact or law- No. D. A. It would be advisable to await result of prosecution. But if it is a case of simple nature there is no bar.

Tata Oil Mills Company Ltd., Vs. workman, AIR 1965 SC. 155

- Stay is desirable when it is grave

- He should not be compelled to disclose his defence.

- However, if enquiry is conducted it is not bad in law.

Jang Bhadur Singh Vs. Baij Nath Tiwari, AIR 1960 SC30 

- No bar for simultaneous D. A. It does not amount to contempt of Court merely because an inquiry into the charges id pending before a Civil or Criminal Court.

Kusheswar Dubey Vs. Bharat Cooking Coal Ltd., 1988 SC 2118. 

- Earlier decisions of Supreme Court were followed – No straight jacket formula Decision has to be taken having regard to the peculiarities of an individual situation.

Staying of Disciplinary proceedings pending criminal proceedings, should not be a matter of course but a considered decision. Even if stayed at one stage the decision may require reconsideration if the criminal case gets delayed. 

(State of Rajasthan v. B.K. Meena – 1996 (7) Supreme 432; Depot Manager, APSRTC, v. Md. Yusuf Miya – 1997 (1) SC 421).

Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., 1999 (3) Supreme 376 – Principles laid down.

DEPARTMENTAL ACTION AFTER ACQUTTAL OF CRIMINAL CASE:

Honourable acquittal

Normally where the accused is acquitted honourably and completely exonerated of the changes it would not be expedient to continue the inquiry on the very same charges or ground or evidence. If however the authority feels that there is sufficient and good grounds to proceed with the inquiry it can certainly do so. (Corporation of Nagpur Vs. Ramachandra, AIR 1981 SC 262 – 1981 (2) SLR SC 274)

Departmental Action taken against a Head Constable dispensing with inquiry, after the criminal case ended in acquittal. (Kuldeep Singh v. State of Punjab, 1996 (7) Supreme 405)

Acquittal giving benefit of doubt

D. A. can always be taken.

(Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277 1978 (2) SLR SC 46)

(N.Marimuthu Vs. Transport Department, Madras 1986 (2) SLR MAD. 560)

Acquittal on technical grounds

D. A. can be taken.

(S. Krishnammurthy Vs. Chief Engineer, Southern Rly. AIR 1967 MAD 315)

Where witness turns hostile the decision of the court will be not on merits of the appreciation of evidence. It is not binding on the D. A. He can make enquiry and arrive at an independent decision.

Judgment of acquittal discloses departmental lapses or violation of conduct rules. 

D.A. can be taken for such lapsed.

(Union of India Vs. Sardar Bahadur, 1972 SLR SC 355)

Penalty imposed in Disciplinary Proceedings – subsequent acquittal of criminal case. Where the subsequent prosecution of the accused in respect of the same subject matter has ended in acquittal, penalty imposed in the Departmental enquiry need not be set aside.

Laxman Lal Vs. State of Rajasthan 1994 (2) SLR Raj. 600

L.G. of Police Vs. S.K. Sharma 1996 (2) SLR 801 A.P.

Capt. M. Paul Anthony Vs. Bharat Gold Mines, 1999 (2) SLR 338 1999 (3) Supreme 376.

 

PRINCIPLES OF NATURAL JUSTICE

 

Basic principles – A.K. Kraipak and others v. Union of India, AIR 1970 SC 150 – 1969 SC 262

No One shall be a judge in his own cause : -

 

(Mohammed Nooh Vs. State of U.P. AIR 1958 SC 86)

(Arjun Chowbey Vs. UOI, 1984 (2) SLR SC 16)

(S. Parthasarathi Vs. State of Andhra Pradesh SLR 1973 SC 2701)

real likelihood of bias must be established.

Mere suspicion – not sufficiebt

Prejudice must be established.

Plea should be raised at the earliest opportunity.

 

 

(M. Koteswara Rao, Vs. Regional Manager, APSRTC 1997 (3) ALT 68) bias guidelines given. 

No one shall be condemned – unheard 

 

Charge not properly framed – enquiry may be vitiated.

Copies of documents and statements:

Documents – copies may be given. 

- (Kashinath Dikshita Vs. UOI 1986 (2) SLR SC 620)

- (Chandrama Tewari Vs. UOI 1988 (7) SLR SC 699)

- (Committee of Management, Kishan Degree College Vs. Shambhu Saran Pandey & others – 1995 (1) SLR SC 32)

- Voluminous documents Inspection may be allowed.

Previous statements cannot be marked unless the witness proves the truth of contents.

- (Surjeet Singh Vs. New Indian Assurance Co. Ltd., 1989 (4) SLR MP. 385)

- (BC Basak Vs. Industrial Development Bank of India, 1989 (1) SLR CAL 271).

Copies of 161 Cr. P.C Statement of witnesses have to be given:

- State Bank of Bikaner & Jaipur Vs. Srinath Gupta 1996 (7) Supreme 729 – 1997 (1) SLJ 109 SC).

Copy of Statement of confession or admission to police has to be given:

- Kuldeep Singh Vs. State of Punjab, 1996 (10 SC 659

- 1996 (7) Supreme 405.

P.E. Officer cited as witness:

Copy of his report to be given

P.E. Report not relied upon by D.A.

- Copy need n to be given

If D.A. is based on P.E. Report 

- Copy mush be given.

Where the order of dismissal was on the ground that misconduct of receiving illegal gratification was proved against appellant¸non supply of report of preliminary enquiry is not an illegality and impugned order could not be set aside on that ground.

Report of S.P.E. if I.O. is examined copy to be given. 

- Chandrama Tewari Vs.U.O.I. 1988 SC 117.

Report of inquiry by Vigilance Department

- Copy need not be given unless E.O. relied on it.

In Malvinderjit Singh Vs. State of Punjab, 1970 SLR 660 (FB) was held that a civil servant is not entitled to copy of inquiry report conducted by Vigilance Department.

In Krishna Chandra Tandon Vs. UOI 1974 SLJ 425 1974 (2) SLR 178. AIR SC 1589 the Supreme Court held that these document are of the nature of inter departmental communications between officers preliminary to the holding of inquiry and have really no importance unless the Inquiry Officer wants to rely on them for his conclusions in which case it would be given to the delinquent. Since, neither the Inquiry Officer nor the Disciplinary Authority relied on the preliminary report for his findings, the delinquent was not entitled to its copy.

 

DEFENCE ASSISTANT – LEGAL PRACTITIONER

 

Right to be represented by counsel or agent is not an absolute right. It can be restricted, controlled or regulated by law or rules or regulations. However, if the charge is of a serious and complex nature, the charged employee’s request to be represented through counsel or agent could be conceded. (Cresent Dyes & Chemicals Ltd., Vs. Ram Naresh Tripathi 1993 (1) SLR 408 (SC). 

The delinquent cannot insist that a person of his choice only should be appointed as defence assistant. (H.C. Sarin Vs. UOI 1976 SC 1686)

Where P.O. is a legally trained person – charged employee should be allowed counsel (Board of trustees of Port of Bombay Vs. Delipkumar 1983 SC 109)

Where the Charged Employee was well-versed in law as well as legal decisions and witnesses were cross – examined by him at length, no prejudice is caused on account of refusal of engage lawyer. (State of Rajasthan Vs. S.K. Dutt Sharma, 1993 (2) SLR 282 SC).

 

FUNCTIONS OF INQUIRING AUTHORITY 

Inquiring authority can examine and cross – examine the witnesses in the absence of the presenting Officer. 

- Union of India (Integral Coach Factory Vs. Delhi, 1989 (1) SLR 78 – Madras.

- H. Rajendra Pai Vs. Chairman, Canara Bank, 1990 (1) SLR 127 – Kerala.

I.A. has power to regulate the inquiry.

- State of Bombay Vs. Nurul Latif Khan AIR 1966 SC 296.

I.A. must discuss evidence and give reasons for his findings.

- Anil Kumar Vs. Presiding Officer, 1985 (3) SLR SC 26.

- R.P. Bhatt Vs. UOI 1985 SLR SC 745.

 

EXTRANEOUS MATERIALS CANNOT BE TAKEN INTO CONSIDERATION BY INQUIRING AUTHORITY. 

H. K. Dogra Vs. C.G.M. S.B.I. 1989 (2) SLR P&H 122

- Report of Vigilance department relied on by D.A. but copy not supplied bad.

S.B.I. Vs. D.C. Aggarwal 1992 (5) SLR 598 CVC advice was followed 

- Copy not supplied – inquiry vitiated.

Advice of CVC – Not Binding on D.A. Nagraj Shiva Rao Karjagi Vs. Syndicate Bank, 1991 SC 1507 (2) SLR 784.

State of A.P. Vs. S.N. Nizamuddin Ali Khan, AIR 1976 SC 1964:

- 1976 (2) SLR 532. Inquiry by Judge of H.C. – C.J. forwarding Report with his own remarks.

 

COPY OF ENQUITY REPORT TO BE GIVEN BEFORE IMPOSING PENALTY. 

Union of India Vs. Mohd. Ramzan Khan – 1991 (1) SLR SC 159 Sc 471.

- Managing Director, ECIL, Hyderabad Vs. B. Karunakar 1993 (5) SLR SC 532.

- S.K. Singh Vs. Central Bank of India Prejudice must be established. 1997 (1) SLR SC 235.

 

Failure to given reasonable opportunity – inquiry will be vitiated.

 

1998 (1) Supreme 387 Ministry of Finance Vs. S. B. Ramesh. Charge was that the Respondent I.T.O. living with a woman and having children D.E. conducted exparte and compulsorily retired. CAT set aside – SC confirmed on the following grounds. 

Statement of the complainant recorded during PE was marked by examining the PE Officer Non examination of the witness is fatal.

Out of 7 documents, 6 documents, were marked as exhibits without proper proof.

Findings based on surmises and presumptions – suspicion cannot be substituted for proof.

C.O. was not examined on the incriminating circumstances in the evidence. It amounts to violation of mandatory provision.

 

violation of principles of Natural justice – effect. 

 

State Bank of Patiala vs. S.K.Sharma 1996 (3) Supreme 511. 

Violation of rules / regulations governing inquiry -

Inquiry should not be set aside automatically

Court should inquire

Whether the rule violated is of a substantive nature or

Whether it is procedural in character.

If substantive provision is violated – the inquiry is vitiated

- The question of substantial compliance or the test of prejudice does not arise.

violation of procedural provisions :- 

- It should be seen whther it is a case of No notice, No opportunity, No hearing, in which case the inquiry is invalid or void and automatically vitiates enquiry. Other cases of procedural provisions – see whether prejudice is caused – in defending himself properly and effectively.

If prejudice is established appropriate order to be passed to remedy or repair the prejudice, by setting aside the order.

If there is violation of a procedural provision of fundamental character – that by itself is proof of prejudice. 

Where the rule says that after the evidence of employer is over, delinquent should be given opportunity to lead defence evidence, if it is not followed it amounts to violation of a mandatory provision unless he waives. 

If it is not a mandatory provision see whether there was substantial complainance.

 

General principles governing inquires 

Standard of proof is lesser than in a Criminal case.

(Union of India Vs. Sardar Bahadur 1972 SLR SC 355)

Indian Evidence Act does not apply

(Union of India Vs. T. R. Verma AIR 1957 SC 882) 

(U.R. Bhatta Vs.UOI AIR 1962 SC 1344 – Supreme 190).

Evidence not admissible in a Criminal Court is admissible in Disciplinary Proceeding.

Statement U/s. 161 Cr. P.C. may be marked in the evidence of the witness.

- (State Bank of Bikaner and Jaipur Vs. Srinath Gupta and another 1996 (7) Supreme 729)

Confession statement U/s. 25 and 26 Evidence Act is admissible. 

- (Kuldip Singh Vs. State of Punjab and others 1996 (7) Supreme 405)

- (UOI Vs. Balbir Singh and another 1998 (4) Supreme 425)

Evidence of accomplice can be accepted without corroboration.

- (Bhanaras Vs. State of Maharashtra, 1991 (5) SLR 862 Bombay)

- (Ramanamma Vs. Union of India 1991 (5) SLR CAT 392 Mad).

Hearsay evidence can be considered in a departmental Inquiry.

State of Haryana Vs. Ratan Singh AIR 1977 SC 1512)

Evidence not sufficient for conviction may be sufficient for penalty.

If there is some evidence which with some degree of definiteness points to the guilt of the delinquent, it is sufficient.

Disciplinary authority is the sole Judge of facts. Adequacy and reliability of evidence cannot be questioned before courts.

Court will interfere only when there is violation of Rules or Procedure, or rules of natural justice and findings are arbitrary based on no evidence.

Court / Tribunal exercising power of judicial review does not act as appellate authority and cannot re-appreciate the evidence and arrive at its own independent findings on the evidence.

- (State of A.P. Vs. S. Sree Rama Rao AIR 1963 SC 1723)

- (B.C.Chaturvedi Vs. UOI 1995 (6) SCC 749 followed by A.P. HC in V. Murali Prakasa Rao Vs. Distt. & Sessions Judge, Nellore 1996 (3) ALT 525).

- Apperal Export Promotion Council Vs. A.K. Chopra 1999 (1) Supreme 110)

- Ministry of Finance Vs. S. B. Ramesh, 1998 (1) Supreme 387 Bank of India Vs. Degala Suryanarayana, 1999 (6) Supreme 39.

- High Court of Bombay Vs. Udai Singh 1997 (4) SLR 690 Sc.

- Dist. And Sessions Judge, Guntur Vs. N. Chandrasekhar, 1997 (3) Alt 238.

- Bank of India Vs. Degala Suryanarayana, 2001 (1) SLJ SC.113.

 

PAST BAD RECORD 

N. Rajendran Vs. Union of India 1991 (7) SLR CAT MAD 304.

M.S. Bejwa Vs. Punjab National Bank 1994 (1) SLR P&H 131.

State of Mysore Vs. K. Manche Gowda 1994 SC 506.

May be mentioned either in the charge sheet or after the employee is found guilty of the charge further show cause notice may be issued to him.

GEC (P) Ltd., Vs. Labour Court 1969 (18) FLR 159 SC.

consideration of past record without giving the employee an chance to explain violates principles of natural justice (management of Delhi Tea Estate Vs. Industrial Tribunal 1971 LIC 1252 Assam).

 

PROCEDURE WHERE DISCIPLINARY AUTHORITY DISAGREES WITH INQUIRY OFFICERS FINDINGS. 

High Court of Judicature at Bombay Vs. Shashikant S. Patel and another, 2000 (1) SLJ SC 98. D.A. need not discuss materials in detail and contest the conclusion of the LO.

State Bank of India and others Vs. Arvind K. Shukla 2001 (4) Supreme 586. Where the D.A. disagrees with findings of L.O. it should record its tentative reasons for disagreement and give to the delinquent an opportunity to represent before recording its discussions (Three Judge Bench decision of S.C. in Punjab National Bank and others Vs. Kunj Behari Mishra, 1998 (7) SCC 84 followed).

 

Double Jeopardy – Criminal Prosecution verses Disciplinary Proceedings:

The object of the disciplinary proceedings is to ascertain whether the officer concerned is suitable to be retained in service. On the other hand the object of the criminal prosecution is to find out whether ingredients of the offence as defined in the penal statute have been made. Article 20(3) of the Constitution of India also does not apply to a departmental inquiry because the official is not being tried to for any criminal offence.

[Bhagwan Singh vs. Deputy Commissioner Sitapur, AIR 1962 All 232: 1962 (1) CrLJ 554]

Departmental Inquiry during the Pendency of a Criminal Prosecution:

Holding of a departmental enquiry during pendency of a criminal prosecution in respect of the same subject-matter would not amount to a contempt of court. The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations and such exercise of powers bonafide will not come within the mischief of the law of contempt, especially when the departmental authorities did not publish their orders nor tried to influence the court in any manner.

[Mehra Singh vs. Supdt of Post offices, Jabalpur, AIR 1962 MP 72]

Natural Justice in Disciplinary Proceedings:

The aim of Natural Justice is to secure justice or to put it negatively, to prevent miscarriage of justice. These rules operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it.

[Supreme Court - (1969) 2 SCC 262; AIR 1970 SC 150 - A.K. Kraipak vs. Union of India]

There must be ever present to the mind of men the fact that our laws of procedure are grounded on the principle of Natural Justice which require that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings which affect their lives and property should not continue in their absence and that they should not be precluded from participating in such proceedings.

[Ramseth vs. Collector of Dharbang, AIR 155 PAT 345]

The expression 'Natural Justice' conveys the notion that the result of the process should be just. There are two concepts underlying this doctrine, namely, the authority deciding the dispute should be impartial and the party to be affected should be given full and fair opportunity of being heard.

[C. Pitchiah vs. Andhra University - 1961 ALT. 317, AIR 1961 AP 465]

The term 'misconduct' means an act done willfully with a wrong intention and as applied to professional people; it includes unprofessional acts, even though such acts are not inherently wrongful. It also means a dereliction of or deviation from duty.

[Nahood Ali Khan, Inre, AIR 1958 AP 116]

Speaking Orders in Appeal Cases:

The Supreme Court and the High Courts have emphasised that the appellate authorities must give reasons and there should be some discussion of the evidence on record. An appellate authority has a legal duty to deliberate about merit and adjudge it before confirming, enhancing, reducing or setting aside the penalty.

[Nathaniel Ghosh vs. Union Territory of Arunachal Pradesh, (1980) 2 SLR 733]

Personal Hearings at Appeal Stage:

It appears fairly clear that the fundamental basis on which it is thought necessary to include if the concept of "reasonable opportunity" the right of personal hearing and putting forward his case at the first stage is that he must have the opportunity of leading his evidence, cross-examining the prosecution witness, pointing out the demeanor of those witnesses and personal appeal to the Enquiry Officer to appreciate that the evidence in the light in which he would like to be appreciated and urge his case or convince him of the weakness of prosecution case and strength of his own case. At the second stage, however, only the right to make representation has been held to be sufficient compliance with the requirement of constitutional protection of giving a reasonable opportunity and the requirement of personal hearing is not thought necessary because at that stage the authority is merely to take his decision from the record before him. The right of personal hearing is intended to be necessary requirement of the concept of reasonable opportunity to show cause only at the stage when evidence is to be led, cross-examination of the witness is to be done and the demeanor of the witness is to be watched and not at the stage when decision is to be taken from record before the deciding Appellate Authority. The proceedings in the departmental proceedings are only quasi-judicial proceedings. All the procedure of an ordinary trial or proceedings in a Court of Law is not applicable. The principle obtainable in the court of law even at the stage of appeal the right of personal hearing is a necessary right to do justice between the parties cannot be bodily applied to departmental inquiries which are not bound to follow all the procedure and requirement of a judicial trial or proceedings.

[State of Gujarat vs. P.B.Ramalbhai, AIR 1969 Guj, 260]

Where an appeal is preferred by the Government Servant against the order of the disciplinary authority, it is not necessary that he should be given personal hearing at that stage.

[F.N.Roy vs. Collector of Customs, Calcutta AIR 1957 SC 648]

The proceedings before an appellate authority are a continuation of the proceedings before the enquiry officer and both these proceedings taken together point to the conclusion. That the guarantee under Article 311 is satisfied and the failure to give a personal hearing to the petitioner in appeal by itself will not render proceedings illegal.

[Bindanath vs. State of Assam AIR 1959 Assam 112]

Unless statutory rules so require or a specific prayer for personal hearing is made by the appellant in writing in the petition of appeal itself, it is not incumbent on the appellant authority to afford a personal hearing to a person aggrieved against an order imposing punishment on him in departmental proceedings.

[Vijay Singh Yadav vs. State of Haryana and others 1971 SLR 720 (Punjab and Haryana)]

Where the rules are silent regarding personal hearing but an opportunity is demanded by the delinquent official before the Appellant Authority to represent his case, such a request should not be refused, as it violates principles of natural justice.

[Ranjit Singh vs. Inspector of Police and others, 1979 AISLJ 57 (Punj)]

Provisions of Article 311 of the Constitution in Disciplinary Cases:

The implications of the provisions of Article 311 have been the subject of a close examination by the Supreme Court. The Supreme Court has given exhaustive interpretation of the various aspects involved and they provide the administrative authorities authoritative guidelines in dealing with disciplinary cases.

[Purushotham Lal Dhingra vs. Union of India, AIR 1958 SC 36; Khem Chand vs. Union of India, AIR 1958 SC 300; and Union of India and another vs. Tlusiram Patel, 1985(2) SLR SC 576]

Articles 310 and 311 apply to Government servants, whether permanent, temporary, officiating or on probation.

[Purushotham Lal Dhingra vs. Union of India, AIR 1958 SC 36]

Issue and Service of Charge-sheet:

Endorsements of Postal Authorities on letters “not found”, “not traceable”, “not known”, “left” do not amount to service, but an endorsement “refused” does. The Supreme Court has laid down, that charge sheet is issued when it is framed and despatched to the employee irrespective of its actual service on the employee.

[Delhi Development Authority vs. H.C. Khurana, 1993(2) SLR SC 509 and Union of India vs. Kewal Kumar, 1993(2) SLR SC 554]

Disagreement of Disciplinary Authority with the Findings of the Inquiring Authority:

On the question of the disciplinary authority disagreeing with the findings of the inquiring authority, the Supreme Court held, that the reasoning of the High Court that when the Disciplinary Committee differed from the finding of the inquiry officer it is imperative to discuss the materials in detail and contest the conclusion of the inquiry officer, is quite unsound and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the Inquiry Officer’s report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such inquiry as well as the views expressed by the inquiry officer thereon. The findings of the inquiry officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision-making authority is the punishing authority and therefore that authority can come to its own conclusion of course bearing in mind the views expressed by the inquiry officer. But it is not necessary that the disciplinary authority should “discuss materials in detail and contest the conclusions of the inquiry officer”. Otherwise the position of the disciplinary authority would get relegated to a subordinate level.

[High Court of Judicature at Bombay vs. Shashikanth S. Patil 2000(1) SLJ SC 98]

Standard of Proof in the Departmental Inquiry:

The standard of proof required in a departmental oral inquiry differs materially from the standard of proof required in a criminal trial. The Supreme Court has given clear rulings to that effect that a disciplinary proceeding is not a criminal trial and that the standard of proof required in a disciplinary inquiry is that of preponderance of probability and not proof beyond reasonable doubt, which is the proof required in a criminal trial.

[Union of India vs. Sardar Bahadur, 1972 SLR SC 355; State of AP vs. Sree Rama Rao AIR 1963 SC 1723 and Nand Kishore Prasad vs. State of Bihar, 1978(2) SLR SC 46]

The departmental authorities, if the inquiry is properly held, are the sole judge of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the constitution.

[State of AP vs. S. Sreerama Rao AIR 1963 SC 1723]

If two views are possible, court shall not interfere by substituting its own satisfaction or opinion for the satisfaction or opinion of the authority exercising the power, in judicial review.

[Union of India vs. Harjeet Singh Sandhu, 2002(1) SLJ SC 1]

The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. The disciplinary authority is the sole judge of facts. The Court/Tribunal in its power of review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence.

[B.C. Chaturvedi vs. Union of India, 1995(6) SCC 749]

Fresh Inquiry, in Case Proceedings are Quashed by Court on Technical Grounds:

Where departmental proceedings are quashed by civil court on technical grounds of irregularity in procedure and where merits of the charge were never investigated, fresh departmental inquiry can be held on same facts.

[Devendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh, AIR 1962 SC 1334]

Action against Disciplinary Authority for Lapses in Conducting Proceedings:

In the case of that if a superior officer holds the inquiry in a very slipshod manner or dishonestly, the State can certainly take action against the superior officer and in an extreme case even dismiss him for his dishonesty.

[Dwarakachand vs. State of Rajasthan, AIR 1958 RAJ 38]

The Central Administrative Tribunal, Madras held that disciplinary authority can be proceeded against in disciplinary action for misconduct of imposing a lenient penalty.

[S. Venkatesan vs. Union of India, 1999(2) SLJ CAT MAD 492]

Cross-Examination of a Witness:

The examination of a witness by the adverse party shall be called his cross-examination. The purpose of the cross-examination is to test the veracity of the witness. No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination.

[Maganlal vs. King Emperor AIR 1946 Nagpur 126]

Suspension of a Government Servant:

Utmost Caution to be exercised while ordering suspension.

[Subramanian vs. State of Kerala, (1973) SLR 521]

SC decisions setting out that the power is meant to be exercised primarily in the interest of justice.

Court must be satisfied on the materials placed before it that granting permission would serve administration of justice.

[Bansilal vs. Chandilal, AIR 1976 S.C. 370]

Duty of the court to see that the permission sought for is not on grounds extraneous to the interest of justice. Ultimate guiding principle must be interest of administration of justice.

[Balwant vs. Bihau, AIR 1977 S.C.2265]

Court has to see that executive function of prosecution is not improperly exercised.

[Paswn vs. Bihan, AIR 1987 S.C.877]

Duty of the prosecution is to inform the Court, that Court must exercise itself of the reasons which prompted itself to withdraw from prosecution.

[Jain vs. State, AIR 1980 S.C.1510]

Broad ends of social justice may well include appropriate social economic and political purposes.

[State of Punjab vs. Union, AIR 1992 S.C. 248]

Paramount reasons behind S.321 (CRPC) is that it should advance the cause of justice.

[2005 (2) S.C.C. 377]

 

11 Feb 2011

 

Disciplinary proceedings need not await criminal prosecution: High Court

 

Holding that it was not obligatory on the part of Disciplinary Committee to await prosecution of the delinquent, the Delhi High Court in a recently reported decision [TALLURI SRINIVAS v. THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA 2010 (174) DLT 537] has declared that the disciplinary proceedings can be continued even while the criminal prosecution is in vogue. Deciding in the context of the disciplinary proceedings initiated by the Institute of Chartered Accountants of India against one of the auditors who was an accused for having signed audited balance sheets of Satyam Computer Services Limited, the High Court held that the Institute could carry out its proceedings without requiring to await the culmination of criminal proceedings. 

 

The High Court summed up the law in this regard as under;

31. Before proceeding to discuss the contentions of the counsel for the parties, it is necessary to recapitulate the current legal position as regards the continuation of disciplinary proceedings when a criminal trial on the same charges is pending.

32. The question whether the disciplinary proceedings can be allowed to proceed when a criminal trial is pending on the same charges has invariably arisen in the domain of service law. The cases discussed hereinafter will show that the context invariably has been of an employee facing disciplinary proceedings over a set of charges, which are either similar or identical to the charges forming the subject matter of a criminal trial in which such employee is the accused.

33. In Delhi Cloth & General Mills Ltd. v. Kushal Bhan AIR 1960 SC 806, it was acknowledged that it was not a principle of natural justice “that an employer must wait for the decision at least of the criminal trial court before taking action against an employee.” However, it was observed by the Supreme Court that “if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced.”

34. In Tata Oil Mills Co. Ltd. v. Workmen AIR 1965 SC 155, it was held to be “desirable” to stay the domestic enquiry pending final disposal of the criminal case. In Jang Bahadur Singh v. Baij Nath Tiwari AIR 1969 SC 30, it was held that “the initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings.” In Kusheshwar Dubey v. Bharat Coking Coal Ltd. AIR 1988 SC 2118, the Supreme Court after analyzing the case law found that “it is neither possible nor advisable to evolve a hard and fast strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation.” In the facts of that case, it was found that since the “criminal action and the disciplinary proceedings are grounded upon the same set of facts”, the disciplinary proceedings should have been stayed. 

35. In Nelson Motis v. Union of India AIR 1992 SC 1981, it was held that the disciplinary proceedings could be continued even after the employee had been acquitted by the criminal court since the standard of proof was different. Moreover, the Court found that the subject matter of the disciplinary proceedings in that case was not exactly the same as in the criminal case.

36. In State of Rajasthan v. B.K. Meena (1996) 6 SCC 417, the State Government issued a memo of charges in regard to the allegation that the Respondent had misappropriated public funds while working as Additional Collector-cum-Project Director, District Rural Development Agency, Jaipur in the year 1989. An FIR had been registered in relation thereto on 12th March 1990. The Respondent had been arrested on 26th March 1990. After responding to the articles of charges in the disciplinary proceedings, the Respondent filed a petition before the Central Administrative Tribunal, Jaipur challenging the disciplinary proceedings. The CAT stayed the disciplinary proceedings. Thereafter the State of Rajasthan revoked the order of suspension and reinstated him. The Respondent thus amended his petition before the CAT and asked for the stay of the disciplinary enquiry. The CAT stayed the disciplinary proceedings pending the conclusion of the criminal trial. The Supreme Court reversed the CAT's order. After analyzing the relevant case law, it observed as under (SCC @ p.422-423):

“14. It would be evident from the above decision that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast Rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well-known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above.”

37. The other factor on facts which weighed with the Supreme Court in B.K. Meena was that (SCC @ p. 423):

“The irregularities alleged against the respondent are of the year 1989. The conclusion of the criminal proceedings is nowhere in sight. (Each party blames the other for the said delay and we cannot pronounce upon it in the absence of proper material before us.) More than six years have passed by. The charges were served upon the respondent about 4 years back. The respondent has already disclosed his defence in his elaborate and detailed statement filed on 9.2.93. There is no question of his being compelled to disclose his defence in the disciplinary proceedings which would prejudice him in a criminal case. The charges against the respondent are very serious. They pertain to misappropriation of public funds to the tune of more than Rupees one crore. The observation of the Tribunal that in the course of examination of evidence, new material may emerge against the respondent and he may be compelled to disclose his defence is, at, a surmise - a speculator reason. We cannot accept it as valid.”

The further factor that weighed with the Supreme Court was that the standard of proof in the disciplinary proceedings and that in the criminal trial would be different. It must be mentioned here that the observations in para 14 in B.K. Meena were heavily relied upon by Mr. Srinivasan, learned Senior counsel for the Respondent No. 1 ICAI to urge that the disciplinary proceedings may be stayed only where there are criminal cases involving questions of grave nature of both fact and law. He urged that in the present case there were no grave questions of law, which have been shown by the Petitioners to be involved in the criminal proceedings that warranted stay of disciplinary proceedings.

38. In Depot Manager APSRTC v. Mohd Yousuf Miya, the APSRTC initiated disciplinary proceedings against the Respondent driver on the ground that he had caused an accident in which a cyclist died. Prosecution was also launched against the driver under Section 304, Part II of the IPC in the criminal court. The High Court stayed the departmental enquiry pending criminal trial. This ruling of the High Court was reversed by the Supreme Court. After discussing the earlier decisions, it was observed in that case that the charge in the disciplinary proceedings was about the failure to anticipate the accident and prevention thereof. It was concluded that “it has nothing to do with the culpability of the offence under Section 304-A and 338 IPC.” It was reiterated that (SCC @ p. 704):

“It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.”

39. In M. Paul Anthony v. Bharat Gold Mines Ltd., the appellant was a Security Officer in Bharat Gold Mines, a government undertaking. In a police raid, a mining sponge gold ball weighing 4.5 grams and 1276 grams of gold-bearing sand were recovered from the appellant's house. He was placed under suspension and disciplinary proceedings were commenced. Criminal proceedings were also initiated. On the conclusion of the disciplinary proceedings, the appellant was dismissed from service. Thereafter he was acquitted by the criminal court with the categorical finding that the prosecution had failed to establish its case. On the basis of his acquittal, he requested for reinstatement which was turned down. After unsuccessfully challenging it before the High Court, the appellant approached the Supreme Court. It was held that the criminal case and departmental proceedings were based on identical set of facts and in the circumstances, “it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.” The witnesses who were examined by the enquiry officer in the departmental proceedings were the same witnesses who were examined in the criminal case. Since there was no iota of difference in the facts and evidence in the departmental and criminal proceedings, it was concluded that “the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” In arriving at the above conclusion, the Supreme Court had an occasion to review the entire case law up to that point in time and summarized the position as under (SCC @ p. 691):

“22. The conclusions which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.”

40. On account of the above decision in M.Paul Anthony, much of the argument in the present petitions centered on whether the Petitioners were facing charges in the criminal cases which were identical to that forming subject matter of the disciplinary proceedings before the ICAI; whether the charges in the criminal court were of a grave nature, and whether they involved “complicated questions of law and fact.”

41. To continue the discussion of the decisions on the point, the question again arose in Kendriya Vidyalaya v. T. Srinivas. There the Respondent, while working with the appellant Kendriya Vidyalaya Sangathan ('KVS') as an Upper Division Clerk, was arrested with the CBI and charged for the offence under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 ('PCA'). During the pendency of the criminal trial, departmental proceedings were initiated. The Tribunal stayed the disciplinary proceedings till the disposal of the trial. The KVS challenged the decision in the High Court stating that they should be permitted to proceed in the departmental enquiry at least in regard to Charge 3 which was independent of Charges 1 and 2. This was rejected by the High Court holding that Charge 3 was interconnected with the other two charges. The Supreme Court, while allowing the appeal of the KVS, found that the Tribunal and the High Court proceeded on an erroneous principle as if the stay of the disciplinary proceedings “is a must in every case where there is a criminal trial on the very same charges.” The Court followed the decision in State of Rajasthan v. B.K. Meena, and reversed the High Court's judgment.

42. In State Bank of India v. R.B. Sharma (2004) 7 SCC 27, the High Court order staying the departmental proceedings was reversed by the Supreme Court only on the ground that the High Court had come to an abrupt conclusion that the employee had been able to show that the entire matter in the departmental proceedings and the criminal court was the same. Since no details had been given to justify this conclusion, it was directed that the High Court should rehear the matter.

43. In HPCL v. Sarvesh Berry, the CBI raided the house of the Respondent in 1998 and charged him with having been in possession of assets disproportionate to his known sources of income. After obtaining sanction for prosecution, the CBI filed a charge sheet. The criminal trial did not progress for at least four years. In the disciplinary proceedings initiated by the employer, there were three charges. The first related to possession of assets disproportionate to the known sources of income and the other two related to misconduct relating to non-disclosure or non-submission of property returns as required by the conduct rules. A Division Bench of the High Court held that the second and third charges were related to the first charge and it would not be safe to permit the employer to continue the departmental proceedings till the completion of the criminal case. Allowing the appeal of the employer, the Supreme Court held as under (SCC @ p. 475):

“8. The purposes of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So, crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the “Evidence Act"). Converse is the case of departmental enquiry. The enquiry in departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.”

Thereafter in para 13 it was observed as under (SCC @ p. 477):

“13. It is to be noted that in cases involving Section 13(1) (e) of the P.C. Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The expression 'known sources of income' is related to the sources known to the authorities and not the accused. The Explanation to Section 13(1) of the P.C. Act provides that for the purposes of the Section, "known sources of income" means income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. How the assets were acquired and from what source of income is within the special knowledge of the accused. Therefore, there is no question of any disclosure of defence in the departmental proceedings. In the criminal case, the accused has to prove the source of acquisition. He has to satisfactorily account for the same. Additionally, issues covered by charges 2 and 3 cannot be the subject matter of adjudication in the criminal case.”

Consequently the employer was permitted to continue the departmental proceedings.

44. In NOIDA Entrepreneurs Association v. NOIDA (2007) 10 SCC 375, it was again held that there was a subtle difference between a departmental enquiry and the criminal proceedings, the standards of proof in which were different. The order of the State Government not to continue the departmental enquiry was held unsustainable and the departmental enquiry was directed to continue. In Indian Overseas Bank v. P. Ganesan, the Supreme Court again answered in the negative the question whether the pendency of a criminal case by itself would be a sufficient ground for stay of the departmental proceedings. Additionally in that case, it was noticed that the departmental proceedings against the employees in question had made considerable progress and a large number of witnesses had already been examined.

Applicability of the M Paul Anthony test to the present cases. 

45. The judgments of the Supreme Court discussed hereinbefore by and large permitted the continuation of disciplinary proceedings notwithstanding the pendency of a criminal case on the same charges. In applying the law explained in the above cases to the present petitions, the Court is called upon to examine: (a) are the charges on which the disciplinary proceedings are proposed to be held identical or nearly similar to the charges on which they are facing criminal proceedings? (b) Are the criminal charges of a grave nature? (c) Do the charges involve complicated questions of law and fact?

46. It may at the outset be noticed that in the criminal case, arguments on charge which were in progress when these petitions were argued have been framed by the Special Judge on 25th October 2010. The offences mentioned in the charge sheets do allege that the Petitioners have committed offences which could be characterized as being of a 'grave' nature. These include the offences under Sections 409, 420, 468, 471, 477-A, 201 r/w Section 120-B IPC. Secondly, a comparison of the charges in the disciplinary proceedings with those in the criminal trial indicates that while the charges in the former will all be examined in the latter as well, the converse is not true. There would be additional matters that are likely to be examined in the criminal trial. This brings up the third limb, i.e. whether the charges involve complicated questions of law and fact? It may be recalled that in B.K. Meena the Supreme Court has reiterated that criminal case should be of a grave nature “involving complicated questions of fact and law.” In other words, it is not sufficient for a Petitioner resisting departmental proceedings to show that the criminal case is based on an identical set of facts but that it involves complicated questions of both fact and law.

47. The learned senior counsel for the ICAI was right in the submission that apart from merely stating that the charges involve complicated questions of law and fact there has been nothing actually shown by the Petitioners to demonstrate this. Whether in fact the charges that are stated to have been framed on 25th October 2010 by the Special Judge involve complicated questions of law and fact cannot be determined unless they are studied in some detail and further after the trial progresses. Also, the mere fact that the number of witnesses is large or that the alleged fraud is of a large sum need not by itself mean that the questions of fact and law are complicated. Thirdly, even if in criminal cases, the facts may be invariably complicated, the question of law need not be. Understandably therefore, the learned senior counsel for the Petitioners did not address the Court on this particular aspect except to repeat the requirement of M Paul Anthony that the criminal case involved complicated questions of law and fact. This however is not sufficient if the court has to be persuaded to stay the disciplinary proceedings.

48. The inescapable conclusion is that the third and important limb of the test evolved in the decisions discussed hereinbefore and succinctly summarised in M Paul Anthony has not been shown by the Petitioners to be satisfied in their cases viz., that the criminal cases in which they are arrayed as accused involve complicated questions of law and fact. They have therefore been unable to persuade this Court, on the basis of the law explained above, to stay the disciplinary proceedings pending the conclusion of the criminal trial.

Other factors

49. One important factor in each of the above decisions that have been discussed is that the issue arose in the context of service law where the desirability of permitting an employee continuing to discharge official duties pending disciplinary proceedings weighed with the courts. In the present writ petitions, although the Petitioners cannot be equated with government servants, they too have been charged with professional misconduct in not discharging their duties, as expected of a professional chartered accountant in terms of the CA Act. A chartered accountant who continues to have a privilege of practising as such notwithstanding the fact that he may be facing charges of professional misconduct is indeed a matter of concern. It is no less than having a government servant facing disciplinary proceedings on serious charges. What is more significant is that a chartered accountant cannot be suspended from practice and there is nothing to prevent a chartered accountant practising as such till such time the disciplinary proceedings come to an end. 

50. Relying on the observations of the Supreme Court in M Paul Anthony [SCC para 22 (v)] to the effect that the disciplinary proceedings can be asked to continue if “the criminal case does not proceed or its disposal is being unduly delayed”, it was urged that since there is a designated fast track court that has been asked to conclude the criminal trial before 31st July 2011, the disciplinary proceedings, even if stayed on account of the pendency of the criminal case, could be resumed and proceeded with soon thereafter and would therefore not get indefinitely postponed. This Court is not persuaded to accept this submission. The penultimate paragraph of the Supreme Court's order dated 26th October 2010 acknowledges that if the trial is unable to conclude before 31st July 2011 the accused whose bail have been cancelled can apply afresh for bail. In any event, unless this Court is shown that the charges involve complicated questions of law and fact the case for stay of disciplinary proceedings pending the conclusion of the criminal trial cannot be said to be made out.

.

In the said case, the Supreme Court has held that a Government

Servant can be dismissed or removed from service without holding an

enquiry under Art. 311 (2) (b) of the Constitution provided it was in the

interest of the public.

The Court observed, “Government Servants who are inefficient,

dishonest, corrupt or have become a security risk should not continue

in service and should be summarily dismissed or removed from service

and instead of being allowed to continue in it at public expense and at

public detriment.”

The above ruling was given by a Constitution Bench with a 4-1

majority. The judgment was written by Justice D.P. Madon Pathok, Mr.

Justice Thakkar, dissented. The Judges overruled the ruling of a three

Judge Bench of the Supreme Court in

that a delinquent Government Servant could be dismissed or removed

from service only after he was given an opportunity to be heard.

Challappan’s Case which held

Conditions Laid Down Under Article 311 (2):

conditions where an enquiry need not be held before the dismissal or

removal of a Government Servant.

(i) Where a person is dismissed, removed or reduced in rank on the

ground of misconduct which has led to his conviction on a criminal

charge.

(ii) Where the authority empowered to dismiss or remove a person or

to reduce him in rank is satisfied that for some reason, to be

recorded by that authority in writing, it is not reasonably practicable

to hold such an enquiry.

(iii) Where the President or the Governor as the case may be is

satisfied that in the interest of the Security of the State, it is not

expedient to hold such enquiry.

Referring to Article 311 (2) (b), the judges have pointed out that

sometimes by not taking prompt action might result in the situation

worsening and at times becoming uncontrollable. This could also be

construed by the trouble makers and agitators as a sign of weakness

on the part of the authorities.

It would not be reasonably practicable to hold an inquiry where the

Government Servant terrorises, threatens or intimidates disciplinary

authority or the witnesses to the effect that they are prevented from

taking action or giving evidence against him. It would not be

reasonably practicable to hold the enquiry where an atmosphere of

violence or general indiscipline and insubordination prevails.

Stipulates three

Referring to article 311 (2) (b)

the disciplinary authority to communicate to the Government Servant

its reason for dispensing with the inquiry. The Court also observed that

the stipulated clause regarding no inquiry in certain case was

the judges said it would be better for

Mandatory

Justice R. Krishna Iyer on Evidence Act and Domestic Enquiry

and not Directory.

It is well settled that in a domestic enquiry the strict and sophisticated

rules of evidence under the Evidence Act may not apply.

which are logically probative for a prudent mind are permissible.

There is no allergy to heresay evidence provided it has reasonable

nexus and creditability

administrative tribunals must be careful in evaluating such material and

should not glibly swallow what is strictly speaking not relevant under

the Indian Evidence Act.

The essence of a judicial approach is: objectivity, exclusion of

extraneous materials and consideration and observance of natural

justice. Of course, fair play is the basis and if independence of

judgment vitiates the conclusion reached, such findings even though of

a domestic tribunal cannot be held good.

The simple point is, was there some evidence or was there no evidence

- not in the sense of technical rules governing regular court

proceedings but in a fair/common sense way as men of understanding

and wordly wisdom will accept. Viewed in this way, sufficiency of

evidence in proof of the finding by a domestic tribunal is beyond

scrutiny. (1982 II LLJ

All materials. It is true that departmental authorities andState of Haryana v Rattan Singh 46, SC).

Supreme Court on Evidence Act And Domestic Enquiry

The Evidence Act does not apply to enquiries conducted by the

tribunals even though they may be judicial in character. The law

requires that such tribunals should observe rules of natural justice in

the conduct of the enquiry and it they do so their decision is not liable

to be impeached on the ground that the procedure followed was not in

accordance with that which obtains in a court of law (

and T.R. Varma

Union of IndiaVol. 13 FJR 237 SC)

Will the Omission to Produce the Preliminary Reports Vitiate the Enquiry?

The omission by the company to produce the preliminary reports on the

strength of which the charges against these workmen were found will

not vitiate the enquiry. Those reports were collected by the company to

satisfy itself whether disciplinary action against the workmen should be

launched or not. They did not form part of the evidence before the

enquiry officer nor were they relied on by them for arriving at their

findings. That being so, it was not obligatory on the company to

disclose them and the omission could not be ground for holding that

their non-disclosure was non-observance of the rules of natural justice.

Tata Engineering & Locomotive Co.

1960 IILLJ 812 SC.

Resignation Pending Disciplinary Action

By entering into contract of employment a person does not sign a bond

of slavery and a permanent employee cannot be deprived of his right to

resign. A resignation by an employee would however normally require

to be accepted by the employer, in order to be effective. It can be read

in certain circumstances an employer would be justified in refusing to

accept an employee’s resignation as for instance when an employee

wants to leave in the middle of a work in which his presence and

participation are necessary.

An employer can also refuse to accept resignation when there is a

disciplinary enquiry pending against an employee. If he is allowed to

resign when an enquiry is pending against him, it would enable him to

escape the consequences of adverse findings against him. Therefore

on such occasion the employer is justified in not accepting the

resignation. (

Tarunkanti Sengupta and Another

Central Inland Water Transport Corporation Ltd. and1986 II LLJ 171 SC).

Should an Advocate be Permitted in all Domestic Enquiries?

In the

1 - the Supreme Court stated that in the past there was informal

atmosphere before a domestic enquiry forum and that strict rules of

procedural law did not hamstring the enquiry. We have moved far away

from this stage. The situation is where the employer has on his pay

rolls Labour Officers. Legal Advisors, Lawyers in the garb of

employees and they are appointed as Presenting Officers and the

delinquent employee pitted against such legally trained personnel has

to defend himself.

The weighted scales and tilted balance can only be partly restored if

the delinquent is given the same legal assistance as the employer. It

applies with equal vigour to all those who must be responsible for

fairplay. When the Bombay Port Trust Advisor and Junior Assistant

Legal Advisor would act as the Presenting cum Prosecuting Officer in

the enquiry, the employee was asked to be represented by a person

not trained in law, was held utterly unfair and unjust. The employee

should have been allowed to appear through legal practitioner and

failure vitiated the enquiry.

Board of Trustees v Nadkarni case reported in 1983 I LLJ Page

Bombay High Court Decision

Apart from the provisions of law, it is one of the basic principles of

natural justice that the enquiry should be fair and impartial. Even if

there is no provision in the Standing Orders or in Law, wherein an

enquiry before the domestic mind, if he seeks permission to appear

through a legal practitioner the refusal to grant this request would

amount to a denial of reasonable request to defend himself and the

essential principles of natural justice would be violated (

Transport pvt. Ltd. and B.K. Patel and others

High Court, Page 121).

Ghatge Patil1984 II LLJ Bombay

Calcutta High Court Decision

Though the court should discourage involvement of legal practitioners

in simple domestic enquiries, like disciplinary enquiries, for avoiding

complications and delays, yet the court’s refusal of such representation

would constitute failure of the enquiry itself. Principles of Natural

Justice demands conceding to such a claim. No general rule can be

laid down in this respect but the issue must be left for the

consideration in the light of the facts and circumstances of each

individual case (

India Photographic Co. v Saumitra Mohan Kumar

1984 I LLJ 471 HC)

Scope of Investigation by Labour Courts and Industrial Tribunals

In cases of termination, generally the tribunal would be required to find

out whether the same amounts to victimisation or unfair labour practice

or was it so capricious or unreasonable as to lead to an inference that

it has been based on some ulterior motives. In other words, it is to

enquire into the bonafides of the management (

ILLJ SC,

Assam Oil Co. 1960Chartered Bank 1960 IILLJ 222 SC),

The Indian Iron and Steel Case

decisions have laid down that there could be an interference:

(i) When there is want of good faith,

(ii) When there is victimisation or unfair labour practice,

(iii) When the management head been guilty of a basic error or

violation of principles of natural justice, and

(iv) When, on the materials before the tribunal, the finding is found to

be completely baseless of perverse.

(1958 I LLJ 260 SC) and subsequent

In the Industan Construction Case

Court again laid down that the tribunal cannot substitute its own

appraisal of the evidence for that of the officer conducting the domestic

enquiry.

, 1965 (10) FIR, the Supreme

Want of Good Faith:

the conclusion must have come objectively - not having made up one’s

mind to find the worker concerned guilty. It was pointed out in the

This only means that on the evidence available

Mackenzie Co.

materials before them to base its conclusions.

(1959 ILLJ 285 SC), the management must have

Victimisation or Unfair Labour Practice :

Bharat Sugars case (AIR 1950 188 SC), observed that the word

Victimisation was not a term of Act or Law and it only meant that a

certain person has become a victim and that he has been unjustly dealt

with.

Where the punishment imposed was shockingly disproportionate to the

misconduct, victimisation is inferred. In (1061 IILLJ 644 SC),

Sugars Case

adjudication can find an employer guilty of an intention to victimise,

there must be reason to think that the employer was intending to

punish workmen for their union activities while purporting to take action

ostensibly for some other activity.

The Supreme Court in theBharat, the Supreme Court held that before an industrial

Basic Error :

respect of a concerted action shows that ‘A’ was guilty actually, but

quite erroneously the decision of the enquiry officer states that ‘B’ was

guilty, it will be a basic error of fact.

If the evidence in disciplinary proceedings instituted in

Baseless or Perverse Findings:

that the findings could be said to be perverse only if it is shown that

such a finding is not supported by any evidence or is entirely opposed

to whole body of the evidence adduced

IILLJ 56 SC) and

Merely that the authority could possibly come to a different view on the

evidence recorded would not make the finding of the domestic tribunal

perverse.

finding is not necessarily a perverse finding’.

It has been pointed out by the courtsDoom Dooma Tea Case (1960Hamdard Dawakhana Case (1962 IIILJ 762 SC).The Calcutta High Court (1966 IILJ 535) said ‘a wrong

Personal Bias:

(a) No man shall be a judge in his won case; and

(b) Justice should not only be done, but manifestly and undoubtedly

seen to be done, (Subba Rao. J AIR 1959 SC 1378)

There is authority for the view that, where there are certain rules

governing the procedure of enquires, the mere violation of such rules

will not give a party a cause of action unless there has been, in

consequence, prejudice caused.

Collector, Central Excise

The principles governing the doctrine of ‘bias’ are:-Veerabadreshwar Rao & Oil Mill Vs, (AIR 1966).

Protection During Pendency of Proceedings (Sec. 33 ID ACT.) :

Under this section when a proceeding is pending before a Conciliation

Officer, Labour court, Arbitrator or Industrial Tribunal, no workman

concerned in the industrial dispute pending before the said authorities

could be punished by way of dismissal or discharge except under

conditions :

(a) If the misconduct with which the workman had been charged is

connected with the dispute pending, he cannot be discharged or

otherwise punished except with the express permission of the

authority before whom the proceeding is pending.

(b) Where misconduct is not connected with the proceeding pending,

the workman could be dismissed or discharged for the misconduct

provided he is paid or tendered a month’s wages and D.A. and an

application is simultaneously made before the authority concerned

for approval of the action taken.

(c) Protected workmen cannot be discharged or punished whether by

dismissal or otherwise except, with the express permission in

writing of the authority concerned.

Any violation of the provisions stated above during pendency of

proceedings before labour court or tribunal can be taken up by the

employee as complaint under sec. 33A to be adjudicated and an award

passed.

Section 2 A of Industrial Disputes Act:

workman could not raise industrial disputes with reference to their

dismissal or discharge. It can only be by collective action. As a result

of the introduction of this section on 1st December 1965, even

individual workman could directly approach the conciliation officer /

Government claiming relief for dismissal or discharge and this claim is

deemed to be an ‘industrial dispute’.

Previously individual

Quantum of Punishment:

with effect from 15.12.1971 the absolute right of the employer to

decide on the quantum of punishment has been abridged and the

tribunals will have power for the first time to differ both on a finding of

misconduct arrived at and also on the punishment imposed by the

employer.

With the introduction of sec. IIA of I.D. Act,Firestone Case (1973 ILLJ 278 SC).

Evidence before the Tribunal :

if the enquiry is in any defect it is optional for the management to

adduce evidence before the tribunal and justify the dismissal or hold an

enquiry afresh, if the domestic enquiry is set aside on technical

grounds

held by the Supreme Court in the Ritz Theatre Case (1962 IILJ 498)

that the adduction of evidence before the tribunal may be without

prejudice to the management’s stand that the domestic enquiry was

complete and proper in itself.

If no domestic enquiry is at all held orMotipur Sugar Case (1965 IILJ 162 SC). It has also been

Discrimination:

those equally situated an unequal treatment is meted to one or more of

them. While some of the workmen participated in an illegal strike

instigating others also to participate and also intimidated the officers

were charge sheeted leaving others who participated, the same cannot

be said to be discrimination.

An act of discrimination could only occur if amongstMotor Industries Case (1969 lIILJ 673 SC.)

Retrospective Dismissal:

invalid and inoperative, if it is not specifically provided for in the

standing orders. in such cases, the employer would be at liberty to set

right the situation by issuing another order prospectively. The workman

would be entitled to wages for the intervening period.

Punishment with retrospective effect will be

Criminal and Domestic Enquiry Proceedings:

two is different. The degree of proof varies. Just as criminal judgment

is not binding upon a Civil Court, acquittal by a Criminal Court of a

person does not bar the domestic authority to pursue the enquiry

proceedings or to come to a different conclusion.

The scope of these

Gherao :

High Court defined Gherao as a physical blockade of a target either by

encirclement of forcible occupation accompanied by wrongful

confinement as also unlawful assembly. Distinctive character of

Gherao is existence in it of coercive method. It is an offence

punishable under the Indian Penal Code. The employer will have every

right to take disciplinary action against employees for participation in

Gherao whether peaceful or disorderly and punish them after holding a

fair and proper enquiry.

In Jay Engineering Case (AIR 1968 Cal. 407), the Calcutta

Refusal to Obey Transfer Orders:

provides for transfer, the order of dismissal for refusal to obey the

transfer order will be justified except, where the order was punitive,

malafide or in the nature of victimisation. Where the service rule

provided for the transfer of an employee from one company to another

company under the same owners, the dismissal for disobeying the

order of transfer was held justified by the Supreme Court in

Where the contract of employment

Madhuband Colliery Case

(1966 IILJ 738).

Discharge of Probation:

reason during the period of probation as per contract of service or

standing order will be valid, except where it is held to be punitive or

malafide.

Discharge of a probationer without assigning

Losing of Lien:

operation of standing order for continuous absence or over-stayed of

leave, the same does not amount to termination by employer. Losing of

lien in such a case is not by any positive action by the employer but by

automatic operation of standing order.

Where an employee lost his lien on employment by

SUPREME COURT ON SEC. 11 A OF INDUSTRIAL DISPUTES ACT, 1947.

Section 11 A:

Powers of Labour Courts, Tribunals and National Tribunals to give

appropriate relief in case of discharge or dismissal of workmen:

Where an industrial dispute relating to the discharge or dismissal of a workman

has been referred to a Labour Court, Tribunal or National Tribunal for

adjudication and. In the course of the adjudication proceedings the Labour Court

Tribunal or National Tribunal as the case may be, is satisfied that the order of

discharge or dismissal was not justified, it may, by its award set aside the order

of discharge or dismissal and direct reinstatement of the workman on such terms

and conditions. if any, as it thinks fit, or give such other relief to the Workman

including the award of any lesser punishment in lieu of discharge or dismissal as

the circumstances of the case may require:

Provided that in any proceeding under this section the Labour Court, Tribunal or

National Tribunal, as the case may be, shall rely only on the materials on' record

and shall not take any fresh evidence in relation to the matter.

The legal position as on 15.12.1971 (When Sec. 11 A introduced in the Industrial

Disputes Act) was brought into force regarding the power of labour court or

Industrial Tribunal when deciding the dispute arising out of dismissal or discharge

of a workman could be summarised as follows:

(i) The right to take disciplinary action and to decide upon the quantum of

punishment are mainly managerial functions, but if a dispute is referred to a

Tribunal, the latter has power if action of the employer is justified:

(ii) Before imposing the punishment, the employer is expected to conduct a

proper enquiry in accordance with the provisions of the Standing Orders, if

applicable, and principles of natural justice. The enquiry should not be an empty

formality.

(iii) When a proper enquiry has been held by an employer, and the finding

misconduct is the plausible conclusion flowing from the evidence adduced at the

said enquiry, the tribunal has no jurisdiction to sit in judgment over the decision of

the employer as an appellate body.

(iv) Even, if no enquiry has been held by an employer or if the enquiry held by

him is found to be defective, the tribunal in order to satisfy itself about the legality

and validity of the order has to give an opportunity to the employer and employee

to adduce evidence before it.

It is open to the employer to adduce evidence for the first time justifying his

action; and it is open to the employee too to adduce evidence.

(v) The effect of an employer not holding an enquiry is that the tribunal would not

have to consider only whether there was a prima facie case. On the other hand,

the issue about the merits of the impugned order of dismissal or discharge is at

large before the tribunal and the latter, on the evidence adduced before it, has to

decide for itself whether the misconduct alleged is proved.

In such cases, the point about the exercise of managerial functions does not

arise at all. A case of defective enquiry stands on the same footing as no enquiry.

(vi) The tribunal gets jurisdiction to consider the evidence placed before it for the

first time in justification of the action taken only if no enquiry has been held or

after the enquiry conducted by an employer is found to be defective.

(vii) It has never been recognised that the tribunal should straightaway, without

anything more, direct reinstatement of a dismissed or discharged employee,

once it is found that no domestic enquiry has been held or the said enquiry is

found to be defective.

(viii) An employer who wants to avail himself of the opportunity of adducing

evidence for the first time before the tribunal to justify his action, should ask for it

at the appropriate stage. If such an opportunity is asked for, the tribunal has no

power to refuse.

The giving of an opportunity to an employer to adduce evidence for the first time

before the tribunal is in the interest of both the management and the employee

and to enable the tribunal itself to be satisfied about the alleged misconduct.

(ix) Once the misconduct is proved either in the enquiry conducted by an

employer or by the evidence placed before a tribunal for the first time,

punishment imposed cannot be interfered with by the tribunal except in cases

where the punishment is so harsh as to suggest victimisation.

(x) In a particular case, after setting aside the order of dismissal, whether a

workman should be reinstated or paid compensation is, as held by this court in

Management of Panitole Tea Estate v The Workman (ILLJ 233, 1971)

the judicial decision of a labour court or tribunal.

To invoke Sec.11 A, it is necessary that an industrial dispute of the type

mentioned therein should have been referred to an Industrial Tribunal for

adjudication the tribunal has to be satisfied that the order of discharge or

dismissal was not justified.

If it comes to such a conclusion, the tribunal has to set aside the order and direct

reinstatement of the workman on such terms as it thinks fit. The tribunal has also

power to give any other relief to the workman including the imposition of a lesser

punishment having due regard to the circumstance. The proviso casts a duty on

the tribunal to rely only on the section, in our opinion it indicates a change in the

law, as laid down by this court, has been affected.

It is well settled that in constructing the provisions of a welfare legislation, the

court should adopt, what is described as a beneficent rule of construction. If two

constructions are reasonably possible to be placed on the section, it follows that

the construction which furthers the policy and object of the Act and is more

beneficial to the employees has to be preferred. Another principle to be borne in

mind is that the Act in question which intends to improve and safeguard the

service conditions of an employee, demands an interpretation liberal enough to

achieve the legislative purpose. But the court should not also lose sight of

another canon of interpretation that a statute, or for that matter, even a particular

section, has to be interpreted according to its plain words and without doing

violence to the language used by the legislature. Another aspect to be borne in

mind will be that there has been a long chain of decisions of this court, referred to

exhaustively earlier, laying down various principles in relation to adjudication of

disputes by Industrial Courts arising out of orders of discharge or dismissal.

Therefore, it will have to be found from the words of the section whether it has

altered the entire law, as laid down by the decision, and if so, whether there is a

clear expression of that intention in the language of the section.

The limitations imposed on the powers of the tribunal by the decision in Indian

, within

Iron & Steel Co. Ltd. Case

The tribunal is now at liberty to consider not only whether the finding of

misconduct recorded by an employer is correct, but also to differ from the said

finding if a proper case is made out. What was once largely in the realm of the

satisfaction of the employer, has ceased to be so, and now it is the satisfaction of

the tribunal that finally decides the matters.

If there has been no enquiry held by the employer or if the enquiry is held to be

defective, it is open to the employer even not to adduce evidence for the first time

before the tribunal justifying the order of discharge or dismissal. The court is not

inclined to accept the contention on behalf of the workman, that the right of the

employer to adduce evidence before the tribunal for the first time recognised by

this court in its various decisions has been taken away. There is no indication in

the section that the said right has been abrogated. If the intention of the

legislature was to do away with such a right, which has been recognised over a

long period of years, as will be noticed by the decisions referred to earlier it

would have been differently worded. Admittedly there are no express words to

that effect and there is no indication that the section has impliedly changed the

law in that respect.

Therefore, the position is that even now the employer is entitled to adduce

evidence for the first time before the tribunal even if he had held no enquiry or

the enquiry held by him is found to be defective. Of course, an opportunity will

have to be given to the workman to lead evidence contra. The state at which the

employer has to ask for such an opportunity has been pointed out by this court in

(Supra) can no longer be invoked by an employer.

Delhi and General Mills Co. Ltd.

consuming, elaborate and cumbersome. As pointed out by this court in the

decision just referred to above, it is open to the tribunal to deal with the validity of

the domestic enquiry, if one has been held as a preliminary issue. If its finding on

the subject is in favour of the management, then there will be no occasion for

additional evidence justifying his action. This right in the management to sustain

its order by adducing independent evidence before the tribunal, if no enquiry has

been held or if the enquiry is held to be defective has been given judicial

recognition over a long period of years. It was agreed that even after Sec. 11 A

the employer and employee can adduce evidence regarding legality or validity of

the domestic enquiry, if one had been held by the employer.

Having held that the right of the employer to adduce evidence continues under

the new section, it is needless to state that, when such evidence is adduced for

the first time, it is the tribunal which has to be satisfied on such evidence about

guilt or otherwise of the workman concerned. The law, as laid down by this court

that under such circumstances the issue about the merits of the impugned order

of dismissal or discharge is at large before the tribunal and that it has to decide

for itself whether the misconduct alleged is proved, continues to have full effect.

In such a case, as laid down by this Court, the exercise of managerial functions

does not arise at all.

Therefore, it will be seen that both in respect of cases where a domestic enquiry

has been held as also in cases where the tribunal considers the matter on the

evidence before it for the first time, the satisfaction under Sec. 11 A, about the

guilt or otherwise of the workman concerned, is to come to a conclusion one way

or other.

Even in cases where an enquiry has been held by an employer and a finding of

misconduct arrived at, the tribunal can now differ from that finding in a proper

case and hold that no misconduct is proved.

Under Sec. 11 A, the Industrial Tribunal or the Labour Court may hold that the

proved misconduct does not permit punishment by way of discharge or dismissal

and in cases under such circumstances award to the workmen any lesser

punishment instead.

The power to interfere with the punishment and alter the same has now been

conferred on the tribunal by Sec.11A.From the wording of the proviso to Sec.11A

it could not be inferred that the right of the employer to adduce evidence for the

first time has been taken away as the tribunal is obliged to confine its scrutiny

only to the materials available at the domestic enquiry.

The expression materials on record occurring in the proviso cannot be confirmed

only to the matters which were available at the domestic enquiry. On the other

hand the materials on the record in the proviso must be held to refer to materials

on record before the tribunal.

They take in:

1. the evidence taken by the management at the enquiry, or

2. the above evidence and, in addition, any further evidence before the tribunal,

or

3. evidence placed before the tribunal for the first time in support of the action

taken by an employer as well as the evidence adduced by the workmen contra.

The above items by and large should be considered to be the materials on record

as specified in the proviso. The court is not inclined to limit that expression as

meaning only that material that has been placed in a domestic enquiry. The

provision only confines the tribunal to the materials on record before it as

specified above, when considering the justification or otherwise of the order of

discharge or dismissal.

It is obliged to consider whether the misconduct is proved and the further

question whether the proved misconduct justifies the punishment of dismissal or

discharge. It also prohibits the tribunal from taking any fresh evidence either for

satisfying itself regarding the misconduct or for altering the punishment.

From the proviso, it is not certainly possible to come to the conclusion that when

once it is held that an enquiry has not been held or is found to be defective; an

order reinstating the workman will have to be made by the tribunal. Nor does it

follow that the proviso deprives an employer of his right to adduce evidence for

the first time before the tribunal.

The expression "fresh evidence" has to be read in the context in which it

appears, namely, as distinguished from the expression materials on record. If so

read, the proviso does not prevent any difficulty at all.

The Legislature in Sec. 11 A has made a departure in certain respects in law as

laid down by this court. For the first time, power has been given to a tribunal to

satisfy itself whether misconduct is proved. This is particularly so, as already

pointed out by us, regarding even findings arrived at by an employer in an

enquiry properly held.

The tribunal has also been given power, also for the first time, to interfere with

the punishment imposed by an employer. When such wide powers have been

now conferred on tribunals, the legislature obviously felt that some restrictions

have to be imposed regarding what matters could be taken into account. Such

restrictions are found in the proviso.

The proviso emphasises that the tribunal has to satisfy itself one way or other

regarding misconduct, the punishment and the relief to be granted to workman

only on the basis of the materials on record before it. The tribunal, for the

purposes referred to above, cannot call for further or fresh evidence, as an

appellate authority may normally do under a particular statute, when considering

the correctness or otherwise of an order passed by a subordinate body. The

matter in the proviso refers to the order of discharge or dismissal that is being

considered by the tribunal.

The court should hot be understood as laying down that there is no obligation

whatsoever on the part of an employer to hold an enquiry before passing an

order of discharge or dismissal. This court has consistently been holding that an

employer is expected to hold a proper enquiry according to the standing orders

and principles of natural justice.

It has also been emphasised that such an enquiry should not be an empty

formality. If a proper enquiry is conducted by an employer and a correct finding

arrived at regarding the misconduct, the tribunal, even though it has no power to

differ from the conclusions arrived at by the management will have to give every

cogent reasons for not accepting the view of the employer.

Further, by holding a proper enquiry, the employer will also escape the charge of

having acted arbitrarily or malafide. It cannot be over-emphasised that

conducting of a proper and valid enquiry, will improve the relationship between

him and the workmen and it will serve the cause of ·industrial peace. Further, it

will also enable an employer to persuade the tribunal to accept the enquiry as

proper and the finding also as correct.

(Supra). No doubt, this procedure may be time

Notes to Section 11 A

This section has no retrospective operation and therefore does not apply to

disputes which had been referred prior to the 15th December, 1971, on which

date Sec. 11A was brought into operation.

Rubber Co. of India (P) Ltd. v The Management and others - 1973 (1) LLJ

278, The Gujarat Mineral Development Corporation v P.H. Brahmbhatt -

1974 (1) LLJ 97 and East India Hotels v Their Workmen and others - 1974

LIC 532)

(Workmen of Firestone tyre &

A direction withholding payment of back wages either fully or partially is

undisputably penal in nature. An award directing reinstatement of an employee

without back wages and without any other kind of punishment specified in the

regulations of the management is not bad merely because the employee was

found guilty of misconduct, it in the opinion of the tribunal the misconduct is not

so grave as to warrant the extreme penalty of discharge or dismissal.

The term lesser punishment in the section cannot be restricted by reading words

which are not contained in the section. This section does not state that the lesser

punishment should be one which is provided in the Regulations or Standing

Orders of the management. The provision takes in its sweep all punishments

lesser than discharge or dismissal, whether provided for in the Regulations or

Standing Orders of the management or not.

Transport Corporation v Labour Court, Guntur, and another - 1978 LIC. 359)

(Andhra Pradesh State Road

Very wide powers have been conferred by the legislature on the tribunals to

decide the questions between the workmen and the employer. They can even reappraise

the evidence laid before the enquiry officer and examine the

correctness of his finding.

IMPORTANT SUPREME COURT AND HIGH COURT JUDGMENTS

RELATING TO DOMESTIC ENQUIRY

Article 311 (2) (b) of the Constitution

Union of India and Another and Tulasiram Patel

 

 

HIGH COURT OF DELHI AT NEW DELHI

 

Subject : Service Matter : Dismissal

 

WP(C) No. 4417/1999

 

 

                                                                                    RESERVED ON:             20-04-2004

                        DATE OF DECISION:    05-07-2004

 

 

Sh.S.D. Gupta                                      .........     Petitioner

                                                                          through:  Mr.Keshav Dayal, Sr.Advocate

                                                                           with Mr.R.K. Varshney, Advocate.

 

                                    VERSUS        

 

Punjab National Bank & Others            ........      Respondent

               through:  Mr.Raj Birbal, Sr.Advocate with

Mr.R.S. Mathur and Ms.Raavi  Birbal,                             Advocate.

 

           

PRADEEP NANDRAJOG, J.

 

1.         Petitioner seeks quashing of the charge sheet dated 19.7.1995, the enquiry report dated 24.6.1996, order of the disciplinary authority dated 22.1.1998 imposing the penalty of dismissal from service which shall be a disqualification from future service and order of the Appellate Authority dated 9.12.1998 upholding the order of penalty imposed by the disciplinary authority.  Petitioner also challenges the charge-sheet dated 20.7.1995 and the enquiry report dated 1.2.1997.  Petitioner though laid a challenge to  the charge- sheet dated 4.11.1994, enquiry report dated 10.7.1995 and the order of the disciplinary authority dated 5.9.1995 in the  writ petition, did not  press the same during argument.   Arguments were therefore restricted to the charge-sheet dated 19.7.1995, enquiry report pertaining to the said charge sheet and the penalty imposed thereunder.  Challenge to the charge sheet dated 20.7.1995 was restricted only to one ground, namely, delay in issuance of the charge sheet.  No arguments were advanced in respect of the enquiry   report dated 1.2.1997.  Counsel for the petitioner stated that challenge to the enquiry report dated 1.2.1997 was given up save and accept that the charge sheet dated 20.7.1995 was being challenged on the ground of delay in issuing the charge sheet.

 

2.         Petitioner was appointed in the clerical cadre under Punjab National Bank on 25.3.1958.  He  earned various promotions.  On 25.6.1983 petitioner was promoted as an officer in scale III.  On 25.8.1989 he was promoted as Officer Scale IV.  As per the petitioner, he was posted in troublesome, critical, stagnant and loss making branch of the bank at Rajouri Garden, New Delhi on his being promoted in scale IV.  He was posted as Chief Manager.  Thereafter, petitioner was posted as Chief Inspector (Touring) on 1.2.1992.  Said job required the petitioner to conduct inspections and investigations pertaining to complaints qua the working of certain branches of the bank.  As per the petitioner he had an unblemished record.

 

3.         Petitioner states that he was to attain the age of 60 years in the month of July 1995 and was to superannuate on 31.7.1995.  He was expecting to receive a farewell and his terminal benefits.  Petitioner was expecting to lead a happy retired life.  Alas, he was struck with a bolt of lightening.  Two charge-sheets dated 19.7.1995 and 20.7.1995 were served upon the petitioner.

 

 

4.         Charge-sheet dated 19.7.1995 lists 4 charges against the petitioner.  The charges  are:-

"ARTICLE-I

He abused his official position and extended undue favour to various borrowers and sanctioned/enhanced credit facilities without conducting pre-sanction appraisal.

 

ARTICLE-II

He sanctioned/enhanced limits in various borrowal accounts  and disbursed/released the amount and deliberately ignored to ensure proper end use of bank's funds which were withdrawn fictitiously and mis-utilised.

 

ARTICLE-III

He failed to observe post-sanction safeguards thereby jeopardised bank's interest.

 

ARTICLE-IV

He failed to have control over the staff working under him, particular Manager (Loans) who exercised his powers indiscreetly  to unduly accommodate the borrowers while sanctioning credit facilities.

 

He has thus failed to take all possible steps  to ensure  and protect the interests  of the bank  and discharge his duties with utmost devotion and diligence."

 

5.         Charge-sheet dated 20.7.1995 lists one charge against the petitioner.  The same reads as under:-

"ARTICLE-I

He failed to conduct pre-sanction appraisal in respect of creation of Equitable Mortgage of immovable properties to secure collaterally various credit facilities granted to borrowers which resulted in impairment of the right of the bank in enforcing the mortgage and has jeopardised Bank's interest.

 

He  thus did not discharge his duties with utmost  devotion and diligence."

 

6.         Since petitioner was due to superannuate on 31.7.1995 and the disciplinary proceedings could not be completed before petitioner attained the age of superannuation an order was passed under Regulation 20(3) (III) of the PNB (Officers) Service Regulations, 1978 by the disciplinary authority to continue the disciplinary proceedings against the petitioner.  Order dated 22.7.1995 reads as under :-

"WHEREAS Shri S.D.Gupta, Chief Inspector, Inspection & Control Division, 5 Sansad Marg, New Delhi has been served with the charge sheets dated 4.11.94 read with corrigendum dated 31.5.95, 19.7.95 and 20.7.95 under the Punjab National Bank Officer Employees (D&A) Regulations 1977. 

 

AND WHEREAS Shri Gupta is due to attain age of superannuation on 31.7.95 and disciplinary proceedings are likely to continue beyond the date of superannuation of Shri Gupta.

 

NOW, THEREFORE in pursuance of the sanction accorded by the Chairman & Managing Director under Regulation 20.3 (iii) of Punjab National Bank (Officers) Service Regulations, 1979, it has been decided that Shri Gupta will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings  are concluded and final order is passed in respect thereof.  Shri Gupta will not receive any pay and/or allowance after the date of superannuation.  He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon except his own contribution to CPF."

 

7.         Statement of imputation in support of the Articles of Charge I under the charge-sheet dated 19.7.1995 was that the petitioner extended undue favour and sanctioned/enhanced credit facilities  without conducting pre-sanction appraisal in respect of 4 parties:-

(i)         M/s Progressive Colours Pvt. Ltd.

(ii)        M/s Akshita Electronics Industries

 

(iii)       M/s R.S.Philtronics Pvt. Ltd.

(iv)       M/s Fairdeal Packers.

 

8.         In respect of the second limb of Article of Charge No.I pertaining to sanction of credit facilities without compilation of confidential reports statement of imputation was that confidential report of Shri J.K.Gambhir and  Shri Satish Gambhir guarantors in the account of M/s. R.S.Philtronics Pvt. Ltd. were not compiled properly.  Similarly confidential report of Shri Mohan Lal, Proprietor Of the Firm M/s Prince Enterprises was not compiled properly.  Similar allegations pertained to non-compilation of confidential reports in a proper manner in respect of Shri Sanjay Kumar Proprietor of the firms M/s Akshita Electronics Ltd.

9.         Pertaining to Article of Charge No.II, statement of imputation related to sanction/enhanced limits pertaining to the firms M/s Akshita Electronics Industries, M/s Prince Enterprises, M/s R.S.Philtronics Pvt. Ltd., M/s Atma Plastics, M/s Daniel Systems, M/s Prabhu Darshan Industries and M/s Kansara Trading Corporation.

10.       Indictment was that immediately on sanction/ enhancement of limits, payments were released by cash orders from the accounts of these firms.  Operators of these accounts siphoned away the funds.  Petitioner failed to ensure proper end use of the funds made available by the bank.  Machinery which was to be purchased, for which the limits were sanctioned/enhanced were never purchased.  Petitioner did not take necessary precaution to see that the funds were used for the purpose for which they were sanctioned.  In all the cases payments were released under cash orders.

11.       Pertaining to Article of Charge No.III, statement of imputation was that pertaining to the account of M/s Indimpex, to secure the loan, an equitable mortgage was created by pledge of property standing in the name of Shri Hans Kumar Channa.  Another equitably mortgage of a property belonging to one Smt. Krishnawati was obtained.  Property was treated as free from encumbrances on the basis of mere affidavits of the parties without carrying out a search, whether at all, properties were free from encumbrances.  Pertaining to equitable mortgage for the credit facilities obtained by M/s Akshita Electronics Industries it was stated that title deeds of the property of Shri D.C.Gupta guarantor were lying with Vijaya Bank, Krishna Park till 28.6.1991 but petitioner had recorded creation of equitable mortgage by deposit of the deeds on 4.3.1991.  Another instance listed was the fraudulent creation of equitable mortgage pertaining to the account of M/s Prince Enterprises created on the property of a guarantor, Shri Mukesh Kumar who had denied his signatures as guarantor.  Original of the mortgage deed was not available.  Pertaining to the account of M/s Daniel Systems imputation records that mortgage was created even prior to the date of sanction of the credit facility.  For the account of M/s Bharat Adhesives it was stated that the collateral security by way of deposit of title deeds was shown as secured to the bank on 15.12.1991 whereas the documents were actually received on 12.1.1991.  When the documents were received, it was noted that this very property was offered as collateral security by another borrower M/s Sariman Chemicals Corporation.  Pertaining to the equitable mortgage created on 12.1.1991 by the firm M/s Bharat Adhesive it was stated that legal formalities for creation of the equitable mortgage were not observed.  Another allegation listed pertained to the collateral security for the account of M/s A.P.Enterprises.  Equitable mortgage was created on the basis of a sale deed of a property in the name of Shri Sri Ram.  This was released and another property in the name of Smt. Gango and Smt. Murti Devi was replaced as security by way of an equitable mortgage.  The title documents of these two ladies were fictitious.  The statement of imputation further listed not ensuring proper maintenance of stock register and inventory by three firms, M/s Oberoi Packaging, M/s R.S.Philtronics Pvt.Ltd. and M/s Gaurav Packers.  Statement of imputation pertaining to Article of Charge No.III further listed instances of the petitioner allowing waivement of legal action in 1983  which waivement was stated to be beyond the powers of the petitioner.

12.       Pertaining to Article of Charge No.IV, statement of imputation related to failure to maintain control over the staff working under the petitioner and in particular, the Manager (Loan) Shri M.L.Gupta.  Facts stated in the statement of imputation were that pre-sanction appraisals were not properly conducted by Shri M.L.Gupta and the petitioner did not observe or take note of the same.  4 instances pertaining to the firms M/s A.P.Enterprises, M/s Daniel Systems, M/s Akshita Enterprises and M/s Trishul Industries were specifically listed.

13.       The statement of imputation would reveal that the various action of omission and commission pertained to the years 1990 and 1991.

14.       Statement of imputation pertaining to the second charge-sheet dated 20.7.1995 show that the same related 11 firms and pertained to the period June, 1984 to March, 1988 when the petitioner was functioning as Senior Manager at the branch office  General Ganj, Kanpur.  Facts showing failure to conduct pre-sanction appraisal in respect of creation of equitable mortgage while according sanction for grant of sanction limits were listed.  The mortgages were found defective, thereby jeopardising the possibility of recovery of the outstanding amounts from said 11 customers.  Statement of imputation would reveal that approximately Rs.42 lacs had become a doubtful recovery as the collateral securities by way of mortgages for these 11 parties were found to be not created as per law.

15.       Petitioner submitted reply to both the charge-sheets.  I may only note the reply pertaining to the charge-sheet dated 19.7.1995 because challenge to the charge-sheet dated 20.7.1995, as noted above, was restricted only to one ground, namely, delay in issuing the charge-sheet.  Merits of the second charge-sheet was not gone into by counsel for the petitioner during arguments.

16.       While replying to the charge-sheet dated 19.7.1995 under cover of letter dated 25.8.1995, petitioner stated that the various acts do not constitute a misconduct, at , they were errors of judgments which could not be enumerated as misconduct.  After so stating, petitioner questioned the very initiation of the enquiry against him by stating that they pertained to acts of omission and commission done or not done by the petitioner in the year 1990 and 1991.  Disciplinary proceedings were invoked after a lapse of 4 to 5 years.  Delay was fatal and therefore the enquiry was vitiated.  Petitioner relied upon administrative instructions of the bank contained in circular No.1016 dated 28.7.1984 and circular No.47 dated 13.8.1987 to the effect that for procedural lapses, no disciplinary action could be initiated after expiry of 6 months.  Relying upon the said circulars, petitioner stated that successor officer had to report procedural lapses in the charge taking report within 6 months, failing which it was the responsibility of the successor.

17.       Pertaining to the IVth Articles of Charge, petitioner stated that under Article of Charge No.I, he was charged with the offence of extending undue favours to various borrowers by sanctioning or enhancing credit facilities without conducting pre sanction appraisal.  He stated that under Article of Charge No.IV same charges have been repeated pertaining to pre-sanction appraisal norms not being followed by Manager (Loan) and the petitioner failing to  exercise control over the Manager (Loan).  Petitioner stated that Article of Charge No.IV was therefore a part of Article of Charge No.I.  Similarly in respect of Article of Charge No.II and Article of Charge No.III petitioner stated that the two represented a different facet of the same transaction.  Petitioner stated that the Articles of Charge were inextracably inter-linked with each other and therefore all of them required to be clubbed.  Thereafter, petitioner proceeded to give his response by realtering the allegations against him.  Perusal of the reply would show that the petitioner listed out the allegations against him pertaining to the accounts of different parties and gave his justification thereto under various paragraphs having sub heads A, B, C and onwards and I, II, III and onwards.

18.       Reply not being found satisfactory, disciplinary authority appointed an enquiry officer. 

19.       Disciplinary enquiry against the petitioner had to be conducted as per the PNB Officer Employees (Discipline and Appeal) Regulations,1977.  Procedure to be followed was as per Regulation 6 thereof.  In compliance with sub Regulation (3) of Regulation 6, charge-sheet was served (as noted above) requiring the petitioner to communicate, in writing, a written statement of his defence.  On the same being received, the disciplinary authority under sub Regulation (4) of Regulation 6 appointed an enquiry officer.  In terms of sub Regulation (5), the disciplinary authority, forwarded to the enquiry officer the Articles of Charge and statement of imputations, written statement of defence, list of documents and list of witnesses by whom the charges as proposed were to be substantiated.  Enquiry officer notified a date for the petitioner to appear before the enquiry officer.  Right to be defended by a defence assistant was afforded to the petitioner.  Enquiry proceeded. 

20.       Counsel for the petitioner did not dispute that before the enquiry proceeded, at the preliminary hearing, the 60 documents which were relied upon by the Management along with the list of witnesses containing the name of the witnesses were supplied to the petitioner.  Petitioner verified the said 60 documents which were thereafter marked as M-1 to M-60.

21.       Petitioner had a right to requisition the relevant documents in defence.  Petitioner submitted a list of 162 documents to be summoned from the bank in defence.  It is the admitted case of the parties that the enquiry officer held that the said 162 documents were relevant and passed an order for their production.  It is further the admitted case of the parties that only 144 documents were produced by the bank.  18 documents could not be traced and a certificate to that effect was filed by the custodian.

22.       Enquiry proceeded.  The bank led evidence.  Full opportunity of cross-examination was granted to the petitioner.  Defence assistant appeared and cross-examined the witnesses.  The petitioner did not lead any defence evidence, not even his own.

23.       Enquiry report was submitted by the enquiry officer on 24.6.1999.  The report of the enquiry officer would reveal that he, while submitting the report analysed the evidence and returned his finding in respect of the acts of omission and commission alleged against the petitioner under headings, not as per the charge-sheet served, but as per the re-altered headings given by the petitioner while replying to the charge-sheet.

24.       While submitting his report, enquiry officer held which of the re-listed allegations were proved, which were not proved and which were partially proved.

25.       Gist of the findings of the enquiry officer are as under:-

a.         Allegation pertaining to sanctioning credit facilities to M/s Progressive Colours Private Limited without conducting proper pre-sanction appraisal proved;

b.         Allegation pertaining to the aforesaid party that credit facilities were sanctioned on the basis of unaudited balance-sheet, and as a result thereof outstandings of the party with the branch of the bank at NIT, Faridabad were ignored, were held to be proved.

c.         Allegation pertaining to the same party that the petitioner acted on an undated loan application and got the date subsequently filled up  was established as proved, the result  being  that the party obtained credit facilities from Faridabad during the pendency of the loan application with the branch headed by the petitioner.

d.         Allegation pertaining to the said party that the company was authorised to raise a loan only upto 10 lakhs whereas petitioner sanctioned the loan aggregating to Rs.13.5 lakhs on the basis of a Resolution dated 9.5.1991 was held proved to the extent that the petitioner sanctioned the limit beyond the authorised limits of the company. Allegation that the petitioner acted on the basis of the Resolution dated 9.5.1991 was held not proved as it was held that the bank did not produce the Resolution in spite of it being called for by the petitioner.  It may be noted that while recording the finding pertaining to this allegation, the enquiry officer has recorded:-

"In view of the above, on the basis of available records, the charge is partially proved to the extent that C.O. could not produce evidence showing that he sanctioned limit within the authorised limit of the company and charge for T-L and enhanced facilities was registered."

e.         Allegations pertaining to M/s Akshita Electronics Industries that without ensuring proper appraisal credit facilities were extended, was held to be proved.  It was held that the allegation that the petitioner acted under an undated loan application and subsequently ante-dated the same was held not proved.

            Allegation pertaining to this party that facilities had been sanctioned under SSI Scheme acting under a certificate which was cancelled by the Directorate of Industries, was held as not proved.

            Allegations pertaining to this party that credit facilities were released without any margin money available with the party were held to be proved to the limited extent that the party had no cash margin when the credit facility was extended.  However, allegation that the credit rating of the individual had also to be taken into account while assessing the credit rating of the firm was held to be not proved.

            Allegation pertaining to this party that it was availing credit facilities from Vijaya Bank who had recalled the loan amount and while sanctioning the credit facility, this was ignored by the petitioner, in that, petitioner by a little diligence could have avoided the same was held to be proved.  (This allegation relates to the petitioner not ensuring proper appraisal).

f.          Allegations pertaining to the firm M/s R.S. Philtronics Private Limited were held to be proved that proper appraisal was not done by the petitioner  in respect of the documents submitted. Pertaining to the allegations that petitioner omitted to note that the Resolution by the Company did not specify the amount of loan to be raised as also the allegation that the documents submitted by the company did not bear the seal of the company, were   held not proved.

            Allegation that the petitioner ignored the actual location of the factory where the assets were located was held not proved.

g.         Allegations pertaining to the firm M/s Fairdeal Packers pertaining to release of fresh credit facilities before getting the old account in P.A. category adjusted and closed as advised by the Zonal officer was held to be proved.

h.         Allegations pertaining to the sanction of the credit facilities without compilation of Confidential Reports pertaining to the firms M/s R.S. Philtronics Private Limited, M/s Prince Enterprises, M/s Akshita Electronics Industries were held to be proved.

i.          Allegations pertaining to lapses in the Confidential Reports pertaining to Sanjay Kumar, proprietor of the firm M/s Akshita Electronics Industries who also acted as Managing Director of M/s Sara Communications and Business Systems Private Limited was held to be proved to the extent that the petitioner failed to effectively supervise the working of the Manager (Loans).

26.       Pertaining to the allegations that the petitioner had not ensured proper end use of the bank funds evidenced by the fact that payments were released under cash orders and it was not even got verified whether the machinery, purchase of which was the ostensible reason for the loan,   it was held that the allegations pertaining to M/s Akshita Electronics Industries were proved, pertaining to M/s Prince Enterprises they stood proved, pertaining to M/s R.S. Philtronics Private Limited they stood proved, pertaining to M/s Atma Plastics, allegations were proved and pertaining to the firm Prabhu Darshan Industries,  allegations were held as proved.

27.       Pertaining to the allegation of creating equitable mortgage in a manner where either no equitable mortgage was created or loans were sanctioned prior to receipt of title deeds or the title deeds were forged and fictitious documents, it was held that pertaining to the firms M/s Indempex, M/s Akshita Electronics Industries, M/s Prince Enterprises, M/s Daniel Systems, M/s Bharat Adhesives and M/s A.P.Enterprises, allegations against the petitioner stood established.  Allegations  that the petitioner did not ensure periodic verification of securities was held established that the petitioner had not regularly verified most of the accounts of the borrowers.  Allegation that the petitioner failed to keep the limitation alive was held established in respect of 3 accounts and not all which were subject matter of allegations.

28.       Allegations against the petitioner that he failed to exercise control over the staff working under him and in particular the Manager (Loans) was held to be proved.

29.       To put it in a graphic form, the re-altered articles of charge as per the reply of the petitioner to the 4 articles of charges, proved, partially proved or not proved  are as under:-

CHARGE        I (a) (A) (i)       PROVED

                        I (a) (A) (ii)      PROVED

                        I (a) (A) (iii)      PROVED

                        I (a) (A) (iv)     PARTIALLY PROVED

 

CHARGE        I (a) (C) (i)       PARTIALLY PROVED

                        I (a) (C) (ii)      PROVED

                        I (a) (C) (iii)      NOT PROVED

CHARGE        I (a) (D)                       PARTIALLY PROVED

CHARGE        I (b) (i)             PROVED

                        I (b) (ii)                        PROVED

                        I (b) (iii)                        PARTIALLY PROVED

 

CHARGE        II (A)               PARTIALLY PROVED

                        II (B)                PARTIALLY PROVED

                        II (C)               PARTIALLY PROVED

                        II (D)               PARTIALLY PROVED

                        II (E)                PARTIALLY PROVED

                        II (F)                PARTIALLY PROVED

                        II (G)               NOT PROVED

 

CHARGE        III (A)              PARTIALLY PROVED

                        III (B)              PARTIALLY PROVED

                        III (C)              PARTIALLY PROVED

                        III (D)              PARTIALLY PROVED

CHARGE        IV                    PROVED

30.       The disciplinary authority furnished to the petitioner a copy of the enquiry report for the petitioner's response thereto.  Petitioner responded to the findings of the enquiry officer under cover of his letter dated 11.8.1996.  Inter alia, while giving his response, petitioner stated in respect of charges I(a)(A)(i), I(a)(A)(ii) and I(a)(A)(iii) that the enquiry officer acted upon an inspection report which is not part of the proceedings.  In respect of findings pertaining to the said charges, and the charge I(b)(iii), petitioner made a grievance that findings were returned on the ground that the petitioners had failed to dis-prove the same.  Petitioner raised a grievance that a negative onus could not be placed upon him.  After raising the said two technical objections, petitioner gave his response on merits.

31.       It is to be noted that in the reply submitted by the petitioner to the enquiry report, no grievance has been raised pertaining to non-production of 18 documents requisitioned by the petitioner.  Much less, is there a grievance that petitioner's defence was prejudiced.

32.       Agreeing with the report of the enquiry officer and in view of the record of the enquiry, the disciplinary authority acting under Regulation 20(3)(iii) of the PNB (Officers) Service Regulations, 1979 imposed the penalty of "dismissal from bank service which shall be a dis-qualification for future employment" under the order dated 22.1.1998 which was communicated to the petitioner under cover of letter dated 23.1.1998.

33.       Petitioner filed an appeal.  In appeal, petitioner raised the grounds that a portion of the inspection report dated 28.11.1991 which was unexhibited was relied upon by the enquiry officer and 18 relevant documents which were held to be relevant and directed to be produced were not produced.  Petitioner stated that this vitiated the enquiry report.

34.       In appeal, petitioner raised another technical objection that he superannuated on 31.7.1995, his provisional pension had to be fixed.  This provisional pension was in the nature of a subsistence allowance.  Provisional pension not having been paid to him during the entire duration of enquiry, enquiry stood vitiated.

35.       After listing out the aforesaid technical objections, petitioner dealt with the merits of the matter.  The appellate authority dismissed the appeal vide order dated 9th December, 1998.  Pertaining to the 3 technical objections raised by the petitioner, it was noted by the appellate authority that during evidence, the entire inspection report dated 28.11.1991 was proved.  But since it was a bulky document, a copy of the relevant documents was placed on record.  While preparing the written arguments, the Presenting Officer had appended a small portion of the said inspection report which was otherwise proved in its entirety but only portion was taken on record for sake of convenience, not to make the record bulky.  It was held that it could not be equated with a case where an unproved document was taken on record, it was held that no prejudice was caused.  It was further held by the appellate authority that ignoring said portion, there was other evidence on the basis of which that part of the enquiry report could be sustained.

36.       In respect of the plea that 18 documents were not summoned, it was held that in view of the non-availability certificate given by the custodian, documents could not be brought on record.  It was held that report of the enquiry officer is based on evidence and therefore, the enquiry report was not vitiated.  The third plea pertaining to non-payment of provisional pension has not been dealt with by the appellate authority.

37.       On merits, appellate authority did not agree with the submissions made by the petitioner and as a consequence thereof rejected the appeal. 

38,       Grievance of the petitioner in the writ petition may be summarised as under :

(a)        The charge-sheet dated 19.,7.1995 pertains to events of 1991-92 and the charge-sheet dated 20.7.1995 pertains to events of 1984 to 1988, being belated,  the  two had to be quashed.   Circular dated 28.7.1984  and No.47 dated 13.8.1987 were relied upon.

(b)        Principles of natural justice have been violated by the enquiry officer and hence the  enquiry  report dated 24.6.1996 and orders passed  thereon  are liable to be quashed.    Three  instances  of violation of principles of natural justice have been listed:

i)          Petitioner  had sought production of 162 documents. They were held to be relevant  and the enquiry officer directed their  production.   Only 144 were produced by the bank.   18 were withheld.   Therefore,  petitioner was denied a fair opportunity of defending himself.

ii)         Enquiry officer relied upon un-exhibited portions of an inspection report dated 28.11.1991.   By relying upon an unproved  document, not even brought on record of the enquiry officer, petitioner's right  to challenge the document  has been infringed.

iii)         Photocopies  of some letters were relied upon by the enquiry officer without original  being produced and authors of these letters were not examined.    MW-3 proved these letters and his evidence was hearsay.

(c)        Enquiry  report was  based on surmises and conjectures.

(d)        Copy of C.V.C. advise was not supplied to the petitioner and hence he was denied opportunity to respond to the same.

(e)        Order of dismissal could not be passed as only penalty  could be under P.N.B. (Employees) Pension Regulations,1995.

(f)         Penalty under Pension Regulations could be imposed  only if the misconduct was a grave misconduct. There is no finding that the misconduct was a grave  misconduct.

(g)        Since there was no charge that the petitioner  had caused a pecuniary loss to the bank, gratuity had to be paid  because only where there was an allegation which was proved that a bank employee had caused pecuniary loss, could the said  sum be recovered from the gratuity.

(h)        Petitioner was paid provisional pension after 15 months of his superannuation.  It was akin to a suspended employee not being paid subsistence  allowance during the pendency of the disciplinary proceedings.  Therefore, the proceedings before the Enquiry Officer  stood vitiated.

39.       Before proceeding to analyse the case pleaded by the petitioner, I may note that pertaining to the third element  of  violation of principles of natural justice, namely, photocopies of some letters being relied upon by the enquiry officer without originals being produced  and authors  of the letters not being examined, though raised in the writ petition, during arguments no submissions were made.  I may also note that  in the written submissions filed, this issue has been raised.   However, since during arguments it was not urged, counsel for the respondents did not respond to this  and I would treat that the same was  not urged  at the hearing.   Similarly, grievance  that C.V.C. advise was not supplied to the petitioner, though raised in the writ petition, during arguments, no submissions were made  and as a consequence, counsel for the respondent did not meet the same.  I may also note that in the  written  submissions, this point has been stated.   However, since it was not argued  at the oral hearing, I would treat  this point as not having been urged.   In any case, in view of my finding, as would be evident hereunder  that an order of dismissal  could not be passed  and the only penalty which could be inflicted was the one under the Pension Regulations,1995  and in view of my further direction of remand before the Disciplinary Authority, this issue becomes a non-issue as the petitioner  can urge this issue before the Disciplinary Authority.

40.       Delay in  initiating an enquiry by issuing a charge-sheet, may in some cases  cause prejudice to an employee.   As time passes, memory fades  and even documentary  evidence may  get lost.   This causes prejudice to the evidence.   An employee  and that too of a bank, must show exemplary good conduct while in service. Every misconduct causes injury to the public.  Public interest demands that an erring  bank official should be punished for his misconduct.   Public interest viz-a-viz interest of the individual has, therefore, to be balanced.

41.       A misconduct seldom surfaces when committed.   A public  scandal may break  out when some consequence of misconduct  is felt.   There would always be a hiatus between the time of misconduct and its surfacing.     In a banking industry, this would be more true  because misconduct  normally surfaces  when an account becomes sticky and action  for recovery is initiated.  It  is at that stage that lapses and  misconduct surfaces.  Therefore, in cases pertaining to banks, delay has to be considered in light of the aforesaid.   Further, banking business is governed  by stipulated procedures and all evidence is documentary.   This would be  by and large true.   Oral evidence  constitutes  a small fragment of evidence   in an enquiry pertaining to misconduct in the banking business by a bank employee.   Inherently, there is less possibility of the defence being  prejudiced  by passage of time in the disciplinary matters pertaining to banks.

42.       The two enquiry reports pertaining to the charge-sheets dated 19.7.1995 and 20.7.1995  would reveal that the entire evidence lead is documentary evidence.

43.       Charge-sheet dated 19.7.1995 pertains to the events of the years 1991-92.   Charge-sheet dated 20.7.1995 pertains to the  events  of 1984 to 1988.   The enquiry reports would reveal that  though  the acts complained of  were committed by the petitioner  much earlier,  they surfaced  when the accounts  became sticky.

44.       As a senior officer or the bank, if the petitioner wrote on the relevant files  that all documentation  is complete and purportedly documentation was shown to be complete, there was hardly any scope  of detection of the illegality committed, save and except,  where the accounts went sticky.   Petitioner relied upon two circulars  of the years 1984 and 1987, which provide that where an employee is transferred from a branch,  his successor must within six  months  detect lapses  and report to higher authorities, failing  which responsibility would be  that  of the successor.     Circulars further provide  that where  an employee has been transferred from a  branch and a period of more than three years has elapsed,  he  may not be held responsible of the lapses at his previous place of posting.

45.       The circulars are mere guidelines and cannot be enforced as a statutory right.   They are for the guidance of the bank  and require the successor-in-interest, while taking charge, to ensure that  his predecessor-in-interest  has handed over charge of the branch without any lapse committed by him.   However, as noted by me above, in a banking industry a misdeamnour  or a lapse  would normally surface when an account has become sticky.   I need not deal much on the two circulars  relied upon by the petitioner because bank had thereafter issued circulars  on 3.5.1990, 17.6.1990 and 20.6.1990.  As per the said circulars, it was noted that  in spite of the checks and control  exercised  at various levels, instances of deviations  from the prescribed procedures  and violations of guidelines  were noted, rendering the individuals  accountable for such omissions and commissions.   It was further stipulated that  instructions under the earlier circulars  were intended to apply to situations of expiry of limitations  etc. and  in respect of liability of recovering advances and it was never intended to prescribe  time limit in cases of serious misconduct.  

46.       Law on the subject  as to when a Court should interdict disciplinary proceedings  on the grounds of delay in issuing the charge-sheet may be noted.

47.       In the decision reported as AIR 1990 SC 1308, State of M.P. Vs. Bani Singh, where there was a delay of 12 years in initiating departmental proceedings and no satisfactory explanation for the inordinate delay forthcoming on record, it was held that it would be unfit to permit the department to proceed at such a belated stage, charge-sheet was quashed.  In the decision reported as 1994 (2) SCC 746, Registrar of Co-operative Societies, Madras Vs. F.X. Fernando, charge-sheet was served after a delay of about 5 years.  Repelling the challenge to the charge-sheet on ground of delay being fatal, Supreme Court noted that Vigilance and Anti-Corruption Department took time to investigate and, therefore, it could not be said that the disciplinary authority slept over the matter.  In the decision reported as 1995 (2) SCC 570, State of Punjab Vs. Chaman Lal Goyal , considering the issue as to what was the effect of delay vis-a-vis disciplinary proceedings, Supreme Court held:-

"Now  remains the question of delay.  There is undoubtedly a delay of five and a half years in serving the charges.  The question is whether the said delay warranted the quashing of charges in this case.  It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities.  They cannot be initiated after lapse of considerable time.  It would not be fair to the delinquent officer.  Such delay also makes the task of proving the charges difficult  and thus not also in the interest of administration of administration.  Delayed initiation of proceedings is bound to give room for allegations of bias, male fides and misuse of power.  If the delay is too long and is unexplained, the court may well interfere and quash the charges.  But how long a delay is too long always depends upon the facts of the given case.  Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted.  Wherever such a plea is raised, the court has to weight the factors appearing for and against the said plea and take a decision on the totality of circumstances.  In other words, the court has to indulge in a process of balancing."

            Thereafter, in paragraph 12 of the judgment, it was concluded that:-

"Applying the balancing process, we are of the opinion  that the quashing of charges and of the order appointing enquiry officer was not warranted in the facts and circumstances of the case.  It is more appropriate and in the interest of justice as well as in the interest of administration that the enquiry ordered be allowed to be completed."

48.       In the decision reported (1995) 3 SCC 134  Deputy Registrar, Co-operative Societies, Faizabad Vs. Sachindra Nath Pandey & Ors., the Hon'ble Supreme Court held:-

"On  a perusal of charges, we find that the charges are very serious.  We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay."

49.       In the decision reported as (1995) Suppl. (1) SCC 180 Union of India Vs. Ashok Kacker, while reversing the order of the Central Administrative Tribunal quashing the inquiry proceedings, the Hon'ble Supreme Court observed that since the delinquent had not submitted his reply to the charge-sheet, it was not the stage at which the Tribunal ought to have entertained the petition for quashing the charge-sheet.  The appropriate course for the delinquent to adopt was to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.

50.       In the decision reported as (1995) 6 SCC 749, B.C. Chaturvedi Vs. UOI and Others, in Para 11, the Hon'ble Supreme Court held as under:-

"The  next question is whether the delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 of 21 of the Constitution.  Each case depends upon its own facts.  In a case of the type on hand, it is difficult to have evidence of disproportionate pecuniary resources or assets or property.  The public servant, during his tenure, may not be known to be in possession of disproportionate assets or pecuniary resource.  He may hold either himself or through somebody on his behalf, property or pecuniary resources.  To connect the officer with the resources or assets is a tardy journey, as the government has to do a lot to collect necessary material in this regard.  In normal circumstances, an investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources.  Snap of any link may prove fatal to the whole exercise.  Care and dexterity are necessary.  Delay thereby necessarily entails.  Therefore, delay by itself is not fatal in these type of cases.  It is seen that the CBI had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant under Section 5(1)(e) of the Act.  It had,  however, recommended to take disciplinary action.  No doubt, much time elapsed in taking necessary decision at different levels.  So, the delay by itself cannot be regarded to have violated Article 14 or 21 of the Constitution."

51.       In (1996) 3 SCC 157, Secretary To Government Prohibition & Excise Department  Vs. L.Srinivasan, it was held:

"In the nature of the charge, it would take a long time to detect embezzlement and fabrication of false record which should be done in secrecy.  In quashing the suspension and the charges on the ground of delay in initiation of the disciplinary proceedings, the Administrative Tribunal has committed grossest error in its exercise of the judicial review."

            I may note that the charge related to offence of embezzlement and fabrication of false records.  As noted in the judgment, this is done in secrecy and by its very nature, takes time to be detected.  It was a case where detection took time.  It was not a case of delay post detection.

52.       In the judgment reported as (1996) 3 SCC 364, State Bank of Patiala Vs. S.K. Sharma, the Hon'ble Supreme Court held:-

"Justice means justice between both the parties.  The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice."

53.       In the decision reported as (1997) 4 SCC 255 Secretary to Government Vs. K. Munniappan,   dealing with a case where  as a result of concerted and confabulated action on the part of the employees, an embezzlement of funds of the Government, to the tune of Rs.7.82 crores took place and the delinquent at the relevant time was functioning as the Divisional Accountant, the Hon'ble Supreme Court observed:-

"It is true that there is a time gap, but in a case involving embezzlement of public funds by several persons in a concerted way, a thread bare investigation is required to be undertaken by the investigating officer and, therefore, in the nature of the situation, it would be difficult to find fault with the authorities for not completing investigation expeditiously." 

 

54.       In  (1998) 4 SCC 154 State of Andhra Pradesh Vs. N. Radhakishan in Para 19, the Hon'ble Supreme Court held as under:-

"It is not possible to lay down any predetermined 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 determined 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 the 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 the 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 the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred.  If the delay is unexplained prejudice to the delinquent employee is writ large on the fact of it.  It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee.  It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules.  If he deviates from his path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice.  Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings.  Ultimately, the court is to balance these two diverse considerations."

55.       A division bench of this court, considered the judgments on the issue.  In its judgment delivered on  29th October, 2003 in LPA No.39/1999, Delhi Development Authority Vs. D.P. Bambah & Anr., it was held:-

"In our opinion the legal position, when an action is brought seeking quashing of a charge-sheet on grounds of issuance of the charge-sheet or grounds of inordinate delay in completion of the disciplinary inquiry may be crystalised  as under:-

 

(i) Unless the statutory rules prescribe a period of limitation for initiating disciplinary proceedings, there is not period of limitation for initiating the disciplinary proceedings;

 

(ii) Since delay in initiating disciplinary proceedings or concluding the same are likely to cause prejudice to the charged employee, courts would be entitled to intervene and grant appropriate relief where an action is brought;

 

(iii) If bone fide and reasonable explanation for delay is brought on record by the disciplinary authority, in the absence of any special equity, the court would not intervene in the matter;

 

(iv)  While considering these factors the court has to consider that speedy trial is a part of the facet of a fair procedure to which every delinquent is entitled to vis-a-vis the handicaps which the department may be suffering in the initiation of the proceedings.  Balancing all the factors, it has to be considered whether prejudice to the defence on account of delay is made out and the delay is fatal, in the sense, that the delinquent is unable to effectively defend himself on account of delay.

 

(v) In considering the factual matrix, the court would ordinarily lean against preventing trial of the delinquent who is facing grave charges on the mere ground of delay. Quashing would not be ordered solely because of lapse of time between the date of commission of the offence and the date of service of the charge-sheet unless, of course, the right of defence is found to be denied as a consequences of delay.

 

 

(vi) It is for the delinquent officer to show the prejudice caused or deprivation of fair trial because of the delay.

 

(vii) The sword of damocles cannot be allowed to be kept hanging over the head of an employee and every employee is entitled to claim that the disciplinary inquiry should be completed against him within a reasonable time.  Speedy trial is undoubtedly a part of reasonableness in every disciplinary inquiry. 

 

In determination of this, the first question which would have to be answered is whether on facts, is there a delay?  If yes, how long?  Was the delay inevitable having regards to the nature of the charge?  Was the delay beyond the control of the employer?    Whether the employee willfully contributed to the delay or was responsible for the delay?  Has prejudice caused to the defence?

 

All questions would have to be answered.  In a nutshell, the court would have to weigh all the factors, both for and against the employee and come to the conclusion whether in the facts and circumstances prejudice has been shown as having been occasioned to the employee, justifying quashing of the charge-sheet either on account of delay in issuance of the charge-sheet or on account of delay in completion of the disciplinary proceedings."

56.       In the light of the legal position noted above, I do not find  any delay whatsoever pertaining to charge-sheet  dated 19.7.1995 which pertained to the  events of the years 1991-92.  The enquiry report would reveal that the misconduct  surfaces when accounts become sticky. I accordingly repel the  challenge to the charge-sheet  dated 19.7.1995 on the grounds  of delay.

57.       Charge-sheet dated 20.7.1995 pertains to the events of 1984 to 1988. Counsel for the petitioner while  arguing on challenge to this charge-sheet except for stating that it related to events 16 to 19 years old, made no  further submission.   A perusal of the enquiry  report pertaining to this charge-sheet  would reveal that misconduct alleged under this charge-sheet  surfaced when accounts became sticky.   However, since no order has been passed by the Disciplinary Authority pertaining to this charge-sheet as under the charge-sheet  dated 19.7.1995, order of dismissal was passed against the petitioner, since order of dismissal is being set aside  by me, as would be evident from my finding  hereinafter recorded and I am remitting the matter to the Disciplinary Authority  for fresh consideration pertaining to the issue of penalty, I direct that while considering the  enquiry report pertaining  to the charge-sheet dated 20.7.1995,  if the Disciplinary Authority proceeds to take action  thereunder  in light of my decision pertaining  to the charge-sheet dated 19.7.1995,  Disciplinary Authority would consider the issue of  delay pertaining to the charge-sheet dated 20.7.1995.

58.       Have the principles of natural justice been violated.  Two grounds were urged  at the hearing.  The first was that 18 documents which the petitioner wanted to rely, were directed to be produced  by the enquiry officer,  being relevant,  but were not produced  by the bank and secondly, un-exhibited portions  of the inspection report dated 28.11.1991 were relied upon.

59.       Petitioner had sought production of 162 documents.  They were held to be relevant  and were directed to be produced.  144 documents were produced.   Qua 18, certificate was  filed that they were not available.   Petitioner left the issue at that.

60.       A charged officer is entitled to a fair defence and not the fairest  possible defence.    Merely because a document  was relevant at the  enquiry  and was not produced  is not enough.   In the decision reported as (1993) 4 SCC 727, Managing Director, ECIL Vs. B.Karunakar,  which was followed in the decision reported as (2001) 6 SCC 392, State of U.P. Vs. Harendra Arora, reiterated  in the decision reported as (2002) 3 SCC 443, State of U.P. Vs. Ramesh Chandra Manglik,  it is for the charged officer  to show prejudice caused to him by non-production of  relevant document.

61.       In the written submissions  filed by the petitioner before the Disciplinary Authority pertaining to the enquiry report, I do not find  that the petitioner raised any grievance before the Disciplinary Authority  regarding non-production of these 18 documents.   In appeal, petitioner made a grievance  pertaining to the said 18 documents   not being produced, but did not indicate as to in what manner prejudice was caused. Even in the writ petition, grievance pertaining to these 18 documents is as per the petitioner's pleadings in para 26 of the writ petition.  Except for stating  that these 18 documents  were not produced, it has not been pleaded  as to how prejudice was caused.   I, therefore, hold that since no prejudice has been shown to have been caused  by non-production of these 18 documents, the report of the enquiry officer  and the action taken  thereunder cannot be said to be vitiated in law.   Even otherwise, it be noted that the bank, at the first instance,  filed a certificate that these 18 documents were not available.  Petitioner did not insist on their production.   The petitioner has not demonstrated  before me  how prejudice was caused to him due to non-production of 18 documents.

62.       Petitioner laid a grievance  that the enquiry  officer relied upon un-exhibited portions  of  an inspection report  dated 28.11.1991.

63.       Record of the enquiry officer  would reveal that MW-3 in his testimony proved the report.   Since the report was bulky, only portions thereof were formally taken on record.   This was by consent of the  Presenting Officer and the Defence Assistant.    After the enquiry  had concluded and the Presenting Officer gave his written brief to the enquiry officer, to make good his submissions,  the Presenting Officer rather than extracting quotes from the report dated 28.11.1991 appended parts thereof.   It is, therefore, not a case of an un-proved document being relied upon, nor is it a case  of a document being relied upon by the enquiry officer behind the back of the petitioner.  Learned counsel for the petitioner did not dispute that the findings against the petitioner  was not solely  based on the inspection report.   He admitted that the enquiry officer  had relied upon the documents which were proved  at the enquiry  and had drawn additional support from the  inspection report dated 28.11.1991.  That concludes the issue against the petitioner.

64.       Counsel for the petitioner urged that the enquiry report  was  based on surmises and conjectures.  He sought  to bring home  the point by reading the enquiry report in light of the documents  and other evidence.

65.       Scope of the  judicial review under Article 226 of the Constitution of India  is limited.   It is impermissible for this Court to re-appreciate the evidence like an Appellate Court.   Jurisdiction of this Court would be to find out whether there is no evidence on record or whether on the evidence on record, no person would come to the conclusion  arrived at  by the enquiry officer.  For both, evidence would have to be read as it is  without it being re-appreciated.     Whether an allegation is proved or is correct  on the evidence on record, is primarily a decision  to be taken by  the Disciplinary Authority.

66.       Learned counsel for the petitioner could not  show any finding of the enquiry officer which could  be  labeled as a finding  without evidence or a finding which no reasonable person would arrive at, given the evidence before the enquiry officer.   Learned counsel for the petitioner wanted this Court to appreciate the defence in light of guideline circulars issues by the bank to draw the necessary conclusions.   This, to my mind, is impermissible  as it would be a function akin to the role played by an Appellate Court.

67.       Learned counsel for the petitioner  had made a grievance  on the observations  made by the enquiry officer where the enquiry officer had observed that the charged officer could not  produce  evidence showing that he had sanctioned limit,  within the authorised limit of the company.  Counsel argued that the enquiry officer by placing a negative onus, acted contrary to law.

68.       In sub-para (d) of para 25 above, I have noted the observations of the enquiry officer  and the context in which it was made.  A perusal thereof would  show that the observations find place in the enquiry probably because the petitioner  was arguing  that resolution dated 9.5.1991  of the  company on which the petitioner  had  purportedly  acted was not  brought on record and, therefore, the charge as a whole  must fail.    It was in this context that  these observations crept in the report of the enquiry officer.   Be that as it may, this issue pertained only to a small fragment of allegations against the petitioner and if these findings are to be set aside, only the allegation pertaining to sanctioning of credit facilities to M/s Progressive Colours Pvt.Ltd. in the context of loan  being not to be granted beyond Rs.10 lakhs  would fail.  Other allegations, having no bearing on this issue, would be sustained.

69.       Learned counsel for the petitioner, Sh. Keshav Dayal, Sr. Advocate made a submission that some allegations were proved, some not proved and some partly proved.  He contended that order passed by the disciplinary authority does not reveal as to what has weighed with it while passing the order.  Counsel contended that this has caused prejudice to the petitioner.

70.       In the decision reported as (1974) 4 SCC 374, Krishna Chandra Tandon v. The Union of India,  the Supreme Court had held:

"12. . . . . . . . . . .The learned judges correctly informed themselves that they could not examine the evidence as if they were sitting in appeal over the findings of the Commissioner.  All they could do was to consider whether the order was based on no evidence.  Except in a few items the learned judges found that the Commissioner of Income-Tax had evidence for the findings he had recorded.  That, however, did not make any difference to the punishment inflicted by the Commissioner because as pointed out by this Court in the State of Orissa v. Bidyabhushan Mohapatra, AIR 1963 SC 779 an order of punishment can be supported on any finding  as to the substantial misdemeanour for which the punishment can lawfully be imposed and it was not for the court to consider whether that ground alone would have weighed with the authority in dismissing the public servant."

71.       Petitioner raised a grievance  that he was not paid the provisional pension  for a period of 15 months, post superannuation   and this was akin to a suspended employee not being paid the subsistence allowance. Counsel contended that the enquiry, on this  ground alone would stand vitiated.

72.       In view of the latest pronouncement of the Supreme Court on this  issue being the judgment  reported as 2004 LLR 228, Indra Bhanu Gaur Vs. Committee, Managementof M.M. Degree College, the plea has to be repelled.  It was held by the Supreme Court :-

"7.        . . . . . . . . . . So far as the effect of not paying the subsistence allowance is concerned, before the authorities no stand was taken  that because of non-payment of  subsistence allowance, he was not in a position to participate in the proceedings, or that  any other prejudice in effectively defending the proceedings was caused to him.   . . . . . . .It is ultimately a question of prejudice.   Unless prejudice is shown and established, mere non-payment of subsistence allowance  cannot ipso-facto  be a ground to vitiate the proceedings in every case."           

73.       On facts, I may note that  the petitioner participated  all through  along with his Defence Assistant  at the enquiry.   Petitioner has not shown  as to in what manner non-payment of provisional pension vitiated the  proceedings, in that, petitioner has not been able to show as to how in the absence of provisional pension, he could not effectively defend himself.

74.       That takes me to the most impotant issue raised in the writ petition and on which counsel  spent a greater part of their energy. This determination  would take care of the grievance of the petitioner  whether at all he could be dismissed, whether his gratuity could be withheld and whether he would be entitled  to a provisional pension.

 75.      Punishments which can be inflicted on an officer employee of P.N.B are the ones stipulated under Regulation 4 of the P.N.B Officer Employees (Disciplinary and Appeal ) Regulations, 1977.  5 minor penalties, being censure, withholding of increments of pay, withholding of promotion, recovery from pay of any pecuniary loss caused to the bank  and reduction at a lower stage in the time scale of pay are stipulated.  5 major penalties, 3 of them being compulsory retirement, removal from service and dismissal are stipulated.

76.       Procedure for imposing major penalties is the one provided by Regulation 6 of the aforesaid  regulations of  1977.

77.       Regulation 20(3)(iii) of the                                                                     P.N.B Officers (Service) Regulations 1979 inter alia,  reads as under:-

"3(iii)    The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof.  The concerned officer will not receive any pay and/or allowance after the date of superannuation.  He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon except his own contributions to CPF."

78.       P.N.B (Employees') Pension Regulations 1995 also deal with the issue of penalties.  Regulation 45 of the Pension Regulations reads as under:-

"In a case not falling under regulation 44 if the Competent Authority considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order, follow the procedure specified in Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977 or in Settlement as the case may be."

79.       Regulation 48 of the Pension Regulations reads as under:-

"1)  The Competent Authority may withhold or withdraw a pension or a part thereof, whether permanently or for a specified period and order recovery from pension of the whole or part of any pecuniary loss caused to the Bank if in any departmental or judicial proceedings the pensioner is found  guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service;

           

            Provided further that departmental proceedings, if instituted while the employee was in service, shall, after the retirement  of the employee, be deemed to be proceedings under these regulations and shall be continued and concluded by the authority by which they were commenced in the same manner as if the employee had continued in service;

 

            Provided also that no departmental or judicial proceedings, if not initiated while the employee was ins service, shall be instituted in respect of a cause of action which arose or in respect of an event which took place more than four years before such institution.

 

2.         Where the Competent Authority orders recovery of pecuniary loss from the pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of the employee;

 

            Provided that where a part of pension is withheld or withdrawn, the amount of pension drawn by a pensioner shall not be less than the minimum pension payable under these regulations."

 

80.       Regulation 46 (1) and (2) read as under:-

            Provisional Pension

1)         An employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued, a provisional pension, equal to the maximum pension which would have been admissible to him, would be allowed subject to adjustment against final retirement benefits sanctioned to him, upon conclusion of the proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld etc either permanently or for a specified period.

 

2.         In such cases the gratuity shall not be paid to such an employee until the conclusion of the proceedings against him.  The gratuity shall be paid to him on conclusion of the proceedings subject to the decision of the proceedings.  Any recoveries to be made from an employee shall be adjusted against the amount of gratuity payable.                          

81.       Pension Regulations aforesaid and the service regulations aforenoted clearly bring out the position that post superannuation, disciplinary proceedings can continue against an officer employee.  Neither  party contended to the contrary.  Area of dispute was as to what penalty can be levied on such an employee.  Mr. Keshav Dayal, learned senior counsel appearing for the petitioner would urge that the only penalty which can be imposed upon such an employee is a cut in pension and not dismissal.  Counsel contended that once an employee superannuates there is no question of his being in service and hence there can be no dismissal from service.  Per contra, Mr. Raj Birbal, learned senior counsel appearing for the bank, by placing reliance on sub-clause (iii) of sub regulation (3) of Regulation 20 of the Service Regulations would urge that by virtue of the  provision of the said regulation, the penalty of dismissal can be imposed upon the officer employee.

82.       A perusal of clause (iii) of sub regulation (3) of Regulation 20 of the service regulations would reveal that it provides for the following, distinct consequences on the superannuation of an employee against whom disciplinary proceedings are pending:

(a)        The employee will cease to be in service on the date of superannuation.

 

(b)        Disciplinary proceedings will continue as if he was in service until the proceedings are concluded.

 

(c)        The officer will not receive any pay or allowance after the date of superannuation.

 

(d)        The officer will not be entitled for payment of retiral benefits till the final order is passed except his own contributions to CPF.

83.       Pension regulations noted aforesaid would reveal that:-

(a)        Vide Regulation 46, on retirement or on attaining the age of superannuation, an employee against whom departmental proceedings are continuing shall be paid a provisional pension.

 

(b)        Gratuity shall be paid to him on conclusion of the proceedings subject to the decision of the proceedings.  Any recovery to be  made shall be adjusted  against the amount of gratuity payable.

 

(c)        Order of penalty under the Pension Regulations shall be passed by following  the procedure specified in the Disciplinary and Appeal Regulations (vide regulation 45 of the pension regulations).

 

(d)        Departmental proceedings continued, post superannuation, are deemed to be proceedings under the  Pension Regulations and have to be continued and  concluded by the authority by which they were commenced in the same manner as if the employee had continued in service (vide second proviso to Regulation 48(1) of the Pension Regulations).

84.       It is trite saying that statutory provision or provision having the force of law as contained in rules and regulations have to be read harmoniously and as far as possible, effect given to all the provisions.

85.       Pension Regulations which were framed in the year 1995 were preceded by the P.N.B (Officers) Service Regulations 1979 and the P.N.B Officer Employees (Discipline and Appeal) Regulations 1977.  The framers of the pension regulations were, therefore, aware of the service regulations as well as the discipline and appeal regulations.

86.       The second proviso to sub regulation 1 of Regulation 48 of the Pension Regulations specifically provides that disciplinary proceedings instituted while the employee was in service, shall after the retirement of the employee be deemed to be proceedings under these regulations.  This deeming fiction would mean that for all intents and purpose, the disciplinary proceedings get supplanted as the disciplinary proceedings under the pension regulations.  Sub-clause (iii) of sub regulation 3 of Regulation 20 of the Service Regulations 1979 is clear.  Firstly, an employee against whom disciplinary proceedings stand initiated would cease to be in service on the date of superannuation.  Secondly, it provides that the disciplinary proceedings will continue as if he was in service until the proceedings are concluded.  If argument of the bank is accepted that continuation of the disciplinary proceedings as contemplated aforesaid would mean that penalty of dismissal/removal from service can be passed, it would render nugatory the pension regulations and in particular Regulation 48 of the Pension Regulations.

 

87.       The second proviso to sub-regulation 1 of Regulation 48 of the Pension Regulations and sub-clause (iii) of  sub-regulation 3 of Regulation 20 can be harmoniously read only if the meaning to the words "but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof" in sub-clause (iii) of sub regulation 3 of Regulation 20 of the Service Regulations are interpreted to mean that continuation of the disciplinary proceedings as contemplated pertains to the procedure applicable but as far as the imposition of penalty is concerned, imposition of penalty would have to be as per the pension regulations so that the mandate of the second proviso to sub regulation 1 of Regulation 48 of the Pension Regulations can be simultaneously given effect to.  The simultaneous giving effect would be that the departmental proceedings would be deemed to be proceedings under  the Pension Regulations, requiring the same to be concluded under the Pension Regulations, i.e. the penalty has to be under the Pension Regulation.

88.       In the judgment reported as 1980(4) SCC 314, D.V.Kapoor vs. Union of India & Ors., the Supreme Court in the context of Rule 9(2) of the Civil Service Conduct Rules 1964 held as under:-    

"Rule 9(2) of the Rules provided that the departmental proceedings if instituted while the government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the government servant had continued in service.  Therefore, merely because the appellant was allowed to retire, the government is not lacking jurisdiction or power to continue the proceedings already initiated to the logical conclusion thereto.  The disciplinary proceedings initiated under the Conduct Rules must be deemed to be proceedings under the rules and shall be continued and concluded by the  authorities by which the proceedings have been commenced in the same manner as if the government servant had continued in service."

            Regulation 56 of the PNB (Employees) Pension Regulations,1995 stipulates  that in case of  doubt, in the matter of application  of the regulations, regard may be had to the corresponding provisions  applicable for central government employees.

89.       Following the decision aforesaid, in the judgment reported as 1995 Suppl.(1) SCC 321, High Court of Punjab and Haryana vs. Amrik Singh, the Supreme Court held that  where the employee was allowed to superannuate from service, he could not be imposed the penalty of dismissal from service.  Order passed against Amrik Singh dismissing him from service was quashed by the High Court. It was held by the Supreme Court that the penalty order which can be passed was under the relevant pension rules.  It was held that the Chief Justice of the High Court would be free to pass an appropriate order under the Pension Rules.  In the decision reported as (1999) 3 SCC 666, Bhagirthi Jena V. Board of Directors OSFC & Ors., it was held that once an employee superannuates from service, relationship  of master and servant snaps and in the absence of a rule permitting continuation of disciplinary proceedings, post superannuation, none can continue.

90.       In the decision reported as (1997) 8 SCC 60 SBI vs. A.N.Gupta & Ors., taking note of the fact that there was no rule to continue with an enquiry after the employee reached the age of superannuation and taking note  that  pension and provident fund was not released to the employee as the bank, invoking Rule 11 of the Imperial Bank of India Pension and Guarantee Pension Rules did not permit the employee to retire, it was held that under Rule 27 of the aforesaid Pension Rules of the Imperial Bank of India, there was an automatic cessation of service when the employee reaches the age of superannuation.  It was held that Rule 11 relied upon by the bank was not applicable to a case of retirement on attaining the age of superannuation.  Employee was held entitled to his terminal and pensionary benefits. 

91.       The decision would be an authority on the point that when an employee superannuates, consequences as per rules applicable must flow.  What those consequences would be?  Rules would  determine the same.

92.       A later decision of the same Bench of the Supreme Court which delivered judgment in A.N.Gupta's case would illuminate us on the issue a little further.  The decision is reported as 1998 LAB.I.C.496, S.B.I vs. C.B. Dhall.  Rule 20(a) and 20(b) which was introduced in the S.B.I (Supervising Staff) Service Regulations 1975 were considered by the Supreme Court.  The rules read as under:-

"20A.  Notwithstanding anything to the contrary in these Rules, no employee who has ceased to be in the Bank's service by the operation of, or by virtue of, any rule, shall be deemed to have retired from the Bank's service for the purpose of the Imperial Bank of India Employees' Pension and Guarantee Fund Rules or the State Bank of India Employees' Pension Fund Rules unless such cessation of service has been sanctioned as retirement for the purpose of either of the said Pension Fund Rules as may be applicable to him.

 

20.B.    In case disciplinary proceedings under these rules have been initiated against an employee before he ceases to be in the Bank's service by the operation of, or by virtue of, any of these rules, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in these rules as if the employee continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings."

93.       Distinguishing its decision in A.N. Gupta's case it was held:-

            "Rule 20-A and 20-B have now made a material difference to the applicability of Rule 11 of the Pension Rules.  However,  the case of A.N.Gupta (1997 AIR SCW 4119) (supra) is distinguishable as these Rules 20-A and 20-B,  came into existence only w.e.f. March 31, 1977.  Under Rule 20-A retirement under the Pension Fund Rules has now to be sanctioned by the competent authority. Under this Rule, retirement would mean retirement on superannuation or any other type of retirement.

 

            Under Rule 20-B disciplinary proceedings if initiated against an employee before he retires from service could be continued and concluded even after his retirement and for the purpose of conclusion of the disciplinary proceedings, the employee is deemed to have continued in service but for no other purpose.  After the disciplinary proceedings were concluded, the State Bank directed that (1) sanction of Dhall to retire be withheld and (2) Bank's contribution to his provident fund accounts be forfeited.  Under Rule 10  of the Pension Fund Rules, an employee dismissed from the Bank service for wilful neglect or fraud shall forfeit all claims upon the fund for pension.  Dhall has not been dismissed from service  though he was charged with wilful neglect and fraud.  The question that arises for consideration is what is the effect of the direction of the State Bank that sanction to retire of Dhall be withheld here cessation of service of Dhall on retirement has not been sanctioned and accordingly as per the last portion of Rule 11 of the Pension Fund he forfeits all claims upon the fund for pension."

94.       It was held  that denial of pension was valid as permission to retire from the bank was denied under Rule 20A of the Supervising  Staff (Service) Rules 1975.

95.       On reaching the age of superannuation and in the absence of any order extending the service, the jural relationship of employer and employee pertaining to the tenure of appointment gets snapped.  Relationship may continue for purposes of post retirement benefits.  But in so far as the service is concerned, the relationship gets snapped.  If a person ceases to be in employment, I fail to understand as to how a penalty of dismissal from service  could be passed against the employee.  Since the bond is not completely snapped and the employee would be entitled to pensionary benefits, proceedings may continue if the rules permit, but in such eventuality penalty which could be imposed would be the one which impinges upon the pensionary benefits which the employee would be entitled to under the rules.  Indeed the P.N.B(Employees) Pension Regulations 1995 contemplate a cut in the pension.  This cut may be a part or whole of the pension, but it must relate to pension.

96.       Regulation 46 of the Pension Regulations requires that on attaining the age of superannuation or otherwise, if disciplinary proceedings are pending against the employee and are continued, a provisional pension has  to be fixed.  It is further provided that the same would be subject to adjustment against final retirement benefits sanctioned upon conclusion of the proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension.  Thus, immediate on superannuation, if a disciplinary proceedings is pending against an employee and its is continued, provisional pension has to be fixed.  Indeed, petitioner was granted a provisional pension.  The rule prohibits recovery of the provisional pension if the same is more than the final pension fixed after the cut in pension.  If it is held that qua such an employee an order of dismissal from service can be passed, he would be entitled to no pension and consequences would be that the provisional pension paid would have to be recovered.  This course of action would come into conflict with Regulation 46 of the Pension Regulations.

97.       In view of the legal provisions as interpreted above, in the light of the various judgments of the Supreme Court, it is held that the order dismissing the petitioner from service is illegal.  The same is accordingly quashed.

98.       Learned counsel for the petitioner had submitted that the acts complained of do not constitute misconduct, much less grave misconduct. Charges which were established, gist whereof has been noted by me in paras 25 to 29 above would reveal the petitioner had sanctioned/enhanced credit facilities without conducting pre-sanction appraisal, proper end use was not ensure, post sanction safeguards were ignored and proper supervision was not exercised.

99.       Competence to hold a post, lack of qualities of leadership, foresight, firmness, ability to discharge functions attached to a post, indecisiveness are things different from an act of omission or commission.  They may not attract lack of integrity or failure of devotion to duty.  Error of judgment and negligence in a given situation may not attract misconduct.  But as explained in the decision reported as 1979 SCC (L &S) 197, U.O.I v. J. Ahmed, following constitute misconduct:

a.   Lack of integrity.

 

b.  An act or omission which runs counter to the expected code of conduct.

 

 

c.         An act or omission contrary to the written norms, guidelines or practice followed.

 

d.         Gross negligence and carelessness where degree of culpability is high is  misconduct.  As observed in the judgment, carelessness can often be productive of more harm than deliberate wickedness or malevolence.

 

e.         Failure to maintain devotion to duty i.e. conducting self in a way inconsistent with due and faithful discharge of duty in service.

100.     In the decision reported as (1996) 9 SCC 69 Disciplinary Authority-cum-Regional Manager & Ors Vs. Hikunja Bihari Patnaik it was held that acting beyond one's authority is misconduct and proof of loss is not necessary.  It was observed:

"The findings of the inquiry officer which have been accepted by the disciplinary authority, and which have not been disturbed by the High Court, clearly show that in a number of instances the respondent allowed overdrafts or passed cheques involving substantial amounts beyond his authority.  True, it is that in some cases, no loss has resulted from such acts.  It is also true that in some other instances such acts have yielded profit to the Bank but it is equally true that in some other instances, the funds of the Bank have been placed in jeopardy; the advances have become sticky and irrecoverable.  It is not a single act; it is a course of action spreading over a sufficiently long period and involving a large number of transactions.  In the case of a bank- for that matter, in the case of any other organisation   every  officer/employee is supposed to act within the limits of his authority.  If each officer/employee is allowed to act beyond his authority, the discipline of the organisation/bank will disappear; the functioning of the bank chaotic and unmanageable.  Each officer of the bank cannot be allowed to carve out his own little empire wherein he dispenses favours and largesse.  No organisation, more particularly, a bank can function properly and effectively if its officers and employees do not observe the prescribed norms and discipline.  Such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motives or by extraneous considerations.  The very act of acting beyond authority- that too a course of conduct spread over a sufficiently long period and involving innumerable instances- is by itself a misconduct.  Such acts, if permitted, may bring in profit in some cases but them may also lead to huge losses.  Such adventures are not given to the employees of banks which deal with public funds.  If what we hear about the reasons for the collapse of Baring Bank is true, it is attributable to the acts of one of its employees, Nick Leeson, a minor officer stationed at Singapore, who was allowed by his superiors to act far beyond his authority.  As mentioned hereinbefore, the very discipline of an organisation and more particularly, a bank is dependent upon each of its employees and officers acting and operating within their allotted sphere.  Acting beyond one's authority is by itself a breach of discipline and a breach of Regulation 3.  It constitutes misconduct within the meaning of Regulation 24.  No further proof of loss is really necessary."  (Emphasis underlined)

101.     In the decision referred as JT 1999(3) SC 385, S.B.I & Ors v. T.J.Paul, an order of removal from service was passed against the employee.  Writ petition filed had succeeded on the ground that no financial loss was proved and not taking adequate security from the loaners was at a minor infraction which could not attract major penalty.  Reversing the decision of the High Court, the Supreme Court held, negligence, gross or otherwise, involving  or likely to involve the banks in serious loss is gross misconduct.  It was observed:

"15.. . . . . . . . . . . In other words likelihood of serious loss coupled with negligence is sufficient to  bring the case within gross misconduct.  The Inquiry Officer's findings of gross misconduct on the ground of not attaining adequate security is, therefore, correct."

102.     In 1998(4) SCC 310, Union Bank of  India v. Vishwa Mohan in the context of banking business it was observed:-

"12. . . . . . . . . . .It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and non-est needs to be preserved by every bank employee nd in particular the bank officer.  If this is not observed, the confidence of the public/depositors would be impaired."

103.     It cannot be said that the findings do not bring out the charge of misconduct.  It is not a case where petitioner has been found to be merely not prudent or being inefficient or his decision only have taint of error of judgment.  Charges established are positive.  They establish abuse of official position by extending undue favours by ignoring pre- sanction appraisal, ignoring proper end use thereby jeopardising  bank's interest and exercise of powers indiscretely.

104.     As per the  Pension Regulations, if there is a finding that a charged officer has caused pecuniary loss  to the bank, the said  pecuniary loss can be recovered from the gratuity.   Withholding of gratuity was, therefore, justified.

105.     The writ petition is disposed of with the  following directions :-

i)          The impugned order dated 22.,1.1998 of  dismissal  passed by the Disciplinary Authority dismissing the petitioner from service is set aside.   Order dated 9.12.1998 passed by the Appellate Authority rejecting the appeal is also set aside.

ii)         Proceedings pursuant to the enquiry report dated 24.6.1996 pertaining to the charge-sheet  dated 19.7.1995 and further the proceedings pursuant to the charge-sheet dated 20.7.1995 shall be taken by the Disciplinary Authority for the purpose of penalty  under the PNB (Employees) Pension Regulations,1995.

iii)         The Disciplinary Authority  shall issue a  show cause notice to the petitioner before taking any action, proposing the penalty it seeks to levy,  and shall give reasonable time  to the petitioner to  respond to the show cause notice.  Final decision  taken would be  after  considering the reply of the petitioner.

iv)        Pertaining to  the charge-sheet dated 20.7.1995, the Disciplinary Authority shall specifically consider whether  there is undue delay in issuing the said charge-sheet  dated 20.7.1995 in light of the present decision.

v)         If, in view of the report of  the enquiry officer, Disciplinary Authority opines that  a pecuniary loss  has been caused to the bank, it would be notified to the petitioner in the show  cause notice itself to enable the petitioner to respond thereto.   If no pecuniary loss  is quantified by the Disciplinary Authority, gratuity  would be released to the petitioner  as expeditiously as possible.  If pecuniary loss to the bank is  quantified  and established, as well as maintained and the same is less than the  gratuity payable, balance gratuity  would be paid to the petitioner after adjusting the loss as expeditiously as possible.

vi)        Petitioner would be  entitled to his provisional pension  which was fixed  but was discontinued upon passing of the order of dismissal from the date  it was discontinued till the date fresh orders are passed against the petitioner.

106.     Since, interpretation of the Pension Regulations and Regulation 20(3)(iii) of the Service Regulations, came up for consideration  for the first time in a court of law, there shall be no order as to costs.

 

 

July   2004                           (PRADEEP NANDRAJOG)

pu                                                  JUDGE

 

 

 

 

SUBJECT : SERVICE MATTER

Judgment Reserved On: 6th January, 2011

Judgment Delivered On: 7th February, 2011

W.P.(C) 6536/2010

R.R.SAHAY ..... Petitioner

Through: Mr.Ravi Shankar Prasad, Sr.Advocate with Mr.Shishir Pinaki,

Advocate

versus

UNION OF INDIA & ORS. ..... Respondents

Through: Dr.Sarabjeet Sharma, Advocate Judgment

Reserved On: 11th January, 2011

Judgment Delivered On: 7th February, 2011

W.P.(C) 2124/2010

MOHD.RAFIQUE HOSSAIN ..... Petitioner

Through: Ms.Jyoti Singh, Advocate with Mr.Amandeep Joshi, Advocate

versus

UNION OF INDIA & ORS. ..... Respondents

Through: Mr.A.K.Bhardwaj, Advocate with Mr.Anuj Aggarwal and

Mr.Gaurav Khanna, Advocates

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

HON'BLE MR. JUSTICE SURESH KAIT

PRADEEP NANDRAJOG, J.

1. Though with completely different factual background, the two writ

petitions are being decided by a common judgment for the reason the issue

of law which arises for consideration in the two writ petitions is the same.

2. Facts pertaining to the case of Sh.R.R.Sahay are that having joined service

under Central Industrial Security Force (CISF) he earned promotions and

rose to the rank of Deputy Inspector General and as of the year 2010 not

only became eligible to be considered for promotion to the next higher post

i.e. the post of Inspector General but even came within the zone of

consideration for the two vacancies which were anticipated to fall due in the

year 2010.

3. Completing the procedural formalities and noting that no vigilance inquiry

was pending against him, name of Sh.R.R.Sahay was considered at a

Departmental Promotion Committee which met on 28.6.2010. The

Committee opined that he was fit for promotion and thus placed his name at

serial No.2 in the select panel for the reason one Mr.R.R.Bhardwaj, Deputy

Inspector General and senior to Sh.R.R.Sahay was also found fit for

promotion.

4. The panel, consisting of two names, with that of Sh.R.R.Bhardwaj at

serial No.1 and that of Sh.R.R.Sahay at serial No.2 was sent for approval of

the Appointment Committee of Cabinet and learned counsel for the parties

were not at variance that as per the Rules of Appointment/Promotion

recommendations of Departmental Promotion Committee had to be

approved by the Appointment Committee of Cabinet before the same could

be given effect to.

5. The Appointment Committee of Cabinet gave the necessary approval on

16.8.2010. By that date one out of the two anticipated vacancies to the post

of Inspector General had already fallen due and thus on 16.8.2010 itself an

order granting promotion to Sh.R.R.Bhardwaj was issued.

6. The second anticipated vacancy, due to the superannuation of

Sh.D.S.Badwal, Inspector General, fell due on 31.8.2010 i.e. the date on

which Sh.D.S.Badwal superannuated.

7. Sh.R.R.Sahay was expecting an order to be issued promoting him to the

post of Inspector General which fell due on 31.8.2010, but found to his

dismay that no such order was issued.

8. The reason why the order promoting him was not issued was a reference

made to the Ministry of Home Affairs, whether or not Sh.R.R.Sahay should

be promoted on account of the fact that the department took serious note of

the fact that he proceeded on casual leave for 5 days with effect from

4.7.2010 but did not report for duty on 12.7.2010 and kept on informing that

he was unwell. As per the department, petitioner was holding the charge of

Deputy Inspector General (Special Security Group) and (Government

Building Security); an Important Security Assignment for the reason the

Special Security Group looks after the security of protected persons placed

in Category, X, Y and Z and the Government Building Security Unit

manages the security of 49 government buildings in Delhi and on account of

the Commonwealth Games to be held in Delhi in October 2010 the

petitioner was directly incharge of the operational preparedness of the men

working under him. It was opined that the attitude of the petitioner showed

poor leadership qualities casting a doubt on his ability to shoulder the

responsibilities of an Inspector General. It was also noted that once in the

past also the petitioner had likewise overstayed sanctioned leave for which

he was warned.

9. The counter affidavit was filed on 20.10.2010 and when the writ petition

was heard on 6.1.2011 the Court was informed that the Government has

concurred in promotion not being granted to Sh.R.R.Sahay and that a

decision has been taken to initiate disciplinary proceedings against him.

10. It is apparent that the legal issue which arose for consideration and was

debated at the bar was: Whether a Government servant can be denied

promotion for a stated misdemeanour allegedly committed after the

Departmental Promotion Committee has met and given its recommendations

finding the Government Servant fit for promotion, which recommendations

are accepted by the Competent Authority, but before a vacancy is available

for promotion, the Government Servant comes under a cloud.

11. Facts pertaining to the case of Mohd.Rafique Hossain are that he joined

service under Central Reserved Police Force as a Deputy Superintendent of

Police on 13.12.1987 and earned promotions; reaching the post of

Commandant on 4.6.2004 and having completed 5 years? regular service

became eligible to be promoted to the rank of Deputy Inspector General

Police and fell within the zone of consideration for the vacancy year 2009-

10. Obtaining vigilance and integrity clearance by 12.2.2009, his name was

included in the list of eligible officers for being considered by the

Departmental Promotion Committee which met on 3.9.2009 and as per the

panel prepared placed his name at serial No.16 of the 19 officers found fit

i.e. empanelled for promotion. The Competent Authority approved the panel

on 12.9.2009 and on the same day 13 officers up to serial No.14 were

promoted. 2 vacancies accrued on 1.10.2009 due to superannuation of one

Sh.N.Bhardwaj, DIG on 30.9.2009 and one Sh.Rohit Kumar, DIG

proceeding on deputation to National Disaster Response Force. On

8.10.2009 Sh.Amar Singh Negi, Commandant at Serial No.15 of the

approval panel was promoted and not the petitioner. 4 more vacancies fell

due on 14.12.2009 due to promotion of 4 Deputy Inspector Generals to the

rank of Inspector General, but the petitioner was not promoted. The reason

why he was not promoted is that complaints were received that he had

facilitated LIC agents to obtain business by influencing new recruits of his

unit to purchase LIC policies and further violated the codal formalities and

did not maintain proper record pertaining to purchases made to distribute

uniform to the recruits, which were being investigated and by August 2009 a

decision was taken to formally charge sheet him in view of the preliminary

inquiry report indicting him. The Cadre Controlling Ministry i.e. the

Ministry of Home Affairs had to be consulted which gave concurrence to the

draft article of charges by 20.11.2009. On 23.3.2010 a charge sheet dated

18.3.2010 was served upon him for a major penalty proceedings under Rule

14 of the CCS (CCA) Rules.

12. The charges framed read as under:-

“ARTICLE-I

That Shri M.R.HUSSAIN, Commandant IRLA

NO.2672 while functioning as Commandant in

199 Bn. CRPF during the period from Nov

2007 to Feb 2008, committed an act of serious

misconduct, in that, he facilitated some

particular LIC agents in their business by

influencing the recruits of his unit to purchase

LIC policies. Orders were issued in this regard

to all OCs of Coys of his Unit to collect amount

of premium from the recruits. Thus, the said

officer failed to maintain absolute devotion to

duty and acted in a manner unbecoming of a

Government servant and thereby violated the

provisions contained in rule 3(1) (ii) and (iii) of

CCS (Conduct) Rules, 1964.

ARTICLE-II

That during the period from August, 2007 to

Feb 2008, Shri M.R.HUSSAIN, Commandant

IRLA No.2672 while functioning as

Commandant in 199 Bn., CRPF committed an

act of serious misconduct, in that, he allowed

distribution of uniform and allied training items

to the recruits by arranging purchase directly

from private firm and supplier, without

observing any codal formalities or maintaining

proper records of purchase through canteen.

The payment and collections from the recruits

was done through staff for onward payment to

the private firms without any official records.

Thus, the said officer failed to maintain an

absolute devotion to duty and acted in a manner

unbecoming of a Government servant and

thereby violated the provisions contained in

Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules,

1964.”

13. The issue was debated between the parties with reference to the latest

memorandum on the subject, being the Office Memorandum dated

31.7.1991 issued by the Government of India in light of the decision of the

Supreme Court reported as UOI vs. K.V.Janakiraman AIR 1991 SC 2010,

which Office Memorandum reads as under:-

“OFFICE MEMORANDUM

Sub:- Promotion of Government servant against

whom disciplinary/court proceedings are

pending or whose Conduct is under

investigation-Procedure and guidelines to be

followed.

The undersigned is directed to refer to

Department of Personnel & Training OM

No.22011/2/86-Estt.(A) dated 12th January,

1988 and subsequent instructions issued from

time to time on the above subject and to say

that the procedure and guidelines to be

followed in the matter of promotion of

Government servants against whom

disciplinary/court proceedings are pending or

whose conducts is under investigation have

been reviewed carefully. Government have also

noticed the judgment dated 27.08.1991 of the

Supreme Court in Union of India etc. Vs.

K.V.Jankiraman etc. (AIR 1991 SC 2010). As a

result of the review and in supersession of all

the earlier instructions on the subject (referred

to in the margin), the procedure to be followed

in this regard by the authorities concerned is

laid down in the subsequent paras of this OM

for their guidance.

2. At the time of consideration of the cases of

Government servants for promotion, details of

Government servants in the consideration zone

for promotion falling under the following

categories should be specifically brought to the

notice of the Departmental Promotion

Committeei)

Government servants under suspension.

ii) Government servants in respect of whom a

charge sheet has been issued and the

disciplinary proceedings are pending; and

iii) Government servants in respect of whom

prosecution for a criminal charge is pending.

2.1 The Departmental Promotion Committee

shall assess the suitability of the Government

servants coming within the purview of the

circumstances mentioned above along with

other eligible candidates without taking into

consideration the disciplinary cases/criminal

prosecution pending. The assessment of the

DPC, including „Unfit for Promotion?, and the

grading awarded by it will be kept in a sealed

cover. The cover will be superscribed findings

regarding suitability for promotion to the

grade/post of ………….. in respect of Shri

…………. (name of the Government servant).

Not to be opened till the termination of the

disciplinary case/criminal prosecution against

Shri ……………..?. The proceedings of the

DPC need only

contain the note “The findings are contained in

the attached sealed cover?. The authority

competent to fill the vacancy should be

separately advised to fill the vacancy in the

higher grade only in an officiating capacity

when the findings of the DPC in respect of the

suitability of a Government servant for his

promotion are kept in a sealed cover.

2.2 The same procedure outlined in para 2.1

above will be followed by the subsequent

Departmental Promotion Committees convened

till the disciplinary case/criminal prosecution

against the Government servant concerned is

concluded.

3. On the conclusion of the disciplinary

case/criminal prosecution which results in

dropping of allegations against the Govt.

servant, the sealed cover or covers shall be

opened. In case the Government servant is

completely exonerated the due date of his

promotion will be determined with reference to

the position assigned to him in the findings kept

in the sealed cover/covers and with reference to

the date of promotion of his next junior on the

basis of such position. The Government servant

may be promoted, if necessary, by reverting the

junior most officiating person. He may be

promoted notionally with reference to the date

of promotion of his junior. However, whether

the officer concerned will be entitled to any

arrears of pay for the period of notional

promotion preceding the date of actual

promotion, and if so to what extent, will be

decided by the appointing authority by taking

into consideration all the facts and

circumstances of the disciplinary

proceeding/criminal prosecution. Where the

authority denies arrears of salary or part of it, it

will record its reasons for doing so. It is not

possible to anticipate and enumerate

exhaustively all the circumstances under which

such denials of arrears of salary or part of it

may become necessary. However, there may be

causes where the proceedings, whether

disciplinary or criminal, are for example

delayed at the instance of the employee or the

clearance in the disciplinary proceedings or

acquittal in the criminal proceedings is with

benefit of doubt or on account of nonavailability

of evidence due to the acts

attributable to the employee etc. These are only

some of the circumstances where such denial

can be justified.

3.1 If any penalty is imposed on the

Government servant as a result of the

disciplinary proceedings or if his found guilty

in the criminal prosecution against him, the

findings of the sealed cover/covers shall not be

acted upon. His case for promotion may be

considered by the next DPC in the normal

course and having regard to the penalty

imposed on him.

3.2 It is also clarified that in a case where

disciplinary proceedings have been held under

the relevant disciplinary rules, „warning?

should not be issued as a result of such

proceedings. If it is found, as a result of the

proceedings, that some blame attaches to the

Government servant, at least the penalty of

„censure? should be imposed.

4. It is necessary to ensure that the disciplinary

case/criminal prosecution instituted against any

Government servant is not unduly prolonged

and all efforts to finalise expeditiously the

proceedings should be taken so that the need for

keeping the case of a Government servant in a

sealed cover is limited to the barest minimum.

It has, therefore, been decided that the

appointing authorities concerned should review

comprehensively the cases of Government

servants, whose suitability for promotion to a

higher grade has been kept in a sealed cover on

the expiry of 6 months from the date of

convening the first Departmental Promotion

Committee which had adjudged his suitability

and kept its findings in the sealed cover. Such a

review should be done subsequently also every

six months. The review should inter alia, cover

the progress regarding disciplinary

proceedings/criminal prosecution and the

further measures to be taken to expeditious

completion.

5. In spite of the six monthly review referred to

in para above there may be some cases, where

the disciplinary case/criminal prosecution

against the Government servant is not

concluded even after the expiry of two years

from the date of the meeting of the first DPC,

which kept its findings in respect of the

Government servant in a sealed cover. In such a

situation the appointing authority may review

the case of the Government servant, provided

his is not under suspension, to consider the

desirability of giving him ad-hoc promotion

keeping in view the following aspects:-

a) Whether the promotion of the officer will be

against public interest.

b) Whether the charges are grave enough to

warrant continued denial of promotion

c) Whether there is any likelihood of the case

coming to a conclusion near future

d) Whether the delay in the finalization of

proceedings, departmental or in court of law, is

ot directly or indirectly attributable to the

Government servant concerned; and

e) Whether there is any likelihood of misuse of

official position which the Government servant

may occupy after ad-hoc promotion, which may

adversely affect the conduct of the departmental

case/criminal prosecution. The appointing

authority should also consult the Central

Bureau of Investigation and take their views

into account where the departmental

proceedings or criminal prosecution arose out

of the investigation conducted by the Bureau.

5.1 In case the appointing authority comes to a

conclusion that it would not be against the

public interest to allow ad-hoc promotion to the

Government servant, his case should be placed

before the next DPC held in the normal course

after the expiry of the two year period to decide

whether the officer is suitable for promotion on

ad-hoc basis. Where the Government servant is

considered for ad-hoc promotion, the

Departmental Promotion Committee should

make its assessment on the basis of the totality

of the individual?s record of service without

taking into account the pending disciplinary

case/criminal prosecution against him.

5.2 After a decision is taken to promote a

Government servant on an ad-hoc basis, an

order of promotion may be issued making it

clear in the order itself that:- i) the promotion is

being made on purely ad-hoc basis and the adhoc

promotion will not confer any right for

regular promotion; and ii) the promotion shall

be „until further orders?. It should also be

indicated in the orders that the Government

reserve the right to cancel the ad-hoc promotion

and revert at any time the Government servant

to the post from which he was promoted.

5.3 If the Government servant concerned is

acquitted in the criminal prosecution on the

merits of the case or is fully exonerated in the

departmental proceedings, the ad-hoc

promotion already made may be confirmed and

the promotion treated as regular one from the

date of the ad-hoc promotion with all attendant

benefits. In case the Government servant could

have normally got his regular promotion from a

date prior to the date of his ad-hoc promotion

with reference to his placement in the DPC

proceedings kept in the sealed cover(s) and the

actual date of promotion of the person ranked

immediately junior to him by the same DPC, he

would also be allowed his due seniority and

benefit of notional promotion as envisaged in

para 3 above.

5.4 If the Government servant is not acquitted

on merits in the criminal prosecution but purely

on technical grounds and Government either

proposes to take up the matter to a higher court

or to proceed against him departmentally or if

the Government servant is not exonerated in the

departmental proceedings, the ad-hoc

promotion granted to him should be brought to

an end.

6. The procedures outlined in the preceding

paras should also be followed in considering

the claim for confirmation of an officer under

suspension, etc. A permanent vacancy should

be reserved for such an officer when his case is

placed in sealed cover by the DPC.

7. A Government servant, who is recommended

for promotion by the Departmental Promotion

Committee but in whose case any of the

circumstances mentioned in para 2 above arise

after the recommendations of the DPC are

received but before he is actually promoted,

will be considered as if his case had been

placed in a sealed cover by the DPC. He shall

not be promoted until he is completely

exonerated of the charges against him and the

provisions contained in this OM will be

applicable in his case also. 8. In so far as the

personnel serving in the Indian Audit and

Accounts Department are concerned these

instructions have been issued after consultation

with the Comptroller and Auditor General of

India.”

14. Relevant would it be to note that the respondents heavily relied upon

para 7 of the Office Memorandum.

15. In K.V.Janakiraman’s case (supra), the Supreme Court considered Office

Memorandum dated 30.1.1982 pertaining to what is commonly understood

as Sealed Cover Procedure. The Supreme Court held that a Government

Servant has a Constitutional Right to be considered for promotion as per

Rules, but right to promotion is not absolute. It was held that if on date when

a Departmental Promotion Committee meets, a Civil Servant is under

suspension or a charge-sheet (departmental) is issued or a Criminal

Investigating Agency has filed a charge-sheet in the Court of Competent

Jurisdiction, recommendations pertaining to the said Government Servant

have to be kept in a Sealed Cover and the Committee has to consider the

candidature excluding the misdemeanor alleged.

16. However, relevant would it be to note that applying the aforesaid

Statement of Law, to the facts before it, and noting that the DPC had met in

July 1986 and a charge-sheet was issued in August 1987 to initiate

departmental proceedings, the Government Servant concerned was held not

entitled to be promoted and recommendations of the DPC were directed to

be kept in abeyance. In para 17 of the decision, the Supreme Court held that

law cannot be applied mechanically.

17. This is the ratio which can be culled out from a subsequent decision of

the Supreme Court reported as State of M.P. vs. Sayeed Nazeem Zahir AIR

1993 SC 116. The DPC had met on 20.10.1987. The charge-sheet was issued

on 15.4.1988. The misdemeanor was under consideration i.e. preliminary

inquiry was being held and matter was being considered whether the chargesheet

should be issued by which time the DPC had met and since a chargesheet

was finally issued, the Supreme Court held that recommendations

pertaining to the Government Servant i.e. Sayeed Nazeem Zahir had to be

kept in a Sealed Cover. The mechanical decision of the High Court which

had held that since no charge-sheet was issued when DPC met required

Sealed Cover Procedure not to be followed was overruled by the Supreme

Court which specifically noted para 17 of the decision in K.V.Janakiraman’s

case (supra).

18. It is apparent that what was declared as the law by the Supreme Court

pertaining to the Office Memorandum dated 30.1.1982 was crystallized in

para 7 of the Office Memorandum dated 31.7.1991 and thus we may safely

eschew a discussion of such decisions which were cited before us in which

the Office Memorandum dated 30.1.1982 issued by the Government of India

were considered or Office Memorandums issued by Public Sector

Undertakings were considered and were akin to the language of the Office

Memorandum dated 30.1.1982 and in this category would fall the recent

decision of the Supreme Court reported as AIR 2007 SC 1706 Coal India

Ltd. vs. Saroj Kumar Mishra, where the Office Memorandums considered

were dated 27.6.1979 and 8.1.1981 issued by Coal India Ltd. Suffice would

it be to state that said Office Memorandums did not have a clause akin to

clause-7 which this Court is considering.

19. To be fair to the writ petitioners we do note that they relied upon

decisions wherein the Supreme Court had held that a Government Servant

cannot be denied promotion if a charge-sheet is issued after the DPC has

found him fit for promotion or in cases where the recommendations of the

DPC were kept in a sealed cover on account of the Government Servant

being charge-sheeted and on being exonerated, sealed cover was not opened

on the ground that a subsequent charge-sheet had been issued against the

Government Servant. The common ratio of the decisions was that it is only

charge-sheets issued prior to the date when DPC met which would be

relevant and not the subsequent. But, we may hasten to add that in no

decisions, was para 7 of the Office Memorandum, which we are considering,

the subject matter of consideration.

20. A Division Bench of this Court, in an unreported decision dated

17.11.2006 in WP(C) No.10541-43/2006 ‘UOI vs. R.C.Sehgal?, setting

aside the decision of the Central Administrative Tribunal in view of an

Office Memorandum having pari-materia language with clause-7 of the

Office Memorandum dated 31.7.1992, held that R.C.Sehgal, who was

empanelled for promotion by the DPC on 31.3.2005 could not be promoted

in view of the fact that by the date a vacancy arose i.e. 31.12.2005 due to

retirement of an incumbent holding the promotional post, had come under a

cloud and a decision was taken in the file to initiate disciplinary action

against him.

21. We note that there is a direct decision of the Supreme Court on the point,

being the decision reported as AIR 2000 SC 2337 UOI & Anr. vs.

R.S.Sharma where the Supreme Court had considered the Office

Memorandum dated 31.7.1979 and evidenced by paras 14 to 16 of the

decision, had considered the effect of para 7 of the Office Memorandum.

The contra view taken by the Central Administrative Tribunal (as

propounded by the petitioners herein) was set aside and the Appeal filed by

the Union of India was allowed.

22. A decision dated 2.12.2010 in WP(C) No.5987/2010 „Government of

NCT Delhi & Ors. vs. Deb Singh Bhakuni & Ors.? was also relied upon by

the petitioners to support their contention and since the said decision has

been authored by one of us; Pradeep Nandrajog, J., we may clarify on the

said decision.

23. The decision had considered the Office Memorandum dated 31.7.1991

and had noted that when the DPC met on 15.5.2008 and cleared the name of

Deb Singh Bhakuni he was empanelled for promotion and on said date

neither a charge-sheet for departmental inquiry was under contemplation or

was issued and nor was any charge-sheet by a Criminal Investigating

Agency filed in a Court. It was noted that even till 2.12.2010 when decision

was pronounced by an oral order in Court, was any decision taken to initiate

Departmental Proceedings against Deb Singh Bhakuni nor had any Criminal

Investigating Agency filed a charge-sheet against him in the Competent

Court. It was further noted that an FIR had been registered on 2.1.2006

pertaining to a stated financial bungling when Deb Singh Bhakuni as a

Senior Accounts Officer and even till 2.12.2010 no charge-sheet was filed. It

was on said facts it was held that Deb Singh Bhakuni had a right to be

promoted.

24. Needless to state as held in K.V.Janakiraman’s case (supra) and as

followed in Sayeed Nazeem Zahir’s case (supra) law cannot be applied

mechanically.

25. We may only add that Courts have to balance the public interest which

demands the accountability of/from every Government Servant vis-à-vis the

right of a Government Servant to a speedy investigation of his conduct and

not that his conduct being investigated should turn out to be a test of his

patience.

26. If the Courts find equities in favour of a Government Servant on account

of preliminary investigations continuing for years together and neither

departmental action initiated nor a charge-sheet before a Competent

Criminal Court filed and the Government Servant is otherwise found fit to

be promoted, in those special circumstances, which create equities in favour

of the Government Servant, appropriate directions can always be issued.

27. Turning to the facts of R.R.Sahay, it may be noted that the CISF

Authorities have taken a serious view of the petitioner evading

responsibilities and the period in question precedes the date when a vacancy

became eligible to promote him and on a reference made to the Cadre

Controlling Ministry a conscious decision has been taken to withhold his

promotion and initiate disciplinary proceedings against him. Thus, we hold

that he would not be entitled to be promoted as claimed by him. But

considering that not much preliminary investigation is required, would direct

that a decision pertaining to a charge-sheet being issued to him be taken

within 4 weeks of date of receipt of this order. Further action be chartered as

per Law.

28. Qua Mohd.Rafique Hossain, facts evidence that when the DPC met on

3.9.2003 a departmental decision had already been taken in August 2009 to

initiate disciplinary proceedings against him and for which a draft chargesheet

was prepared and sent to the Cadre Controlling Ministry for

concurrence. Vacancies accrued only on 1.10.2009 and by which date, as

noted herein above, a decision had already been taken in the file to initiate

disciplinary proceedings against him and even a draft charge-sheet had been

prepared. We note that as against him a charge-sheet stands issued on

18.3.2010 pertaining to major penalty proceedings, and thus we hold that

Mohd.Rafique Hossain is not entitled to the relief prayed for, save and

except a direction that the departmental inquiry be expedited.

29. Relief claimed by the petitioners is denied and the 2 writ petitions stand

disposed of in terms of paras 27 and 28 above. 30. No costs.

(PRADEEP NANDRAJOG)

JUDGE

(SURESH KAIT)

JUDGE

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

 

 

1

IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

AIZAWL BENCH :: AIZAWL

W.P(C) No. 16 of 2011

Petitioner:

2. K. Vanlalhruaia, S/o. Lalnuntluanga, R/o. Bungkawn Tlangveng, Aizawl.

3. Vanlalhruaia, S/o. Zonundanga, R/o. Thingsulthliah, Aizawl District.

1. Lalthahluna, S/o. Chhingpuii, R/o. Seling, Aizawl District.

By Advocate :

Mr. Zochhuana, Adv.

Respondents :

1. State of Mizoram, (Represented by the Chief Secretary to the Govt. of Mizoram, Mizoram, Aizawl.

2. The Secretary to the Govt. of Mizoram, Home Department, Mizoram, Aizawl.

3. The Deputy Inspector General of Police (Range), Aizawl, Mizoram.

4. Assistant Inspector General of Police-1, Aizawl.

5. The Commandant, 2

nd IR Bn., Aizawl Mizoram.

By Advocate :

Mrs. Dinari. T. Azyu, G.A

B E F O R E

THE HON’BLE MR. JUSTICE H. BARUAH.

Date of hearing & : 26

Judgment

th August, 2011 W.P(C) No. 16 of 2011 Page 1 of 8 2 

J U D G M E N T AND O R D E R(oral)

Heard Mr. Zochhuana, learned counsel for the petitioners and Mrs. Dinari T. Azyu, learned Govt. Advocate for the respondents.

2.

This is a second round of litigation. In this writ petition the petitioners once again have challenged the impugned order (annexure- XIX) issued under Memo No. 2IR/R/Common-DEDVR-3/09/2092 dated 18-11-2009, whereby and whereunder petitioners are removed from service. It would appear from the perusal of the records that on account of removal of the writ petitioners by the Commandant, 2nd IR Battalion by order dated 25-8-2006, the petitioners approached this court challenging their removal by filing Writ Petition (c) No. 31 of 2008, which came to be disposed of by this court vide judgment and order dated 1-4-2009. The removal of the petitioners made by impugned order dated 25-8-2006 was made without holding a disciplinary proceeding as mandated under Article 311(2) of the Constitution of India. This court while disposing the aforesaid writ petition, in paragraph-6 of the judgment and order observed as under:

"6. However, in the peculiar facts and circumstances, it is made clear that this court is not making any comment to the decision of the Disciplinary Authority for taking appropriate actions against the writ petitioners. But this court interferes with the impugned order only on the ground that the prerequisites for dispensing with the Departmental Enquiry against the petitioners contemplated under proviso (b) to Article 311(2) of the Constitution of India are not fulfilled. Accordingly, the Disciplinary Authority is directed to hold regular Departmental Enquiry against the writ petitioners according to law. For holding Departmental Enquiry, the petitioners shall be reinstated to their services and they may be placed under suspension, if necessary, immediately after their reinstatement and the petitioners shall be paid substantial allowances as per the rules."

W.P(C) No. 16 of 2011 Page 2 of 8 3 

From the perusal of the contents of the above paragraph of the judgment, it would appear to us that on account of failure to adhere to the provision of Article 311(2) of the Constitution of India, the Disciplinary Authority was directed to hold regular departmental inquiry against the writ petitioners. It was also directed that for the purpose of holding the departmental enquiry petitioners shall be reinstated to their services and they may be placed under suspension, if necessary, immediately after their reinstatement in their services. Further direction was also issued that the petitioners shall be paid substantial allowances as per rules.

3.

The respondent authorities being empowered to hold a fresh departmental enquiry against the writ petitioners herein proceeded with a departmental enquiry afresh wherein, Saidingliana Sailo, Deputy Commandant, 2nd IR Battalion was appointed as Enquiry Officer. For the purpose of proceeding with the departmental enquiry the respondent authorities provided the writ petitioners with article of charges and statement of imputation and asked the writ petitioners to file show cause as to why the departmental proceeding should not be proceeded against them. Pursuant thereto the writ petitioners herein filed their reply in writing vide Annexure-13, 14 and 15, wherein they denied all the allegations/charges brought against them. Being not satisfied with the explanation, so submitted by the writ petitioners as against the charges leveled against, the respondents commenced the departmental proceeding against the writ petitioners. The departmental proceeding/inquiry having been concluded, an inquiry report being submitted to the disciplinary authority, the disciplinary authority, the Commandant, 2nd IR Battalion vide impugned order dated 18- W.P(C) No. 16 of 2011 Page 3 of 8 4 

11-2009 (Annexure-XIX) removed the petitioners from their services on and from 18-11-2009. The disciplinary authority in the impugned order also indicated that the period of suspension with effect from 6-5-2009 till the date of issue of the impugned order shall not be treated as on duty.

4.

Being aggrieved by the impugned order the petitioners have once again approached this court by filing this instant writ petition challenging their removal from service.

5.

Mr. Zochhuana, learned counsel for the petitioners at the very outset of his argument submits that the impugned removal order cannot sustain in law since there is violation of the procedure of conducting departmental proceeding against the delinquent. It is submitted by Mr. Zochhuana that Saidingliana Sailo, Deputy Commandant, 2nd IR Battalion was appointed as Enquiry Officer. Said Saidingliana, the Enquiry Officer assumed dual role while conducting the inquiry against the writ petitioners. Mr. Zochhuana referring to the inquiry report, Annexure-17 submits that during inquiry 3(three) witnesses for the department were examined to prove article of charges against the writ petitioners. The Enquiry Officer by assuming the role of Presenting Officer examined those 3(three) witnesses in order to prove the article of charges against the petitioners. It is submitted by Mr. Zochhuana that the Enquiry Officer being in the position of a Judge cannot assume dual role while conducting a disciplinary proceeding which is quasi judicial in nature against the delinquents. During the pendency of the writ petition, the learned State counsel was directed to place the entire records of the disciplinary proceeding to substantiate whether for the purpose of disciplinary proceeding any Presenting Officer W.P(C) No. 16 of 2011 Page 4 of 8 5 

was appointed or not. The records of disciplinary proceeding having been placed before this court we do not find anywhere that the disciplinary authority appointed a Presenting Officer to present its case before the Enquiry Officer against the petitioners. Since the records of the disciplinary proceeding are silent in regard to the appointment of a Presenting Officer, it would appear to this court that the witnesses examined in the disciplinary proceeding were examined by the Enquiry Officer himself and thus it would go to show in clear terms that Saidingliana Sailo, Deputy Commandant, 2

nd IR Battalion assumed dual role of Enquiry Officer as well as Presenting Officer.

6.

Mrs. Dinari T. Azyu, learned G.A appearing for the State respondents also concedes after going through the records of the disciplinary proceeding that no Presenting Officer was appointed for the purpose of disciplinary proceeding against the writ petitioners.

7.

Mr. Zochhuana, learned counsel for the petitioners in support of his contention relies on the decision reported in 2011 (1) GLT 287 (Salam Kesho Singh Vrs. State of Manipur and Others). In Paragraph-5 of the judgment, the Division Bench of this Hon’ble court held as under:

"5. In the present case, there is no dispute that no Presenting Officer was appointed. This fact is confirmed fro the relevant record of the disciplinary proceeding produced by the learned senior Govt. Advocate. It is well settled that an Enquiry Officer cannot assume the role of a Judge and also a Prosecutor. Even if the relevant service rules is silent about the appointment of a Presenting Officer, absence of a Presenting Officer will make the enquiry totally vitiated as the Enquiry Officer cannot be allowed to assume the role a Judge as well as a prosecutor. In this connection, we may refer to various decisions of this Court, such as Dr. Rayja Mallu Buzar Barua Vs. Assam Administrative Tribunal & Ors.: 1983 (1) GLR (NOC) 71, Chelfrumog Vs. State of Tripura &

W.P(C) No. 16 of 2011 Page 5 of 8 6 

Ors: 2002 92) GLR 604, Baharul Islam(CT) Vs. Union of India & Ors.: 2001(1) GLT 621, State of Manipur & Ors. Vs. Chongtham Homendro Singh: 2005 (3) glt 154. In Kumar Madal Vikar Nigam Limited Vs. Giriya Shankar Pant & Ors. (2001) 1 SCC 182, the Apex Court held the same effect. In the State of U.P & Ors. Vs. Saroj Kumar Sinha: (2010) 2 SCC 772, the Hon’ble Apex Court held to the effect that an Enquiry Officer acting in a quasi-judicial authority is in a position of an independent adjudicator, and as such, he is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved."

8.

In the case (supra) it would appear to this court that for the purpose of disciplinary proceeding, proceeded against the petitioner no presenting officer was appointed. It was held by the Division Bench that the Enquiry Officer cannot assume the role of Judge and also as a prosecutor. Non-appointment of the Presenting Officer to conduct the departmental proceeding it was observed would vitiate the entire departmental proceeding. The Division Bench of this court while deciding as such also took the ratio laid down in various decisions of this court as well as Apex Court. In our present case also the records of the disciplinary proceeding do not indicate that a Presenting Officer was appointed to conduct the disciplinary proceeding. As it appears, the Enquiry Officer himself conducted the proceeding and ultimately came to finding that the article of charges are proved against the writ petitioners.

9.

In view of the ratio laid down by this court and various High Courts as well as Apex Court, the disciplinary proceeding conducted against the petitioners would be vitiated. This being so, the impugned order of removal basing on the decision of the Enquiry Officer cannot sustain in law. W.P(C) No. 16 of 2011 Page 6 of 8 7 

10.

Mrs. Dinari. T. Azyu, learned Govt. Advocate while submitting before this court strenuously submits that the decision of the Enquiry Officer went against the writ petitioners on account of their pleading of guilt to the Article of charges framed against them. That being so, the entire disciplinary proceeding would not be vitiated on account of non appointment of Presenting Officer and accordingly, the impugned order is not liable to be interfered with. It would appear to this court that the writ petitioners during the departmental proceeding pleaded their guilt that too in writing but while taking a decision as against the writ petitioners by the Enquiry Officer, he had cumulatively had taken the testimony of the 3(three) witnesses examined by him together with the plea of guilt submitted in writing by the petitioners. When the decision had been taken as against the writ petitioners basing on the testimony of the three witnesses, who were examined by the Enquiry Officer during the conduct of the departmental proceeding, the role assumed by him, in view of the ratio laid down by this court as well as Apex Court and different High Courts would not be acceptable. Thus, the departmental proceeding conducted and the decision rendered on the basis of it cannot sustain as against the writ petitioners.

11.

Taking note of all the facts in its entirety and the law laid down by the Apex Court and this Court and various other High Courts in my considered view, the impugned removal order cannot sustain. In the result, impugned order issued under Memo No. 2IR/R/Common-DEDVR-3/09/2092 dated 18-11-2009 removing the petitioners from service is set aside and quashed. Respondent authority(s) is/are directed to reinstate the petitioners in their respective service from the date of their suspension and to pay all W.P(C) No. 16 of 2011 Page 7 of 8 8 

service benefits from the date of their suspension till the date of their reinstatement. Respondent authority(s) would, however be not handicapped to proceed with departmental proceeding(s) against the petitioners afresh, if so advised.

12.

Writ petition stands disposed of accordingly. No cost.

JUDGE

d.de.

W.P(C) No. 16 of 2011 Page 8 of 8