As a matter of courtroom practice, P.B. Bajanthri, J. of the High Court of Judicature at Patna had prescribed and affixed a list of dates and events that had to be provided by the advocates appearing in a case of disciplinary proceeding so that the hearing of the case is “facilitated”. As prescribed, the list traced the starting point and treaded the entire journey of such a case. In this article, each term in the list has been mentioned and discussed under a different heading except impugned orders (original penalty order, appeal, and revision), the aspects of which have been discussed collectively. Apart from the items mentioned on the list, two additional headings have been added on the basis of the courtroom proceedings:
(i) The post of the delinquent employee and nature of the allegation against him.
(ii) The reliefs which the constitutional courts can grant have also been mentioned, albeit briefly.
Prima facie, this article appears to be beneficial to only the practitioners before the Patna High Court. However, some or all of the broad principles discussed hereinafter can be applied to the majority of cases relating to disciplinary proceedings. Thus, it is envisaged that the article will not be limited in its scope and will be beneficial to not just the practitioners in a particular courtroom.
Post and allegation
Invariably, the first question asked by the Bench is regarding the post to which the delinquent employee/officer (delinquent) was appointed along with the date of appointment. The question, though asked at the initial stage, directly relates to the ultimate consequence against which the delinquent generally approaches the Court i.e. the order of penalty. The post to which the delinquent is appointed is particularly relevant for analysing the proportionality of punishment imposed. Relying on the emerging trend (at that time) of using the doctrine of proportionality in administrative law,1 the Supreme Court laid down the law in the following words:
The question of the choice and quantum of punishment is within the jurisdiction of the tribunal. But the punishment has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience of the Court and amount to conclusive evidence of bias.2
For example, the courts have been stringent when the integrity of bank officials has been questioned. The reason for such strictness is that “the officers of the bank enjoy a part of confidence in them”. And when that trust is abused, particularly by embezzlement of funds, it is only logical that the same is met with necessarily strict action.3
When a disciplinary proceeding is contemplated, it is a reasonable apprehension that the delinquent might attempt to affect the proceedings against him. To counter this apprehension, there is a power, the source of which can be either express or implied, which lies with the employer and that is the power to pass an order of suspension.4 In one of the important texts on the subject of service law, the learned authors have enlisted suspension as having three different legal connotations:
(i) suspension as a punishment;
(ii) suspension merely forbidding the employee from performing his duty; and
(iii) suspension during or in contemplation of disciplinary proceedings or an inquiry.5
However, this power to suspend is not without restraints. The restraints are necessary because the suspension of an employee is injurious to his interests and must neither be passed lightly nor should it be continued for unreasonably long periods. In particular, a suspension that precedes the framing of charges is transitory or temporary, and logically, it ought to be of brief duration. If it were not so, the suspension order would partake in the character of being punitive. Making an analogy from a criminal trial and basing the analogy on Article 21 of the Constitution of India6, judicial interpretation has extended the legal expectation of expeditious trial to departmental proceedings also, a component of which is the power of suspension.7
It is also important to remember that an order of suspension does not bring about a cessation of the contract of service. The very concept of suspension suggests that although the employee is not permitted to work, he remains a member of service.8 And because of the brooding omnipresence of Article 21 of the Constitution through every walk of life, despite being suspended from work, the disciplinary rules almost always permit paying subsistence allowance to the delinquent employee, which is less than his salary,9 so that his dignity is ensured and he is not forced to live a meaningless life. Moreover, the non-payment of subsistence allowance can become a ground for quashing the entire disciplinary proceeding and consequent order of punishment if because of such non-payment, the delinquent is unable to defend his case effectively.10
Preliminary enquiry and charge memo/charge-sheet
Ordinarily, drawing up of charge memo is the condition precedent for initiation of disciplinary proceedings. The date of issuance of the charge memo is the usual date from which the disciplinary proceeding begins.11 Any enquiry before this is only for the purpose of facilitating the decision of the disciplinary authority regarding whether or not the delinquent should be proceeded against in a full-fledged proceeding.12
The date on which the disciplinary proceeding is initiated also assumes significance in many ways, one of which has been explained. In UCO Bank v. Rajinder Lal Capoor13, the Supreme Court was concerned with the interpretation of UCO Bank Officer Employees’ (Conduct) Regulations, 197614. According to the said Regulations, the disciplinary proceeding could be said to be initiated only after a charge-sheet was served. In this case, the delinquent reached the age of superannuation on 30-11-1996, but the charge-sheet was issued only on 13-11-1998. After the conduction of disciplinary proceedings, the delinquent suffered an order of punishment. The Supreme Court set aside the order of punishment while noticing that ordinarily, in the absence of rules, no disciplinary proceeding could be continued after superannuation of the delinquent. The Court also observed that in the absence of statutory rules operating in the field, resorting to a preliminary enquiry would not, by itself, be enough to hold that a disciplinary proceeding has been initiated.
The primary object of a charge memo is to tell the delinquent about what he has supposedly done against which departmental proceeding is contemplated. It is now a settled position of law that charges have to be specific with a statement of allegations on which they are based. In other words, particulars and details which enable the delinquent to have a reasonable and adequate opportunity of defence constitute a valid charge memo.15 In some instances, rule may provide for stricter requirements, non-observance of which will leave the entire disciplinary proceeding vulnerable to being vitiated. For example, Rule 17(4) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 200516 provides that apart from “copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained”, has to be supplied to delinquent before asking for the delinquent’s written statement (reply).
Inquiry officer and his report
Once it is found that the reply of the delinquent is not satisfactory, the disciplinary authority appoints an inquiry officer (IO).17 The IO performs a quasi-judicial function i.e. he determines whether or not the charges levelled against the delinquent are proved. The IO must arrive at a finding upon considering the materials brought on record by the parties.18 Regarding how the IO is expected to carry out his duty, the following words are instructive:
An inquiry officer is in the position of an independent adjudicator. He is not supposed to be a representative of the disciplinary authority. His function is to examine the evidence presented by the Department, even in the absence of the delinquent to see as to whether the unrequited evidence is sufficient to hold that the charges are proved. This is so as to avoid the charge that the IO has acted as a prosecutor as well as the Judge.19
With respect to the reply of the delinquent (which was mentioned in the previous heading) and how it should be dealt with, the Allahabad High Court, speaking vide Manish Mathur, J. has summarised the law in the following words:
11. … once specific submission or averment has been made by the delinquent employee in his reply submitted by him, it is incumbent upon the inquiry officer to have adverted to the same. Non-consideration of averments made by the delinquent employee in reply to charge-sheet clearly vitiates the order passed against him.
12. The Supreme Court of India in Kuldeep Singh v. Commr. of Police20 has clearly held that finding recorded in domestic enquiry can be characterised as perverse if not supported by any evidence on record or not based on evidence adduced by parties….21
One of the grounds generally taken for attacking the validity of a disciplinary proceeding is that the IO in his report has recommended a particular punishment above and beyond his duties. And that punishment has been imposed by the disciplinary authority. Subject to rules that mention otherwise,22 the IO has no power to recommend any penalty. All that is required is that the IO has to give a finding upon the charges against the delinquent. However, if the IO has recommended a particular punishment, the disciplinary authority is not bound by the same, and he can pass an order independently. Moreover, merely on account of the recommendation of penalty by IO of which he had no authority, the imposition of the penalty would not be set aside if the disciplinary authority does not solely depend on such recommendation.23
IO’s report and second show-cause notice
In his report, after considering all the materials before it including the reply of the delinquent, the IO may submit that the charges levelled against the delinquent have not been proven. From the perspective of the delinquent, if the disciplinary authority accepts the report of IO, then the proceeding stands dropped. However, there are cases in which the disciplinary authority disagrees with the IO’s report, with the latter mentioning that the delinquent was not guilty of any or some of the charges. There is no doubt that the disciplinary authority can disagree with the findings of the IO but there cannot be an ex parte conclusion of the disciplinary authority that he has already disagreed with the report of the IO and show-cause notice is issued only to the extent of imposition of penalty.24 It is of great importance to supply the reasons for disagreement because only if the delinquent is aware of the reasons will he be able to effectively attack the validity of the findings of disciplinary authority.25
Even otherwise, when the IO submits a report to the disciplinary authority in which he mentions that the delinquent is guilty of the charges mentioned in the charge-sheet, then also, natural justice demands that he be given the report of the IO. According to natural justice, no person shall suffer an adverse order without being heard. And the principles of natural justice are not to be considered a mere formality. Rather, the delinquent must be given a meaningful and reasonable opportunity to present his case. If it is an accepted proposition that the findings recorded by the IO in his report generally form important material before the disciplinary authority, which along with other materials is taken into consideration by it to come to its conclusions, then one cannot reasonably say that the delinquent got a reasonable opportunity to present his case if the disciplinary authority had an important material (IO’s report) which was factored in for reaching a decision but was not made available to the delinquent.26
Subject to complying with the law as stated above and depending on the content of applicable rules and regulations, a second notice may or may not be issued. The Supreme Court has summarised the law regarding the requirement, or lack thereof, of a second show-cause against a particular punishment notice by stating that the issuance of a second show-cause notice for the purpose of obtaining the views of delinquent officer in regard to quantum of punishment is not a part of the common law principles of natural justice. Thus, such a protection could be provided but the basis of same must be found in the applicable rules, either expressly or by necessary implication.27 If permitted by the rules, the purpose of such a second notice is to show cause against the proposed punishment and to enable the public servant to satisfy the disciplinary authority that the punishment proposed is unduly severe.28
However, it is not always necessary that the non-supply of report of IO or the second show-cause notice will adversely affect the validity of a disciplinary proceeding. The legal consequences of non-supply of the two documents would generally depend on prejudice theory: whether or not any prejudice has been caused to the delinquent by non-supply of the inquiry officer’s report or the second notice to show-cause against the proposed punishment.29
After the culmination of the disciplinary proceeding, it is finalised with the imposition of a penalty order. Thereafter, it is subjected to appeal before the appellate authority and revision before the revisional authority, which will be specified per the applicable rules. The important aspect of this discussion is that each of the individual orders needs to be a speaking order. It means that the order of the disciplinary authority imposing the punishment and confirmation or disagreement of it by the appellate authority and subsequently by the revisional authority must, through their orders, reflect an independent application of mind. The order, which is speaking performs many important functions,30 a few of which have been enumerated below:
(i) It shows fairness in administration, reinforcing one of the cardinal principles of law that justice must not only be done but also be seen to be done.31
(ii) It provides an opportunity for the next higher authority in the hierarchy to look into the mind of the authority/authorities passing the impugned order(s) and exercise its jurisdiction to make a precise correction. Further, it provides the opportunity for constitutional courts exercising the power of judicial review to analyse the method for reaching the order of the authorities and determine the correctness of same.32
(iii) Concerning the original disciplinary authority, if the reasons are not provided, then twofold consequences will be suffered by the delinquent. In the first instance, if the natural justice is violated by the non-providing of reasons at the first stage (original disciplinary authority), then the right of appeal is not so much a right of appeal in the sense that it will not remain fair trial followed by fair appeal, rather it would become unfair trial followed by a fair trial. In other words, if the original authority does not pass a meaningful order, the delinquent, for no good reason, would be deprived of an additional opportunity to present his case effectively. The second perspective from which this anomaly can be and ought to be viewed is by analysing the consequences which are followed as soon as the order by the disciplinary authority is passed. For example, if the delinquent belongs to a highly respected and publicly trusted profession, then the initial order itself will be sufficient to damage his standing and reputation, both in front of colleagues and clientele. After the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. It is unlike the civil cases for recovery of money or for possession of property where restitution can be made by staying the execution of the decree.33
Another vital element of the impugned orders is how the order has been reached. This is because the High Courts exercising jurisdiction under Article 22634 – the proceeding through which the High Court generally interferes with a disciplinary proceeding is restrained by self-imposed restrictions. One of those primary restrictions is that there is an effective alternative remedy available, in which case the writ court will generally restrain itself from exercising its jurisdiction. However, the same is not an absolute bar, and there are grounds where the court will choose not to be bound by such shackles. One of the grounds is the non-observance of principles of natural justice rendering the delinquent unable to present his case effectively before the authorities.35
Reliefs that can be granted
Generally, the constitutional courts exercising the power of judicial review, if the delinquent is successful with his petition, can
(a) If the order is set aside on technicalities (for example, non-observance of principles of natural justice), remand the matter back to the stage from which the defect crept in in the proceedings, which can include the stage of supply of charge memo if the charges were not specific enough for enabling the delinquent to effectively answer the charges or the court can remit the matter back to the authority which has not complied with the applicable rules or principles of natural justice amongst others.
(b) In certain cases, direct for imposition of a particular penalty. However, this ought not to be the norm. In one of the most recent judgments on the topic, the Supreme Court has held that:
21. … If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the disciplinary/appellate authority may be called upon to reconsider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, offering cogent reasons therefor.36
Before the court parts with the case, there are two major questions regarding suspension, which are required to be answered:
How will the suspension period be regulated once the disciplinary proceeding culminates either before the disciplinary authority or before the court?
The answer to this question will vary from case to case. For example, suppose the delinquent is suspended pending a criminal case, and in that criminal case, he was acquitted because of lack of evidence and not acquitted honourably. In that situation, the disciplinary authority will be very much within its competence to treat the period of suspension as a suspension only and not allow the benefit of increments and all other consequential benefits.37
When the matter is remitted back to the authority after setting aside the order of punishment for conducting a fresh inquiry on the ground of one or other lacunae, what is the status of the delinquent i.e. will he remain suspended? Also, how is the claim for entitlement to back wages to be determined?
The answer to this question can be found by reading two decisions of the Supreme Court conjointly.38 A combined reading of these two judgments will give the proposition that once the order of punishment is quashed by either the court or tribunal on some technical ground, the authority must be allowed to conduct the inquiry afresh from the stage from where the defect crept in. For the purpose of holding a fresh inquiry, the delinquent is to be reinstated. It is possible that even after reinstating him, the employer places the delinquent under suspension. The important question of back wages, etc. will be determined by the employer at its discretion. It implies that entitlement to back wages is not an automatic consequence of reinstatement but is a matter of discretion. However, the discretion to determine this question has to be exercised not arbitrarily but by keeping the factual scenario and the principles of justice, equity, and good conscience in mind.39
Along with the list of events, the dates of those events have also to be mentioned. Inter alia, the same would help the Court to determine whether the authorities have shown laxity in completing the disciplinary proceedings within a reasonable time period. To reiterate, the Court will under normal circumstances would generally remit the matter back to the disciplinary authority to complete the proceedings from the defective stage and fix a time-frame within which the proceedings are to be completed. However, in certain exceptional circumstances, the court may stop the proceeding in its entirety. As to what those exceptional circumstances would be, the same would vary from case to case. For example, in one case, there was a delay of 22 years in the initiation of disciplinary proceedings and no satisfactory explanation was forthcoming from the authorities regarding the delay. The Calcutta High Court held that if the authorities were to be allowed to proceed with the disciplinary proceeding at such a belated stage, it was bound to cause unwarranted prejudice to the delinquent. Ultimately, the High Court quashed the disciplinary proceeding on the ground of inordinate delay alone.40
Through this article, the explanations behind the items that are mentioned in the list of dates and events have been discussed so that the purpose of the notice is even more fleshed out. Prima facie, it appears that the article will be beneficial to a small section of practitioners before the Patna High Court. But the broad principles elucidated hereinbefore can be applied to the majority of cases relating to disciplinary proceedings, subject obviously to peculiar facts, circumstances, and rules governing a particular case.
However, the rules are not be all and end all for governing the conduction of a disciplinary proceeding. Disciplinary proceedings of public servants are governed by public service law. Public service law is a specialised branch of administrative law.41 And even if the separate existence of administrative law from constitutional law is at no point of time disputed, however, if one draws two circles of the two branches of law, at a certain place they are bound to overlap depicting their undeniable interdependence. This area has been termed as watershed in administrative law in India. In this watershed, which encompasses public service law, one can include the whole control mechanism provided in the Constitution for the control of administrative authorities i.e. Articles 3242 and 226 amongst others. It further includes the study of those provisions of the Constitution which place fundamental fetters on any administrative action i.e. Part III of the Constitution.43 Applying syllogism, it logically follows that the provisions of the Constitution and the principles of constitutional law are applicable to a case relating to disciplinary proceeding. As a result, it can be reasonably stated that, inter alia, the element of fairness, the doctrine of proportionality, the principles of natural justice, and the exercise of judicial review all come together and play a part in cases relating to disciplinary proceedings. To conclude, the varying disciplinary rules might govern the match (disciplinary proceedings), but ultimately, it is the provisions of the Constitution and principles of constitutional law which supervise the arena and everything happening in it.
* Advocate, Patna High Court. Author can be reached at email@example.com. The author is grateful to Mr Chandra Mohan and Mr Tushar Pal for their comments on the article.
1. Samaraditya Pal and Vineeta Meharia, Law Relating to Public Service (4th Edn., 2021) p. 798.
2. Ranjit Thakur v. Union of India, (1987) 4 SCC 611, 620, para 25.
3. UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694, para 16.
4. Samaraditya Pal and Vineeta Meharia, Law Relating to Public Service (4th Edn., 2021) p. 677.
5. Samaraditya Pal and Vineeta Meharia, Law Relating to Public Service (4th Edn., 2021) pp. 676-677. The present article discusses the power of suspension exercised during or in contemplation of the disciplinary proceeding.
6. Constitution of India, Art. 21.
7. Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291, paras 18-21.
8. Samaraditya Pal and Vineeta Meharia, Law Relating to Public Service (4th Edn., 2021) p. 677.
9. Samaraditya Pal and Vineeta Meharia, Law Relating to Public Service (4th Edn., 2021) p. 679.
10. Jagdamba Prasad Shukla v. State of U.P., (2000) 7 SCC 90, para 8.
11. State of A.P. v. Gandhi, (2013) 5 SCC 111, paras 18 and 20.
12. Constable C.P. 117 Yad Ali v. Superintendent of Police, 2001 SCC OnLine All 20.
13. (2008) 5 SCC 257. This decision was given in a review petition filed against the judgment in UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694.
14. UCO Bank Officer Employees’ (Conduct) Regulations, 1976.
15. Arun K. Mitra v. Central Vigilance Commission, 1986 SCC OnLine Cal 406.
16. Bihar Government Servants (Classification, Control and Appeal) Rules, 2005.
17. IO has to be differentiated from a Presenting Officer. Whereas the former acts as a Judge for preliminary determination of guilt of the delinquent concerning alleged charges, the latter acts as a Prosecutor. The Calcutta High Court in R.K. Sharma v. Union of India, 2011 SCC OnLine Cal 588 has stated the function to be performed by a Presenting Officer in the following words:
20. … the presenting officer is supposed to play a very important role in the inquiry, and especially when witnesses in support of the articles of charge are examined. This means that allegations made by the disciplinary authority are to be proved by adducing oral and documentary evidence which shall be produced by the presenting officer, and not by the inquiring authority himself.
However, it is not always necessary for appointment of a Presenting Officer. For a summary of legal consequences which will follow from non-appointment of a Presenting Officer, see Union of India v. Ram Lakhan Sharma, (2018) 7 SCC 670, paras 28-37.
18. Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, para 14.
19. State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772, paras 27-28.
21. Kaushal Kishore v. State of U.P., 2019 SCC OnLine All 6789, paras 10-14.
22. Maharashtra State Seeds Corpn. Ltd. v. Hariprasad Drupadrao Jadhao, (2006) 3 SCC 690.
23. Shiv Charan Singh v. State of U.P., 2014 SCC OnLine All 3739.
24. Dharampal v. North Delhi Power Ltd., 2015 SCC OnLine Del 7073, para 4.
25. Hari Narayan Goyal v. Rajasthan State Ware Housing Corpn., 1983 SCC OnLine Raj 106, para 12.
26. ECIL v. B. Karunakar, (1993) 4 SCC 727, para 26.
27. Ganga Yamuna Gramin Bank v. Devi Sahai, (2009) 11 SCC 266, para 19.
28. Union of India v. Piara Singh, 1966 SCC OnLine All 102
29. Burdwan Central Cooperative Bank Ltd. v. Asim Chatterjee, (2012) 2 SCC 641, paras 19-22.
30. Oryx Fisheries (P) Ltd. v. Union of India, (2010) 13 SCC 427, para 40.
31. Oryx Fisheries (P) Ltd. v. Union of India, (2010) 13 SCC 427, para 40.
32. Oryx Fisheries (P) Ltd. v. Union of India, (2010) 13 SCC 427, para 40.
33. Institute of Chartered Accountants of India v. LK Ratna, (1986) 4 SCC 537, paras 17-18
34. Constitution of India, Art. 226.
35. Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1, para 15.
36. Union of India v. Subrata Nath, 2022 SCC OnLine SC 1617.
37. RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541.
38. Shailesh Kumar v. State of Bihar, 2022 SCC OnLine Pat 1095, para 8.
39. ECIL v. B. Karunakar, (1993) 4 SCC 727 r/w Coal India Ltd. v. Ananta Saha, (2011) 5 SCC 142.
40. Ranabir Saha v. Union of India, 2007 SCC OnLine Cal 687.
41. Samaraditya Pal and Vineeta Meharia, Law Relating to Public Service (4th Edn., 2021) p. 798.
42. Constitution of India, Art. 32.
43. Abhishek Dubey, “The Relationship Between Constitutional Law and Administrative Law: An Indian Perspective” (2006) PL August 7.