Manipur High Court
Case BriefsHigh Courts

   

Manipur High Court: In a writ petition filed to quash the dismissal order dated 18.1.2005 on the ground that it has violated the principles of natural justice and during the departmental enquiry, the Enquiry Officer proceeded the disciplinary proceedings without the Presiding Officer, thus, not affording a reasonable opportunity of being heard to the petitioner is in violation of Article 311(2) of the Constitution of India, M.V. Muralidaran,J. has observed that there is no disproportionation in awarding the punishment nor any violation of the principles of natural justice, as the petitioner has failed to maintain discipline and had done grave misconduct by overstaying his leave without permission.

In this case, the petitioner was serving in Central Reserve Police Force (CRPF) and has applied 15 days casual leave due to the serious illness of his father and was granted the same. Unfortunately, his father expired due to his illness and the petitioner's wife left him which led to serious bouts of drinking and substance abuse, thereby driving him into depression.

The Court noted that while the petitioner was undergoing treatment for depression with psychotic features, the respondents initiated departmental enquiry against him, on the ground of misconduct and absenting from duty continuously, with effect from 27.9.2003, without any permission of the competent authority. Further, the departmental proceedings against the petitioner were proceeded by only appointing the Enquiry Officer, and without Presenting Officer . Thereafter, an impugned order dated 18.1.2005 dismissing the petitioner from service was issued.

The Court observed that “nothing has prevented the petitioner from sending an application for extension of leave to the concerned authority and without any intimation, he was absent from duty. Further, the unfortunate events that led to his severe depression and that he could not inform the authorities of his conditions nor could take part in the departmental enquiry stated by the petitioner are all concocted for the purpose of filing the writ petition and there is no bonafide in it”. Further, the story narrated by the petitioner that as soon as he recovered from his depression, he applied for the dismissal order as well as the departmental proceedings under Right to information, and after obtaining it, he filed the writ petition is also invented for the purpose of filing the writ petition.

The Court viewed that the dismissal order as well as departmental proceedings were furnished to the petitioner in 2019 itself, thus, if he is really aggrieved by the impugned order of dismissal, he could have immediately filed petition in the year 2019 itself. However, he filed the writ petition in the year 2022, which itself shows that his conduct is not appreciable. Thus, there is no bonafide in the claim of the petitioner and the writ petition suffers from delay and latches. Further, there is no convincing explanation forthcoming from the side of the petitioner and the reason for the delay attributed by the petitioner is not sufficient.

The Court observed that “it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic”. Further, if there is an inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Therefore, the Court refrained from exercising its extraordinary discretion due to the unexplained delay on the part of the petitioner in filing the writ petition.

The Court took note of the report of the Enquiry Officer and observed that the said report was communicated to the petitioner calling for his explanation/representation through registered post, however, the petitioner has not submitted any explanation and the disciplinary authority proceeded to pass the impugned order. Thus, there is no procedural violation of conducting and concluding the departmental enquiry against the petitioner, as despite giving the opportunity to the petitioner to defend the enquiry, he has not responded and availed of the opportunity. It was observed that the petitioner overstayed from attending the office for nearly 17 years and such a long absence without any communication/information cannot be taken lightly and is a serious misconduct.

It was also observed that the petitioner, being a member of CRPF could not overstay without permission and absence from duty without leave under CRPF is a gravest misconduct and that the disciplinary authority was right in awarding punishment of dismissal from service.

The Court took note of the rulings in State of Meghalaya v. Mecken Singh N. Marak, (2008) 7 SCC 580 and in Union of India v. Dwarka Prasad Tiwari, (2006) 10 SCC 388 , wherein the Court held that “the punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review”, and observed that it is clearly established that the petitioner, being a member of the disciplined force, failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his act of overstaying of leave without permission was prejudicial to the department. Therefore, the Court did not interfere with the punishment imposed by the disciplinary authority and upheld its decision.

[Shri Romi Kumar v. Union of India, Writ Petition (C) No. 676 of 2022, decided on 14.09.2022]


Advocates who appeared in this case :

M. Devananda, Advocate, for the Petitioners;

Boboy Potsangbam, Advocate, for the Respondents.

Jharkhand High Court
Case BriefsHigh Courts

   

Jharkhand High Court: Anubha Rawat Choudhary, J., while dismissing the writ petition dealing with a service matter preferred by the petitioner, for quashing the Notification issued under Memo dated 29-08-2013, held that there is no error, much less any manifest error of law and procedure leading to any injustice to the petitioner.

The petitioner has been imposed with the punishment of withholding 25% of Pension and Salary for the suspension period and a direction has been issued to the respondents to pay all retiral benefits including the amount towards GPF, Gratuity, Full Pension, Leave Salary, arrears of salary from the date of suspension till retirement and consequential benefits of Modified Assured Career Progression and other admissible dues with interest @ 10% per annum from the date of such dues till the actual date of payment and within a specified period.

Facts:

The petitioner was appointed as Assistant Engineer on 29-09-1981 and the petitioner was repatriated to the Road Construction Department in the month of July 2009. In the month of November 2009, the petitioner joined as Executive Engineer in charge in Giridih Works Division.

The present case came out of an order passed in Public Interest Litigation where the preliminary inquiry was initiated by CBI and a criminal case was also instituted. The disciplinary proceeding was also instituted against the petitioner and was placed under suspension vide order dated 07-12-2009nmunder the provisions of Rule 49 (A) of Civil Services (Classification, Control and Appeal) Rules, 1930 (‘Rules').

Arguments:

Counsel for the Petitioner:

The counsel for the petitioner contended that petitioner being a Class I Officer, the proposal seeking approval of charge sheet should have been approved by the Chief Minister and not the Minister-in- Charge. Hence, the entire disciplinary proceedings initiated on the basis of the charge sheet stands vitiated.

The counsel submitted that the petitioner demanded a large number of documents vide representation dated 25-02-2012 and the enquiry officer was also appointed in the year 2012. The documents that were not provided were the measurement book and the so-called fake bills. The objection regarding the supply of documents was raised before the enquiry officer and also by the authority who imposed the punishment, but it was not considered properly. Hence, on account of non- supply of the documents, the entire disciplinary proceedings stand vitiated due to non-compliance of the Principle of Natural Justice (‘PNJ').

The counsel for the petitioner submitted that charge was required to be substantiated by the department by adducing evidence and the documents were required to be formerly approved by oral evidence and no such oral evidence was adduced. Hence, the case is a case of no evidence.

The counsel further submitted that a huge recovery has been directed from the petitioner and the petitioner is already retired. It was pointed out that no order under Section 43 (b) of the Bihar Pension Rules, 1950 has been passed to enable the respondents to pass an order of recovery from the pensionary benefits of the petitioner.

Counsel for the respondent:

The Counsel for the respondent opposed the petitioner’s prayer and submitted that the scope of interference in the departmental proceedings is very limited and there was neither any perversity nor any illegality in the matter of departmental proceedings.

Regarding the violation of PNJ, the counsel for the respondent submits that the enquiry report clearly mentions that the documents were duly provided to the petitioner.

While addressing the issue of the charge sheet having been issued by the Minister-in-Charge, the counsel submitted that the petitioner was never promoted to the post of Executive Engineer, instead he was just Executive Engineer (In-Charge), Class II Officer. Hence, the charge sheet was rightly issued.

The counsel while answering the arguments regarding requirement to substantiate the charge by oral evidence before the Enquiry Officer referred to Rule 55 of Rules, 1930 wherein the procedure prescribed does not require that the oral evidence is to be necessarily adduced in the departmental proceedings.

Issues:

  1. Whether the charge sheet was issued to the petitioner by the competent authority?

  2. Whether the disciplinary proceeding is vitiated on account of alleged failure to supply material documents?

  3. Whether the enquiry proceeding is vitiated being based on no evidence?

Observation and Analysis:

The Court mentioned a judgment passed by the Supreme Court, Pravin Kumar v. Union of India, (2020) 9 SCC 471, in which the scope of interference in the matter of disciplinary proceedings was summarized. The scope of judicial review in service matters was discussed. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.”

The Court is of the view that merely because the petitioner was officiating the post of Executive Engineer in charge does not confer the status of Class I post. Consequently, the issue that the approval of Chief Minister was needed before starting proceedings, is devoid of merit.

The Court held that the petitioner has failed to make out a case for interference in the departmental proceedings on account of violation of the principles of natural justice alleging non-supply of certain documents, denial of opportunity to cross-examination of witnesses.

The Court further held that there is no legal impediment in resting the departmental proceeding merely on documents produced by the department in the shape of memo of evidence without formally exhibiting the same through oral evidence of any witness.

The Court also held that “It is well settled that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. There is no allegation of any bias, and no case has been made out alleging gross unreasonableness of outcome. There is no scope for reconsidering the materials produced before the enquiry officer and coming to a different finding. All the issues framed based on the arguments of the parties having been decided in favour of the Respondents as aforesaid, there is no scope for any interference in the impugned order and proceedings under Article 226 of the Constitution of India. Accordingly, the present writ petition is dismissed”.

[Mathura Prasad v. State of Jharkhand, 2022 SCC OnLine Jhar 598 decided on 30-06-2022]


Advocates who appeared in this case :

Mr. A.K. Sahani, Advocate, for the Petitioner;

Mrs. Darshana Poddar Mishra, A.A.G. I, Advocate, for the Respondents.

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and Aniruddha Bose*, JJ held that not  having approval of the Finance Minister at the time of issue of charge memorandum for carrying departmental enquiry would render the it defective, not capable of being validated retrospectively by post-facto approval.

Factual Background

The issue arose out of an inquiry made the appellant, a former Assistant Commissioner of Income Tax for major penalty under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 on the allegation that in the year 1998, he, in collusion with a Deputy Commissioner of Income Tax, had conducted a survey under Section 133A of the Income-Tax Act, 1961 in five proprietary group concerns of one Mukeshchandra Dahyabhai Gajiwala and his family and demanded a sum of rupees five lacs other than legal remuneration for settling the matter. It was further alleged in the articles of charge that he, along with the said Deputy Commissioner, had demanded a sum of rupees two lacs other than legal remuneration from the same individual and later on, the Deputy Commissioner Mr. K.K. Dhawan accepted the said amount.

Grievances of the Appellant

The findings of the enquiry officer were assailed by the appellant on the ground that the charge memorandum was not specifically approved by the Finance Minister. The appellant relied on the decision of the Central Administrative Tribunal (CAT), in B.V. Gopinath v. Union of India, which was later on upheld by the coordinate Bench of the Supreme Court, wherein the Tribunal had held that in absence of the approval of the charges by the competent authority, further proceedings in the disciplinary case could not be sustained.

However, the appellant’s request for quashing the charges was ultimately turned down on the ground that the petition for Special Leave to Appeal was pending before the Supreme Court in the case of B.V. Gopinath and the appellant could not rely on a verdict which was sub judice when the cause of action arose. Further, the respondent informed the appellant that the charge memorandum had received the approval of Disciplinary Authority and the proceedings could continue from the stage where it stood before the charge memorandum was formally approved.

Findings of the Court Below

On challenge, the CAT quashed the Office Memorandum, holding that the approval sought to be given on 08-01-2014 to a charge memorandum dated 18-11-2002 was impermissible as such approval could not have been granted ex-post facto. In the aforesaid backdrop, the matter reached to the Delhi High Court against the Tribunal’s verdict. Differentiating the appellant’s case from the B.V. Gopinath’s case, the High Court held that subsequent approval implied ratifying an action and there being no requirement in the concerned Rules for prior approval, ex-post facto approval could always be obtained.

Analysis and Findings

The respondents’ argument was accepted by the High Court mainly on two counts. First, there was no ex-post facto approval to the charge memorandum in Gopinath’s case. Second, approval implies ratifying an action and there being no requirement in the concerned Rules for prior approval, ex-post facto approval could always be obtained. The Bench opined that the absence of the expression “prior approval” in the aforesaid Rule would not have any impact on the instant case as the same Rule had been construed in the case of B.V. Gopinath to hold that charge-sheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of law. Hence, the respondent could not claim that approval includes ratifying an action, which obviously could be given ex-post facto.

Similarly, the fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer in complying with the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965. Evidently, sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages – for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. Therefore, even in the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub-clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. The Bench remarked,

“…the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage.”

The Bench further added,

“It would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo.”

However, noticing that the allegations against the appellant were serious in nature and ought not to be scuttled on purely technical ground, the Bench opined that the department’s power to pursue the matter should be reserved and not foreclosed. Accordingly, the impugned judgment was set aside and the Tribunal’s judgment was restored subject to the modification that in the event the department wants to continue with the matter, and on producing the material the Disciplinary Authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months, and thereafter the proceeding shall take its own course.

[Sunny Abraham v. Union of India, C.A. No. 7764 of 2021, decided on 17-12-2021]


*Judgment by: Justice Aniruddha Bose


Kamini Sharma, Editorial Assistant has put this report together 


Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Shree Chandrashekhar, J. held that a charged employee has no unfettered right to ask for any document on which the department does not intend to place reliance.

The petitioner was an ex Block Co-operative Development Officer who was in-charge of Kuru LAMPS Project as Member Secretary. A departmental proceeding was initiated against him and he was placed under suspension later on.

The memorandum of charges was served upon him contained the following charges:

  1. The delinquent employee defalcated Rs. 12,58,048 in different development projects within Kuru Blocks.
  2. The delinquent employee defalcated Rs. 77,000 from the amount deposited in the recurring deposit scheme under Kuru LAMPS.

A supplementary charge-memo was also served upon the petitioner on an allegation that he defalcated Rs.11,22,125 and destroyed relevant records with a view to cause disappearance of the evidence. In the departmental proceeding, the petitioner asked for some records which were not provided to him and presumably for that reason he did not co-operate in the departmental proceeding. Accordingly, as punishment it was directed that the petitioner should not be entitled for any payment except subsistence allowance during the period of suspension and Rs. 24,57,173 was to be recovered from his post-retiral dues along with deduction of his 10% pension.

The petitioner had assailed the departmental action on the two grounds, namely; the departmental proceeding was conducted in complete breach of the rules of natural justice inasmuch as neither a show-cause notice was issued nor a copy of the inquiry report was furnished to him, and that the right of appeal under Jharkhand Pension Rules had been taken away because the punishment order was approved by the Secretary, Co-operative Department.

Rejecting the second contention, the Bench observed that Rule 43 of the Jharkhand Pension Rules discloses that the appellate authority under Rule 43 is the State Government and not the departmental secretary. Further, the Bench opined that the proceeding was not conducted against the petitioner in violation of the principles of natural justice as the materials on record clearly indicated that the petitioner was afforded opportunity to defend himself but on a specious plea that he was not provided some documents so as to prepare his defence he did not participate in the departmental proceeding.

Noticing that the petitioner had not shown that the documents sought by him were so important that in absence of the same he could not have effectively defended himself, the Bench stated that a charged employee has no unfettered right to ask for any document on which the department does not intend to place reliance–in many cases the procedure adopted by the department is that the charge officer is permitted to inspect the records.

Citing the decision in U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi, (2005) 8 SCC 211, wherein the Supreme Court had observed that in absence of showing how the alleged non-supply of documents caused prejudice to workman, the same cannot by itself vitiate the enquiry, the Bench stated that in a departmental proceeding in which the delinquent employee refused to co-operate, it was lawful for the departmental authority to proceed in the matter and take a final decision.

Consequently, in the view that the charges framed against the petitioner were very serious, the Bench held that the order of punishment was not outrageous or disproportionate to the charges framed and found proved against the petitioner. Further stating that the quantum of punishment is within the exclusive domain of the departmental authority and the writ Court would not interfere with the same, the Bench dismissed the instant petition. [Bivash Chandra Thakur v. State of Jharkhand, 2021 SCC OnLine Jhar 834, decided on 23-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Abhay Kumar Mishra, Advocate

For the Respondents: Om Prakash Tiwari, GP-III

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of N.V. Ramana, CJ., Surya Kant* and Hima Kohli, JJ., held that the Bank is not the trustee of the money that a customer deposits in a bank and the same is not held by the former on trust for him. The money so deposited becomes a part of the banker’s funds who is under a contractual obligation to pay the sum deposited by a customer to him on demand with the agreed rate of interest. Such a relationship between the customer and the Bank is one of a creditor and a debtor.

Background

The prosecution case was that the Appellant-N. Raghavender, Branch Manager of Sri Rama Grameena Bank along with accused 2 abused their respective position in the Bank and conspired with accused 3-Treasurer of the Nishita Educational Academy and brother-in-law of Appellant, by allowing withdrawal of amounts up to Rs. 10,00,000 from the account of the Academy in spite of availability of requisite funds for such withdrawal.

The prosecution contested that the Appellant, in his capacity as a Branch Manager, issued three loose-leaf cheques and despite withdrawal of the said amount, the debit was deliberately not entered into the ledger book. The endorsement on the third cheque showed the payment in favour of the accused 3; however, the signature on the cheque did not tally with that of accused 3. The Appellant was further accused of prematurely closing two FDRs for a sum of Rs. 10,00,000 and 4,00,000 respectively, and stood in the name of one B. Satyajit Reddy. The case was referred to CBI for offences under Sections 409, 477(A), and 120B Penal Code, 1860 and Section 13(2) read with 13(1)(c) & (d) of the Prevention of Corruption Act, 1988.

The Courts below acquitted all the accused of offences under Section 120B IPC. Further accused 2 and accused 3 were acquitted of all the other charges, while the appellant was held guilty and was convicted and sentenced to five years imprisonment along with various fines.

Observation and Analysis

A. Fraudulent and unlawful withdrawal of Rs. 10 Lakhs from Account No. 282 in the year 1994

Noticeably, the record though clearly revealed that issuance of a loose cheque was a departure from the standard operating procedure followed at the Bank, but no evidence had been led that it was an ‘illegal practice’ as in certain contingencies the Bank could issue loose cheques also. Therefore, the Bench stated,

“Since no explicit prohibition on issuing of loose cheques has been proved, the mere fact that the Appellant issued those loose cheques, is not sufficient to conclude that he acted unlawfully or committed a ‘criminal misconduct’.”

The case of the Prosecution rested heavily on the premise that the three cheques in question were passed even though there weren’t adequate funds in account however, the Auditor and the accountant had testified about there being sufficient funds in account throughout which was corroborate the Current Account Ledger for account in question. Therefore, the Bench held that the Bank did not suffer any loss.

With respect to the charge of ‘deceit’, the depositions of the Auditor and Accountant unveiled that though the relevant entries were missing in the Current Account Ledger, they did find a mention in the Officer’s Cash Scroll and the Cashier Payment Register. Noticing the non-production of these relevant ledgers by the Bank, the Bench was of the view that,

“Since the direct and relevant evidence has been withheld, the benefit of doubt for such failure ought to be accorded to the Appellant.”

Similarly, in order to substantiate the charge under Section 477-A IPC, the primary contention of the Prosecution was that despite passing the three cheques, the Appellant did not make the relevant entries into the Current Account Ledger of the account in other to conceal the withdrawals as there were insufficient funds in the account of the Academy. Rejecting that argument, the Bench noted that the expression ‘intent to defraud’ as given under Section of 477-A, contains two elements, deceit and injury. So far as the second element was concerned, no financial injury was caused to the Bank.

B. Unauthorised premature encashment of the two FDRs belonging to B. Satyajit Reddy

The allegation of premature withdrawal was also accompanied by the averment that despite the premature withdrawal, the interests relating to the two FDRs continued to be deposited into savings account of one B. Satyajit Reddy. Notably, the interest amount was transferred from the joint account of the Appellant and his wife which according to the prosecution was to ‘deceive’ the FDR holder into believing that the FDRs were still alive.

Observing that misappropriation with this dishonest intention is one of the most important ingredients of proof of ‘criminal breach of trust’, the Bench opined that relationship between the customer and the Bank is one of a creditor and a debtor and not of a trustee. Further, relying on the following grounds the Bench stated that there was no fraudulent intention as  no financial loss was caused to B. Satyajit Reddy, since:

  • Satyajit Reddy had made no complaint alleging any loss to him;
  • His written requests dated 22.02.1995 and 24.2.1995 for premature encashment of his FDRs and to deposit the amount in the account of the Academy had gone unrebutted;
  • The payment of interest on those FDRs even after pre-mature closure was made by the Appellant from his personal account and no public fund had been divested for such payment;
  • Satyajit Reddy might or might not have got undue monetary gain but definitely he suffered no loss in any manner.

Findings and Conclusion

In the backdrop of above, the Bench opined that in the absence of any reliable evidence that could unfold a prior meeting of minds, the High Court erred in holding that Appellant and other accused orchestrated the transactions in question to extend an undue benefit to Accused 3. Having held so, the Bench added that the appellant acted brazenly contrary to the norms and internal instructions of the Bank.

“Although he was clever enough to not trespass into the prohibited area(s) of Sections 409, 420 and 477-A IPC, he ran the risk of causing financial loss to the Bank.”

Therefore, the Bench held that the actions of the appellant constituted gross departmental misconduct and were unbecoming of a senior Bank Officer and hence, his dismissal from service of the Bank was fully legitimised and the punishment so awarded, was proportionate to the proven misconduct. The Bench, though acquitted the appellant of all the charges, it stated that acquittal would not entitle him for reinstatement. [N. Raghavender v. State of A.P., 2021 SCC OnLine SC 1232, decided on 13-12-2021]


Kamini Sharma, Editorial Assistant has put this report together


Appearance by:

For the Appellant: Sidharth Luthra, Senior Counsel

For CBI: Jayant K. Sud, Additional Solicitor General


*Judgment by: Justice Surya Kant

Patna High Court
Case BriefsHigh Courts

Patna High Court: Chakradhari Sharan Singh, J., set aside the order of dismissal of a constable who was removed from service in relation to a viral video of him consuming alcohol on duty.

The petitioner, a constable had sought directions for quashing of the impugned order passed by the Superintendent of Police whereby the petitioner was dismissed from service.

The petitioner, at the relevant point of time, was posted as constable (driver) in a Police Station. Allegedly, on 15-09-2018 a video clip had become viral in which the petitioner was seen as consuming alcohol. An enquiry was ordered by the Inspector General of Police,  whereafter, the Sub Inspector of Police conducted an enquiry and found the petitioner guilty of consuming alcohol, and registered the FIR for the offences punishable under Section 30(a) & 37(a) of the Bihar Prohibition and Excise Act, 2016.

Opining that the conduct of the petitioner displayed lack of discipline, irresponsible behaviour and thereby, tarnished the image of the Police, the Disciplinary Authority had ordered dismissal of the petitioner.

Noticing that no specific finding was recorded by the Inquiring Authority based on the evidence adduced during the departmental enquiry that the petitioner was found consuming alcohol and that neither breath analyzer test nor any other scientific test was conducted to establish that the petitioner had consumed alcohol, the Bench opined that the finding of the Inquiring Authority was based on no evidence as nothing was produced to show that the liquid in the glass, which the petitioner was seen to be carrying in the video clip, was alcohol and the bottle located near him was containing alcohol.

Accordingly, the Bench opined that the department miserably failed to bring home the charge against the petitioner that he was consuming alcohol or was in possession of alcohol, in the absence of cogent evidence adduced by the department during the departmental enquiry.  Further, noticing that the enquiry report did not depict any participation of the Presenting Officer though a Presenting Officer was appointed, the Bench was of the view that the impugned decision of the Disciplinary Authority was wholly unjust, illegal, arbitrary and unsustainable.

Consequently, the impugned dismissal order was set aside and the respondent was directed to reinstate the petitioner with all consequential benefits including payment of full back wages for the period during which he remained out of service because of the order of dismissal. [Sonu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2225, decided on 22-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:

For the Petitioner/s: Raju Giri, Advocate and Santosh Kumar Mishra, Advocate

For the Respondent/s: Manish Kumar, G.P.-4 and Ajay Kumar, A.C. to G.P.-4

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that the decision of the Labour Court should not be based on mere hypothesis and it cannot overturn the decision of the management on ipse dixit. Stating that Labour Court’s jurisdiction under Section 11-A of the Industrial Dispute Act, 1947 although is a wide one but it must be judiciously exercised, the Court said,

“Judicial discretion, it is trite, cannot be exercised either whimsically or capriciously. It may scrutinize or analyse the evidence but what is important is how it does so.”

Factual Background

  • The respondent-­workman was dismissed from his services by the Standard Chartered Bank for drunkenness within the premises of the appellant-Bank and for manhandling and assaulting the senior officers and also hurling abuses at the management. The alleged delinquency had been committed on 12th January,1988.
  • The enquiry officer after holding enquiry in terms of the Bipartite Settlement and after due compliance of the principles of natural justice held the charges proved against the delinquent respondent and the disciplinary authority after due compliance, confirmed the finding recorded by the enquiry officer and punished him with the penalty of dismissal from service by an order dated 22nd August, 1991.
  • The Industrial Tribunal, However, revisited the record of enquiry and apprised the statement of the management witnesses and recorded a finding that the Bank management has “miserably failed” to establish the charges levelled against the respondent-workman and hence, set aside the order of dismissal from service and directed the appellant to reinstate the respondent-workman in service with full back wages, seniority and all the consequential   benefits attached to the post by its Award dated 14th September, 2006.
  • The High Court also upheld the said order.
  • The respondent-workman had attained the age of superannuation on 31st January, 2012 and during the period of litigation, he has throughout been paid his last wages drawn in terms of Section 17¬B of the Act 1947. The respondent-workman had been paid around Rs. 57 Lakhs.
  • The Supreme Court had, on 27th February, 2015, stayed the payment of back wages.

Analysis

It was argued that after the domestic enquiry was held to be fair and proper, the Tribunal has a limited scope to interfere with the findings recorded in the domestic enquiry and unless the finding is perverse and not supported by a piece of evidence, it was not open for the tribunal to interfere within the scope of Section 11¬A of the Industrial Disputes Act, 1947,

The Court noticed that once domestic enquiry was held it to be fair and proper, the Tribunal had a very limited scope to interfere in the domestic enquiry to the extent as to whether there is any apparent perversity in the finding of fact which has been recorded by the enquiry officer in his report of enquiry obviously, based on the evidence recorded during the course of enquiry and as to whether the compliance of the Bipartite Settlement which provides the procedure of holding enquiry is violated or the punishment levelled against the workman commensurate with the nature of allegation proved against him. However, if the punishment is grossly disproportionate, the tribunal will always be justified to interfere by invoking its statutory power under Section 11-A of the Act 1947.

“The scope of judicial review in the matter of domestic enquiry is to examine whether the procedure in holding domestic enquiry has been violated or the principles of natural justice has been complied with, or any perversity in the finding of guilt recorded during the course of domestic enquiry has been committed.”

The Court noticed that the Tribunal has converted itself into a Court of Appeal as an appellate authority and has exceeded its jurisdiction while appreciating the finding recorded in the course of domestic enquiry and tested on the broad principles of charge to be proved beyond reasonable doubt which is a test in the criminal justice system and has completely forgotten the fact that the domestic enquiry is to be tested on the principles of preponderance of probabilities and if a piece of evidence is on record which could support the charge which has been levelled against the delinquent unless it is per se   unsustainable or perverse, ordinarily is not to be interfered by the Tribunal, more so when the domestic enquiry has been held to be fair and proper.

The Court, hence, held that the Tribunal has completely overlooked and exceeded its jurisdiction while interfering with the finding recorded during the course of enquiry in furtherance of which, the respondent was dismissed from service and the High Court has also committed a manifest error while passing the judgment impugned.

However, looking to the peculiar facts of this case where the respondent-workman had been paid Rs.57,16,517.72 and had attained the age of superannuation on 31st January, 2012, stay was granted by this Court in reference to back wages by order 27th February, 2015, while upholding the order of penalty of dismissal from service dated 22nd  August, 1991 passed by the authority in the domestic enquiry, the Court directed that no recovery shall be made in reference to the payment which has been made over to the workman in the interregnum period.

[Standard Chartered Bank v. RC Srivastava, 2021 SCC OnLine SC 830, decided on 29.09.2021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., held that strict Rules Of Evidence do not apply on a departmental enquiry.

The Petitioner, an Additional District Judge in the State of Uttarakhand was facing a departmental enquiry. The grievance of the petitioner was that his application for placing certain documents on record before the Enquiry Officer was rejected on the ground that the Presenting Officer had made an endorsement on the documents that they do not deserve to be admitted in view of Sections 85A and 85B of the Indian Evidence Act.

Noticeably, another application filed by the petitioner before the Enquiry Officer giving an additional list of witnesses to be produced in the enquiry was dismissed as well; hence, aggrieved by dismissal of his applications, the petitioner had approached the High Court of Uttrakhand.

The contention of the petitioner before the High Court was that the documents mentioned in the application were relevant and the Presenting Officer as well as the Enquiry Officer committed an error in not permitting the said documents to be exhibited in the enquiry. The High Court observed that there was no error committed by the Enquiry Officer as the petitioner was permitted to adduce evidence on his behalf.  Although, the High Court permitted certain documents which the petitioner wanted to be exhibited in the enquiry, it did not allow exhibiting the case diary which was obtained by the petitioner under the Right to Information Act.

The counsel for the High Court, Ms.Bharti Reddy submitted that the documents could not be taken on record without proof as the case diary which the petitioner wanted to be exhibited was not permitted by the Enquiry Officer on the ground of lack of proof for the said document as required under the provisions of the Evidence Act.

Holding that strict rules of evidence are not applicable to a Departmental Enquiry, the Bench stated that no prejudice would be caused to anyone if the case diary is placed on record. Accordingly, the petitioner was granted permission to exhibit the case diary as a document in the departmental enquiry.

The Bench while directing to complete the departmental enquiry expeditiously disposed of the petition along with pending applications. [Kanwar Amninder Singh V. High Court of Uttarakhand, Special Leave to Appeal (C) No(s).2507/2021, 17-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For Petitioner(s): Mr. Devdutt Kamat, Sr. Adv.

For the High Court: Mr. Sachin Sharma, AOR, Mr. Anil Kumar Gulati, Adv., Mr. Satyavrat Sharma, Adv., Mr. Rahul Gaur, Adv.

For Respondent(s): Mrs. D. Bharathi Reddy, AOR

Case BriefsHigh Courts

Bombay High Court: The Division Bench of R.D. Dhanuka and R.I. Chagla, JJ., refused to quash departmental enquiry against the petitioner even when there were pending criminal proceedings against him.

Petitioner sought writ, order or direction for quashing and setting aside the impugned charge sheet dated 05-07-2021 issued by the Respondent for the purpose of the departmental enquiry against the Petitioner.

It was submitted that the petitioner was already facing a criminal case in respect of the said charges which were levelled for the initiation of the departmental enquiry.

Petitioner’s counsel stated that the charge sheet on criminal enquiry as well as the departmental enquiry had identical charges. Hence, in view of the charges and evidence being common in the departmental proceedings as well as in Criminal case, departmental enquiry has to be quashed and set aside.

Analysis, Law and Decision

Court on perusal of the charge sheet issued in a departmental and criminal enquiry, opined that the charges against the petitioner were not identical in both the proceedings. All the witnesses proposed to be examined are also not the same.

Supreme Court in the decision of M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679, clearly held that simultaneous continuance of departmental enquiry with criminal proceedings is permissible independently.

Though the High Court held that the above-stated case does not support the case of the petitioner.

Court stated that the petitioner has to file his reply to the charge sheet issued by the respondent for conducting departmental enquiry. Adding to the said, the bench held that it will not interfere with the departmental enquiry and the time to file a reply to the charge sheet granted to the petitioner in the departmental enquiry is extended by 2 weeks.

In view of the above discussion, petition was dismissed. [Prashant Raosaheb Chormale v. Punyashlok Ahilyadevi Holkar Solapur University, 2021 SCC OnLine Bom 1314, decided on 22-07-2021]


Advocates before the Court:

Mr N.V. Bandiwadekar a/w Mr. Vinayak Kumbhar i/b Ashwini N. Bandiwadekar for the Petitioner.

Mr Manjunath Kakkalameli, for Respondent 1.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Sanjay Kishan Kaul* and Hrishikesh Roy, JJ., addressed the instant appeal against the order of High Court whereby the High Court had quashed the disciplinary actions taken against the respondent and had directed for reinstatement with consequential benefits. The Bench stated,

“…the fairness of the departmental proceedings is obvious on the fact that all charges relating to bribery had been held in favour of the respondent and those charges have been rejected.”

Background

The respondent joined the Department of Posts as Postal Assistant in the year 1991 and earned his promotion to Assistant Superintendent of Posts in 2008, a Group-B Gazetted cadre post. A charge memo was issued to the respondent the Disciplinary Authority, Department of Posts under Rule-14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which enumerated 9 charges. Though, certain charges were related to procedural lapses in discharge of duties while another set of charges dealt with alleged illegal gratification received by way of bribes.

It had been contended by the respondent that since the charges included allegations of bribery and had a vigilance angle, the same could not have been issued without prior approval of the Central Vigilance Officer as mandated by a circular dated 18-01-2005 of the Department of Posts, Ministry of Communication and I.T. The Circular advised that all cases of officers below Group ‘A’ involving vigilance angle should be referred to the Directorate for consideration and advice by the CVO of the relevant department.

The decision of the High Court upholding the memo released by authority was challenged before the Supreme Court. However, since the departmental proceeding against the respondent culminated in an adverse report against him, another memo dated 24-03-2017 was issued. In terms of the 2017 Memo, none of the charges of bribery were made out against the respondent but all charges relating to procedural lapses on the part of the respondent were held to have been proved. The respondent was inflicted with a punishment of compulsory retirement from service with immediate effect. Therefore, the Bench had disposed of the matter with the liberty to the respondent to re-agitate the issue by challenging the order of punishment.

Issue before the Bench

Pursuant to the order of the Supreme Court, the order of punishment was challenged by the respondent before Central Administrative Tribunal on the ground of non-compliance with the Circular. The Tribunal took the view that, since the bribery charges were not proved, the case of the respondent could not be said to be prejudiced by not referring it to the CVO. However, regarding the punishment issue, the Tribunal found that the punishment of compulsory retirement was unduly harsh and shockingly disproportionate considering that none of the bribery charges had been found sustainable. To that extent, the order of the disciplinary authority was set aside with a direction to impose an appropriate minor penalty. In appeal, the High Court had set aside the order of the Tribunal and directed to reinstate the respondent into service with all consequential benefits.

Assessment by the Court

The Bench opined that if procedural safeguards are provided the same should be observed as they prevent any arbitrary exercise of power. In Moni Shankar v. Union of India (2008) 3 SCC 484, it had been stated that, “a departmental instruction cannot totally be ignored”. However, the Bench was of the view that the case of the respondent differed in issue as the plea of the respondent that the action of the appellants was retributive in character, as he had earlier endeavoured to highlight the manipulations in the result of Postal Service Group-B cadre examinations and the legal proceedings that followed there from; the Bench opined that,

“The fairness of the departmental proceedings was obvious on the fact that all charges relating to bribery had been held in favour of the respondent and those charges had been rejected.”

The reliance on the Circular really did not help the case of the respondent inter alia for the reason that it was found that the case did not has a vigilance angle, albeit after conclusion of inquiry. As far as the procedural lapses were concerned, it really showed that there was negligence on the part of the respondent in performing his duties. That being so, it was inappropriate for the High Court to have set aside the result of the proceedings against the respondent by giving him a clean chit on the issue on the ground that the Circular was not being followed. Lastly, while upholding the views taken by the Tribunal on the issue of disproportionality of punishment, the Bench reiterated that the punishment of compulsory retirement was completely disproportionate and harsh; keeping in mind the finding arrived at by the disciplinary authority. The Bench stated, perhaps the charges originally levelled might have persuaded the authority concerned to impose punishment; losing site of the fact that the allegations qua bribery had not been found against the respondent.

Hence, observing that the nature of charges found against the respondent could hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. The Bench stated,

“Anyone can make mistakes. The consequences of mistakes should not be unduly harsh”

The impugned judgment of the High Court was set aside and the order of the Tribunal was restored.

[Union of India v. P. Balasubrahmanayam,  2021 SCC OnLine SC 169, decided on 04-03-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Appearance before the Court by:

For the Appellant: Addl. Solicitor General K.M. Nataraj,

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., disposed of a writ petition which was filed challenging a departmental inquiry and suspension pending such departmental inquiry against the petitioner.

Petitioner was a Junior Engineer in the Government of Tripura. A complaint was made against him holding assets disproportionate to his known source of income before the Lokayukta who upon completion of the investigation submitted his report in which he had concluded that the petitioner had received salary of Rs 22,13,279/- for the period between 1998 to March, 2012 as against which he had created assets worth Rs 74,26,472/- which was referable to the same period of 1998 to March, 2012. Lokayukta was of the opinion that the petitioner held assets disproportionate to his known source of income. He recommended initiation of departmental proceedings as well as criminal case against the petitioner and to place him under suspension. On 25th March, 2015 the disciplinary authority had issued a departmental charge sheet to the petitioner which contained two charges. Charge Article I was that as held by the Lokayukta in his report, the petitioner had amassed wealth far in excess of his known source of income. Charge Article II was that by such actions the petitioner had committed offences punishable under the Prevention of Corruption Act, 1988. On 13th May 2015, the disciplinary authority appointed Inquiry Officer.

After hearing both the parties the Court decided that there were no reasons to quash the departmental inquiry. The Court observed that it was up to the Government to accept or to reject the recommendations of the Lokayukta. If the departmental inquiry or the criminal proceedings are not time barred, the State Government cannot be restrained from taking any action against the petitioner even if it is on the report of the Lokayukta. Once the material has come to the notice of the Government prima facie indicating that the petitioner has indulged in some corrupt practice, the Government is duty-bound to act on the same. It was, therefore, held that there was no merit in the petition; however, in any departmental or criminal proceeding which may be initiated against the petitioner he would have a full right to defend himself. Coming to the continued suspension, the Court held that firstly, the charges were extremely serious. Secondly, the petitioner was also facing a criminal case for offences punishable under the Prevention of Corruption Act and thirdly, the competent authority has been reviewing the suspension order from time to time.[Bikash Bhowmik v. State of Tripura, 2021 SCC OnLine Tri 100, decided on 18-02-2021]


Suchita Shukla, Editorial Assistant has put this story together.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Akil Kureshi CJ., while directing respondents to release the due payments, observed that departmental proceedings cannot be kept pending merely on account of internal administrative issues.

Petitioner has prayed for quashing and setting aside a memorandum dated 19-03-2015 under which the department has issued a chargesheet to the petitioner levelling certain allegations of misconduct. The petitioner has also prayed for a direction to the respondents to release the benefits of the pay revision to the petitioner which have been withheld on account of the said pending departmental inquiry. According to the petitioner after issuance of the chargesheet, no progress has been made for years together and in the meantime the petitioner suffers from stigma of a pending departmental inquiry and has also not been granted the benefit of pay revision.

Court observed, “At all stages thus the department had shown total lack of seriousness in conducting and completing the departmental proceedings. Every Government servant must answer to the allegations of misconduct which may be made against him or her. The Government official, however, also have a right to be informed about the outcome of such proceeding which would give a range of factors and circumstances, must be completed with due promptitude. A pending departmental inquiry is by itself a stigma and is attached with several adverse consequences such as, suspension in some cases, withholding of benefits of pay revision and denial of promotion when due. If the Government servant in the meantime retires, the pension would not be finalized and gratuity would not be released in full. The departmental proceedings, therefore, cannot be kept pending for no reason at all only on account of internal administrative issues.”

 Quashing the chargesheet and directing to release all benefits of the petitioner, Court said, “I find it absolutely inequitable and unjust to permit the department to now carry on the departmental proceedings at this belated stage when for about five years the department has shown no seriousness in pursuing the inquiry.”[Dr Sukhen Das v. State of Tripura, 2021 SCC OnLine Tri 41, decided on 21-01-2021]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Indira Banerjee, JJ has held that the conclusion of the criminal trial does not conclude the disciplinary enquiry.

Background of the case


A police constable, who was tried and acquitted in a murder case, had challenged his dismissal from service after a disciplinary enquiry. The Division Bench of the Rajasthan High Court granted the respondent reinstatement in service with no back wages for the seventeen years that elapsed since his termination. The State had, hence, challenged the reinstatement before the Supreme Court.

  • On 13 August 2002, the respondent proceeded on leave and had to report back on duty on 16 August 2002. He failed to do so and eventually reported for work on 19 August 2020.
  • On 15 August 2002, one Daulat Singh lodged a written complaint in relation to the death of his brother Bhanwar Singh, caused by an accident with an unknown vehicle. However, it appeared during the course of the investigation that the death was homicidal. The respondent, along with 2 co-accused was arrested on 9 September 2002.
  • The respondent was tried for the offence of murder and was acquitted by the Sessions Court on 8 October 2003.
  • Departmental proceedings were also initiated against the respondent wherein the charges that were leveled against the respondent were:
    • Over-staying leave by a period of three days beyond the leave that was sanctioned;
    • Not seeking an extension of leave from the superior officer;
    • Involvement in the murder of Bhanwar Singh (the respondent was alleged to have run away from the scene of offence and tried to give it the colour of an accident);
    • Getting additional leave sanctioned by suppressing the correct reason on a misrepresentation to the superior officer; and
    • Conduct which has hurt the image of the police department.
  • In the finding of the Disciplinary enquiry it was noticed that the Court had not completely acquitted the said constable rather acquitted by giving him the benefit of doubt.

“From this it is clear that the Hon’ble Court has not acquitted charged constable in free form. Thus, I found said charge as completely proved due to which the image of police has blurred.”

What the Supreme Court said


On effect of acquittal in criminal trial on disciplinary proceedings

Though the acquittal brought finality to the question as to whether he had committed the offence of murder punishable under the Penal Code, however, the disciplinary enquiry stood on a broader footing. The disciplinary proceedings related not merely to the involvement of the respondent in the murder, but to the violation of service rules and the impact of his conduct on the image of the police force. Hence, the verdict of the criminal trial did not conclude the disciplinary enquiry.

Noticing that the disciplinary enquiry was not governed by proof beyond reasonable doubt or by the rules of evidence which governed the criminal trial, the Court said,

“True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove. But there are circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.”

On proof of misconduct in disciplinary proceedings

The standard of standard of proof in disciplinary proceedings is different from that in a criminal trial

In Suresh Pathrella v. Oriental Bank of Commerce, (2006) 10 SCC 572, a two judge Bench differentiated between the standard of proof in disciplinary proceedings and criminal trials in the following terms:

“ …the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities.”

Further, the involvement of a member of the police service in a heinous crime, if established, has a direct bearing on the confidence of society in the police and in this case, on his ability to serve as a member of the force. Such an individual is engaged by the State as a part of the machinery designed to preserve law and order. The State can legitimately assert that it is entitled to proceed against an employee in the position of the respondent in the exercise of its disciplinary jurisdiction, for a breach of the standard of conduct which is expected of a member of the state police service.

“Confidence of the State in the conduct and behaviour of persons it has appointed to the police is integral to its duty to maintain law and order.”

On judicial review over disciplinary matters

In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible.

Rule of restraint:

“The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer.”

Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy – deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service.

Interference when permissible

“The ultimate guide is the exercise of robust common sense without which the judges’ craft is in vain.”

At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct.

Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle i.e. the rule of restraint.

[State of Rajasthan v. Heem Singh, 2020 SCC OnLine SC 886, decided on 29.10.2020]

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and T. Vinod Kumar, J., while addressing a writ appeal observed that the High Court cannot decide whether the FIR is a false or frivolous one.

Facts

In the instant appeal, as per the facts of the case, petitioner was appointed as Village Assistant and later in February 2020 was promoted to Senior Assistant. By order dated 31-07-2020, the petitioner was suspended from his service.

On being aggrieved with the above, petitioner filed the petition before the Single Judge and further the same was dismissed and hence the appeal before this Court.

Contentions 

Petitioner’s Counsel, P.V. Ramana submitted that the allegations made against the petitioner relate to the year 2005-2006 and hence suspending the petitioner after a lapse of 14 years will not serve any fruitful purpose.

The alleged complaint made by Guda Rajeswar to the police on the basis of which a criminal case had been registered against the petitioner is also of the period 2005-2006. Also, the case made out on the said allegations was lost by the complainant before the revenue authorities. Hence the FIR is a false and frivolous one.

Decision and Analysis

Rule 8 of the Telangana Civil Services (Classification, Control and Appeal) Rules, 1991 states that an employee can be suspended either if a Criminal Case is pending or a Departmental Enquiry is contemplated.

In the present matter, Article of charges had been furnished on 31-07-2020 to the petitioner, which clearly points that a departmental enquiry has commenced.

It has also been noted that an FIR was registered against the petitioner for offences under Sections 420, 468, 471, 506 read with 34 of Penal Code, 1860.

Hence on referring the stated rule, it is clear that both the conditions prescribed under Rule 8 are fulfilled in the present matter.

High Court also noted that to determine whether FIR is false or frivolous is not to be decided by this Court. The veracity and authenticity of the FIR are to be decided by the Trial Court.

Bench while analysing the matter also stated that “suspension is not a punishment.”

Suspension is merely suspending the relationship between the employer and an employee.

Court stated that since the petitioner is facing both the Criminal Trial and a Departmental Enquiry, the employer cannot be saddled with such an employee.

In view of the above Court dismissed the appeal on finding no merits. [P. Narasimha Chary v. State of Telangana, 2020 SCC OnLine TS 1021, decided on 16-09-2020]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J., dismissed a writ petition that was filed questioning that whether sole testimony of the victim of sexual abuse was sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry and whether dismissal of service imposed on the perpetrator as a consequence thereof was grossly disproportionate? The Court observed that sole testimony, of the victim of sexual abuse, was sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry, if it was found reliable.

The petitioner was nominated, for the para-medic course for a three day period as a guest instructor for an outdoor exercise with trainees, for conducting a half day theory class, a half night march exercise at the S.S.B. Academy Gwaldum, and to impart them training on military topics such as night navigation and map reading. After completion of the night training exercise, the petitioner, along with several other members including the two lady trainees, sat in the cabin of a truck which was coming back to Gwaldum station. It is in the cabin of the truck that the petitioner is said to have molested one of the lady trainees, and to have sexually harassed her.

The Counsel for the petitioner, Sanjay Raturi, contended that he was held guilty on the self-serving sole testimony of the complainant (Trainee); no other witness had corroborated the complainant’s testimony; and the complainant’s self-serving evidence cannot form the basis for holding the petitioner guilty of the charges.

The Court noted the well settled principle laid down in various Supreme Court decisions that an evidence of the victim of sexual assault is enough for conviction, and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Bench observed that:

As the sole testimony of a prosecutrix, in a criminal case involving sexual harassment and molestation, would suffice if it is otherwise reliable, there is no justifiable reason not to accept the sole testimony of a victim, of sexual harassment and molestation, in a departmental inquiry as the enquiry held by a domestic Tribunal is not, unlike a Criminal Court, governed by the strict and technical rules of the Evidence Act. A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probabilities, and not proof beyond reasonable doubt. In the present case, the testimony of the complainant gives graphic and shocking details of acts of sexual molestation perpetrated by the petitioner on her so there isn’t any reason as to why the Enquiry Committee should be faulted for largely relying on the testimony of the complainant and there is no reason to interfere in the enquiry. [Bhuwan Chandra Pandey v. Union of India, 2020 SCC OnLine Utt 268 , decided on 15-06-2020]

Case BriefsHigh Courts

Allahabad High Court: Om Prakash-VII, J. allowed the application filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of a summoning order passed by the Chief Judicial Magistrate, Agra in a case filed under Sections 463, 464, 466, 467, 468, 471, 474 of the Penal Code, 1860.

Taking cognizance on the basis of protest petition was set aside as the Magistrate took extraneous material into consideration.

An application was filed to quash the summoning order and criminal case proceedings initiated by Chief Judicial Magistrate, Agra, against the appellant.

Counsels for the Applicant, Vimlendu Tripathi, M.C. Chaturvedi and S.C. Dwivedi submitted that the concerned Magistrate took cognizance in the matter against the applicant by taking into consideration extraneous facts and evidence annexed with the protest petition rejecting the final report which was illegal. It was further contended that the prosecution against the applicant was barred by Section 197 CrPC as the alleged act came under the purview of discharge of official duty.

Rishabh Agarwal, appearing on the behalf of the respondent, submitted that mere exoneration in the departmental enquiry would not be sufficient to quash the criminal prosecution, and since the case was made out from the evidence available in the case diary itself, therefore, there was no illegality in the impugned order.

The Court relied on Ram Chandra Sharma v. State of Uttar Pradesh, 2016 SCC OnLine All 3375 where it was held that exoneration in departmental proceedings does not render the criminal proceedings arising out of the same, liable to be quashed. But in peculiar circumstances, a criminal proceeding can be quashed.

It was noted by the Court that in the present case evidence which was not part of the case diary was taken into consideration by the concerned magistrate while passing the impugned order whereby cognizance was without following the procedure prescribed under Chapter XV of CrPC. Since in the present matter neither enquiry has been conducted under Chapter XV of the CrPC by the Magistrate nor the documents, facts and evidence relied upon by the concerned Magistrate were part of the case diary, therefore on the basis of the same, the order against the applicant was held to be against the law and not sustainable.

In such view of the matter, the High Court allowed the application and the impugned order was set aside. The matter was sent back to the Magistrate to pass a new order in accordance with law. [N.K. Janoo v. State of Uttar Pradesh, Application No. 31673 of 2016, decided on 22-11-2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench of C.T. Ravikumar and V.G. Arun, JJ. dismissed a petition seeking quashing of disciplinary proceedings on the ground of inordinate delay. 

Disciplinary proceedings had been initiated against the petitioner, who was working as Additional Director Income Tax (Investigation), Mumbai, on the charge that he had abused his official position to leak the identity of a particular informant to the assessee, Mr Davinder Ahuja. The petitioner aggrieved by the decision of the Central Administrative Tribunal approached the Court with an application to quash the said proceedings on the grounds of inordinate delay and a second contention that the proceedings would amount to post-decisional hearing. 

The learned counsel for the petitioner, Mr Mohan Parasaran, relying on State of A.P. v. N. Radhakrishnan (1998) 4 SCC 154, submitted that there occurred an inordinate delay in the matter of initiation of disciplinary proceedings. The learned counsel further referred to imputations of misconduct and contended that it was indicative that the competent authority had already arrived at a conclusion on the guilt of the petitioner and hence no fair and impartial enquiry could be conducted thereafter. 

The learned counsel for the respondents, Mr Dinesh R. Shenoy, resisted the aforesaid contentions and submitted that the petitioner was only charge-sheeted and had not filed his written statement of defence, but instead approached the Tribunal. 

The Court after hearing the submissions of both the parties observed that the charge levelled against the petitioner was of a serious and grave nature and hence the authorities were justified in approaching the case with caution and patience. Thus the contention of the petitioner that there was an inordinate delay in initiation of proceedings was rejected by the Court. 

The Court upheld the Tribunal’s observation that the imputations incorporated in the said articles of charge only intended to explain the offending acts allegedly committed by the petitioner and to make the imputation specific and clear. In view thereof, the Court held that the verity of the imputations can only be proved or disproved at the final enquiry and merely because the imputations have been unhappily worded, it cannot be a reason to terminate the proceedings abruptly. It also observed that though the petitioner had attempted to establish the charges against him as baseless, merits of the case could only be established only after an appropriately conducted disciplinary proceeding. 

In view thereof, the Court did not find any compelling reason to interfere with the order passed by the Tribunal, and the petition was dismissed. The Court also directed the petitioner to cooperate with the authorities to complete the proceedings within six months. [Shantam Bose v. Union of India, OP (CAT) No. 205 of 2015, decided on 27-05-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court:  Augustine George Masih, J. upheld the decision of the lower court as there was no evidence on record to prove the contentions made by the appellant.

An appeal was made against the judgment and decree passed by the Additional District Judge whereby the suit filed by the appellant-plaintiff for recovery of the amount from the respondent-defendant had been set aside by allowing the appeal and dismissing the suit of the appellant-plaintiff.

S.S. Bedi, Counsel for the appellant argued that the judgment and decree passed by the trial court was based upon proper appreciation of the evidence and the document on record. He contended that the respondent had acted upon the certificate of the Assistant who had been placed under the suspension and thus did not have authority to issue the certificate. He contended that the suit for recovery preferred by the appellant-plaintiff was based upon a departmental inquiry which was held against the respondent-defendant. Thus it was argued that the judgment passed by the Lower Appellate Court is based upon erroneous assumptions overlooking the facts on record and the evidence which has been produced by the parties. He, thus, contends that the appeal deserves to be allowed by setting aside the judgment and decree passed by the Lower Appellate Court and restoring that of the trial Court.

The Court opined that contention of the appellant that the report of the departmental inquiry was enough to establish the shortage cannot be accepted as no stock shortage had been proved on record and assertion that the respondent-defendant was required to himself verify the stock will not suffice as the same was not made in any rules or regulations as such. It was further held that unauthorized person having issued the certificate could not have been acted upon as it did not have any legal sanctity; moreover, no record was produced to show that any payment in the presence of the commission agent was made at the time of purchase of the stock. Merely relying upon the inquiry report would not be enough in a suit for recovery. Actual loss having occurred by the Corporation has to be established which is absent here as no evidence has been produced on record to substantiate such an assertion and, therefore, the contention of learned counsel for the appellant that the respondent-defendant had acted upon a certificate issued by an unauthorized person, cannot be accepted. Thus the Judgment of the lower court was upheld.[Punjab State Warehousing Corpn. Ltd. v. Paramjit Singh, 2019 SCC OnLine P&H 1229, decided on 15-07-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J. dismissed a writ petition which claimed promotion and challenged the government order which was made on the basis of serious allegations regarding the disproportionate acquisition of property.

Respondent 2 herein, on a complaint, conducted a secret verification and found that the petitioner had acquired huge assets both movable and immovable, which were disproportionate to his known sources of income. He registered an FIR against the petitioner for the commission of offence under Section 5(1)(e) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006. He also wrote a communication to respondent 1 (Administrative Secretary) for initiating departmental action under Jammu and Kashmir Civil Services Rules, 1956 against the petitioner. Respondent 1 by passing an order attaching petitioner with the Chief Engineer, PHE Kashmir. Petitioner was Superintending Engineer in a hydraulic circle, Kargil. He claimed that due to his seniority he was likely to be promoted to the post of Chief Engineer. Aggrieved by the said order, the petitioner challenged both the aforesaid communication as well as government order by way of this petition.

Petitioner claimed that the impugned communication issued by respondent 2 and the impugned government order by Administrative Secretary was illegal, arbitrary, mala fide and without any authority of law; and the same could not be sustained in law as they were not traceable to any provisions of Jammu and Kashmir Civil Services Rules, 1956. He also contended that no employee can be penalized only on the ground that an FIR for his misconduct was registered with the police or Anti-Corruption Bureau and pleaded that the impugned communication and order were only aimed to denude him from his right to seek promotion to the post of Chief Engineer. Respondent 1 denied the allegations of arbitrariness and mala fide and objected the writ petition on the ground that the impugned government order was fully justified as the allegation against the petitioner was serious and disproportionate to his known sources of income. He also claimed that the petitioner had been attached with the Chief Engineer not only because an FIR regarding his misconduct was pending investigation before respondent 2 but also because a full-fledged departmental enquiry against him was contemplated.

Court held that the department was competent to hold a departmental enquiry solely on the basis of the allegations made against an employee and this power of the employer was independent of the power of the police and the Anti Corruption Bureau to register FIR and investigate the allegations. The delinquent employee may be acquitted by the Court of law on finding that the prosecution could not prove his guilt, but he can be penalized in the disciplinary proceedings, which were decided on the basis of preponderance of probabilities. The Court also observed that as per Section 31 of Jammu and Kashmir Civil Services Rules, 1956 he could also be suspended, if the complaint against him of any criminal offence was under investigation or trial. Hence, respondent 1 had shown leniency and instead of suspending him had only attached him with the Chief Engineer. Therefore, it could not be said that the order by respondent 1 was without jurisdiction or without any sanction of law. Thus, the petition was dismissed for being devoid of merit.[Sarwan Singh v. State of J&K, 2019 SCC OnLine J&K 518, decided on 07-06-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: S.C. Sharma, J. contemplated a petition filed against the initiation of the Departmental enquiry against the said petitioner and was noted that the ‘case certainly reflects an episode in which a young tribal girl was harassed for almost five years.’

Facts to the extent necessary are, petitioner was appointed as a Sub Inspector, in the year 2007; she was posted at various districts and in 2013 was deputed for election duty. In the course of her duty, she stopped an election observer IAS officer’s vehicle; it also carried a red beacon over it. Petitioner contended that the officer was offended by the act and was infuriated; officer misbehaved with her and also submitted a report against her for misconduct. Eventually, Secretary of Home Department wrote a letter to the State Election Commission that no case is made against the election observer (IAS).

Petitioner contended that, she submitted a report to the superiors and brought it to their notice that the alleged officer has abused and mistreated her. Following which she was on the very same day of incident transferred to a different district. Petitioner submitted that she was demoralized being a young girl, insulted and humiliated, which caused her mental agony and she resigned. She had also reported the matter to State Women Commission regarding her insult and outrage. The Commission directed Superintended of Police to register a case against the officer i.e. election observer. The petitioner stated that despite the reminder from Commission no FIR was lodged and no order was passed by the alleged respondents in respect of resignation, which was not accepted. She stated that no posting order was given to the petitioner and in 2014 the Superintendent of Police, informed the Commission that no case is made out against the Election Observer.

The respondent contended that he had submitted a detailed report to the Inspector General of Police, about the alleged transfer of the petitioner. He also ordered an inquiry and directed the matter to Additional Superintendent. The respondent further contended that in reply to the various complaints of the petitioner, a proper inquiry in the matter was conducted.

The State Women Commission intervened and forwarded the matter to Chief Election Commission after recording the statements of the petitioner. However, no case was registered against officer. It was observed by the alleged respondents that petitioner is not attending her duties. Aggrieved by such responses, denial of resignation and inaction to provide a relevant place of posting the petitioner filed a writ in the proper Court.

The Court observed that, charge sheet was recorded and revealed, that the petitioner, after she was attached to the office of Superintendent of Police in 2013, had not joined duties at the place of posting and no other charge was levelled against her. The Court further noted another important aspect of the case was, that the respondents have passed an order which categorically stated that request of resignation was rejected.

The Court issued an interim order which stayed the departmental enquiry against the petitioner. Court further observed that no place of posting was provided to the petitioner during the pendency of the writ petition. Petitioner was allowed to join her duties. It was held that the departmental inquiry was not related to the incident that provoked the petitioner to resign, but regarding her absence from duty. The resignation was treated as withdrawn. Court carefully went through the charge sheet and it was not a case where the petitioner was involved in committing a crime in respect of some act relating to moral turpitude, embezzlement or any other heinous offence. Mere case where the petitioner was not provided a posting order, in spite of her repeated request and charge sheet has been issued for not joining the duty. However, the Court not granted back wages to the petitioner.[Amrita Solanki v. State of M.P., 2019 SCC OnLine MP 869, decided on 15-05-2019]