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,

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.

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]

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]

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]

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]

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]

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]

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Madhya Pradesh High Court: A Bench of Vandana Kasrekar, J. allowed a writ petition and set aside an order passed by Director, Employment and Training, MP Civil Centre, in the appeal against the impugned order, removing the petitioner from his services by the Joint Director of the aforementioned Training Centre.

The petitioner was appointed as Class-III employee in the aforementioned Centre on a compassionate basis. The petitioner contended that, Joint Director issued a show cause notice which stated the non fulfillment of the conditions of employment i.e. passing of Hindi typing examination by the petitioner, further as per the terms and conditions of the appointment order he has availed 466 days of leave without pay and was continuously absent for a period of 3 months, for which he was terminated from his services as a way of punishment, allegations were found to be true in internal enquiry. The petitioner was aggrieved by such report and was not given an opportunity of being heard by the Joint Director.  He was equally aggrieved by the order of Director, terminating his services and agreeing with the order of Joint Director, therefore, dismissing his appeal.

Learned Counsel for petitioner, M.I. Khan, argued that order impugned is arbitrary and illegal, it is also violative of the principles of natural justice i.e. ‘Audi Alteram Partem’. According to his submissions, the order of the Director was contrary to the provision of Civil Services Rule, 1966. No proper procedure was followed while adjudicating the matter of the petitioner. The enquiring officer has filed the report on the basis of the fact that the petitioner has admitted the charges and no statements of witness were recorded by the enquiring officer. He further submitted that the order of removal is not passed by the competent authority. Joint Director was in no position to terminate the petitioner as he was appointed by the Director and no person subordinate to him had such powers.

Learned Counsel for the respondent, Vikas Yadav, replied that the petitioner has not cleared the essential requirement of qualification for the respective post i.e. Hindi typing exam. The non-performance of the petitioner was also highlighted by his continuous unauthorized absence from work for a period of almost 3 months and his non-attendance for a total of 466 days.  Respondent contended that though, the petitioner replied to the show cause notice, the same was not satisfactory. After issuance of the charge sheet, the petitioner himself admitted the charges levelled against him before the enquiring officer. Therefore, the impugned order of removal was passed. Thus, no illegality was caused in removing the petitioner from his services.

The Court observed that, before the show cause notice was issued no enquiry was initiated against the petitioner by the respondents and the said show cause notice was issued for termination of services of the petitioner. “It shows that the authorities have make up their mind for terminating the services of the petitioner before initiating any departmental enquiry.” Court was of the view that petitioner stated the medical reasons in reply to the show cause notice, but he also admitted not clearing the exam and taking unauthorized leaves for such a long tenure.

Court held, that no alleged enquiry was conducted by the respective respondents, which was arbitrary and they served a copy of the report without filing any charge sheet. The Court stated the provisions of CCA Rules, which provide for the opportunity of hearing to the accused even if the charges in written statements are admitted. The enquiring officer must always ask the accused whether he pleads guilty or not in a proper recorded manner. It was found by the Court that there was a breach in proper proceedings in recording the statements of the petitioner and the proceedings were not in conformity with the law. The Court directed the respondents to reinstate the petitioner in service without any back wages.[Ajay Kadam v. State of M.P., 2019 SCC OnLine MP 769, Order dated 07-05-2019]

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Patna High Court: The Division Bench comprising of A. P. Sahi, CJ and Anjana Mishra, J. allowed a civil writ petition seeking direction for release of gratuity to an employee who was accused of an economic offence.

Petitioner was accused of acquiring of assets disproportionate to his income. In a departmental proceeding initiated against him, a final order was passed whereby it was ordered that ten per cent of his pension amount shall be permanently deducted and he would be paid only subsistence allowance during the period of suspension. Even after three and a half years from lodging of the criminal case, neither any sanction was accorded by the department against him nor was any chargesheet submitted by the prosecution – Economic Offence Unit. Thus, the petitioner filed an instant petition seeking the release of full amount of gratuity payable to him and a direction for release of the full amount due to him by way of unutilized leave.

The Court noted that despite the fact that charges of disproportionate income were not established against the petitioner in the departmental enquiry, ten percent of his pension was withheld as per Bihar Pension Rules, 1950. It was opined that no order of punishment had been imposed in relation to gratuity, and therefore withholding of gratuity had no rationale. Relying on Rule 43(b) of the Pension Rules and Full Bench judgment of the Patna High Court in Arvind Kumar Singh v. State of Bihar, 2018 SCC OnLine Pat 749, the present Court directed the amount of gratuity payable to the petitioner to be released forthwith along with interest on the same from the date that amount became payable till the date of payment. [Lakshmi Kant Patel v. State of Bihar, 2018 SCC OnLine Pat 2250, decided on 17-12-2018]

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Calcutta High Court: A Single Judge Bench comprising of Rajasekhar Mantha, J. dismissed an appeal filed against the judgment and order of the Additional District Judge whereby the appellant along with seven others was convicted under Section 395 IPC.

In January 2005, the accused persons committed a dacoity in Samali Primary Block Health Center and took away Rs 6,74,784 by placing a bhojali (large knife) on the throat of one of the official. The accused persons were apprehended and convicted as mentioned above. While challenging the judgment of conviction, it was argued by the appellant that he was not identified by the seizure witness in Court. Also, that he was not identified in TI parade.

The High Court, while rejecting the submission of the appellant, held that in case of the appellant, the TI parade would have been useless. The appellant was absconding in January (when incident occurred) and was apprehended only in September. He was, however, named in the first charge sheet. The Court held that it was useless to conduct any TI parade of the appellant after a period of 9 months of the incident. For such and other reasons, the appeal was dismissed. While concluding, the Court also found that the money involved in the case that was recovered had not been deposited in the treasury which was indeed shocking. As such, the Court recommended departmental enquiry for major penalty and also criminal proceedings against the Investigating Officers concerned. [Madha Rai v. State of W.B.,2018 SCC OnLine Cal 5882, dated 31-08-2018]

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Madhya Pradesh High Court: The petitioner was working as the sub-inspector and it had been alleged that he went into the house of a subordinate lady employee in the night, misbehaved with her and acted in a manner that outraged her modesty. Against the same allegation, a criminal case as well as a departmental enquiry was instituted against him.

The contention of the petitioner before the Writ Court was that the allegations made in the departmental enquiry and in the criminal case are identical in nature and, therefore, for the same set of allegation both the proceedings cannot go together. The petition was dismissed by the Court and appeal to the dismissal was presented before the High Court.

After hearing both the parties, the High Court concluded that there was no error in judgment of the Writ Court. The Division Bench observed that the criminal case doesn’t involve any complicated question or any issues pertaining to mixed question of law and fact. The question involved is simple and petition doesn’t need any reconsideration, the Court observed. The appeal was accordingly dismissed. [Chandra Shekhar Kushwaha v. State of Madhya Pradesh, 2017 SCC OnLine MP 139, decided on 08.02.2017]