Case BriefsSupreme Court

Supreme Court: In a case where a Judicial Officer in Delhi Higher Judicial Services, against whom disciplinary proceedings alleging sexual harassment is underway, had sought a copy of Preliminary Inquiry Report, the bench of Ashok Bhushan and Navin Sinha, JJ has held that no prejudice can be held to be caused to the petitioner by non-supply of the Preliminary Inquiry.

Considering that the Preliminary Inquiry Report did not contain any findings on allegations made against the petitioner and only opined that inquiry should be held, the Court said that the right of appeal is given to an aggrieved person only when report is submitted under Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 to the employer. It further explained,

“Section 13(3) contemplates the report of Internal Complaints Committee when it “arrives at the conclusion that the allegation against the respondent has been proved”. It is not the case of any of the parties that the report of the Committee dated 05.11.2016 is the report where allegation against the petitioner has been proved. Even under Section 11(1) in the second proviso, the only contemplation is to make available a copy of the findings. Thus, when the report in which there are no findings, parties are not entitled to have the copy.”

Disciplinary authority for Judicial Officers

The disciplinary jurisdiction vests in the High Court which can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal. The High Court can also suspend a member of the judiciary. Insofar as dismissal or removal is concerned, the said orders are required to be passed by the Governor on the recommendation of the High Court. The fact that the orders of dismissal or removal are issued by the approval of the Governor in no manner denude the disciplinary control of the High Court.

Full Court’s power to suspend Judicial Officer

The provisions of the Act, complaint mechanism and mechanism for constitution of the Internal Complaints Committee, mechanism to inquire the complaint are all for protection of dignity and welfare of women at workplace. The provisions of Sections 11 and 13 in no manner affect the control of the High Court under Article 235, which it has with respect to judicial officers as noted above. The power to suspend the judicial officer vests in the High Court. The Full Court of the High court is in no manner precluded from initiating disciplinary inquiry against the petitioner and placing the petitioner under suspension on being satisfied that sufficient material existed.

[Dr. PS Malik v. High Court of Delhi, 2019 SCC OnLine SC 1070, decided on 21.08.2019]

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J. quashed the order which inflicted the punishment of non-payment of the salary of petitioner for a period of time during which a criminal case was lodged against the petitioner. 

The petitioner filed this writ petition for quashing order whereby the petitioner has been inflicted with the punishment of withholding of increment in salary for one year and also of not making payment of the salary for the period 14-08-2006 to 11-06-2007. The facts of the case were that the petitioner was a constable in Jharkhand Police and while serving as such in the year 2006, a criminal case was lodged against him for committing the murder of his daughter-in-law. Pursuant thereto the petitioner was put under suspension and a departmental proceeding was initiated against him. In the departmental proceeding, the enquiry officer conducted the enquiry and exonerated the petitioner from the charges levelled against him. But, the disciplinary authority differing with the finding recorded by the enquiry officer, inflicted the impugned order of punishment upon the petitioner.

Rishikesh Giri, learned counsel for the petitioner relied upon the precedent of Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 and submitted that the petitioner had already been acquitted in the criminal case, which is the basis of initiation of departmental proceeding against the petitioner and though the enquiry officer has exonerated the petitioner but the disciplinary authority without affording an opportunity of hearing to the petitioner passed the order. It is well settled that if the enquiry officer exonerates the delinquent and the disciplinary authority differs with the findings recorded by the enquiry officer, he needs to call upon the delinquent by way of show cause and to afford an opportunity of hearing to the delinquent but in the instant case that procedure has not been followed. 

The Court held that the enquiry officer exonerated the petitioner from charges; hence the disciplinary authority ought to have provided opportunity of hearing while differing with the view taken by the enquiry officer. Hence, the Court has quashed the impugned orders.[Indradeo Prasad Singh v. State of Jharkhand, 2019 SCC OnLine Jhar 1022, decided on 05-08-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Division Bench of Ajay Kumar Mittal, C.J. and H.S. Thangkhiew, J. dismissed a writ appeal filed by a bank officer whereby he was held guilty of misconduct, holding the same to be devoid of any merit.

Appellant herein was accused of committing serious irregularities in payment of three high-value non-home fake cheques amounting to Rs 12,917,000 allegedly issued by the Deputy Inspector of School, Kanpur from an account maintained at Swaroopnagar, Kanpur Branch. The amount was credited by the appellant to the three newly opened saving bank accounts without ensuring the genuineness of the payee and without observing Bank’s extant laid down systems and procedures. The Appellant missed the absence of significant features like ‘bank’s logo in invisible ink’, ‘valid for Rs….’, etc. and did not ensure the use of fugitive ink test/ ultraviolet test for verifying the genuineness of the cheques. Also, he authorized the payment of such high-value cheques single-handedly without referring the same to second Passing Officer despite the bank’s extant instruction that cheques for payment of Rs 10 lakhs and above must be authorized by two officers. The disciplinary officer held all the charges against the appellant, to be proved. The learned Single Judge held that the appellant’s act of not entering the cheques into the high-value transaction register, and giving his authorization on the same, was misconduct on his part. Considering the gravity of the misconduct, the Single Judge did not nullify the punishment of compulsory retirement given by the disciplinary authority, aggrieved whereby the appellant filed this writ appeal. 

 The Court while hearing the case, relied on State Bank of India v. Bela Bagchi, (2005) 7 SCC 435 where, while observing on the discipline to be maintained in a bank and the duties of its employees, it was recorded by the Supreme Court that every employee of bank is required to take all possible steps to protect the interests of the bank and its customers. He must discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a Bank employee. It was further recorded that at the same time, acting beyond one’s authority was by itself a breach of discipline and was misconduct. The Court also relied on Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, (1996) 9 SCC 69 whereby acting beyond one’s authority was held to be misconduct within the meaning of Regulation 24 of Central Bank of India Officers Employees (Discipline & Appeal) Regulations, 1976. It was further recorded by the Court that proof of any loss is not necessary.

Furthermore, the Division Bench of this Court opined that usually the punishment imposed by the disciplinary authority must not be disturbed by the High Courts, except in appropriate cases and only for examining all the factors, including the nature of duties assigned having due regard to their sensitiveness and exactness expected of, and discipline required to be maintained, and the department in which the delinquent person concerned works. Thus, having gone through all the facts and the judgment rendered by the learned Single Judge, the Court, found no merit in the appeal, and henceforth dismissed it.[Gautam Dhar v. State Bank of India, 2019 SCC OnLine Megh 105, decided on 11-06-2019]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S.K. Mishra and Dr A.K. Mishra, JJ., dismissed the writ petition against the judgment declining interference in the disciplinary proceeding and order imposing the punishment of compulsory retirement.

The facts of the case were that appellant-petitioner was appointed as an officer of the Indian Bank as Inspecting Manager at Kolkata. He was entrusted with the inspection of banks at different places for which the bank had to pay the bill for lodging. The Deputy Manager General, on finding the irregularity asked for the explanation which was duly submitted but was not appreciated and appellant-petitioner alleged to be dishonest under the Indian Bank Officer Employees’ (Conduct) Regulations, 1976. A disciplinary authority thus imposed a major penalty of compulsory retirement. The appeal and review petition filed before the reviewing authority was dismissed and hence, this writ.

The Judgment of the Single Judge Court after submission held that the court had the jurisdiction to entertain the writ petition. The court further held that the court could not interfere with the enquiry, appellate and reviewing authority in absence of the procedural irregularities. The Court further held that “The power of judicial review to scan the evidence, which had reached finality on the basis of concurrent finding, was found uncalled for in the facts placed and law analyzed.”

The matter was then called for Division Bench which observed the Judgment of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 in which the court made it clear that the writ of certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. where lower courts either without jurisdiction, or in excess of jurisdiction or acting in flagrant disregard of law or rules of procedure or acting in violation of the principles of natural justice, pass an order thereby occasioning failure of justice. Thus, the impugned judgment of the learned single judge was found to have the support of law and facts. Thus, writ dismissed. [Abhiram Samal v. Indian Bank, 2019 SCC OnLine Ori 198, decided on 01-05-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before the Bench of Arun Monga, J.

A circular was issued, whereby the Disciplinary Authority was empowered to appoint any member of the CRPF below the rank of ‘Assistant Commandant’ as Presenting Officer to present the case on behalf of the Disciplinary Authority before the Inquiry Officer in the departmental proceedings. In this petition, the petitioner prayed that no Presenting Officer was appointed, at the relevant time, when the inquiry was conducted against him. Petitioner referred to a Supreme Court case Union of India v. Ram Lakhan Sharma, (2018) 7 SCC 670 and submitted that the inquiry conducted against petitioner was vitiated on account of the Inquiry Officer himself having assumed the role of Presenting Officer and, therefore, the inquiry report and subsequent proceedings pursuant thereto could not be judicially scrutinised. Whereas the respondent relied on the same case to submit that in the judgment relied upon, the Supreme Court had given liberty to respondents to proceed afresh.

High Court was of the view that in the instant matter the same liberty to proceed with enquiry afresh cannot be given as the petitioner had retired and thus benefit of the illegality committed by the respondents should be given to the employee. Therefore, this writ petition was allowed and inquiry report and orders passed by the disciplinary authority were set aside. [Bajinder Singh v. Union of India, 2019 SCC OnLine P&H 405, decided on 11-04-2019]

Case BriefsHigh Courts

Jharkhand High Court: The Bench of Ananda Sen, J. set aside a punishment order issued against a police constable in departmental proceedings, for being in violation of principles of natural justice.

Petitioner, a constable in the police department, was served with a departmental charge sheet alleging misconduct. In the departmental inquiry was held. In the inquiry, charges against him were held not to be proved. The disciplinary authority, disagreeing with the findings given of inquiry report, punished him with two black marks and withheld his salary on the basis of no work no pay.  The said order was challenged by the petitioner in departmental appeal, which was also dismissed by the appellate authority. Aggrieved thereby, the instant writ application was filed praying for quashing of the said order.

Petitioner’s only submission was that it is well within the jurisdiction and domain of disciplinary authority to differ with the findings of Inquiry Officer, but if the disciplinary authority wants to punish the delinquent, a second show cause notice has to be served and reasons for his differing from findings of the inquiry report must be mentioned in the show cause notice. This process had not been followed before passing the impugned order, and only on this ground, the impugned order could be set aside.

The Court noted that the respondent had not issued second show cause notice to the petitioner, but punished him after differing with the findings of the inquiry report. It was opined that this procedure was in utter violation of the principles of natural justice, as the petitioner ought to have been issued a second show cause notice indicating the ground of disagreement, before punishing him. Thus, the punishment order was set aside for being unsustainable in the eyes of law.[Lalit Oraon v. State of Jharkhand, 2019 SCC OnLine Jhar 279, Order dated 13-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J. allowed a petition challenging order directing withdrawal of pay increments, holding that enquiry into the matter was done without considering relevant materials.

Petitioner, while working as in-charge officer of mid-day meal scheme in Khagaria, was proceeded against under charge memo alleging that he had recommended one Non-Government Organization (NGO) – ‘Maya Labour Seva Sansthan’ – for executing mid-day meal in an urban and semi-urban area of Khagaria ignoring the norms in vogue.

Petitioner’s case before the Enquiry Officer was that alleged charges were unsustainable in view of the fact that prior to his recommendation, the District Superintendent of Education, Khagaria had already issued an order granting responsibility of mid-day meal in favour of the said NGO. Thus, in view of the earlier order of District Superintendent of Education, he could not have been held responsible for granting the work of mid-day meal. However, the disciplinary authority did not consider his plea, and ordered the withdrawal of five increments of petitioner’s pay with cumulative effect. The Appellate Authority affirmed this order. Aggrieved thereby, the instant petition was filed.

The Court noted that the alleged recommendation of the petitioner had not even been produced in the enquiry. The Enquiry Officer had not considered any evidence in support of the charge whatsoever, and had not even looked into the communication allegedly issued by the District Superintendent of Education. Thus, it was opined that the petitioner had been punished without even examining any evidence in support of the charges.

In view of the above, it was held that report of the Enquiry Officer was clearly unsustainable. Further, the impugned order of Disciplinary Authority and Appellate Authority was also held to be unsustainable and thus quashed.[Sanjay Kumar v. State of Bihar, 2019 SCC OnLine Pat 236, Order dated 22-02-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Anil Kumar Upadhyay, J. quashed an office order issued against a delinquent employee ruling that the disciplinary authority had not assigned reasons for the said order and had also not given an opportunity of hearing to the employee.

The instant petition was filed having been aggrieved by an office order inflicting upon him major punishment of stoppage of two annual increments with cumulative effect, censure, non-payment of salary for the period of suspension and punishment that he shall not hold the post of Headmaster-cum-Drawing & Disbursing Officer in future.

The Court noted that the petitioner had been proceeded against on the basis of charges submitted by the District Superintendent of Education, Munger. After enquiry report, second show cause notice was issued to him in the form of impugned office order. The said second show cause notice which recorded a finding different from that of the enquiry officer did not accord reasons for order and no opportunity of hearing was provided to the petitioner.

The Court placed reliance on dictum of  Apex Court in Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 and observed that while the finding of enquiry officer is not binding on the disciplinary authority, but while differing with the finding disciplinary authority is required to assign reasons and provide opportunity of hearing so that the delinquent may have an opportunity to persuade it in respect of favourable finding of the enquiry officer. Further, Rule 18 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 made it obligatory for the disciplinary authority to follow the principles laid down in the Kunj Behari case.

In view of the above, the petition was allowed and impugned office order was quashed for being issued without following principles of natural justice and for being a non-speaking order.[Yogendra Paswan v. State of Bihar,2018 SCC OnLine Pat 2108, decided on 22-11-2018]

Case BriefsHigh Courts

Rajasthan High Court: This writ petition under Article 226 of the Constitution is directed against the order of punishment dated 8/12/2011, whereby the petitioner has been dismissed from service. The petitioner who was selected in Rajasthan Judicial Service was promoted to the post of Additional District Judge (Fast Track) and while he was posted at Baran, a Memorandum under Rule 16 of the Rajasthan Civil Services Rules, 1958, was issued to the petitioner. It was alleged that he accepted bribe of Rs. 20,000 per accused and discharged accused from grave offences under Sections 302, 365 I.P.C. and framed charges for offences under Sections 148, 120B, 304/149 & 201 I.P.C. of lesser gravity, vide his order dated 8.12.2003. He was also alleged to have accepted the bail applications of accused persons in judicial custody including accused Banshi Lal not considering the fact that bail application of accused Banshi Lal u/S. 439 Cr.P.C. had already been rejected by District & Sessions Judge, Baran thus acting with corrupt and ulterior motive to give undue benefit to accused persons and committing gross misconduct.
After hearing the parties, the Inquiry Judge, on the two charges, inter alia came to the conclusion that although the charges were not proved by leading evidence, yet, the delinquent officer had failed to observe sufficient degree of caution and judiciousness which was expected of him being member of Higher Judicial Service. The Inquiry Judge ordered the same to be placed before the Hon’ble Chief Justice. The inquiry report dated 31/3/2011 being placed before the Full Court, the Full Court was of the opinion that the officer appears to have acted with corrupt motive.
It was submitted by counsel for the petitioner that the Inquiry Judge by his inquiry report clearly absolved the petitioner of charge no. 1 and on a totally vague charge no. 2, though came to the conclusion that no evidence was produced in support of charge no. 2 and that the same was not proved, still went on to make observations and found the petitioner guilty of failure to maintain judicial efficiency, a charge which was neither indicated nor framed.

Learned counsel appearing for the respondent High Court vehemently opposed the submissions made by the petitioner’s counsel and submitted with reference to Articles 226 and 235 of the Constitution that the jurisdiction of this Court in interfering with the decision of the Full Court is limited and that this Court is not sitting as an appellate authority qua the decision of Full Court and, therefore, no interference was called for in the order impugned.
The High Court while adjudicating the matter pointed out that when the inquiry report was placed before the Full Court, the Full Court by its resolution dated 22/5/2011 while accepting the report, was of the opinion that the officer appears to have acted with corrupt motive also. The Full Court then directed sending of a copy of inquiry report along with resolution of the Full Court to the delinquent officer inviting his representation. The admitted facts which emerge from the record are that despite specific direction by the Full Court to send copy of the resolution of the Full Court to delinquent officer (petitioner), only the copy of the inquiry report was sent and the resolution of the Full Court was made available to the petitioner only after the order impugned dismissing the petitioner from service was passed on 8/12/2011.

The High Court opined that  as admittedly the copy of the resolution of the Full Court was not made available to the petitioner, the same apparently was in violation of the resolution itself as well as express provisions of Rule 16(10A) of the Rules, 1958 and thus resulted in causing prejudice to the petitioner, who being unaware of the opinion of the Full Court did not make any representation qua the said opinion of the Full Court.

The High Court, disposing of the writ petition and remitting the matter back to the disciplinary authority to take up the inquiry afresh, held, “In view of the fact that the opinion of the Full Court was not communicated to the petitioner and petitioner could not make any representation qua the said opinion, further the Full Court rejected the representation and the State acting on the opinion of the Full Court has ordered for dismissal of the petitioner, the order of dismissal stands vitiated.” [Ghanshyam Giri v. Rajasthan High Court through the Registrar General, 2017 SCC OnLine Raj 2559, decided on 20.9.2017.]