Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J. contemplated a writ petition filed against the impugned order, where the request of the petitioner for appointing defence representative in an ongoing disciplinary proceeding had been rejected.

Learned counsel for the petitioner B.D. Pande, submitted that petitioner was asked by the Enquiry Officer as to whether he needed a defence representative in the inquiry against him. Petitioner sought four days time to name the defence representative and ultimately he nominated his representative who was enrolled as an Advocate. He further submitted that his request to engage an Advocate as a representative was turned down as there was no provision in the Service Rules for the appointment of an Advocate as a defence representative, thus, it was directed that petitioner cannot claim the assistance of an Advocate as defence representative as of right. Further, the petitioner acknowledged the directions and sought permission to engage another person as his representative.

Petitioner contended that he was a Class IV employee and was not much educated hence he deserved sympathetic consideration of his request by the competent authorities.

The Court accordingly, disposed of the writ, with the liberty to the petitioner to make a formal request for assistance of a defence representative other than an Advocate to the Competent Authority. Competent Authority was directed that after such request from the petitioner they had to examine the same and take an appropriate decision, in accordance with the law.[Dushyant Kumar v. UCO Bank, 2019 SCC OnLine Utt 379, decided on 27-05-2019]

Case BriefsHigh Courts

Tripura High Court: Arindam Lodh, J., while highly depreciating the conduct of the State  Public Works Department, directed it to conclude the disciplinary proceeding pending against the writ petitioner within 3 months of the date of the present order.

On the verge of writ petitioner’s retirement, a disciplinary proceeding was initiated against him and article of charges were framed on 29-6-2017 for the incidents which occurred between 2001-2004. The allegations were that the petitioner acted in a manner unbecoming of a government servant during the period as mentioned.

The High Court expressed astonishment as to why the authority concerned initiated the proceeding after a long lapse of time. As per the court, this itself puts a question mark to the fairness of the authority. The Court found it to be aptly clear that the allegations were within the authority’s knowledge at the relevant time. The court was surprised as to why the proceeding was delayed till the fag end of petitioner’s service, i.e. 15 days prior to his retirement. It was said: “the intention of the respondents i.e. authorities concerned is not clear. However, at this stage, I refrain myself to make any opinion in regard to the merits of the proceeding. However, it is observed that there is an absolutely unreasonable delay and serious laches on the part of the authority concerned i.e. the respondents herein. .. This Court highly deprecates the conducts of the respondents.” Considering the matter in entirety, the respondents were directed to complete the proceeding within 3 months from the date of receipt of the present order, failing which the entire proceeding shall automatically be deemed to be dropped. [Tapan Chandra Das v. State of Tripura, WP (C) No. 515 of 2019, dated 08-01-2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Mohit Kumar Shah, J. dismissed a writ petition on grounds of petitioner being undisciplined at his job.

The petitioner has prayed for quashing the order passed by the respondent whereby the petitioner was dismissed from the police service. The petitioner has further prayed for quashing of the appellate order. The petitioner stated the fact that during his training he had left for his home due to his wife’s ill health after duly informing his superior but not to the Havildar.

The respondents contended that they had initiated a departmental proceeding against the petitioner on ground of him being a habitual offender, as on several occasions he absconded unauthorizedly thereby projecting his indiscipline and resultantly a charge sheet was issued along with an enquiry proceeding conducted by the Enquiry Officer plus a show cause notice was also sent to the petitioner asking him as to why he should not be dismissed from the service.

It was stated by the petitioner that it lacked evidence as the disciplinary authority cannot take into account past irrelevant facts, not germane to the departmental enquiry under consideration.

The Court came to the conclusion that police being a highly disciplined job, therefore a single isolated incident of indiscipline was enough to take the harshest step against the delinquent. Hence, no mercy was required to be shown with the petitioner especially in view of his proved misconduct on a couple of occasions. [Abhay Kumar Singh v. State of Bihar,2018 SCC OnLine Pat 1703, order dated 11-09-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The appellant had requested the following information regarding the disciplinary case against him, from the CPIO, Dept. Of Posts:

1. When was his representation addressed to SPO, Nanded forwarded to the SPO by the Regional Office (“RO”), Aurangabad and how many times did the RO Aurangabad remind the SPO, Nanded to complete disciplinary proceedings against the appellant in time?

2. When was the disciplinary case submitted to the Directorate of CPMG, Mumbai and what was the present status of the case?

The CPIO in his reply stated that since the disciplinary proceedings were pending at that time, the same could not be disclosed under Section 8(1)(h) of the RTI Act (“the Act”), which reads:

“8. Exemption from disclosure of information-

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen-

(a)-(g) …

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

(i)-(j) …”

This response of the CPIO was upheld by the First Appellate Authority, hence the appellant approached the Central Information Commission (“the CIC”), which directed the current CPIO to furnish requested information and issued a show-cause notice to the erstwhile CPIO. The CPIO, Dept. of Posts upon the information being requested replied that since the information sought included questioning the actions of the Investigation Officer, details of opinions and notings by various persons and authorities involved in the proceedings, and the appellant’s knowledge of the same would adversely affect the case, it was hit by Section 8(1)(h) of the Act and there was no obligation on the CPIO to furnish the requested information.

The CIC, however, was of the view that the appellant only wished to inquire about the number of reminders sent to the authorities and the status of his case. He neither sought any information which would impede the proceedings nor any personal information about the investigating officer and hence the CPIO should not have blatantly denied the request.

The CIC referred to the case of Bhagat Singh v. Chief Information Commissioner, 2007 SCC OnLine Del 1607 where the Delhi HC had held:

“[M]ere existence of an investigation process cannot be a ground for refusal of the information: the authority withholding information must show satisfactory reason as to why the release of such information would hamper the investigation process.”

Further, in Shri Sathya Narayanan v. Reserve Bank of India, CIC/SM/A/2010/001239/SG/14214) the CIC had also held that:

“[U]nless the CPIO establishes that the disclosure of the information would impede the process of investigation, the information cannot be refused.”

Hence the CIC found the denial of the request by the erstwhile CPIO as improper and imposed on him a penalty of Rs. 15,000 under Section 20 of the Act. [Prabhakar R Shinde v PIO, Department of Posts,2018 SCC OnLine CIC 313, decided on 21.05.2018]

Case BriefsSupreme Court

Supreme Court: In the matter where the Court was deciding the question as to whether disciplinary proceedings can be initiated before the closure of recording of prosecution evidence in the criminal case, based on the same facts, the bench of T.S. Thakur, CJ and A.M. Khanwilkar, JJ held that the pendency of the criminal case cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period.

In the present case, the criminal trial against the respondent was pending for around 10 years and the Chhattisgarh High Court had stayed the disciplinary proceedings initiated by the appellant bank until the completion of the same based on the reasoning that the respondent may suffer disadvantage and prejudice if she was compelled to disclose her defence in the departmental proceedings, which is likely to be used in the criminal case pending against her. Disagreeing with the aforementioned view of the High Court, the Court said that It is well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis.

In one of the clauses of the Memorandum of Settlement it was mentioned that “if within the pendency of the proceedings thus instituted is put on trial such proceedings shall be stayed pending the completion of the trial.” The Court said that the term “completion of the trial” thereat, must be construed as completion of the trial within a reasonable time frame. This clause cannot come to the aid of the delinquent employee – who has been named as an accused in a criminal case and more so is party to prolongation of the trial.

Pendency of criminal trial for around 10 years, by no means, can be said to be a reasonable time frame to withhold the disciplinary proceedings. The Court took this view on the principle underlying the former part of the same clause, which envisages that if the Authority which has to start the prosecution refuses/fails to do so within one year from the commission of the offence, the departmental action can proceed. The Court, hence, held that the remedy of writ being an equitable jurisdiction and keeping in mind the larger public interests especially in cases of involvement of the employees of the Public Sector Banks in offence of breach of trust and embezzlement, the principle laid down in Stanzen Toyotetsu India Private Limited vs. Girish V., (2014) 3 SCC 636, where it was held that the departmental proceedings cannot be suspended indefinitely or delayed unduly, should be applied. [State Bank of India v. Neelam Nag, 2016 SCC OnLine SC 946, decided on 16.09.2016]