Disciplinary proceedings

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, SA Nazeer and Surya Kant, JJ has elaborately discussed the power of the Disciplinary Authority to impose punishment, applicability of rules of evidence and the scope of judicial review in such cases.

Punishment and plea of leniency

The Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying¬degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent but must also factor the financial effect and societal implication of such misconduct.

“Unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked.”

Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.

Effect of criminal enquiry on disciplinary proceedings

It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence. Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an erroneous decision.

“Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances.”

However, while strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct questioning in certain circumstances.

Scope of Judicial Review in Service Matters

The Constitutional Courts while exercising their powers of judicial review cannot assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.

“… judicial review is not analogous to venturing into the merits of a case like an appellate authority.”

Further, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity.

[Pravin Kumar v. Union of India, CIVIL APPEAL NO. 6270 of 2012 , decided on 12.09.2020]

COVID 19Hot Off The PressNews

It has been brought to the notice of the competent authority that the following officers, who were responsible to ensure strict compliance to the instructions issued by Chairperson, National Executive Committee, formed under Disaster Management Act, 2005 regarding containment of spread of COVID-19, have prima facie failed to do so.

These officers have failed to ensure public health and safety during the lockdown restrictions to combat COVID-19. Due to the serious lapse in performance of their duties, the competent authority has initiated disciplinary proceedings against the following officers:

  1. Additional Chief Secretary, Transport Department, GNCTD – Suspended with immediate effect.
  2. Additional Chief Secretary, Home and Land Buildings Departments, GNCTD – Show Cause Notice.
  3. Principal Secretary, Finance, GNCTD & Divisional Commissioner, GNCTD – Suspended with immediate effect.
  4. SDM Seelampur – Show Cause Notice.

Ministry of Home Affairs

[Press Release dt. 29-03-2020]

[Source: PIB]

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

Patna High Court: A Division Bench of Amreshwar Pratap Sahi and Anjana Mishra, JJ. dismissed an appeal for voluntary retirement filed against the respondent as the inquiry was started almost after 2 years of giving notice.

Respondent herein had tendered an application for voluntary retirement entitling her to be treated as a retired government servant She was proceeded against in departmental proceedings for her unauthorized absence. The point for consideration was whether the respondent could have proceeded for voluntary retirement from service in the disciplinary proceedings. Learned Single Judge held that since respondent’s voluntary retirement application was accepted in law, therefore the action taken by appellants was not in conformity with the rules. Aggrieved thereby, the present appeal was filed.

Counsels for the appellant, Binita Singh and Apurv Harsh, contended that as per Rule 74 (b)(i) of Bihar Service Code, 1952 a government servant may, after giving at least 3 months previous notice, in writing, to the appointing authority concerned retire from service on the date on which such a government servant completes 30 years of qualifying service or attains 50 years of age. Thus, a government servant could get retired only if he gave atleast 3 months prior notice to the concerned authority. 

Learned counsels for the respondent P.K. Shahi and Sanjeev Kumar Mishra contended that in view of the law laid down in Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 the application moved for voluntary retirement was in order and the same had rightly been treated to be a valid application by the learned Single Judge. Thus, the entire disciplinary proceedings were invalid and consequently quashing of the punishment order was justified.

The Court noted that the application for voluntary retirement had been filed by the respondent before the concerned authority, but no orders were passed thereon. Once the application for voluntary retirement had been moved, then merely because the period of three months had not been mentioned in the said application, the same would not render it invalid ipso facto and it would mature after the expiry of three months. Inquiry against the respondent was commenced almost after two years after the maturity of her application, but no explanation was provided for the said delay.

Reliance was placed on the case of Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441 where it was held that consent of government is not necessary to give legal effect to voluntary retirement. In view thereof, the appeal was dismissed. [State of Bihar v. Swarn Lata Sinha, 2019 SCC OnLine Pat 852, decided on 07-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. contemplated a writ petition under Article 226 of the Constitution of India, where the petition sought the total salary from the date of suspension i.e. 03-12-2016 to 28-06-2018 to be paid along with quashing of an order passed earlier.

The counsel for the petitioner submitted that petitioner worked as Panchayat Secretary in Gram Panchayat Khatakiya, and was placed under suspension by an order passed in 2016 and since the charge sheet was not issued within the period of 45/90 days of the suspension order therefore by a subsequent order the suspension of the petitioner was revoked. However, full salary for the period of suspension had not been paid to the petitioner although he had been paid subsistence allowance. Subsequently, a charge sheet was served in 2017 a penalty of stoppage of one increment for a period of one year without cumulative effect was imposed and it had been held that the period of suspension shall be treated as “No work no pay” and the petitioner shall not be entitled to any other salary.

Against the order passed by the disciplinary authority, the petitioner had  filed an appeal before the Commissioner, Gwalior Division, which was returned back with a direction to the petitioner to present the same before the competent authority and accordingly the petitioner had filed an appeal before the Commissioner, Panchayat Raj, Madhya Pradesh which was  pending. It was submitted that as the appeal was pending, therefore, the petitioner was suffering from financial loss and under these circumstances, the appellate authority/Respondent 2 may be directed to decide the appeal as early as possible without any delay.

It was directed by the Court to consider the appeal of the petitioner as early as possible because of the losses he was suffering from.[Deewan Singh Kushwah v. State of M.P, 2019 SCC OnLine MP 1274, decided on 01-04-2019]

Case BriefsSupreme Court

Supreme Court: The bench of L Nageswara Rao and MR Shah, JJ held that a man, by virtue of the disciplinary proceedings being dropped, the Appellant becomes entitled to claim full salary for the period from the date of his suspension till the date of closure of the departmental inquiry.

Factual Background

  • The Court was hearing the case of a Sorting Assistant in Railway Mail Service against whom disciplinary proceedings were initiated on the allegations of involvement in forged payments of high value money orders.
  • He was suspended on 23.10.1979 and an FIR under Sections 409, 420 and 467 IPC was filed.
  • The order of suspension was revoked on 21.10.1987 pursuant to which he joined duty and worked till 28.02.1997, when he was dismissed from service in view of his conviction under Section 409, 467 and 420 IPC. He was sentenced to imprisonment for three years.
  • His appeal against conviction was allowed and he was acquitted of the charges for offences under Section 409, 420 and 467 IPC.
  • He claimed that he should be entitled to full back wages from the date of the order of his acquittal i.e. 31.08.2001 till the date of his reinstatement i.e. 20.01.2003.

Ruling

After perusing various judgments, the Court said that the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent. It, however, clarified:

“If an employee is involved in embezzlement of funds or is found indulging in demand and acceptance of illegal gratification, the employer cannot be mulcted with full back wages on the acquittal of the person by a criminal Court, unless it is found that the prosecution is malicious.”

Noticing that it was the Appellant who was seeking postponement of the departmental inquiry in view of the pendency of criminal case and that the order of suspension was in contemplation of disciplinary proceedings, the Court said:

“the Respondents took four years to reinstate him by revoking his suspension. The order of suspension dated 23.10.1979 came to an end on 21.03.1983 which is the date on which disciplinary proceedings were dropped. The Appellant ought to have been reinstated immediately thereafter unless a fresh order was passed, placing him under suspension during the pendency of the criminal trial which did not happen.”

The Court, hence, held that the Appellant is entitled for full wages from 23.10.1979 to 21.10.1987 after adjustment of the amounts already paid towards subsistence allowance.

[Raj Narain v. Union of India, 2019 SCC OnLine SC 452, decided on 01.04.2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J. dismissed a civil writ petition filed by an employee against whom disciplinary proceedings were initiated but no final order had been given in the matter.

The present writ application had been filed challenging the entire proceedings arising out of departmental proceedings which was initiated against the petitioner for certain charges communicated to him under Praptra ‘K’ during the period when he was posted as Circle Officer.

The Court noted that the petitioner had approached it without there being any order of punishment against him. Disciplinary proceedings had been initiated against the petitioner and the enquiry report had been submitted after the conclusion of the proceedings before the Enquiry Officer. Since the final decision was yet to be taken by the disciplinary authorities, thereafter only could the petitioner be aggrieved by the outcome of proceedings.

In view of the above, it was held that at present there was no occasion for this Court to exercise any jurisdiction in favour of the petitioner.[Bishwa Nath Prasad v. State of Bihar, 2019 SCC OnLine Pat 36, Order dated 10-01-2019]

Case BriefsHigh Courts

Gauhati High Court: The Bench comprising of Achintya Malla Bujor Barua, J. while pronouncing an order in regard to the issue of suspension order passed against an employee stated the necessity of the memorandum of charge/charge-sheet for initiating a disciplinary proceeding.

The facts of the case state that, the petitioner was an assistant professor and was placed under suspension for the reason as provided in the communication that he was arrested for a case and was in custody for a period of more than 48 hours.

For the above stated premise, the Court had placed a query to the counsel of governing body of the college that “whether any memorandum of charge/charge-sheet had been issued and served on the petitioner as regards any proposed disciplinary action that may be taken” for which the answer was given that no such memorandum of charge/charge-sheet had been issued.

Court stated that a communication rejecting the claim of salary cannot be construed to be a memorandum of charge/charge-sheet. Further Court opined that, the information being provided to a suspended employee for which he is placed under suspension cannot substitute the memorandum of charge/charge-sheet for initiating a disciplinary proceeding.

Reliance by the petitioner’s counsel was placed on the decision of the Supreme Court in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291 in which it was held that: “the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Charge sheet is not served on the delinquent officer/employee”.

Thus, the High Court in the present case taking into consideration the decision of the Supreme Court as stated above held that as no memorandum of charge/charge-sheet had been submitted since 29-08-2017, the period of 3 months elapsed which makes the order of suspension unsustainable. [Abdul Wahid v. State of Assam, 2018 SCC OnLine Gau 1957, dated 15-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of R.M. Savant and Nitin W. Sambre, JJ. allowed a petition filed by a suspended worker seeking payment of suspension allowance during the pendency of disciplinary enquiry against him.

The petitioner was registered with the respondent Board. In June 2018, he was served a show cause notice for initiating departmental proceedings against him. Subsequently, he was suspended from service. The petitioner requested the respondent for payment of suspension allowance which was not granted. Aggrieved thereby, the petitioner filed the instant petition.

The High Court perused the entire scheme of the service conditions and the statute under which the petitioner’s service was governed. It was observed that the object behind payment of suspension allowance is that the suspended employee is able to keep his body and soul together during his suspension period and is able to sustain himself. It was held that once there is a power to suspend vested in an employer, then the necessary concomitant is that the employer has to pay the suspension allowance to the employee. Furthermore, it was observed as well settled that suspension allowance is a part of “wages” defined under Section 2(vi) of the Payment of Wages Act, 1936. In light of the aforesaid, the petition was allowed and the respondent was directed to pay suspension allowance to the petitioner at a rate to be fixed by the Board. [Tanaji Genba Pawge v. Mumbai Vegetable Market Unprotected Workers Board,2018 SCC OnLine Bom 4140, dated 30-10-2018]

Case BriefsHigh Courts

Hyderabad High Court: A Division Bench comprising of Thottathil B. Radhakrishnan, CJ. and Ramesh Ranganathan, J., declared that to be transferred, even while covered by disciplinary proceedings, was not a matter of choice to be made by the government servant concerned.

The petitioner who was a Motor Vehicles Inspector had challenged the rejection of his request for inter-State transfer.  He was rejected the transfer owing to the pending disciplinary proceedings against him, which he claimed to be in violation of Articles 14 and 16 of the Constitution of India. On the contrary, the respondent claimed that deputation could not be allowed to employees against whom any disciplinary proceedings were pending as this right rests upon the employer for fundamental reasons. 

The High Court observed that the employer, who has initiated disciplinary proceedings, should have control over the employment of the delinquent concerned for continuing the disciplinary proceedings.  This is the fundamental principle on which disciplinary proceedings are permitted to continue, although regulated, even after retirement; and for post retiral benefits and post retiral purposes of certain categories as are contemplated to apply in service jurisprudence. In the light of the aforementioned, the Court stated that the employee cannot claim a legal entitlement over the service when undergoing the said proceedings and any decision to grant inter-State transfer to an employee covered by disciplinary proceedings could be made, only at the volition of the employer. Accordingly, the petition stood dismissed.[P. Ramesh Babu v. State of A.P.,2018 SCC OnLine Hyd 181, order dated 09-07-2018]  

Case BriefsHigh Courts

Hyderabad High Court: A Division Bench comprising of Thottathil B. Radhakrishnan, CJ. and Ramesh Ranganathan, J., dismissed a writ petition filed by a Motor Vehicle Inspector challenging the rejection of his request for inter-State transfer from Telangana to Andhra Pradesh.

The petitioner, following a surprise check in his office, stood subjected to disciplinary proceedings. His request for transfer to State of Andhra Pradesh was rejected by Government of Telangana which meant that he would have to continue to be in the employment of the same employer. The petitioner challenged this rejection.

The High Court observed that the employer, who has initiated the disciplinary proceedings, should have control over the employment of the delinquent concerned for continuing such proceedings. This is the fundamental principle on which disciplinary proceedings are permitted to continue. There is no legal entitlement for any employee to insist that, even while facing disciplinary proceedings, the employer could be compelled to provide inter-State transfer, thereby changing the employer and taking the employee out of the clutches of disciplinary jurisdiction of the present employer. To be transferred, even while covered by disciplinary proceedings, is not a matter of choice to be made by the government servant concerned. Holding thus, the High Court dismissed the petition. [P. Ramesh Babu v. State of Telangana, 2018 SCC OnLine Hyd 181, dated 09-07-2018]

 

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has rejected an appeal where the appellant requested the CPIO of Sarva Haryana Gramin Bank, Rohtak, to disclose to him the steps taken and details of proceedings in a complaint he had filed against the bank’s manager.

The appellant requested for the following details under the RTI Act:

i. Whether enquiry has been initiated on the said complaint,

ii. Copy of order appointing an enquiry officer,

iii. Details of the report submitted by the enquiry officer.

The appellant submitted that the response provided to him by the CPIO was not satisfactory as he had asked not just for the report of the enquiry officer, which was provided to him, but also documents pertaining to the course of the enquiry, including depositions made by customers about the conduct of the manager to the enquiry officer.

The CPIO contended that the statements by the customers and villagers consisted of personal information relating to a third party and had hence been accordingly denied under Section 8(1)(j) of the RTI Act, which reads:

“Notwithstanding anything contained in this act , there shall be no obligation to give any citizen information which relates to personal information the disclosure of which has no relationship to any public activity or interest , or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

The Commission relied on the Supreme Court’s judgment in Girish Ramchandra Deshpande v. CIC, (2013) 1 SCC 212 where the Court held that details recording proceedings of disciplinary enquiries were personal information, outside the ambit of the RTI Act as follows:

“The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual.”

Hence the Commission was of the view that the information solicited by the appellant was of a private nature, protected under Section 8(1)(j) of the RTI Act and disclosing the same would not cause any public good, hence the appeal was dismissed. [R.N. Kapur v. CPIO, Sarva Haryana Gramin Bank, Head Office, Rohtak, 2018 SCC OnLine CIC 310, decided on 17-05-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single-Judge Bench comprising of Hon’ble Siddharth, J. quashed the impugned termination order against the petitioner.

As per the facts of the case, the petitioner was alleged to have defalcated a sum of Rs. 26, 40,937.93 and based on the preliminary enquiry, he was found guilty of the stated charge. Two subsequent FIRs under Sections 3 and 7 of the Essential Commodities Act and under Section 419 IPC were filed against the petitioner. The petitioner was subsequently suspended from service.

Respondents have filed that the petitioner embezzled a huge amount for which he was asked for an explanation. Further, the petitioner was sent a notice in regard to no explanation from his side. An enquiry report based on the records found the petitioner guilty of defalcation of more than Rs. 26 lakhs. The petitioner was issued a letter in which it was stated that his services are governed by Model Service Regulations for the employees of U.P Consumer Cooperative Store. Petitioner was also granted personal hearing and the disciplinary proceedings were conducted in accordance with the rules.

Further, it has been argued that the petitioner was not afforded any opportunity of defending his case which was in violation of Regulation 77(i)(a) of the Regulations under which he was governed. Secondly, before passing of the termination order approval from the board of directors was not taken which was a violation of Regulation 76(b) of the above-stated regulations. Thirdly, he was not granted personal hearing and finally the impugned termination order was passed.

Upon perusal of Regulation 77 it was found that the entire disciplinary enquiry was against the said regulation and also against the principles of natural justice. Therefore, it was held by the Court that, the disciplinary proceedings against the petitioner were absolutely illegal and against the express provisions of Regulation 77 and further no material was brought on record regarding the status of criminal cases. The impugned termination order against the petitioner was quashed. [Dhodha Singh v. State of U.P, 2018 SCC OnLine All 448, delivered on 24-04-2018]

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to whether after transfer of a disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates Act, 1961 to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council with the direction to decide the controversy within a stipulated time, the Court held that the legislature never intended a complaint made against an Advocate either from the perspective of the complainant or from the delinquent to be transferred to BCI, again to be sent back. It was held that BCI, while exercising original jurisdiction on transfer of a complaint, cannot exercise the appellate jurisdiction.

The Court, however, took note of the fact that on many occasions disciplinary authority of the State Bar Council does not dispose of the complaint within the stipulated period, as a consequence of which the proceeding stands transferred to the BCI. Looking down upon such practice, the Court said that once a complaint is made by a litigant, it has to follow a definite procedure and is required to be dealt with as per the command of the Act to conclude the disciplinary proceeding within a period of one year from the date of receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council. Not to do something what one is required to do, tantamount to irresponsibility and the prestige of an institution or a statutory body inheres in carrying out the responsibility.

The bench of Dipak Misra and A.M. Khanwilkar, JJ, hence, directed the State Bar Councils to take a periodical stock of cases in each meeting with regard to the progress of the Disciplinary Committee, find out the cause of delay and guide themselves to act with expediency so that the Council, as a statutory body, does its duty as commanded under the Act. [Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat, 2017 SCC OnLine SC 351, decided on 06.04.2017]

Case BriefsHigh Courts

Delhi High Court: In the instant writ petition, the petitioner challenged the order of disciplinary authority whereby the petitioner had been inflicted the penalty of dismissal from service which would ordinarily be disqualification for future employment under the Government. Petitioner-an employee of Delhi Urban Shelter Improvement Board pleaded that he was appointed by the Chief Executive Officer (CEO) of the respondent and therefore the impugned order could not have been passed by a lower authority being the Member (Administration) of the respondent.

The petitioner further placed before the Court Article 311 of the Constitution that no person shall be dismissed or removed by a authority subordinate to that by which he was appointed. However, the Court rejected the contention out rightly stating that the petitioner was not holding any civil post for which the provision stated by him specifically applies as the respondent was an autonomous institution which is neither Central nor State government. Accordingly, the Court held that the petition was devoid of merits. [J.S. Sehrawat v. Delhi Urban Shelter Improvement Board, 2017 SCC OnLine Del 7219, decided on 27.02.2017]