Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2333 OF 2007
The Secretary, Min.of Defence & Ors. …Appellants
VERSUS
Prabhash Chandra Mirdha …Respondent
O R D E R
1. This appeal has been preferred against the impugned
judgment and orders dated 26.2.2004 and 13.8.2004 passed by the
High Court of Judicature at Hyderabad in Writ Petition No. 14674 of
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1997, and in Review W.P.M.P. No. 18654 of 2004. The issue
involved in this case is as to whether the authority, lower or higher
than of the appointing authority, can initiate the proceedings against
the delinquent on grounds of alleged misconduct.
2. Facts and circumstances giving rise to this appeal are that:
A. Respondent had been working as an Assistant Foreman in
the Ordnance Factory, Yeddumailaram, when charge memo dated
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8.1.1992 was issued to him on the alleged demand of bribe of
Rs.37,000/- and acceptance of Rs.4,150/- on 3.8.1991 in cash from
the representative of firm M/s Teela International Limited, Hosur,
Bangalore.
B. Aggrieved by the said charge memo, respondent preferred
O.A. No. 1641 of 1995 before the Central Administrative Tribunal,
Hyderabad (hereinafter called as `Tribunal’) on 23.12.1995 on the
ground that the charge memo had been issued to the respondent by
the authority not competent to do so, being subordinate to his
appointing authority.
C. The said application was allowed vide judgment and order
dated 4.1.1996 only on the ground that the officer who had issued
the charge memo was subordinate to the appointing authority of the
delinquent and thus, had no competence to initiate the disciplinary
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proceedings.
D. Aggrieved by the said order, a Review Application was filed
by the appellants which was dismissed vide order dated 20.3.1997.
E. Aggrieved, the appellants filed the Writ Petition No. 14674
of 1997 before the High Court which has been dismissed vide
impugned judgment and order dated 30.6.2004. Review Application
filed by the appellants also stood dismissed vide order dated
13.8.2004.
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Hence, this appeal.
3. This Court entertained the appeal vide order dated 30.4.2007
but did not grant any interim relief and in spite of notice to the
respondent, he did not enter appearance.
4. The legal proposition has been laid down by this Court while
interpreting the provisions of Article 311 of the Constitution of
India, 1950 that the removal and dismissal of a delinquent on
misconduct must be by the authority not below the appointing
authority. However, it does not mean that disciplinary proceedings
may not be initiated against the delinquent by the authority lower
than the appointing authority.
5. It is permissible for an authority, higher than appointing
authority to initiate the proceedings and impose punishment, in case
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he is not the appellate authority so that the delinquent may not loose
the right of appeal. In other case, delinquent has to prove as what
prejudice has been caused to him. (Vide: Sampuran Singh v. State
of Punjab, AIR 1982 SC 1407; Surjit Ghosh v. Chairman and
Managing Director, United Commercial Bank & Ors., AIR 1995
SC 1053; Balbir Chand v. FCI Ltd. & Ors., AIR 1997 SC 2229;
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and A. Sudhakar v. Postmaster-General Hyderabad & Anr.,
(2006) 4 SCC 348).
6. In Inspector General of Police & Anr. v. Thavasiappan,
AIR 1996 SC 1318, this Court reconsidered its earlier judgments on
the issue and came to the conclusion that there is nothing in law
which inhibits the authority subordinate to the appointing authority
to initiate disciplinary proceedings or issue charge memo and it is
certainly not necessary that charges should be framed by the
authority competent to award the punishment or that the inquiry
should be conducted by such an authority.
7.
In Steel Authority of India & Anr. v. Dr. R.K.
Diwakar & Ors., AIR 1998 SC 2210; and State of U.P. & Anr. v.
Chandrapal Singh & Anr., AIR 2003 SC 4119, a similar view has
been reiterated.
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8. In Transport Commissioner, Madras – 5 v. A. Radha
Krishna Moorthy, (1995) 1 SCC 332, this Court held:
“Insofar as initiation of enquiry by an officer
subordinate to the appointing authority is
concerned, it is well settled now that it is
unobjectionable. The initiation can be by an
officer subordinate to the appointing authority.
Only the dismissal/removal shall not be by an
authority subordinate to the appointing authority.
Accordingly it is held that this was not a
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permissible ground for quashing the charges by
the Tribunal.”
(See also: Director General, ESI & Anr. v. T. Abdul Razak etc.,
AIR 1996 SC 2292; and Chairman-cum-Managing Director, Coal
India Limited & Ors. v. Ananta Saha & Ors. , (2011) 5 SCC 142).
9. Law does not permit quashing of chargesheet in a routine
manner. In case the delinquent employee has any grievance in
respect of the chargesheet he must raise the issue by filing a
representation and wait for the decision of the disciplinary authority
thereon. In case the chargesheet is challenged before a court/tribunal
on the ground of delay in initiation of disciplinary proceedings or
delay in concluding the proceedings, the court/tribunal may quash
the chargesheet after considering the gravity of the charge and all
relevant factors involved in the case weighing all the facts both for
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and against the delinquent employee and must reach the conclusion
which is just and proper in the circumstance. (Vide: The State of
Madhya Pradesh v. Bani Singh & Anr ., AIR 1990 SC 1308; State
of Punjab & Ors. v. Chaman Lal Goyal, (1995) 2 SCC 570;
Deputy Registrar, Cooperative Societies, Faizabad v. Sachindra
Nath Pandey & Ors., (1995) 3 SCC 134; Union of India & Anr. v.
Ashok Kacker , 1995 Supp (1) SCC 180; Secretary to
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Government, Prohibition & Excise Department v. L. Srinivasan ,
(1996) 3 SCC 157; State of Andhra Pradesh v. N. Radhakishan,
AIR 1998 SC 1833; Food Corporation of India & Anr. v. V.P.
Bhatia , (1998) 9 SCC 131; Additional Supdt. of Police v. T.
Natarajan, 1999 SCC (L&S) 646; M.V. Bijlani v. Union of India
& Ors. , AIR 2006 SC 3475; P.D. Agrawal v. State Bank of India
& Ors., AIR 2006 SC 2064; and Government of A.P. & Ors. v. V.
Appala Swamy , (2007) 14 SCC 49).
10. In Secretary, Forest Department & Ors. v. Abdur Rasul
Chowdhury, (2009) 7 SCC 305, this Court dealt with the issue and
observed that delay in concluding the domestic enquiry is not
always fatal. It depends upon the facts and circumstances of each
case. The unexplained protracted delay on the part of the employer
may be one of the circumstances in not permitting the employer to
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continue with the disciplinary proceedings. At the same time, if the
delay is explained satisfactorily then the proceedings should not be
permitted to continue.
11. Ordinarily a writ application does not lie against a
chargesheet or show cause notice for the reason that it does not give
rise to any cause of action. It does not amount to an adverse order
which affects the right of any party unless the same has been issued
by a person having no jurisdiction/competence to do so. A writ lies
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when some right of a party is infringed. In fact, chargesheet does not
infringe the right of a party. It is only when a final order imposing
the punishment or otherwise adversely affecting a party is passed, it
may have a grievance and cause of action. Thus, a chargesheet or
show cause notice in disciplinary proceedings should not ordinarily
be quashed by the Court. (Vide : State of U.P. v. Brahm Datt
Sharma , AIR 1987 SC 943; Executive Engineer, Bihar State
Housing Board v. Ramesh Kumar Singh & Ors. , (1996) 1 SCC
327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR
2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam
Ghouse & Anr. , AIR 2004 SC 1467; and Union of India & Anr. v.
Kunisetty Satyanarayana , AIR 2007 SC 906).
12. In State of Orissa & Anr. v. Sangram Keshari Misra &
Anr. , (2010) 13 SCC 311, this Court held that normally a
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chargesheet is not quashed prior to the conclusion of the enquiry on
the ground that the facts stated in the charge are erroneous for the
reason that correctness or truth of the charge is the function of the
disciplinary authority.
(See also: Union of India & Ors. v. Upendra Singh , (1994) 3 SCC
357).
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13. Thus, the law on the issue can be summarised to the effect
that chargesheet cannot generally be a subject matter of challenge as
it does not adversely affect the rights of the delinquent unless it is
established that the same has been issued by an authority not
competent to initiate the disciplinary proceedings. Neither the
disciplinary proceedings nor the chargesheet be quashed at an initial
stage as it would be a premature stage to deal with the issues.
Proceedings are not liable to be quashed on the grounds that
proceedings had been initiated at a belated stage or could not be
concluded in a reasonable period unless the delay creates prejudice
to the delinquent employee. Gravity of alleged misconduct is a
relevant factor to be taken into consideration while quashing the
proceedings.
14. The instant case requires to be examined in the light of the
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aforesaid settled legal propositions. The respondent delinquent
challenged the chargesheet on the ground that it had been issued by
the authority not competent to do so. The Tribunal vide impugned
order dated 4.1.1996 quashed the same only on the ground that the
Deputy Director General of Ordnance Factory was the appointing
authority of the delinquent employee and competent to impose the
penalty referred to under the statutory rules. The chargesheet had
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been issued by the authority subordinate to him. Thus, the same was
not issued by the competent authority.
15. The said judgment and order of the Tribunal shows that the
present appellants were not represented nor any argument had been
advanced on their behalf as neither name of the counsel for the
appellants has been mentioned rather the space is left blank, nor any
reference to his argument had been made. The appellants filed a
review petition according to which the order had been passed by the
Tribunal without giving an opportunity to the appellants to file a
detailed counter affidavit and a plea had been taken that the authority
which issued the chargesheet had been authorised by the disciplinary
authority to serve the charge memo and conduct/conclude the
enquiry in the name and under the order of the competent authority.
However, the said authority was authorised to impose the
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punishment.
The review has been rejected by a cryptic order. The High
Court concurred with the findings recorded by the Tribunal.
16. Even before us, no order of authorisation in general or any
rule permitting the competent authority to delegate its power for
conducting the enquiry has been produced. Thus, in such a fact-
situation, it is neither desirable nor possible to deal with the issue,
rather it is desirable that the issue be left open.
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Be that as it may, in case the Tribunal as well as the High
Court has permitted the appellants to proceed de novo, we fail to
understand why such a course was not adopted though the appellants
wasted 20 years in litigation without any purpose.
17. However, in the instant case, the Tribunal has quashed the
th
chargesheet vide order dated 20 March, 1997 in respect of
misconduct alleged to have taken place on 31.8.1991. Though the
allegations against the delinquent had been very serious i.e. demand
and acceptance of bribe, a period of two decades has passed since
the alleged incident. Disciplinary proceedings could not be
proceeded further as the chargesheet itself had been quashed. There
is nothing on record to show that the respondent delinquent is still in
service and that even if the appellants are permitted to proceed with
the inquiry, the evidence which was available 21 years ago would be
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available today.
18. In view of the above, while leaving the question of law
open, we do not want to proceed with the appeal further on merit.
The appeal is accordingly disposed of. No order as to costs.
………………………..J.
(DR. B.S. CHAUHAN)
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………………………..J.
(DIPAK MISRA)
NEW DELHI;
MAY 29, 2012
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