Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 9778 OF 2010
| BHARAT PETROLEUM CORPORATION | |||||||
|---|---|---|---|---|---|---|---|
| LIMITED AND OTHERS |
| ANIL PADEGAONKAR |
|---|
CIVIL APPEAL NO(s). 9779 OF 2010
| ANIL PADEGAONKAR |
|---|
VERSUS
| BHARAT PETROLEUM CORPORATION | |||||||
| LIMITED AND OTHERS |
JUDGMENT
NAVIN SINHA, J.
The two appeals have been preferred by the appellant
Corporation and the respondentemployee respectively, to the
extent that they are aggrieved by the common order in a writ
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2020.03.17
12:44:48 IST
Reason:
appeal preferred by the Corporation. They have thus been heard
together and are being disposed by a common order.
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2. The Corporation is aggrieved to the extent the impugned
order sets aside the order of punishment on the ground that the
chargesheet had not been issued by the disciplinary authority.
The employee is aggrieved by the grant of liberty to the
Corporation for issuance of fresh chargesheet, and denial of
back wages while granting reinstatement. In the interregnum, the
employee has attained the age of superannuation in February
2018.
3. A chargesheet was issued to the employee on 31.12.1993
by the Deputy General Manager (Aviation) (hereinafter referred to
as “the DGM”) while he was working on the post of Aviation
Officer at the General Aviation Service Station, Gwalior, in the
management cadre in Job Group “A”. It was alleged that fresh
sand particles had been found in the all 10 fuel tanks after his
duty hours in the ‘C’ shift ended while the earlier inspection
during the ‘B’ shift had found it to be free of dirt and water except
for minor traces of water in tank nos. 3 and 9. While the
departmental proceedings were pending, a fresh chargesheet
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was issued to the employee on 27.09.1994 with regard to absence
from duty on 13.08.1994. The employee was therefore charged
with having acted in a manner prejudicial to the interests of the
Corporation and negligence in the performance of duty including
malingering or slowing down of work under Clause 6 & 10 of Part
IIIA of the Bharat Petroleum Limited Conduct, Discipline and
Appeal Rules for Management Staff, 1976 (hereinafter referred to
as ‘the Rules’). Pursuant to a domestic inquiry, the inquiry officer
returned a finding of guilt on 06.01.1995. The employee was
furnished a copy of the report and after consideration of his
reply, the Director (Marketing) under Part IIIB (2)(f) of the Rules
by a common order dated 21.05.1997 ‘discharged’ the employee
from service. The departmental appeal under the Rules was
rejected by a reasoned order by the Chairman on 05.10.1998.
4. The employee assailed the orders in a writ petition. The
learned Single Judge, with regard to the first chargesheet, held
that the punishment of ‘dismissal’ stood vitiated because the
Functional Director alone was competent to issue the charge
sheet. The second chargesheet though issued by the disciplinary
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authority, required reconsideration as the punishment was held
disproportionate to the charge, necessitating an order of remand.
The Corporation was granted liberty in appeal to issue a fresh
chargesheet with regard to the first charge and to pass a lesser
order of punishment with regard to the second charge. Though
reinstatement was ordered, the question of back wages was left
for consideration subject to the outcome of such fresh
proceedings.
5. Shri. J.P. Cama, learned senior counsel appearing on behalf
of the Corporation, submitted that the employee was not
‘dismissed’ but ‘discharged’ from service. The DGM being the
functional General Manager and Head of the Department, the
highest officer on the spot, was fully competent under the
manual for delegation of authority dated 15.12.1987 to issue
chargesheet for a punishment lesser than dismissal under serial
1(a) of Schedule I under Part III of the Rules. The manual for
delegation of authority had never been withdrawn or superseded
even after amendment of Rule 3(g) on 22.08.1991 with regard to
the definition of Disciplinary Authority in the Rule. The
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misconduct on the part of employee, considering his place of
posting at an air force station was serious in nature. There was
no infirmity in the conduct of the departmental proceedings. The
employee had since reached the age of superannuation in
February, 2018. Continuance of the proceedings under the Rules
was an impossibility in absence of any provisions for the same.
6. The employee did not take any objection in his reply to the
chargesheet or in the memo of appeal that the DGM was not
competent to issue the same. Relying on
H.V. Nirmala vs.
Karnataka State Financial Corporation , (2008) 7 SCC 639, it
was submitted that the objection with regard to the lack of
jurisdiction ought to have been raised at the very first instance.
The employee took this objection for the first time before the High
Court in the writ petition. In any event the employee has failed to
demonstrate any prejudice to him thereby, assuming though not
admitting any lapse. Reliance was also placed on S.R. Tewari
, (2013) 6 SCC 602, that there
vs. Union of India and Another
could be no standardised yardstick with regard to proportionality
of punishment which would depend on the facts of each case.
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7. Shri Puneet Jain, learned counsel for the employee,
submitted that dismissal was a major punishment under Part III
B (2)(f) of the Rules. The Corporation themselves opined that the
charges were very serious. The procedure followed was that for a
major penalty. The mere use of the word ‘discharge’ in the order
of punishment therefore could not be determinative. The High
Court has committed no error in holding that the employee had
been dismissed from service pursuant to a chargesheet issued
without jurisdiction. The view taken by the High Court that after
amendment of the term disciplinary authority in Rule 3(g) by the
Board of Directors on 22.08.1991, the manual for delegation of
authorities dated 15.12.1987 had lost its relevance, does not call
for any interference. The Functional Director alone was
competent to issue chargesheet for dismissal under Sr.1(b) of
Schedule I under Part III of the Rules. The chargesheet issued by
the DGM has rightly been held to be without authority, thus
vitiating the punishment. The Rules make a distinction between
the disciplinary authority in Rule 3(g) and competent authority in
Rule 3(h). Competent authority cannot be equated with
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disciplinary authority. Reliance was placed on Union of India
(2014) 1 SCC 351, to submit that a charge
vs. B.V. Gopinath,
sheet not issued according to law rendered the entire proceedings
nonest . The High Court, in the facts of the case ought not to
have given liberty to issue fresh chargesheet or deny back wages
while directing reinstatement.
8. The entire proceedings having been vitiated back wages
ought to have been granted while directing reinstatement relying
on
ChairmencumManaging Director, Coal India Limited
, (2011) 5 SCC 142.
and Others vs. Ananta Saha and Others
With regard to the second chargesheet, it was submitted that the
punishment of dismissal for absence from place of duty one hour
before duty hours got over was grossly disproportionate relying
on
Dev Singh vs. Punjab Tourism Development Corporation
Limited and Another , (2003) 8 SCC 9 .
9. We have considered the submissions on behalf of the
parties. The employee was posted at the Air Force Station
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Gwalior. There can be no two opinions that the nature of his
duties had an inherent seriousness. Two chargesheets were
issued to him and departmental proceedings were conducted.
The employee was given full opportunity of defence. A finding of
guilt was arrived at by the enquiry officer with regard to both the
charges. The employee in his departmental appeal raised no
issues of procedural irregularity with consequent prejudice. A
common order of punishment of ‘discharge’ from service dated
21.05.1997 followed under Part III B (2)(e) of the Rules. No order
of ‘dismissal’ was passed under Part IIIB (2)(f) of the Rules. If
the Corporation was of the opinion that ‘dismissal’ was the
appropriate punishment in the facts of the case nothing
prevented it from stating so. The High Court fell in a serious error
by opining that the employee had been ‘dismissed’ from service
and on that premise arrived at the conclusion that the charge
sheet was incompetent in absence of it having been issued by the
Functional Director who was the disciplinary authority under Sr.
1 (b) of Schedule I under Part III of the Rules for dismissal.
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10. PartIII B (2) of the Rules provides for major penalties which
includes inter alia removal from service which shall not be a
disqualification for future employment and dismissal from service
which shall ordinarily be a disqualification from future
employment. The Rules therefore themselves recognise them as
different punishments with varying severity. Though the word
‘discharge’ does not find reference under the Rules, nonetheless
in service jurisprudence, removal and/or discharge are
synonymous leading to a termination or end of service but
without the punitive consequences of dismissal entailing loss of
past services, affecting future employment and debarring retiral
benefits. There is no dispute that consequent to the impugned
order of ‘discharge’, the employee has been paid his dues.
11. The employee either in his reply to the charges or in the
departmental appeal rightly raised no issues with regard to lack
of competence in the DGM to issue the chargesheet. Sr. 1 (a) of
Schedule I, to be read with Part III of the Rules, provides that
with regard to Job Group ‘A’ the Functional General Manager was
the disciplinary authority for all other penalties except that of
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dismissal. The Functional Director was the disciplinary authority
for punishment of dismissal only. The employee for the first time
raised the issue in the writ petition that the chargesheet had
been issued by other than the disciplinary authority. If the
employee had raised the issue either in his reply to the memo of
charges or in appeal perhaps the Corporation could have
addressed the issue better. Nonetheless, since a fundamental
issue of jurisdiction has been raised, we shall proceed to examine
the issue.
12. Rule 3(e) defines a Functional Manager as the Manager in
charge of a function. Rule 3(g) defines Disciplinary Authority as
specified in Schedule I competent to impose penalties under the
Rules. Competent Authority has been defined in Rule 3(h) to
mean any authority empowered by the Board of Directors or the
Chairman by any general or special rule or order to discharge the
function or use the powers specified in the rule or order. Under
Schedule I, the Functional General Manager was the disciplinary
authority for punishment lesser than dismissal and the
Functional director was the disciplinary authority for punishment
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of dismissal. We are of the considered opinion that the term
Competent Authority will include a disciplinary authority so
authorised in the manner prescribed in 3(h) under the delegation
of authority manual dated 15.12.1987. Under Part IIIF(1) of the
Rules dealing with procedure for imposing major penalties, the
disciplinary authority has been described to include an authority
as specified in Schedule I. It includes both a Functional manager
and Functional Director. PartIIIF(23) provides as follows:
“(23) If the Disciplinary Authority or the Competent
Authority having regard to its findings on all or any
of the charges is of the opinion that any of the
penalties specified in Rule “B” should be imposed on
the Management Staff it shall, notwithstanding
anything contained in Rule “G”, make an order
imposing such penalty”
13. The fact that the words ‘Disciplinary Authority or
Competent Authority’ have been used interchangeably in Part III
F leaves no doubt in our mind that the delegation of authority
manual had never been recalled or superseded. It is the specific
case of the Corporation that the manual for delegation of
authority issued on 15.12.1987 had never been withdrawn and
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the Corporation had all along in all other cases also acted on
basis of the same and that no chargesheet for a punishment
lesser than dismissal had ever been issued by the Functional
Director. The DGM was therefore fully competent under the
manual also to both suspend and issue chargesheet. The High
Court itself reasoned that had the penalty been other than
dismissal, the Functional Manager would have been competent to
issue the chargesheet. The High Court having posed unto itself
the wrong question of dismissal from service, naturally arrived at
an erroneous conclusion.
14. In view of our conclusion that the first chargesheet had
been issued by an authority competent to do so, the order of
discharge calls for no interference. The direction for issuance of
fresh chargesheet is therefore held to be unsustainable and is
set aside. The direction for reinstatement and grant of back
wages including any proportionality of punishment under the
second charge therefore becomes academic and needs no
consideration.
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15. The appeal preferred by the appellantCorporation is
allowed and that preferred by the respondentemployee is
dismissed. There shall be no order as to costs.
…………...................J.
[ASHOK BHUSHAN]
…………...................J.
[NAVIN SINHA]
NEW DELHI
MARCH 17, 2020
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