Madhusudan Ray vs Union Of India And 2 Others
2021 Latest Caselaw 3096 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Reserved on 19.02.2021 
 
Delivered on 02.03.2021
 
Court No. - 39
 
Case :- WRIT - A No. - 14027 of 2020
 
Petitioner :- Madhusudan Ray
 
Respondent :- Union Of India And 2 Others
 
Counsel for Petitioner :- S.M. Iqbal Hasan
 
Counsel for Respondent :- A.S.G.I.,Bal Mukund
 
Hon'ble Mrs. Sunita Agarwal,J.

The present writ petition is directed against the order dated 04.12.2020 passed by the respondent no.2 whereby a charge-sheet with the statement of imputations on each article of charge had been served upon the petitioner, calling him to submit his reply within a period of 15 days alongwith a written statement of defence of each article of charge.

The challenge is on the ground that the petitioner had retired on 29.05.2020 on attaining the age of superannuation and had been relieved from the Kolkata Port Trust (KOPT), wherein he was sent on deputation. The petitioner had initially joined the respondent no.4, the Artificial Limbs Manufacturing Corporation of India (ALIMCO), Kanpur (Government of India undertaking) (under the Ministry of Social Justice and Empowerment) on 13.06.2013 and worked there till 30.06.2017 when he was relieved to join Kolkata Port Trust on deputation under the Ministry of Shipping, Government of India.

It appears that a show-cause notice dated 26.05.2020 was sent by the Chairman and Managing Director, Artificial Limbs Manufacturing Corporation of India (ALIMCO) whereby the petitioner was called upon to show-cause as to why the disciplinary action be not initiated against him for the lapses in making selections in the year 2013.

Sri S.M. Iqbal, learned counsel for the petitioner vehemently argued that Rule-30(A) of the Conduct, Discipline and Appeal Rules (CDA Rules) of the Corporation (ALIMCO) does not permit institution of disciplinary inquiry after retirement of an employee of the Corporation. Sub-Rule (1) of Rule-30(A) only contemplates that the disciplinary proceedings instituted prior to retirement of the employee or during his re-employment, i.e. while the employee was in service, shall be continued even after the retirement and concluded by the Authority which had commenced in the same manner as if the employee had continued in service.

It is contended that the charge-sheet, which is subject matter of challenge, had been issued on 04.12.2020, much after the retirement of the petitioner. The disciplinary inquiry, therefore, cannot proceed.

Reliance is placed on the decisions of the Apex Court in the case of Delhi Development Authority vs. H.C. Khurana reported in AIR 1993 SC 1488, UCO Bank & others vs. Rajinder Lal Capoor reported in AIR 2007 SC 2129 and a judgment of the learned Single Judge of this Court in Mahendra Prakash Srivastava vs. District Judge, Allahabad reported in 2016 (3) ADJ 35, to submit that the date of institution of disciplinary proceedings shall be the date when charges framed against the petitioner were issued to him. The disciplinary proceeding cannot be deemed to have been instituted on any date prior to the date of issuance of the charge-sheet.

Sri Rahul Shukla, learned counsel for the respondent, however, relies upon the show-cause notice dated 26.05.2020, (Annexure-2 to the writ petition) to submit that the decision to initiate disciplinary inquiry was taken prior to the superannuation of the petitioner. With the issuance of the show-cause notice dated 26.05.2020, the respondent no.2, the competent authority of the Corporation had made it clear that the petitioner was found prima facie guilty of misconduct under Rule-4(1)(i)(ii)(iii) and Rule 4(2) and Rule 5(5), (9), (21) of CDA Rules of the Corporation.

As per the contention of the counsel for the respondent, with the issuance of the show-cause notice, sufficient compliance of Rule-30(A) had been made and the disciplinary proceeding, which was instituted prior to the superannuation of the petitioner with the issuance of the show-cause notice dated 26.05.2020, shall be deemed to be continued in view of Rule 30(A)(1) of the CDA Rules.

The submission is that once the competent authority had arrived at the satisfaction that a departmental inquiry was to be instituted and conveyed it with the issuance of the show cause notice dated 26.05.2020 on the basis of a preliminary inquiry report, the disciplinary proceedings would continue.

The charge-sheet dated 04.12.2020, therefore, cannot be challenged on the ground above stated.

Reference has been placed on the decision of the Apex Court in Coal India Ltd. & others vs. Saroj Kumar Mishra reported in AIR 2007 SC 1706 to submit that the satisfaction recorded by the disciplinary authority having been communicated to the petitioner, the challenge to the charge-sheet dated 04.12.2020 cannot be sustained.

Having considered the submissions of learned counsel for the parties and perused the record, this Court finds it proper to go through the rules which have been framed in the matter of conduct of disciplinary proceedings against an employee of the Corporation.

Rule-20(1)(a) of the CDA Rules provides that an employee can be placed under suspension by the appropriate authority where a disciplinary proceeding against him is contemplated or is pending. Rule-24 further provides that the disciplinary authority can impose any of the penalties specified in Rule-23 of the CDA Rules. The procedure for imposing major penalty is provided in Rule-25 which reads as under:

"Rule-25: Procedure for imposing major penalties

(1) No order imposing any of the major penalties specified in Rule-23 shall be made except after an inquiry is held in accordance with this Rule.

(2) Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself inquire into or appoint any person (hereinafter called the Inquiry Authority) to inquire into the truth thereof. The Disciplinary Authority may appoint Inquiry Officer from panel maintained by Central Vigilance Commission or from among retired government officers after having confirmation of their name(s) from Central Vigilance Commission.

(3) Wherever it is proposed to hold an inquiry, the Disciplinary Authority shall frame definite charges on the basis of the allegations against the employee. The charges, together with a statement of the allegations on which they are based, a list of ( 16 ) documents by which and a list of witnesses by whom, the articles of charges are proposed to be sustained, shall be communicated in writing to the employee, who shall be required to submit within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), a written statement whether he admits or denies any of or all the Articles of Charges.

EXPLANATION : It will not be necessary to show the documents listed with the charge sheet or any other document to the employee at this stage."

Rule-30(A) deals with the situation where the employee has retired after initiation of the disciplinary proceedings. The language of Rule-30(A)(1) and (2) is pertinent to be reproduced hereunder:

"Rule?30(A): Constitution of Disciplinary Proceedings after Retirement for Grave Misconduct.

1. Disciplinary Proceedings if instituted while the employee was in service whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be proceeding and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service.

2. During the pendency of the disciplinary proceedings, the disciplinary authority may withhold the payment of gratuity for ordering the recovery from gratuity of the whole or part of the any pecuniary loss caused to the company if the employee is found in a disciplinary proceeding or judicial proceeding to have been guilty of offences/misconduct in Sub-Section (6) of Section 4 of the Payment of Gratuity Act, 1972, or to have caused pecuniary loss to the company by misconduct or negligence, during the service including service rendered on deputation or on re-employment after retirement. However, the provisions of Section 7(3) & 7(3A) of Payment of Gratuity Act, 1972, should be kept in view in the event of delayed payment, in case the employee is fully exonerated."

The language employed in Rule-30(A)(1) makes it clear that by legal fiction the disciplinary proceeding, if instituted, while the employee was in service whether before his retirement or during his re-employment, shall continue and be concluded as if the employee was in service.

The question is as to what would be the date of institution of the disciplinary proceedings.

Having gone through the relevant provisions of Rules-20 and 25 of the CDA Rules, it seems that three dates mentioned in the Rules are relevant. First is the date on which the employee has been placed under suspension in contemplation or during pendency of the disciplinary proceeding. As per rule-25(2), the date of appointment of the inquiry officer by the disciplinary authority to inquire into the truth of any imputation of misconduct or misbehaviour against an employee may also be relevant. Sub-rule (3) of Rule-25, however, states that wherever the disciplinary authority proposes to hold an inquiry, it shall frame definite charges on the basis of allegations against the employee. The charges, together with a statement of the allegations on which they are based, a list of documents by which and a list of witnesses by whom, the articles of charges are proposed to be sustained, shall be communicated in writing to the employee. Third date as per the rule is when the charge-sheet is issued by the disciplinary authority or the inquiry officer.

The first step for initiation of the disciplinary proceeding, in the considered opinion of the Court, would be when the charges framed by the disciplinary authority had been issued to the employee. A date prior to that may be the date of suspension of the employee indicating him that the disciplinary proceeding was contemplated against him or the date of appointment of the inquiry officer. The date of issuance of show cause notice calling upon explanation of the petitioner, in any case, cannot be said to be the date of initiation or institution of the disciplinary proceeding. The petitioner was neither placed under suspension nor charge-sheet had been issued to him prior to his retirement on 29.05.2020, on attaining age of superannuation.

It is not the case of the respondent- Corporation that the inquiry officer had been appointed and the petitioner was intimated of the institution of the disciplinary inquiry. The language employed in the show-cause notice dated 26.05.2020 only narrates the advice of the Ministry of Social Justice and Empowerment communicated through the letter dated 02.05.2016 that the disciplinary proceedings may be initiated against all selection committee members. It is not known as to why disciplinary authority took three years to communicate its intention to initiate disciplinary action against the petitioner on the advice of the Ministry which was given in the year 2016.

The word 'institution' signifies application of mind by the disciplinary authority with framing of definite charges against the employee on the material evidence before it, to conclude that the employee was prima facie guilty of misconduct. Any other stage of the decision-making-process, which does not culminate in the issuance of the charge-sheet cannot signify the date of application of mind by the disciplinary authority. Any decision prior to the date of issuance of the charge-sheet would only be the opinion formed at a different stage in the decision-making-process and the date on which the said decision is taken cannot signify the date of communication of the decision for initiation of the disciplinary authority. The preliminary inquiry report or the communication of the decision of the Ministry to initiate disciplinary proceeding by show-cause notice dated 26.05.2020 cannot be deemed to be the date of institution of the inquiry within the meaning of Rule-30(A). The legal fiction created by Rule-30(A)(1) of the Rules cannot be applied to cover the communication of the Ministry or the action of the disciplinary authority in calling explanation of the petitioner on the said communication. The deeming provision of Rule-30(A) clearly provides continuation of disciplinary inquiry in cases where it is instituted while the employee was in service, i.e. whether before his retirement or during his re-employment.

In any case, the charge-sheet containing definite charges on the allegations against the petitioner had been issued on 04.12.2020, approximately 6 months after superannuation of the petitioner. The date of institution of inquiry being 04.12.2020 with the issuance of the charge-sheet, the disciplinary proceedings cannot be said to have been instituted prior to the retirement of the petitioner and, therefore, cannot continue within the meaning of the Rule-30(A) of the Conduct, Discipline and Appeal Rules of the Corporation.

The above opinion finds support from the decisions relied by the learned counsel for the petitioner as noted above.

In UCO Bank (supra) it was held that the disciplinary proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet is issued. The reliance therein has been placed on the decision of the Apex Court in Union of India & others vs. K.V. Jankiraman, etc. reported in MANU/SC/0445/1991 and Union of India vs. Sangaram Keshari Nayak 2007 (6) SCC 704 wherein it has been held that a departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued. In Coal India Ltd. (supra), it was held that the date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof charge-sheet is issued, would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto.

The decision of the disciplinary authority to initiate disciplinary proceeding against the petitioner with the issuance of the charge-sheet dated 04.12.2020, therefore, cannot be protected under Rule-30(A)(1) of the CDA Rules.

The charge-sheet dated 04.12.2020 issued by the respondent no.2 namely the Chairman and Managing Director, Artificial Limbs Manufacturing Corporation of India (ALIMCO), therefore, deserves to be quashed.

The writ petition is allowed.

The respondents are directed to ensure the payment of retiral dues of the petitioner, in accordance with law, forthwith. In case of any delay in payment of retiral dues on the part of the respondent- Corporation, the petitioner would be entitled to 8% simple interest from the date when the amount become payable to the petitioner.

Order Date :- 02.3.2021

P Kesari