Bombay High Court
Union Of India Through The ... vs Surinder Kumar Virdi on 8 March, 2021
Bench: G. S. Kulkarni
2-WPST.98637.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 98637 OF 2020
WITH
INTERIM APPLICATION (ST) NO. 3605 OF 2021
Union of India and Ors. } Petitioners
Versus
Surinder Kumar Virdi } Respondent
Mr.A.M.Sethna with Mr.Niranjan Shimpi, for the
petitioners.
Mr.Rahul Walia, for the respondent.
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- MARCH 8, 2021
PC :-
1. At the outset, we are compelled to observe that the
present 'petition of motion' has left us a little perturbed. Do
we regard the instant case as a classic example of the
petitioners' lack of knowledge in regard to conduct of
disciplinary proceedings as well as the procedure that governs
writ proceedings before a High Court under Article 226 of the
Constitution of India, or is it that something else behind the
screen has been withheld from us to shield an individual or
individuals? Upon due consideration, we feel that it would be
prudent not to waste time on this perturbing phenomenon and
wise to proceed on the basis of strict legal principles.
J.V.Salunke,PS
2-WPST.98637.2020
2. Under challenge in the writ petition is a judgment and
order dated 6th February 2020 passed by the Central
Administrative Tribunal, Bench at Mumbai, Mumbai (hereafter,
"the Tribunal", for short) in Original Application No. 597 of
2011 instituted before the Tribunal by the sole respondent
herein (hereafter, "the charged officer", for short). The
petitioners were the respondents in such original application.
3. Following imposition of penalty in disciplinary
proceedings initiated against him, the charged officer had
approached the Tribunal. Grievance voiced by the charged
officer was that despite the inquiry officer having held the
charge of demand of Rs.4 lakh (Rupees four lakh) towards
illegal gratification as 'not proved', the disciplinary authority,
turning a blind eye to the law laid down by the Supreme Court
in its decision reported in (1998) 7 SCC 84 [Punjab National
Bank vs. Kunj Bihari Mishra], proceeded to impose penalty
of reduction to a lower stage in the time-scale of pay by one
stage till his retirement on attaining the age of
superannuation, i.e. 28th February 2013, with further direction
that he will not earn increment during the period of such
reduction with cumulative effect. The ground on which the
charged officer succeeded before the Tribunal was that the
disciplinary authority, while imposing penalty, did not record
the tentative reasons for his disagreement with the finding of
the inquiry officer and also did not give the charged officer an
opportunity to persuade the disciplinary authority to agree
with such finding of the inquiry officer. The Tribunal quoted
J.V.Salunke,PS
2-WPST.98637.2020
paragraph 19 of the decision in Kunj Bihari Mishra (supra)
and proceeded to dispose of the original application with the
following order:
"12. The applicant is held to be entitled for all the
consequential benefits in view of the aforesaid.
However, the respondents will be at liberty to take
the legal recourse, if so decided in accordance with
the relevant rules and law on the subject."
4. It is such judgment and order of the Tribunal that the
petitioners have questioned in this writ petition dated 8 th
December 2020.
5. While considering the writ petition at the admission
stage, Interim Application (St.) No. 3605 of 2021 was found
on record. On perusal of the interim application, the same
appeared to be an application seeking condonation of delay in
presentation of the writ petition.
6. If the writ jurisdiction of the High Court is invoked by a
party belatedly, what the court generally insists upon is an
explanation for such belated approach. In other words, the
court may, in its discretion, seek reasonable explanation of
the reason(s) for the delay and laches in moving the court
against the impugned order to its satisfaction before the writ
petition is heard on merits. Of course, it is not the law that in
each and every case the belated approach has to be explained
before the court hears the claim on merits. The court may
take a liberal view of the belated approach and want of
sufficient explanation if, as a consequence thereof, no third-
J.V.Salunke,PS
2-WPST.98637.2020
party rights have accrued in the meanwhile.
7. In the instant case, the petitioners have invoked the writ
jurisdiction, inter alia, 10 months after the impugned
judgment and order was passed by the tribunal. Resolution of
the dispute, one way or the other, would not have affected
third-party rights. In such view of the matter, we are
constrained to observe that the petitioners have either no
knowledge of how proceedings in connection with a writ
petition are conducted before a High Court, or to give them
the benefit of doubt, they have been ill-advised to file such
application for condonation of delay. Be that as it may.
8. Since we are of the firm opinion that the impugned
judgment and order of the Tribunal does not suffer from any
infirmity, we proceed to support such finding of ours by
assigning brief reasons.
9. Our attention was drawn by Mr. Walia, learned advocate
for the charged officer to paragraph 8 of the impugned
judgment and order. We quote a portion of such paragraph
hereunder:
"8. ..... it is admitted case that after receipt of the
inquiry report, referred to above vide which the
Inquiry Officer has given a finding that the charges
against the applicant are devoid of any merit and
substance, the Disciplinary Authority has not issued
any dissenting note or any tentative opinion against
such findings of the Inquiry Officer, however, he has
chosen to pass impugned order of penalty dated
27.05.2011 (Annexure A-2)......."
J.V.Salunke,PS
2-WPST.98637.2020
10. In view of such admitted position, Mr. Walia contended
that there is absolutely no merit in the writ petition.
11. Mr. Sethna, learned advocate for the petitioners,
however, sought to impress upon us that indeed, the law laid
down in Kunj Bihari Mishra (supra) was duly followed. Our
attention was invited to page 93 of a compilation which,
according to Mr. Sethna, was part of the documents that were
placed before the Tribunal for its consideration but was not
considered.
12. Having read the said document dated 7th March 2007,
titled as "Office Memorandum", signed by the Director of the
Central Vigilance Commission, we have failed to comprehend
as to how this office memorandum advances the cause of the
petitioners. The Director, in such memorandum, recorded that
the charged officer had indeed demanded money and,
thereafter, expressed reasons why he disagreed with the
inquiry officer. This was followed by an advice for imposition
of major penalty on the charged officer commensurate with
the proven misconduct.
13. Mr. Walia reacted by submitting that such office
memorandum was never served on the charged officer. No
material was placed before us by Mr. Sethna to prove Mr.
Walia wrong.
14. Whatever internal correspondence might have been
exchanged by the charged officer's disciplinary authority and
J.V.Salunke,PS
2-WPST.98637.2020
the Central Vigilance Commission is hardly of any relevance.
Paragraph 19 of the decision in Kunj Bihari Mishra (supra),
quoted in its entirety by the Tribunal in its impugned
judgment and order, makes the legal position clear as crystal
that in case of a disagreement with the findings of the inquiry
officer by the disciplinary authority, natural justice has to be
read into the relevant rules governing the disciplinary
proceedings. The delinquent officer has to be informed of the
tentative reasons for disagreement so that, availing of the
opportunity that is extended to him to deal with the tentative
opinion expressed by the disciplinary authority, the doubts in
the mind of the disciplinary authority can be cleared and he
could be urged to change his mind and accept the findings of
the inquiry officer. This course, regrettably, was not followed.
15. The charged officer was not an ordinary Government
employee. He was Joint Commissioner of Central Excise and
Customs. The department to which the charged officer
belonged, we presume, has a team of law officers of repute to
advise them. The reason as to why the ratio of the decision in
Kunj Bihari Mishra (supra) was not followed, has not been
explained despite such team being available. In public service,
it cannot be underscored enough that there should be zero
tolerance for corruption. We do not know whether the
omission to follow the procedure required by law was
deliberate or otherwise to arrange for an escape route for the
charged officer. In the absence of any material in this behalf,
we ought not to proceed further and make any adverse
J.V.Salunke,PS
2-WPST.98637.2020
comment against the superior officers of the charged officer
and would allow the matter to rest here; but not without
recording that the disciplinary authority grossly erred in the
exercise of its jurisdiction by completely ignoring the binding
decision of the Supreme Court in Kunj Bihari Mishra
(supra).
16. The Tribunal has fortunately left it open to the
petitioners to proceed against the charged officer in
accordance with law although the charged officer has retired
on superannuation in the meanwhile. The charged officer not
having challenged this liberty granted by the Tribunal, the
petitioners cannot be worse off for approaching this Court. We
say no more on this aspect of the matter.
17. The result of the aforesaid discussion is that there is no
reason to interfere with the impugned judgment and order.
The same is upheld.
18. The writ petition is dismissed; however, without any
order as to costs.
19. In view of the aforesaid order, the interim application
seeking condonation of delay also stands dismissed.
Jayant V.
Salunke
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
Digitally signed by
Jayant V. Salunke
Date: 2021.03.10
11:05:28 +0530
J.V.Salunke,PS
