Bhagwat Prasad Joshi vs State Of Delhi And Anr.
2004 Latest Caselaw 89 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Rule 33 of the Conduct, Discipline and Appeal Rules, 1985, of the respondents reads as under :

"Rule 33 : Special procedure in certain cases--

Notwithstanding anything contained in Rule 28 or 29 or 30, the disciplinary authority may impose any of the penalties specified in Rule 26 in any of the following circumstances--

(i) the employee has been convicted on a criminal charge, or on the strength of facts of conclusions arrived at by a judicial trial; or

(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules; or

(iii) where the disciplinary authority is satisfied that in the interest of the security of the Corporation or State, it is not expedient to hold any inquiry in the manner provided in these rules."

2. It is, therefore, apparent that only under three contingencies can the procedure for imposition of penalty contained in Rules 28 to 30 be dispensed with. The three contingencies are: (a) Conviction on a criminal charge, (b) satisfaction of the disciplinary authority that it is not reasonably practicable to hold an inquiry in the manner provided by the rules, and (c) satisfaction of the disciplinary authority that in the interest and security of the Corporation or the State it is not expedient to hold the inquiry.

3. Petitioner was inflicted the penalty of dismissal by invoking Rule 33. The order of dismissal reads as under:

"WHEARAS Sh. B.P. Joshi, AG-III, E.G. 1166 posted at R.O.L. Seelampur, came to the Corporation's Headquarters at 7-9, Aram Bagh, Pahar Ganj, New Delhi at about 4.00 pm. on 2nd March, 2000 and forcefully entered in the chamber of Chairperson on the 3rd floor of the office building in a totally drunken state in the presence of her personal staff and the undersigned. He started shouting and uttering filthy language and making threatening gestures to the Chairperson and continued to do so for several minutes. He did not listen to the personal staff of the Chairperson to stop doing so. It was only after forceful physical pushing that Shri B.P. Joshi, AG-III could be taken out from the chamber of the Chairperson. He also tried to forcibly re-enter her room but was stopped from doing so by the staff members and other officers who had meanwhile gathered near the Chairperson's office.

Where a telephonic complaint was immediately made with the police (PCR). The police personnel arrived and they took Shri B.P. Joshi into their custody and removed him from the Corporation's premises. A written complaint was also lodged with P.S. Pahar Gaj enclosing a list of witnesses to the incident. Shri B.P. Joshi, AG-III was placed under suspension vide order No. Vig. 10(10)/2000-DSCSC/1354 dated 2.3.2000.

Whereas the records obtained from the P.S. Paharganj, reveal that Shri Joshi was got medically examined and the report confirmed that he was under influence of alcohol. A Kalandra under Sections 107/151, Cr.P.C. was registered against him stating the sequence of events, the misconduct of the accused, i.e. Shri. B.P. Joshi was under the influence of liquor and was uttering filthy languages -- abusing and threatening to kill. He was produced before the Special Executive Magistrate on 7.3.2000 where be pleaded guilty.

And, Whearas the above acts of Shri B.P. Joshi, AG-III is not only serious misconduct but also criminal. Pleading guilty before the Court is clearly admission of the charge. He is threat to sefety and security of the employees of the Corporation. He deserves maximum punishment.

And further whereas taking into consideration facts and circumstances of the case, I am of the view that it is a fit case where punishment of dismissal from services would be most appropriate.

Now, therefore, I.R.L. Srivastava being the disciplinary authority in exercise of the powers conferred under Rule 33 of the Conduct, Discipline and Appeal Rules, 1985 of the Corporation hereby impose a penalty of 'DISMISSAL' on Sh. B.P. Joshi, AG-III with immediate effect."

4. Appeal filed by the petitioner under Rule 35 stands dismissed on 24/ 29.5.2001.

5. Petitioner challenges the order of dismissal dated 30.3.2001.

6. Case of the petitioner is that neither justifiable grounds exist to invoke Rule 33 nor has there been any satisfaction recorded by the disciplinary authority as contemplated by Rule 33. It is further submitted that the order passed by the disciplinary authority ex facie shows that the alleged plea of guilt before the Executive Magistrate in proceedings under Sections 107/151, Cr.P.C. has been taken into account by the disciplinary authority. Ignoring the fact that the Executive Magistrate had wrongly recorded the said plea and petitioner had filed a revision petition before the Additional Sessions Judge. Indeed, on 4.7.2000 the learned Additional Sessions Judge was pleased to set aside the order passed by the Special Executive Magistrate on 7.3.2000 holding that the plea of guilt was wrongly recorded. Petitioner contends that on 30.3.2000, said revision petition before the Additional Sessions Judge was pending.

7. I need note the basis on which the order has been passed against the petitioner as the same stands recorded in the order dated 30.3.2000 noted above. It is apparent that the reason for inflicting the penalty of dismissal against the petitioner is his alleged unauthorized and forceful entry in a drunken state in the chamber of the Chairperson of the Corporation and his alleged acts of threatening her which required his forcible eviction, coupled with his alleged attempt to re-enter the room of the Chairperson.

8. Issue for consideration is not pertaining to the merits of the matter, as indeed, no inquiry was held. Issue relates only to the question whether Rule 33 was attracted, and if attracted has there been compliance with the said rule?

9. It is not a case of termination pursuant to conviction on a criminal charge. Sub-rule (i) of Rule 33 is therefore not attracted.

10. Order passed by the disciplinary authority nowhere records whether action is based on Sub-rule (ii) of Rule 33 or Sub-rule (iii) of Rule 33. Sub-rule (ii) requires satisfaction to be recorded with reasons in writing that it is not reasonably practicable to hold an inquiry. I do not find any such satisfaction recorded in the order dated 30.3.2000. Since it is not necessary that reasons be spelt out in the order, I had called for the original file to see whether any reasons were recorded therein. Indeed I find none. Order on the file reads as under:

"Shri B.P. Joshi, AG-III had entered forcibly into the chamber of Chairperson of the Corporation on 2.3.2000 in a totally drunken state when undersigned was also present. He uttered filthy language and made threatening gestures. He was forcibly taken out from Chairman's chamber.

I have gone through the Medical Report, Police Report and Magistrate Order dated 7.3.2000. The Medical Report clearly mentions that Sh. Joshi was under the influence of alcohol. He also admitted his guilt before the Magistrate.

In view of the above, this is fit case for imposing penalty under Section 33 of the Conduct, Discipline and Appeal Rules. Sh. Joshi has admitted the guilt and is threat to the security of the employees of Corporation.

Keeping in view all the facts of the case I being appointing and disciplinary authority impose penalty of dismissal from service with immediate effect upon Shri B.P. Joshi."

11. Sub-rule (iii) of Rule 33 could be attracted where the disciplinary authority recorded satisfaction that in the interest of the security of the Corporation or the State it is not expedient to hold an inquiry in the manner provided by the Rules. I do not find said satisfaction being recorded.

12. Learned Counsel for the respondent argued that in the order of dismissal it has been noted: "He is threat to safety and security of the employees of the Corporation. He deserves maximum punishment." The argument is neither here nor there as requirement of Sub-rule (iii) is recording of satisfaction that in the interest of the security of the Corporation it is not expedient to hold any inquiry and not that the acts complained of are a threat to safety and security of the employees of the Corporation. The acts committed by a delinquent officer may be threat to the safety and security of the employees but it is altogether a different thing that in the interest of the security of the Corporation it is not expedient to hold any inquiry. A judgment of the Supreme Court may safely be referred to. In , Workmen of Hindustan Steel Ltd. v. Hindustan Steel Ltd. It was held:

"4. ...Power to dispense with inquiry is conferred for a purpose and to effectuate the purpose power can be exercised. But power is hedged in with a condition of setting down reasons in writing why power is exercised. Obviously therefore the reasons which would permit exercise of power must be such as would clearly spell out that the inquiry if held would be counterproductive. The duty to specify by reasons for the satisfaction for holding that the inquiry was not reasonably practicable cannot be dispensed with. The reasons must be germane to the issue and would be subject to a limited judicial review. Undoubtedly Sub-article (3) of Article 311 provides that the decision of the authority in this behalf is final. This only means that the Court cannot inquire into adequacy or sufficiency of reasons. But if the reasons ex facie are not germane to the issue namely of dispensing with inquiry the Court in a petition for a writ of certiorari can always examine reasons ex facie and if they are not germane to the issue record a finding that the pre-requisite for exercise of power having not been satisfied, the exercise of power having not been satisfied, the exercise of power was bad or without jurisdiction. If the Court is satisfied that the reasons which prompted the concerned authority to record a finding that it was not reasonably practicable to hold the inquiry, obviously the satisfaction would be a veneer to dispense with the inquiry and the Court may reject the same. What is obligatory is to specify the reasons for the satisfaction of the authority that it was not reasonably practicable to hold such an inquiry. Once the reasons are specified which are certainly subject to limited judicial review as in a writ for certiorari, the Court would examine whether the reasons were germane to the issue respondent, were merely a cloak, device or a pretense to dispense with the inquiry and to impose the penalty. Let it not be forgotten what is laid down by a catena of decisions that where an order casts a stigma or affects livelihood, before making the order, principles of natural justice namely a reasonable opportunity to present one's case and controvert the adverse evidence must have full play. Thus even where the Constitution permits dispensing with the inquiry, a safeguard is introduced that the concerned authority must specify reasons for its decision why it was not reasonably practicable to hold the inquiry.

"5....Reasons for dispensing with the inquiry and reasons for not continuing to employ the workman stand wholly apart from each other".

13. The order passed by the disciplinary authority is therefore contrary to the rules and is liable to be set aside. Learned Counsel for the respondent contended that since the appellate order has not been challenged by the petitioner no relief should ensure to the petitioner. I may only note the judgment of the Constitution Bench of the Supreme Court reported as AIR 1958 SC 86, Stale of U.P. v. Mohd. Noor, where it was held that where the tribunal of first instance acts contrary to law, jurisdiction would be exercised to correct the error even if an appeal in another inferior tribunal was available.

14. Writ petition succeeds. Order of termination is set aside. It would however be open to the respondent to place the petitioner under suspension and take disciplinary proceedings against him after serving upon the petitioner a charge-sheet and holding inquiry as per rules. In the peculiar facts and circumstances of the case, there shall be no orders as to costs.