Shri S.D. Mishra vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 85 Del

JUDGMENT

Vipin Sanghi, J.

Page 0551

1. Shri S.D. Sharma, the petitioner was an inspector with the Central Bureau of Investigation (CBI for short). He was departmentally proceeded against and dismissed from service vide order dated 26th June, 2003. His departmental appeal was also dismissed on 9th July, 2003 and the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) has rejected his Original Application on 26th March, 2004. Petitioner assails all these orders in this writ petition.

2. Major Penalty proceedings under Rule 8 of the Delhi Special Police Establishment Act (Subordinate Ranks)(Discipline & Appeal Rules) 1961 were initiated against the petitioner in respect of 2 out of the 4 charges leveled against him. The articles of charge framed against the petitioner read as follows:

Article-I

That said Shri S.D. Mishra, while functioning as Inspector in C.B.I., MDMA, New Delhi during the period 1996, onwards failed to maintain absolute integrity and exhibited a conduct, unbecoming a Government Servant in as much as he accepted a loan of Rs. 1 lakh without intimation to the department vide Cheque No. 971220 of Canara Bank, Bahadurshah Zafar Marg from one M/s. Nishant Associations, which was credited in his account No. 9162, SBI, Jawahar Vyapar Bhawan.

Article-II

That Shri S.D. Mishra, while working as public servant failed to maintain absolute integrity and purchased cash receipts of more than Rs. 10,000/- on a single day from M/s. Kuber Finance (India) Ltd. Kuber Mutual Benefits Ltd. and Kuber Planters without intimation to the department.

Article-III

That Shri S.D. Mishra, while working as Inspector, CBI, conducted himself in a manner unbecoming of a government servant and was found in possession of letter pads of senior CBI officer (Shri D.R. Karthikeyan, the then Joint Director, CBI).

Article-IV

That Shri S.D. Mishra, while working as public servant, was found in possession of visiting cards showing himself as Sr. Inspector of Police though there is no such rank/post in CBI, for the purpose of misusing the same, and thus conducted himself in a manner, unbecoming of a government servant.

That said Shri S.D. Mishra failed to maintain absolute integrity and conducted himself in a manner unbecoming of a government servant and thereby, violated the provisions of (i) & (iii) of Rule 3 of the CCS (Conduct) Rules, 1964.

3. Petitioner admitted the first and the fourth charge and tried to explain his position with regard to these charges while denying charge numbers (II) & (III) on which the departmental proceedings were held. The Inquiry Officer held these charges to be proved. The disciplinary authority, after Page 0552 issuing a notice dated 23rd May, 2003 proposing to impose the penalty of "dismissal from service which shall ordinarily be disqualification for future employment" considered the response of the petitioner and imposed the punishment as proposed.

4. The departmental appeal preferred by the petitioner was rejected by the appellate authority on 9th July, 2003. Petitioner challenged these two orders before the Tribunal by filing O.A. No. 1931/2003. Petitioner raised a ground of non-supply of certain documents. He also challenged the validity of the rules under which he was proceeded against and pleaded that the penalty imposed on him was disproportionate to the misconduct. The misconduct according to him could have attracted a minor penalty since there was no charge of corruption leveled against him.

5. The Tribunal by the impugned order dismissed the Original Application after noticing the various decisions rendered by the Supreme Court from time to time on the aspect of dis-proportionality of punishment and the scope of the judicial review of an order of punishment on the ground of its being disproportionate.

6. Before us, the argument of the petitioner firstly is that the disciplinary authority while imposing the extreme penalty of dismissal from service, had taken into consideration the past adverse record and punishments inflicted upon him, even though such past records and punishments had not been made a part of the charge-sheet itself. He submits that the petitioner was prevented from responding to the said material relied upon by the disciplinary authority. He alleges denial of fair opportunity and breach of principles of natural justice in the procedure adopted by the disciplinary authority. This argument has been made in the context of O.M. bearing No. 134/20/68-AVD dated 28th August, 1968 issued by the Ministry of Home Affairs, paragraph 2 whereof is extracted in the writ petition and it reads as follows:

(2) Not appropriate to bring in past bad record in deciding the penalty, unless it is made the subject-matter of specific charge in the chargesheet itself.

A question has arisen whether past bad record of service of an officer can be taken into account in deciding the penalty to be imposed on the officer in disciplinary proceedings, and whether the fact that such record has been taken into account should be mentioned in the order imposing the penalty. This has been examined in consultation with the Ministry of Law. It is considered that if previous bad record, punishment, etc., of an officer is proposed to be taken into consideration in determining the penalty to be imposed, it should be made a specific charge in the charge sheet itself, otherwise any mention of the past bad record in the order of penalty unwittingly or in a routine manner, when this had not been mentioned in the charge sheet, would vitiate the proceedings, and so should be eschewed.

7. We may notice that no such ground was taken by the petitioner either before the appellate authority or before the Tribunal in the Original Application. Petitioner states that this ground was argued before the Tribunal but the same is not reflected in the impugned order. Be that as it may, since the issue raised is legal in character, and does not require any further specific Page 0553 facts to be pleaded, and can be dealt with on the basis of existing records, we allowed the petitioner to raise the said plea for the first time before us and we propose to deal with the same. The respondents have also addressed us on this issue.

8. Though at first blush the argument of the petitioner seems attractive, on a closer scrutiny of the facts of this case, in the light of the law expounded by the Courts, we feel that the contention of the petitioner must fail.

9. Before proceeding further, we may notice the judicial pronouncements on this aspect of the law. In State of Mysore v. Manchi Gowda , the respondent was proceeded against departmentally and the Inquiry Officer recommended the punishment of reduction of rank. The Government, however, considered that the respondent deserves the higher punishment of dismissal from service and issued a show cause notice to him as to why he should not be dismissed from service. After considering the reply of the respondent, the Government passed an order dismissing him from service. The reason given for his dismissal was that the respondent had on two earlier occasions committed certain offences and he had been punished for the same. However, those facts were not given as reasons for the proposed punishment. The High Court quashed the order of dismissal on the ground that the two circumstances on which Government had relied for the proposed infliction of punishment of dismissal were not put to the respondent for being explained by him in the show cause notice issued to him. In appeal before the Hon'ble Supreme Court, it was contended by the Government that they were entitled to take into consideration the previous records of the Government servant in awarding punishment to him and that it was not incumbent on it to bring to the notice of the Government Servant the said fact in the second notice. It was also contended that, since the Government Servant had knowledge of his earlier two punishments, he was not in any way prejudiced by their non-disclosure in the second notice issued under Article 311(2) of the Constitution of India.

10. The Hon'ble Supreme Court rejected the appeal of the Government holding that it was incumbent upon the Government to give to its servants, at the second stage, a reasonable opportunity to show cause against the proposed punishment, and if the punishment was also based on his previous punishments or his previous bad record, that should have been included in the second notice so that he could give his explanation for the same. The relevant observations of the Supreme Court in the said case reads as follows:

...If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the Page 0554 knowledge of the Government servant.... We therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation. The Supreme Court further held:

... a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendation of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Article 311(2) of the Constitution as interpreted by Court.

11. In Manchi Gowda's case, Supreme Court found that the order of punishment was mainly based on the previous record of the respondent.

12. Madhya Pradesh, High Court had occasion to examine the same issue in Nathuram Dansena v. State of M.P. (DB). In that case, the departmental inquiry held the charges against the delinquent employee proved. The disciplinary authority issued a show cause notice requiring the delinquent to show cause as to why he should not be dismissed from services. The disciplinary authority was not convinced with the explanation and accordingly dismissed the delinquent from service. The order of dismissal was challenged on a similar ground as in the present case. Madhya Pradesh High Court analysed the case of Manchi Gowda (supra) relied upon by the delinquent petitioner therein. The relevant extract from the decision of Madhya Pradesh High Court reads as follows:

(6) The decision of the Supreme Court must be read in the context of the facts of the case before the Court and keeping in view what has been said in the case of Quinn v. Leathem 1901 AC 495 that a case is only an authority for what it actually decides and not for what would seem to flow from it. There is nothing in the judgment of the Supreme Court which would go to show that in Manche Gowda's case, it laid down the broad proposition contended for by the learned Counsel for the petitioner, namely that whenever there is a reference to the previous or past record of the delinquent servant in the order of the competent authority inflicting punishment on him, then the order would be vitiated if by the notice to show cause issued to the civil servant concerned he was not intimated that his past record would be taken into consideration for determining the quantum of punishment and if in the notice the past record was not disclosed.

The decision in Manche Gowda's case only lays down the proposition that if the punishment awarded is based not on the gravity of the charges Page 0555 found to be proved but mainly upon the previous record of the Government servant concerned, then it is incumbent upon the authority to give to the civil servant at the second stage a reasonable opportunity to show cause against the proposed punishment by disclosing in the notice the past record of the servant and intimating him that it would be taken into consideration while determining the punishment to be awarded to him.

It is true that in the last paragraph of the impugned order, the Divisional Forest Officer observed that the previous record of the petitioner indicated that the applicant was unreliable and a shirker and was not well thought of by the Range Officers. But if the impugned order is read as a whole, it is plain that the penalty of dismissal from service inflicted on the petitioner was based on the gravity of the charges proved against him and not his previous record. There is no room in the present case whatsoever for thinking that but for his previous record the Divisional Forest Officer would not have imposed the penalty of dismissal on him. The reference by the Divisional Forest Officer in the impugned order to the previous record of the petitioner was for the purpose of pointing out that there were no extenuating circumstances justifying the award of a lesser penalty. It was not for the purpose of justifying a higher penalty than that warranted by the nature and gravity of the charges proved against the petitioner.

13. We find ourselves in agreement with the view of the Madhya Pradesh High Court. The mere reference to the past record or punishments in the order of penalty would not by itself vitiate the said order, on the ground that the past record or punishments had not been made a part of the charge sheet. It would be necessary to examine the order of penalty in the light of all the facts and circumstances of the case, and to ascertain whether the past adverse/bad record and punishments are mainly responsible for the impositions of penalty as imposed upon the charged employee. Only if it appears that the order of punishment was mainly based upon the past records or punishments, i.e. the Disciplinary Authority was deeply influenced by it and notice of the same is not given to the charged officer, could it be said that the punishment order is in violation of the principles of natural justice. We would now proceed to examine whether the order of dismissal in this case could be said to be mainly based on the past bad record and punishments suffered by the petitioner.

14. After the report of the Inquiry Officer was received proving all the charges against the petitioner, the show cause notice issued to the petitioner itself proposed the imposition of the penalty of "dismissal from service which shall ordinarily be disqualification for future employment". This show cause notice did not make any reference to the adverse past record or earlier punishment inflicted upon the petitioner and this proposal was based entirely upon the 4 charges leveled against the petitioner vide memorandum dated 20th November, 2001. This proposal was based on the prima facie opinion of the disciplinary authority that the misconduct of the petitioner was grave and that he had not maintained absolute integrity and that it amounted to conduct "unbecoming of a Government Servant" in violation of the Rule 3(1)(i) & (iii) of the CCS (Conduct) Rules, 1964.

Page 0556

15. Paragraph 6 of this notice being relevant is reproduced here-in-below:

6. I have gone through the Inquiry Report dated 30.4.03 of Shri M.S. Khan, Dy. SP along with its enclosure and I am in agreement with the findings of the Inquiry Officer. Considering the seriousness of all the four articles of charge framed and proved against Sh. S.D. Mishra and looking into the evidence brought on record and discussed in detail by the Inquiry Officer in the Inquiry Report dated 30.4.03 as well as taking into consideration the sensitive position held by Shri S.D. Mishra being a member of CBI, a department meant for eradicating corruption in the public life, I am of the considered opinion that Shri S.D. Mishra has committed grave misconduct by not maintaining absolute integrity. Further the grave misconduct committed by Shri S.D. Mishra amounts to "unbecoming of a Government Servant" and is in violation of Rule 3(1)(i) & (iii) of the CCS (Conduct) Rules, 1964. Keeping in view the seriousness of the grave misconduct committed by Shri S.D. Mishra, the undersigned being the competent and disciplinary authority proposes to impose the penalty of "dismissal from service which shall ordinarily be disqualification for future employment" on Shri S.D. Mishra, Inspector, CBI, SCB, Kolkata is, therefore, directed that in case he wishes he could make representation, if any, against the imposition of the proposed penalty within 7 days from the receipt of this notice failing which it shall be presumed that Shri S.D. Mishra has nothing to say about the penalty proposed to be imposed. In case Shri Mishra wants to have personal hearing, he is permitted to appear before the undersigned on any working day within a period of 7 days of the receipt of this notice.

16. With the issuance of their Show Cause Notice, the misconduct of the petitioner stood established as being grave and serious, amounting to conduct unbecoming of an officer. Thereafter, Petitioner sent his representation dated 3rd June, 2003. Apart from other submissions in the last paragraph, he submitted "at last I would once again request your good self that keeping into consideration my innocence as well as my length of 38 years of service in this organization as well as my verge of retirement in the next year, a lenient view may kindly be taken in my favor which would meet the end of justice at this juncture and for which I shall feel highly obliged".

17. After considering the matter, including the representation of the petitioner, the disciplinary authority imposed the aforesaid penalty of dismissal with immediate effect. After narrating the Articles of charge and the findings of the departmental inquiry, the disciplinary authority in paragraph 8 of his order stated as follows:

8. I have gone through the Inquiry Report dated 30.4.03 of Shri M.S. Khan, Dy. SP along with its enclosure and I am in agreement with the findings of the Inquiry Officer. Considering the seriousness of all the four articles of charge framed and proved against Sh. S.D. Mishra and looking into the evidence brought on record and discussed in detail by the Inquiry Officer in the Inquiry Report dated 30.4.03 as well as taking into consideration the sensitive position held by Shri S.D. Mishra being a member of CBI, a department meant for eradicating Page 0557 corruption in the public life, I am of the considered opinion that Shri S.D. Mishra has committed grave misconduct by not maintaining absolute integrity. Further the grave misconduct committed by Shri S.D. Mishra amounts to "unbecoming of a Government Servant" and is in violation of Rule 3(1)(i) &(iii) of the CCS (Conduct) Rules, 1964.

18. In the end of his detailed order, the disciplinary authority records as follows:

14. That it is also evident from the Personal File of Shri S.D. Mishra that inspite of taking the lenient view by the competent authority on earlier occasion with regard to the misconduct committed by him for which he was dealt with departmentally and penalised, Shri S.D. Mishra instead of mending his ways indulged in the commission of graver misconduct amounting to unbecoming of a Govt. Servant. Being the member of the premier investigating agency meant for eradicating of the corruption in public life, Shri Mishra was found indulged in the undesirable activities which amounted to unbecoming of a Govt. Servant.

15. Thus, Shri S.D. Mishra, by his aforesaid misconduct failed to maintain absolute integrity and also committed an act amounting to unbecoming of a Government Servant in violation of Rule 3(1)(i) & (iii) of CCS (Conduct) Rules, 1964.

16. That no doubt Shri S.D. Mishra is superannuating next year but his past record as well as the misconduct committed is grave and speak of his proclivity of unbecoming of an officer that the lenient view, if taken, would amount to clear favoritism to him and send a wrong signal to the other members of the Organisation where maintaining of 'absolute integrity' is the main moto that whatever wrong they would do, could come out unnoticed.

17. That considering the entire facts and circumstances of the case and the admission of charge No. (i) & (iv) by Shri S.D. Mishra as well as proving of Charge No. (ii) and (iii) by the Inquiry Officer during the inquiry, I am of the considered view that Shri S.D. Mishra does not deserve any leniency. All the charges are proved. I, therefore, hold Shri S.D. Mishra guilty for committing the grave misconduct for failing to maintain absolute integrity and further his misconduct amounts to unbecoming of a Government Servant in violation of Rule 3(1)(i) & (iii) of CCS (Conduct) Rules, 1964.

18. Keeping in view the entire circumstances of the case as well as establishing of all the charges against Shri S.D. Mishra by the Inquiry Officer in his Inquiry Report dated 30.04.03, I being the competent and disciplinary authority imposed the penalty of "dismissal from service which shall ordinarily be disqualification for future employment" on Shri S.D. Mishra with immediate effect.

19. It is clear that the disciplinary authority passed the penalty order on his conclusion that the petitioner had committed grave misconduct by not maintaining absolute integrity and that conduct amounted to "unbecoming of a Government Servant". The misconducts under reference are those contained in the memorandum dated 20th November, 2001.

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20. The first admitted charge relates to his acceptance of a loan of Rs. 1 lakh without intimation to the department. The second relates to creation of Deposits/purchase of Receipts of over Rs. 10,000/- on a single day. The Enquiry Officer found that on four occasions the petitioner had purchased receipts of over Rs. 10,000/-, (aggregating to Rs. 85,000/-) without disclosing the same to the Respondent. These purchases were made in the joint names of the petitioner and his relatives. The claim of the petitioner that "S.D. Mishra" mentioned on the receipts was a cousin of his from Ambala was not proved by the petitioner and therefore not accepted by the respondent Authorities. The third charge relates to possession of a large number of letter heads of the then Joint Director Shri. D.B. Karthikeyan. These were recovered from the left hand side drawer of the petitioners table situated in his office room situated at Vigyan Bhawan Annexe Building on 30.5.2000 during a raid conducted in pursuance of investigation of a FIR registered against him. The Fourth admitted charge was the recovery of visiting cards from the petitioner showing himself as "Sr. Inspector", when in fact, no such post exists in CBI.

21. All these misconducts are indeed grave and serious and impinge on the absolute integrity of the petitioner who was a senior officer of a premier intelligence agency of the country. Such officers can legitimately be expected to maintain higher standards of transparency and probity, and deviation of conduct in their cases ought to be viewed with greater concern.

22. In Government of Andhra Pradesh and Ors. v. Mohd. Nasrullah Khan , while dealing with the case of a Head Constable in the police force, who was charged with theft, the Hon'ble Supreme Court held as follows:

Learned Counsel for the respondent contended that the offence, said to have been committed, being minor in nature and no loss being caused to the owner of the property, inasmuch as the same had been recovered on the spot, lenient punishment may be awarded in place of dismissal from service. We are unable to countenance this submission. The gravity of the offence must necessarily be measured with the nature of the offence. The respondent was a member of a disciplined force holding the rank of Head Constable.... We entirely agree with the inquiry officer that the charges are serious in nature, being committed by a member of a disciplined force, who deserved stringent punishment. To instil the confidence of the public in the establishment, the only appropriate punishment in such cases is dismissal from service, which has been correctly awarded.

Reference is also invited to State of Punjab v. Ram Singh Ex. Constable .

23. The conduct of the petitioner reflects upon his propensity to misuse his office and position, and to project himself as an officer holding a still higher Page 0559 rank than he actually holds. He had no business to keep the letter heads of the then Joint Director of CBI or to get printed visiting cards showing himself to be a "Sr. Inspector". The purpose could possibly be to misuse them. The non-disclosure of the loan of Rs. 1 lakh taken by him, and the investments repeatedly made by him aggregating to Rs. 85,000/- on 4 occasions within a span of about 1 year between January 1996 and January 1997 cannot be said to be unintentional or innocent. This is a grave misconduct demonstrating lack of absolute integrity and conduct that is unbecoming of a Government Servant. The plea of the petitioner that each of these misconducts were minor or trivial and could, at best attract minor penalty is therefore rejected.

24. In our view, it cannot be said that the disciplinary authority based his decision to dismiss the petitioner from service mainly upon the previous record of the petitioner. In fact, it is clear from the show cause notice issued to the petitioner, as also the order of penalty that the order of dismissal rests entirely upon the misconduct committed by the petitioner for which he was issued the memorandum dated 20th November, 2001. Reference to the earlier bad record/punishments imposed upon the petitioner is primarily to reject the petitioners' plea that he be dealt with leniently in the last year of his service. It cannot be said that the order of punishment was based on the previous adverse record and punishments inflicted upon the petitioner.

25. The petitioner then contended that the punishment imposed upon him is disproportionate. We have already touched upon this aspect earlier. In our view the punishment cannot be said to be such as to shock our conscience and one which calls for interference by us in our discretionary jurisdiction. In fact, we feel the same is commensurate with the misconduct of the petitioner. The Tribunal has discussed this aspect and rejected the contention in the light of various judgments of the Hon'ble Supreme Court. We may only notice one more decision of the Hon'ble Supreme Court in this regard reported as C.M.D. United Commercial Bank v. P.C. Kakkar .

26. We see no merit in the present petition and accordingly dismiss the same, leaving the parties to bear their respective costs.