Delhi High Court
Birbal Mahey vs U.O.I & Ors on 10 March, 2010
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DATE OF DECISION : MARCH 10, 2010
+ W.P.(C) 6342 OF 2007
BIRBAL MAHEY ..... Petitioner
Through: Mr. H.S. Dahiya, Advocate
versus
U.O.I & ORS ..... Respondent
Through: Ms. Maneesha Dhir and Ms. Geeta
Sharma, Advocates
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment? : No
2. To be referred to Reporter or not? : Yes
3. Whether the judgment should be reported
in the Digest? : Yes
VIPIN SANGHI, J (Oral)
%
1. The petitioner has filed the present writ petition under Article
226 of the Constitution of India to challenge the charge memorandum
issued to him by letter no.3752 dated 18.08.2004; the order of
punishment contained in order No.4369 dated 25.10.2005 issued by
the Deputy Inspector General of Police, Department of Space, CISF
W.P.(C) No.6342/2007 Page 1 of 17
withholding one increment for one year, which will not have effect of
postponing future increments of pay; the appellate order passed by
the IG, Southern Sector dated 13.02.2006 and the revisional order
passed by the Director General on 10.10.2006, whereby his
departmental appeal and revision were also rejected and the aforesaid
minor penalty was confirmed.
2. The petitioner, who is serving as Inspector in the Central
Industrial Security Force (CISF), was issued a charge sheet vide
memorandum dated 18.08.2004, wherein three Articles of Charge were
framed against him. These Articles of Charge read as follows:-
Article of charge-I
"An act of gross indiscipline, misconduct and disobedience
of lawful orders of superiors on the part of No. 882210035
Insp/Exe Birbal Mahey of CISF Unit PTPP Parichha in that on
1.3.2004 while he was posted at CISF Unit NFL Bathinda he
refused to conduct the Preliminary Enquiry on the incident
in which Constable Dharminder Singh made an attempt to
assault Insp/Exe Sewa Ram of CISF Unit NFL Bathinda on
01.03.2004 at about 1120 hrs under the influence of liquor.
Hence the charge."
Article of charge-II
"An act of gross indiscipline, misconduct and disobedience
of lawful orders of superiors on the part of No.882210035
W.P.(C) No.6342/2007 Page 2 of 17
Insp/Exe Birbal Mahey of CISF Unit PTPP Parichha in that
while he was posted at CISF Unit NFL Bathinda he
deliberately avoided service of suspension order No. (452)
dated 1.3.2004 and attachment order No. (502) dated
4.3.2004 to Constable Dharminder Singh of CISF Unit NFL
Bathinda. Hence the charge."
Article of charge-III
"An act of gross indiscipline, misconduct and disobedience
of lawful orders of superiors on the part of No.882210035
Insp/Exe Birbal Mahey of CISF Unit PTPP Parichha in that
while he was posted at CISF Unit NFL Bathinda on 2.3.2004
he refused to carry out the orders of Unit Commander to
repair/replace the LPG Gas Pipe of the unit mess. Hence
the charge."
3. The petitioner denied these charges. A departmental enquiry
followed. The enquiry officer exonerated the petitioner of all the
charges. The Disciplinary Authority before whom the enquiry report
was placed, thereafter issued an order dated 14.07.2005. By this
order, it was communicated by the Disciplinary Authority that he
agreed with the findings of the enquiry officer in relation to the 2nd and
3rd Articles of Charge, as aforesaid. However, the finding of the enquiry
officer exonerating the petitioner of Article of Charge No.1 was not
agreed to. The Disciplinary Authority set out its reasons for not
W.P.(C) No.6342/2007 Page 3 of 17
agreeing with the findings of the enquiry officer in regard to Article of
Charge No.1. In paragraph 3 of this order, the Disciplinary Authority
stated as follows:
"3. In view of the above, I hold you guilty of
Article of Charge-I. If you wish to submit your
representation, if any, against this
communication, you may do so within 15 days
from the date of receipt."
4. In response to the aforesaid order, the petitioner gave his
detailed representation dated 09.08.2005. The Disciplinary Authority,
thereafter, passed the impugned order dated 25.10.2005 imposing the
aforesaid minor penalty on the petitioner. As aforesaid, his
departmental appeal and revision have also been rejected.
5. The petitioner has challenged the impugned orders on various
grounds. It is contended that there is absolutely no evidence to
support any of the charges including Charge No.1, on the basis of
which he has been penalized. He further submits that his various
submissions made in his representation dated 09.08.2005 before the
Disciplinary Authority were not considered, while passing the
impugned order dated 25.10.2005.
6. We have heard learned counsel for the parties, and in our view,
the impugned orders cannot be sustained for the simple reason that
W.P.(C) No.6342/2007 Page 4 of 17
while issuing the disagreement note dated 14.07.2005, the Disciplinary
Authority had evidently already made up his mind with regard to the
guilt of the petitioner on the first Article of Charge. This is evident
from paragraph 3 of the said order, which has been reproduced herein
above.
7. Learned counsel for the respondent submits that it is only the
language used in the order dated 14.07.2005 which was inappropriate.
She submits that, in fact, the Disciplinary Authority did give the
petitioner an opportunity to represent in the matter and even afforded
a personal hearing to him. It was only thereafter, that the impugned
order dated 25.10.2005 imposing minor penalty was passed.
8. We cannot accept the aforesaid submission of the learned
counsel for the respondents. We may refer to two decisions of the
Supreme Court in this regard. In Punjab National Bank & Others v.
Kunj Behari Misra, (1998) 7 SCC 84, the Supreme Court held as
follows:
"18. Under Regulation 6, the inquiry
proceedings can be conducted either by an
inquiry officer or by the disciplinary authority
itself. When the inquiry is conducted by the
inquiry officer, his report is not final or
conclusive and the disciplinary proceedings do
not stand concluded. The disciplinary
proceedings stand concluded with decision of
W.P.(C) No.6342/2007 Page 5 of 17
the disciplinary authority. It is the disciplinary
authority which can impose the penalty and
not the inquiry officer. Where the disciplinary
authority itself holds an inquiry, an opportunity
of hearing has to be granted by him. When the
disciplinary authority differs with the view of
the inquiry officer and proposes to come to a
different conclusion, there is no reason as to
why an opportunity of hearing should not be
granted. It will be most unfair and
iniquitous that where the charged officers
succeed before the inquiry officer, they
are deprived of representing to the
disciplinary authority before that
authority differs with the inquiry officer's
report and, while recording a finding of
guilt, imposes punishment on the officer.
In our opinion, in any such situation, the
charged officer must have an opportunity
to represent before the disciplinary
authority before final findings on the
charges are recorded and punishment
imposed. This is required to be done as a
part of the first stage of inquiry as
explained in Karunakar's case (supra).
(Emphasis supplied)
19. The result of the aforesaid discussion
would be that the principles of natural
justice have to be read into Regulation
7(2). As a result thereof, whenever the
disciplinary authority disagrees with the
inquiry authority on any article of charge,
then before it records its own findings on
such charge, it must record its tentative
reasons for such disagreement and give
to the delinquent officer an opportunity
to represent before it records its findings.
The report of the inquiry officer containing its
findings will have to be conveyed and the
delinquent officer will have an opportunity to
persuade the disciplinary authority to accept
the favourable conclusion of the inquiry officer.
The principles of natural justice, as we
W.P.(C) No.6342/2007 Page 6 of 17
have already observed, require the
authority, which has to take a final
decision and can impose a penalty, to
give an opportunity to the officer charged
of misconduct to file a representation
before the disciplinary authority records
its findings on the charges framed
against the officer." (Emphasis supplied)
9. The second decision relevant in the subject is Yoginath D.
Bagde v. State of Mahrashtra & Anr., AIR 1999 SC 3734, wherein
it held as follows:
"28. In view of the provisions contained in the
statutory Rule extracted above, it is open to
the Disciplinary Authority either to agree with
the findings recorded by the Inquiring Authority
or disagree with those findings. If it does not
agree with the findings of the enquiring
authority, it may record its own findings. Where
the enquiring authority has found the
delinquent officer guilty of the charges framed
against him and the disciplinary authority
agrees with those findings, there would arise
no difficulty. So also, if the enquiring authority
has held the charges proved, but the
disciplinary authority disagrees and records a
finding that the charges were not established,
there would arise no difficulty. Difficulties
have arisen in all those cases in which the
enquiring authority has recorded a
positive finding that the charges were not
established and the delinquent officer
was recommended to be exonerated, but
the disciplinary authority disagreed with
those findings and recorded its own
findings that the charges were
established and the delinquent officer
was liable to be punished. This difficulty
relates to the question of giving an
W.P.(C) No.6342/2007 Page 7 of 17
opportunity of hearing to the delinquent
officer at that stage. Such an opportunity
may either be provided specifically by the
rules made under Article 309 of the
Constitution or the disciplinary authority
may, of its own, provide such an
opportunity. Where the Rules are in this
regard silent and the disciplinary
authority also does not give an
opportunity of hearing to the delinquent
officer and records findings different from
those of the enquiring authority that the
charges were established, "an
opportunity of hearing" may have to be
read into the Rule by which the procedure
for dealing with the enquiring authority's
report is provided principally because it
would be contrary to the principles of
natural justice if a delinquent officer, who
has already been held to be "not guilty"
by the enquiring authority, is found
"guilty" without being afforded an
opportunity of hearing on the basis of the
same evidence and material on which a
finding of "not guilty" has already been
recorded. (Emphasis supplied)
.........
.........
.........
34. Along with the show-cause notice, a copy
of the findings recorded by the enquiry officer
as also the reasons recorded by the
Disciplinary Committee for disagreeing with
those findings were communicated to the
appellant but it was immaterial as he was
required to show cause only against the
punishment proposed by the Disciplinary
Committee which had already taken a final
decision that the charges against the appellant
were proved. It was not indicated to him
that the Disciplinary Committee had come
only to a "tentative" decision and that he
could show cause against that too. It was
for this reason that the reply submitted
by the appellant failed to find favour with
the Disciplinary Committee." (Emphasis
supplied)
10. Reliance placed by the learned counsel for the respondent on the
decisions in State of Rajasthan v. M.C. Saxena, (1998) 3 SCC
385; State Bank of India, Bhopal v. S.S. Koshal 1994 Supp (2)
SCC 468; and High Court of Judicature at Bombay v. Shashikant
S. Patil (2000) 1 SCC 416, in our view, is misplaced. The decisions
in State of Rajasthan v. M.C. Saxena (supra) and State Bank of
India, Bhopal v. S.S. Koshal (supra) already stand expressly
overruled in Punjab National Bank v. Kunj Behari Misra (supra).
It is unfortunate that they have been cited before us. So far as the last
decision cited by learned counsel for the respondent is concerned, the
same does not deal with the issue at hand.
11. In High Court of Judicature at Bombay V. Sashikant S.
Patil & Anr (supra), the respondent judicial officer was exonerated
by the inquiry officer of the charges leveled against him. Thereafter,
the respondent was visited with the penalty of compulsory retirement
by the Governor on the recommendation of the High Court. On the
judicial side, when the said penalty was challenged by the respondent,
a Division Bench of the Bombay High Court quashed the penalty
primarily on the ground that the Disciplinary Committee of the High
Court had not put forward adequate reasons for differing with the
findings of the enquiry officer. The Supreme Court held that the
approach of the Division Bench of the High Court was erroneous in as
much as, the Division Bench had acted as if it was hearing an appeal
against the order of the administrative/Disciplinary Committee of the
High Court. The Supreme Court reiterated the scope of the
proceedings under Article 226 of the Constitution of India while
scrutinizing the validity of disciplinary proceedings.
12. From a reading of the judgment, it is clear that the Disciplinary
Committee of the High Court had first issued a show cause notice to
the respondent and thereafter held the charges to be proved against
him. That is not the position in the present case. As noticed above,
the Disciplinary Authority while disagreeing with the findings of the
enquiry officer gave his conclusive finding holding the petitioner guilty
of the first Article of Charge.
13. The decisions relied upon by the petitioner lay down the legal
position that in case the Disciplinary Authority disagrees with the
findings of the enquiry officer, it must communicate its tentative
opinion for such disagreement to the delinquent employee and grant
him a right to represent and to meet the reasons that the Disciplinary
Authority has conveyed for his tentative opinion. It is only after
considering the representation, if any, and the personal hearing, if any,
granted to the delinquent, that the Disciplinary Authority is expected
to arrive at his conclusive finding one way or another. However, a
perusal of the disagreement note shows that the Disciplinary Authority
had, in fact, held the petitioner guilty of Charge No.1 even before the
said note was issued to the petitioner. It is, therefore, clear to us that
the procedure adopted by the Disciplinary Authority of requiring the
petitioner to submit his representation and to grant him a hearing was
an empty formality.
14. Reliance placed by the learned counsel for the respondent on
Rule 36 (21), of the CISF Rules, 2001 in our view, is of no avail. The
said Rule merely empowers the Disciplinary Authority to disagree with
the findings of the enquiry officer. However, even under the said Rule
the Disciplinary Authority is required to record its reasons for such
disagreement, and to record its own findings on such charge if the
evidence on record is sufficient for the purpose. He is also required to
forward a copy of the enquiry report together with the reasons for
disagreement, if any, and the record of his own findings on the Articles
of Charge to the enrolled members of the force, who is then permitted
to submit a written representation to the Disciplinary Authority. The
said Rule does not permit the Disciplinary Authority to arrive at its
conclusive finding on the guilt of the enrolled members of the force
before granting an opportunity to represent to him. As held by the
Supreme Court in Punjab National Bank v. Kunj Behari Misra
(supra) and Yoginath D. Bagde v. State of Mahrashtra & Anr.
(supra), principles of natural justice in the form of granting an
opportunity to the delinquent has to be read into the Rules.
15. We also do not find any merit in the submission of the
respondents that the petitioner was, as a matter of fact, given the right
to submit his representation and was also granted personal hearing
before imposing the penalty upon him, and therefore, there was no
illegality in the issuance of the order dated 14.07.2005. The Supreme
Court rejected a similar argument advanced before it in Yoginath D.
Bagde v. State of Mahrashtra & Anr. (supra). We may reproduce
paragraphs 38 and 39 from the said decision, which read as follows:
"36. Mr. Harish N. Salve, learned Senior
Counsel appearing on behalf of the respondent
has contended that the disciplinary
proceedings come to an end either when the
delinquent is exonerated of the charges or
when punishment is inflicted upon him on
charges being proved. Since in the instant
case, the Disciplinary Committee had given an
opportunity of hearing to the appellant before
finally recommending to the State Government
to dismiss him from service, the principles of
natural justice were fully complied with and
that too at a stage earlier than the stage when
the curtain was finally brought down on the
proceedings. He contended that not only the
findings recorded by the enquiry officer but the
reasons for which the Disciplinary Committee
had not agreed with those findings, were
communicated to the appellant to whom a
notice was also issued to show-cause why he
be not dismissed from service. He further
contended that the appellant submitted a reply
in which he attacked the reasons for which the
Disciplinary Committee had decided to
disagree with the findings of the enquiry officer
and, therefore, in the given circumstances of
this case, it cannot be said that there was
failure or denial of opportunity at any stage.
37. The contention apparently appears to be
sound but a little attention would reveal that it
sounds like the reverberations from an empty
vessel. What is ignored by the learned
Counsel is that a final decision with
regard to the charges leveled against the
appellant had already been taken by the
Disciplinary Committee without providing
any opportunity of hearing to him. After
having taken that decision, the members
of the Disciplinary Committee merely
issued a notice to the appellant to show
cause against the major punishment of
dismissal mentioned in Rule 5 of the
Maharashtra Civil Services (Discipline and
Appeal) Rules, 1979. This procedure was
contrary to the law laid down by this
Court in the case of Punjab National Bank
(1998 AIR SCW 2762: AIR 1998 SC 2713:
1998 Lab IC 3012: 1998 All LJ 2009)
(supra) in which it had been categorically
provided, following earlier decisions, that
if the disciplinary authority does not
agree with the findings of the enquiry
officer that the charges are not proved, it
has to provide, at that stage, an
opportunity of hearing to the delinquent
so that there may still be some room left
for convincing the disciplinary authority
that the findings already recorded by the
enquiry officer were just and proper.
Post-decisional opportunity of hearing,
though available in certain cases, will be
of no avail, at least, in the circumstances
of the present case."
16. We are conscious that in Yoginath D. Bagde v. State of
Mahrashtra & Anr. (supra), the notice had been issued to grant an
opportunity to the petitioner to show cause against the penalty
proposed to be imposed by the respondent, whereas, in the present
case the order dated 14.07.2005 was issued to convey the reasons for
disagreement with the findings of the enquiry officer in respect of the
first Article of Charge, i.e. before the passing of the impugned order
dated 25.10.2005 by the Disciplinary Authority. However, in our view,
this difference is not material since in the present case as well, the
Disciplinary Authority has made up his mind with regard to the guilt of
the petitioner even before passing the said order dated 14.07.2005.
The Disciplinary Authority while issuing the order dated 14.07.2005
consciously used the words to the effect "In view of the above, I hold
you guilty of Article of Charge-I". In our view, the aforesaid
observation is clear and categorical, and there is no ambiguity about
what the Disciplinary Authority desired to convey when he used the
aforesaid language.
George Bernard Shaw has said "Words are only postage stamps
delivering the object for you to unwrap."
Plutarch stated that "In words are seen the state of mind and
character and disposition of the speaker."
17. In our view, there is no warrant for us to ignore the express
words used by the Disciplinary Authority in the order dated 14.07.2005
and to accept the oral explanation of the respondents. The
Disciplinary Authority who issued the order dated 14.07.2005 is not a
subordinate or clerical employee. He is holding the rank of a Deputy
Inspector General and there is no reason for us not to attribute to him
the knowledge of English language. He can safely be assumed to be
conscious of the words used by him in his said order and to have used
the said words while being aware of their meaning and purport.
18. In Commissioner of Police, Bombay v. Gordhandas Bhanji
AIR 1952 SC 16 the Supreme Court, speaking through Bose, J.
observed:
"Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the
light of explanations subsequently given by the
officer making the order of what he meant, or
of what was in his mind, or what he intended to
do. Public orders made by public authorities
are meant to have public effect and are
intended to affect the actings and conduct of
those to whom they are addressed and must
be construed objectively with reference to the
language used in the order itself."
19. These observations were relied upon by the Supreme Court in its
decision on Mohinder Singh Gill V. Chief Election Commissioner,
(1978) 1 SCC 405. The Supreme Court held:
"8. ................ when a statutory functionary
makes an order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the
beginning may, by the time it comes to Court
on account of a challenge, get validated by
additional grounds later brought
out................"
20. The respondents are, therefore, precluded from explaining the
purport of the order dated 14.07.2005 to mean something different
than what it expressly states.
21. We, therefore, reject the explanation of the learned counsel for
the respondent that the use of the aforesaid language is inadvertent or
that the present case is merely a case of unhappy drafting.
22. For the aforesaid reasons, we quash the impugned orders passed
by the Disciplinary Authority, the Appellate Authority and the
Revisional Authority. However, the respondents are at liberty to look
into the matter afresh from the stage of fresh consideration of the
enquiry report by the Disciplinary Authority. We make it clear that we
have not gone into any other issue raised by the petitioner and it shall
be open to the petitioner to raise all his pleas at an appropriate stage,
in case the respondents proceed against him any further in the matter.
We also make it clear that nothing herein contained is an expression of
opinion on the merits of the petitioner's defence in the disciplinary
proceedings. The petition is allowed to the aforesaid extent.
VIPIN SANGHI, J.
GITA MITTAL, J.
MARCH 10, 2010
sr
