Delhi High Court

O.P.Sachdeva vs Hindustan Petroleum Corpn. Ltd. & ... on 12 February, 2013

Author: Valmiki J. Mehta

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.1639/1991

%                                                       February 12, 2013


O.P.SACHDEVA                                          ..... Petitioner
                          Through:       Ms. Jyoti Singh, Sr. Adv. with
                                         Ms. Saahila Lamba, Adv.


                          versus


HINDUSTAN PETROLEUM CORPN. LTD. & ORS. ..... Respondents

Through: Mr. Rajiv Kapur with Ms. Vatsala Rai, Advs.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. In this writ petition while issuing notice the following order

dated 15.5.1991 was passed:

"C.W. 1639/91 It is submitted that a copy of the inquiry report on which the impugned order was based was not given to the petitioner. Limited to this issue show cause notice as to why rule nisi be not issued, returnable on 16th September, 1991."

2. At the stage when notice was issued in this petition, the

Constitution Bench judgment of the Supreme Court in the case of

Managing Director, ECIL, Hyderabad vs. B. Karunakar, 1993 (4) SCC

727 was not delivered. In B. Karunakar's case (supra), the Supreme Court

has made it clear that in view of the flux in the legal position created by

passing of the 42nd Amendment Act, 1976 amending Article 311 of the

Constitution of India, the ratio of the judgment in the case of Union of India

& Ors. vs. Mohd. Ramzan Khan, 1991 (1) SCC 588 requiring giving of the

report of the enquiry officer to the charged officer, would only be

prospective in nature i.e the orders of the disciplinary authority which have

been passed prior to 20.11.1990 when the case of Mohd. Ramzan Khan

(supra) was decided will not be governed by the ratio of Mohd. Ramzan

Khan's (supra) case. The Supreme Court framed the relevant questions in

this regard requiring answers in para 2 of the judgment, and questions (vi)

and (vii) of para 2 of the judgment are relevant in deciding the question as to

what would be the position of those cases where the disciplinary authority

has passed the order prior to decision in the case of Mohd. Ramzan Khan

(supra) on 20.11.1990. These questions (vi) and (vii) have been answered

by the Supreme Court from para 33 onwards of the judgment. Paras 33, 34,

43, 44 and 45 of the judgment are relevant and the same read as under:-

"33. Questions (vi) and (vii) may be considered together. As has been discussed earlier, although the furnishing of the Inquiry Officer's report to the delinquent employee is a part of the reasonable opportunity available to him to defend himself against the charges, before the 42nd Amendment of the Constitution, the stage at which the said opportunity became available to the employee had stood deferred till the second notice requiring him to show cause against the penalty, was issued to him. The right to prove his innocence to the disciplinary authority was to be exercised by the employee along with his right to show cause as to why no penalty or lesser penalty should be awarded. The proposition of law that the two rights were independent of each other and in fact belonged to two different stages in the inquiry came into sharp focus only after the 42nd Amendment of the Constitution which abolished the second stage of the inquiry, viz., the inquiry into the nature of punishment. As pointed out earlier, it was mooted but not decided in E. Bashyan's case (supra) by the learned Judges of this Court who referred the question to the larger Bench. It has also been pointed out that in K.C. Asthana's Case(supra), no such question was either raised or decided. It was for the first time in Mohd. Ramzan Khan's case (supra) that the question squarely fell for decision before this Court. Hence till 20th November, 1990, i.e., the day on which Mohd. Ramzan Khan's case (supra) was decided, the position of law on the subject was not settled by this Court. It is for the first time in Mohd. Ramzan Khan's case (supra) that this Court laid down the law. That decision made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990. The law laid down was no applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the Inquiry Officer's report to the employee. The only exception to this was where the service rules with regard to

the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee.

34. However, it cannot he gainsaid that while Mohd. Ramzan Khan 's case (supra) made the law laid down there prospective in operation, while disposing of the cases which were before the Court the Court through inadvertence gave relief to the employees concerned in those cases by allowing their appeals and setting aside the disciplinary proceedings. The relief granted was obviously per incuriam. The said relief has, therefore, to be confined only to the employees concerned in those appeals. The law which is expressly made prospective in operation there, cannot be applied retrospectively on account of the said error. It is now well- settled that the courts can make the law laid down by them prospective in operation lo prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends of justice. In this connection, we may refer to some well- known decision on the point.

43. The apparent departure was in R.K. Vashisht vs. Union of India and Ors. (1993) 1 Supp. 1 SCC 431. However, the employee there had made a request for a copy of the inquiry report but it was not furnished to him prior to the issue of the order of dismissal. It is in these circumstances that this Court, relying upon the proposition of law laid down in Mohd. Ramzan Khan's case (supra) held that the order of dismissal was vitiated. It is not clear from the decision whether the rules in that case required furnishing of the copy and at what stage.

44. However, it has to be noticed that although it is in Mohd. Ramzan Khan's case (supra) that this Court for the first time accepted and laid down the law that the delinquent employee is entitled to the copy of the report before the disciplinary authority takes its decision on the charges levelled against him, Gujarat High Court in a decision rendered on 18th July, 1985 in Dr. H.G. Patel v. Dr. (Mrs.) K.S. Parikh and Ors. [1985] 2 GLR (26) 1385 and a full

Bench of the Central Administrative Tribunal in its decision rendered on 6.11.1987 in Premnath K. Sharma v. Union of India and Ors.[1988] 2 ASLJ 449 had taken a similar view on the subject. It also appears that some High Courts and some Benches of the Central Administrative Tribunal have given retrospective effect to the law laid down in Mohd. Ramzan Khan's case (supra) notwithstanding the fact that the said decision itself had expressly made the law prospective in operation. The fact, however, remains that although the judgments in H.G. Patel's case and Premnath K. Sharma's case (supra) as well as some of the decision of the High Courts and of the Benches of the Central Administrative Tribunal were either taking a similar view prior to the decision in Mohd. Ramzan Khan's case (supra) or giving retrospective effect to the said view and those decisions were not specifically challenged, the other decisions taking the same view were under challenge before this Court both before Mohd. Ramzan Khan's case (supra) was decided and thereafter. In fact, as stated in the beginning, the reference to this Bench was made in one such case as late as on the 5th August, 1991 and the matters before us have raised the same question of law. It has, therefore, to be accepted that at least till this Court took the view in question in Mohd. Ramzan Khan's case (supra), the law on the subject was in a flux. Indeed, it is contended on behalf of the appellants/petitioners before us that the law on the subject is not settled even till this day in view of the apparent conflict in decisions of this Court. The learned Judges who referred the matter to this Bench had also taken the same view. We have pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khan's case (supra) and the view taken by this Court in the earlier cases, and the reliance placed on K.C. Asthana's case (supra) to contend that a contrary view was taken there was not well-merited. It will, therefore, have to be held that notwithstanding the decision of the Central Administrative Tribunal in H.G. Patel's case (supra) and of the Gujarat High Court in Premnath K. Sharma's case (supra) and of the other courts and tribunals, the law was in an unsettled condition till

at least 20th November, 1990 on which day the Mohd. Ramzan khan's case was decided. Since the said decision made the law expressly prospective in operation made the law expressly laid down there will only to those orders of punishment which are passed by the disciplinary authority after 20th November, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in court/tribunals in respect of orders of punishment passed prior to 20th November, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. Ramzan Khan's case (supra). This is so notwithstanding the view taken by the different Benches of the Central Administrative Tribunal or by the High Courts or by this Court in R.K. Vashist's case (supra).

45. The need to take the law laid down in Mohd. Ramzan Khan's case (supra) prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/managements all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been punished without giving them the copies of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the

orders of punishment passed prior to the decision in Mohd. Ramzan Khan's case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave to the said orders should be reopened on that account. Hence we hold as above." (underlining added).

3. The underlined/emphasized portions of paras 33, 44 and 45 of

the judgment in B. Karunakar's (supra) case leave no manner of doubt,

and especially para 44, that Courts shall not reopen cases where disciplinary

authority has passed the order before the judgment in the case of Mohd.

Ramzan Khan (supra) was pronounced on 20.11.1990.

4. In the present case, the disciplinary authority passed the order

on 12.7.1989 i.e before 20.11.1990 when the case of Mohd. Ramzan Khan

(supra) was decided, and therefore, the benefit of the ratio of the cases of

Mohd. Ramzan Khan (supra) and B. Karunakar (supra) that the report of

the enquiry officer should be given to the charged officer, cannot be given in

favour of the petitioner, and as already stated above, this ratio was

specifically made prospective. If there is any doubt, the same is cleared

when we refer to para 45 of the judgment in B. Karunakar's case, wherein

the Supreme Court specifically applied its mind on this aspect and held that

to reopen the disciplinary proceedings would result in grave prejudice to the

administration which will far outweigh the benefit to be given to the

employee concerned, and therefore taking into account the administrative

reality and public interest, orders of punishment passed by the disciplinary

authority prior to the decision in the case of Mohd. Ramzan Khan (supra)

were held not to be set aside on the ground that the report of the enquiry

officer was not furnished to the charged officer before taking of the decision

by the disciplinary authority.

5. In the subsequent case of B.C. Chaturvedi Vs. Union of India

(1995) 6 SCC 749, two of the Judges who passed the judgment in B.

Karunakar's case were also in the Bench, and in this later judgment again

the Supreme Court observed that benefit of the ratio in the case of B.

Karunakar that the report of the enquiry officer having to be supplied to

the delinquent official is not required to be followed for those cases where

the disciplinary authority passed orders prior to the decision in the case of

Mohd. Ramzan Khan (supra) on 20.11.1990. Paras 6 and 7 of the said

judgment read as under:-

6. Having regard to the respective contentions, the first question that arises for consideration is whether the order dismissing the appellant from service is invalid in law for non-supply of the inquiry report. True, in Ramzan Khan's case a Bench of three Judges to which one of us (K. Ramaswami, J.) was a member, had held that the delinquent is entitled to the supply of the inquiry report. It was contended for the appellant therein that after Amendment to Article 311(2) of

the Constitution by Constitution (42nd Amendment) Act, 1976, the need to supply the inquiry report was obviated. Rejecting the contention, it was held that the supply of the copy of the inquiry report is inconsistent with fair procedure and non-supply thereof violates the principles of natural justice. Therefore, copy of the inquiry report is required to be supplied to the delinquent officer. However, it was held that the said ratio was prospective in operation. The judgment therein was rendered on November 20, 1990.

7. A question thereafter had arisen whether the ratio would be applicable to the order passed earlier to the judgment. On reference to the Constitution Bench, to which two of us (K. Ramaswamy & B.P. Jeevan Reddy, JJ.) were members, it was held in Managing Director, EC1L, Hyderabad v. B. Karunakar and Ors. (1994)ILLJ162SC that the relief granted in Ramzan Khan's case was erroneous and that the ratio in Ramzan Khan's case would apply to the punishment imposed by the disciplinary authority after the date of the judgment. Since the controversy is no longer res integra, the appellant is not entitled to the benefit of Ramzan Khan's ratio as admittedly he was dismissed from service on October 29, 1986 and the order of dismissal from service is valid." (underlining added)

6. For completion of narration, I may note the fact in this case that

the enquiry officer had given the following findings without recommending

any punishment:

"CONCLUSION:

After having gone through charge by charge of the Charge Sheet under reference, it transpired during the Enquiry proceedings and also referring to the Presenting Officer's and defence summing up, that the charges levied against the suspended employee relating to:

a) Failure to maintain-

i) absolute integrity

ii) Devotion to duty

iii) Acting in a manner unbecoming of an officer of the Corporation.

b) Fraud and dishonesty in connection with the business of the Corporation.

c) Acting in a manner prejudicial to the interest of the Corporation.

d) Violation of Conduct rules made by the Corporation, stand proved.

J. SETH ENQUIRY OFFICER"

7. The disciplinary authority passed the order dated 12.7.1989

observing as under:-

"It is seen from the enquiry report that all the charges contained in both the chargesheets dated 12/2/1987 and 10/11/1987 have been proved. I fully concur with the findings of the Enquiry Officer.

I find that the enquiry was conducted in a fair and proper manner following an orderly course of proceedings. The contesting parties were heard over several sessions and the defendant was given adequate opportunity to defend his case; also the principles of natural justice were observed. All the charges are of a grave and serious nature touching the integrity of the officer. The charge regarding fabrication of documents to show loss and manipulation of the books of tank readings to show loss due to temperature are of a very serious nature which clearly demonstrate a criminal intent to manipulate the accounts. There can be no doubt that the charged officer had dishonest motives in resorting to such methods. It would, therefore, not be in the interest of the Corporation to retain the

services of such officers, and therefore he is dismissed from the services of the Corporation as per Rule B(2)(c) of the CDA Rules applicable to the Management staff with effect from the date he is communicated the order.

The Inquiry Report reveals that fabrication of documents and manipulation of the books was perpetuated only to show loss of the product. There is, therefore, no doubt that the Corporation has been subjected to financial loss. The actual loss caused to the Corporation as a result of the misconduct of the officer may be examined and quantified. It is necessary to recover the loss caused to the Corporation by the deliberate acts of the charged officer and recoveries made. This will be in addition to the other recoveries as are due and payable by the charged officer.