Sunday, 12 February 2017

Whether punishment can be imposed on employee if there is inherent contradiction between charges levelled and findings of enquiry officer?

 If the charges levelled against the Appellant are one of purchase from an unauthorised/non-existent dealer and the finding of the Enquiry Officer is that no such purchase was made, we do not see how the disciplinary authority could have held the charges to have been proved. In any event, if the disciplinary proceedings was vitiated, as held by the Division Bench, we do not see how charge No. 11 could have been held to be proved and that too on the basis of the stand taken by the Appellant in the disciplinary enquiry. Viewed from any perspective, the conclusion with regard to guilt on any of the charges levelled is not sustainable. Both the conclusions i.e. the disciplinary authority as well as the Division Bench of the High Court suffer from inherent contradictions though for different reasons, as indicated above. We, therefore, set aside the order of the Division Bench and the punishment imposed and direct that all reliefs as due in law be now afforded to the Appellant without any delay and in any case within three months from today.
IN THE SUPREME COURT OF INDIA
C.A. No. 13684 of 2015 (Arising out of SLP(C) No. 10607/2014)
Decided On: 24.11.2015
 K.P. Gupta
Vs.
University of Delhi
Coram:Ranjan Gogoi and N.V. Ramana, JJ.
Citation:(2015) 16 SCC 525

1. Leave granted. Aggrieved by the grant of partial relief and consequential refusal of full relief by the High Court the Appellant has filed the present appeal.
2. We have heard the Learned Counsels for the parties.
3. The brief facts that will be required to be noticed are set out below: A charge-memo dated 21st March, 1996 was furnished to the Appellant leveling the following Charges.
"Article I That Prof. K.P. Gupta while functioning as Head of Department, Chinese and Japanese Studies, is stated to have purchased a Computer PC-8088 for the Department from M/s. Astra Computer Services, Laxmi Bai Street, Darya Ganj, New Delhi-110002, on 16.2.1993 for ` 39,600/-. The said firm, namely, M/s. Astra Computer Services, was not a genuine firm and by purchasing the computer from such a firm, Prof. K.P. Gupta misused his position as Head of Department, which he was holding at the relevant time.
Article II That Prof. K.P. Gupta, while functioning as the Head of Department of the Chinese and Japanese Studies, having purchased the said computer PC-8088 for the Department on 16.2.1993 kept the same at his residence unauthorisedly. The computer was brought in the Department only on 9.12.1993 after written complaints had been received by the University.
Article III That Prof. K.P. Gupta, while functioning as the Head of Department of the Chinese and Japanese Studies did not maintain any proper record concerning purchase of the said computer PC-8088 for the Department."
A departmental enquiry was ordered wherein the Appellant did not participate. At the conclusion of the enquiry, the Enquiry Officer submitted his report dated 14th December, 1996 with the following findings.
"I. The transaction relating to the purchase of the computer for which pre-receipted bill No. 80 dated 16th Feb. 1993 was said to have been submitted is FAKE. A non existent firm cannot be a party to a business transaction.
II. All work relating to this fake transaction such as getting the bill forms printed, preparing the bill was done at the office of the Head of the Department. No dealer in computers was associated with this work in any capacity whatsoever.
III. As such no computer was supplied by any to the Head of the Deptt. of Chinese and Japanese Studies either at his office or at his residence. Prof. K.P. Gupta did not have any computer belonging to the Deptt. at his residence.
IV. Professor K.P. Gupta managed to get Cheque No. 958414 dated 22.3.93 for ` 39,600 from the University in the name of Astra Computer Services on the basis of this fake transaction. The proceeds of this cheque were collected from SBI Daryaganj by Shri Amitabh Saxena who was working as Lab. Attendant during this period at Professor K.P. Gupta's Department.
V. Thus the University was defrauded of ` 39,600 on 14.4.1993 (the date when this cheque was cleared by SBI Delhi University) by using the fake bill.
VI. As a consequence of the representations of the Faculty members of the Deptt. of Chinese and Japanese to the Vice Chancellor, Professor K.P. Gupta agreed to send the computer to the Deptt. on December 9, 1993. He, however, did not tell the whole truth. He did not tell (I) that no computer was received by the Deptt. against the payment of ` 39,600 by the University on 22nd March 1993 (ii) that a computer obtained by him from Data Point Computers is being sent to the Department.
VII. Thus a part of the amount of ` 39,600 or the whole of it (depending upon the price of the computer obtained from Data Point Computers by Professor K.P. Gupta) may be regarded as returned to the University on 10 December 1993 of the money of which it was defrauded in April 1993."
4. The Appellant challenged the show cause notice dated 21st March, 1996 issued to him before the High Court of Delhi by instituting a writ petition which was registered and numbered as Writ Petition Civil Writ Petition No. 1548 of 1996. An interim order was passed permitting the University to complete the enquiry but not to pass any final order. The Enquiry Officer accordingly proceeded in the matter and submitted his report dated 14th December, 1996, details of which have been noticed.
5. The writ petition was dismissed by the learned single judge of the High Court on 2nd May, 2003 and on the same day i.e. 2nd May, 2003 an order was passed by the University on the basis of the report of the Enquiry Officer imposing the punishment of removal from service. The Appellant consequently ceased to remain in office/service. He, however, challenged the order of the learned single judge in a Letters Patent Appeal. By the impugned judgment dated 28th November, 2013, the Division Bench of the High Court found Charges I and HI not to be proved whereas Charge No. II was held to be established. On the basis of the said conclusion, punishment was imposed on the Appellant which had the effect of freezing his salary as on 21st March, 1996, the date of issuance of the show cause notice. There was a further direction from the High Court that as a measure of punishment the pension and retiral benefits of the Appellant should be calculated on the basis of the pay and allowances as on 21st March, 1996.
6. It may be noticed at this stage that during the pendency of the Letters Patent Appeal before the High Court, the Appellant superannuated from service, though there is some dispute on this score which relates to the entitlement of the Appellant to remain in service until the age of 62 or 65 years, as may be. Aggrieved by the aforesaid order of the Division Bench, this appeal has been filed.
7. A consideration of the charge-memo dated 21st March, 1996 and the specifics of charges levelled, details of which have been noted, would go to show that the charges levelled against the Appellant were that he had purchased the computer from an unauthorised firm which was not genuine and that he had kept the computer at his residence instead of office and further that in making the aforesaid purchase the Appellant had violated the norms in force.
8. The findings of the Enquiry Officer, relevant part of which has been extracted above, indicate that the same are to the effect that the firm from which the Appellant claimed to have purchased the computer was a nonexistent firm and the documents of purchase, etc. were all fake and fictitious. The further conclusion of the Enquiry Officer, on the said basis, is that the computer was not purchased at all and the cheque issued by the University in this regard i.e. in payment of the bill of the supplier was encashed in the name of the nonexistent firm by an employee who was working as a Laboratory Attendant in the department in which the Appellant was the HOD.
9. The matter should have been ended at that stage and, in our considered view, the disciplinary authority ought to have taken a course of action different from what was adopted. This is because the findings of the enquiry are wholly unrelated to the charges levelled. Yet, the disciplinary authority, holding all the charges levelled to be proved, imposed the punishment of removal from service which the learned single judge of the High Court refused to interfere. In appeal, the Division Bench of the High Court curiously found the enquiry held against the Appellant to be vitiated for various reasons as set out in the impugned judgment. The Division Bench, therefore, held Charge No. I and III levelled against the Appellant was not proved. Yet, acting on the basis of the defence that the Appellant had taken in the disciplinary enquiry, namely, that the computer was purchased by him and the same was kept in his residence, the Division Bench understood Charge No. 11 to have been admitted and it is on the basis of the said admission that Charge No. 11 was held to be proved and the punishment, as noticed, has been imposed.
10. If the charges levelled against the Appellant are one of purchase from an unauthorised/non-existent dealer and the finding of the Enquiry Officer is that no such purchase was made, we do not see how the disciplinary authority could have held the charges to have been proved. In any event, if the disciplinary proceedings was vitiated, as held by the Division Bench, we do not see how charge No. 11 could have been held to be proved and that too on the basis of the stand taken by the Appellant in the disciplinary enquiry. Viewed from any perspective, the conclusion with regard to guilt on any of the charges levelled is not sustainable. Both the conclusions i.e. the disciplinary authority as well as the Division Bench of the High Court suffer from inherent contradictions though for different reasons, as indicated above. We, therefore, set aside the order of the Division Bench and the punishment imposed and direct that all reliefs as due in law be now afforded to the Appellant without any delay and in any case within three months from today.
11. Before parting, we would like to deal with a precedent cited at the Bar by Shri P.P. Rao, learned Senior Counsel appearing for the Respondent - University of Delhi. Relying on a decision of this Court in State of Orissa v. Bidyabhushan Mohapatra MANU/SC/0361/1962 : 1963 Supp (1) 648, Shri Rao has submitted that when the punishment on a civil servant is based on findings of guilt on multiple charges and if the concerned civil servant is to be exonerated on some of the charges while the indictment on the remaining charges continue it is not for the Court to consider as to whether the punishment imposed is commensurate, particularly, in a situation where the disciplinary authority does not indicate its mind as to on which of the charges held to be proved, the punishment has been imposed. Having read the aforesaid judgment it is our considered view that we need not delve into the issues that arise from the said judgment in view of the conclusions reached by us that none of the charges levelled against the Appellant can be held to be proved. We also would like to observe that we had seriously debated as to whether in the facts of the present case the University should be saddled with a liability to pay costs/compensation to the Appellant. On such consideration we are of the view that in the facts of the present case it would be sufficient and adequate if we are to express our displeasure with the manner in which the University had conducted itself in the present case and no cost or compensation need to be separately awarded. With the aforesaid observations and conclusions this appeal is allowed as indicated above.
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