Whether Period Of Suspension Of Govt Servant should Be Treated As 'On Duty' Where Acquittal Based On Benefit Of Doubt?

In this regard we may refer to the decision of the Honourable Supreme Court in Krishnakant Raghunath Bibhavnekar vs. State of Maharashtra and ors. MANU/SC/0337/1997 : 1997 3 SCC 636. The cause of suspension and initiation of punitive action based on the petitioner's conduct leading to his prosecution were found to be sufficient to hold such suspension to be justified therein. The following observations in paragraph 4 are relevant and the same are reproduced as under:

"4. ... If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty (and on payment of subsistence allowance etc.). Rules 72(3), 72(5) and 72(7) of the Rules give discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date the Rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. ..."

11. The Tribunal while considering the Original Application preferred by the petitioner has rightly held that the acquittal of the petitioner was after grant of benefit of doubt. Since the involvement of the petitioner was in a serious criminal offence and he was acquitted by giving him the benefit of doubt, it was held that the petitioner was not entitled for regularisation of the period of suspension by treating him to be "on duty". All relevant aspects of the matter have been considered by the Tribunal and we do not find any reason to take a different view from the one taken by it. It cannot be said that while passing the impugned order dated 13/04/2016 holding the petitioner not entitled to pay and allowances for the period of suspension, the Competent Authority acted arbitrarily. 

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1917 of 2021

 Ravindra Prasad Munneshwar Prasad  Vs. Union of India and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar and G.A. Sanap, JJ.

Author: A.S. Chandurkar, J.

Decided On: 31.03.2022

Citation: MANU/MH/1079/2022

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Study material on Disciplinary Inquiry

 https://drive.google.com/file/d/1FIPxcavzCItAmL2ncoJnEnkNB91oTbzb/view?usp=sharing

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In the Digital Era Employees Working In Different States can Be Treated as working in One Work Place under Sexual Harassment law.

In the present digital world, work place for employees

working in the Bank and who have earlier worked in the same

Branch and later on shifted to different branches which may be

situated in different States has to be treated completely as one

work place on a digital platform. Thus, if a person may be posted

in Jaipur and acts on a digital platform harassing another lady who may be posted in a different State, it would come within the ambit of being harassed in a common work place. The contention of the counsel for the petitioner, thus on the aforesaid count is rejected.

 HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No.150/2021

Sanjeev Mishra Vs  The Disciplinary Authority And General Manager, Zonal Head, Bank Of Baroda, 

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order: 11/01/2021

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Whether the court should permit the inquiry officer's change in departmental inquiry if delinquent alleges that inquiry officer is biased?

As far as the main challenge of the petitioner is concerned, it is regarding the change of the Enquiry Officer. We are of the considered view that it would not be proper for this Court to change the Enquiry Officer at this stage of the inquiry. We also say this because there are already observations of the Division Bench of this Court about the change of Enquiry Officer in Writ Petition (S/B) No. 442 of 2019, where the earlier petition of the petitioner (which was primarily for seeking a writ of certiorari to quash the order passed by the Enquiry Officer dated 23.08.2019), was dismissed on 25.09.2019. The observations of the Division Bench of this Court, however, in para 28 of the judgment dated 25.09.2019 passed in Writ Petition (S/B) No. 442 of 2019 reads as under:—

“28. Since the claim of the petitioner that he has suffered prejudice on the failure of the Enquiry Officer to defer cross-examination of PW2 is required to be examined by the Disciplinary Authority in the first instance after completion of the inquiry, and as this Court would ordinarily not interfere with the inquiry proceedings at an interlocutory stage, we see no reason to entertain this Writ Petition. While declaring the law in this regard on whether or not prejudice is suffered on the failure of the Enquiry Officer to defer cross-examination of a witness, suffice it to make it clear that it is open to the petitioner on completion of the inquiry, and on his being afforded an opportunity to put forth his objections to the inquiry report, to also raise this contention of having suffered prejudice, on the failure of the Enquiry Officer to defer cross-examination of PW2. We have no reason to doubt that, on any such objection being raised, the Disciplinary Authority would consider such contentions uninfluenced by any observations made in this order.”

 In the High Court of Uttarakhand at Nainital

(Before Sudhanshu Dhulia and Alok Kumar Verma, JJ.)

Kanwar Amninder Singh 

Versus

Hon'ble High Court of Uttarakhand at Nainital … 

Writ Petition (S/B) No. 282 of 2020

Decided on October 31, 2020

Citation: 2020 SCC OnLine Utt 722

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What are the powers of the high court in the challenge of disciplinary action against an employee?

 In Union of India v. P. Gunasekaran8, this Court held as follows : (SCC pp. 616-17, paras 12-13)

“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.”

 In the High Court of Jharkhand at Ranchi

(Before Deepak Roshan, J.)

W.P.(S) No. 4120 of 2014

Balwant Singh V   Union of India 

Citation: 2020 SCC OnLine Jhar 889

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Whether the Internal Complaints Committee can recommend disciplinary action against lady making a complaint of sexual harassment?

 The constituted ICC, upon analysing the complaint, came to the

conclusion that the relationship between the Petitioner and Respondent No.3

were based on personal grounds with mutual consent, and that the

allegations of sexual, emotional and mental harassment were not

substantiated by the Petitioner. Thus, the complaint against the Respondent

No. 3, was rejected. However, the ICC did not stop there. The ICC went on

to make an observation that the behaviour of the parties had been

inappropriate and unbecoming of Officers/Employees of the Bank, and

accordingly the ICC recommended the Competent Authority to take suitable

action against the Petitioner and the Respondent No. 3, as deemed fit.

As per the above provisions, if the allegations of sexual harassment or

any other form of harassment, as contemplated under the Act, are not proved

before the ICC, the ICC can only recommend the employer to not take any

action in the particular matter. However, the ICC, in the present case, has

gone beyond its statutory mandate, as recognised under Section 13(2) of the

Act. It has, in fact, given observations stating that both the parties i.e., the

Petitioner and the Respondent No.3 have indulged in inappropriate/

unbecoming conduct and indiscipline, and has recommended the competent

authority to take suitable action against them. Giving such a

recommendation is clearly beyond the jurisdiction of the ICC.

15. Complaints of sexual harassment are initially filed with enormous

reluctance. The power of the ICC to hold the enquiry and give a report

ought to be within the scheme and the four corners of the statute itself. If a

case of sexual harassment is not made out, the ICC can only conclude that

no action is required to be taken. On the other hand, if a case of sexual

harassment is made out, then the recommendation of the ICC can only be for

taking appropriate action for misconduct, in accordance with the provisions

of the service rules as contained within Section 13(2) and 13(4) of the Act.

16. It is not contemplated within the provisions of the Act that while

holding that no action is to be taken and the complaint is to be rejected, the

ICC can direct for suitable action on the ground that the parties have

indulged in an inappropriate conduct. Such a determination and

consequential recommendation is beyond the jurisdiction of the ICC.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 16th December, 2020

W.P.(C) 3249/2017 & CMAPPL. 14126/2017

BIBHA PANDEY Vs PUNJAB NATIONAL BANK

CORAM:

JUSTICE PRATHIBA M. SINGH

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Leading Supreme court Judgment on the obligation of disciplinary authority to furnish enquiry report to delinquent in the departmental enquiry

 This group of matters is at the instance of various parties, viz., Union of India, Public Sector Corporations, Public Sector banks, State Governments and two private parties. By an order dated 5th August, 1991 in Managing Director, Electronic Corporation of India v. B.Karunakar MANU/SC/0474/1992 : (1992)1SCC709 , a three Judge Bench of this Court referred that matter to the Chief Justice for being placed before a Larger Bench, for the Bench found a conflict in the two decisions of this Court, viz., Kailash Chander Asthana etc. etc. v. State of U.P. and Ors. etc. etc. MANU/SC/0221/1988 : (1988)IILLJ219SC , and Union of India and Ors. etc. etc. v. Mohd. Ramzan Khan MANU/SC/0124/1991 : (1991)ILLJ29SC both delivered by the Benches of three learned Judges. Civil Appeal No. 3056 of 1991 arising out of SLP (Civil) No. 12103 of 1991 along with the other matters in which the same question of law is in issue, has therefore, been referred to this Bench.

2. The basis question of law which arises in these matters is whether the report of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, If any, to be awarded to him. This question in turn gives rise to the following incidental questions:

(i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?

(ii) Whether the report of the Inquiry Officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank?

(iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise?

(iv) Whether the law laid down in Mohd. Ramzan Khan's case (Supra) will apply to all establishments - Government and non-Government, public and private sector undertakings,

(v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?

(vi) From what date the law requiring furnishing of the report, should come into operation?

(vii) Since the decision in Ramzan Khan's case (supra) has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to 20th November, 1990?

Hence the incidental question raised above may be answered as follows:

(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.

(ii) The relevant portion of Article 311(2) of the Constitution is a follows:

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.

(iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not known in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.

(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whether the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.

(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Since to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice is a mechanical ritual the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.

Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, The Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment the Courts/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Court/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate of revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity.

It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.

Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.

The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3056 of 1991

Decided On: 01.10.1993

Managing Director, ECIL, Hyderabad  Vs.  Karunakar and Ors.

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Whether disciplinary authority can rely on statements of witnesses recorded in preliminary enquiry if enquiry officer has not permitted delinquent to cross-examine them?

In the aforesaid backdrop, we have to consider the most relevant issue involved in this case. Admittedly, the Enquiry Officer, the High Court on Administrative side as well on Judicial side, had placed a very heavy reliance on the statement made by Shri C.B. Gajjar, Advocate, Mr. G.G. Jani, complainant and that of Shri P.K. Pancholi, Advocate, in the preliminary inquiry before the Vigilance Officer. Therefore, the question does arise as to whether it was permissible for either of them to take into consideration their statements recorded in the preliminary inquiry, which had been held behind the back of the Appellant, and for which she had no opportunity to cross-examine either of them.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2668 of 2005

Decided On: 18.03.2013

 Nirmala J. Jhala Vs.  State of Gujarat and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and F.M. Ibrahim Kalifulla, JJ.

Author: B.S. Chauhan, J.

Citation:MANU/SC/0257/2013,AIR 2013 SC 1513

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Excellent study material on departmental Enquiry

1)  https://drive.google.com/file/d/11U-lmJpi1FSrga9mCWscWpcwzbpkIa_c/view?usp=sharing

2) How to prepare departmental enquiry report?

https://drive.google.com/file/d/1BYqlQjUhUidwr2reqbvjSvWYFN4QARNx/view?usp=sharing

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Whether University can take adverse action against law student without following principles of natural justice?

Petitioner who joined the Five Year B.A. LL.B (Hons.)

Course in the respondent – University from the Academic

Year 2017-18, is declared to have secured “F Grade” in

Child Rights Law examination held on 13.03.2020 since he

was not given any mark because of alleged plagiarism of

the Project Work in question; he was also not allowed to

take Special Repeat Examination of third trimester in the

third year, allegedly in breach of assurance of the

University.

The entire episode of so called ‘plagiarism’ is

framed on the basis of a few notoriously cryptic mails

exchanged between the Course Teacher and the Exam

Department, detrimentally keeping the petitioner in

darkness.

 What intrigues this Court is about the enormity

of unfair treatment which the petitioner was meted out at

the hands of a Law University, in a serious matter like this;

it is anguishing that the University did not afford an

opportunity of personal hearing despite his written

request vide mail of 02.03.2020 at Annexure-R5 to the

S.O.; in Biblical literature, even God is said to have given

an opportunity of hearing to Adam & Eve before punishing

them for consuming the proscribed fruit, in the Eden

Garden; which heavens would have fallen down, had a

reasonable opportunity of personal hearing been afforded,

remains as a mystery rapped in enigma; after all,

procedural fairness is a constitutional mandate when the

answering respondent is an instrumentality of the “State”

under Article 12 of the Constitution; it is high time that

this University of national repute be reminded that it is

dealing with our children and not others’ chattel; and,

IN THE HIGH COURT OF KARNATAKA, BENGALURU

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO. 9395 OF 2020 (EDN-RES)

BETWEEN:

SRI HRUDAY. P B Vs  THE VICE CHANCELLOR, THE NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,

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Whether disciplinary authority can dismiss an employee after departmental enquiry even after his acquittal in a criminal case?

In the present case, the respondent was acquitted of the charge of murder. The circumstances in which the trial led to an acquittal have been elucidated in detail above. The verdict of the criminal trial did not conclude the disciplinary enquiry. The disciplinary enquiry was not governed by proof beyond reasonable doubt or by the rules of evidence which governed the criminal trial. True, even on the more relaxed standard which governs a disciplinary enquiry, evidence of the involvement of the respondent in a conspiracy involving the death of Bhanwar Singh would be difficult to prove. But there are, as we have seen earlier, circumstances emerging from the record of the disciplinary proceedings which bring legitimacy to the contention of the State that to reinstate such an employee back in service will erode the credibility of and public confidence in the image of the police force.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 3340 of 2020

The State of Rajasthan Vs  Heem Singh 

Author: Dr Dhananjaya Y Chandrachud, J

Dated: October 29, 2020.

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How to prove the statement of delinquent recorded in preliminary enquiry?

Learned counsel for the State argued that the petitioner is not entitled to any relief only on the technical ground of non-supply of documents unless it is shown as to what prejudice was caused to the petitioner in his defence. It is contended that the petitioner, during preliminary enquiry, had given a statement on 7.9.1991 in which he admitted that he had interpolated the official records in order to mislead the authority and created an evidence of felling of trees which were otherwise illegally felled and transported away from the forest area. In his reply to charge sheet, the petitioner nowhere stated that he had never given any such statement of admission of his gilt on 7.9.1991 and he only gave evasive denial of charges against him. It is further submitted that all relevant documents as stated in Sr. No. 1 of his application dated 30.4.1992 were supplied to him and remaining documents demanded by the petitioner were not relevant to the charges because the charge No. 1 was not found proved against the petitioner and charge No. 2 was found proved on the basis of petitioner's own statement dated 7.9.1991 recorded during preliminary enquiry prior to issuance of charge sheet, which the petitioner did not dispute but only sought to justify at a later stage and not at the first instance while submitting his reply to the charge sheet. Once the petitioner had admitted having interpolated the records, the other ground of violation of principle of nature justice would not come to his aid and the enquiry cannot be said to be vitiated.

 A perusal of the enquiry report and the order of the Disciplinary Authority would at once reveal that the statement of Kishan Lal Sonwani, Kamta Ram Sahu as also pre-recorded statement of the petitioner himself was made a basis to sustain the charge No. 2 proved against him that he, acting in concert with Cherpa Gopal and Kishal Lal Sonwani, tampered the official record. As a matter of fact, the so called pre-recorded statement of the petitioner was used as an admission of the guilt by the petitioner. But this document was never supplied to the petitioner despite demand. This was the most crucial documents because the Enquiry Officer as well as the Disciplinary Authority both have heavily relied upon this document to hold charge No. 2 proved against the petitioner. The petitioner in his memo of appeal and even before this Court has taken a categoric stand that he was coerced to put signature on certain documents. Whether or not the petitioner would not been able to make out his defence, on this aspect, is one thing, but it can certainly be concluded that non-supply of this crucial documents seriously prejudiced the petitioner. It would not out of place to mention here that so called statement of the petitioner was not even proved by examining the officer who is alleged to have recorded the said statement. Therefore, serious prejudice on account of non-supply of statement is writ large on the fact of it.{Para 24}

 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

WPS No. 935 of 2005

Decided On: 31.10.2017

Dhanpati Barik Vs. State of Madhya Pradesh and Ors.

Hon'ble Judges/Coram:

Manindra Mohan Shrivastava, J.

Dated:MANU/CG/0595/2017

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When should disciplinary enquiry be set aside on violation of principles of natural justice?

1) While examining whether procedural requisites have been met, by the authorities below, however, the test of "prejudice" must apply; breach of procedure, which does not result in prejudice, to the officer employee concerned, is not to be treated as fatal. Though, ordinarily, the onus to establish prejudice, is on the officer, or employee so alleging, the writ court may, justifiably, in some circumstances, infer the existence of prejudice - such as inordinate or unconscionable delay in issuance of a charge-sheet, denial of adequate opportunity, to the employee to defend the charges against him, reliance on material undisclosed to the employee, and the like. Whether, in a given case, prejudice has resulted, or not, is not an issue for which straight-jacketed tests are available; ultimately, this is a matter in which the writ court has to exercise its best judgment.

2) The Enquiry Report, dated 16th March, 1999, of the EO, rejected the petitioners request for being provided copies of the above mentioned documents, not on the ground that the documents did not exist, but because "they had no relevance in the present enquiry because the enquiry pertains to a period when the Agency of Shri Yugal Gupta was fully functioning under Shri Midha and there is no base to prove or contest the origin of the agency". To my mind, this finding of the Enquiry Officer, and the decision of the Enquiry Officer to deny, to the petitioner, the documents sought by him, are manifestly violative of the principles of natural justice, and also suffer from perversity. The observation, of the EO, that "the enquiry pertains to a period when the agency of Shri Yugal Gupta was fully functioning under Sh. Midha and there is no base to prove or contest the origin of the agency", in fact, itself negates the allegation, in the charge-sheet, that Yugal Gupta was a dummy agent. In observing thus, the EO impliedly accepts the fact that an agent, by name Yugal Gupta was, in fact, working with the respondent. This observation, in fact, takes the wind away from the sails, as it were, of the most fundamental allegation in the charge-sheet, as levelled against the petitioner. Besides, the observation is clearly perverse, as it fails to notice - intentionally or otherwise - the fact that the charge-sheet against the petitioner was premised on the assumption that Yugal Gupta, into whose account agency commission was paid and, subsequently, misappropriated by the petitioner, was a dummy/fictitious agent. It is impossible to understand, therefore, how the EO held that there was "no base to prove or contest the origin of the agency". The EO had, therefore, either not even understood the Government of the allegations against the petitioner, or was determined not to allow documents to the petitioner, on one ground or the other.

(vi) The inequity inherent in the above approach of the EO is underscored by the fact that as many as ten documents were permitted to be produced by the respondent-Management. The EO, thereby, ensured that the petitioner would not be provided with a level playing field, which is the sine qua non of due process and fair play.

(vii) In the opinion of this Court, ordinarily, documents sought by a charged officer, the providing of which lies within the power of the management/establishment, ought to be provided to him. The EO is not, ordinarily, expected to sit in appeal over the decision of the charged officer, regarding the documents which, according to him, are necessary for his defence. Of course, if it does not lie within the province of the management, to provide the said documents, or if the request for documents is found to be manifestly unreasonable, or a deliberate attempt to protect, or otherwise frustrate, the disciplinary proceedings, the request for providing documents may be denied. In such an event, however, the precise reason for denying the said request would necessarily have to find place in the Enquiry Report. The reasons cited by the EO, in the Enquiry Report, dated 16th March, 1999, in the present case, i.e., that the documents, requested by the petitioner, were not relevant to the enquiry, conveniently omits to notice the fact that the documents were, in fact, extremely necessary, for the petitioner to be able to establish the points raised, by him, in his defence. They cannot, therefore, sustain.

3) In Hardwari Lal v. State of U.P. MANU/SC/0685/1999 : (1999) 8 SCC 582, the Supreme Court declared the entire disciplinary enquiry, against the appellant, before it, to be vitiated on the sole ground that two relevant witnesses had not been produced in the witness-box. There is no reason why this principle would not apply, even in a case in which the charged officer is prevented from producing evidence, of witnesses relevant for his defence. The wholesale rejection, by the EO, of the request, of the petitioner, to lead the evidence of the said persons, with no reason, therefor, being forthcoming, has also, therefore, necessarily to be regarded as arbitrary and violative of the principles of natural justice.

4)  There is no explanation therefor. Even more significantly, there is no explanation for why the respondent did not choose to lead the evidence of the said allegedly "fictitious" Yugal Gupta, as a Management Witness. In Hardwari Lal MANU/SC/0685/1999 : (1999) 8 SCC 582, as already noted hereinabove, the Supreme Court declared the entire disciplinary enquiry, against the appellant, before it, to be vitiated on the sole ground that two relevant witnesses had not been produced in the witness-box.

5) The onus to establish that the petitioner had committed misconduct was, unquestionably, on the respondent. Absent discharge of such initial onus, the petitioner could not be burdened with the responsibility of defending himself against the allegations. The petitioner was also entitled to be extended all due opportunity, and to the benefit of the principles of natural justice and fair play.

IN THE HIGH COURT OF DELHI

W.P. (C) 7593/2002

Decided On: 29.05.2020

Rakesh Midha  Vs.  Oriental Fire Insurance Co. Ltd.

Hon'ble Judges/Coram:

C. Hari Shankar, J.

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Important provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[Act 14 of 2013 as amended up to Act 23 of 2016]

Chapter I

PRELIMINARY

1. Short title, extent and commencement.—(1) This Act may be called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “aggrieved woman” means—

(i) in relation to a workplace, a woman, of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;

(ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

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Supreme Court: Discrepancies In Evidence Against Delinquent Not A Ground To Interfere With Findings Of Disciplinary authority

It is not the case of no evidence or that the findings are

perverse. The finding that the respondent is guilty of misconduct

has been interfered with only on the ground that there are

discrepancies in the evidence of the Department. The

discrepancies in the evidence will not make it a case of no

evidence. The Inquiry Officer has appreciated the evidence and

returned a finding that the respondent is guilty of misconduct.

15. The disciplinary authority agreed with the findings of the enquiry

officer and had passed an order of punishment. An appeal before

the State Government was also dismissed. Once the evidence has

been accepted by the departmental authority, in exercise of power

of judicial review, the Tribunal or the High Court could not interfere

with the findings of facts recorded by reappreciating evidence as if

the Courts are the Appellate Authority. We may notice that the

said judgment has not noticed larger bench judgments in S. Sree

Rama Rao and B.C. Chaturvedi as mentioned above. Therefore,

the orders passed by the Tribunal and the High Court suffer from

patent illegality and thus cannot be sustained in law. Accordingly,

appeal is allowed and orders passed by the Tribunal and the High

Court are set aside and the order of punishment imposed is

restored.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8071 OF 2014

THE STATE OF KARNATAKA Vs N. GANGARAJ 

HEMANT GUPTA, J.

Dated:FEBRUARY 14, 2020.

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Whether departmental proceeding will be vitiated if there is no actual service of charge sheet?

Thus, apparently the respondents had devised to proceed against the petitioner not only ex-parte but clandestinely, which is violative of the 'Principle of Natural Justice and fair play'. As has been ruled by Hon'ble Supreme Court in Union of India & Ors. vs. Dinanath Shantaram Karekar & Ors.: MANU/SC/0545/1998 : AIR 1988 SC 2722, that in the absence of actual service of the charge sheet, the entire proceedings are vitiated. The relevant excerpt of the judgment dated 30.07.1998 read as under:

"Where the services are terminated, the status of the delinquent, as a Government servant, comes to an end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated. Where the disciplinary proceedings are intended to be initiated by issuing a charge sheet, its actual service is essential as the person to whom the charge sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employees is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "Communication" cannot be invoked and "Actual Service" must be proved and established. It has already been found that neither the charge sheet not the show cause notice were ever served upon the original respondent, Dinanath Shantaram Karekar, consequently, the entire proceedings were vitiated."

IN THE HIGH COURT OF DELHI

W.P. (C) 13901/2018

Decided On: 05.11.2019

Anju Bala  Vs.  Gail (India) Limited and Ors.

Hon'ble Judges/Coram:

Suresh Kait, J.

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Who is competent authority to dismiss judicial officer from service without disciplinary enquiry?

 Learned counsel appearing for Komal Ram and Jitendra Nath

Singh had raised another contention relating to the power of the

High Court to dispense with the inquiry under clause (b) of the

second proviso to Article 311 of the Constitution. The contention is

that this power exclusively vests with the Governor alone who has

to satisfy himself and record in writing the reasons why it is not

reasonably practical to hold an inquiry. Reliance was placed on

the following observations in the Constitutional Bench judgment of

this Court in State of West Bengal v. Nripendra Nath Bagchi,11:

“...within the exercise of the control vested in the High

Court, the High Court can hold enquiries, impose

punishments other than dismissal or removal, subject

however to the conditions of service, to a right of

appeal if granted by the conditions of service, and to

the giving of an opportunity of showing cause as

required by clause (2) of Article 311 unless such

opportunity is dispensed with by the Governor acting

under the provisos (b) and (c) to that clause.”

17. The contention misreads the ratio in Nripendra Nath Bagchi

(supra), which rather holds to the contrary. Interpreting Articles

233 and 235 of the Constitution, and on the aspect of ‘control’ of

the High Court in matters relating to the subordinate judiciary in

Nripendra Nath Bagchi (supra), it was held:

“13. […] the history which lies behind the enactment of

these Articles indicate that “control” was vested in the

11 AIR 1966 SC 447

High Court to effectuate a purpose, namely, the

securing of the independence of the subordinate

judiciary and unless it included disciplinary control as

well the very object would be frustrated. This aid to

construction is admissible because to find out the

meaning of a law, recourse may legitimately be had to

the prior state of the law, the evil sought to be removed

and the process by which the law was evolved. The

word “control”, as we have seen, was used for the first

time in the Constitution and it is accompanied by the

word “vest” which is a strong word. It shows that the

High Court is made the sole custodian of the control

over the judiciary. Control, therefore, is not merely the

power to arrange the day to day working of the court

but contemplates disciplinary jurisdiction over the

presiding Judge. Article 227 gives to the High Court

superintendence over these courts and enables the

High Court to call for returns etc. The word “control” in

Article 235 must have a different content. It includes

something in addition to mere superintendence. It is

control over the conduct and discipline of the judges.

This conclusion is further strengthened by two other

indications pointing clearly in the same direction. The

first is that the order of the High Court is made subject

to an appeal if so provided in the law regulating the

conditions of service and this necessarily indicates an

order passed in disciplinary jurisdiction. Secondly, the

words are that the High Court shall “deal” with the

judge in accordance with his rules of service and the

word “deal” also points to disciplinary and not mere

administrative jurisdiction.

14. Articles 233 and 235 make a mention of two distinct

powers. The first is power of appointments of persons,

their postings and promotion and the other is power of

control. In the case of the District Judges,

appointments of persons to be and posting and

promotion are to be made by the Governor but the

control over the District Judge is of the High Court. We

are not impressed by the argument that the term used

is “District Court” because the rest of the Article clearly

indicates that the word “court” is used compendiously

to denote not only the court proper but also the

presiding Judge. The latter part of Article 235 talks of

the man who holds the office. In the case of the judicial

service subordinate to the District judge the

appointment has to be made by the Governor in

accordance with the rules to be framed after

consultation with the State Public Service Commission

and the High Court but the power of posting, promotion

and grant of leave and the control of the courts are

vested in the High Court. What is vested includes

disciplinary jurisdiction. Control is useless if it is not

accompanied by disciplinary powers. It is not to be

expected that the High Court would run to the

Government or the Governor in every case of

indiscipline however small and which may not even

require the punishment of dismissal or removal. These

Articles go to show that by vesting “control” in the High

Court the independence of the subordinate judiciary

was in view. This was partly achieved in the

Government of India Act, 1935 but it was given effect

to fully by the drafters of the present Constitution. This

construction is also in accord with the Directive

Principles in Article 50 of the Constitution which reads:

“50. The State shall take steps to separate

the judiciary from the executive in the public

services of the State”.

xx xx xx

17. […] That the Governor appoints District Judges and

the Governor alone can dismiss or remove them goes

without saying. That does not impinge upon the control

of the High Court. It only means that the High Court

cannot appoint or dismiss or remove District Judges. In

the same way the High Court cannot use the special

jurisdiction conferred by the two provisos. The High

Court cannot decide that it is not reasonably

practicable to give a District Judge an opportunity of

showing cause or that in the interest of the security of

the State it is not expedient to give such an

opportunity. This the Governor alone can decide. That

certain powers are to be exercised by the Governor

and not by the High Court does not necessarily take

away other powers from the High Courts. The provisos

can be given their full effect without giving rise to other

implications. It is obvious that if a case arose for the

exercise of the special powers under the two provisos,

the High Court must leave the matter to the Governor.

In this connection we may incidentally add that we

have no doubt that in exercising these special powers

in relation to inquiries against District Judges, the

Governor will always have regard to the opinion of the

High Court in the matter. This will be so whoever be

the inquiring authority in the State. But this does not

lead to the further conclusion that the High Court must

not hold the enquiry any more than that the Governor

should personally hold the enquiry.”

18. The expression/words “within the exercise of the control vested in

the High Court, the High Court can hold enquiries, impose

punishments other than dismissal or removal, subject however to

the conditions of service, to a right of appeal if granted by the

conditions of service, and to the giving of an opportunity of

showing cause as required by clause (2) of Article 311 unless

such opportunity is dispensed with by the Governor acting under

the provisos (b) and (c) to that clause” is not to deny the High

Court the authority to decide whether conditions for invoking

clause (b) of the second proviso to Article 311(2) are satisfied, but

recognises that the resolution and recommendation of dismissal,

removal or reduction in rank or for dispensing with the inquiry in

terms of clause (b) [also clause (c)] of the second proviso to

Article 311(2) would require an order of the Governor. The

observations do not hold that the Governor, and not the High

Court, is vested with the jurisdiction and is the competent authority

to decide whether the inquiry should be dispensed with upon

recording of satisfaction in terms of clause (b) of the second

proviso to Article 311(2) of the Constitution. The decision refers to

Article 235 of the Constitution and states that the control vests

with the High Court, albeit order of appointment, dismissal or

removal is passed and made in the name of the Governor who

passes the formal order be it a case of appointment, dismissal or

removal. This is clear from the last portion of paragraph 17 in

Nirpendra Nath Bagchi (supra) which records “that the Governor

will always have regard to the opinion of the High Court in the

matter. This will be the inquiring authority in the State. But this

does not lead to the further conclusion that the High Court must

not hold the enquiry any more than that the Governor should

personally hold the enquiry.”

This legal position with reference to Articles 233 to 236 and

‘control’ of the High Court is beyond doubt as was explained in

Ajit Kumar v. State of Jharkhand12 in the following words:

“15. The next contention raised by the appellant was

that the aforesaid power under Article 311(2)(b) of the

Constitution could not have been invoked by the High

Court. The aforesaid submission also cannot be

accepted in view of the fact that a Subordinate Judge is

also a Judge within the meaning of the provision of

Article 233 of the Constitution of India read with the

provisions of Articles 235 and 236 of the Constitution of

India.

12 (2011) 11 SCC 458

16. Article 233 clearly lays down that appointments and

promotions of District Judges in any State are to be

made by the Governor of the State in consultation with

the High Court exercising jurisdiction in relation to such

State. The aforesaid provision, like Articles 234 to 236,

has been incorporated in the Constitution of India inter

alia to secure the independence of the judiciary from

the executive and the same deals with the scope of

separation of power of the three wings of the State.

17. It cannot be disputed that the power under the

aforesaid articles [Articles 233-236] is to be exercised

by the Governor in consultation with the High Court.

Under the scheme of the Indian Constitution the High

Court is vested with the power to take decision for

appointment of the subordinate judiciary under Articles

234 to 236 of the Constitution. The High Court is also

vested with the power to see that the high traditions

and standards of the judiciary are maintained by the

selection of proper persons to run the District Judiciary.

If a person is found not worthy to be a member of the

judicial service or it is found that he has committed a

misconduct he could be removed from the service by

following the procedure laid down. Power could also be

exercised for such dismissal or removal by following

the preconditions as laid down under Article 311(2)(b)

of the Constitution of India. Even for imposing a

punishment of dismissal or removal or reduction in

rank, the High Court can hold disciplinary proceedings

and recommend such punishments. The Governor

alone is competent to impose such punishment upon

persons coming under Articles 233-235 read with

Article 311(2) of the Constitution of India. Similarly,

such a power could be exercised by the High Court to

dispense with an enquiry for a reason to be recorded in

writing and such dispensation of an enquiry for valid

reasons when recommended to the Governor, it is

within the competence of the Governor to issue such

orders in terms of the recommendation of the High

Court in exercise of power under Article 311(2)(b) of

the Constitution of India.” (emphasis supplied)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3105 OF 2017

HARI NIWAS GUPTA Vs  STATE OF BIHAR 

SANJIV KHANNA, J.

Dated:NOVEMBER 08, 2019.

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