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Friday, January 31, 2014

Service matter -Employee & Employer relationships - Dismissed in one case - No inquiry be continued in another case due to dismissal due to lack of Employee and Employer relationship - Respondent No.1 was dismissed pursuant to inquiry in the another charge-sheet - and as such present inquiry pertaining to the charge sheet can not be continued - High court accepted the same and terminate the proceedings - Apex court differed the flat reasons given by the High court as the respondent No.1 filed appeal against the dismissal orders and the same is pending - due to consumption of time - Apex court rejected the appeal of Govt . as no purpose would be served and confirmed the High court order = State of Maharashtra …...... Appellant(s) Versus Vijay Kumar Aggarwal & Anr. ….......Respondent(s) = 2014 ( January Part ) judis.nic.in/supreme court/filename=41188

Service matter - Employee & Employer relationships - Dismissed in one case - No inquiry be continued in another case due to dismissal due to lack of Employee and Employer relationship - Respondent No.1 was dismissed pursuant to inquiry in the another charge-sheet - and as such present inquiry pertaining to the charge sheet can not be continued - High court accepted the same and terminate the proceedings - Apex court differed the flat reasons given by the High court as the respondent No.1 filed appeal against the dismissal orders and the same is pending - due to consumption of time - Apex court rejected the appeal of Govt . as no purpose would be served and confirmed the High court order =
Accepting the contention of Respondent No. 1 that  he  has  since  been
    dismissed pursuant to inquiry in the  another  charge-sheet,  the  High
    Court has passed the impugned order dated 28.03.2012,  restraining  the
    appellant from proceeding ahead with the charge-sheet dated  6.07.1988.
    Operative portion of the order is as under:-
            “The inquiry against the petitioner  is  governed  by  the  All
           India Services (Discipline and Appeal) Rules, 1969  and  suffice
           would it be to state that having  levied  penalty  of  dismissal
           from service upon the petitioner  in  another  separate  inquiry
           pursuant to another charge-sheet, the instant inquiry pertaining
           to the charge-sheet dated  6.07.1988  cannot  continue  and  the
           proceeding have to terminate in as much as the Rules in question
           do not envisage a penalty to be imposed upon somebody who is not
           a member of the service and is not subject to the pension rules,
            Needless to state as a result of being dismissed from  service,
           the petitioner is not entitled to any pension.


            We accordingly disposed  of  the  application  restraining  the
           State of Maharashtra to  proceed  ahead  with  the  Charge-sheet
           dated 6.07.1988.”


12.  It is clear from the above that only on the ground that Respondent No.
    1 has already been dismissed from service in another separate  inquiry,
    the High Court has held that in so far as charge-sheet dated  6.07.1988
    is concerned, inquiry cannot  continue.  
We are of the opinion that the
    High Court is only  partially correct in his approach.   
No  doubt,  so
    long as Respondent No. 1 is facing penalty of  dismissal,  no  question
    arises to continue the inquiry into the charges levelled  vide  charge-
    sheet dated 6.07.1988. It is  because  of  the  reason  that  with  the
    dismissal of Respondent No. 1 from service, as of now Respondent No.  1
    has ceased to be the employee of the Appellant. 
Moreover, the  employee
    who has already been dismissed from  service   cannot  be  imposed  any
    other penalty on the  conclusion of inquiry pertaining to  the  charge-
    sheet dated  6.07.1988. 
Therefore, at this stage no purpose is going to
    be served to continue with the inquiry into the said charge-sheet.  
 At
    the same time, it is also to be borne in mind that Respondent No. 1 has
    challenged dismissal  order  and  the  matter  is  pending  before  the
    Tribunal. 
In case the said dismissal is set aside by the Tribunal  and/
    or the High Court/ this Court and Respondent No.  1  is  reinstated  in
    service as a result  thereof,  the  relationship  of  employer-employee
    between the parties shall also stand restored. 
In that eventuality,  it
    would be permissible for the appellant  to  proceed  with  the  inquiry
    relating to charge-sheet dated 6.07.1988 as well.  
Therefore,  normally
    such a direction of the High Court to the effect that “proceedings have
    to terminate” in so far as charge-sheet dated  6.07.1988  is  concerned
    would not  be  correct. 
 Instead  of   terminating   these  proceedings
    appropriate order as that should normally  be  passed  is  to  keep  in
    ‘abeyance’. 
That is the  course of action which  is  permissible  under
    the extant Rules as well as, in such circumstances.
13. Having clarified  the  legal  position,  a  question  that  arises  for
    consideration is as to 
whether this  Court  would  interfere  with  the
    orders passed by the High Court, in the facts and circumstances of this
    case. We may make it clear that in view of the aforesaid legal position
    we could have modified the orders of the High Court with  direction  to
    keep the inquiry proceedings  pertaining  to  the  charge  sheet  dated
    6.7.1998 instead of terminating the inquiry. 
However, there is  another
    important fact, which cannot be lost sight of and that compels  us  not
    to interfere with the impugned order of  the  High  Court.  
The  charge
    sheet in question is dated 6.7.1988. It pertains to the charges of  the
    period even prior thereto. This charge sheet  is  thus,  more  than  25
    years old. 
Further no  departmental  proceedings  in  respect  of  this
    charge sheet can start till the conclusion of the judicial  proceedings
    in respect of dismissal orders dated 2.4.2007 relating  to  the  charge
    sheet dated 4.5.1998. 
That process would consume  few  more  years.  We
    are, therefore, of the opinion that even if the dismissal order against
    Respondent No. 1 is ultimately set aside and he is reinstated  back  in
    service, reopening of the inquiry qua charge sheet dated 6.7.1988 after
    30 years or so would not serve any purpose. 
Thus,  while  not  agreeing
    with the reasons given by the High Court in the impugned order, for our
    own reasons as mentioned above, we are not inclined to  interfere  with
    the conclusion/ direction of the High Court in terminating the  inquiry
    pertaining to  charge-sheet  dated  6.7.1988,  in  exercise  of  powers
    conferred under Section 136  of  the  Constitution.  As  a  result  the
    present appeal is dismissed.


2014 ( January Part ) judis.nic.in/supreme court/filename=41188
         
K.S. RADHAKRISHNAN, A.K. SIKRI
          
 [Non-Reportable]

                       IN THE SUPREME COURT OF INDIA
                       CIVIL APPELLATE JURISDICTION
                            CIVIL APPEAL No.1020-1021/2014
                       (@Special Leave Petition (Civil) 2920-2921/2014)
                          (Arising out of CC No. 17498-17499/2013)

    State of Maharashtra                          …...... Appellant(s)


                                      Versus


    Vijay Kumar Aggarwal & Anr.                   ….......Respondent(s)




                               J U D G M E N T

    A.K.SIKRI, J.

 1. Delay Condoned.
 2. Leave Granted.
 3. Since counsel for the State  of  Maharashtra  (Appellant)  as  well  as
    Respondent No. 1, who appears in  person,  were   ready  to  argue  the
    matter finally, we heard both the parties at length.
 4. The issue involved in the present case is in  a  very  narrow  compass,
    though actual matrix, stated in this matter, is irritatingly long.   In
    any case, it is not necessary for us  to  narrate  all  the  background
    facts in their entirety.  Eschewing those details which are  altogether
    unnecessary for the disposal of the present appeal, we state here under
    those only facts that are relevant for our purpose.
 5. Having successfully cleared the Civil Services  Examination  and  being
    allocated Maharashtra Cadre, as a member of the  Indian  Administrative
    Services (IAS), Respondent No. 1 joined the service  in  the  State  of
    Maharashtra on 1.09.1982.  While, discharging duties in that  capacity,
    he was suspended from service vide order  dated  26.05.1988  which  was
    followed by charge-sheet dated 6.07.1988 for major penalty proceedings.
    Respondent No. 1 had challenged the legality  of  suspension  order  as
    well as the  validity  of  said  charge-sheet.   However,  we  are  not
    concerned with all those proceedings.  We may only mention that in  all
    three charge-sheets were served upon Respondent No. 1  namely,  charge-
    sheet  dated  6.07.1988,  4.5.1998  as  well  as   charge-sheet   dated
    5.10.1998.  Though, departmental inquiries started in these  cases  and
    gave rise to multiple litigation, some of which would be taken  a  note
    of hereinafter, it is pertinent to mention at this stage  that  on  the
    basis of departmental inquiry conducted into the charges levelled  vide
    charge-sheet dated 5.10.1998,  Respondent  No.  1  was  dismissed  from
    service vide order dated  2.04.2007.
 6.  In the charge-sheet dated 4.05.1998, the mis-demeanour alleged against
    Respondent No. 1 was that he unauthorizedly absented from duty i.e. did
    not join duty even after his suspension was withdrawn.   In  the  third
    charge-sheet dated 5.10.1998, the  charge  related  to  not  filing  of
    annual returns.
 7.  Respondent No. 1 had challenged the validity  of  these  charge-sheets
    before the Central  Administrative  Tribunal  in  which  he  could  not
    succeed.  His writ petitions challenging the  orders  of  the  Tribunal
    were also dismissed.  These writ petitions were  taken  up  along  with
    four other writ petitions and all these writ petitions were decided  by
    the High Court vide common judgment dated 14.12.2010.  While  repelling
    the challenge to the validity of the charge-sheets the High Court  had,
    inter alia, observed as under:-
                 “ We need not dilate on the issue for  the  simple  reason
           the petitioner could earn no promotion till he was exonerated in
           the disciplinary proceedings and we note that the petitioner  is
           facing three inquiries and is himself responsible for the  delay
           and we note that in one of them i.e.  the  2nd  charge-sheet  an
           order dismissing him from service has already been passed  which
           is under challenge before the Tribunal.”


 8.  We may record here that initially Respondent No. 1 had filed  C.M.  in
    this court and it had granted stay of the inquiry  proceedings  in  the
    writ petition filed by   Respondent  No.  1.  However,  that  writ  was
    dismissed on 7.10.2002 and thereafter, Inquiry Officer was appointed on
    20.12.2002. At that stage the Respondent No. 1 had sought  quashing  of
    the charge-sheet dated 6.07.1988 by filing OA No. 1386/06.  In that OA,
    he had prayed for quashing of order dated  20.12.2002  as  well,  under
    which  the  inquiry  officer  was  appointed  to  conduct  an   inquiry
    pertaining to the said charge-sheet.  This  OA  was  dismissed  by  the
    Tribunal which was subject matter of challenge in Writ  Petition(Civil)
    No.  2563 of 2007.  This writ petition was also  dismissed  along  with
    other batch matters by the aforesaid common judgment.   Discussion   of
    the High Court, while declining to quash the charge-sheet  dated  6.07.
    1988 is contained in  paras  54  to  59  of  the  said  judgment  dated
    14.12.2010. We would like to reproduce  certain  portions  thereof,  as
    under:-
                 “The  Original  Application  has  been  dismissed  by  the
           Tribunal by the Tribunal holding that no mala fide  against  any
           officer and much against the one who has issued the charge-sheet
           has been established.  It has been held that the charges are not
           vague.  It has been held that it is  impermissible  to  consider
           the evidence relied upon by the petitioner to determine  whether
           the charges are maintainable.  It has been held that  it  cannot
           be said that the charges do not attract a disciplinary action.


                  We  may  note  that  during  arguments  before  us,   the
           petitioner was not  understanding  the  difference  between  the
           maintainability of an action vis-a-vis its  sustainability.   It
           appears that before the Tribunal the petitioner was arguing with
           reference to the  material  on  which  he  wanted  to  rely  and
           thereupon show that the charges could not be sustained; needless
           to state the issue, when a charge-sheet is  challenged,  is  not
           whether the charge can ultimately be sustained.   The  issue  is
           whether there is prima facie material to maintain the charge and
           whether on the allegations made in the statement of imputation a
           charge is attracted.


                 xxxxxx


                 The petitioner has not alleged any mala fide  against  any
           officer and none has been impleaded  as  a  respondent.   During
           arguments the petitioner wanted us to  look  into  the  material
           which has yet to take the shape of evidence and thus we  refrain
           from commenting upon the issue for the reason it would  be  pre-
           mature for us to express any  view  on  the  material  on  basis
           whereof the charge-sheet has been  issued.   Thus,  we  find  no
           merit in WP(C) No. 2563 of 2007 and concur with the reasoning of
           the Tribunal that it would be pre-mature to express any  opinion
           and as clarified by the Tribunal in  para  83  of  the  impugned
           decision,  in  case  any  final  order  is  passed  against  the
           petitioner, he may raise all legally permissible pleas.”


 9. The Respondent did not challenge the  aforesaid  order  by  approaching
    this court. At  this  stage,  the  position  relating  to  departmental
    inquiries against the respondent,  can be summed up as under:-
        1. Respondent No. 1  was  served  with  three  charge-sheets  dated
           6.07.1988, 4.05.1998 and  5.10.1998.


        2. He had challenged the validity of these charge-sheets but failed
           in his attempts.


        3. Because of  the pendency of various proceedings in one  judicial
           forum or the other, the departmental proceedings  were  delayed.
           In fact, in so far as charge-sheet dated 6.07.1988 is concerned,
            stay of proceedings was granted by this court  which  continued
           up to October, 2002.  Thereafter, when the Inquiry  Officer  was
           appointed on 20.12.2002, Respondent No. 1 filed  OA  before  the
           Tribunal seeking quashing of the charge-sheet as well as  orders
           dated 20.12.2002.   The  Tribunal   dismissed  the  said  OA  on
           6.08.2007.  Respondent No. 1 filed  review  petition  which  was
           also dismissed  on  17.01.  2007.   Thereafter,  he  filed  Writ
           Petition(Civil)  No.   2563  of  2007  which  was  dismissed  on
           14.12.2010.


        4. In the meantime, the  inquiry  into  second  charge-sheet  dated
           4.05.1998  proceeded which resulted in the  order  of  dismissal
           from service passed against Respondent No. 1. The Respondent No.
           1 has challenged the  dismissal order and his OA in this  behalf
           is pending before the Tribunal.


10.  It so happened that Respondent No. 1 filed C.M. No. 18072 of  2011  in
    already decided Writ Petition (Civil) No. 2563 of 2007. This  C.M.  was
    dismissed by the High Court vide its order dated 21.11.2011,  observing
    that under the garb of that C.M., Respondent No. 1 was in fact  seeking
    review of the  judgment  dated  14.12.2010  and  as  such  it  was  not
    maintainable.  Respondent No.  1  thereafter  filed  another  C.M.  No.
    19106 of 2011  in Civil Writ  Petition No. 2563 of 2007.  In this  C.M.
    No.  19106 of 2011,  he submitted that inquiry  into  the  charge-sheet
    dated 6.07.1988 could not proceed as it was unduly prolonged.   He  had
    relied upon order dated  21.07.2008,   as  per  which  High  Court  had
    directed that if it is permissible in law, the inquiry in question  may
    be continued pertaining to the said charge-sheet keeping  in  view  the
    fact that in  another inquiry, penalty of dismissal  from  service  was
    already  inflicted upon the petitioner. In the order  dated  21.7.2008,
    further direction was given to conclude the inquiry within 8 months. On
    that basis, in the C.M. Filed by Respondent No.  1,  he  had  contended
    that no other inquiry could continue as  he  had  been  dismissed  from
    service in one enquiry. In the alternative,  as  the  enquiry  was  not
    concluded within 8 months as directed vide orders dated 21.7.2008,  the
    charge-sheet lapsed.
11. Accepting the contention of Respondent No. 1 that  he  has  since  been
    dismissed pursuant to inquiry in the  another  charge-sheet,  the  High
    Court has passed the impugned order dated 28.03.2012,  restraining  the
    appellant from proceeding ahead with the charge-sheet dated  6.07.1988.
    Operative portion of the order is as under:-
            “The inquiry against the petitioner  is  governed  by  the  All
           India Services (Discipline and Appeal) Rules, 1969  and  suffice
           would it be to state that having  levied  penalty  of  dismissal
           from service upon the petitioner  in  another  separate  inquiry
           pursuant to another charge-sheet, the instant inquiry pertaining
           to the charge-sheet dated  6.07.1988  cannot  continue  and  the
           proceeding have to terminate in as much as the Rules in question
           do not envisage a penalty to be imposed upon somebody who is not
           a member of the service and is not subject to the pension rules,
            Needless to state as a result of being dismissed from  service,
           the petitioner is not entitled to any pension.


            We accordingly disposed  of  the  application  restraining  the
           State of Maharashtra to  proceed  ahead  with  the  Charge-sheet
           dated 6.07.1988.”


12.  It is clear from the above that only on the ground that Respondent No.
    1 has already been dismissed from service in another separate  inquiry,
    the High Court has held that in so far as charge-sheet dated  6.07.1988
    is concerned, inquiry cannot  continue.
We are of the opinion that the
    High Court is only  partially correct in his approach.  
No  doubt,  so
    long as Respondent No. 1 is facing penalty of  dismissal,  no  question
    arises to continue the inquiry into the charges levelled  vide  charge-
    sheet dated 6.07.1988. It is  because  of  the  reason  that  with  the
    dismissal of Respondent No. 1 from service, as of now Respondent No.  1
    has ceased to be the employee of the Appellant.
Moreover, the  employee
    who has already been dismissed from  service   cannot  be  imposed  any
    other penalty on the  conclusion of inquiry pertaining to  the  charge-
    sheet dated  6.07.1988.
Therefore, at this stage no purpose is going to
    be served to continue with the inquiry into the said charge-sheet.
 At
    the same time, it is also to be borne in mind that Respondent No. 1 has
    challenged dismissal  order  and  the  matter  is  pending  before  the
    Tribunal. 
In case the said dismissal is set aside by the Tribunal  and/
    or the High Court/ this Court and Respondent No.  1  is  reinstated  in
    service as a result  thereof,  the  relationship  of  employer-employee
    between the parties shall also stand restored.
In that eventuality,  it
    would be permissible for the appellant  to  proceed  with  the  inquiry
    relating to charge-sheet dated 6.07.1988 as well.
Therefore,  normally
    such a direction of the High Court to the effect that “proceedings have
    to terminate” in so far as charge-sheet dated  6.07.1988  is  concerned
    would not  be  correct.
 Instead  of   terminating   these  proceedings
    appropriate order as that should normally  be  passed  is  to  keep  in
    ‘abeyance’.
That is the  course of action which  is  permissible  under
    the extant Rules as well as, in such circumstances.
13. Having clarified  the  legal  position,  a  question  that  arises  for
    consideration is as to
whether this  Court  would  interfere  with  the
    orders passed by the High Court, in the facts and circumstances of this
    case. We may make it clear that in view of the aforesaid legal position
    we could have modified the orders of the High Court with  direction  to
    keep the inquiry proceedings  pertaining  to  the  charge  sheet  dated
    6.7.1998 instead of terminating the inquiry. 
However, there is  another
    important fact, which cannot be lost sight of and that compels  us  not
    to interfere with the impugned order of  the  High  Court.
The  charge
    sheet in question is dated 6.7.1988. It pertains to the charges of  the
    period even prior thereto. This charge sheet  is  thus,  more  than  25
    years old.
Further no  departmental  proceedings  in  respect  of  this
    charge sheet can start till the conclusion of the judicial  proceedings
    in respect of dismissal orders dated 2.4.2007 relating  to  the  charge
    sheet dated 4.5.1998. 
That process would consume  few  more  years.  We
    are, therefore, of the opinion that even if the dismissal order against
    Respondent No. 1 is ultimately set aside and he is reinstated  back  in
    service, reopening of the inquiry qua charge sheet dated 6.7.1988 after
    30 years or so would not serve any purpose. 
Thus,  while  not  agreeing
    with the reasons given by the High Court in the impugned order, for our
    own reasons as mentioned above, we are not inclined to  interfere  with
    the conclusion/ direction of the High Court in terminating the  inquiry
    pertaining to  charge-sheet  dated  6.7.1988,  in  exercise  of  powers
    conferred under Section 136  of  the  Constitution.  As  a  result  the
    present appeal is dismissed.




                                 …........................................J.
                                                        [K.S. RADHAKRISHNAN]








                                 …........................................J.
                                                                [A.K. SIKRI]






    New Delhi
    29th January  , 2014

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