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
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
