published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40611
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6150 OF 2013
[Arising out of SLP (C) No. 5230 of 2013]
D.H.B.V.N.L. Vidyut Nagar, Hisar & Others .. Appellants
Versus
Yashvir Singh Gulia .. Respondent
J U D G M E N T
K. S. Radhakrishnan, J.
Leave granted.
2. The question that arises for consideration in this appeal is
whether
once a charge-sheet has been issued for imposition of a major penalty under Regulation 7 of the Haryana State Electricity Board Employees (Punishment & Appeal) Regulations, 1990 [for short “the Regulations 1990”], is it obligatory on the part of the Disciplinary Authority to conduct a full
fledged departmental inquiry even if, after considering the reply of the delinquent, the authority decides to impose a minor penalty, for which no departmental inquiry is provided under the Regulations.
3. The respondent herein who was working as an Assistant Law Officer,
was served with a charge-sheet on 14.8.1992 alleging that he had exceeded
his power by directing implementation of an arbitration award dated
10.9.1991 without getting approval of the superior Authorities.
Respondent filed three replies to the charge-sheet and the replies
submitted by the respondent were considered by the Board and it was decided
to impose only a minor penalty vide its order dated 4.7.1994, the operative
portion of which reads as follows:
“HARYANA STATE ELECY. BOARD
OFFICE ORDER NO. 144/COMF-2407 DATED 4.7.94
Having considered the reply submitted by Sh. Y.S. Gulia, A.L.O.
through his letters dated 20.1.93, 24.1.94 & dated 27.4.94 to the
charge sheet served upon him vide this office Memo No. Ch-4/Conf-2497
(IB-2(1010) dt. 14.8.92 in light of the comments given by L.B., BSEB,
Punchkula through his note dated 6.6.94 and record/material available
with this office, it has been decided to stop his one increment
without future effect as Sh. Y.S. Gulia, ALO has been found
responsible for not seeking the approval of L.R., HSEB, Panchkula
before conveying the advice to Xen(OP) Divn., HSEB, Gurgaon to
implement the award dt. 30.9.91 amount to Rs.26 lacs of the Arbitrator
given in M/s. Kegg Farm.
As such one increment of Sh. Y.S. Gulia, Asstt. Law is hereby
stopped without future effect.
This issues with the approval of MA&PF, HSEB, Panchkula.”
4. Respondent preferred an appeal before the Appellate Authority of the
Board. The same was, however, rejected by the Appellate Authority vide its
order dated 22.5.1995.
5. Respondent, after a lapse of 10 years, filed a Civil Suit No. 157 of
2005 before the Civil Judge (JD), Gurgaon for a declaration that the order
dated 4.7.1994 and the Appellate Authority’s order dated 22.5.1995 were
illegal and void and also for mandatory injunction directing the Board to
refund the amount of one increment deducted from his salary with 18%
interest. The Civil Judge dismissed the suit vide his judgment dated
29.1.2009.
6. Aggrieved by the same, respondent preferred an appeal being C.A. No.
34 of 2009 before the District Judge, Gurgaon. It was contended before the
learned District Judge that the Board had committed a gross illegality in
not holding a regular departmental inquiry after having initiated major
penalty proceeding under Regulation 7 of the Regulations 1990. This
argument was accepted by the learned District Judge holding that having
invoked Regulation 7, the Board should have conducted a regular
departmental inquiry and inflicting minor punishment without holding a
regular departmental inquiry was illegal. Holding so, the order
passed by the Civil Judge was set aside and the suit was decreed.
7. Aggrieved by the said order, the Board preferred R.S.A. No. 3094 of
2011 before the High Court of Punjab & Haryana. The appeal was dismissed
holding that no substantial question of law arose for its consideration.
Further, it was also held that the Board was bound to hold a regular
departmental inquiry and minor punishment could not have been imposed
merely considering the reply submitted by the respondent. Aggrieved by
the same, this appeal has been preferred.
8. Shri Narender Hooda, Additional Advocate General appearing for the
Board, submitted that the High Court has not properly appreciated the scope
of Regulations 1990. Shri Hooda submitted that the Board was within its
rights in not holding regular departmental inquiry since it was decided to
impose only a minor penalty which is permissible under Regulations 1990.
Shri Hooda also submitted that the rule does not provide for regular
departmental inquiry for imposing minor punishment, consequently, non-
conducting of regular departmental inquiry against the respondent cannot be
a reason for interfering with the punishment imposed by the Board which is
barring of one increment without cumulative effect. Further, it was also
pointed out that there was considerable delay in approaching the Civil
Court, the order imposing the punishment was passed on 4.8.1994, but the
suit was filed only after a period of 10 years i.e. 13.6.2005 and hence the
suit itself was barred by time.
9. Ms. Surbhi Mehta, learned counsel appearing for the respondent, on
the other hand, submitted that there is no illegality in the order passed
by the High Court calling for interference by this Court. Learned counsel
pointed out that once the charge-sheet has been issued under Regulation 7,
the Board is duty bound to conduct a regular departmental inquiry, since
major penalty proceeding has been contemplated against the respondent.
Learned counsel also submitted merely by examining the replies submitted by
the delinquent, the authority cannot impose a minor penalty without holding
a regular departmental inquiry. The High Court, according to the learned
counsel, was, therefore, justified in not interfering with the judgment of
the learned District Judge.
10. We have heard the counsel on either side and examined various
contentions raised by them. In order to properly appreciate the various
contentions raised and to examine the correctness or otherwise the views
expressed by the High Court, it is necessary to examine the relevant
provisions of the Regulations 1990. Regulations 1990 was issued by the
Board in exercise of its power conferred under Clause (c) of Section 79 of
the Electricity (Supply) Act, 1948 for governing the conditions of the
service of the employees of the Board. The term “Punishing Authority” has
been defined under Regulation 2(g) as an authority notified under the
Service Regulations to inflict on a Board employee any of the penalties
specified in Regulation 4. Regulation 4 deals with both minor penalties as
well as major penalties. The relevant portion of Regulation 4 is extracted
for an easy reference:
“4. PENALTIES:
The following penalties may, for good and sufficient reasons,
and as hereinafter provided, be inflicted on an employee:-
A. MINOR PENALTIES:
i) Warning with a copy to be placed in the personal/(Character
roll) File;
ii) Censure;
iii) Withholding/stoppage if increments of pay without cumulative
effect;
iv) Withholding of promotion for a specific period;
v) Recover from pay of the whole or part of any pecuniary loss,
caused by negligence or breach of orders of the Board or Central
Government or a State Government or to a Company Association or
body of individuals, whether incorporated or not, which is
wholly or substantially owned or controlled by Government or to
a local authority set-up by an Act of Parliament or the
Legislature of a State, during discharge of official duty.
B. MAJOR PENALTIES:
vi) Reduction to a lower stage in the time scale of pay for a
specified period, with further directions as to whether or not
the employee will earn increments of pay during the period of
such reduction and whether on the expiry of such period, the
reduction will or will not have the effect of post-pending the
future increments of his pay.
vii) Reduction to a lower scale of pay or grade, post or service,
which shall ordinarily be a bar to the promotion of the employee
to the time scale of pay or grade or post or service, from which
he was reduced with or without further directions regarding
conditions of restoration to the grade or post or service from
which the employee was reduced and seniority and pay on such
restoration to that grade or post or service;
viii) Compulsory retirement;
ix) Removal from service which shall not be a disqualification for
future employment under the Board;
x) Dismissal from service which shall ordinarily be a
disqualification for future employment under the Board/State
Govt./State Govt. Undertakings.”
The procedure for inflicting major penalties is provided in Regulation 7.
The relevant portion of the same is extracted hereunder:
“7. PROCEDURE FOR INFLICTING MAJOR PENALTIES:
1) Without prejudice to the provisions of the Public Servants
(Inquiries) Act, 1850; no order of inflicting a major penalty,
shall be passed against a person to whom these Regulations are
applicable unless he has been given a reasonable opportunity of
showing cause against the action proposed to be taken in regard to
him.
2) (a) The grounds on which it is proposed to take such action,
shall be reduced to the form of definite charge or charges which
shall be communicated in writing to the person charged, together
with a statement of allegations on which each charge is based
alongwith a list of documents and witnesses to be relied-upon and
of any other circumstances which it is proposed to take into
consideration in passing orders on the case and he shall be
required within a reasonable time to state in writing whether he
admits the truth of all or any, of the charges, what explanation of
defence, if any, he has to offer and whether he desires to be heard
in person. If he so desires, or if the authority empowered to
inflict major penalty upon him so directs, an enquiry shall be held
at which all evidence(s) shall be heard as to such of the charges
as are not admitted.”
The procedure for inflicting minor penalties is proved in Regulation 8,
which reads as follows:
“8. PROCEDURE FOR INFLICTING MINOR PENALTIES:
(a) Without prejudice to the provisions of Regulations 7, an
order for inflicting minor penalty shall not be passed on an employee
unless he has been given a show-cause notice thereof and a reasonable
opportunity of making representation there-against. If he requests
for access to relevant record it may be allowed and opportunity of
personal hearing be also given. Request for personal hearing may be
rejected by the punishing authority by passing a speaking order.
(b) Provided that this condition shall not apply in a case
where an order based on facts, has led to his conviction in a Criminal
Court or an order has been passed superseding him for promotion to a
higher post on the grounds of his unfitness for that post on account
of the existence of unsatisfactory record.”
11. The abovementioned provisions would indicate that an employee can be
charge-sheeted for inflicting major penalties as well as minor penalties.
In a given case even if a major penalty has been proposed on getting the
reply from the delinquent, if the competent authority feels that no major
penalty proceeding need be initiated, it can always switch over to initiate
proceeding for inflicting minor penalties.
Such a power is conferred on
the Board vide Sub-regulation 8 of Regulation 7, which reads as follows:
“7(8). Where an employee has been charge-sheeted under this regulation and the Competent Authority, on receipt of his reply to the charge sheet is of the opinion that no major punishment as laid down in Regulation-4 (vi to x) is called for, it may dispense with the holding of enquiry and inflict straight-away any of the minor penalties as laid down in Clause (i) to (v) of the ibid Regulation by a speaking order.”
12. Above referred regulations, especially Regulation 7(8) clearly
indicates that the competent authority has got the power to dispense with
the procedure for holding a departmental inquiry, even though it had
contemplated major penalty proceedings, on being satisfied with the reply
submitted by the delinquent officer.
In such a case, it can always follow
the procedure for imposing minor penalty. Minor penalty, as per the
Regulation, can be inflicted without holding any departmental inquiry, by
giving only a show-cause-notice and a reasonable opportunity to make a
representation to the show-cause-notice.
Personal hearing can also be
afforded and also can be dispensed with by a speaking order.
13. We are of the view that the procedure referred to hereinbefore has
been followed by the Board.
The delinquent officer was given an
opportunity to submit his reply to the show-cause-notice which was considered and the Board took a conscious decision to impose only a minor penalty, i.e. barring one increment without cumulative effect, for which no full-fledged departmental inquiry is contemplated.
Learned District Judge
as well as the High Court, in our view, has committed a grave error in interfering with the punishment imposed by the Board which, in our view, is perfectly legal, going by the regulations referred to herein before.
14. Consequently, the appeal is allowed and the judgment of the learned District Judge as well as that of the High Court is set aside.
15. Learned counsel for the respondent submits that, by virtue of the
punishment imposed, he has not been given his due promotion. We are of the
view that if imposition of a minor penalty is not a bar in granting
promotion to the respondent, due promotion be granted to him in accordance
with the Rules and Regulations applicable to him.
……………………………..J.
(K.S. Radhakrishnan)
……………………………..J.
(Pinaki Chandra Ghose)
New Delhi,
July 30, 2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6150 OF 2013
[Arising out of SLP (C) No. 5230 of 2013]
D.H.B.V.N.L. Vidyut Nagar, Hisar & Others .. Appellants
Versus
Yashvir Singh Gulia .. Respondent
J U D G M E N T
K. S. Radhakrishnan, J.
Leave granted.
2. The question that arises for consideration in this appeal is
whether
once a charge-sheet has been issued for imposition of a major penalty under Regulation 7 of the Haryana State Electricity Board Employees (Punishment & Appeal) Regulations, 1990 [for short “the Regulations 1990”], is it obligatory on the part of the Disciplinary Authority to conduct a full
fledged departmental inquiry even if, after considering the reply of the delinquent, the authority decides to impose a minor penalty, for which no departmental inquiry is provided under the Regulations.
3. The respondent herein who was working as an Assistant Law Officer,
was served with a charge-sheet on 14.8.1992 alleging that he had exceeded
his power by directing implementation of an arbitration award dated
10.9.1991 without getting approval of the superior Authorities.
Respondent filed three replies to the charge-sheet and the replies
submitted by the respondent were considered by the Board and it was decided
to impose only a minor penalty vide its order dated 4.7.1994, the operative
portion of which reads as follows:
“HARYANA STATE ELECY. BOARD
OFFICE ORDER NO. 144/COMF-2407 DATED 4.7.94
Having considered the reply submitted by Sh. Y.S. Gulia, A.L.O.
through his letters dated 20.1.93, 24.1.94 & dated 27.4.94 to the
charge sheet served upon him vide this office Memo No. Ch-4/Conf-2497
(IB-2(1010) dt. 14.8.92 in light of the comments given by L.B., BSEB,
Punchkula through his note dated 6.6.94 and record/material available
with this office, it has been decided to stop his one increment
without future effect as Sh. Y.S. Gulia, ALO has been found
responsible for not seeking the approval of L.R., HSEB, Panchkula
before conveying the advice to Xen(OP) Divn., HSEB, Gurgaon to
implement the award dt. 30.9.91 amount to Rs.26 lacs of the Arbitrator
given in M/s. Kegg Farm.
As such one increment of Sh. Y.S. Gulia, Asstt. Law is hereby
stopped without future effect.
This issues with the approval of MA&PF, HSEB, Panchkula.”
4. Respondent preferred an appeal before the Appellate Authority of the
Board. The same was, however, rejected by the Appellate Authority vide its
order dated 22.5.1995.
5. Respondent, after a lapse of 10 years, filed a Civil Suit No. 157 of
2005 before the Civil Judge (JD), Gurgaon for a declaration that the order
dated 4.7.1994 and the Appellate Authority’s order dated 22.5.1995 were
illegal and void and also for mandatory injunction directing the Board to
refund the amount of one increment deducted from his salary with 18%
interest. The Civil Judge dismissed the suit vide his judgment dated
29.1.2009.
6. Aggrieved by the same, respondent preferred an appeal being C.A. No.
34 of 2009 before the District Judge, Gurgaon. It was contended before the
learned District Judge that the Board had committed a gross illegality in
not holding a regular departmental inquiry after having initiated major
penalty proceeding under Regulation 7 of the Regulations 1990. This
argument was accepted by the learned District Judge holding that having
invoked Regulation 7, the Board should have conducted a regular
departmental inquiry and inflicting minor punishment without holding a
regular departmental inquiry was illegal. Holding so, the order
passed by the Civil Judge was set aside and the suit was decreed.
7. Aggrieved by the said order, the Board preferred R.S.A. No. 3094 of
2011 before the High Court of Punjab & Haryana. The appeal was dismissed
holding that no substantial question of law arose for its consideration.
Further, it was also held that the Board was bound to hold a regular
departmental inquiry and minor punishment could not have been imposed
merely considering the reply submitted by the respondent. Aggrieved by
the same, this appeal has been preferred.
8. Shri Narender Hooda, Additional Advocate General appearing for the
Board, submitted that the High Court has not properly appreciated the scope
of Regulations 1990. Shri Hooda submitted that the Board was within its
rights in not holding regular departmental inquiry since it was decided to
impose only a minor penalty which is permissible under Regulations 1990.
Shri Hooda also submitted that the rule does not provide for regular
departmental inquiry for imposing minor punishment, consequently, non-
conducting of regular departmental inquiry against the respondent cannot be
a reason for interfering with the punishment imposed by the Board which is
barring of one increment without cumulative effect. Further, it was also
pointed out that there was considerable delay in approaching the Civil
Court, the order imposing the punishment was passed on 4.8.1994, but the
suit was filed only after a period of 10 years i.e. 13.6.2005 and hence the
suit itself was barred by time.
9. Ms. Surbhi Mehta, learned counsel appearing for the respondent, on
the other hand, submitted that there is no illegality in the order passed
by the High Court calling for interference by this Court. Learned counsel
pointed out that once the charge-sheet has been issued under Regulation 7,
the Board is duty bound to conduct a regular departmental inquiry, since
major penalty proceeding has been contemplated against the respondent.
Learned counsel also submitted merely by examining the replies submitted by
the delinquent, the authority cannot impose a minor penalty without holding
a regular departmental inquiry. The High Court, according to the learned
counsel, was, therefore, justified in not interfering with the judgment of
the learned District Judge.
10. We have heard the counsel on either side and examined various
contentions raised by them. In order to properly appreciate the various
contentions raised and to examine the correctness or otherwise the views
expressed by the High Court, it is necessary to examine the relevant
provisions of the Regulations 1990. Regulations 1990 was issued by the
Board in exercise of its power conferred under Clause (c) of Section 79 of
the Electricity (Supply) Act, 1948 for governing the conditions of the
service of the employees of the Board. The term “Punishing Authority” has
been defined under Regulation 2(g) as an authority notified under the
Service Regulations to inflict on a Board employee any of the penalties
specified in Regulation 4. Regulation 4 deals with both minor penalties as
well as major penalties. The relevant portion of Regulation 4 is extracted
for an easy reference:
“4. PENALTIES:
The following penalties may, for good and sufficient reasons,
and as hereinafter provided, be inflicted on an employee:-
A. MINOR PENALTIES:
i) Warning with a copy to be placed in the personal/(Character
roll) File;
ii) Censure;
iii) Withholding/stoppage if increments of pay without cumulative
effect;
iv) Withholding of promotion for a specific period;
v) Recover from pay of the whole or part of any pecuniary loss,
caused by negligence or breach of orders of the Board or Central
Government or a State Government or to a Company Association or
body of individuals, whether incorporated or not, which is
wholly or substantially owned or controlled by Government or to
a local authority set-up by an Act of Parliament or the
Legislature of a State, during discharge of official duty.
B. MAJOR PENALTIES:
vi) Reduction to a lower stage in the time scale of pay for a
specified period, with further directions as to whether or not
the employee will earn increments of pay during the period of
such reduction and whether on the expiry of such period, the
reduction will or will not have the effect of post-pending the
future increments of his pay.
vii) Reduction to a lower scale of pay or grade, post or service,
which shall ordinarily be a bar to the promotion of the employee
to the time scale of pay or grade or post or service, from which
he was reduced with or without further directions regarding
conditions of restoration to the grade or post or service from
which the employee was reduced and seniority and pay on such
restoration to that grade or post or service;
viii) Compulsory retirement;
ix) Removal from service which shall not be a disqualification for
future employment under the Board;
x) Dismissal from service which shall ordinarily be a
disqualification for future employment under the Board/State
Govt./State Govt. Undertakings.”
The procedure for inflicting major penalties is provided in Regulation 7.
The relevant portion of the same is extracted hereunder:
“7. PROCEDURE FOR INFLICTING MAJOR PENALTIES:
1) Without prejudice to the provisions of the Public Servants
(Inquiries) Act, 1850; no order of inflicting a major penalty,
shall be passed against a person to whom these Regulations are
applicable unless he has been given a reasonable opportunity of
showing cause against the action proposed to be taken in regard to
him.
2) (a) The grounds on which it is proposed to take such action,
shall be reduced to the form of definite charge or charges which
shall be communicated in writing to the person charged, together
with a statement of allegations on which each charge is based
alongwith a list of documents and witnesses to be relied-upon and
of any other circumstances which it is proposed to take into
consideration in passing orders on the case and he shall be
required within a reasonable time to state in writing whether he
admits the truth of all or any, of the charges, what explanation of
defence, if any, he has to offer and whether he desires to be heard
in person. If he so desires, or if the authority empowered to
inflict major penalty upon him so directs, an enquiry shall be held
at which all evidence(s) shall be heard as to such of the charges
as are not admitted.”
The procedure for inflicting minor penalties is proved in Regulation 8,
which reads as follows:
“8. PROCEDURE FOR INFLICTING MINOR PENALTIES:
(a) Without prejudice to the provisions of Regulations 7, an
order for inflicting minor penalty shall not be passed on an employee
unless he has been given a show-cause notice thereof and a reasonable
opportunity of making representation there-against. If he requests
for access to relevant record it may be allowed and opportunity of
personal hearing be also given. Request for personal hearing may be
rejected by the punishing authority by passing a speaking order.
(b) Provided that this condition shall not apply in a case
where an order based on facts, has led to his conviction in a Criminal
Court or an order has been passed superseding him for promotion to a
higher post on the grounds of his unfitness for that post on account
of the existence of unsatisfactory record.”
11. The abovementioned provisions would indicate that an employee can be
charge-sheeted for inflicting major penalties as well as minor penalties.
In a given case even if a major penalty has been proposed on getting the
reply from the delinquent, if the competent authority feels that no major
penalty proceeding need be initiated, it can always switch over to initiate
proceeding for inflicting minor penalties.
Such a power is conferred on
the Board vide Sub-regulation 8 of Regulation 7, which reads as follows:
“7(8). Where an employee has been charge-sheeted under this regulation and the Competent Authority, on receipt of his reply to the charge sheet is of the opinion that no major punishment as laid down in Regulation-4 (vi to x) is called for, it may dispense with the holding of enquiry and inflict straight-away any of the minor penalties as laid down in Clause (i) to (v) of the ibid Regulation by a speaking order.”
12. Above referred regulations, especially Regulation 7(8) clearly
indicates that the competent authority has got the power to dispense with
the procedure for holding a departmental inquiry, even though it had
contemplated major penalty proceedings, on being satisfied with the reply
submitted by the delinquent officer.
In such a case, it can always follow
the procedure for imposing minor penalty. Minor penalty, as per the
Regulation, can be inflicted without holding any departmental inquiry, by
giving only a show-cause-notice and a reasonable opportunity to make a
representation to the show-cause-notice.
Personal hearing can also be
afforded and also can be dispensed with by a speaking order.
13. We are of the view that the procedure referred to hereinbefore has
been followed by the Board.
The delinquent officer was given an
opportunity to submit his reply to the show-cause-notice which was considered and the Board took a conscious decision to impose only a minor penalty, i.e. barring one increment without cumulative effect, for which no full-fledged departmental inquiry is contemplated.
Learned District Judge
as well as the High Court, in our view, has committed a grave error in interfering with the punishment imposed by the Board which, in our view, is perfectly legal, going by the regulations referred to herein before.
14. Consequently, the appeal is allowed and the judgment of the learned District Judge as well as that of the High Court is set aside.
15. Learned counsel for the respondent submits that, by virtue of the
punishment imposed, he has not been given his due promotion. We are of the
view that if imposition of a minor penalty is not a bar in granting
promotion to the respondent, due promotion be granted to him in accordance
with the Rules and Regulations applicable to him.
……………………………..J.
(K.S. Radhakrishnan)
……………………………..J.
(Pinaki Chandra Ghose)
New Delhi,
July 30, 2013
