South
Bengal State Transport Corp. Vs. Ashok Kumar Ghosh & Ors. [2010] INSC 363
(6 May 2010)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.
4338 OF 2010 (arising out of SLP(C)No.545 of 2009) SOUTH BENGAL STATE TRANSPORT
CORPORATION .... APPELLANTS VERSUS
C.K.
PRASAD, J.
1. This
petition for special leave to appeal is against the judgment and order dated
24.09.2008, passed by the Calcutta High Court in MAT No.567 of 2008, whereby it
had dismissed the appeal preferred by the petitioner and affirmed the order of
the learned Single Judge dated 17.04.2008 passed in W.P.No.4100(W) of 2008
quashing the order of punishment inflicted on respondent No.1.
2 2.
Leave granted.
3. Short
facts giving rise to this appeal are that the writ petitioner-respondent No.1,
hereinafter referred to as the delinquent employee was at the relevant time
working as Conductor with the appellant -South Bengal State Transport
Corporation. On 17.02.2007 he was assigned duty in a Bus bearing Registration
No.WB-39/2110, plying between Durgapur to Baharampur. The said bus was checked
by the checking squad at Baharampur and they detected one ticketless passenger,
who was going towards Baharampur from Kandi. The checking squad collected fine
from the said passenger. Further a sum of Rs.345/- was found in excess in the
Conductor's cash-bag. The Divisional Manager, Durgapur Division of the South
Bengal State Transport Corporation is the disciplinary authority of the
delinquent employee. A memo of charge dated 7.3.2007 was drawn by the
Divisional Manager, Durgapur alleging the aforesaid misconduct against the
delinquent employee; i.e. allowing the ticketless passenger to travel in the
bus and possession of excess amount of Rs.345/- in the cash-bag. The memo of
charge was served on 3 the delinquent employee on 8.3.2007 and without giving
any opportunity to him the Divisional Manager, Durgapur was appointed as the
Enquiry Officer. The delinquent employee submitted his reply dated 17.3.2007
denying both the charges and according to him detection of the passenger
travelling without ticket is not misconduct, because on the spot itself the
ticketless passenger was tried and a fine was realized from him by applying
Section 178A of the Motor Vehicles Act. As regards the second charge, the plea
of the delinquent employee is that an amount of Rs.345/- was left by a
passenger and when one of the passengers claimed the amount, he verified the
same and till then kept the amount with the intention of returning it to him.
The enquiry was conducted by the disciplinary authority i.e. the Divisional
Manager, Durgapur himself who did not accept his plea and held both the charges
brought against him to have been proved. Accordingly the disciplinary authority
inflicted the punishment and relegated the delinquent employee, a Conductor to
the status of Daily Rated Conductor.
4. The
delinquent employee challenged the punishment by filing the writ petition
before the High Court, inter alia, contending that "the appointment of an
Enquiry Officer in the chargesheet itself reflects bias on the part of the
authority"
and this
itself vitiates the punishment. The aforesaid submission found favour with the
High Court and it allowed the writ petition, quashed the order of punishment
and while doing so observed as follows :
"In
the present case, there is absolutely not an iota of material to indicate that
the show-cause/reply submitted by the petitioner in response to the
charge-sheet was at all taken into consideration.
Going a
step further, it can be said in the present case that appointment of an
Enquiring Officer while issuing a charge-sheet is undoubtedly an unconscious
reflection of the sub-conscious mind and this, undoubtedly, reflects bias on
the part of the authority. Thus, there is bias at the very initiation of the
enquiry."
Ultimately,
the High Court concluded as follows :
"So
far as the present case is concerned, in view of the fact as indicated earlier
that initiation of the proceeding was not free from bias and in the backdrop of
the fact that there had been non- compliance of Regulation 38(2), this court
does not find any reason as to why the matter shall not be interfered
with."
5. It is
relevant here to state that while recording the finding of bias, the learned
Single Judge had referred to a decision of this Court in the case of State of
Punjab vs. V.K. Khanna and others, (2001) 2 SCC 33, in which it has been held
as follows :
"34.The
High Court while delving into the issue went into the factum of announcement of
the Chief Minister in regard to appointment of an enquiry officer to
substantiate the frame of mind of the authorities and thus depicting bias --
what bias means has already been dealt with by us earlier in this judgment, as
such it does not require any further dilation but the factum of announcement
has been taken note of as an illustration to a mindset viz. the inquiry shall
proceed irrespective of the reply -- is it an indication of a free and fair
attitude towards the officer concerned? The answer cannot possibly be in the
affirmative. It is well settled in service jurisprudence that the authority concerned
has to apply its mind upon receipt of reply to the charge-sheet or show-cause
as the case may be, as to whether a further inquiry is called for. In the event
upon deliberations and due considerations it is in the affirmative -- the
inquiry follows but not otherwise and it is this part of service jurisprudence
on which reliance was placed by Mr Subramanium and on that score, strongly
criticised the conduct of the respondents (sic appellants) herein and accused
them of being biased. We do find some justification in such a criticism upon
consideration of the materials on record."
6.
Another plea of the delinquent employee was that the punishment relegating him
to the status of Daily Rated Conductor is not provided in the South Bengal
State Transport Corporation Service Regulations (hereinafter referred to as the
`Regulations') but the said plea had been negated by the High Court in the
following words:
6
"It cannot be denied that punishment inflicted on the petitioner comes
within the scope and ambit of Regulation 36.
Punishment
imposed is in the nature of reduction to a lower post or to a lower stage in
time scale."
7. The
appellant, aggrieved by the aforesaid order preferred an appeal along with an
application for stay. The stay application and the appeal were dismissed by a
common order dated 24.9.2008 with the following directions:
a) The
appellant disciplinary authority shall be at liberty to proceed afresh against
the employee strictly in accordance with the provisions of Regulation 38(1) and
38(2);
b) During
the pendency of the proceeding before the disciplinary authority the
respondents shall continue to enjoy the status enjoyed by him prior to the
passing of the order of punishment."
8. Mr.
Janaranjan Das, learned counsel appearing on behalf of the
appellant-Corporation submits that mere appointment of Enquiry Officer while
issuing the chargesheet does not reflect bias and hence, the finding recorded
by the High Court that initiation of the departmental proceedings was not free
from bias is erroneous. He submits that the departmental proceeding was
conducted in accordance with the Regulations 7 and it cannot be said that there
had been non-compliance of Regulation 38(2) of the Regulations. He further
submits that reliance on the judgment of this Court in the case of V.K.
Khanna
(supra) is highly misplaced.
9.
Despite service of notice on respondent No.1, the delinquent employee has not
chosen to enter appearance.
10.
Regulation 38 of the Regulations, inter alia, provides the procedure for
imposing penalties. As the High Court had held that the appointment of Enquiry
Officer without considering the reply submitted by the delinquent employee
speaks of bias and the punishment inflicted is in violation of Regulation 38(2)
of the Regulations, we deem it expedient to reproduce not only Regulation 38(2)
but 38(3) which are relevant for the purpose :
38.
PROCEDURE FOR IMPOSING PENALTIES :
(1) xxx
xxxx xxxx (2) The disciplinary authority shall draw up or cause to be drawn up-
8 (i) The substance of the imputations of misconduct or misbehaviour into
definite and distinct articles of charge, (ii) A statement of imputations of
misconduct or misbehaviour in support of each article of charge which shall
contain (a) statement of relevant facts including any admission or confession
made by the employee, (b) a list of documents by which, and a list of witnesses
by whom, the articles of charge are proposed to be sustained."
(3) The disciplinary
authority shall deliver or cause to be delivered to the employee a copy of the
articles of charge and the statement of imputations of misconduct or
misbehaviour prepared under clause (ii) of sub-regulation (2) and shall require
the employee to submit to the inquiring authority within such time as may be
specified a written statement of his defence and to state whether he desires to
be heard in person.
(4) xxx
xxxx xxxx
11. From
a plain reading of Regulation 38(2) it is evident that the disciplinary
authority is required to draw or cause to be drawn up, the substance of
imputation of misconduct into definite and distinct articles of charges and the
statement of imputation of misconduct, to contain the statement of relevant
facts including any admission or confession made by the 9 employee. It also
requires drawing up a list of documents by which and a list of witnesses by
whom the articles of charges are proposed to be sustained. Regulation 38(3) of
the Regulations obliges the disciplinary authority to deliver or cause to be
delivered to the employee the articles of charges and the statement of
imputation of misconduct requiring the employee to submit to the Enquiry
Officer written statement of defence within a period specified. Neither Regulation
38(2) nor Regulation 38(3) provides that before the appointment of the Enquiry
Officer the reply of the delinquent employee is to be considered. In our
opinion, it may be open for a disciplinary authority to initiate the
departmental proceedings on consideration of the reply of an employee but as an
absolute proposition of law it cannot be said that before initiating
departmental enquiry or appointing Enquiry Officer, reply of the delinquent
employee is required to be obtained and considered unless it is the requirement
of the rules. There may be cases where the charges are of such a nature that
the disciplinary authority may not require any reply from the delinquent
employee but straightway initiates the 10 departmental enquiry and appoint an
Enquiry Officer. In the present case the Bus was checked by the flying squad of
the appellant-Corporation itself and in view of what has been found by it, the
disciplinary authority while framing the charge had appointed the Enquiry
Officer. We are of the opinion that mere appointment of Enquiry Officer while
framing the charge sheet, even before considering the reply of the delinquent
employee, does not reflect any bias.
12. Now,
referring to the authority of this Court in the case of V.K. Khanna(supra),
relied on by the High Court, same is clearly distinguishable. In the said case
the chargesheet dated 24.4.1997 was issued to the delinquent employee who
happened to be the Chief Secretary of the State and he was asked to submit his
reply within 21 days but even before his reply, the Chief Minister made a
statement on 27.4.1997 that a judge of the High Court would look into the
charge against him. The aforesaid act of the Chief Minister coupled with other
factors led this Court to conclude that the action was 11 actuated by bias. In
the present case the facts are completely different.
13. It is
relevant here to state that imposition of penalty was found to be bad by the
High Court due to non-compliance of Regulation 38(2) of Regulations on the
ground that the delinquent employee was not given any chance to have his say
before imposition of penalty. Regulation 38(2) of the Regulations has been
quoted in the preceding paragraph of the judgment and nowhere it contemplates
giving an opportunity to the delinquent employee. Matter would have been
different had the delinquent employee not given the copy of the enquiry report
and opportunity to file reply thereto. Thus, both the reasons given by the
learned Single Judge, as affirmed in the appeal by the High Court, are erroneous.
14. It
may be mentioned that the High Court had held that punishment inflicted on the
delinquent employee to be one provided under Regulation 36 of the Regulations.
According to the High Court punishment imposed is in the nature of reduction of
lower post or to a lower stage in time scale.
12
Regulation 36 provides for the penalties which can be imposed on delinquent
employee. Regulation 36 reads as follows :
"36.PENALTIES
: The following penalties may, for good or sufficient reasons and as
hereinafter provided, be imposed on an employee namely :
i)
Censure;
ii)
with-holding of increments or promotions;
iii)
recovery from pay of the whole or part of any pecuniary loss caused to the
Corporation by negligence or breach of orders;
iv)
reduction to a lower stage in time scale of pay for a specified period with
further direction as to whether or not the employee will earn increments of pay
during the period of such reduction will or will not have the effect of
postponing the future increments of his pay;
v)
reduction to a lower time scale of pay, grade, post or service which shall
ordinarily be a bar to the promotion of the employee to the time scale of pay,
grade, post or service from which he was reduced, with or without further
directions regarding conditions of the restoration to the grade or post of
service from which the employee was reduced and his seniority and pay on such
restoration to that grade, post or service;
vi)
compulsory retirement;
vii)
removal from service which shall not be a disqualification for future
employment;
viii)
dismissal from service which shall ordinarily be a disqualification for future
employment."
15. The
punishment inflicted on the delinquent employee is of relegating him to the
status of Daily Rated Conductor from the post of Conductor. The post of
Conductor carries a time scale and Regulation 36(4) provides for penalty of
reduction to 13 a lower stage in time scale of pay for a specified period. The
reduction to a lower stage in the time scale would obviously mean that the
employee retains the same post but the scale of pay, which every post carries,
can be reduced to a lower stage.
Relegation
of the delinquent employee to the status of Daily Rated Conductor cannot be
said to be a reduction to a lower stage in the time scale of pay or reduction
to a lower grade as delinquent employee has been deprived of the post of
Conductor. This reduction to a lower stage, in our opinion, has to be in the
scale of pay of the Conductor itself. Reduction to a lower grade should be with
reference to the same post. In our opinion, the punishment inflicted also does
not come within the ambit of reduction to a lower post or grade as contemplated
under Regulation 36(5) of the Regulations.
16. We
may next consider whether the punishment is permissible in service
jurisprudence. It is well settled that while an employee can be reverted to a
lower post or service, he cannot be reverted to a post lower than the post in
which he entered service (See: Nyadar Singh vs. Union of India - AIR 14 1988 SC
1979). Further it is also well settled that reversion to a lower post or
service does not permit reversion to a post outside the cadre that is from
regular post to a daily wage post. We are therefore of the view that the
punishment inflicted on the delinquent employee not being one of the
punishments enumerated in Regulation 36, is not permissible in law.
17.
However we are of the view that the reasoning of the High Court for quashing
the order of punishment is not sustainable. While we do not agree with the High
Court that the enquiry is to be set aside on the ground of bias, we agree that
the punishment imposed by the disciplinary authority requires to be modified.
Though, normally, in such a situation the matter should be referred back to the
disciplinary authority for imposition of fresh penalty, having regard to the
facts and circumstances and to do complete justice, we propose to impose the
penalty.
18. We
accordingly allow this appeal in part with the following directions:
15 (a)
The judgment of the High Court is set aside and the finding of guilt recorded
by the Disciplinary Authority is upheld.
(b) The
punishment imposed by the appellant is set aside and the direction for
reinstatement is upheld.
(c)
However as the punishment is being set aside and reinstatement is directed on a
technical ground, the respondent-employee will not be entitled to any back
wages.
(d)
Instead of reversion to the post of daily wage conductor we substitute the
punishment as reduction to the lowest stage of the time scale applicable to the
post of conductor with effect from the date of imposition of punishment.
.................................J. (R.V. RAVEENDRAN)
...............................J. (R.M. LODHA)
...............................J. (C.K. PRASAD)
NEW DELHI,
MAY 06, 2010.
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