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Supreme Court of India
B. S. CHAUHAN & DIPAK MISRA
The Secretary, Min of Defence & Others
Versus
Prabhash Chandra Mirdha
Civil Appeal No. 2333 of 2007
Decided on : 29-05-2012
(b) Service Law – Disciplinary proceedings – Higher authority, if not appellate authority, can initiate proceedings and impose punishment – In other cases delinquent has to show how and what prejudiced was caused to him. (Para 5)
AIR 1982 SC 1407; AIR 1995 SC 1053; AIR 1997 SC 2229; (2 006) 4 SCC 348 – Relied upon
(c) Service law – Disciplinary proceedings – Initiation of – Law does not inhibit an authority subordinate to appointing authority from initiating disciplinary proceedings and issuing charge sheet. (Para 6)
AIR 1996 SC 1318; AIR 1998 SC 2210; AIR 2003 SC 4119; (1995) 1 SCC 332; AIR 1996 SC 2292; (2011) 5 SCC 142 – Relied upon
(d) Service law – Departmental proceeding – Charge sheet – Quashing of – Not in a routine manner – Delinquent should first exhaust departmental remedies – Court/Tribunal should weigh gravity of charges and consider other relevant factors before quashing charge sheet. (Para 9)
AIR 1990 SC 1308; (1995) 2 SCC 570; (1995) 3 SCC 134; 1995 Supp (1) SCC 180; (1996) 3 SCC 157; AIR 1998 SC 1833; (1998) 9 SCC 131; 1999 SCC (L&S) 646; AIR 2006 SC 3475; AIR 2006 SC 2064; (2007) 14 SCC 49 – Relied upon
(e) Service law – Departmental proceeding – Delay in completion – If protracted and unexplained, proceeding should not be permitted to continue. (Para 10)
(2009) 7 SCC 305 – Relied upon
(f) Constitution of India – Article 226 – Writ – Chargesheet or show cause notice – Do not give rise to a cause of action – Hence writ does not lie against a charge sheet or a show cause notice. (Para 11)
AIR 1987 SC 943; (1996) 1 SCC 327; AIR 2000 SC 3603 (2); AIR 2004 SC 1467; AIR 2007 SC 906; (2010) 13 SCC 311; (1994) 3 SCC 357 – Relied upon
Facts of the case:
When the respondent was working as an Assistant Foreman in the Ordnance Factory, Yeddumailaram, charge memo was issued to him on the alleged demand of bribe of Rs.37,000/- and acceptance of Rs.4,150/-on 3.8.1991 in cash from the representative of firm M/s Teela International Limited, Hosur, Bangalore.
Respondent preferred O.A. before the Central Administrative Tribunal, Hyderabad on the ground that the charge memo had been issued to the respondent by the authority not competent to do so, being subordinate to his appointing authority.
The OA was allowed only on the ground that the officer who had issued the charge memo was subordinate to the appointing authority of the delinquent and thus, had no competence to initiate the disciplinary proceedings.
A Review Application was filed by the appellants which was dismissed.
The appellants filed the Writ Petition before the High Court which has been dismissed.
Finding of the Court:
Charge sheet should normally not be quashed. Writ normally does not lie against charge sheet or show cause notice.
Result: Appeal disposed of. Question of law left open.
Judgment :
1. This appeal has been preferred against the impugned judgment and orders dated 26.2.2004 and 13.8.2004 passed by the High Court of Judicature at Hyderabad in Writ Petition No. 14674 of 1997, and in Review W.P.M.P. No. 18654 of 2004. The issue involved in this case is as to whether the authority, lower or higher than of the appointing authority, can initiate the proceedings against the delinquent on grounds of alleged misconduct.
2. Facts and circumstances giving rise to this appeal are that:
A. Respondent had been working as an Assistant Foreman in the Ordnance Factory, Yeddumailaram, when charge memo dated 8.1.1992 was issued to him on the alleged demand of bribe of Rs.37,000/- and acceptance of Rs.4,150/-on 3.8.1991 in cash from the representative of firm M/s Teela International Limited, Hosur, Bangalore.
B. Aggrieved by the said charge memo, respondent preferred O.A. No. 1641 of 1995 before the Central Administrative Tribunal, Hyderabad (hereinafter called as `Tribunal') on 23.12.1995 on the ground that the charge memo had been issued to the respondent by the authority not competent to do so, being subordinate to his appointing authority.
C. The said application was allowed vide judgment and order dated 4.1.1996 only on the ground that the officer who had issued the charge memo was subordinate to the appointing authority of the delinquent and thus, had no competence to initiate the disciplinary proceedings.
D. Aggrieved by the said order, a Review Application was filed by the appellants which was dismissed vide order dated 20.3.1997.
E. Aggrieved, the appellants filed the Writ Petition No. 14674 of 1997 before the High Court which has been dismissed vide impugned judgment and order dated 30.6.2004.
Review Application filed by the appellants also stood dismissed vide order dated 13.8.2004.
Hence, this appeal.
3. This Court entertained the appeal vide order dated 30.4.2007 but did not grant any interim relief and in spite of notice to the respondent, he did not enter appearance.
4. The legal proposition has been laid down by this Court while interpreting the provisions of Article 311 of the Constitution of India, 1950 that the removal and dismissal of a delinquent on misconduct must be by the authority not below the appointing authority. However, it does not mean that disciplinary proceedings may not be initiated against the delinquent by the authority lower than the appointing authority.
5. It is permissible for an authority, higher than appointing authority to initiate the proceedings and impose punishment, in case he is not the appellate authority so that the delinquent may not loose the right of appeal. In other case, delinquent has to prove as what prejudice has been caused to him. (Vide: Sampuran Singh v. State of Punjab, AIR 1982 SC 1407; Surjit Ghosh V. Chairman and Managing Director, United Commercial Bank & Ors., AIR 1995 SC 1053; Balbir Chand v. FCI Ltd. & Ors., AIR 1997 SC 2229; and A. Sudhakar v. Postmaster-General Hyderabad & Anr., (2006) 4 SCC 348).
6. In Inspector General of Police & Anr. v. Thavasiappan, AIR 1996 SC 1318, this Court reconsidered its earlier judgments on the issue and came to the conclusion that there is nothing in law which inhibits the authority subordinate to the appointing authority to initiate disciplinary proceedings or issue charge memo and it is certainly not necessary that charges should be framed by the authority competent to award the punishment or that the inquiry should bee conducted by such an authority.
7. In Steel Authority of India & Anr. v. Dr. R.K. Diwakar & Ors., AIR 1998 SC 2210; and State of U.P. & Anr. v. Chandrapal Singh & Anr., AIR 2003 SC 4119, a similar view has been reiterated.
8. In Transport Commissioner, Madras - 5 v. A. Radha Krishna Moorthy, (1995) 1 SCC 332, this Court held:
"Insofar as initiation of enquiry by an officer subordinate to the appointing authority is concerned, it is well settled now that it is unobjectionable. The initiation
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