Bharat Petroleum Corp.Ltd. . vs Anil Padegaonkar on 17 March, 2020


Supreme Court of India

Bharat Petroleum Corp.Ltd. . vs Anil Padegaonkar on 17 March, 2020

Author: Navin Sinha

Bench: Navin Sinha, Krishna Murari

                                                                 REPORTABLE

                                 IN THE SUPREME COURT OF INDIA
                                  CIVIL APPELLATE JURISDICTION


                                CIVIL APPEAL NO(s). 9778 OF 2010


          BHARAT PETROLEUM CORPORATION
          LIMITED AND OTHERS                                ...APPELLANT(S)
                               VERSUS

          ANIL PADEGAONKAR                               ...RESPONDENT(S)
                                              WITH

                                CIVIL APPEAL NO(s). 9779 OF 2010


          ANIL PADEGAONKAR                                   ...APPELLANT(S)

                                             VERSUS
          BHARAT PETROLEUM CORPORATION
          LIMITED AND OTHERS                                ...RESPONDENT(S)




                                           JUDGMENT

NAVIN SINHA, J.

The two appeals have been preferred by the appellant­

Corporation and the respondent­employee respectively, to the

extent that they are aggrieved by the common order in a writ
Signature Not Verified

Digitally signed by
DEEPAK SINGH

appeal preferred by the Corporation. They have thus been heard
Date: 2020.03.17
12:44:48 IST
Reason:

together and are being disposed by a common order.

1

2. The Corporation is aggrieved to the extent the impugned

order sets aside the order of punishment on the ground that the

charge­sheet had not been issued by the disciplinary authority.

The employee is aggrieved by the grant of liberty to the

Corporation for issuance of fresh charge­sheet, and denial of

back wages while granting reinstatement. In the interregnum, the

employee has attained the age of superannuation in February

2018.

3. A charge­sheet was issued to the employee on 31.12.1993

by the Deputy General Manager (Aviation) (hereinafter referred to

as “the DGM”) while he was working on the post of Aviation

Officer at the General Aviation Service Station, Gwalior, in the

management cadre in Job Group “A”. It was alleged that fresh

sand particles had been found in the all 10 fuel tanks after his

duty hours in the ‘C’ shift ended while the earlier inspection

during the ‘B’ shift had found it to be free of dirt and water except

for minor traces of water in tank nos. 3 and 9. While the

departmental proceedings were pending, a fresh charge­sheet

2
was issued to the employee on 27.09.1994 with regard to absence

from duty on 13.08.1994. The employee was therefore charged

with having acted in a manner prejudicial to the interests of the

Corporation and negligence in the performance of duty including

malingering or slowing down of work under Clause 6 & 10 of Part

III­A of the Bharat Petroleum Limited Conduct, Discipline and

Appeal Rules for Management Staff, 1976 (hereinafter referred to

as ‘the Rules’). Pursuant to a domestic inquiry, the inquiry officer

returned a finding of guilt on 06.01.1995. The employee was

furnished a copy of the report and after consideration of his

reply, the Director (Marketing) under Part III­B (2)(f) of the Rules

by a common order dated 21.05.1997 ‘discharged’ the employee

from service. The departmental appeal under the Rules was

rejected by a reasoned order by the Chairman on 05.10.1998.

4. The employee assailed the orders in a writ petition. The

learned Single Judge, with regard to the first charge­sheet, held

that the punishment of ‘dismissal’ stood vitiated because the

Functional Director alone was competent to issue the charge­

sheet. The second charge­sheet though issued by the disciplinary

3
authority, required reconsideration as the punishment was held

disproportionate to the charge, necessitating an order of remand.

The Corporation was granted liberty in appeal to issue a fresh

charge­sheet with regard to the first charge and to pass a lesser

order of punishment with regard to the second charge. Though

reinstatement was ordered, the question of back wages was left

for consideration subject to the outcome of such fresh

proceedings.

5. Shri. J.P. Cama, learned senior counsel appearing on behalf

of the Corporation, submitted that the employee was not

‘dismissed’ but ‘discharged’ from service. The DGM being the

functional General Manager and Head of the Department, the

highest officer on the spot, was fully competent under the

manual for delegation of authority dated 15.12.1987 to issue

charge­sheet for a punishment lesser than dismissal under serial

1(a) of Schedule I under Part III of the Rules. The manual for

delegation of authority had never been withdrawn or superseded

even after amendment of Rule 3(g) on 22.08.1991 with regard to

the definition of Disciplinary Authority in the Rule. The

4
misconduct on the part of employee, considering his place of

posting at an air force station was serious in nature. There was

no infirmity in the conduct of the departmental proceedings. The

employee had since reached the age of superannuation in

February, 2018. Continuance of the proceedings under the Rules

was an impossibility in absence of any provisions for the same.

6. The employee did not take any objection in his reply to the

charge­sheet or in the memo of appeal that the DGM was not

competent to issue the same. Relying on H.V. Nirmala vs.

Karnataka State Financial Corporation, (2008) 7 SCC 639, it

was submitted that the objection with regard to the lack of

jurisdiction ought to have been raised at the very first instance.

The employee took this objection for the first time before the High

Court in the writ petition. In any event the employee has failed to

demonstrate any prejudice to him thereby, assuming though not

admitting any lapse. Reliance was also placed on S.R. Tewari

vs. Union of India and Another, (2013) 6 SCC 602, that there

could be no standardised yardstick with regard to proportionality

of punishment which would depend on the facts of each case.

5

7. Shri Puneet Jain, learned counsel for the employee,

submitted that dismissal was a major punishment under Part III­

B (2)(f) of the Rules. The Corporation themselves opined that the

charges were very serious. The procedure followed was that for a

major penalty. The mere use of the word ‘discharge’ in the order

of punishment therefore could not be determinative. The High

Court has committed no error in holding that the employee had

been dismissed from service pursuant to a charge­sheet issued

without jurisdiction. The view taken by the High Court that after

amendment of the term disciplinary authority in Rule 3(g) by the

Board of Directors on 22.08.1991, the manual for delegation of

authorities dated 15.12.1987 had lost its relevance, does not call

for any interference. The Functional Director alone was

competent to issue charge­sheet for dismissal under Sr.1(b) of

Schedule I under Part III of the Rules. The charge­sheet issued by

the DGM has rightly been held to be without authority, thus

vitiating the punishment. The Rules make a distinction between

the disciplinary authority in Rule 3(g) and competent authority in

Rule 3(h). Competent authority cannot be equated with

6
disciplinary authority. Reliance was placed on Union of India

vs. B.V. Gopinath, (2014) 1 SCC 351, to submit that a charge­

sheet not issued according to law rendered the entire proceedings

non­est. The High Court, in the facts of the case ought not to

have given liberty to issue fresh charge­sheet or deny back wages

while directing reinstatement.

8. The entire proceedings having been vitiated back wages

ought to have been granted while directing reinstatement relying

on Chairmen­cum­Managing Director, Coal India Limited

and Others vs. Ananta Saha and Others, (2011) 5 SCC 142.

With regard to the second charge­sheet, it was submitted that the

punishment of dismissal for absence from place of duty one hour

before duty hours got over was grossly disproportionate relying

on Dev Singh vs. Punjab Tourism Development Corporation

Limited and Another, (2003) 8 SCC 9.

9. We have considered the submissions on behalf of the

parties. The employee was posted at the Air Force Station

7
Gwalior. There can be no two opinions that the nature of his

duties had an inherent seriousness. Two charge­sheets were

issued to him and departmental proceedings were conducted.

The employee was given full opportunity of defence. A finding of

guilt was arrived at by the enquiry officer with regard to both the

charges. The employee in his departmental appeal raised no

issues of procedural irregularity with consequent prejudice. A

common order of punishment of ‘discharge’ from service dated

21.05.1997 followed under Part III B (2)(e) of the Rules. No order

of ‘dismissal’ was passed under Part III­B (2)(f) of the Rules. If

the Corporation was of the opinion that ‘dismissal’ was the

appropriate punishment in the facts of the case nothing

prevented it from stating so. The High Court fell in a serious error

by opining that the employee had been ‘dismissed’ from service

and on that premise arrived at the conclusion that the charge­

sheet was incompetent in absence of it having been issued by the

Functional Director who was the disciplinary authority under Sr.

1 (b) of Schedule I under Part III of the Rules for dismissal.

8

10. Part­III B (2) of the Rules provides for major penalties which

includes inter alia removal from service which shall not be a

disqualification for future employment and dismissal from service

which shall ordinarily be a disqualification from future

employment. The Rules therefore themselves recognise them as

different punishments with varying severity. Though the word

‘discharge’ does not find reference under the Rules, nonetheless

in service jurisprudence, removal and/or discharge are

synonymous leading to a termination or end of service but

without the punitive consequences of dismissal entailing loss of

past services, affecting future employment and debarring retiral

benefits. There is no dispute that consequent to the impugned

order of ‘discharge’, the employee has been paid his dues.

11. The employee either in his reply to the charges or in the

departmental appeal rightly raised no issues with regard to lack

of competence in the DGM to issue the charge­sheet. Sr. 1 (a) of

Schedule I, to be read with Part III of the Rules, provides that

with regard to Job Group ‘A’ the Functional General Manager was

the disciplinary authority for all other penalties except that of

9
dismissal. The Functional Director was the disciplinary authority

for punishment of dismissal only. The employee for the first time

raised the issue in the writ petition that the charge­sheet had

been issued by other than the disciplinary authority. If the

employee had raised the issue either in his reply to the memo of

charges or in appeal perhaps the Corporation could have

addressed the issue better. Nonetheless, since a fundamental

issue of jurisdiction has been raised, we shall proceed to examine

the issue.

12. Rule 3(e) defines a Functional Manager as the Manager in­

charge of a function. Rule 3(g) defines Disciplinary Authority as

specified in Schedule I competent to impose penalties under the

Rules. Competent Authority has been defined in Rule 3(h) to

mean any authority empowered by the Board of Directors or the

Chairman by any general or special rule or order to discharge the

function or use the powers specified in the rule or order. Under

Schedule I, the Functional General Manager was the disciplinary

authority for punishment lesser than dismissal and the

Functional director was the disciplinary authority for punishment

10
of dismissal. We are of the considered opinion that the term

Competent Authority will include a disciplinary authority so

authorised in the manner prescribed in 3(h) under the delegation

of authority manual dated 15.12.1987. Under Part III­F(1) of the

Rules dealing with procedure for imposing major penalties, the

disciplinary authority has been described to include an authority

as specified in Schedule I. It includes both a Functional manager

and Functional Director. Part­III­F(23) provides as follows:

“(23) If the Disciplinary Authority or the Competent
Authority having regard to its findings on all or any
of the charges is of the opinion that any of the
penalties specified in Rule “B” should be imposed on
the Management Staff it shall, notwithstanding
anything contained in Rule “G”, make an order
imposing such penalty”

13. The fact that the words ‘Disciplinary Authority or

Competent Authority’ have been used interchangeably in Part III­

F leaves no doubt in our mind that the delegation of authority

manual had never been recalled or superseded. It is the specific

case of the Corporation that the manual for delegation of

authority issued on 15.12.1987 had never been withdrawn and

11
the Corporation had all along in all other cases also acted on

basis of the same and that no charge­sheet for a punishment

lesser than dismissal had ever been issued by the Functional

Director. The DGM was therefore fully competent under the

manual also to both suspend and issue charge­sheet. The High

Court itself reasoned that had the penalty been other than

dismissal, the Functional Manager would have been competent to

issue the charge­sheet. The High Court having posed unto itself

the wrong question of dismissal from service, naturally arrived at

an erroneous conclusion.

14. In view of our conclusion that the first charge­sheet had

been issued by an authority competent to do so, the order of

discharge calls for no interference. The direction for issuance of

fresh charge­sheet is therefore held to be unsustainable and is

set aside. The direction for reinstatement and grant of back

wages including any proportionality of punishment under the

second charge therefore becomes academic and needs no

consideration.

12

15. The appeal preferred by the appellant­Corporation is

allowed and that preferred by the respondent­employee is

dismissed. There shall be no order as to costs.

………………………….J.

[ASHOK BHUSHAN]

………………………….J.

[NAVIN SINHA]
NEW DELHI
MARCH 17, 2020

13



Source link