Bharat Coking Coal Ltd. Vs. ibhuti Kumar Singh & Ors.
EmailAppeal: Civil Appeal No. 6057 of 1994
(Arising out of Special Leave Petition (C) No. 9891/94)
(Arising out of Special Leave Petition (C) No. 9891/94)
Petitioner: Bharat Coking Coal Ltd.
Respondent: ibhuti Kumar Singh & Ors.
Apeal: Civil Appeal No. 6057 of 1994
(Arising out of Special Leave Petition (C) No. 9891/94)
(Arising out of Special Leave Petition (C) No. 9891/94)
Judges: S.C. AGRAWAL & M.K. MUKHERJEE, JJ.
Date of Judgment: Sep 16, 1994
Head Note:
SERVICE AND LABOUR LAW
Departmental Enquiry:
epartmental enquiry against respondent for failure to maintain absolute integrity and for possessing disproportionate wealth etc – High Court erred in setting aside the enquiry on the basis of respondent No.1 having been suspended from service which was admittedly incorrect – Further explanation for delay in completion of enquiry cannot be said to be unsatisfactory and High Court ought not to have rejected reasonable prayer for extension – Appellant was directed to conclude enquiry as expeditiously as possible within six month – In a successful prosecution onus is one beyond all reasonable doubts in a departmental enquiry, it is one of probability.
Held:
Appellant submitted that having regard to the serious nature of the charges levelled against the respondent No.1 and the justifiable reasons canvassed by it for not being able to complete the enquiry within the time stipulated, the High Court should have allowed its prayer for extension of time to conclude the enquiry. The appellant further contended that one of the reasons, which weighed with the High Court in refusing to grant further time was that the respondent No. 1 was suspended as far back as April 4, 1991 but, in fact, at no point of time, was he suspended. That apart, the appellant contended, the claim for his promotion was fully protected as a post in E6 grace was kept vacant to accommodate him in case he was exonerated from the charges. (Para 11)
Having gone through the material placed before us we are unable to accept the contentions raised by the respondent No.1 relying upon the final report, firstly, because, the misconducts and for that matter the allegations on which they are based, are not confined to only acquisition of assets disproportionate to the known source of income. Secondly, the final report submitted by the CBI recommending discharge of the respondent No.1 on the ground of non-availability of sufficient evidence has to be considered in the context of the standard of proof for a successful prosecution vis-a-vis a departmental enquiry. While in the former onus is one of beyond all reasonable doubts in the latter it is one of probability. Another reason which impels us to reject the contention of the respondent No.1 is that the enquiry has proceeded to some length in that six witnesses have already been examined. (Para 13)
One of the reasons weighed with the learned Single Judge in making the same was that the respondent No.1 was suspended since the date the charge-sheet was issued, but that is admittedly incorrect. We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time. (Para 14)
We, therefore, allow this appeal, set aside the impugned orders of the High Court so far as they refused to grant time to the appellant to complete the enquiry and direct the appellant to conclude the enquiry as expeditiously as possible, preferably within a period of six months. There will, however, be no order as to cost. (Para 15)
Bharat Coking Coal Ltd. v. Bibhuti Kumar Singh & Ors. (16-09-1994) JT 1994 (6) SC (S.C. Agrawal & M.K. Mukherjee, JJ.)
JUDGEMENT:
M.K. MUKHERJEE, J.:
1. Special leave granted.
2. This appeal is directed against the judgment and order dated March 22, 1994 passed by the High Court at Calcutta. Facts leading to and relevant for disposal of the appeal are as under.
3. On January 15, 1987 a case under Section 5(2) read with Section 5(i)(e) of the Prevention of Corruption Act, 1947 WAS registered against the respondent No. 1 on a First Information Report lodged by an Inspector of Police, Central Bureau of Investigation (CBI) wherein it was alleged that while working in different capacities in the appellant-Corporation he had acquired assets disproportionate to his income. While that case was under investigation the appellant initiated a departmental proceeding against the respondent No. 1 for the following misconducts:-
(i) failed to maintain absolute integrity and devotion to duty,
(ii) found in possession of pecuniary resources or property disproportionate to the known sources of income earned by him or by any other person on his behalf, which could not be satisfactorily accounted for,
(iii) failed to report in Form IV to the department transactions concerning moveable property owned or held by him or by his family members.
4. After submitting his written explanation to the charge-sheet, in which he denied all the allegations made against him, the respondent moved the Patna High Court for quashing the departmental proceeding, inter alia, on the ground that it had been initiated at the instance of CBI. This writ petition was disposed of by the High Court on March 23, 1992 with the following order:
“By reasons of this writ application the petitioner has questioned the initiation of departmental proceeding inter alia on the ground that the same has been done at the instance of Central Bureau of Investigation.
As the petitioner can raise all contentions raised in this application before the appropriate authority, in our opinion this writ application cannot be entertained at this stage.
This application is therefore, permitted to per withdrawn, as prayed for.”
5. The respondent No. 1 thereafter filed another writ petition in the Calcutta High Court, in its appellate side, with a prayer that the appellant should be restrained from giving effect to the promotional order dated September 12, 1992 until and unless he was also given promotion. He also prayed for a direction to promote him to the post of E6 grade, as per his entitlement, pending disposal of the Writ Petition. In contesting the petition the appellant submitted that the claim of the respondent No. 1 for promotion could not be considered in view of the pending departmental proceeding. After hearing the parties the High Court disposed of the petition by directing the appellant to complete the departmental enquiry within six months and, in the meantime, to decide the question of promotion of the respondent and keep the decision in a sealed cover. The High Court made it clear that if the respondent No. 1 was exonerated from the charges levelled against him he would be entitled to his promotion to the post of E6 grade with retrospective effect, if he was otherwise entitled.
6. In or about December, 1993, the respondent No. 1 again moved the Calcutta High Court by filing another writ petition – this time in its original side – contending that the three communications that were sent to him on October 4, 1993, November 9, 1993 and November 15, 1993 asking him to appear before the Departmental Promotion Committee were wholly unjustified and uncalled for having regard to the fact that the decision about this promotion had already been taken and kept in a sealed cover. Accordingly, he prayed for the following reliefs:
“A Writ of and order and or direction in the nature of Mandamus commanding the respondents and/or each of them, their servants or agents to complete the Departmental Proceeding initiated against the petitioner within a month from date, failing which, to grant promotion the petitioner from grade E5 to E6.
A Writ of and or order and or direction in the nature of Mandamus commanding the respondents and/or each of them, their servants or agents not to take any step and/or initiate any action against the petitioner on the basis of the purported communication dated 4th October, 1993 read with the communication dated 9th November, 1993 and 15th November, 1993.
A Writ of and or order and or direction in the nature of Mandamus commanding the respondents and or each of them, their servants and agents, to promote the petitioner to Grade E6 with effect from September 1992, if the Departmental Enquiry initiated against the petitioner fails.
A Writ of and or order and or direction in the nature of certiorari calling upon the respondents to certify and send up before this Hon’ble Court all the records of the instant case so that necessary directions should be passed for completing the departmental proceeding against the petitioner within a period of one month from date and/or failing which, to promote the petitioner from grade E5 to E6 and quashing the purported communications dated 4th November, 1993, 9th November and 16th November, 1993.”
7. This writ petition was disposed of on December 2, 1993 by a learned Single Judge directing the appellant to keep one post vacant in grade E6 and to complete and departmental enquiry within three months. The learned Judge made it clear that if the enquiry was not completed within three months the charges levelled against the petitioner/respondent No. 1 should be deemed to be withdrawn and the entire disciplinary proceeding quashed. The learned Judge, however, gave liberty to the parties to mention the matter if any cause of action arose subsequently.
8. As the appellant could not complete the enquiry within the period of three months, as directed by the Court, it filed an application for extension of time before the learned Single Judge. In the application the appellant stated, inter alia, as under:
“(1) Pursuant to the order passed by the Hon’ble Court as aforesaid an Enquiry Officer already appointed in July 1993 started the enquiry proceedings and as many as six witnesses adduced evidence on behalf of the respondent authorities before the Enquiry Officer.
(ii) Your petitioner states that there are about 28 witnesses to be examined on behalf of the respondent authorities and the said 28 witnesses are living in different villages. The respondent authorities had already taken steps to being the said witnesses before the Enquiry Officer. Our of the said 28 witnesses before the Enquiry Officer as stated hereinbefore.
(iii) Your petitioner states that a considerable time is required to produce all the witnesses before the Enquiry Officer.
(iv) Your petitioner further states that the Enquiry Officer went on leave about 20 days on account of the marriage of his son and consequently the enquiry proceedings could not be conducted during the said period.
(v) Your petitioner states that due to the reasons as stated hereinbefore the enquiry proceedings could not be completed within the time as directed by this Hon’ble Court.”
9. The learned Judge, however, rejected the application as devoid of merit, recording the following reason:
“It has been stated that the petitioner was suspended as for back as on 4th April, 1991 and uptil now no steps have been taken save and except examination of 6 witnesses out of several witnesses. It has also been stated at the instance of the respondent Company, Coal India Limited, several adjournments are taken. It has also been indicated that on some occasions no body turned up on behalf of the Company.”
(emphasis supplied)
10. Against such rejection the appellant preferred a Letters Patent Appeal which was dismissed by the impugned order on the grounds that it was not maintainable and that the appellant was guilty of serious laches in concluding the departmental enquiry.
11. It was submitted on behalf of the appellant that having regard to the serious nature of the charges levelled against the respondent No.1 and the justifiable reasons canvassed by it for not being able to complete the enquiry within the time stipulated, the High Court should have allowed its prayer for extension of time to conclude the enquiry. The appellant further contended that one of the reasons, which weighed with the High Court in refusing to grant further time was that the respondent No. 1 was suspended as far back as April 4, 1991 but, in fact, at no point of time, was he suspended. That apart, the appellant contended, the claim for his promotion was fully protected as a post in E6 grace was kept vacant to accommodate him in case he was exonerated from the charges.
12. In response, it was urged on behalf of the respondent No.1 that the departmental enquiry was initiated against the respondent No.1 on flimsy and baseless allegations only to delay and, if possible, to deny him his legitimate promotion. In support of this contention strong reliance was placed upon the final report submitted by the CBI on April 18, 1994- that is, after the High Court passed the impugned order and before the special leave petition was filed in this Court- in the case registered against the respondent No.1 exonerating him from the charges levelled against him and the order of the Special Judge, CBI. Ranchi Bench, dated April 25, 1994 discharging the respondent No.1 after accepting the final report. The other contention based upon the report was that the appellant could not and should not be allowed to continue with the departmental enquiry as the misconducts alleged against the respondent No.1 were identical with the accusations which formed the subject matter of the case registered against him. Lastly, it was submitted that as the appellant was guilty of wilful laches and negligence in conducting the enquiry the High Court was fully justified in passing the impugned orders.
13. Having gone through the material placed before us we are unable to accept the contentions raised by the respondent No.1 relying upon the final report, firstly, because, the misconducts and for that matter the allegations on which they are based, are not confined to only acquisition of assets disproportionate to the known source of income. Secondly, the final report submitted by the CBI recommending discharge of the respondent No.1 on the ground of non-availability of sufficient evidence has to be considered in the context of the standard of proof for a successful prosecution vis-a-vis a departmental enquiry. While in the former onus is one of beyond all reasonable doubts in the latter it is one of probability. Another reason which impels us to reject the contention of the respondent No.1 is that the enquiry has proceeded to some length in that six witnesses have already been examined.
14. Coming now to the impugned orders we find that one of the reasons which weighed with the learned Single Judge in making the same was that the respondent No.1 was suspended since the date the charge-sheet was issued, but that is admittedly incorrect. We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time.
15. We, therefore, allow this appeal, set aside the impugned orders of the High Court so far as they refused to grant time to the appellant to complete the enquiry and direct the appellant to conclude the enquiry as expeditiously as possible, preferably within a period of six months. There will, however, be no order as to cost.
1. Special leave granted.
2. This appeal is directed against the judgment and order dated March 22, 1994 passed by the High Court at Calcutta. Facts leading to and relevant for disposal of the appeal are as under.
3. On January 15, 1987 a case under Section 5(2) read with Section 5(i)(e) of the Prevention of Corruption Act, 1947 WAS registered against the respondent No. 1 on a First Information Report lodged by an Inspector of Police, Central Bureau of Investigation (CBI) wherein it was alleged that while working in different capacities in the appellant-Corporation he had acquired assets disproportionate to his income. While that case was under investigation the appellant initiated a departmental proceeding against the respondent No. 1 for the following misconducts:-
(i) failed to maintain absolute integrity and devotion to duty,
(ii) found in possession of pecuniary resources or property disproportionate to the known sources of income earned by him or by any other person on his behalf, which could not be satisfactorily accounted for,
(iii) failed to report in Form IV to the department transactions concerning moveable property owned or held by him or by his family members.
4. After submitting his written explanation to the charge-sheet, in which he denied all the allegations made against him, the respondent moved the Patna High Court for quashing the departmental proceeding, inter alia, on the ground that it had been initiated at the instance of CBI. This writ petition was disposed of by the High Court on March 23, 1992 with the following order:
“By reasons of this writ application the petitioner has questioned the initiation of departmental proceeding inter alia on the ground that the same has been done at the instance of Central Bureau of Investigation.
As the petitioner can raise all contentions raised in this application before the appropriate authority, in our opinion this writ application cannot be entertained at this stage.
This application is therefore, permitted to per withdrawn, as prayed for.”
5. The respondent No. 1 thereafter filed another writ petition in the Calcutta High Court, in its appellate side, with a prayer that the appellant should be restrained from giving effect to the promotional order dated September 12, 1992 until and unless he was also given promotion. He also prayed for a direction to promote him to the post of E6 grade, as per his entitlement, pending disposal of the Writ Petition. In contesting the petition the appellant submitted that the claim of the respondent No. 1 for promotion could not be considered in view of the pending departmental proceeding. After hearing the parties the High Court disposed of the petition by directing the appellant to complete the departmental enquiry within six months and, in the meantime, to decide the question of promotion of the respondent and keep the decision in a sealed cover. The High Court made it clear that if the respondent No. 1 was exonerated from the charges levelled against him he would be entitled to his promotion to the post of E6 grade with retrospective effect, if he was otherwise entitled.
6. In or about December, 1993, the respondent No. 1 again moved the Calcutta High Court by filing another writ petition – this time in its original side – contending that the three communications that were sent to him on October 4, 1993, November 9, 1993 and November 15, 1993 asking him to appear before the Departmental Promotion Committee were wholly unjustified and uncalled for having regard to the fact that the decision about this promotion had already been taken and kept in a sealed cover. Accordingly, he prayed for the following reliefs:
“A Writ of and order and or direction in the nature of Mandamus commanding the respondents and/or each of them, their servants or agents to complete the Departmental Proceeding initiated against the petitioner within a month from date, failing which, to grant promotion the petitioner from grade E5 to E6.
A Writ of and or order and or direction in the nature of Mandamus commanding the respondents and/or each of them, their servants or agents not to take any step and/or initiate any action against the petitioner on the basis of the purported communication dated 4th October, 1993 read with the communication dated 9th November, 1993 and 15th November, 1993.
A Writ of and or order and or direction in the nature of Mandamus commanding the respondents and or each of them, their servants and agents, to promote the petitioner to Grade E6 with effect from September 1992, if the Departmental Enquiry initiated against the petitioner fails.
A Writ of and or order and or direction in the nature of certiorari calling upon the respondents to certify and send up before this Hon’ble Court all the records of the instant case so that necessary directions should be passed for completing the departmental proceeding against the petitioner within a period of one month from date and/or failing which, to promote the petitioner from grade E5 to E6 and quashing the purported communications dated 4th November, 1993, 9th November and 16th November, 1993.”
7. This writ petition was disposed of on December 2, 1993 by a learned Single Judge directing the appellant to keep one post vacant in grade E6 and to complete and departmental enquiry within three months. The learned Judge made it clear that if the enquiry was not completed within three months the charges levelled against the petitioner/respondent No. 1 should be deemed to be withdrawn and the entire disciplinary proceeding quashed. The learned Judge, however, gave liberty to the parties to mention the matter if any cause of action arose subsequently.
8. As the appellant could not complete the enquiry within the period of three months, as directed by the Court, it filed an application for extension of time before the learned Single Judge. In the application the appellant stated, inter alia, as under:
“(1) Pursuant to the order passed by the Hon’ble Court as aforesaid an Enquiry Officer already appointed in July 1993 started the enquiry proceedings and as many as six witnesses adduced evidence on behalf of the respondent authorities before the Enquiry Officer.
(ii) Your petitioner states that there are about 28 witnesses to be examined on behalf of the respondent authorities and the said 28 witnesses are living in different villages. The respondent authorities had already taken steps to being the said witnesses before the Enquiry Officer. Our of the said 28 witnesses before the Enquiry Officer as stated hereinbefore.
(iii) Your petitioner states that a considerable time is required to produce all the witnesses before the Enquiry Officer.
(iv) Your petitioner further states that the Enquiry Officer went on leave about 20 days on account of the marriage of his son and consequently the enquiry proceedings could not be conducted during the said period.
(v) Your petitioner states that due to the reasons as stated hereinbefore the enquiry proceedings could not be completed within the time as directed by this Hon’ble Court.”
9. The learned Judge, however, rejected the application as devoid of merit, recording the following reason:
“It has been stated that the petitioner was suspended as for back as on 4th April, 1991 and uptil now no steps have been taken save and except examination of 6 witnesses out of several witnesses. It has also been stated at the instance of the respondent Company, Coal India Limited, several adjournments are taken. It has also been indicated that on some occasions no body turned up on behalf of the Company.”
(emphasis supplied)
10. Against such rejection the appellant preferred a Letters Patent Appeal which was dismissed by the impugned order on the grounds that it was not maintainable and that the appellant was guilty of serious laches in concluding the departmental enquiry.
11. It was submitted on behalf of the appellant that having regard to the serious nature of the charges levelled against the respondent No.1 and the justifiable reasons canvassed by it for not being able to complete the enquiry within the time stipulated, the High Court should have allowed its prayer for extension of time to conclude the enquiry. The appellant further contended that one of the reasons, which weighed with the High Court in refusing to grant further time was that the respondent No. 1 was suspended as far back as April 4, 1991 but, in fact, at no point of time, was he suspended. That apart, the appellant contended, the claim for his promotion was fully protected as a post in E6 grace was kept vacant to accommodate him in case he was exonerated from the charges.
12. In response, it was urged on behalf of the respondent No.1 that the departmental enquiry was initiated against the respondent No.1 on flimsy and baseless allegations only to delay and, if possible, to deny him his legitimate promotion. In support of this contention strong reliance was placed upon the final report submitted by the CBI on April 18, 1994- that is, after the High Court passed the impugned order and before the special leave petition was filed in this Court- in the case registered against the respondent No.1 exonerating him from the charges levelled against him and the order of the Special Judge, CBI. Ranchi Bench, dated April 25, 1994 discharging the respondent No.1 after accepting the final report. The other contention based upon the report was that the appellant could not and should not be allowed to continue with the departmental enquiry as the misconducts alleged against the respondent No.1 were identical with the accusations which formed the subject matter of the case registered against him. Lastly, it was submitted that as the appellant was guilty of wilful laches and negligence in conducting the enquiry the High Court was fully justified in passing the impugned orders.
13. Having gone through the material placed before us we are unable to accept the contentions raised by the respondent No.1 relying upon the final report, firstly, because, the misconducts and for that matter the allegations on which they are based, are not confined to only acquisition of assets disproportionate to the known source of income. Secondly, the final report submitted by the CBI recommending discharge of the respondent No.1 on the ground of non-availability of sufficient evidence has to be considered in the context of the standard of proof for a successful prosecution vis-a-vis a departmental enquiry. While in the former onus is one of beyond all reasonable doubts in the latter it is one of probability. Another reason which impels us to reject the contention of the respondent No.1 is that the enquiry has proceeded to some length in that six witnesses have already been examined.
14. Coming now to the impugned orders we find that one of the reasons which weighed with the learned Single Judge in making the same was that the respondent No.1 was suspended since the date the charge-sheet was issued, but that is admittedly incorrect. We are also of the view that considering the seriousness of the charges, the explanation offered by the appellant for the delay in concluding the enquiry, which cannot be said to be unsatisfactory and the fact that the enquiry has proceeded to some length the High Court ought not to have rejected the reasonable prayer of the appellant for extension of time.
15. We, therefore, allow this appeal, set aside the impugned orders of the High Court so far as they refused to grant time to the appellant to complete the enquiry and direct the appellant to conclude the enquiry as expeditiously as possible, preferably within a period of six months. There will, however, be no order as to cost.
