Karnataka High Court
Sri. M. Siddappa S/O. A. Muniyappa vs The Board Of Governors Indian Institute ... on 26 July, 2006
Author: H.N. Nagamohan Das
Bench: H.N. Nagamohan Das
ORDER H.N. Nagamohan Das, J.
1. In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the order of penalty dated 09.07.1993 passed by the respondent dismissing the petitioner from service and for consequential reliefs.
2. Petitioner joined the service of respondent in the year 1974 as Research Fellow. With effect from 16.01.1986 the petitioner was designated as Assistant Professor. The petitioner was an active trade union leader and in the year 1986 he was the elected Vice-President of the Indian Institute of Management Employees Association. On 10.07.1987 the respondents issued articles of charges alleging that on 18.07.1986 the petitioner and five others assaulted an employee, Sri. Padmanahha Nair, and thus committed grave misconduct under Rule 11.3[i] - [iii] of India Institute of Management Service Rules (For short 'Rules'). The petitioner by big reply dated 03.08.1987 denied the charges leveled against him. The Disciplinary Authority being not satisfied with the explanation of the petitioner, initiated domestic enquiry proceedings. Before the Enquiry Officer the respondents examined five witnesses as M.W.I to M.W.S and got marked Ex. M.I to Ex.M.57. The petitioner examined 19 witnesses as D.W.1 to D.W.19 and got marked Ex.R.1 to Ex.R.95. The Enquiry Officer submitted his report on 28.04.1993 stating that the charger leveled against the petitioner and live others as proved. The Disciplinary Authority by accepting the enquiry report passed an order of penalty on 09.07.1993 dismissing the petitioner from service. Hence, this petition.
3. The petitioner in person submitted his arguments. The petitioner contends that the articles of charges are issued by the Chief Administrative Officer on the approval of Chairman of the respondents who is not the appointing authority of petitioner. Therefore, the articles of charges are issued by an incompetent person. The charges are vague, necessary and specific details are not found in the charge. The Enquiry Officer is biased. In the enquiry proceedings the petitioner was denied reasonable and adequate opportunity of defending his case effectively. The findings of the Enquiry Officer are not supported by legally acceptable evidence on record. In respect of the very same charge the petitioner was honourably acquitted in criminal proceedings and as such, the benefit of the same ought to have been extended in the disciplinary proceedings. The respondents victimised the petitioner by falsely implicating in the alleged assault case. The extreme penalty of dismissal is disproportionate to the nature of charges leveled against the petitioner.
4. Per contra, Sri. Pradeep S. Sawkar, learned Counsel for the respondents contend, that the Board of Governors of respondents in its meeting held on 17.04.1990 ratified the departmental proceedings initiated against the petitioner. He contends, that after 42nd amendment to the Indian Constitution as specified in Article 311, the petitioner need not be provided an opportunity of being heard before passing the order of penalty. He contends, the acquittal of petitioner in criminal proceedings is not a bar to continue the departmental enquiry on the same charges. Some evidence is sufficient to prove the charges leveled against the petitioner. The petitioner being an Assistant Professor and Vice-president of employees association indulged in criminal acts of assault and the same is proved by the respondents by placing cogent evidence on record. He justifies the impugned order of penalty.
5. Heard arguments on both the sides and perused the entire writ papers.
6. In the course of arguments berth the sides invited my attention to number of decisions. I think it is sufficient if reference is made to the relevant decisions for the purpose of this case. On the basis of the arguments on both the sides, the following points will arise for my consideration.
I. Whether the disciplinary enquiry proceedings are initiated by an incompetent authority and as such, the entire enquiry proceedings are vitiated?
II. Whether the petitioner was denied reasonable and adequate opportunity to defend himself in the enquiry proceedings?
III. Whether the acquittal of petitioner in criminal proceedings would bar the respondents from holding disciplinary proceedings and to levy a penalty of dismissal?
IV. Whether the findings of the Enquiry Officer are supported by legally acceptable evidence on record?
V. Whether the petitioner is victimised and the penalty of dismissal is disproportionate to the nature of charges?
ON POINT No. I
7. It is not in dispute that petitioner was in Grade-A post as on the date of issuing the articles of charges on 10.07.1987. Rule 12.12 of the service Rules of respondent Institution specifies that in respect of Grade-A posts the Board of respondent - Institution is the appointing authority and also the Disciplinary Authority. It is not in dispute that the articles of charges dated 10.07.1987 issued to the petitioner is signed by Chief Administrative Officer with the approval of the Chairman of the respondent - Institution. Subsequently, the Board of Governors of respondent - Institution in its meeting held on 17.04.1990 ratified the departmental proceedings initiated against the petitioner. The Supreme Court in the case of State and Anr. v. Dr. R.C. Anand and Anr. held as under:
12. Ratification is noun of the verb "ratify". It means the act of ratifying, confirmation, and sanction. The expression "ratify" means to approve and accept formally. It means to conform, by expressing consent, approval or formal sanction. "Approve" means to have or express a favourable opinion of, to accept as satisfactory. In the instant case, there was no question of any ratification involved as wrongly assumed by the High Court.
Again the Supreme Court in the case of Punjab University v. V.N. Tripathi and Anr. held as under:
8. The resolution dated 29.9.1991 is in two parts. The first part deals with the delegation of the powers to the Registrar Vice-Chancellor authorising them to sue or file an appeal under the Regulation 10.2 of the Regulations of the Punjab University. The other part pertains the suits or appeals which have already been filed by the Registrar/Vice-Chancellor that act of filing of the appeals has been ratified. The first part thus deals with delegations of the power for acts to be done in future. The other part is not delegation of power, but ratifying the action, which has already been taken by the authorities mentioned therein by act of filing the appeals. It has already been noticed that the Registrar under Section 21 of the Punjab University Act, 1947 is authorised to represent the University in all legal proceedings, except where there is a decision of the Senate to the contrary. White representing the University, in view of the provisions under Section 21 of the Punjab University Act, the Registrar would obviously be taking several steps in prosecution of the legal proceedings. The Registrar would not be totally a stranger in the matters relating to legal proceedings in the Court. In this background if the Registrar filed the appeal, against the decision of the trial Court, which had gone against the Punjab University though strictly speaking exceeded his authority, but his action in having filed the appeals was later on ratified by the competent authority by Resolution dated 29.9.1991. The Registrar is a responsible officer of the University and has statutory powers under Section 21 of the Act to represent the University in legal proceedings. Had the Senate not ratified the act of the filing of the appeal, it would of course have been a different matter, but not thereafter. We also find no substance in the submission made on behalf of the respondent that the ratification came very late. In our view, it would not have any material bearing on the Act of ratification of the action of the Registrar in filing theappeals. The ratification has the effect or relating back to the time when the action was taken without authority. Despite the ratification by the competent authority, refusal to examine the matter on merits, would in no way servo the ends of justice. It would only be hankering to the technicalities rather than to be concerned with the intent and the substance. In view of the discussion held above, we allow the appeals and set aside the judgment passed by the High Court and Appellate Courts below and remand the matters to the respective first Appellate Courts for decision on merits. Since the appeals have become old they shall be disposed of expeditiously. There would however, be no order as to costs.
(Underlining is by me)
8. In the instant case, the Chairman of the respondent - Institution initiated the enquiry proceedings by issuing articles of charges on 10.07.1987. The Board in its meeting held on 17.04.1990 ratified the departmental proceedings initiated against the petitioner. Thus Ac action of the Chairman came to be confirmed by the Board and the same relates back to the date of initiation of departmental proceedings against the petitioner. Hence, point No. I is held in negative and against the petitioner.
ON POINT No. II
9. The articles of charges issued against the petitioner and four others relates to an incident that happened on 18.07.1986. The articles of charges was issued on 10.07.1987. The petitioner submitted his detailed reply on 03.08.1987. The enquiry proceedings came to be concluded after nearly six years on 28.04.1993. Before the Enquiry Officer as many as 173 hearings have taken place. The respondents examined 5 witnesses as M.W.1 to M.W.5 and produced Ex.M.1 to Ex.M.57. The petitioner and others examined 19 witnesses n D.W.1 to D.W.19 and produced documents Ex.W.1 to Ex.W.95. In this marathon on enquiry proceedings, four Enquiry Officers one after the other concluded the proceedings. The contention of the petitioner that he was denied the assistance of lawyer and thereby he was prevented from effectively defending himself is unacceptable to me. Petitioner is an Assistant Professor. Petitioner cross-examined at length the prosecution witnesses. The petitioner examined as many as 19 witnesses on his side. The service rules of the respondent Institution do not provide for the petitioner to appoint a legal practitioner to assist him. As a matter of right the petitioner cannot claim the assistance of legal practitioner. The Disciplinary Authority in the given facts and circumstances of this case has rightly exercised his discretion in not permitting the petitioner to engage the services of legal practitioner. It is not shown to me as to how the petitioner is prejudiced by denying him to have the assistance of a legal practitioner. I find no merit and substance in this contention of the petitioner.
10. The contention of the petitioner that he was denied an opportunity of filing his defence statement before the Enquiry Officer is unacceptable to me. The petitioner submitted a detailed reply on 03.08.1987 of 14 pages to the articles of charges. Though the Enquiry Officer granted sufficient time, the petitioner failed to file his defence statement. But the Enquiry Officer treated the reply of the petitioner dated 03.08.1987 as defence statement by passing specific order in the course of inquiry. Therefore, the contention of the petitioner that he was prevented from filing his defence statement is baseless and unfounded.
11 The contention of the petitioner that the prosecution failed to supply certain documents as requested by the petitioner is again unacceptable to me. The petitioner has not disputed the fact that the copies of the documents relied on by the prosecution are provided to the petitioner. The petitioner has to prove the relevancy of the documents sought for by him. The petitioner shall further prove as to how the non-production of the documents by the prosecution as sought for by the petitioner resulted in prejudice to his interest. The petitioner failed to point out at to how the documents sought for by him are relevant and non-production of the same has prejudiced his case.
12. The contention of the petitioner that the Enquiry Officer was biased is again baseless and unfounded. The Supreme Court in the case of State of Punjab v. V.K. Khanna AIR 2001 SC 343 held as under.
8. The test, therefore, is at to whether there is a mere apprehension of bias or there it a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor would not arise.
In the instant case the contention of the petitioner that the Enquiry Officer is biased is only an apprehension. The petitioner failed to show the existence of real danger of bias.
13. The petitioner contend that the Enquiry Officer is different and the Disciplinary Authority is different and the Disciplinary Authority without issuing a second show cause notice passed the order of penalty and therefore the same is opposed to Article 311 of the Constitution of India. It is necessary to examine the scope of Article 311 of the Constitution of India and it reads as under:
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. - (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority suborduate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
The Supreme Court in the case of Managing Director, ECIL v. B. Karunakar held as under:
26. The emerging effect of our holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing before deciding on proof of charge or penalty which 42nd Amendment Act had advisedly avoided. So while interpreting Article 311(2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of heating as was portended by the Gujarat High Court. The attempt must be nailed squarely. Prior to the 42nd Amendment Act the delinquent has no right of hearing before disciplinary authority either on proof of charge or penalty. So after 42nd Amendment Act it would not be put on higher pedestal. The Gujarat High Court's decision is, therefore, not a good law. However, the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct.
14. Subsequent to 42nd amendment to the Constitution amending Article 311 of the Constitution, the respondents amended the service Rules of the Institution. The amended service Rules was circulated among the employees by issuing circular dated 07.05.1992. In terms of the amended Rules the Disciplinary Authority in his covering letter dated 10.05.1993 enclosed the copy of the enquiry report and sent the same to the petitioner and called upon him to submit his explanation, if any. The petitioner submitted his reply on 05.07.1993 and on 08.07.1993. Thus the Disciplinary Authority provided an opportunity to the petitioner before the order of penalty is passed. Therefore, I decline to accept the contention of the petitioner that he was not issued second show cause notice specifying the penalty and thereby an opportunity was denied. Hence point No. II is held in negative and against the petitioner.
ON POINT No. III
15. It is necessary to notice the law laid down by the Supreme Court on the question of criminal proceedings and departmental proceedings. The Supreme Court in the case of Govinda Das v. State of Bihar held, that the acquittal in the criminal proceedings is based on the view that charges were not proved beyond reasonable doubt. Since the standard of proof required to prove a charge of misconduct in departmental proceedings is not the same as that required to prove a criminal charge, the acquittal of the appellant in the criminal case could not be made the basis for setting aside the order of termination in the disciplinary proceedings on the basis of evidence adduced in the departmental inquiry conducted in the charges leveled against the delinquent In the case of Senior Superintendent of Post Offices v. A. Gopalan AIR 1999 SC 1514 it is held, that in a criminal case the charge has to be proved by the standard of proof beyond reasonable doubt while in departmental proceedings the standard of proof for proving the charge is preponderance of probabilities.
In the case of Secretary, Ministry of Home Affairs v. Tahir Ali Khan Tyagi JT 2002 (Supp. 1) SC 520 it is held, that fee departmental proceedings and criminal proceedings can run simultaneously and departmental proceedings can also be initiated even after acquittal in a criminal proceeding particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is required to prove the delinquency of a government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability.
In the case of Allahabad District Cooperative Bank Limited v. Vidhya Varidh Mishra it is held, that in a disciplinary inquiry a conclusion different from that arrived at by a criminal Court may be arrived at. The strict burden of proof required to establish guilt in a criminal Court is not required in disciplinary proceedings.
In the case of Krishnakali Tea Estate v. Akil Bharatiya Chah Mazdoor Sangh it is held, that if the evidence led by the management before the Enquiry Officer was different from that led by the prosecution in the criminal case and the materials before the criminal Court and enquiry were entirely different and therefore the Enquiry Officer can come to an independent conclusion dehors honourable acquittal by a criminal Court.
In the case of Capt M. Paul Anthony v. Bharat Gold Mines Limited 1999 (3) SC 679 it is held, that the evidence led in the criminal case as well as in the domestic enquiry was one and the same and the criminal court having acquitted the workman on the very same evidence, a contrary finding in the domestic enquiry would be unjust, unfair and rather oppressive.
In the case of G.M. Tank v. State of Gujarat 2006 AIR SCW 2709 it is held, that the distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in a case where facts and evidence in the departmental as well as criminal proceedings were the same.
16. From the above decisions, the following principles will emerge:
I. The nature of proof in criminal proceedings are different from the departmental proceedings. Therefore, the criminal proceedings and departmental proceedings can simultaneously be initiated.
II. Acquittal in criminal proceedings, even if honourable, the departmental proceedings can be proceeded.
III. Whether the evidence led in the criminal proceedings as well as in the domestic enquiry was one and the same, and the criminal Court having honourably acquitted the workman on the very same evidence, a contrary finding in the domestic enquiry would be unjust, unfair and rather oppressive.
17. Keeping in mind the law declared by the Supreme Court it is required to examine the fact situation in the present case. The charge against the petitioner in the domestic enquiry reads as under:
that on 18.07.1986, all of them with the common object and common intention of preventing Sri. Padmanabhan Nair, Mechanic, of the Transport Department from discharging his official duties, i.e, reporting the condition of the motor vehicles and the mis-use of motor vehicles by IIMEA, surrounded Mr. Padmanabhan Nair and Sri. M. Siddappa caught hold of his collars and hit him on his cheek and Sri. N. Ramesh fisted on his lips and tried to strangulate him and the other four incited, cheered up and abetted the assault and thus committed grave acts of misconduct under Rule 11.3[i][iii] of IIMB Service Rules [Conduct unbecoming of an employee of IIMB]
18. For the very same offence the petitioner and five others were charge sheeted for offences under Section 143, 147, 149, 323 and 449 of the IPC in CC No. 7777/1989 before the Chief Metropolitan Magistrate, Bangalore. Before the Chief Metropolitan Magistrate in C.C. No. 7777/1989 the prosecution examined 9 witnesses as P.W.1 to P.W.9 and got marked Ex.P.1 to Ex.P.5. The criminal Court on appreciation of the oral and documentary evidence on record held as under:
14. Prosecution attempted to discredit me evidence of P.W.2 and P.W.3. I have gone through their evidence. They are impartial witnesses. They have no reason to give false version against the accused. In the result, on the totality of the evidence, I find that the accused are not guilty of the offence Under Section 323 IPC. Hence they are entitled to be acquitted of the same. The evidence on record is not free from suspicion and not sufficient to bring home the guilt to the accused. Therefore, both the accused are found not guilty for the alleged offence under Section 323 IPC.
19. A reading of the judgment in C.C. No. 7777/1989 manifestly establishes the fact that the petitioner is honourably acquitted. The charge in the Criminal proceedings and in the domestic enquiry is same. The evidence of respondents before the Criminal Court and before the domestic enquiry are substantially the same and the material relied on is same. Therefore, the petitioner is entitled for the benefit of acquittal in criminal proceedings.
20. The decision relied on by the respondents in the case of Krishnakali Tea Estate v. Akilabharathiya Chah Mazdoor Sangh will not assist the argument advanced by the learned Counsel for the respondent In Krishnakali Tea Estate's case the Supreme Court noticed that before the Labour Court the evidence lead by the Management was different from that lead by the prosecution in the criminal case and the material before the criminal Court and the Labour Court were entirely different. Therefore it was open to the Labour Court to have come to an independent conclusion dehors the finding of the criminal Court But in the instant case, the evidence and material before the criminal Court and in the domestic enquiry proceedings are same. Therefore the decision of the Supreme Court in Krishnakali Tea Estate's case will not apply to the facts in the present case. Hence I hold point No. III in affirmative and against the respondent.
ON POINT No. IV.
21. The Enquiry Officer was appointed to conduct an enquiry and to submit a report on a charge against the petitioner and five others alleging that on 18.07.1986 the petitioner and five other assaulted an employee by name Sri. Padmanabhan Nair (M.W.2). The Enquiry Officer in his report at para 65 frames a contrary point for consideration as under:
The point for consideration is whether the evidence let in by the Management establishes the fact that CSO M/s. Siddappa and Ramesh assaulted Sri Nair in the transport section at 11.30 a.m. on 18.7.86, while other CSOs abetted instigated and cheered Sri. Siddappa and Sri. Ramesh or whether the evidence let in by the CSOs establish the fact that Sri. Nair assaulted Sri. Siddappa and Sri. Ramesh at the same time and at the same place.
(Underlining in by me)
22. The Enquiry Officer was only asked to find out whether on 18.07.1986 petitioner and others assaulted M.W.2. But the Enquiry Officer framed a point to find out whether M.W.2 assaulted Sri. Shidappa and others on 18.07.1986. Thus the Enquiry Officer exceeded his jurisdiction in enquiring into a fact which is not a part of charge. The Enquiry Officer traveled beyond what is referred to him. Thus the very approach of the Enquiry Officer in assessing the evidence on record resulted in failure of justice.
23. The Enquiry Officer refuses to consider and rely on the evidence of petitioner and his witness on the ground that it is only an interested testimony. But the Enquiry Officer gives importance to the evidence of M.W.2 who is said to be victim of alleged assault. The evidence of M.W.2 who is said to be victim of alleged assault will not be an interested testimony to the Enquiry Officer. The Enquiry Officer applied one yard stick to accept the evidence of respondents and another yardstick to reject the evidence of petitioner. This approach of the Enquiry Officer resulted in failure of justice and against the basic principles of law of evidence.
24. Except the oral interested testimony of M.W.2 Aero is no other evidence on record to prove that the petitioner and others assaulted him on 18.07.1986. The management witnesses M.W.1, M.W.3, M.W.4 and M.W.5 are not the eye witnesses to the incident and the deposition of these witnesses do not corroborate the evidence of M.W.2. Only on surmises and conjunctures the Enquiry Officer holds that the charge leveled against the petitioner and omen as proved. The findings of Enquiry Officer are not supported by legally acceptable evidence on record.
25. The Enquiry Officer failed to notice the fact that in the first complaint to the police on 18.07.1986 the name of the petitioner do not find a place. Though there was a medical clinic in the campus of the respondent - Institution, M.W.2 was not treated in the said clinic on the date of incident that too for a minor injury. But, he was sent to Victoria Hospital for treatment. After a gap of nearly 4 to 5 hours, M.W.2 in his additional statement before the police mentioned the names of petitioner and others. Three days after the incident M.W.2 complains to the management about the alleged incident. The evidence on record establishes the fact that from time to time and from stage to stage the management went on improving the case. The Enquiry Officer failed to consider these admitted facts on record The non-consideration of evidence on record is bad in law. Hence, point No. IV is held in negative and against the respondent.
ON POINT NO. V
26. It is necessary to notice the prevailing environment in the campus of respondent - Institution immediately prior to the date of alleged incident on 18.07.1986. Petitioner was an active trade union leader and he was the Vice-President for the past 10 years in the employees' Association. M.W.2 was not the member of the employees Association. On 22.05.1986 the employees' Association launched agitation for certain demands. Most of the demands relate to the illegal and arbitrary actions and decision of the Director of' the Institution. On 20.06.1986 the employees' Association complained against then Director for his illegal and dictatorial attitude and requested the Chairman to intervene in the matter. On 16.06.1986 the petitioner wrote to the Director objecting the presence of police in the campus. On 04.07.1986 the Management filed civil suit in O.S. No. 10524/1986 on the file of City Civil Judge at Bangalore against the petitioner and others for grant of permanent injunction. The civil Court granted an ex-parte injunction order restraining the petitioner and others from holding meetings, dharanas, demonstrations, shouting slogans defaming the Director etc. Thus the environment in the campus was one of distrust, suspicious, ill-will, agitative, not peacefull and not conducive. Under these circumstances, the petitioner became the victim of respondent's wrath by reason of his trade Union activities. The petitioner was falsely charge-sheeted and he was immediately kept under suspension and later dismissed from service. It is not in dispute that on 18.07.1986 the petitioner and others gave a complaint against M.W.2 to the management. On 21.07.1986 M.W.2 gave complaint against petitioner and others to the management. When a complaint and a counter complaint are before the management, it is obligatory on the part of management to hold a preliminary investigation and then to initiate enquiry proceedings. But the respondent by throwing the complaint of petitioner and others to a dustbin proceeded to enquire the complaint of M.W.2, This act of the respondent is nothing but victimisation of petitioner.
27. The events before the alleged incident on 18.07.1986 manifestly makes it clear, that the trade union activities of petitioner displeased the Director and he was prejudicial against the petitioner. For a charge of this nature, even if it is proved, no reasonable employer would impose, under the circumstances, an extreme penalty of dismissal which is nothing but victumisation of petitioner. The previous record of the petitioner is unblemish. The respondent made a mountain out of a mole and had blown a trivial matter into one involving gross indiscipline, only with an intention to throw out the petitioner from service. I hold point No. V in affirmative and against the respondents.
28. The petitioner has attained superannuation during the pendency of this writ petition and as such the question of reinstatement will not arise. The petitioner is entitled for all monetary benefits.
29. For the reasons stated above, the following;
ORDER I. Writ petition is allowed II. The order of penalty dated 09.07.1993 passed by the Secretary of the respondent - Board is hereby quashed III. The petitioner is entitled for all monetary benefits.
IV. Ordered accordingly with no order as to coats.