IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.4341 OF 1985 For Approval and Signature The Hon'ble Mr. Justice S.K. KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether their lordships wish to see the fair copy of the judgment ? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Civil Judge? --------------------------------------------------------- KK GUPTA VERSUS THE CHAIRMAN, INDIAN OIL CORPORATION & ORS. --------------------------------------------------------- Appearance: MR SR BRAHMBHATT for the Petitioner MS MS SHAH for Respondents --------------------------------------------------------- Coram: S.K. Keshote,J Date of decision:15/08/1997 C.A.V. JUDGMENT #. Shri B.P.Tanna has advanced arguments in this case on behalf of petitioners on 8th April 1997. The order was kept CAV. During the course of dictation of the order, it has been found that the learned counsel for respondent-Corporation has not given to the Court, a copy of Conduct, Discipline & Appeal Rules of 1980, and as such, the matter was directed to be listed for further consideration in the Court on 26th June 1997. The learned counsel for respondents has given the Rules, 1980, and this time, Shri S.R. Brahmbhatt, appears for the petitioner and though the arguments were completed, both the parties were further heard in the matter. #. The petitioner, an officer of the respondent-Corporation who was on probation at the relevant time, filed this writ petition before this Court against the order of the respondent dismissing him from services. The petitioner has been dismissed from services after misconduct alleged against him was found proved in departmental inquiry. The order of dismissal passed by the disciplinary authority has been affirmed by the appellate authority and that order is also under challenge in this Special Civil Application. #. The chargesheet came to be issued to the petitioner by the respondents vide memo dated 12th November 1982, relevant part of which reads as under: 1. It is alleged that you have committed the following act/s of misconduct. The circumstances alleged against you in the matter are mentioned below: I. On your promotion during July 1982, you have been posted as Sr.Sales Officer at Ahmedabad on probation. It is alleged that you have been demanding and taking money from the distributors under one pretext or other as under: 1) On your demand you were paid an amount of Rs.6,000/- by M/s. Surinder Pal & Co. which you refunded back to them vide Cheque No.224447 dated 4.9.82 only when this matter was brought to the notice of Divisional Manager, Ahmedabad, by the said distributor. 2) You received an amount of Rs.2,000/- from M/s.A.G. Gas Agency on demand. Subsequently, you also took Rs.50/- from the partner of M/s.A.G. Gas Agency (Shri Anil Gupte), but you have not paid back the same to them. 3) You demanded an amount of Rs.2,000/from another LPG Distributor M/s.A.R.A. Cooperative Stores, Ahmedabad, which ultimately was not paid to you due to the intervention of DM, Ahmedabad. II. Your touring pattern and tour report have not been accurate. During the period 16.6.82 to 30.6.82 and 1.7.82 to 15.7.82, you submitted the following TA Bills for which there were no proper records of having contacted the distributors: 1) A TE Bill for Rs.546/- for the period 16.6.82 to 30.6.82. On being questioned about the TE Bill for the period 16.6.82 to 30.6.82, you submitted a revised TE Bill with considerable changed reducing the bill from Rs.546/- to Rs.321/- which is obviously an afterthought. 2) Similarly, with regard to your TE Bill for the period 1.7.82 to 15.7.82, when you were asked about certain discrepancies, you replied that Corporation is at liberty to disallow and reject the TE Bill as you did not have any documentary proof for having visited the various locations by way of tour reports. III. It has been observed that you have not been performing your duty as per the laid down norms for a Sr.Sales Officer. It has also been observed that you have called a distributor, M/s.Surinder Pal & Co., with blank intimation cards to be signed by you in the Divisional Office without verifying the records at the show-room. You signed few cards on 13.8.1982. The above acts are highly irregular and constitute serious lapses on your part. 2. In view of the above charges, you have allegedly committed the following acts of misconducts: (i) Demanding and accepting money from the Distributors in order to meet self requirements. (ii) Acting in a manner prejudicial to the interest of the Corporation. (iii) Misuse of official position. (iv) Commission of any acts subversive of discipline or good behaviour. #. The petitioner filed reply to the chargesheet and as usual, he has denied all the charges. The disciplinary authority was not satisfied with the reply of the petitioner and it has decided to hold departmental inquiry against the petitioner and accordingly the inquiry committee was constituted vide order dated 17.1.83. This inquiry committee was consisted of two members; Shri D.L. Punjabi and Shri N.K. Mukherjee. In the inquiry, both documentary and oral evidence have been produced. The inquiry committee submitted its report on 6.12.83 to the disciplinary authority wherein all the charges framed against the petitioner were found proved. The petitioner was given a show cause notice vide memorandum dated 12th November 1984 and it is not in dispute that a copy of the inquiry report was enclosed to that show cause notice. The petitioner filed a detailed reply to the show cause notice. The disciplinary authority under its order dated 22.1.85, ordered dismissal of the petitioner from the services of the Corporation with immediate effect. This order of the disciplinary authority was appealable under Rule 38 of the Conduct, Discipline & Appeal Rules, 1980 of the Indian Oil Corporation Ltd., and the petitioner filed an appeal before the appellate authority which came to be dismissed as intimated to him under the letter dated 19th April 1985. Hence this Special Civil Application. #. The learned counsel for the petitioner Shri B.P. Tanna and Shri S.R.Brahmbhatt have raised three contentions challenging the orders of disciplinary authority and appellate authority. The first contention is that both the orders of the disciplinary authority and appellate authority are non speaking orders. These are cryptic orders and as such, the writ petition deserves to be accepted only on this ground. To buttress this contention, the learned counsel for the petitioner contended that the petitioner filed details reply to the show cause notice running in pages but the disciplinary authority has felt contended by passing a non speaking order and none of the contentions raised by the petitioner therein have been referred, what to say to consider the same. So far as the challenge to the order of appellate authority is concerned, the learned counsel for the petitioner contended that the petitioner filed detailed appeal and various contentions have been raised therein but the appellate authority felt contended by passing a cryptic order. The contentions raised in the Memo of appeal have not been referred to, what to say to consider the same. Three judgements of Hon'ble Supreme Court are relied upon in support of this contention and reference to those will be made later at appropriate place in the judgement. #. It has next been contended that the present is the case of no evidence. There was no evidence whatsoever against the petitioner in respect of charged framed against him and as such both the authorities have committed serious illegality in holding him guilty of charges and consequently dismissing him from services. The learned counsel for the petitioner contended that it is only a case of taking of loan by the petitioner from the distributors and not a case of taking illegal gratification. In support of his contention, the learned counsel for the petitioner placed reliance on the decision of this Court in the case of Siddharth Mohanlal Sharma v. South Gujarat University, reported in 23(1) GLR 233. Lastly, it is contended that taking into consideration the totality of the facts of this case, the charges framed against the petitioner and the evidence on record in the inquiry, the punishment which has been given to him is highly disproportionate to his guilt. #. On the other hand, the learned counsel for the respondents Ms.M.S. Shah, contended that the inquiry has been conducted in the present case by inquiry committee which consisted of two members and a detailed inquiry report has been submitted. In case where disciplinary authority has entrusted the inquiry to be held against the petitioner to a committee and the disciplinary authority is in agreement with the finding of the inquiry committee, it was not necessary for it to pass a detailed and reasoned order. It is a case of acceptance of finding of the inquiry committee by disciplinary authority and the order which has been passed in the present case cannot be termed as cryptic or non speaking order. In case where inquiry has been held it is not necessary for disciplinary authority to pass a detailed order nor it is a case where disciplinary authority can be said to be a Civil Court or Statutory Tribunal where it has to pass a detailed order. #. It has next been contended by Ms.M.S.Shah, learned counsel for the respondents that a copy of the inquiry report has been sent to the petitioner alongwith show cause notice. So the detailed reasons and findings which were given to hold the petitioner guilty of alleged misconduct were available to him and as such these reasons and findings could have been taken to be reasons and findings given by the disciplinary authority in its order. #. Affidavit has been filed on record of Shri B.K.Bakshi, Director (Marketing) of the Corporation who was appellate authority in the matter. The appellate authority has stated on oath before this Court that after examining the papers and after considering relevant facts he passed the order in appeal. A copy of the order annexure `A' is also produced on record. Making reference to the provision of Rule 38 of the Rules 1980, and the aforesaid Affidavit of the appellate authority, the learned counsel for the respondents, Ms.M.S. Shah contended that it cannot be said that the order of the appellate authority is non speaking one or cryptic order. So far as the next contention of the learned counsel for the petitioner is concerned, the learned counsel for respondents Ms.M.S. Shah contended that it is not a case of no evidence. There was wholesome evidence against the petitioner on the charges framed against him and the inquiry committee, after considering each and every peace of evidence produced on record, has recorded finding against the petitioner. The statement of witnesses has also been produced on record and from perusal of the same it comes out that it is a case where the petitioner has demanded money from distributors, not as a loan but for extraneous consideration. Regarding charges of TA bills etc., the learned counsel, Ms.M.S.Shah, for respondent-Corporation submitted that it is a case where the petitioner has not submitted correct TA bills. Looking to the facts of this case, the charges and the position of the petitioner, the punishment of dismissal given to him cannot be said to be disproportionate. Further, Ms.M.S.Shah, learned counsel for the respondents submitted that in the matter of quantum of punishment which should be given to the delinquent officer for proved misconduct, this Court has very very limited power of judicial review. This Court may interfere in the quantum of punishment where it finds the punishment to be disproportionate or highly excessive to its judicious conscious and not otherwise. ##. Lastly, the learned counsel for the respondents, Ms.M.S. Shah, relying on the latest decision of Hon'ble Supreme Court in the case of State Bank of Patiala & Ors. v. S.K. Sharma, reported in AIR 1996 SC 1669, contended that in such matters, this Court should not interfere unless in the opinion of that Court a failure of justice has in fact been occasioned thereby. These are the matters where the officer of the Corporation has incurred in illegal activities and if any leniency is shown, then it will encourage officers for corruption, which ultimately may not be in the larger interest of public. #. I have given my thoughtful considerations to the submissions made by learned counsel for the parties. #. The Corporation has its own Rules for the conduct, discipline and appeal, known as Indian Oil Corporation Ltd. Conduct, Discipline & Appeal Rules, 1980 (hereinafter referred to as `Rules 1980'). For the purpose of deciding this case, Rule No.31, 32, 33, and 38 of the Rules 1980, are relevant. Rule 31 of the rules 1980 lays down procedure for imposing major penalties. As per Rule 29 of these Rules, dismissal and removal from services, among other penalties, are major penalties. Sub Rule 4 of Rule 31 of the Rules 1980 provides that on receipt of the written statement of the employee to the chargesheet or if no such statement is received within time specified, an inquiry may be held by the disciplinary authority itself, or by an inquiring authority so appointed by the disciplinary authority under sub clause (2). Sub Rule (2) of Rule 31 of Rules 1980 empowers a disciplinary authority where it is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an employee, it may itself inquire into, or appoint any officer of the Corporation or any public servant (hereinafter called the inquiring authority) to inquire into the truth thereof. A plain reading of the aforesaid two sub Rules of Rule 31 of Rules 1980 gives out that in disciplinary matters, the disciplinary authority itself may inquire into the truth of an imputation of misconduct or misbehaviour against the delinquent officer or it may entrust this work to any officer of the Corporation or any public servant. In the case in hand, the disciplinary authority, in exercise of its powers, under sub Rule 2 read with sub Rule 4 of Rule 31 of Rules 1980, appointed an inquiry committee consisting of two members. Sub Rule 19 of Rule 31 of Rules 1980 puts an obligation upon inquiring authority or the committee, on conclusion of an inquiry, to prepare a report, and that report shall contain -- (a) a gist of the charges, (b) a gist of the defence of the employee in respect of each charge, (c) an assessment of the evidence in respect of each charge, and (d) the findings on each charge and the reasons therefor. Clause (ii) of Sub Rule 19 of Rule 31 of Rules 1980 is also to be noticed. The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include -- (a) the report of the inquiry prepared by it under sub-clause (i), (b) oral and documentary evidence produced in the course of the inquiry, (c) written briefs referred to in sub-rule (16), if any, and (d) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry. Rule 32 of the Rules 1980 makes a provision for action on the inquiry report. Under this Rule, the disciplinary authority has to act as under: (1) It may, for the reasons to be recorded by it in writing, remit the case to the inquiring authority for fresh or further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 31 as far as may be. (2) If it disagrees with the findings of the inquiring authority on any charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the disciplinary 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 29 should be imposed on the employee, is shall, notwithstanding anything contained in Rule 33, make an order imposing such penalty. (4) Lastly, if the disciplinary authority, having regard to its findings on all or any of the charges, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned. Rule 34 of the Rules 1980 makes a provision for communication of the orders. The orders made by the disciplinary authority under Rule 32 of Rule 33 with regard to its findings on each charge shall be communicated to the employee concerned who shall also be supplied with a copy of the inquiry report, if any. Further, there is an explanation to Rule 34 of the Rules 1980 which provides that where an inquiry is held by an inquiring authority appointed by the disciplinary authority and the disciplinary authority disagrees with any or all the findings of the inquiring authority on each of the charges, orders of the disciplinary authority will also state the reasons for his disagreement with the findings of the inquiring authority. ##. So Rule 32 of the Rules 1980 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. The disciplinary authority, while acting under Rule 32 of the Rules 1980, has before it, the record of inquiring authority as well as the findings of the inquiring authority on each charge with the reasons therefor. Rule 32 of the Rules 1980 puts upon the disciplinary authority, an obligation to record its own reasons where it is disagreeing with the findings of the inquiring authority on any charge for such disagreement and further obligation is put to record its own findings on such charge, if the evidence on record is sufficient for the purpose. The other part of Rule 32 of the Rules 1980 deals with the matter where the disciplinary authority is in agreement with the findings of the inquiring authority. In case where the disciplinary authority is in agreement with the findings of the inquiring authority recorded on each charge, then it is nowhere provided in the Rules 1980 that it has to repeat its own findings on each and every charge. So a distinction has to be drawn where the disciplinary authority has to deal with the matter after receipt of report from the inquiring authority, where it is in agreement with the same and where it is not in agreement with the same. In the latter case, it has to record its reasons for such disagreement and further obligation has been cast to record its own findings on such charges. Clause (3) of Rule 32 of the Rules 1980 though refers, "if the disciplinary authority having regard to its findings on all or any of the charges..." but a plain reading of sub clause (2) and this clause clearly gives out that a rigidity, and an obligation, as is there upon the disciplinary authority under clause (2) of Rule 32, is not there in clause (3) of Rule 32 of Rules 1980. ##. In the case of Union of India & Ors. v. K. Rajappa Menon, reported in AIR 1970 SC 748, the Hon'ble Supreme Court has considered the matter with reference to the Railway Servants Conduct and Disciplinary Rules, Rule 1713. Rule 1713 aforesaid which was there before the Hon'ble Supreme Court for consideration provides that, "if the disciplinary authority is not the enquiring authority, it shall consider the record of the enquiry and record its findings on each charge". So, this clause, to substantial extent, is similar to sub Rule (2) of Rule 32 of the Rules 1980 of the Corporation in the present case. The order which was there for consideration before the Hon'ble Supreme Court in that case has been reproduced in para-2 of the Judgment. The dismissal order passed in the present case has been filed by the petitioner at annexure `D', and that order reads as under: Sub: Disciplinary case against you - Dismissal. This has reference to our Charge-Sheet No.IR/1461(W-45) dated 12.11.1982, your reply dtd.7.12.82 to the Charge-Sheet, subsequent enquiry and your reply dated 20.12.84 to our Show Cause Notice No.IR/1461(W-45) dated 12.11.1984. After carefully considering the above, it has been decided to dismiss you from the services of this Corporation. You are, therefore, hereby dismissed from the services of the Corporation with immediate effect. You are further informed that as per rule 38 of our CDA Rules 1980, you can prefer an appeal if you so desire, through proper channel within 60 days from the date of the receipt of this order to Director (M) who is the appellate authority. The order which was under consideration before the Hon'ble Supreme Court was, to substantial extent, similar to the order impugned in the present case. There also contention has been made that the order is cryptic order and the disciplinary authority has not recorded its own findings on each charge. Repelling that contention, Their Lordships Court in the aforesaid case held that Rule 1713 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. All that the Rule requires is that the record of the enquiry should be considered and the disciplinary authority should proceed to give its findings on each charge. This does not and cannot mean that it is obligatory on the disciplinary authority to discuss the evidence and the facts and circumstances established at the departmental inquiry in details and write as if it were an order or a judgment of a judicial tribunal. Where, the disciplinary authority, after giving consideration to the record of proceedings, agrees with the findings of inquiring officer that all the charges mentioned in the charge-sheet have been established, it meant that he was affirming the findings on each charge and that would certainly fulfil the requirement of the Rule. The Rule after all has to be read not in a pedantic manner but in a practical and reasonable way. From the order of the disciplinary authority dated 22.1.85, it is clear that it has passed the said order after carefully considering the inquiry proceedings, which contains the record as provided in Sub Rule 19 of the Rule 31 of the Rules 1980. Where the disciplinary authority is affirming the finding recorded by the inquiring officer, how far it is justified to claim by the delinquent officer that it has to record its own findings on each charge. It is only a repetition of things which will not otherwise serve any purpose of delinquent officer. The only thing which is obligatory and essential is to see that the inquiry report is furnished to the delinquent officer either alongwith the order or earlier to the order. In the present case, a show cause notice was given to the petitioner and an inquiry report was enclosed to it. So, the inquiry report was with him at the time when the order dated 22.1.85 was received by him from the disciplinary authority. The findings of the disciplinary authority, in such case, can be read from the inquiry report itself. The learned counsel for the petitioner fails to show how any prejudice is likely to be caused or in fact has been caused to the petitioner in the present case for want of recording of findings on each charge by disciplinary authority. The matter would have been different where the inquiry report has not been furnished and in that case, legitimate grievance could have been made that it is a non speaking order or cryptic order. The reasons may not be there in the order of disciplinary authority in support of findings on the charges, but where the disciplinary