Case: BHARAT PETROLEUM CORPORATION  LIMITED AND OTHERS Vs. ANIL PADEGAONKAR

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 non-est. The High Court, in the facts of the case ought not to have given liberty to issue fresh charge-sheet 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 Chairmen-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142. With regard to the second charge-sheet, 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 Gwalior. There can be no two opinions that the nature of his duties had an inherent seriousness. Two charge-sheets 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 III-B (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. 10. Part-III 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 charge-sheet. 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 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 charge-sheet 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 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 III-F(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. Part-III-F(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 the Corporation had all along in all other cases also acted on basis of the same and that no charge-sheet 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 charge-sheet. The High Court itself reasoned that had the penalty been other than dismissal, the Functional Manager would have been competent to issue the charge-sheet. The High Court having posed unto itself the wrong question of dismissal from service, naturally arrived at an erroneous conclusion.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We have considered the submissions on behalf of the parties. The employee was posted at the Air Force Station Gwalior. There can be no two opinions that the nature of his duties had an inherent seriousness. Two charge-sheets 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 III-B (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 dismissal11. 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 charge-sheet. 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 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 charge-sheet 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. 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 III-F(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 Director13. 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 the Corporation had all along in all other cases also acted on basis of the same and that no charge-sheet 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 charge-sheet. The High Court itself reasoned that had the penalty been other than dismissal, the Functional Manager would have been competent to issue the charge-sheet. The High Court having posed unto itself the wrong question of dismissal from service, naturally arrived at an erroneous conclusion.