Case: Tara Chandkhatri Vs. Municipal Corporation of Delhi and Others

2. The facts essential for the purpose of this appeal are: The appellant was appointed as an Assistant Teacher on temporary basis in the pay scale of Rs. 68-170, which was subsequently revised to Rs. 118-225, in the Primary School, Northern Railway Colony II run by the Education Department of the Municipal Corporation of Delhi, with effect from October 1, 1958. He was confirmed on the said post on September 30, 1959. On August 2 8, 1964, he was transferred to the Senior Basic Middle School of the Corporation in Panna Mamirpur, Narela 11. In September, 1967, he was assigned the work of teaching certain subjects to both the sections of Class V. In section A of Class V, there was at that time a student named Surinder Kumar, son of Dhan Raj. On September 6, 1967, Dhan Raj made a written complaint to the Education Officer of the Corporation, a copy of which he endorsed to the Head Master of the School, alleging therein that the appellant bad sensually misbehaved with his son, Surinder Kumar in the School Premises during the recess time on 2nd and 4th September, 1967. On October 5, 1967, the Education Officer suspended the appellant. On April 15, 1968, the Assistant Education Officer, Rural North Zone, was directed by his superior to prepare a charge sheet against the appellant whereupon a charge sheet was drawn up and served on the latter on November 16, 1968. Therefore, the Director of Inquiries, who was deputed to enquire into the matter proceeded to hold the enquiry and on consideration of the evidence adduced before him, he submitted a report on May 20, 1969, holding that the charge levelled against the appellant had been established. On receipt of the report and perusal thereof, the Deputy Commissioner, Education of the Corporation passed the following order on May 20, 1969:have gone through the report of the Inquiry Officer and agree with his findings. The Inquiry Officer has held the charge of committing an immoral act with a student of Class V, levelled against Shri Tara Chand Khatri, A/T (Respondent) as proved. Such an act on the part of a teacher is most unbecoming, serious and reprehensible. I propose to impose the penalty of dismissal from service which shall be a disqualification for future employment on the respondent.. Consequent upon the passing of this order, a notice was issued to the appellant requiring him to show cause why the penalty of dismissal from service be not imposed on him. On July 11, 1969, the appellant submitted his representation in reply to the show cause notice. By order dated July 30, 1968, the Deputy Commissioner, rejected the representation of the appellant and imposed the penalty of dismissal from service upon him. Aggrieved by this order, the appellant preferred an appeal to the Commissioner of the Corporation on August 29, 1969, under regulation 11 of the Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter referred to as the Regulations) Which was rejected by the Commissioner on September 13, 1969. On October 11, 1971, the appellant filed Civil Writ Petition No. 1032 of 1969 in the High Court of Delhi challenging the aforesaid order of his dismissal from service. The High Court allowed the petition on the ground that the order of the Appellate Authority was made in violation of the requirements of regulation 15 of the Regulations and directed the Appellate Authority to dispose of the appeal afresh on merits keeping in view all the facts and circumstances of the case a s also the requirements of Regulation 15 of the Regulation. While disposing of the writ petition, the learned Judge added that if the appellant still felt aggrieved by the decision of the Appellate Authority he would be at liberty in appropriate proceedings not only to challenge the order of the Appellate Authority but the order of the disciplinary authority as well. On remand, the Commissioner of the Corporation who happened to be an officer different from the. one who rejected the appellants appeal on the former occasion heard the appellant at considerable length but rejected the appeal by an elaborate order dated January 5, 1972. The appellant thereupon filed writ petition No. 179 of 1972 in the High Court of Delhi challenging the order dated July 30, 1969 of the Deputy Commissioner, Education, as well as the order of the Appellate Authority dated January 5, 1972. This petition was, as already stated, summarily dismissed without the issue of a notice to the respondents. The appellant then made an application to the High Court for leave to appeal t o this Court but the same was also rejected.

Reasoning:
6. The omission to make the aforesaid averments in the writ petition regarding the incompetence of the Deputy Commissioner to pass the impugned order of dismissal from service and invalidity. of regulation 7 of the Regulations appears to be due to the. fact that the appellant fully realised that none of these pleas could be tenable in view of the aforesaid order No. (1) 58 Law Corp. 1 dated April 7, 1958 made by the Commissioner delegating all his powers to the Deputy Commissioner his actual appointment as an Assistant Teacher by the Deputy Commissioner and regulation 7 of the Regulations which far from being repugnant to section, , 95 of the Act is perfectly consistent with it as sub-section (1) of that section itself makes a municipal employee liable to be compulsorily retired, removed or dismissed etc. by such authority as may be prescribed by the Regulation. The prohibition contained in the first proviso to this Sub-section is confined in its operation only to a case where an officer or employee of the Corporation is retired, removed or dismissed by an authority subordinate to that by which he was appointed. In the instant case, the appellants appointment having been made by the Deputy Commissioner, who possessed plenary powers in., that behalf by virtue of the aforesaid delegation order, there was; neither any legal bar to the appellants dismissal from service by that very authority nor a breach of the first proviso to sub-section (1 ) of section 95 of the Act.The decision of this Court in The Management of D.T.U. v. Shri B.B.L. Halelay] 2 S.C.R. 114.) sought to be relied upon by Mr. Ramamurthi related to an appointment which rested on a deeming provision and is not at all helpful to the appellant. Respondent No. 2 in that case was Originally employed as a driver in the Delhi Road Transport Authority which had been constituted under the Delhi Road Transport Authority Act, 1950. By section 516(1)(a) ofthe Delhi Municipal Corporation Act, 1957 which came into force in January , 1958, the Delhi Road Transport Authority Act, 1950, was repealed and the functions of the Delhi Road Transport Authority were taken over by the Corporation by virtue of several other provisions of the Act. Under section 511 of that Act i.e.the Delhi Municipal Corporation Act, 1957, every officer and employee of the Transport Authority including respondent No, . 2 stood transferred and become an officer and employee of the Corp oration and under section 92(1) (b) read with section 516(2) (a) of the Act, the said respondent was to be deemed to have been appointed by the General Manager (Transport). The respondent in that case thus being required by fiction of law to be taken to have been appointed by the General Manager, he could not have been removed from service in May, 1963 by the Assistant General Manageran authority subordinate to the General Managerin view of the first proviso to sub-section (1) of section 95 of the Act despite the fact that the functions of the General Manager had been delegated to the Assistant General Manager in May, 1961. In that case, it was made clear by this Court that the only consequence of the delegation order was that if after 1961, the Assistant General Manager had made the appointment of respondent No. 2, he would have no doubt been entitled to remove him from service but the position had to be deter- mined with reference to the time, when he was absorbed in the Corporation which was in January, 1958.The judgment of this Court in Municipal Corporation of Delhi v. Ram Pratap Singh(C.A. No. 2249 (N.) of 1969 decided on 8-1-1976.) is also not helpful to the appellant as in that case, the appointment was in fact made by the Commissioner white the dismissal was by the Deputy Commissioner7. In view of the foregoing discussion, the first two contentions raised on behalf of the appellant which are totally misconceived are repelled.8. The third contention advanced by Mr. Ramamurthi that the impugned order of the appellants dismissal from service is vitiated as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) o f the Regulations nor has it given its reasons for passing the order cannot also, be countenanced as. it overlooks the decisions of this Court, which fully cover the case.9. Regarding the first limb of the contention, it may be stated that although it may be necessary for the disciplinary authority to record. its provisional conclusions in the notice calling upto the delinquent officer to, show cause why the. proposed punishment be not imposed upon him if it differs from the findings arrived at by the enquiring officer with regard to the charge, it is not obligatory to do so in case the disciplinary authority concurs with the findings of the enquiring officer. We are supported in this view by two decisions of this Court in State of Orissa v. Govinddas Panda(C.A. No. 412 of 1958 decided on 10-12-1962.)-and State of Assam. v. Bimal Kumar Pandit(A.I.R. 1963 S.C. 1612.).Govinddas Pandas case (supra) where the notice issued under Article 311(2) did not expressly state. that the State Government had accepted the findings recorded by the enquiring officer against the Government servant in question and where even the nature of the punishment which was proposed to be inflicted on. him was not specifically and clearly indicated, this Court while reversing the conclusions of the Orissa, High Court that the notice was defective an d so that provisions of Article 311(2) had been contravened observed:In the context, it must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service10. In Bimal Kumar Pandits case (supra) while, reversing the judgment and order of the High Court allowing the writ petition filed by the respondent against his reduction in rank on the ground that the notice served upon him under Article 311 (2) of the Constitution was void as it did not expressly and specifically indicate either the conclusions of the dismissing authority or the findings recorded by the enquiring officer or that the dismissing authority accepted the findings of the enquiring officer and unless that course was adopted, it would not be clear that the dismissing authority had applied its mind and had provisionally come to some conclusion both in regard to the guilt of the public officer and the punishment which his misconduct deserved the Constitution Bench of this Court observed:It may be conceded that it is desirable that the dismissing authority should indicate in the second notice its concurrence with the conclusions of the enquiring officer before it issues the said notice under Article 311(2). But the question which calls for our decision is it the dismissing authority does not expressly say that it has accepted the findings of the enquiring officer against the delinquent officer, does that introduce such an infirmity in the proceedings as to make the final order invalid ? We are not prepared to answer this question in the affirmative. It seems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authority as to the punishment that should be imposed on him obviously and clearly implies that the findings recorded against him by the enquiring officer have been accepted by the dismissing authority; otherwise there would be no sense or purpose in issuing the notice under Article 311(2).At another place, the Court observed:We ought, however, to all that if, the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311 (2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter; but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings record ed against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Art. 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the. notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such. cases a statement to that effect should be made. But we do not think that the words in Art. 311 (2) justify the view that the failure to make such a statement amounts to. contravention of Art. 311(2) ....... There is no doubt that after the report is received, appropriate authority must apply its mind to the report and must provisionally decide whether the findings recorded in the report should be accepted or not. It is only if the findings recorded in the report against the Government servant are accepted by the appropriate authority that it has to provisionally decide what action should be taken against him. But this does not mean that in every case, the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer.n the instant case, the incorrectness of the first limb of the contention is apparent from a bare reading of the aforesaid order passed by the Deputy Commissioner on May 20, 1969 which clearly states that he agrees with the findings of the enquiring officer. Reading the order as a whole, it becomes crystal clear that the disciplinary authority held the charge drawn up against the appellant as proved.11. The second limb of the third contention raised on behalf of the appellant which also overlooks the decisions of the Constitution Bench this Court does not commend itself to us. In this connection, we would like to make it clear that while it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons. It cannot also, in our opinion, be laid down as a general rule that an order is a non-speaking order simply because it is brief and not daborate. Every case, we think, has to be judged in the light of its own facts and circumstances.12. We are not prepared to accept the argument. In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, no doubt, quasi-judicial, but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on the State Government to record reasons in every case.14. Before concluding the discussion in regard to the third contention, we may point out that none of the decisions viz. Sardar Govindrao. v. State of Madhya Pradesh ([1965] 1 S.C.R.678.) Bhagat Raja v. The Union of India. ([1967] 3 S.C.R. 302.) Travancore Rayon Ltd. v. Union of India([1970] 3 S.C.R. 40.) Mahabir Prasad Santosh Kumar v. State of U.P.] 1 S.C.R. 201.)Rangnath v. Daulat Rao. ([1975] 1 S.C.C. 686.) and Siemens Engineeringg Company of India Ltd. v. The Union of India([1976] 2 S.C.C 981.) on which Mr. Ramamurthi has heavily leaned has anything to do with disciplinary proceedings. At such, they have little bearing on the point with which we are at present concerned.We would also like to point out that the observations in Travancore Rayon Ltd. v. Union of India (supra) that in Bhagat Raja v. The Union of India. (supra)., this Court in effect overruled the judgment of the majority in Madhya Pradesh Industries Ltd. v. Union of India. (supra) seem to have crept therein through some oversight. A careful perusal of the decision in Bhagat Raja v. The Union of India. (supra) would show that this Court did not make any observations therein which can be interpreted as overruling the. majority judgment in Madhya Pradesh Industries Ltd. v. Union of1 India. (supra). It is also worthy of note that in Bhagat Rajas case (Supra), the amendment of rule 55 of the Mineral Concession Rules, 1960 introduced in July, 1965 laid down a special procedure in regard to revisions. It required the Central Government to send copies of the application for revision to all the impleaded parties including the person to whom a lease had been granted calling upon them to make such comments as they might like to make within three months from the date of t he issue of the communication and on receipt of the comments from any party to send copies thereof to the other parties calling upon them to make further comments as they might like to make within one month from the date of the issue of the communication. It also provided that the revision application, the communications containing comments and counter comments referred to above would constitute the record of the case. Thus under the amended rule, the party whose application was rejected got an ample opportunity of showing to the Central Government by reference not only to the record which was before the State Government but by reference to the fresh material as well that the State Government was misled in its consideration of the matter or that its decision was based on irrelevant considerations. This is evident from the following observations made in Bhagat Raja v. The Union of IndiaThe old rule 55 was replaced by a new rule which came into force on 19th July, 1965. Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only, the new rule is aimed at calling upon all the parties including the State Government to make their comments in the matter and the parties are given the right to make further comments on those made by the other or others. In effect, the parties are given a right to bring forth material which was not before the State Government. It is easy to see that an unsuccessful party ma y challenge the gram of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government. The order in this case does not even purport to show that the comments and counter comments which were before the Central Government in this case, had been considered.. The above observations leave no manner of doubt that it was in view of the amendment in rule 55 of the Mineral Concession Rules, 1960 that the decision in Bhagat Raja v. The Union of India. (supra) was different from Madhya Pradesh Industries Ltd. v. Union of India. (supra) which had been rendered on the unamended rule 55 of the said Rules. In our opinion, therefore, the observations made in Madhya Pradesh Industries Ltd. v. Union of India. (supra) contain a correct statement of law18. In view of the foregoing, we do not find any merit in the third contention raised on behalf of the appellant.19. This brings us to the last contention raised by Mr. Ramamurthi that the writ petition should not have been dismissed by the High Court in limine in view of the fact that it contained allegations of mala fides against the respondents.We are unable to accept this contention. It has been held time and again by this Court that the High Court would be justified in refusing to carry on investigation into the allegation s of mala fides if necessary particulars of the charge making out a prima facie case are not given in the writ petition. Keeping in view the well established rule that the burden of establishing mala fides lies very heavily on the person who alleges it and considering all the allegations made by the appellant in regard thereto, we do not think that they could be considered as sufficient to establish malus animus. The High Court was, therefore, not wrong in dismissing the petition in limine on seeing that a prima facie case requiring investigation had not been made out.