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AIR INDIA LTD. v.

M. YOGESHWARRAJ

MAY2, 2000

[D.P. WADHWAAND RUMA PAL, JJ.]

Service Law :

'Disciplinary proceedings-Interference with-Employee-Bogus Caste Certificate produced for seeking Employment-Show Cause notice-Disciplinary Authority not finally deciding the charges and not making up its mind regarding delinquent employee's guilt-High Court passing an interim order staying the disciplinary proceedings by prima facie holding that the employee belongs to Schedule Caste/Schedule Tribe-Validity of-Held, High Court neither justified in pre-empting a factual decision of the Disciplinary Authority on the issue, nor justified in staying the disciplinary proceedings-Thus, the order of High Court is set aside. /

Respondent, appointed against a reserved post, was issued with a show cause notice for producing bogus Caste Certificate. Inquiry Committee found him not guilty of the charges framed. However, Disciplinary Authority not agreeing with the findings of the Inquiry Committee, issued a second show cause notice holding that the charges levelled against the delinquent employee in the first show cause notice were established. But the Disciplinary Authority instead of coming into any final conclusion on the issue, asked' the respondent to submit his reply. On challenge, High Court passed an order staying the disciplinary proceedings by prima facie holding that the respondent belongs to Schedule Caste/Schedule Tribe.

Hence the present appeal.

Allowing the appeal, the Court

Held : 1.1. High Court was not justified in granting interim relief by staying the disciplinary proceedings. [909-A-B]

1.2. The show cause notice issued by the Disciplinary Authority clearly shows that it had not finally decided the issue involved in the case

and had not made up its mind as to the guilt of the respondent. Further, it H 905

appears from the writ petition that the respondent has not questioned the jurisdiction of the Disciplinary Authority to issue the impugned show cause notice. Thus, High Court should not have pre-empted a factual decision of the Disciplinary Authority on the issues. Nor should the High Court have stayed the proceedings on a prima facie finding on the subject matter of the enquiry when the competence of the Disciplinary Authority . was not in doubt. (908-G-H; 909-B-D]

Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen, (1964] 3 SCR 616 and State of Haryana v. Om Prakash, Constable, [1990] Supp. SCC 282, distinguished.

2. In the instant case, there was no delay in initiating the disciplinary proceedings and the respondent participated in the inquiry without any protest. (910-B-C] ).. -

State of Madhya Pradesh v. Bani Singh & Another, (1990) Supp. SCC D 738, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3113 of 2000.

From the Judgment and Order dated 18.9.99 of the Bombay High Court in C.W.P. No. 2293 of 1999.

Harish N. Salve, Solicitor General, Ms. Arpita Shanna, Ms. Tamta Bery, Sanjay Choudhary, Ms. Nina Gupta and Vmeet Kumar for the Appellant.

P.P. Rao, M.Y. Raj, Ashok D. Shetty, Ravishankar and R.D. Upadhyay F for the Respondent.

The Judgment of the Court was delivered by

RUMA PAL, J. Leave granted.

G The appeal has been preferred from the order of the High Court of Bombay dated 18th September, 1999 by which the High Court issued a rule .and granted interim relief on the writ application filed by the respondent.

The subject matter of challenge in the writ applicati<?n was a show cause notice dated 30th August, 1999 issued by the appellant to the writ H petitioner. The impugned show cause notice followed an earlier show cause

notice (referred to as the "first notice") issued to the respondent by the appellant on 29.12.1998. It was alleged in the first notice that the respondent had been given appointment by the appellant in 1976 on the basis of his claim that he belonged to a Schedule Tribe against a post reserved for Schedule Caste/Schedule Tribe. A caste certificate had been submitted by the respondent at the time of his appointment which had been issued by the Tutor, Department of Pathology, Institute of Medical Sciences, Osmania Medical College, Hyderabad and attested by the Tahsildar, Hyderabad Urban Taluk without the signature of the concerned Tahsildar. As the caste certificate was not in the prescribed form from the competent authority, the respondent had been called upon by the appellant to submit a proper certificate. Pursuant to this, a caste certificate dated 4th February, 1998 had been submitted by the respondent. It was alleged in the first notice that the caste certificate so produced was a forged document. It was further stated in the first notice that the appellant was prima f acie of the view that it could not repose " any more confidence in any manner" on the respondent and that the appellant was prima f acie of the view, having regard to nature of duty discharged by the appellant, that the respondent was not a person who could be retained in service. The respondent was charged with breach of clause 19 (2) (viii) of the Certified Standing Orders. The respondent was accordingly called upon to submit an explanation in writing within three days from the date of communication of the first notice failing which further disciplinary action would be initiated against him in accordance with the Certified Standing Orders.

By letters dated 2nd January, 1999 and 25th January, 1999, the respondent asked for extension of time to submit his written submissions. It was granted by the appellant. On 1st February, 1999 the appellant asked the respondent to submit his explanation within three days from the communication of that letter. No explanation was submitted by the respondent.

The Inquiry Proceedings were commenced on 12th February, 1999 to inquire into the charges framed against the respondent under the first notice.

Witnesses were examined and an inquiry report was submitted on 29.4.1999.

G The Inquiry Committee came to the conclusion that the caste certificate dated 4th February, 1998 had turned out to be a bogus certificate. It was however noted that the original caste certificate submitted by the respondent in 1976 had been affirmed by a certificate issued from the office of the Collector, Hyderabad on 11.3.1999. The Inquiry Committee was of the. view: H

"Merely securing a wrong or false certificate, by itself does not amount to a misconduct. The certificate may be false due to ignorance or incompetence and therefore a wrong or false certificate does not necessarily create delinquency on part of the person who produces it."

Accordingly, the Inquiry Committee found the respondent not guilty of the charges framed.

It was in this background that the show cause notice impugned by the respondent before the High Court was issued by the Disciplinary Authority.

C In substance, the notice stated that the caste certificate dated 4.2.1998 had been found to be forged. As far as the caste certificate dated 11.3.1999 was concerned it was stated that the address mentioned in the Collector's certificate had not been mentioned as the respondent's place of residence in any of his records with the appellant. It was also stated that the Collector's letter

did not refer to the caste certificate dated 4.2.1998 and that if the 1976 certificate was genuine, it was to be explained why the bogus caste certificate dated 4.2.1998 was produced. According to the notice, the Inquiry Committee had not dealt with these details in its report. The Disciplinary Authority concluded by saying:

"In view of the above prima f acie I am of the view that acts of misconduct levelled against you vide chargesheet referred to above has been established and tend to hold you guilty of the acts of __misconduct and however before coming to such conclusions, I hereby give you an opportunity to submitting your say as to why you should not be held guilty of the above charges within 3 days of conu.nunicating of this letter to you. In case you fail to submit any satisfactory explanation within the stipulated period of time, I propose to award you the punishment of dismissal from the services of the Company without retirement benefits in full as per Clause No. 20 ( i ) of the Certified Standing Orders applicable to you."

Clearly, the Disciplinary Authority was yet to make up his mind as to the guilt of the respondent.

According to the appellants, the challenge to the proceedings was premature and the High Court should not have entertained the writ application H as disputed questions of fact were involved. However, we do not wih to deal

with this aspect of the matter as the High Court by the order under appeal has issued a Rule Nisi and it will be open to the appellants to raise this and other contentions in their answer to the Rule. We are not aware as to the reason why the High Court was persuaded to issue a Rule Nisi, but in its further observations, "Primafacie, we are satisfied that the petitioner belongs to the Schedule Caste/Schedule Tribe" and also grant of an interim order staying the proceedings before the Disciplinary Authority were erroneous.

It appears from a copy of the writ petition that the respondent has not questioned the jurisdiction of the Disciplinary Authority to issue the impugned Show Cause Notice. The two issues of the respondent's caste and whether he had adequately explained the production of the bogus certificate of 4.10.98 are yet to be decided by the Disciplinary Authority. Both the issues are primarily issues of fact. The High Court should not have preempted a factual decision of the disciplinary authority on the issues. Nor should the High Court have stayed the proceedings on a prima facie finding on the subject matter of enquiry particularly when the competence of the Disciplinary Authority was not in doubt.

The respondent's reliance on the decision of Sur Enamel and Stamping Works (P) l.Jd. v. Their Workmen, [1964] 3 SCR 616 and State of Haryana

v. Om Prakash, Constable, [1990] Supp SCC 282 is misplaced. In both cases, orders of dismissal had already been passed. Furthermore, the orders of dismissal had been passed on proceedings which were not the subject matter of the charge and of which the employee had not been put on notice. In the case before us, apart from the fact that no final order has been passed by the Disciplinary Authority, the substance of the impugned notice in no way differs from that of the first notice.

The third decision noted by the respondent viz. State of Madhya Pradesh v. Bani Singh & Another [1990] Supp SCC 738 is also inappropriate.

The decision related to disciplinary proceedings initiated in respect of incidents which had taken place 12 years earlier. It was said:

"...... the irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977, there was doubt about the involvement of the officer in the said irregularities and the investigations were

going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribwial. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be wtfair to permit the departmental enquiry to be proceeded with at this stage."

Here the disciplinary proceedings were initiated against the respondent because of the production of a bogus certificate dated 4.10.1998. The disciplinary proceedings were initiated on 29.12.98. There was no delay.

Besides the respondent participated in the enquiry without protest.

We, therefore, allow the appeal and set aside the order dated 18th September, 1999-in so far as it stayed the operation of the show cause notice dated 30th August, 1999 as well as the finding relating to the caste of the respondent. There will be no order as to costs.

S.V.K.

Appeal allowed.

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