South Bengal State Transport Corp vs Ashok Kumar Ghosh & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4338 OF 2010 (arising out of SLP(C)No.545 of 2009)

SOUTH BENGAL STATE TRANSPORT CORPORATION .... APPELLANTS

VERSUS

ASHOK KUMAR GHOSH & ORS. .... RESPONDENTS

JUDGMENT

C.K. PRASAD, J.

1. This petition for special leave to appeal is against the

judgment and order dated 24.09.2008, passed by the Calcutta

High Court in MAT No.567 of 2008, whereby it had dismissed

the appeal preferred by the petitioner and affirmed the order of

the learned Single Judge dated 17.04.2008 passed in

W.P.No.4100(W) of 2008 quashing the order of punishment

inflicted on respondent No.1.

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2. Leave granted.

3. Short facts giving rise to this appeal are that the writ

petitioner-respondent No.1, hereinafter referred to as the

delinquent employee was at the relevant time working as

Conductor with the appellant -South Bengal State Transport

Corporation. On 17.02.2007 he was assigned duty in a Bus

bearing Registration No.WB-39/2110, plying between

Durgapur to Baharampur. The said bus was checked by the

checking squad at Baharampur and they detected one

ticketless passenger, who was going towards Baharampur

from Kandi. The checking squad collected fine from the said

passenger. Further a sum of Rs.345/- was found in excess in

the Conductor's cash-bag. The Divisional Manager, Durgapur

Division of the South Bengal State Transport Corporation is

the disciplinary authority of the delinquent employee. A memo

of charge dated 7.3.2007 was drawn by the Divisional

Manager, Durgapur alleging the aforesaid misconduct against

the delinquent employee; i.e. allowing the ticketless passenger

to travel in the bus and possession of excess amount of

Rs.345/- in the cash-bag. The memo of charge was served on 3

the delinquent employee on 8.3.2007 and without giving any

opportunity to him the Divisional Manager, Durgapur was

appointed as the Enquiry Officer. The delinquent employee

submitted his reply dated 17.3.2007 denying both the charges

and according to him detection of the passenger travelling

without ticket is not misconduct, because on the spot itself the

ticketless passenger was tried and a fine was realized from

him by applying Section 178A of the Motor Vehicles Act. As

regards the second charge, the plea of the delinquent employee

is that an amount of Rs.345/- was left by a passenger and

when one of the passengers claimed the amount, he verified

the same and till then kept the amount with the intention of

returning it to him. The enquiry was conducted by the

disciplinary authority i.e. the Divisional Manager, Durgapur

himself who did not accept his plea and held both the charges

brought against him to have been proved. Accordingly the

disciplinary authority inflicted the punishment and relegated

the delinquent employee, a Conductor to the status of Daily

Rated Conductor.

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4. The delinquent employee challenged the punishment by

filing the writ petition before the High Court, inter alia,

contending that "the appointment of an Enquiry Officer in the

chargesheet itself reflects bias on the part of the authority"

and this itself vitiates the punishment. The aforesaid

submission found favour with the High Court and it allowed

the writ petition, quashed the order of punishment and while

doing so observed as follows :

"In the present case, there is absolutely not an iota of material to indicate that the show-cause/reply submitted by the petitioner in response to the charge-sheet was at all taken into consideration. Going a step further, it can be said in the present case that appointment of an Enquiring Officer while issuing a charge-sheet is undoubtedly an unconscious reflection of the sub-conscious mind and this, undoubtedly, reflects bias on the part of the authority. Thus, there is bias at the very initiation of the enquiry."

Ultimately, the High Court concluded as follows :

"So far as the present case is concerned, in view of the fact as indicated earlier that initiation of the proceeding was not free from bias and in the backdrop of the fact that there had been non- compliance of Regulation 38(2), this court does not find any reason as to why the matter shall not be interfered with."

5 5. It is relevant here to state that while recording the finding

of bias, the learned Single Judge had referred to a decision of

this Court in the case of State of Punjab vs. V.K. Khanna

and others, (2001) 2 SCC 33, in which it has been held as

follows :

"34.The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an enquiry officer to substantiate the frame of mind of the authorities and thus depicting bias -- what bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz. the inquiry shall proceed irrespective of the reply -- is it an indication of a free and fair attitude towards the officer concerned? The answer cannot possibly be in the affirmative. It is well settled in service jurisprudence that the authority concerned has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative -- the inquiry follows but not otherwise and it is this part of service jurisprudence on which reliance was placed by Mr Subramanium and on that score, strongly criticised the conduct of the respondents (sic appellants) herein and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record."

6. Another plea of the delinquent employee was that the

punishment relegating him to the status of Daily Rated

Conductor is not provided in the South Bengal State Transport

Corporation Service Regulations (hereinafter referred to as the

`Regulations') but the said plea had been negated by the High

Court in the following words:

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"It cannot be denied that punishment inflicted on the petitioner comes within the scope and ambit of Regulation 36. Punishment imposed is in the nature of reduction to a lower post or to a lower stage in time scale."

7. The appellant, aggrieved by the aforesaid order preferred

an appeal along with an application for stay. The stay

application and the appeal were dismissed by a common order

dated 24.9.2008 with the following directions:

a) The appellant disciplinary authority shall be at liberty to proceed afresh against the employee strictly in accordance with the provisions of Regulation 38(1) and 38(2);

b) During the pendency of the proceeding before the disciplinary authority the respondents shall continue to enjoy the status enjoyed by him prior to the passing of the order of punishment."

8. Mr. Janaranjan Das, learned counsel appearing on behalf

of the appellant-Corporation submits that mere appointment

of Enquiry Officer while issuing the chargesheet does not

reflect bias and hence, the finding recorded by the High Court

that initiation of the departmental proceedings was not free

from bias is erroneous. He submits that the departmental

proceeding was conducted in accordance with the Regulations 7

and it cannot be said that there had been non-compliance of

Regulation 38(2) of the Regulations. He further submits that

reliance on the judgment of this Court in the case of V.K.

Khanna (supra) is highly misplaced.

9. Despite service of notice on respondent No.1, the

delinquent employee has not chosen to enter appearance.

10. Regulation 38 of the Regulations, inter alia, provides the

procedure for imposing penalties. As the High Court had held

that the appointment of Enquiry Officer without considering

the reply submitted by the delinquent employee speaks of bias

and the punishment inflicted is in violation of Regulation 38(2)

of the Regulations, we deem it expedient to reproduce not only

Regulation 38(2) but 38(3) which are relevant for the purpose :

38. PROCEDURE FOR IMPOSING PENALTIES :

(1) xxx xxxx xxxx

(2) The disciplinary authority shall draw up or cause to be drawn up-

8 (i) The substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge,

(ii) A statement of imputations of misconduct or misbehaviour in support of each article of charge which shall contain

(a) statement of relevant facts including any admission or confession made by the employee,

(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained."

(3) The disciplinary authority shall deliver or cause to be delivered to the employee a copy of the articles of charge and the statement of imputations of misconduct or misbehaviour prepared under clause (ii) of sub-regulation (2) and shall require the employee to submit to the inquiring authority within such time as may be specified a written statement of his defence and to state whether he desires to be heard in person.

(4) xxx xxxx xxxx

11. From a plain reading of Regulation 38(2) it is evident that

the disciplinary authority is required to draw or cause to be

drawn up, the substance of imputation of misconduct into

definite and distinct articles of charges and the statement of

imputation of misconduct, to contain the statement of relevant

facts including any admission or confession made by the 9

employee. It also requires drawing up a list of documents by

which and a list of witnesses by whom the articles of charges

are proposed to be sustained. Regulation 38(3) of the

Regulations obliges the disciplinary authority to deliver or

cause to be delivered to the employee the articles of charges

and the statement of imputation of misconduct requiring the

employee to submit to the Enquiry Officer written statement of

defence within a period specified. Neither Regulation 38(2) nor

Regulation 38(3) provides that before the appointment of the

Enquiry Officer the reply of the delinquent employee is to be

considered. In our opinion, it may be open for a disciplinary

authority to initiate the departmental proceedings on

consideration of the reply of an employee but as an absolute

proposition of law it cannot be said that before initiating

departmental enquiry or appointing Enquiry Officer, reply of

the delinquent employee is required to be obtained and

considered unless it is the requirement of the rules. There may

be cases where the charges are of such a nature that the

disciplinary authority may not require any reply from the

delinquent employee but straightway initiates the 10

departmental enquiry and appoint an Enquiry Officer. In the

present case the Bus was checked by the flying squad of the

appellant-Corporation itself and in view of what has been

found by it, the disciplinary authority while framing the charge

had appointed the Enquiry Officer. We are of the opinion that

mere appointment of Enquiry Officer while framing the charge

sheet, even before considering the reply of the delinquent

employee, does not reflect any bias.

12. Now, referring to the authority of this Court in the case of

V.K. Khanna(supra), relied on by the High Court, same is

clearly distinguishable. In the said case the chargesheet dated

24.4.1997 was issued to the delinquent employee who

happened to be the Chief Secretary of the State and he was

asked to submit his reply within 21 days but even before his

reply, the Chief Minister made a statement on 27.4.1997 that

a judge of the High Court would look into the charge against

him. The aforesaid act of the Chief Minister coupled with

other factors led this Court to conclude that the action was 11

actuated by bias. In the present case the facts are completely

different.

13. It is relevant here to state that imposition of penalty was

found to be bad by the High Court due to non-compliance of

Regulation 38(2) of Regulations on the ground that the

delinquent employee was not given any chance to have his say

before imposition of penalty. Regulation 38(2) of the

Regulations has been quoted in the preceding paragraph of the

judgment and nowhere it contemplates giving an opportunity

to the delinquent employee. Matter would have been different

had the delinquent employee not given the copy of the enquiry

report and opportunity to file reply thereto. Thus, both the

reasons given by the learned Single Judge, as affirmed in the

appeal by the High Court, are erroneous.

14. It may be mentioned that the High Court had held that

punishment inflicted on the delinquent employee to be one

provided under Regulation 36 of the Regulations. According to

the High Court punishment imposed is in the nature of

reduction of lower post or to a lower stage in time scale. 12 Regulation 36 provides for the penalties which can be imposed

on delinquent employee. Regulation 36 reads as follows :

"36.PENALTIES : The following penalties may, for good or sufficient reasons and as hereinafter provided, be imposed on an employee namely :

i) Censure; ii) with-holding of increments or promotions; iii) recovery from pay of the whole or part of any

pecuniary loss caused to the Corporation by negligence or breach of orders;

iv) reduction to a lower stage in time scale of pay for a specified period with further direction as to whether or not the employee will earn increments of pay during the period of such reduction will or will not have the effect of postponing the future increments of his pay;

v) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the employee to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of the restoration to the grade or post of service from which the employee was reduced and his seniority and pay on such restoration to that grade, post or service;

vi) compulsory retirement; vii) removal from service which shall not be a

disqualification for future employment;

viii) dismissal from service which shall ordinarily be a disqualification for future employment."

15. The punishment inflicted on the delinquent employee is

of relegating him to the status of Daily Rated Conductor from

the post of Conductor. The post of Conductor carries a time

scale and Regulation 36(4) provides for penalty of reduction to 13

a lower stage in time scale of pay for a specified period. The

reduction to a lower stage in the time scale would obviously

mean that the employee retains the same post but the scale of

pay, which every post carries, can be reduced to a lower stage.

Relegation of the delinquent employee to the status of Daily

Rated Conductor cannot be said to be a reduction to a lower

stage in the time scale of pay or reduction to a lower grade as

delinquent employee has been deprived of the post of

Conductor. This reduction to a lower stage, in our opinion, has

to be in the scale of pay of the Conductor itself. Reduction to

a lower grade should be with reference to the same post. In

our opinion, the punishment inflicted also does not come

within the ambit of reduction to a lower post or grade as

contemplated under Regulation 36(5) of the Regulations.

16. We may next consider whether the punishment is

permissible in service jurisprudence. It is well settled that

while an employee can be reverted to a lower post or service,

he cannot be reverted to a post lower than the post in which

he entered service (See: Nyadar Singh vs. Union of India - AIR 14

1988 SC 1979). Further it is also well settled that reversion to

a lower post or service does not permit reversion to a post

outside the cadre that is from regular post to a daily wage

post. We are therefore of the view that the punishment

inflicted on the delinquent employee not being one of the

punishments enumerated in Regulation 36, is not permissible

in law.

17. However we are of the view that the reasoning of the High

Court for quashing the order of punishment is not

sustainable. While we do not agree with the High Court that

the enquiry is to be set aside on the ground of bias, we agree

that the punishment imposed by the disciplinary authority

requires to be modified. Though, normally, in such a situation

the matter should be referred back to the disciplinary

authority for imposition of fresh penalty, having regard to the

facts and circumstances and to do complete justice, we

propose to impose the penalty.

18. We accordingly allow this appeal in part with the

following directions:

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(a) The judgment of the High Court is set aside and the

finding of guilt recorded by the Disciplinary Authority is

upheld.

(b) The punishment imposed by the appellant is set aside

and the direction for reinstatement is upheld.

(c) However as the punishment is being set aside and

reinstatement is directed on a technical ground, the

respondent-employee will not be entitled to any back wages.

(d) Instead of reversion to the post of daily wage conductor

we substitute the punishment as reduction to the lowest stage

of the time scale applicable to the post of conductor with effect

from the date of imposition of punishment.

.................................J. (R.V. RAVEENDRAN)

...............................J. (R.M. LODHA)

...............................J. (C.K. PRASAD)

NEW DELHI, MAY 06, 2010.