AN ARTICLE ON DISCIPLINARY PROCEEDINGS : DISPENSING WITH THE ENQUIRY AND LEGAL PERSPECTIVE

SOME REFLECTIONS IN INDUSTRIAL AND SERVICE JURISPRUDENCE : CHARGE OF THEFT ON AN RPF HEAD CONSTABLE, DISPENSING WITH THE ENQUIRY, IMPOSITION OF PUNISHMENT SANS ENQUIRY AND LEGAL PERSPECTIVE : A CONTEMPORARY APEX JUDICIAL DICTUM

AJAYA KUMAR SAMANTARAY,CENTRAL LABOUR SRERVICE,MINISTRY OF LABOUR AND EMPLOYMENT, NEW DELHI : 11 00 11?

PRELUDE : In this case Civil Appeal was preferred by Union of India, who, moved the Hon’ble Apex Court, having felt??aggrieved by the judgment and order dated 7th?April 2009, passed by the High Court of Judicature at Allahabad in Special Appeal No.230 of 2009. By the aforesaid order, the intra-Court Appeal filed by the Appellants was dismissed confirming the order of the learned Single Judge allowing the writ petition filed by the respondent.

In this case the domestic enquiry was dispensed with as per the proviso of rule 161 of Railway Protection Force Rules under the clause that it was nor reasonably practicable to hold an enquiry. Let us see as to how the case was adjudicated upon by the Hon’ble Supreme Court.

THE CASE-LAW :

UNION OF INDIA AND ?OTHERS vrs. RAM BAHADUR YADAV [ 2021 Latest Caselaw 616 SC = LL 2021 SC 688] DoJ : 26 NOVEMBER 2021

FACTUAL MATRIX :

???????One, Shri Ram Bahadur Yadav, the respondent in this case, was working as a Head Constable in the Railway Protection Force. In the disciplinary inquiry initiated against him, he was charged for collusion with main accused in the incident involving theft of more than Rs.1 Crore of Non-Judicial Stamp Papers. The competent Authority, stating that it was not reasonably practicable to hold an inquiry, has passed order dated 22nd October 1998, dismissing the respondent from service.

The appeal and revision filed by him, ended in dismissal.

WRIT PETITION AND APPEAL TO THE HIGH COURT :

??????When the appeal and revision filed by the delinquent came to be dismissed he moved the Hon’ble High Court by filing a writ petition which was allowed by the learned Single Judge by judgment and order dated 17th February 2009, by setting aside the dismissal order with a direction for payment of all pensionary benefits and 50% of back wages. The said order was passed as the respondent-employee had attained the age of superannuation.

The said order and the ?judgment of the learned Single Judge was challenged by way of intra-Court Appeal but ?the same ended in dismissal.

SPECIAL LEAVE PETITION TO THE SUPREME COURT :

??????Having lost the writ appeal in the High Court, the employer moved the Hon’ble Supreme Court by filing a special leave petition which on grant of special leave, became Civil Appeal No.9334 of 2010.

The Contentions Advanced on behalf of Union of India :

??????The Senior Counsel, appearing on behalf of Union of India, contended as follows :

(i)?that Rule 161 of the Railway Protection Force Rules, 1987 (hereinafter, referred to as 'RPF Rules') empowers the authorities to dispense with inquiry, where the competent Authority is of the view that it is not reasonably practicable to hold an inquiry.

(ii) that having regard to nature of allegations, as the delinquent employee had threatened the witnesses who were not willing to participate in the inquiry, the Authorities had invoked Rule 161 and passed orders.

(iii) that even if the order of dismissal does not contain reasons, it is sufficient if the file discloses recording of reasons before passing the order. Against the order allowing the writ petition, though the Special Appeal was filed before the Division Bench, the High Court had not considered various grounds raised by the appellants and erroneously confirmed the order of the learned Single Judge.

(iv) ?that in any event, the High Court has committed error in ordering payment of 50% of back-wages.

Reliance placed on Case-laws :

???????In support of the order of dismissal, learned Senior Counsel ?placed reliance on the following?judgments of the Hon’ble Apex ?Court :

Sahadeo Singh & Others vrs. Union of India & Others, AIR 2003 SC 1568

Against grant of back wages, the learned Senior Counsel appearing for the appellants ?relied on the following judgments :

(i) Tarsem Singh vrs. State of Punjab & Others, 2006 (11) SCALE 104 ?

(ii) Deepali Gundu Surwase vrs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Others, [2013] 9 SCR 1

(iii) Commissioner of Police, Delhi and Others vrs. Jai Bhagwan, 2011 (129) FLR 1094

Counter-submissions :

???????On the other hand, the ?Counsel appearing for the respondent had drawn the attention of the Hon’ble supreme Court to Rule 161 of the RPF Rules and submitted as follows :

(i) that no reasons are recorded for passing such order by invoking the said rule.

(ii) that the very rule requires recording of reasons, order passed without recording any reason cannot stand to legal scrutiny.

(iii) that the allegation against the respondent that he conspired with the other Head Constable in commission of theft of Non-Judicial Stamp Papers, is vague and is no ground at all, to dispense with the inquiry.

(iv) that conduct of inquiry before any punishment, is a normal rule and Rule 161 of the RPF Rules can be invoked only in exceptional cases, but not in a routine manner.

(v) that when the Rule itself mandates recording of reasons, the argument of the other side that it is sufficient if file contains reasons, is no ground to sustain the order.

Reliance was placed?on the judgment of the Hon’ble Apex Court in the case of ?Jaswant Singh vrs. State of Punjab & Others, 1991 (62) FLR 564, to support the view taken by the High Court.

APPRECIATION OF RIVAL CONTENTIONS :

??????On appreciating the rival contentions, the Hon’ble Apex court stated that the disciplinary proceedings against the respondent is governed by the RPF Rules, 1987. The regular inquiry against a member of Force is governed by Rules 132, 148 and 153 of the RPF Rules. The respondent was only a Head Constable at the relevant point of time. Allegation against him was that he conspired and colluded with another Head Constable by name Mr. Jai Veer Singh in commission of theft of Non-Judicial Stamp Papers. The alleged incident was on 17th/18th September 1998, and order of dismissal was passed against the respondent on 22nd October, 1998 by dispensing with inquiry by invoking Rule 161 of the RPF Rules. Rule 161 of the RPF Rules itself indicates special procedure in certain cases. The relevant portion of Rule 161 of RPF Rules, reads as under:

"161.Special Procedure in certain cases:

Notwithstanding anything contained anywhere in these rules -

(i) where any punishment is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) where the authority competent to impose the punishment is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules;

(iii) where the President is satisfied that in the interest of security of State and the maintenance of integrity in the Force, it is not expedient to hold any inquiry in the manner provided in these rules;

the authority competent to impose the punishment may consider the circumstances of the case and make such orders thereon as it deems fit.":

?INTERPRETATION OF THE RULE:

???????From a reading of the above said Rule, it is clear that to pass an order as disciplinary measure, by adopting special procedure in certain cases, Rule 161 itself mandates recording of reasons. The normal rule for conducting an inquiry is governed by Rules 132, 148 and 153 of the RPF Rules. If the Authorities invoke special procedure, unless they record reasons, as contemplated in the Rule itself, no order could have been passed by invoking Rule 161. At no point of time, appellants have produced file to show that any reasons are recorded in such file also. It is a settled legal position that when Rules contemplate method and manner to adopt special procedure, it is mandatory on the part of the authorities to exercise such power by adhering to the Rule strictly.

INVOCATION OF RULE 161 OF RPF RULES :

??????The Hon’ble Apex Court stated that dismissal of a regular member of Force, is a drastic measure. Rule 161, which prescribes dispensing with an inquiry and to pass order against a member of Force, cannot be invoked in a routine and mechanical manner, unless there are compelling and valid reasons. The dismissal order dated 22nd October 1998 does not indicate any reason for dispensing with inquiry except stating that the respondent had colluded with the other Head Constable for theft of Non Judicial Stamp Papers. By merely repeating the language of the Rule in the order of dismissal, will not make the order valid one, unless valid and sufficient reasons are recorded to dispense with the inquiry. When the Rule mandates recording of reasons, the very order should disclose the reasons for dispensing with the inquiry.

ON THE ARGUMNET OF THE COUNSEL FOR APPELLANT :

??????The argument of learned Senior Counsel for the appellants that if file contains reasons, same is sufficient to maintain the order, deserves rejection, Stated the Hon’ble Apex Court. When inquiry is not conducted, member of the Force is entitled to know the reasons for dispensing with inquiry before passing any order as a disciplinary measure. The respondent was only a Head Constable during the relevant point of time and he was not in powerful position, so as to say that he would have influenced or threatened the witnesses, had the inquiry was conducted. The very fact that they have conducted confidential inquiry, falsifies the stand of the appellants that it was not reasonably practicable to hold an inquiry.

INTERPRETATION OF THE CALUSE ‘NOT RESONABLY PRACTICABLE’ :

???????The words 'not reasonably practicable' as used in the Rule, are to be understood in a manner that in a given situation, ordinary and prudent man should come to conclusion that in such circumstances, it is not practicable. In the present case, there appears no valid reason to dispense with inquiry and to invoke Rule 161 of the Rules. The Hon’ble Apex Court stated that it is?in agreement with the view taken by the High Court. In the case of Sahadeo Singh & Others v. Union of India & Others (supra) , the Hon’ble Apex Court has held that in the facts and circumstances of the said case, it was not reasonably practicable to hold a fair inquiry, as such, it was held to be justifiable on the facts of the case. Whether it is practicable or not to hold an inquiry, is a matter to be considered with reference to the facts of each case and nature of charge, etc.

REFERENCE TO TARSEM SINGH’ CASE :

???????In ?the case of Tarsem Singh vrs. State of Punjab & Others, 2006 (11) SCALE 104, ?the Hon’ble Apex Court has categorically held that when the Authority is of the opinion that it is not reasonably practicable to hold inquiry, such finding shall be recorded on the subjective satisfaction by the authority, and same must be based on the objective criteria. In the aforesaid case, it is further held that reasons for dispensing with the inquiry must be supported by material.

ON GRANT OF BACK WAGES :

???????With regard to plea of the appellants for grant of back wages, in the case of Tarsem Singh (supra) , the Hon’ble Apex ?Court has held that payment of back-wages would depend on result of the inquiry. In the present case on hand, by the time, the order came to be passed by the learned Single Judge, the respondent had retired from service on attaining the age of superannuation. In normal course, the Hon’ble Apex Court stated, it ?would have permitted to hold inquiry, but keeping in mind that the respondent had retired from service even before the judgment was rendered by the learned Single Judge, the Hon’ble Apex Court was not inclined to do so at this stage.

??????Though, it was alleged that the respondent had conspired with the main accused for commission of theft of Non-Judicial Stamp Papers nearly worth of Rs.1 Crore, but not even a police complaint was filed for reasons best known to the appellants. Opposing the award of back wages, learned Senior Counsel for the appellants has placed reliance on the judgment of this Court in the case of Deepali Gundu Surwase, 2006 (11) SCALE 104. Grant of back wages depends on facts and circumstances of each case.

??????In the aforesaid case, while dealing with grant of back-wages, the Hon’ble Apex Court has held that in the case of wrongful termination of service, reinstatement with continuity of service and back-wages is normal rule and the adjudicating authority to take into consideration the length of service of the employee, nature of misconduct, financial condition of the employer and similar other factors.

STATUS OF THE PRESENT CASE ON BACK WAGES :

??????Coming to the case on hand, the Hon’ble Apex Court stated, the respondent was not given any opportunity to defend his case at all. It is clearly well settled that any amount of suspicion cannot be equated to proof. Keeping in mind ratio in the judgment of the Hon’ble Apex Court in the case of Deepali Gundu Surwase (supra), the Hon’ble Court was ?of the considered opinion that grant of 50% of back-wages is just and fair in the facts and circumstances of the case. The judgment relied on by the learned Senior Counsel for the appellants would not, in any way, support their case.

REFERENCE TO HINDUSTAN TIN WORKS CASE :

??????On the other hand, in the case of M/s. Hindustan Tin Works Pvt. Limited vrs. The Employees of M/s. Hindustan Tin Works Private Limited & others, 1978 (37) FLR 240, the Hon’ble Apex Court has held that reinstatement with back-wages, fully or partially, is a matter of discretion of the Tribunal.

???????In the facts of the present case, the Hon’ble Apex Court was are of the view that the High Court has correctly granted 50% of the back wages to the respondent.

THE VERDICT :

???????For the aforesaid reasons, the Hon’ble Court did ?not find any good ground to interfere with the impugned order passed by the High Court.

Accordingly,

1.The Civil Appeal filed by the employer was dismissed.

2.No order as to costs.