2025 INSC 83
SUPREME COURT OF INDIA
(HON’BLE
DIPANKAR DATTA, J. AND HON’BLE MANMOHAN, JJ.)
BHUPINDERPAL SINGH
GILL
Appellant
VERSUS
STATE OF PUNJAB AND
OTHERS
Respondent
Civil
Appeal No.183 OF 2025[Arising out of SLP(C) NO. 17120 OF 2022]-Decided on
20-01-2025
Service Law
(A) Constitution
of India, Article 14, 226 - Punjab Civil Services (Punishment & Appeal)
Rules, 1970, Rule 8 – Service Law – Cut in pension - Judicial review – Held that though the rules
closely associated with the traditional concept of natural justice may not have
been breached in this case, the contention of the appellant that the process of
decision-making stands vitiated for lack of procedural fairness - The second and the fourth charges levelled
against the appellant that he had proceeded on leave without sanction thereof
and in not complying with the orders of his superior officers - Inquiry Officer
while exonerating the appellant of the second part of the third charge reasoned
that neither the Senior Assistant had been produced in the inquiry as a witness
nor were call details produced, and what PW-1 said is mere hearsay; hence, in
the absence of proof, that part of the charge is not proved - This was a valid
reason assigned by the Inquiry Officer, which the Disciplinary Authority even
accepted- Held that on the same analogy and for the same reason, the appellant
could not have been held guilty in respect of the second charge - There is no
record of the Civil Surgeon’s refusal to sanction leave being communicated to
the appellant either - Held that there was no legal evidence based whereon the
appellant could have been held guilty of the second and fourth charges –
Regarding the charges that the appellant did not comply with the directions of
the Election Commission and did not participate in the pulse polio programme
constitute the first charge and the first part of the third charge,
respectively - The second part of the third charge of the appellant having
threatened the Senior Assistant has not been found to be proved - It is the
clear finding of the Inquiry Officer, based on the evidence on record, that the
appellant was not assigned any duty in connection with election duty and pulse polio
programme during the period he wished to avail leave to attend court
proceedings before the High Court - Insofar as defiance of Election
Commission’s directions by the appellant are concerned, no such written
directions were part of the documentary evidence led before the Inquiry Officer
- As is evident from the report, the prosecution having failed to establish
that the appellant had been assigned election duty as well as duty associated
with the pulse polio programme, the Inquiry Officer went on record to hold the
charges under consideration proved by referring to what was, in his perception,
the duty of a senior medical officer who has been in charge of an organisation
- Inquiry Officer found the appellant guilty for a perceived failure to perform
a moral duty - Not only was it completely extraneous, but such a finding was
clearly at variance with the charge levelled against the appellant – Held that
holding the appellant guilty of a perceived failure to perform a duty not being
the charge in respect of which any opportunity of explanation was given, such a
finding could not have been taken into consideration by the Disciplinary
Authority to impose penalty on the appellant - A detailed response to the
inquiry report had been submitted by the appellant - Dismissing the claims by a
single sentence that the same are not acceptable, is not part of a fair
procedure - This is a substantial ground for which appellant’s grievance seems
to be justified - Tenor of the impugned order does suggest that the Division
Bench found the appellant to have been wronged and regard being had thereto,
the Division Bench ought to have set things right by interfering with the
findings and granting full relief - Impugned order, insofar as it declines to
interfere with the findings on the charges, being clearly indefensible liable
to be set aside - The order of penalty passed by the appellant’s Disciplinary
Authority also stands set aside and the writ petition is allowed - Directed
that the appellant shall be entitled to full pension without any cut - Whatever
quantum has been deducted from his pension shall be returned, within three
months from date, together with interest @ 6% per annum - Appellant shall be
entitled to costs assessed conservatively at Rs.50,000/-, to be released in his
favour within the aforesaid period -
Liberty granted to the GoP to realize the amount of costs payable in terms
hereof from the persons responsible after fixing responsibility in accordance
with law.
(Para 38 to 42 and 46)
(B)
Constitution of India, Article 226 – Service Law – Punishment – Judicial review –
Held that an administrative order punishing a delinquent employee is not
ordinarily subject to correction in judicial review because the disciplinary
authority is the sole judge of facts - If there is some legal evidence on which
the findings can be based, then adequacy or even reliability of that evidence
is not a matter for canvassing before the high court in a writ petition filed
under Article 226 of the Constitution - However, should on consideration of the
materials on record, the court be satisfied that there has been a violation of
the principles of natural justice, or that the inquiry proceedings have been
conducted contrary to statutory regulations prescribing the mode of such
inquiry, or that the ultimate decision of the disciplinary authority is
vitiated by considerations extraneous to the evidence and merits of the case,
or that the conclusion of the disciplinary authority is ex facie arbitrary or
capricious, so much so that no reasonable person could have arrived at such
conclusion, or there is any other ground very similar to the above, the high
court may in the exercise of its discretion interfere to set things right -
After all, public servants to whom Article 311 of the Constitution apply do
enjoy certain procedural safeguards, enforcement of which by the high court can
legitimately be urged by such servants depending upon the extent of breach that
is manifestly demonstrated.
(Para 33)
(C)
Constitution of India, Article 226 – Service Law – Punishment – Judicial review –
Principles of natural justice – Held that the traditional concept of natural
justice comprises of the two rules that prohibit anyone from being condemned
unheard and anyone from being a judge of his own cause - In relation to
disciplinary proceedings, subject to just exceptions, natural justice would
envisage observance of procedural fairness before holding a public servant
guilty of misconduct and imposing a punishment on him for such misconduct -
While it is true that principles of natural justice supplement, and not
supplant, the law, such principles have been declared by this Court to be a
constituent feature of Article 14 - Validity of any disciplinary action,
whenever questioned, has to be tested on the touchstone of Articles 14, 16 and
21 as well as Article 311(2), wherever applicable - To test whether
interference is warranted, this Court has laid down that the scrutiny ought to
be confined to finding out whether the disciplinary proceedings have been conducted
fairly; if not, an inference can be drawn that this has caused prejudice to the
charged employee - Be that as it may, there can be no gainsaying that the
consequences of violation of a fair procedure, which principles of natural
justice embody, in a given situation has to be considered on a case-by-case
basis bearing in mind that judicial review is not intended to be an appeal in
disguise.
(Para 35)
(D)
Constitution of India, Article 226, 136 – Constitution Law - Issuing of limited
notice -
Objection on behalf of the respondent-State that limited notice having been
issued at the time of admission of the intra-court appeal and the appellant’s
grievance being addressed, this Court ought not to enlarge the scope of the
appeal repelled – Held that issuing limited notice at the stage of admission
does not bar a Constitutional Court having inherent powers to pass such orders
as the justice of the case before it demands to enlarge the scope of a
petition/appeal at the stage of final hearing - Any observation that the court
may choose to make while entertaining the petition/appeal by issuing limited
notice ought to be regarded as tentative - Such observation cannot limit the
court’s jurisdiction to consider the controversy, as raised, in its entire
perspective - Whether or not the court would enlarge the scope is, however, a
question which is largely dependent on the facts and circumstances of each case
- If the court seized of the petition/appeal considers that the justice of the
case before it demands enlargement of the scope, notwithstanding that a limited
notice had been issued earlier, the court’s powers are not fettered
particularly when enforcement of any Fundamental/Constitutional right is urged
by the party approaching it.
(Para
15 to 19)
JUDGMENT
Dipankar Datta, J.:-
FACTS
1.
The appellant was at the twilight of his long career of 34 (thirty-four) years
in public service. At the relevant time, he was holding the post of Senior
Medical Officer, CHC, Dirba, District Sangrur, under the Health and Family
Welfare Department, Government of Punjab[GoP]. Eleven days prior to the appellant’s
retirement on superannuation on 31st March, 2017, he was served with a
charge-sheet dated 20th March, 2017 in connection with disciplinary action that
was proposed against him under Rule 8 of the Punjab Civil Services (Punishment
& Appeal Rules, 1970).
2.
The charge-sheet alleged that the appellant had committed misconduct by (i) not
complying with the direction of the Election Commission; (ii) proceeding on
leave without sanction thereof; (iii) failing to take part in the pulse polio
programme and giving threats for legal action to the Senior Assistant of the
Civil Surgeon, Sangrur[Civil Surgeon];
and (iv) not complying with the orders of the superior officers.
3.
Consequent to pendency of the disciplinary proceedings, an order was issued on
31st March, 2017 refusing the appellant extension of service; instead, the
appellant was relieved of his duty and made to retire on 31st March, 2017
(afternoon). It was recorded in the said order that such retirement would not
affect the disciplinary proceedings pending against the appellant; also, if any
amount is recoverable from him, the GoP would have the right to recover such
amount.
4.
Almost a year lapsed, since the charge-sheet was issued to the appellant,
without any development. As late as on 23rd February, 2018, a retired
bureaucrat (a member of the Indian Administrative Service)was appointed as the
Inquiry Officer.
5.
The appellant, despite not having responded to the charge-sheet, diligently
participated in the inquiry before the Inquiry Officer. While refuting the
charges levelled against him, the appellant cross examined the two witnesses
produced on behalf of the prosecution in support of the charges. The appellant
also furnished an explanation vis-à-vis the incidents before he proceeded on
leave. Upon purported consideration of the evidence led by the prosecution and
the explanation furnished by the appellant, the Inquiry Officer submitted a
report of enquiry concluding as follows:
“Keeping in view the
above, all the charges No. 1 to 4 levelled in the charge-sheet against Sh.
Bhupinder Singh Gill. Service No. 3674, Senior Medical Officer (Retd) are
proved, but so far as the matter of giving threat to take legal action against
the Assistant of the office of Civil Surgeon that is not proved.”
6.
The report of the Inquiry Officer was furnished to the appellant vide a memo
dated 7th September, 2018 and his comments were sought. By his reply dated 9th
September, 2018, the appellant sought to highlight the infirmities in the
inquiry report and prayed that the disciplinary proceedings be dropped.
7.
The Principal Secretary of the Health and Family Welfare Department, GoP[Disciplinary Authority] , passed a
final order dated 11th October, 2019 upon purported consideration of the
charge-sheet, the evidence led in course of the inquiry by the prosecution, the
defence of the appellant, the inquiry report and the response of the appellant
thereto. He ordered a cut in pension based on the observations/findings made by
him. The contents of the said order will be noticed at a later part of this
judgment.
PROCEEDINGS
BEFORE THE HIGH COURT
8.
The order of the Disciplinary Authority dated 11th October, 2019, ordering a
cut of 2% pension with cumulative/permanent effect, was challenged by the
appellant in a writ petition[CWP-34272-2019
(O&M)] before the High Court of Punjab and Haryana at Chandigarh[High Court]. A single Judge of the High
Court, vide judgment and order dated 26th February, 2021, dismissed the writ
petition.
9.
Aggrieved thereby, the appellant presented an intra-court appeal[LPA No. 600 of 2021 (O&M)]. The
Division Bench of the High Court by its judgment and order dated 19thApril,
2022 allowed the appeal in part by modifying the punishment imposed upon the
appellant by the Disciplinary Authority. Instead of the penalty of 2% pension
cut with cumulative/permanent effect, the same was altered to 2% pension cut
for a period of 5 years where after the appellant was made entitled to full
pension upon “completion of five years period from the date the inflicted
punishment has been effected”.
THE
CHALLENGE
10.
This appeal, by special leave, mounts a challenge to the said judgment and
order dated 19th April, 2022 of the Division Bench of the High Court, although
partial relief was granted thereby to the appellant.
CONTENTIONS
OF THE PARTIES
11.
Mr. Patwalia, learned senior counsel appearing for the appellant, contended
that having regard to the materials on record it is clear as crystal that the
appellant did not commit any misconduct warranting punishment. According to
him, the disciplinary proceedings were initiated by the respondents to teach
the appellant a lesson for having questioned their actions before the High
Court in several proceedings. Reference was made by him to proceedings
instituted by the appellant before the High Court alleging contempt against
some of the high ranking officials of the GoP. In pursuance thereof, the
respondents had to cough up in excess of Rs. 3,00,000/- (three lakh) to the
appellant, of which he had been illegally deprived. Our attention was further
invited to the evidence led on behalf of the prosecution as well as the
specific defence taken by the appellant to demonstrate the perversity in the
findings of the Inquiry Officer as well as the order of penalty passed by the
Disciplinary Authority.
12.
Mr. Patwalia also submitted that the appellant having been in public service in
excess of three decades without blemish, the governmental action of initiating
disciplinary proceedings a few days prior to his retirement and imposing on him
the unwarranted penalty of ordering of a cut in pension, which is the source of
his sustenance in the winter years of his life, is absolutely arbitrary apart
from smacking of mala fide, which the High Court failed to take note of. He,
thus, prayed that the orders of the Disciplinary Authority, the Single Judge
and the Division Bench be set aside and all benefits be restored in favour of
the appellant to which he was legitimately entitled.
13.
Per contra, appearing for the respondents, Ms. Nupur, learned counselcontended
that inquiry was conducted by the Inquiry Officer by granting reasonable,
sufficient and adequate opportunity to the appellant to defend himself. There
has been no breach of principle of natural justice in proceeding against the
appellant and rightly, the appellant has not so alleged. The findings returned
by the Inquiry Officer are based on legal evidence and the order of the
Disciplinary Authority imposing penalty demonstrates application of mind to the
materials on record. Thus, no interference is called for.
14.
Our attention was drawn by Ms. Nupur to the order dated 28th July, 2021 issuing
notice on the intra-court appeal. According to her, limited notice was issued
to the effect that 2% cut in pension could have been for a limited period and
not with cumulative/permanent effect. Relief having been provided by the
Division Bench by the impugned order,she concluded by submitting that the
appellant can have no cause for any further grievance.
THE
ISSUES
15.
The broad issue emerging for decision is, whether the impugned order of the
High Court, in which the Disciplinary Authority’s order imposing penalty and
the order of the Single Judge dismissing the writ petition of the appellant
have merged, warrants any interference on any of the grounds available for
judicial review. Besides, we are also tasked to decide the objection that
limited notice having been issued at the time of admission of the intra-court
appeal and the appellant’s grievance being addressed, this Court ought not to
enlarge the scope of the appeal.
ANALYSIS
16.
We have perused the documents on record including the inquiry report and other
relevant materials.
17.
At the outset, we propose to deal with the objection raised by Ms. Nupur.
18.
It is true that limited notice was issued by the Division Bench while admitting
the intra-court appeal. However, a reading of the impugned order does not
reveal that the Division Bench while disposing of such appeal considered the
sole point on which limited notice was issued; on the contrary, arguments were
advanced by the parties on similar lines as advanced before us and after noting
the rival claims, the Division Bench proceeded to dispose of the appeal by
holding as follows:
“In the present case
also, the petitioner has put in service of 34 years and not an iota of material
has been brought on record to even remotely suggest that the writ petitioner
had been a trouble maker or undisciplined employee or habitual of absenting
himself from work without permission. On the contrary, the factors that
ostensibly appear to have influenced the competent authority have also been
candidly pleaded and brought on record i.e. actively pursuing litigation in
which the highest authority of the department i.e. Principal Secretary, Health
and Family Welfare Department, Punjab was as such a party respondent by name,
as contemnor, in COCP No.2304 of 2013 titled ‘Dr. Bhupinder Pal Singh Gill vs.
Smt. Vini Mahajan and others’. No material has been brought to our notice that
the aforesaid factual aspect was ever denied or refuted or appropriately dealt
with, at the time of imposing the punishment.
Keeping in view the
above discussion, the material available on record, ratio of the judgments
referred to and the peculiar facts and circumstances, we are of the considered
opinion that the punishment inflicted on the writ petitioner being a 2% cut in
pension, in perpetuity, even if the finding with regard to the charges is left
untouched, is disproportionate to the misconduct and is sufficient to shock the
conscience of the Court. Thus, the writ petitioner does not deserve to be
treated any differently and as such taking a consistent view, the present
appeal is liable to be allowed partly and the order of punishment deserves to
be modified accordingly. Therefore, the ends of justice would be met if the
impugned punishment is modified to be for a limited specific period other than
being in perpetuity i.e. with cumulative effect. None the less, the same would
still act as a deterrent for other employees to discharge the duties in a
proper manner and remain careful to follow all instructions issued from time to
time. Accordingly, the order dated 26.02.2021 and the order dated 28.04.2021
passed by the writ Court are set aside and the order dated 11.10.2019 (Annexure
P-13) passed by Principal Secretary, Punjab Government, Health and Family
Welfare Department, imposing 2% cut in pension with cumulative/permanent effect,
is modified to that of 2% cut in pension for a period of 5 years. Consequently,
full pension would be restored on the completion of give years period from the
date the inflicted punishment has been effected.”
(emphasis
supplied)
In
view of the approach adopted by the Division Bench in examining the contentious
issues arising before it, we consider the objection of Ms. Nupur to be without
substance.
19.
Even otherwise, issuing limited notice at the stage of admission does not bar a
Constitutional Court having inherent powers to pass such orders as the justice
of the case before it demands to enlarge the scope of a petition/appeal at the
stage of final hearing. Any observation that the court may choose to make while
entertaining the petition/appeal by issuing limited notice ought to be regarded
as tentative. Such observation cannot limit the court’s jurisdiction to
consider the controversy, as raised, in its entire perspective. Whether or not
the court would enlarge the scope is, however, a question which is largely
dependent on the facts and circumstances of each case. If the court seized of
the petition/appeal considers that the justice of the case before it demands
enlargement of the scope, notwithstanding that a limited notice had been issued
earlier, the court’s powers are notfettered particularly when enforcement of
any Fundamental/Constitutional right is urged by the party approaching it. We,
therefore, see no reason to accept the objection of Ms. Nupur and show the
appellant the door at the threshold.
20.
Having dealt with the objection, it is now time to consider the merits of the
appellant’s claim and decide the broad issue.
21.
The appellant applied on 27th January, 2017 for availing leave on 28th, 30th
and 31st, January, 2017 to attend proceedings pending before the High Court.
Since the details of the proceedings have been noted by the Division Bench and
the same have not been disputed by the respondents, we refrain from referring
to it here.
22.
The case of the prosecution was that the appellant had proceeded on leave
without the same being sanctioned, defying the directions of the Election
Commission and the higher authorities, and without participating in the pulse
polio programme.
23.
The allegation levelled against the appellant was sought to be established by
the prosecution by examining two witnesses, (i) a clerk (PW-1) in the office of the Civil Surgeon and
(ii) a senior assistant (PW-2) in the branch office of the Director, Health and
Family Welfare.
24.
Referring to the records, PW-1 gave a statement that the appellant proceeded on
leave on 27th January, 2017 without getting his casual leave sanctioned and
without handing over charge of his post to anyone. The appellant was informed
of non-sanction of his leave by the Senior Assistant in the office of the Civil
Surgeon on telephone to which the appellant responded by saying that he be not
harassed by making phone calls and also that since he has no duty for the pulse
polio programme, he would take legal action. Reference was then made by PW-1 to
a letter dated 06th January, 2017 of the Secretary, Health and Managing
Director, Punjab Health System Corporation, Punjab[M.D., PHSC]to the effect that grant of leave was closed due to
Election Code in Punjab and that directions had been made by the appropriate
authority of the Election Office, keeping in view the Election Code, that leave
be not granted to any officer/official; however, despite knowledge of the same,
the appellant had proceeded on leave.
25.
In course of cross-examination, PW-1 stated that no call detail is available
regarding the telephonic message purportedly given by the Senior Assistant to
the appellant and it is only the Senior Assistant who would be in a position to
throw light because PW-1 did not have any record of conversation. It was also
admitted that on cancellation of leave, separate letter was not written to the
appellant; also that, as per the record, no duty had been assigned to the
appellant in the pulse polio programme from 29th January, 2017 to 31st January,
2017 or by the Election Commission. The letter dated 6th January, 2017 of the
M.D., PHSC did not prohibit grant of leave to Senior Medical Officer; however,
it prohibited grant of leave to specialist Doctor/General Medical Officer and
para-medical staff, and leave to them could only be granted in special
situations upon obtaining the approval of the Director, Health. PW-1
reiterated, while responding to a question as to the time when leave of the
appellant was cancelled, that the Civil Surgeon cancelled the leave on 27th
January due to Election Code and pulse polio programme but that there is no
record regarding time. He also admitted the absence of any Government Order
requiring communication of non-sanction of leave through telephone and not in
writing. He was unaware as to whether the appellant had been charge_sheeted for
keeping him away “from the fruits of extension in service”.
26.
As PW-2, the Senior Assistant produced a document dated 30thJanuary, 2017
(Ex.PW/2/1) of the Civil Surgeon which was addressed to the Additional Chief
Secretary (Health) conveying that the appellant proceeded on leave on 27th
January, 2017 without such leave being sanctioned, without informing anybody
and without handing over charge to anybody. Further, PW-2 stated that due to
Election Code “the leave were closed” and that the Senior Assistant of the
Civil Surgeon had informed the appellant regarding cancellation of leave on
telephone owing to Election Code and pulse polio programme from 29thJanuary, 2017
to 31st January, 2017.
27.
In course of cross-examination by the appellant, PW-2 admitted that in the
letter of the Civil Surgeon, being Ex.PW/2/1, call record of the Senior
Assistant, call details and confirmation of calls made are not available.
28.
According to the appellant, he personally visited the office of the Civil
Surgeon on 27th January, 2017 at 3.00 pm. As per the procedure of the GoP, he
gave his leave application to the Receipt Clerk and obtained a receipt. On such
application, the Medical Officer, Dental, CHC, Dirba put her signature. The
appellant waited till 5.00 pm but since the Civil Surgeon was not available in
the office from 3.00 pm to 5.00 pm, he was asked to go on leave. It was the
further case of the appellant that during the long 34 (thirty-four) years of
his service, he was never given any letter sanctioning his leave. It was also
his version that he had not received any telephonic message from anyone in the
office of the Civil Surgeon asking him not to proceed on leave and, therefore,
he went on leave. He had also not received any letter regarding non-sanction of
his leave. Further, he was not given election duty by the Election Commission
of India nor was he assigned duty from 29th January, 2017 to 31st January, 2017
for the pulse polio programme.
29.
The Inquiry Officer, prior to recording his conclusion as extracted in
paragraph 5 (supra) found the following facts to have come to light. We
consider it appropriate to reproduce the same from the report, reading as
follows:
“1.The Delinquent
officer on 27-1-2017 after getting the leave of 28-1-2017, 30-1-2017 and
31-1-2017 along with station from 27-1-2017 to 2-2-2017 received in the office
of Civil Surgeon, Sangrur, went on leave without getting the same sanctioned,
when in those days election code was going on and pulse polio programme was
also going on. In this regard, as per the directions issued by Election
commission/Health Department, the leave only could only be availed, in special
circumstances, after getting prior permission from Director, Health Services.
As per the rules, no leave can be availed as a right. Powers are empowered to
the competent authority to sanction or not to sanction the leave. The argument
by the Delinquent that there was no duty of him in election and pulse polio, is
not acceptable. During the election and pulse polio, it is the duty of the
supervisory officer to maintain the health services and to provide duties to
the departmental employees and to assure the regular supply of medicines and to
maintain cold chain etc. Being Senior Medical Officer and being incharge of an
organization, it was the duty of the Delinquent officer that he during the
elections and pulse polio programme, leads the officers/officials of his
department and supervise their works so that these important programmes of the
Government can be fulfilled successfully. But on the part of Delinquent
officer, this was not done and did not take part in pulse polio programme. So
far as the charge to give threat to take legal action against Sh. Rakesh Kumar
, Senior Assistant office of Civil Surgeon, Sangrur, in this regard neither the
concerned Senior Assistant has been produced as a witness nor any record or
detail of call regarding conversion on telephone with the Delinquent has been produced
by the Prosecution. Because the conversation of the concerned Senior Assistant
of the office of Civil Surgeon had taken place 'With the Delinquent, which, as
per the record, was brought by him in the notice of Civil Surgeon. But hear say
evidence as per the Indian Evidence Act cannot be admitted as a proof.
Therefore, to give threats from the Delinquent Doctor to Senior Assistant,
office of Civil Surgeon, Sangrur to take legal action, due to non-submission of
any proof by the PO, this charge is not proved.”
30.
As noted, the inquiry report was accepted by the Disciplinary Authority.
Paragraph 2 of the said order being relevant, reads as follows:
“2. Doctor Bhupinder
Pal Singh Gill while giving his explanation dated 19-9-2018 with ref. to Memo.
No. 17/34/17-4H1/3226 dated 07-09-2018 of Govt, refused to accept the report
and by telling him innocent, before taking any decision in this regard,
requested for personal hearing to submit his defence. While considering the
explanation submitted by the Doctor, the competent authority vide Govt. Memo.
No. 17/34/17-4S1—3568 dated 17-10-2018, he was given personal hearing. During
the personal hearing, the arguments put by the Doctor and facts were not
acceptable. Therefore, the charges mentioned in the charge-sheet which have
been proved by the Inquiry Officer in his report, after consideration of the
same, it has been decided to make a tentative cut of 2% out of the pension of
Doctor Bhupinder Pal Singh Gill. In this regard vie Govt. letter No.
17/34/17-4H1/1073 dated 12-04-2019, approval of P.P.S.C, Patiala had been
sought which has been received vide this letter No. Dis.321/2019/-7/1950 dated
19-07-19, keeping in view this, as per the decision taken by the Govt.,
permission is granted of 2% pension cut with cumulative/permanent effect out of
the pension of Dr. Bhupinder Pal Singh Gill.”
31.
These are the bare facts triggering the challenge by the appellant to the order
of penalty imposing a cut in pension for the remainder of the period he would
receive pension, which partially succeeded before the Division Bench of the
High Court and was modified to a period of 5 (five) years.
32.
Before we embark on a judicial review of the decision taken by the Disciplinary
Authority to penalise the appellant and examine the correctness of the impugned
order, we need to remind ourselves of the well-settled principles relating to
interference with decisions taken in pursuance of disciplinary proceedings to
discipline and control errant employees.
33.
Certain generic principles governing interference with orders of punishment
that are passed following inquiry proceedings have evolved over a period of
time. Law is well settled that an administrative order punishing a delinquent
employee is not ordinarily subject to correction in judicial review because the
disciplinary authority is the sole judge of facts. If there is some legal
evidence on which the findings can be based, then adequacy or even reliability
of that evidence is not a matter for canvassing before the high court in a writ
petition filed under Article 226 of the Constitution. However, should on
consideration of the materials on record, the court be satisfied that there has
been a violation of the principles of natural justice, or that the inquiry
proceedings have been conducted contrary to statutory regulations prescribing
the mode of such inquiry, or that the ultimate decision of the disciplinary
authority is vitiated by considerations extraneous to the evidence and merits
of the case, or that the conclusion of the disciplinary authority is ex facie
arbitrary or capricious, so much so that no reasonable person could have
arrived at such conclusion, or there is any other ground very similar to the
above, the high court may in the exercise of its discretion interfere to set
things right. After all, public servants to whom Article 311 of the
Constitution apply do enjoy certain procedural safeguards, enforcement of which
by the high court can legitimately be urged by such servants depending upon the
extent of breach that is manifestly demonstrated.
34.
It would further be of immense profit, at this stage, to consider a specific
principle which is tailored to the particular situation and could clinch the
issue. The Constitution Bench of this Court, speaking through Hon’ble P.B.
Gajendragadkar, J., in Union of India v. H.C. Goel[(1964) 4 SCR 718] laid down a specific test which could be applied
if a contention were raised that the conclusion is based on no evidence.
Relevant passages from the said decision evincing one of the two questions
arising for decision and the answer thereto, read as follows:
“1. Two short
questions of law arise for our decision in the present appeal. The first
question is … ; and the other question is whether the High Court in dealing
with a writ petition filed by a Government Officer who has been dismissed from
Government service is entitled to hold that the conclusion reached by the
Government in regard to his misconduct if (sic, is) not supported by any evidence
at all. As our judgment will show, we are inclined to answer both the questions
in the affirmative. Thus, the appellant, the Union of India, succeeds on the
first point, but fails on the second. …
20. … It still remains
to be considered whether the respondent is not right when he contends that in
the circumstances of this case, the conclusion of the Government is based on no
evidence whatever. It is a conclusion which is perverse and, therefore, suffers
from such an obvious and patent error on the face of the record that the High
Court would be justified in quashing it. In dealing with writ petitions filed
by public servants who have been dismissed, or otherwise dealt with so as to
attract Article 311(2), the High Court under Article 226 has jurisdiction to
enquire whether the conclusion of the Government on which the impugned order of
dismissal rests is not supported by any evidence at all. It is true that the
order of dismissal which may be passed against a Government servant found
guilty of misconduct, can be described as an administrative order;
nevertheless, the proceedings held against such a public servant under the
statutory rules to determine whether he is guilty of the charges framed against
him are in the nature of quasi-judicial proceedings and there can be little
doubt that a writ of certiorari, for instance, can be claimed by a public
servant if he is able to satisfy the High Court that the ultimate conclusion of
the Government in the said proceedings, which is the basis of his dismissal, is
based on no evidence. …
23. … In exercising
its jurisdiction under Article 226 on such a plea, the High Court cannot
consider the question about the sufficiency or adequacy of evidence in support
of a particular conclusion. That is a matter which is within the competence of
the authority which deals with the question; but the High Court can and must
enquire whether there is any evidence at all in support of the impugned
conclusion. In other words, if the whole of the evidence led in the enquiry is
accepted as true, does the conclusion follow that the charge in question is
proved against the respondent? This approach will avoid weighing the evidence.
It will take the evidence as it stands and only examine whether on that
evidence illegally (sic, legally) the impugned conclusion follows or not. …
26. … Though we fully
appreciate the anxiety of the appellant to root out corruption from public
service, we cannot ignore the fact that in carrying out the said purpose, mere
suspicion should not be allowed to take the place of proof even in domestic
enquiries. It may be that the technical rules which govern criminal trials in
courts may not necessarily apply to disciplinary proceedings, but nevertheless,
the principle that in punishing the guilty scrupulous care must be taken to see
that the innocent are not punished, applies as much to regular criminal trials
as to disciplinary enquires held under the statutory rules. … ”
(emphasis
supplied)
35.
It also needs to be emphasised that although the traditional concept of natural
justice comprises of the two rules that prohibit anyone from being condemned
unheard and anyone from being a judge of his own cause, jurisprudence on
natural justice principles have seen a distinct shift ever since the decision
in Maneka Gandhi v. India[(1978) 1 SCC
248]constitutionalised principles of natural justice, as held in Madhayamam
Broadcasting Ltd. v. Union of India[(2023)
13 SCC 401]. Drawing inspiration from such authorities, it would be apt to
observe that in relation to disciplinary proceedings, subject to just
exceptions, natural justice would envisage observance of procedural fairness
before holding a public servant guilty of misconduct and imposing a punishment
on him for such misconduct. While it is true that principles of natural justice
supplement, and not supplant, the law, such principles have been declared by
this Court to be a constituent feature of Article 14. Validity of any
disciplinary action, whenever questioned, has to be tested on the touchstone of
Articles 14, 16 and 21 as well as Article 311(2), wherever applicable. To test
whether interference is warranted, this Court has laid down that the scrutiny
ought to be confined to finding out whether the disciplinary proceedings have
been conducted fairly; if not, an inference can be drawn that this has caused
prejudice to the charged employee. Be that as it may, there can be no
gainsaying that the consequences of violation of a fair procedure, which
principles of natural justice embody, in a given situation has to be considered
on a case-by-case basis bearing in mind that judicial review is not intended to
be an appeal in disguise.
36.
Though the rules closely associated with the traditional concept of natural
justice may not have been breached in this case, the contention of the
appellant that the process of decision-making stands vitiated for lack of
procedural fairness has to be examined given the nature of challenge raised.
37.
Memory refreshed; we now proceed to examine whether the appellant has set up
any case for interference.
38.
The second and the fourth charges levelled against the appellant that he had
proceeded on leave without sanction thereof and in not complying with the
orders of his superior officers seem to be the most vital charges. Undoubtedly,
no public servant can claim leave as a matter of right. Leave is a matter
regulated by rules and such rules need to be duly adhered to by each public
servant. While there can be no quarrel on this aspect, we have not found any
such circumstance from the record to afford ground for holding that the
appellant did commit a serious misconduct. In order to establish that the
appellant had committed a serious misconduct by proceeding on leave without
leave being sanctioned (leave cancelled as per PW-1), the prosecution endeavoured
to prove that the Civil Surgeon had refused to sanction leave, prayed by the
appellant, and that he was telephonically informed by the Senior Assistant of
such refusal. That the appellant had visited the office of the Civil Surgeon,
remained there from 3.00 pm to 5.00 pm and submitted his application for leave
which was duly acknowledged, have not been disputed by the prosecution.
Interestingly, the Inquiry Officer while exonerating the appellant of the
second part of the third charge reasoned that neither the Senior Assistant had
been produced in the inquiry as a witness nor were call details produced, and
what PW-1 said is mere hearsay; hence, in the absence of proof, that part of
the charge is not proved. This was a valid reason assigned by the Inquiry
Officer, which the Disciplinary Authorityeven accepted. On the same analogy and
for the same reason, the appellant could not have been held guilty in respect
of the second charge. There is no record of the Civil Surgeon’s refusal to
sanction leave being communicated to the appellant either. In such view of the
matter, we have no hesitation to hold that there was no legal evidence based
whereon the appellant could have been held guilty of the second and fourth
charges.
39.
That the appellant did not comply with the directions of the Election
Commission and did not participate in the pulse polio programme constitute the
first charge and the first part of the third charge, respectively. The second
part of the third charge of the appellant having threatened the Senior
Assistant has not been found to be proved. It is the clear finding of the
Inquiry Officer, based on the evidence on record, that the appellant was not
assigned any duty in connection with election duty and pulse polio programme
during the period he wished to avail leave to attend court proceedings before
the High Court. Insofar as defiance of Election Commission’s directions by the
appellant are concerned, no such written directions were part of the
documentary evidence led before the Inquiry Officer. Though the letter of the
M.D., PHSC was not made part of the evidence, we shall assume that the
appellant, PW-1 and the Inquiry Officer knew the contents of the said letter
and were aware that in view of the ensuing elections in February, 2017,
instructions had been received not to grant leave to any officer unless
permitted by the Director, Health. However, the appellant’s contention that
public servants on the verge of retirement are not assigned election duty was
not shown to be incorrect and untenable. Rather curiously, the Inquiry Officer
resorted to ingenuity to hold the appellant guilty. As is evident from the
report, the prosecution having failed to establish that the appellant had been
assigned election duty as well as duty associated with the pulse polio
programme, the Inquiry Officer went on record to hold the charges under
consideration proved by referring to what was, in his perception, the duty of a
senior medical officer who has been in charge of an organisation. It needs no
discussion that the Inquiry Officer found the appellant guilty for a perceived
failure to perform a moral duty. Not only was it completely extraneous, but
such a finding was clearly at variance with the charge levelled against the
appellant. We hold that holding the appellant guilty of a perceived failure to
perform a duty not being the charge in respect of which any opportunity of
explanation was given, such a finding could not have been taken into
considerationby the Disciplinary Authority to impose penalty on the appellant.
40.
The order of penalty passed by the Disciplinary Authority dated 11thOctober,
2019, on another count, does not also commend to be legal and valid. A detailed
response to the inquiry report had been submitted by the appellant. Dismissing
the claims by a single sentence that the same are not acceptable, is not part
of a fair procedure. This is a substantial ground for which appellant’s
grievance seems to be justified.
41.
We have extracted verbatim (supra) the reasons assigned by the Division Bench
in support of the ultimate order it passed modifying the penalty. It is not in
doubt that in a rare and appropriate case, to shorten litigation and for
exceptional reasons to be recorded in writing, a high court may substitute the
punishment imposed on the delinquent employee. However, what has overwhelmed
our ability of comprehension is that the Division Bench despite having returned
clear findings in favour of the appellant adopted a hands-off approach by
leaving the findings with regard to the charges untouched. In our considered
opinion, the tenor of the impugned order does suggest that the Division Bench
found the appellant to have been wronged and regard being had thereto, the
Division Bench ought to have set things right by interfering with the findings
and granting full relief that we intend to grant to the appellant. The impugned
order, insofar as it declines to interfere with the findings on the charges,
being clearly indefensible, we proceed to grant relief to the appellant as
indicated hereafter.
RELIEF
42.
The impugned order of the Division Bench is set aside together with the order
of dismissal passed by the Single Judge. The order of penalty passed by the
appellant’s Disciplinary Authority also stands set aside and the writ petition
is allowed. We direct that the appellant shall be entitled to full pension
without any cut. Whatever quantum has been deducted from his pension shall be
returned, within three months from date, together with interest @ 6% per annum.
43.
The appeal stands allowed.
EPILOGUE
44.
We could have ended our judgment here. However, before parting, we need to
dwell on one aspect. The appellant had raised a specific plea before the
Inquiry Officer that being on the verge of retirement, election duty could not
have been assigned to him. True it is, he did not produce any documentary
evidence in this behalf. However, in present days where one can access
documents without much ado, we have been able to lay our hands on an order
dated 07th September, 2016 issued from the office of the Election Commission of
India, addressed to the Chief Secretary, Punjab on the subject of General
Elections in Punjab having regard to expiry of the term of the State
Legislative Assembly of Punjab on 18th March, 2016 (sic, 2017). Clauses (iv)
and (xii) of the said order being extremely relevant, are quoted below:
“(iv) In any election
very large number of employees are drafted for different type of election duty
and the Commission has no intention of massive dislocation of state machinery
by massive transfers. Hence, the aforesaid transfer policy is normally not
applicable to officers/officials who are not directly connected with elections
like doctors, engineers, teachers/principals etc. However, if there are
specific complaints of political bias or prejudice against any such govt.
officer which on enquiry are found to be substantiated, the then CEO/ECI may
order not only for transfer of such official but also appropriate departmental
actions against him.
x x x
(xii) Any officer who
is due to retire within the coming six months will be exempted from the purview
of the abovementioned directions of the Commission. Further officers falling in
category (home/3+ criteria if they are due to retire within 6 months) shall not
be engaged for performing election duties during the elections without
permission of the Commission.”
(emphasis
in original)
45.
If indeed such is the stand of the Election Commission that, inter alia,
doctors and officers who are due to retire within 6 (six) months next be
exempted from election duty, the letter dated 6th January, 2017 of the M.D.,
PHSC could not have laid down a requirement contrary to what the Election
Commission ordered. In all fairness, the Disciplinary Authority ought not to
have initiated disciplinary proceedings against the appellant on the face of
such clear order of the Election Commission. The appellant is, therefore, quite
right in contending that the disciplinary proceedings culminating in the order
of penalty were nothing but a ruse to wreak vengeance for he having dragged
high officials of the GoP to the High Court and in tasting success to obtain
his legitimate monetary dues. The Constitutional concept is that not only the
country but every State in the country would be a welfare state. As the
regulator and dispenser of special services and provider of a large number of
benefits, none can perhaps deny that a welfare state ought to strive for
achieving the maximum welfare and securing the best interests of the people.
This happens to be a case where certain officials of the GoP have stooped too
low to punish a senior doctor, on the verge of retirement, for no better reason
than that he had dared to take on the mighty executive in a court of law. While
deprecating such vile acts of the concerned officials, we see the need to
adequately compensate the appellant.
46.
Accordingly, we direct that the appellant shall be entitled to costs assessed
conservatively at Rs.50,000/-, to be released in his favour within the
aforesaid period. Should there be any default, the appellant shall be free to
bring it to our notice for appropriate direction. We grant liberty to the GoP
to realize the amount of costs payable in terms hereof from the persons
responsible after fixing responsibility in accordance with law.
47.
We must place on record that the respondents have not been alerted by bringing
to their notice the aforesaid order of the Election Commission and, therefore,
if they have their own version to place for our consideration, they shall be at
liberty to approach us to have the order for costs set aside before expiry of
the time limit fixed above.
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