(Vineet Saran and Aniruddha Bose, JJ.)
State of Odisha and Another ______________________ Appellant(s);
v.
Satish Kumar Ishwardas Gajbhiye and Others _______ Respondent(s).
Civil Appeal No. 6242 of 2021 (Arising out of Special Leave Petition(s) (C) No(s). 4282/2021), decided on October 6, 2021
The Order of the court was delivered by
Order
1. Leave granted.
2. This appeal has been filed against the judgment of the High Court of Orissa at Cuttack whereby the Writ Petition registered as W.P. (C) No. 18470 of 2018 filed by the respondent no. 1 has been allowed and the disciplinary proceedings initiated against him have been quashed. The respondent no. 1 is an IPS officer. The incident for which he was subjected to disciplinary proceedings occurred in the year 2008, when he was posted as Superintendent of Police, Malkangiri, in the State of Odisha. Allegation against him was over disbursement of a sum of Rs. 3,55,000/- credited in the account of the Superintendent of Police as reward amount. The said sum was to be paid to one Hawaldar and five Constables, (amounting to Rs. 1,55,000/- in total) and Rs. 2,00,000/- to two civilian informers for being involved in arrest of a hardcore militant. Complaint was made by three constables against him that they had not received the reward money. The complaint regarding the incident of June, 2008 was filed by the constables through three separate identical worded complaints after three years in July, 2011. Based on the said complaints, the Director-cum-Additional DG of Police (Intelligence), Odisha directed a preliminary inquiry to be held in the matter and appointed Shri Sanjeeb Panda, IPS DIG of Police (Intelligence), Odisha to conduct the inquiry. Admittedly, inquiry was conducted without any notice to respondent no. 1 and the inquiry report was submitted on 19.05.2012. Pursuant thereto, after more than three years, on 07.11.2015, a Memorandum as well as Article of Charges and a Statement of Imputation against the respondent no. 1 were issued by the Principal Secretary to the Government of Odisha.
3. The respondent no. 1 challenged the issuance of the charge-sheet by way of filing an Original Application before the Central Administrative Tribunal. That application was disposed of vide judgment delivered on 22.12.2015 holding the same to be pre-mature and not maintainable. However, liberty was granted to respondent no. 1 to file his response to the Memorandum. Thereafter, respondent no. 1 filed a detailed representation along with preliminary objections to the Principal Secretary, Department of Home, Government of Odisha on 04.01.2016. Such representation was rejected on 06.02.2016. Thereafter, respondent no. 1 challenged legality of the Memorandum of Charges dated 07.11.2015 by way of filing fresh Original Application before the Central Administrative Tribunal, which was dismissed on 10.08.2018. The respondent no. 1 filed a Writ Petition No. 18470 of 2018 before the High Court of Odisha, assailing the dismissal order. This writ petition has been allowed vide judgment delivered on 08.12.2020. Aggrieved by the said judgment, the State of Odisha has filed this appeal by way of special leave petition.
4. Shri Gaurav Khanna, learned counsel for the appellant/State has submitted that the High Court has erred in holding that the appellant did not have the power to conduct preliminary inquiry before issuance of the Memorandum of Charges, in as much as it was the inherent power of the State to inquire into the matter before the charge sheet was issued and in the process, preliminary inquiry was directed to be held, in which the respondent no. 1 was found to be guilty and, thus, the Memorandum of Charges was issued against respondent no. 1. It is submitted that the Memorandum of Charges was duly approved by the Chief Minister, who was also holding the charge of Home Ministry, and, thus, the finding recorded by the High Court that the charges were issued without the approval of the Disciplinary Authority is factually incorrect. It has been the case of the charged officer (respondent no. 1) that the alleged approval granted by the Chief Minister was neither on record before the Central Administrative Tribunal nor before the High Court and the same has been placed as additional document before this Court, with the explanation that no counter affidavit in para wise manner was filed by the appellant to the Writ Petition in the High Court. It is, however, admitted that two affidavits were filed before the High Court, which were not in the form of para wise reply. It was then contended that the High Court has erred in holding that the amount of Rs. 3,55,000/- was towards Secret Service Fund, and thus the respondent no. 1 was not required to furnish the receipts or disclose the names of the civilian recipients. It has been submitted by the learned counsel for the appellant that as per the rules, respondent no. 1 was required to furnish the receipts of the payments made, which has not been done, and thus, the preliminary inquiry against respondent no. 1 was fully justified. It is, thus, contended that the impugned judgment passed by the High Court deserves to be set aside and the disciplinary proceedings against respondent no. 1 may be permitted to go on.
5. Per contra, Mr. P. Chidambaram, learned senior counsel appearing for respondent no. 1 has submitted that the preliminary inquiry initiated against respondent no. 1 was wholly unjustified and unwarranted inasmuch as there is no provision for holding of preliminary inquiry in the case of All India Services Officers, which is governed by the All India Services (Discipline & Appeal) Conduct Rules, 1969. It was next submitted by him that even if the appellant had power to initiate the preliminary inquiry, the same could only be conducted with the due approval of the Disciplinary Authority. The said authority was the Chief Minister in the present case as he was also the Home Minister, and in absence of such approval, no reliance could be placed on the preliminary inquiry report. It was lastly submitted by Mr. P. Chidambaram that the Memorandum of Charges was required to be approved by the Disciplinary Authority, (which is the Chief Minister of the State in the present case) and in the absence of any approval by the Disciplinary Authority, Memorandum of Charges could not have been acted upon. Alternatively, learned senior counsel has also submitted that no reliance can be placed on the documents filed as additional documents before this Court in support of the contention that the approval was duly granted by the Chief Minister. It has been contended that even though the first petition was filed by respondent no. 1 before the Central Administrative Tribunal in 2015 and the matter travelled to the High Court and remained pending till 2020, when the writ petition was decided, the said document had not seen the light of the day in those five years. Secondly, learned senior counsel has submitted that this document, which has been filed now, has not been signed by any Officer, including the Chief Minister and it is only a digital record, which cannot be relied upon. Thirdly, the learned senior counsel has submitted that in the digital record now filed, the first to the fourth notings, which are of the Section Officer, Under Secretary (Home), Additional Secretary (Home) and Chief Secretary, were made by the Officers within a span of 30 minutes, which clearly goes to show that the same was effected without application of mind. Lastly, it was contended that all the necessary documents, which were part of the preliminary inquiry report and the supporting evidence, were not placed along with the said notings and, thus, even if it is assumed that the said approval was given, the same was done in a mechanical way, which cannot be relied upon. Mr. Chidambaram has also submitted that the Article of Charges clearly mentions that on inquiry it was found that the allegation against respondent no. 1 was established and, thus, it reflected a pre-judgment of the authority with regard to the case of respondent no. 1, and as such, for this reason alone the Article of Charges is liable to be quashed.
6. We have heard the learned counsel for the parties at length and carefully perused the record.
7. It is admitted by the learned counsel for the appellant that there is no provision for preliminary inquiry in the All India Services (Discipline and Appeal Rules), 1969 and the preliminary inquiry was held only in order to facilitate and to find out as to whether any case is made out against respondent no. 1 or not. In the absence of there being any provision for preliminary inquiry, in our opinion, no such preliminary inquiry could have been held. Before deciding as to whether to charge a delinquent employee or not, the employer is entitled to undertake a minimal exercise to ascertain if the allegations raised against the former warrant issuance or memorandum of charges or not. But that would be an informal exercise with that limited objective. To proceed with a structured preliminary enquiry, it must have statutory sanction. A statutory authority can do only such acts which are permissible under the statute and the authority cannot be permitted to do something which is not provided in law. This principle was formulated by the Calcutta High Court nine decades ago in the case of Maniruddin Bepari v. The Chairman of The Municipal Commissioners of the Dacca Municipality [1935 SCC OnLine Cal 296], in which it was inter-alia held:—
“It is a fundamental principle of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in the case of a statutory corporation it is just the other way. The corporation has no power to do anything unless those powers are conferred on it by the statute which creates it……”
8. We do not think the position of law has changed since then. In the case of Champaklal Chimanlal Shah v. The Union of India [AIR 1964 SC 1854], some form of preliminary enquiry was found to be justifiable under certain circumstances. It was observed in this judgment:
“12. Before however we consider the facts of this case, we should like to make certain general observations in connection with disciplinary proceedings taken against public servants. It is well known that government does not terminate the services of a public servant, be he even a temporary servant, without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily. One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end. In that case there is nothing further to be said and his services terminate when the post comes to an end. Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end. But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and or his work. The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and/or conduct of a temporary servant may arise on complaint against him. In such cases two courses are open to government. It may decide to dispense with the services of the servant or revert him to substantive post without any action being taken to punish him for his bad work and/or conduct. Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of Article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show case why disciplinary action be not taken against him. An enquiry officer (who may be himself in the case where the appointing authority is other than the Govern-ment) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this enquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the conduct of a public servant. In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross-examine the witnesses tendered against him. He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so. After the enquiry is over, the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned. The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines tentatively the punishment, to be, inflicted on the public servant concerned. It then communicates a copy of the enquiry officer’s report and its own conclusion thereon and asks him to show cause why the tentative punishment decided upon be, not inflicted upon him. This procedure is required by Article 311(2) of the Constitution in the case of the three major punishments i.e. dismissal, or removal or reduction in rank. The servant, concerned has then an opportunity of showing case by making a representation that the conclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh”
9. On the aspect of legality of the preliminary enquiry, as we shall discuss later in this judgment, the opinion of the authorities formed on the basis of such preliminary enquiry reflected in the memorandum of charges was a foregone conclusion about guilt of the charged officer. This factor shows strong element of prejudging the issue by the authorities, leaving little room for impartial adjudicatory exercise on the basis of response of the charged officer to such memorandum-of-charges.
10. Hence, in our considered opinion, the preliminary inquiry as held in the present case, could neither have been directed nor its report relied upon for framing of charges against the respondent no. 1. The authorities have proceeded in the preliminary enquiry as if it was a guilt-finding exercise and not an exercise on formation of opinion as to whether to proceed against the officer concerned with a regular disciplinary action or not.
11. The Case of State of Tamil Nadu Rep. By Secretary Govt. (Home) v. Pramod Kumar, IPS [(2018) 17 SCC 677] deals with two legal questions. The first is, as to whether approval for initiation of disciplinary proceedings includes approval of charge-memo. The second one is that if any authority other than the disciplinary authority is permitted to draw charge memo, the same would destroy the underlying protection guaranteed under Article 311(2) of the Constitution of India, 1950. In the subject-proceeding, the High Court has come to a finding that the charge-memo was not approved by the Disciplinary Authority. This point is covered by the ratio of the case of Pramod Kumar (supra). The ratio of the decisions in the cases of State of West Bengal v. Nripendra Nath Bagchi [(1966) 1 SCR 771] and P.S. Malik v. High Court of Delhi [(2019) SCC OnLine SC 1070] do not aid the petitioner on this point. In the former authority, the power of the High Court to conduct disciplinary proceeding was traced to Article 235 of the Constitution of India, 1950. In the case of a District Judge, Article 233 of the Constitution of India, 1950 vests in the Governor of a State the power of appointment, posting and promotion. Article 234 of the Constitution of India, 1950 deals with appointment of persons other than the District Judges, which is also to be made by the Governor after consultation with the State Public Service Commission and the High Court. But because of specific provision made in Article 235 of the Constitution of India, 1950, High Court is possessed of the disciplinary power over the State Judicial Officers. That is the ratio of this judgment. The case of P.S. Malik (supra) adopts the same line of reasoning.
12. In the judgment under appeal, reference has been made to two Delhi High Court judgments, being the cases of Constable Rajendra Kumar v. Government of NCT of Delhi [(2009) 111 DRJ 320] and Government of NCT v. Constable Gyanender Singh (Judgment delivered on 20th April 2010 in WP (C) No. 2626 of 2010). So far as the former decision is concerned, the Rules provided for holding preliminary enquiry and the latter decision is on facts. The Court found that there was not enough evidence to punish the delinquent officer. In later decisions, the cases of Union of India v. Sunny Abraham (W.P.(C) 7649 of 2015), and Union of India v. Shri Pavan Ved (W.P.(C) 215 of 2016) delivered by a Bench of the Delhi High Court on 25th August 2017, the question of validity of memorandum of charges with post-facto approval was examined. But in this judgment, we are testing the decision under appeal mainly on two legal issues. The first one is as to whether the preliminary enquiry conducted was valid in the eye of the law and second, if the memorandum of charges disclosed predetermination of guilt on the part of the respondent.
13. We have quoted the judgment of the Calcutta High Court (supra), with which we concur. The principle of law that emerges from that judgment is that though a private citizen is permitted to do what is not prohibited in law, a statutory authority can do only what is permissible in law. As such in our considered view, the order directing the preliminary inquiry in the present case, in the form it was undertaken, was not justified in law. In situations where Rules do not provide for holding preliminary enquiry before initiating disciplinary action, the principle laid down in the case of Champaklal Chimanlal Shah (supra) would prevail. But the nature of enquiry in such a situation would be in the nature of information gathering exercise, on the basis of which the authorities would decide whether to proceed in the matter or not. In this case, as we have already observed, the preliminary enquiry resulted in issue of Article of Charges, the phrasing of which clearly revealed formation of opinion of the authorities in finding of guilt of the respondent no. 1.
14. We find substance in the submission of Mr. Chidambaram that in the Article of Charges, a definite opinion has been formed by the Government against respondent no. 1, inasmuch in the said Article of Charges it had been observed that:
“Subsequently, three police personnel in favour of whom the reward money was sanctioned alleged about non-receipt of the reward amount. On inquiry into their allegation, it was established that Shri Gijbhiye has neither disbursed the reward amount. On enquiry into their allegation, it was established that Shri Gajbhiye has neither disbursed the reward amount of Rs. 1,55,000/- to the six police personnel as directed to him and nor submitted the utilization certificate or the original disbursement voucher/money receipt in support of the payment/disbursement of Rs. 1,55,000/-. With respect to payment of Rs. 2,00,000/- to the two civilian sources, whose true identity was not disclosed by Shri Gajbhiye, it was not clear regarding the actual payment of Rs. 2,00,000/- to the two sources as Shri Gajbhiye has failed to submit the original disbursement voucher/certificate and the money receipt in support of payment of said amount of Rs. 2,00,000/-”. (quoted verbatim from the copy Article of Charges as annexed to the paperbook)
15. This clearly showed that an opinion had already been formed at the stage of framing of charges. This could not have been done. It establishes predetermined mind of the authorities against the respondent no. 1, even before any proper enquiry is conducted.
16. As regards the approval of the Disciplinary Authority is concerned, we are of the opinion that the High Court, on the basis of the documents placed before it, has rightly held that the Disciplinary Authority had not approved the charges. The filing of documents by appellant as additional documents before this Court cannot be justified, as the same were neither filed before the Central Administrative Tribunal nor before the High Court. Admittedly before the High Court, where the matter was pending for more than two years, the appellant had filed two affidavits but did not file the counter affidavit giving para wise reply, for which respondent no. 1 cannot be held responsible. The appellant had sufficient opportunity to place such documents before the High Court where specific ground in this regard had been raised in the writ petition. Filing of any such document this late at the present stage cannot be justified in law. Even otherwise, the said document, which has now been filed, does not bear the signatures of any officer, including that of the Chief Minister who was the Disciplinary Authority. New documents, which are filed before this Court directly without having been filed before the Central Administrative Tribunal or High Court cannot be considered at this stage.
17. In the case of “ORYX Fisheries Pvt. Ltd. v. Union of India [(2010) 13 SCC 427], it has been held by a Coordinate Bench:—
“31. It is of course true that the show-cause notice cannot be read hypertechincally and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.
32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice.
33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it.”
18. The ratio of this decision applies in this case. In view of the aforesaid, we are of the opinion that the judgment of the High Court is perfectly justified in law and the Memorandum of Charges as well as Statement of Imputation have rightly been quashed by the High Court.
19. Accordingly, the appeal is dismissed. No order as to costs.
20. Before parting, we must appreciate the succinct manner in which Mr. Gaurav Khanna, learned counsel for the appellant has prepared and presented the case before us on behalf of the State of Odisha.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 4282/2021
(Arising out of impugned final judgment and order dated 08-12-2020 in WP(C) No. 18470/2018 passed by the High Court of Orissa At Cuttack)
The State of Odisha & Anr.….Petitioner(s)
v.
Satish Kumar Ishwardas Gajbhiye & Ors.….Respondent(s)
([TO BE TAKEN UP AS FIRST ITEM AFTER FRESH MATTERS]
IA No. 103211/2021 – APPLICATION FOR PERMISSION
IA No. 73710/2021 – APPLICATION FOR PERMISSION
IA No. 64814/2021 – APPROPRIATE ORDERS/DIRECTIONS
IA No. 64813/2021 – PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)
Date: 06-10-2021 This matter was called on for hearing today.
(Before Vineet Saran and Aniruddha Bose, JJ.)
For Petitioner(s) Mr. Gaurav Khanna, AOR
For Respondent(s) Mr. P. Chidambram, Sr. Adv.
Mr. T.V.S. Raghavendra Sreyas, AOR
Mr. Arun Agarwal, Adv.
Ms. Digambar Mishra, Adv.
Mr. Siddarth Vasudev, Adv.
UPON hearing the counsel the Court made the following
ORDER
21. Leave granted.
22. The appeal is dismissed in terms of the signed order.
23. Pending application(s), if any, stands disposed of accordingly.
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