9911796707
TMI Blog1984 (5) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... moted as Assistant and earned a further promotion on May 22, 1974 as Accountant. On the setting up of the Corporation, the appellant exercising his option came to be transferred as Accountant to the Corporation on November 9, 1976. Under the relevant conditions of transfer, he continued to be governed in the matter of recruitment and promotion by the relevant rules of the STC. He was promoted in an officiating capacity as Deputy Finance Manager Grade II on June 29, 1978 and he was put on probation after being promoted as Deputy Finance Manager Grade II on regular basis effective from February 5, 1979. The appellant applied for and obtained an advance in the amount of ₹ 16,050 for purchasing a plot of land on April 4, 1979 for which he executed the requisite agreement on April 4, 1979. The rules under which advance was obtained are styled as The Project and Equipment Corporation was India Ltd. House Building Advance (Grant Recovery) Rules for House Building Advance for short) framed in exercise of the powers conferred upon the Board of Directors by the Articles of Association of the Corporation. The appellant also applied for and obtained an advance in the amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yees (Conduct, Discipline Appeal) Rules, 1975 ( 1975 Rules for short). There were two heads of charges in the charge-sheet drawn-up against the appellant on which disciplinary enquiry was proposed to be held. These two heads of charges read as under : Article I Shri A.L. Kalra while functioning as Deputy Finance Manager-Grade II in the Finance Division of the PEC during April, 1979 applied and drew an advance of ₹ 16,050 for purchase of a plot of land at Faridabad. The did not furnish the relevant documents in the office nor did he refund the amount of advance to the Corporation within two months of the date of drawal of the advance as required under Rule 10 (1) (c) (i) of PEC House Building Advance (Grant and Recovery) Rules. Shri Kalra by his above act exhibited lack of integrity and conduct unbecoming of a public servant and violated Rule 4 (1) (iii) and Rule 5 (5) of the PEC Employees (Conduct, Discipline Appeal) Rules and Rule 10 (1) (c) (i) of PEC House Building Advance (Grant Recovery Rules and thereby committed misconduct punishable under the PEC employees (Conduct, Discipline and Appeal) Rules. 1975. Article-II Shri, A.L. Kalra drew a conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inquiry was held on 3rd and 9th April, 1980 and then inquiry was held regularly on various dates from 23rd April 1980 to 22nd May, 1980 The appellant was called upon to submit his statement of defence which he had submitted on June 30, 1980. The findings purported to have been recorded by the inquiry officer were the subject matter of a heated debate between the parties and therefore, the report of the Inquiry Officer may be broadly scanned here. After recapitulating in paras 1 to 4 the various stages through which the enquiry progressed, in para 5, it is stated that at the preliminary hearing on 3rd April, 1980, Shri A.L. Kalra, (appellant) pleaded guilty to all the charges mentioned in Annexure I and also agreed to the statement of imputation of his misconduct in support of the articles of charges framed against him. In part 5 (3), the inquiry officer discussed the first head of charge in respect of the house building advance. It was found as a fact that the advance was taken for the purchase of a plot and that the appellant had negotiated for a purchase of a plot from Shri J.C. Chugh who was examined as a management witness and who admitted that he waited for six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79 in addition to the inquiry under which disciplinary action was proposed to be taken. The inquiry officer concluded his report as under : While deciding the case, the fact that the salary was stopped from 16th November, 1979 may be kept in view as this may, I feel, tantamount to double punishment. Normally even where an employee is suspended certain amount of subsistence allowance is granted whereas in this case the salary was completely stopped and nothing has been paid since then. What is referred to as the report of the enquiry which is minutely scanned in the preceding paragraphs merely seems to be the record of inquiry and recapitulation of allegations and explanation. What is styled as findings of the inquiry officer are separately filed being Annexure M to the petition. This is a bald document of two paragraphs in which the inquiry officer records that the appellant has contravened Rule 10 (1) (c) (i) of House Building Advance Rules and has thereby committed misconduct punishable under Rule 4 (1) (iii) of 1975 Rules. In paragraph 2, it is stated that the appellant has committed breach of Rule 8 and Rule 10 (i) of the Conveyance Advance Rules and has thereby committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as the allegations contained in the heads of charges, even if unrebutted, do not constitute a misconduct within the meaning of the expression in 1975 Rules. In order to sustain the maintainability of the writ petition, the appellant also contended that the respondent is an instrumentality of the State and is comprehended in the expression other authority in Art. 12 of the Constitution. The writ petition came-up for admission before a Division Bench of the Delhi High Court. It was dismissed in limine observing that the writ petition is not maintainable on the facts presently set out in the petition. Hence this appeal by special leave. In order to obtain any decision on merits, the appellant will have to clear the roadblock about the maintainability of the writ petition in the High Court. Happily this untenable contention was not pursued in this Court. In para 2 (vi) of the counter-affidavit filed by one Mahanand Khokher on behalf of the respondents it was unambiguously stated that the respondent-Corporation is advised not to dispute the maintainability of the petitioner s petition as regards applicability of Art. 12 of the Constitution. Further in para 5.1 of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olving livelihood of the appellant, the appeal was set down for final hearing on merits. The respondent Corporation was accordingly directed to file its affidavit as also the documents on which it seeks to rely. The appeal was thereafter heard on merits. Before we deal with the contentions raised on behalf of the appellant, it is necessary to dispose of a contention having a flavour of a preliminary objection raised by Mr. Lal Narain Sinha on behalf of the respondent-Corporation. It was urged that in the absence of any specific pleading pointing out whether any one else was either similarly situated as the appellant or dissimilarly treated the charge of discrimination cannot be entertained and no relief can be claimed on the allegation of contravention of Art. 14 or Art. 16 of the Constitution. It was submitted that the expression discrimination imports the concept of comparison between equals and if the resultant inequality is pointed out in the treatment so meted out the charge of discrimination can be entertained and one can say that equal protection of law has been denied. Expanding the submission, it was urged that the use of the expression equality in Art. 14 imports dua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if is affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. This view was approved by the Constitution Bench in Ajay Hasia case It thus appears well-settled that Art. 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opportunity . That is the proclamation of the people in the preamble to the Constitution. The desire to attain these objectives has necessarily resulted in intense Governmental activity in manifold ways. Legislative and executivity have reached very far and have touched very many aspects of a citizen s life. The Government, directly or through the Corporations, set up by it or owned by it, now owns or manages, a large number of industries and institutions. It is the biggest builder in the country. Mam-moth and minor irrigation projects, heavy and light engineering projects, projects of various kinds are undertaken by the Government. The Government is also the biggest trader in the country. The State and the multitudinous agencies and Corporations set up by it are the principal purchasers of the produce and the products of our country and they control a vast and complex machinery of distribution. The Government, its agencies and instrumentalities, Corporations, set up by the Government under statutes and Corporations incorporated under the Companies Act but owned by the Government have thus become the biggest employers in the country. There is no good reason why, if Government i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding misconduct . The draftsmen of the 1975 Rules made a clear distinction about what would constitute misconduct. A general expectation of a certain decent behaviour in respect of employees keeping in view Corporation culture may be a moral or ethical expectation. Failure to keep to such high standard of moral, ethical or decrous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5. Any attempt to telescope Rule 4 into Rule 5 must be looked upon with apprehension because Rule 4 is vague and of a general nature and what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area hot amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflages as misconduct. It is not necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (c) (i) of the House Building Advance Rules and it would constitute misconduct within the meaning of the expression in Rule 4(1) (iii) of 1975 Rules. Rule 10 (I) provides that the advance shall be drawn in instalments as prescribed in various sub-clauses. The relevant sub-clause in this case is sub-cl. (C) which provides that when advance is required partly for purchase of land and partly for constructing a single storeyed new house thereon; (i) not more than 20% of the sanctioned advance on execution by the applicant employees an agreement in the required form for repayment of the advance. The amount will be payable to the applicant only for purchasing a developed plot of land on which construction can commence immediately and sale deed in respect thereof be produced for the inspection of CPM/RM within two months of the date on which 20% of the advance is drawn or within such further time as the CPM/RM may allow in this behalf failing which the employee shall be liable to refund at once the entire amount to the Corporation together with interest thereon. A bare reading of the relevant rule will show that in provides for obtaining advance which in this case was taken for purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry officer this failure to refund the advance within the time frame in which it was sanctioned constitutes violation of Rule 4 (1) (iii). Let us turn to the charge-sheet drawn-up against the appellant. Under the first head of charge it was stated that the appellant was guilty of misconduct as prescribed in Rule 4 (1) (i) and (iii). Rule 4 (1) (i) provides that every employee shall at all times maintain absolute integrity. How did the question of integrity arise passes comprehension. The appellant applied for House Building Advance. Inquiry officer says that the appellant had negotiated with Mr. Chugh for purchase of a plot. There is not even negative evidence or evidence which may permit an inference that the house building advance was utilised for a purpose other than for which it was granted. Therefore Rule 4 (1) (i) is not only attracted but no attempt was made before us to sustain it. And as far as Rule 4 (1) (iii) is concerned, we fail to see how an advance not refunded in time where it was recovered by withholding the salary of a highly placed officer discloses a conduct unbecoming of a public servant. Therefore, the first head of charge is an eye-wash. It does not constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of double punishments and this is compounded by not paying even a subsistence allowance. We scanned the report minutely with the able assistance of the learned counsel for the respondent subjecting it to microscopic analysis to ascertain whether the inquiry officer recorded any finding in respect of this charge adverse to the appellant. We found none. On the contrary, a comprehensive reading of the report clearly indicates that the inquiry officer was satisfied that the delay in submitting the documents and purchasing a scooter instead of a motor cycle should not have been visited with such drastic punishment of stoppage of salary altogether and yet compelling the appellant to render service without quid pro quo. Curiously, however, in a separate document recorded as finding, the inquiry officer has held that the appellant contravened Rule 10 (I) of the Conveyance Advance Rules which would constitute misconduct within the meaning of the expression in Rule 4 (I) (iii) of the 1975 Rules. The report and the findings are wholly irreconcilable and left us guessing about the approach of the inquiry officer, his conclusion and his finding. This aspect considerably troubled us because we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will expose the drawer to a liability to penal interest. And in this case, it has been so charged. Now if what is alleged as misconduct does not constitute misconduct not by analysis or appraisal of evidence, but per se under 1975 Rules the respondent had neither the authority nor the jurisdiction nor the power to impose any penalty for the alleged misconduct. An administrative authority who purports to act by its regulation must be held bound by the regulation. Even if these regulations have no force of law the employment under these corporations is public employment, and therefore an employee would get a status which would enable him to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulations. [Sukhdev Singh Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr.] If thus it is satisfactorily established that the employment under such Corporation like the respondent which is an instrumentality of the State, is public employment it is difficult to entertain the submission of Mr. Sinha which did prevail for some time in the days gone by that contract of public service cannot be specifically enforced. Mr. Sinha in this con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving reasons ? If reasons for an order are given, there will be less scope for arbitrary or partial exercise of power and the orders ex facie will indicate whether extraneous circumstances were taken into consideration by authority passing the order. This view in Vedachala Mudaliar v. State of Madras was approved by this Court in Bhagat Raja v. Union of India and Others. As pointed out earlier, the findings of the inquiry officer are merely his ipse dixit. No reasons are assigned for reaching the finding and while recapitulating evidence self-contradictory position were adopted that either there was no misconduct or there was some misconduct or double punishment was already imposed. Rule 27 (19) casts an obligation upon the inquiry officer at the conclusion of the inquiry to prepare a report which must inter alia include the findings on each article of charge and the reasons therefor. The report is prepared in contravention of the aforementioned rule. The situation is further compounded by the fact that the disciplinary authority which is none other than Committee of Management of the Corporation while accepting the report of the inquiry officer which itself was defective did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and discharged its duty under Rule 35. No attempt was made to urge that the three authorities had ever assigned reasons in support of their conclusions. For this additional reason also, the initial order of the Disciplinary Authority as well as the Appellate Authority are liable to quashed and set aside. To sum up the order of removal passed by Disciplinary Authority is illegal and invalid for the reasons:(i) that the action is thoroughly arbitrary and is violative of Art. 14, (ii) that the alleged misconduct does not constitute misconduct within the 1975 Rules; (iii) that the inquiry officer himself found that punishment was already imposed for the alleged misconduct by withholding the salary and the appellant could not be exposed to double jeopardy; and (iv) that the findings of the inquiry officer are unsupported by reasons and the order of the Disciplinary Authority as well as the Appellate Authority suffer from the same vice. Therefore, the order of removal from service as well as the appellate order are quashed and set aside. The last question then is to what relief the appellant is entitled ? Once the order of removal from service is held to be illegal and invalid and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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