Disciplinary Authority Must Afford Hearing Opportunity To Charged Officer Before Proceeding To Impose Major Penalty Like Dismissal From Service: SC

The Supreme Court observed that the Disciplinary Authority must afford an opportunity of hearing to the charged officer before proceeding to impose a major penalty like dismissal from service.

The Court observed thus in a civil appeal preferred by Delhi Transport Corporation against the judgment of the Delhi High Court dismissing the writ petition questioning the legality and validity of the judgment of Central Administrative Tribunal (CAT).

The two-Judge Bench of Justice Sandeep Mehta and Justice R. Mahadevan emphasised, “We find that firstly, there is a serious question mark on ex post facto approval by the Board to the show cause notice dated 15th April, 2009 issued by the CMD to the charged officer. It is a settled principle of administrative law that the Disciplinary Authority must indicate an independent application of mind to the findings in the enquiry report followed by opportunity of hearing to the charged officer and only thereafter, the order imposing a major penalty can be passed against the charged officer. Law is also well settled that the Disciplinary Authority must afford an opportunity of hearing to the charged officer before proceeding to impose the major penalty like dismissal from service. Neither of these two mandatory compliances were admittedly made by the Board.”

AOR Monika Gusain appeared on behalf of the appellant.

Factual Background -

A memorandum of charge was issued to the charged officer and a disciplinary enquiry was held by the Commissioner for Departmental Inquiries, Central Vigilance Commission who was appointed as the enquiry authority by the Chairman-cum-Managing Director (CMD). The Enquiry Officer conducted the enquiry and held seven out of the eight charges proved against the charged officer. A show cause notice was issued to the charged officer by the CMD. The charged officer approached the Tribunal for assailing the show cause notice on the ground that the CMD was neither the appointing authority nor the disciplinary authority of the charged officer.

The Tribunal directed the Enquiry Authority to first decide the question of competence of the Enquiry Authority to first decide the question of competence of the Enquiry Authority and thereafter, deal with the merits of the case. The charged officer was permitted to make a representation against the show cause notice. Accordingly, the charged officer submitted a detailed representation to the appellant-Corporation. The charged officer was to retire from the services of the appellant-Corporation on April 30, 2009. The Tribunal accepted the original application filed by the respondent and set aside the order passed by the CMD thereby, dismissing the respondent from service. Being aggrieved, the appellant Corporation approached the Apex Court.

The Supreme Court in view of the facts and circumstances of the case noted, “Furthermore, the agenda item which was circulated by the CMD for consideration of the Board (reproduced supra) clearly indicates that the Board was to take a decision in the matter while considering the facts of the case and the reply submitted by the charged officer in response to the show cause notice dated 15th April, 2009. However, other than giving a blind approval to the show cause notice and the agenda item albeit referring to the reply of the charged officer, the Board's Resolution dated 29th April, 2009 does not reflect any independent or objective application of mind by the members of the Board to the enquiry report either individually or collectively.”

The Court said that the very foundation of the impugned action i.e., the enquiry report suffers from a fatal lacuna which goes to the root of the matter thereby vitiating the proceedings and that the Enquiry Officer categorically noted that the prosecution neither listed nor produced any witness during regular hearing and that the prosecution case was closed with the consent of the Presenting Officer.

“This Court in the case of Roop Singh Negi v. Punjab National Bank and Others 2 categorically held that even in a case of ex parte enquiry, it is essential that the department must lead evidence of witnesses to bring home the charges levelled against the delinquent employee”, it also noted.

Furthermore, the Court emphasised that the enquiry report nowhere records that any document was admitted by the charged officer and since no evidence was led on behalf of the department in the enquiry proceedings, there is no escape from the conclusion that the enquiry report is based on no evidence whatsoever.

“Consequently, we are of the view that the Tribunal committed no error whatsoever while accepting the original application preferred by the respondent and the learned Division Bench of the High Court rightly refused to interfere in the judgment of the Tribunal”, it concluded.

Accordingly, the Apex Court dismissed the appeal.

Cause Title- Delhi Transport Corporation v. Ashok Kumar Sharma (Neutral Citation: 2024 INSC 564)

Appearance:

Appellant: AOR Monika Gusain, Advocates Avinash Ahlawat, Gyanvi, and Avi Dhankhar.

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