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2013 (4) TMI 840 - SUPREME COURT

2013 (4) TMI 840 - SUPREME COURT - 2013 AIR 2098, 2013 (6) SCR 1124, 2013 (6) SCC 515, 2013 (6) SCALE 425 - Misappropriation/embezzlement by Headmaster of the school- Held that:- In the instant case, there is no allegation of misappropriation/embezzlement or any charge which may cast a doubt upon the integrity of the appellant, or further, anything which may indicate even the slightest moral turpitude on the part of the appellant. The charges relate to accounts and to the discharge of his functi .....

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iry was initiated against the appellant. The respondents terminated the services of the appellant and many other employees, as a large number of cases had been filed against the Management Committee without impleading the State of Maharashtra, though the same was a necessary party, as the school was a government-aided school. Rules 36 and 37 of the Rules 1981, which prescribe the procedure of holding an enquiry have been violated. The charges levelled against the appellant were entirely vague, i .....

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ich had been prejudiced, rather it had been the other way around. In such a fact-situation, it was not necessary for the Division Bench to permit the respondents to hold a fresh enquiry on the said charges and that too, after more than a decade of the retirement of the appellant. Appeal succeeds and is allowed. - CIVIL APPEAL NO. 3935 of 2013 - Dated:- 26-4-2013 - CHAUHAN, B.S (DR) KALIFULLA, FAKKIR MOHAMED IBRAHIM, JJ. J U D G M E N T Dr. B.S. Chauhan, J. 1. This appeal has been preferred again .....

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led against the appellant. 2. Facts and circumstances giving rise to this appeal are that: A. The appellant was appointed as Assistant Teacher in the school run by the respondents on 7.6.1965, and was promoted as the Head Master of the said school on 21.6.1979. B. A new Management Committee came into power in the year 2000, and began to raise allegations of misconduct against the appellant, as the appellant had certain apprehensions with respect to the eligibility of certain office bearers of th .....

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The Management Committee, vide resolution dated 4.3.2001 took a decision to hold disciplinary proceedings against the appellant as per the provisions of Rule 36 of the Rules 1981, and in pursuance thereof, a chargesheet dated 17.5.2001 containing 12 charges of misconduct, was served upon the appellant. The appellant vide letter dated 1.7.2001, submitted his clarifications with respect to the said charges that had been levelled against him. E. An Enquiry Committee consisting of two members inste .....

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, upon reaching the age of superannuation, the appellant stood retired on 30.9.2002. G. The Tribunal vide judgment and order dated 19.10.2002 held, that none of the charges levelled against the appellant stood proved, and that the enquiry had not been conducted according to the Rules 1981. Thus, the termination order against the appellant was quashed. H. Aggrieved, the respondents-management filed Writ Petition No.1849 of 2003 before the High Court, and the learned Single Judge decided the said .....

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Shri C.U. Singh, learned senior counsel appearing for the appellant, has submitted that the charges have been found to be vague, and that the enquiry was conducted in violation of the statutory Rules 1981, and further that none of the charges reflected embezzlement or mis-appropriation, and cast no doubt upon the integrity of the appellant whatsoever. As the appellant stood retired on 30.9.2002, the question of holding a fresh enquiry in 2011 could not arise. The court does not lack competence t .....

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Per contra, Shri Braj Kishore Mishra, learned counsel appearing for the respondents, has submitted that a person cannot be allowed to go scot-free simply because he has retired. An enquiry can be conducted against him, and he can be punished by withholding either full or part of his pension. No fault can be found with the impugned judgment and thus, the appeal is liable to be dismissed. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the record .....

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delinquent employee who has retired on reaching the age of superannuation. In case the punishment is set aside: 7. It is a settled legal proposition that, once the Court set asides an order of punishment on the ground, that the enquiry was not properly conducted, the Court should not severely preclude the employer from holding the inquiry in accordance with law. It must remit the concerned case to the disciplinary authority, to conduct the enquiry from the point that it stood vitiated, and to co .....

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C 1074; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls & Ors., (2002) 10 SCC 293; U.P. State Spinning C. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S. Sandhu, Ex-Inspector AIR 2009 SC 161). Enquiry at belated stage: 8. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In th .....

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rges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is infact in the interest of clean and honest administration, .....

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906; The Secretary, Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR 2012 SC 2250; and Chairman, LIC of India & Ors. v. A. Masilamani, JT (2012) 11 SC 533). Enquiry - on vague charges : 9. In Surath Chandra Chakravarty v. The State of West Bengal, AIR 1971 SC 752 this Court held, that it is not permissible to hold an enquiry on vague charges, as the same do not give a clear picture to the delinquent to make out an effective defence as he will be unaware of the exact nature of th .....

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inciple which is one of the specific contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. (Emphasis added) 10. Where the chargesheet is accompanied by the statement of facts .....

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quiry stands vitiated, as having been conducted in violation of the principles of natural justice. Evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair-play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent kne .....

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amin Bank & Anr., (2011) 14 SCC 379). 11. The purpose of holding an enquiry against any person is not only with a view to establish the charges levelled against him or to impose a penalty, but is also conducted with the object of such an enquiry recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating his stand, and hence result in his exoneration. Therefore, fair action on the part of the authority concerned is a paramo .....

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IR 1978 SC 1109; Ramesh Chandra Sharma v. Punjab National Bank & Anr., (2007) 9 SCC 15; and UCO Bank & Anr. v. Rajinder Lal Capoor, AIR 2008 SC 1831. 13. In State of Assam & Ors. v. Padma Ram Borah, AIR 1965 SC 473, a Constitution Bench of this Court held that it is not possible for the employer to continue with the enquiry after the delinquent employee stands retired. The Court observed:- According to the earlier order of the State Government itself, the service of the respondent ha .....

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b v. Khemi Ram, AIR 1970 SC 214, this court observed: There can be no doubt that if disciplinary action is sought to be taken against a government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final or .....

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, follows that the order of dismissal passed thereafter was also a nullity. 16. In Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors., AIR 1999 SC 1841, this Court observed: … There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in .....

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the financial loss from an employee after his retirement from service. This Court approved such a course observing that in the case of retirement, master and servant relationship continue for grant of retrial benefits. The proceedings for recovery of financial loss from an employee is permissible even after his retirement and the same can also be recovered from the retrial benefits of the said employee. 18. Thus, it is evident from the above, that the relevant rules governing the service conditi .....

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esaid legal propositions. The following charges were framed against the appellant: (a) Charge No.1:-The first respondent did not submit dead stock verification report in spite of several letters. (b) Charge No.2:-The first respondent did not submit the documents such as cash books, ledgers and voucher files in spite of demands made by the management. (c) Charge No.3:- relates to not calling School Committee meeting and causing loss of ₹ 48851/- as no timely approval was obtained for that e .....

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mittee on the ground that he had challenged the election of the office bearers before the Joint Charity Commissioner, Latur even though there was no stay/injunction. (g) Charge No.7:- The first respondent did not attend any of the 11 meetings of the Managing Committee in the capacity as a Head Master. (h) Charge No.8:- The first respondent did not submit explanation regarding his teaching workload though asked for by the management as per letter No. S/167 dated 11.12.2000. (i) Charge No.9:- The .....

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t as to his activities during two days on duty leave in the office of Education Officer (Secondary) Solapur and the Deputy Director of Education, Pune Region, Pune. The charges were found proved and punishment was imposed. 20. The Tribunal examined all the issues involved, and recorded its specific findings as under: The charge No.11 is in respect of excessive telephone bills. The telephone bill for the academic year 1999- 2000 is ₹ 3931/-. According to Management this is excessive bill. T .....

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#8377; 3931/- for a High School during a year cannot be said to be excessive particularly when many of the calls are made to Pune and Thane. These calls have properly been explained that Writ petition was filed against the school and these calls were made to the Advocate concerned in connection with the Writ Petition. Calling such an explanation on every call by the Management to the Head Master is nothing but over victimizing or interference of Management in day-to-day business of the school. x .....

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rge No.2 is regarding the Registers and journals regarding school fees, voucher files etc. The accounts of school are audited by the authorized auditor. Under these circumstances, calling these record seems to be only for finding loop holes. This is a sort of interference of the Management in day-to-day work of the school, which is unwarranted. In spite of this, the explanation shows that there is sufficient compliance of direction and there is no insubordination. (iii) Charge No.3, is not calli .....

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e. As such when the Management has directly accepted the budget and budget proposals, this charge ought not to have been framed at all. xx xx xx xx (vii) Charge No.7, is in respect of not attending the Management council meeting. This charge is also purely technical. The explanation of the appellant is that intimation of meeting was given by the Management at the 11th hour before few hours of the meeting without providing agenda of the meeting…. The explanation needs sympathetic considera .....

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cceptable. In the conclusion, I hold that the evidence on record is not sufficient to hold the appellant guilty of the charges. The net result of the scrutiny of the proceedings is that the inquiry seems to have been initiated on very technical flaws which lead to only conclusion that it was pre-determined and pre-judicial inquiry. As explained above, there is no sufficient proof on record to hold that the charges are proved. 21. The Tribunal, as well as the learned Single Judge of the High Cour .....

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stated that an inquiry committee should have minimum three members, one representative from the Management committee, one to be nominated by the employees from amongst themselves, and one to be chosen by the Chief Executive Officer, from amongst a panel of teachers who have been awarded National/State awards. In the instant case, there was only a two member committee. The procedure prescribed under the Rules is based on the Principles of Natural Justice and fair play, to ensure that an employee .....

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y not one where a punishment has been set aside only on a technical ground, that the inquiry stood vitiated for want of a particular requirement. Thus, in light of such a fact situation, the Division Bench has committed an error by giving liberty to the respondents to hold a fresh enquiry. 23. The Division Bench after examining the case, held as under: (i) If there was defect found in the manner in which the departmental enquiry was held, liberty should have been given to the management to hold .....

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ould have to make payment of the full salary owed to the appellant, for the period between the date of termination of the appellant from service, till the date of his retirement. 24. The conclusion reached by the Division Bench that the Tribunal and the learned Single Judge had found that there was a defect in the manner in which the enquiry was held, and therefore there was no question of it recording a finding on merit to the effect that charges levelled against the appellant were not proved, .....

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f the appellant, or further, anything which may indicate even the slightest moral turpitude on the part of the appellant. The charges relate to accounts and to the discharge of his functions as the Headmaster of the school. The appellant has provided satisfactory explanation for each of the allegations levelled against him. Moreover, he has retired in the year 2002. The question of holding any fresh enquiry on such vague charges is therefore, unwarranted and uncalled for. 26. The Education Offic .....

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ided school. Rules 36 and 37 of the Rules 1981, which prescribe the procedure of holding an enquiry have been violated. The charges levelled against the appellant were entirely vague, irrelevant and unspecific. As per statutory rules, the appellant was not allowed to be represented by another employee. Thus, the procedure prescribed under Rule 57(1) of the Rules 1981 stood violated. No chargesheet containing the statement of allegations was ever served. A summary of the proceedings, alongwith th .....

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