Having considered the aforesaid settled position in law that once an
employee has admitted to the charges and that there is no cogent material to
show that the admission of the charges was recorded under duress or force
or pressure and that the admission was unconditional and in unequivocal
terms, no fault can be found in the Inquiry Officer closing the inquiry
proceedings. In the present case the disciplinary authority on the basis of
the inquiry report which recorded the admission of the 1st respondent held
that the charges have been proved. In our view, there was nothing unlawful
on the part of the disciplinary authority proceeding on such admission
made by the 1st respondent to pass the order of dismissal considering the
seriousness of the charges.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2296 of 2002
Employees' State Insurance Corporation
Panchdeep Bhavan Kotla Road, New Delhi
vs
Shri A.V.Tungare R/O
JUDGMENT PRONOUNCED ON:
V. M.KANADE &
G. S. KULKARNI, JJ
Dated;14.3.2014
Citation;2014(5)MHLJ 219
What are the consequences of admission of charges by a delinquent
employee before the Inquiry Officer in a disciplinary inquiry and whether
after recording of such admissions, the inquiry can still proceed or can be
closed to submit a inquiry report is the moot issue which arises in the
present proceedings.
By the present petition under Article 226 of the Constitution of India,
2.
the Employees State Insurance Corporation challenges the judgment and
order dated 8.3.2002 passed by the Central Administrative Tribunal
Mumbai Bench in Original Application No.808 of 1994. By the impugned
Judgment the Central Administrative Tribunal has allowed the Original
Application filed by the
Respondent who was the employee of the
Employees State Insurance Corporation whereby the order of termination
of the 1st respondent's services is quashed and set aside. It is held that the
1st respondent would be entitled to 50% of the wages from the date of
dismissal from service up to the date of his reinstatement. It was further
directed that the petitioner would be at liberty to proceed against the 1 st
Respondent as per law.
The facts in nutshell are :
3.
The 1st respondent was in the service of the 1 st petitioner since the
year 1978. In the year 1990 the 1st respondent was working as Manager
Grade -1 at the local office of the 1 st petitioner Corporation at Akola.
Thereafter the 1st respondent was posted in Tamil Nadu Circle when the
charge sheet dated 23.5.1990 was issued to the 1 st respondent by the
petitioner. The statement of articles of charges contained 11 charges in
respect of various acts of the 1st respondent during the period 1.5.1984 to
1.9.1988 when the 1st respondent was posted at Akola in Nagpur Sub-
region. It was alleged that the various acts of commission and omissions
amounted to violation of rules under the CCS (Conduct) Rules, 1964 read
with the Employees State Insurance Corporation (Staff and Conditions of
Services) Regulations 1959. The statement of imputations of misconduct
was also furnished to the 1st respondent enumerating the basis and the
details of various charges. Further various documents in support of the
charges were also furnished to the 1st respondent.
4.
The 1st respondent filed his reply to the charge sheet and denied all
the charges. Shri S.R.Srinivasan the then Joint Regional Director (DE)
South Zone Madras was appointed as an Inquiry Officer to conduct the
inquiry under the said charge sheet. Shri. Srinivasan held a preliminary
inquiry at Nagpur where the 1st respondent states that the charges as
levelled against him were denied by him. After the first hearing held on
5.12.1990 Shri S.R.Srinivasan retired on superannuation. Therefore, by an
order dated 10.5.1991 issued by the 1st petitioner Shri H.P. Rane the Joint
Regional Director Sub-Regional office, Nagpur was appointed as the
Inquiry Officer. Shri.S.K.Noor Ahmed was appointed as the presenting
officer for the department to replace Shri S.R.Natrajanan who was earlier
appointed as the presenting officer. At the hearing of the inquiry, fixed on
23.9.1991 the 1st respondent expressed his inability to appear as he was on
The inquiry proceedings were therefore
leave on medical grounds.
adjourned to 6.1.1992 on which day the 1st respondent appeared and stated
that he has already denied all the charges at the hearing held on 5.12.1990.
At the said hearing, the 1st respondent also confirmed receipt of the copies
of the documents as relied upon by the department in support of the charges
as also inspection of the same was given after which the 1 st respondent
stated that he did not want call for any additional documents and that he did
not wish to produce any witness in support of his defence. A regular inquiry
was fixed on 21.7.1992 and the same was adjourned to 3.12.1992.
5.
On 3.2.1992 the 1st respondent appeared before the Inquiry Officer
and requested for engaging the services of Shri J.D.Barahate (Legal
Inspector) of the 1st petitioner Corporation as his defence Assistant. This
request of the 1st respondent was accepted by the Inquiry Officer and it was
indicated that the inquiry can commence as the initial formalities of
inspection of documents and furnishing copies thereof was over. At the said
hearing the defence assistant Shri J.D.Barahate made a submission that
though the 1st respondent had pleaded not guilty to all the 11 charges in the
charge sheet, the 1st respondent wanted to change his plea and now wants
to plead guilty to all the 11 charges, since on a second thought he was
satisfied that the substance in each of the charges was correct. The Defence
Assistant therefore, sought permission for changing the plea and for
pleading the guilty to all the 11 charges.
6.
In this regard, in the recording of the inquiry proceedings of
3.2.1992 all the 11 charges which were independently enumerated under
which the respondent made the following handwritten endorsement below
every charge :
“ I accept the charge “
S/d
(A.V.Tungare)
3.2.1992
The Inquiry Officer recorded that in view of the unconditional
admission of the charges, there would not be a necessity to go ahead with
the inquiry proceedings since all the charges stood proved in totality. The
Inquiry Officer asked the 1st respondent whether he had anything further to
to say by way of submission in writing.
Accordingly, a letter dated
3.2.1992 was submitted by the 1 st respondent as also signed by the defence
assistant addressed to the Joint Regional Director in charge Sub-Regional
ig
office, ESI Corporation Nagpur. The letter reads as under :
“ To,
The Joint Regional Director (I/O)
Sub Regional Office,
ESI Corporation,
NAGPUR.
Subject: Departmental Enquiry against me pending
before you.
Sir,
I have to submit that I have carefully gone through the charges No.1 to
11 levelled against me for holding departmental Enquiry against me for
misconduct and misbehaviour.
In this connection, I have to submit that the omissions and lapses
enumerated in the charge sheet were not deliberate on my part or with an
ulterior motive to gain something for me. They have occurred innocently during
the course of discharging my duties as a Manager for which I sincerely tender
my apology.
I voluntarily and unconditionally plead guilty for all the charges
levelled against me and humbly request you to kindly pardon me for the same. I
have further to submit that these omission and mistakes were occurred only
because of the mental disturbance on account of family problems.
Thanking you in anticipation,
I have to submit that my humble request of taking lenient view in
awarding the punishment in my case may kindly be conveyed to the Disciplinary
Authority for which act of kindness, I shall remain highly obliged.
Yours faithfully,
S/d
( A.V.Tungare )
MANAGER GRADE-I
S/d
( J.D.Barahate )
Dt.3.2.1992
Place:Nagpur
DEFENCE ASSISTANT “
The defence Assistant of the 1st respondent made oral submissions
that it is a fact that lapses occurred on the part of the 1st respondent.
However, all the lapses were on account of the disturbed mental condition
of the 1st respondent and he had committed the offences without
understanding the serious implications involved. It was further submitted
that because of the disturbed state of mind on account of certain domestic
problems, the 1st respondent was not having balance equilibrium of mind in
the result he committed the lapses for which he felt repented and was
seeking pardon having realized the mistakes he had committed. It was
further submitted by the defence Assistant that if the Corporation had been
subjected to any monetary loss on account of the lapses of the 1st
respondent he was ready to compensate the Corporation by making good
the relevant losses. It was stated that this request may be communicated to
the disciplinary authority as a special case with a request that this
submission may be kept in view while awarding the punishment if any. It
was further submitted that the lapses that were committed by the 1 st
respondent were not intentional and was made in a disturbed state of mind
and hence he was requesting for a minimum penalty that is prescribed
under the provisions of law and further submitted that he would be vigilant,
very faithful and very loyal and sincere in the performance of his duties
and will not give any room for any such complaint was also recorded in
the inquiry proceedings. The Inquiry Officer recorded that accordingly the
1st respondent was informed that on account of the fact that the 1 st
respondent had unconditionally and voluntarily pleaded guilty to all the
charges the inquiry is not required to be proceeded and that Shri Kumbhar
the Regional Director and Mr.P.N.Dharmadhikari the Audit Inspector who
were present as witnesses of the management were therefore, discharged.
The aforesaid recording of the inquiry proceedings dated 3.2.1992 was
duly signed by the 1st respondent and the defence Assistant and all others
who were present.
7.
The 1st respondent thereafter addressed a letter dated 29.5.1992 to
the Director General of the 1st petitioner stating that as regards the inquiry
report he had no comments to offer and requested to take a lenient view. By
a detailed order dated 7.7.1992 passed by the disciplinary authority, it was
recorded that the charges which were admitted were extremely serious. It
was recorded that there were no extenuating circumstances in this case and
that the 1st respondent was not a fit person to be retained in the service of
the 1st Corporation and hence the penalty of dismissal was imposed on the
8.
1st respondent.
The 1st respondent being aggrieved by the dismissal order dated
7.7.1992 preferred an appeal dated 25.8.1992 before the Chairman
Standing Committee of the ESIC in which the 1 st respondent inter alia
contended that the inquiry report had proceeded on a presumption that the
1st respondent had admitted all the charges levelled against him and that
from the inception he had denied all the charges and that the same were
wrongly framed against him. The 1 st respondent contended that the Inquiry
Officer had told him that if he did not plead guilty the inquiry will prolong
for years and that the charges were not serious and therefore the
disciplinary authority had not suspend the 1 st respondent and therefore, if
he pleaded guilty it would save the 1st respondent from further mental
harassment and torture and only a minor punishment would be imposed
against him. It was prayed that the order of dismissal be set aside and he be
reinstated in service.
9.
The Appellate authority by an order dated 1.6.1993 rejected the
appeal filed by the 1st respondent. The 1st respondent thereafter preferred a
Revision Petition under Regulation 22 of the Employees State Insurance
Corporation (Staff and Conditions of Service) Regulation, 1959 before the
Secretary, Government of India, Ministry of Labour.
By an order dated
17.12.1993 it was held that the Revision Petition was not maintainable.
10.
The 1st respondent in the aforesaid circumstances approached the
Central Administrative Tribunal, Mumbai Bench, by filing Original
Application No.808 of 1994 under Section 19 of the Administrative
Tribunals Act praying for a declaration that the 1 st respondent had not
pleaded guilty to the charges levelled against him and that the charge sheet
dated 23.5.1990, the Inquiry Officer's report dated 3.4.1992 were not
sustainable in law and that the Inquiry Officer had acted with bias and
prejudice in active connivance with the defence Assistant and hence the
order of dismissal and order of the appellate authority and the Revisional
authority were bad-in-law. The Central Administrative Tribunal by its
Judgment dated 20.10.2000 set aside the order of dismissal and subsequent
orders passed by the appellate authority and the Revisional authority and
remanded the matter to the disciplinary authority to examine whether there
was clear admission of guilt by the 1st respondent and whether it was not
obtained by conspiracy between the defence Assistant and the Inquiry
Officer with an assurance that a lenient view in awarding penalty shall be
granted. Against this judgment and order of the Central Administrative
The
Tribunal,Mumbai Bench, Mumbai cross Writ petitions were filed.
petitioners was aggrieved to the extent that the order of dismissal passed by
the disciplinary authority as confirmed by the appellate authority was set
aside. The 1st respondent was aggrieved to the extent that the Central
Administrative Tribunal directed the disciplinary authority to examine
whether there was clear admission of the guilt of the 1st respondent and to
test the allegation of conspiracy between the defence Assistant and the
Inquiry officer.
A Division Bench of this Court by its judgment and order dated
11.
23.4.2001 set aside the judgment and order dated 20.10.2000 passed by the
Central Administrative Tribunal and restored Original Application No.808
of 1994 to the file of the Central Administrative Tribunal directing that the
same be disposed in accordance with law after hearing the parties. In
pursuance thereto, the Central Administrative Tribunal by the impugned
judgment dated 8.3.2002 adjudicated the Original Application as filed by
the 1st respondent whereby the Original Application
filed by the 1st
respondent was allowed. The Central Administrative Tribunal set aside the
order dated 7.7.1992 dismissing the 1st respondent from service and held
that the 1st respondent was entitled for 50% wages from the date of
dismissal from service till the reinstatement.
12.
The present petition was admitted by an order dated 13.9.2002 and
by an interim order implementation of the impugned judgment and order of
the Central Administrative Tribunal was stayed.
During the pendency of
the present writ petition, the 1st respondent had attained the age of
superannuation on 31.12.2011.
We have heard Mr.Suresh Kumar learned counsel appearing for the
13.
petitioner and Mr.Ramesh Rammurthy learned counsel appearing for the 1 st
respondent. With the assistance of the learned counsel for the parties, we
have gone through record of the present proceedings.
14.
Learned counsel for the petitioner has submitted that the Central
Administrative Tribunal has erred in allowing the Original application filed
by the 1st respondent when it was an admitted position that
the 1 st
respondent had accepted/agreed to all the charges by a statement made in
writing before the Inquiry Officer. He further submits that the 1 st
respondent further by a letter dated 3.2.1992 addressed to the Regional
Director
requested to take a lenient view on the ground that he has
voluntarily and unconditionally pleaded guilty to all the charges.
He
submits that not only this but the 1st respondent thereafter by a letter dated
29.5.1992 addressed to the Director General of the 1 st respondent again
requested to take a lenient view which further compounded the voluntary
admission of guilt in respect of all the charges as levelled against him.
Learned counsel for the petitioner submits that the reliance on behalf of
the 1st respondent on the judgment of the Supreme Court in the case of
as observed by the
Jagdish Prasad Saxena vs.State of Madhya Bharat
Central Administrative Tribunal was misplaced as the same had no
application in the facts of the present case. He further submits that on
merits
the Central Administrative Tribunal could not have come to a
conclusion that the charges against the 1st respondent are not proved. He
submits that there is an admission made by the 1st respondent before the
Learned counsel for the petitioner has relied upon the following
15.
Central Administrative Tribunal.
Inquiry Officer and his subsequent conduct has not been considered by the
judgments in support of his submission that once the charges are admitted
by a delinquent employee, a different stand cannot be taken and that as a
logical consequence of the admission of charges, necessarily no further
inquiry is required to be undertaken by the disciplinary authority :-
“Additional District Magistrate (City) vs Prabhakar Chaturdevi & anr” 2, Delhi Transport
Corporation vs Shyam Lal3 , Chairman & Managing Director vs Goparaju
Sri
4
5
Prabhakar Hari Babu , Manoj H.Mishra vs Union of India , Channabasapa Basappa
Happali vs The State of Mysore6 , Kolhapur Zilla Sahakari Dudh Utpadak Sangh
vs.Shivaji Shankar Pharakate & anr.7, Canara Bank vs H.T.Koli & anr.8
1
2
3
4
5
6
7
8
AIR 1961 Supreme Court 1070
(1996) 2SCC 12
(2004) 8 SSC 88
(2008) 5 SCC 69
(2013) 6 SCC 313
1971 (1)SCC 1
2009 (Supp) Bom.C.R.716
(2000) III LLJ 277 Bom
On the other hand, Learned counsel appearing on behalf of the 1 st
16.
respondent would submit that the impugned judgment and order passed by
the Central Administrative Tribunal does not call for any interference in the
present proceedings in as much as the same has been passed in consonance
with the observations of the Supreme court in case of Jagdish Prasad
Saxena vs.State of Madhya Pradesh (supra). Relying upon this judgment
of the Supreme Court, he submits that the Inquiry Officer on the basis of
the said admissions ought not to have closed the inquiry and ought to have
proceeded with the inquiry proceedings so as to ascertain whether the
management proves the various charges as levelled against the 1st
He submits that in this case the 1 st
respondent in the charge sheet.
respondent was influenced by the defence Assistant and the Inquiry Officer
to agree to the charges in the inquiry proceedings held on 3.2.1992. He
submits that the disciplinary authority and the appellate authority has failed
to consider the grievance of the 1st respondent and circumstances under
which admissions of the charges came to be made by the 1 st respondent. He
would submit that there was no prejudice whatsoever caused to the
petitioners if the petitioners on granting reinstatement proceed against the
petitioner to hold a departmental inquiry as per law to establish the charges.
Having considered the rival submissions of the parties we may note
17.
that the indisputed facts are that a charge sheet dated 23.5.1990 containing
11 charges was issued to the 1st respondent. An Inquiry Officer was duly
appointed to conduct a departmental enquiry. All the documents in support
of the charges were duly furnished to the 1st respondent. An opportunity
was given to the 1st respondent to represent his case before the Inquiry
Officer. The 1st respondent also appointed Shri J.D.Barahate as his defence
Assistant. In the inquiry proceedings held on 3.3.1992 the 1st respondent
submitted an unconditional acceptance of all the charges and pleaded for a
lenient view to be taken in the matter against him. Furthermore, the 1 st
respondent also submitted a letter dated 3.2.1992 stating that he has
voluntarily and unconditionally pleaded guilty to all the charges levelled
against him and reiterated that he be pardoned for the same. The 1 st
respondent further submitted a letter to the Director General dated
29.5.1992 in which the 1st respondent thanked the Director General for
relieving him of the botheration of the departmental inquiry and stated that
he has no comments to offer in respect of the inquiry report and made a
request to take a lenient view in view of the reasons as stated by him in the
said letter. These circumstances clearly go to show that admissions of the
charges were voluntary and not due to any undue influence on the part of
the defence Assistant and the Inquiry Officer. However, contrary to the said
position in the Memorandum of Appeal filed against the order of dismissal
the 1st respondent for the first time took a stand that he had admitted to the
charges as he was told to do so by his defence Assistant and the Inquiry
Officer. It is noteworthy that the 1st respondent at no point of time either in
the enquiry proceedings or before filing of the appeal made any grievance
about the alleged collusive conduct of the defence assistant and the inquiry
officer to induce him to admit the charges.
No grievance of any duress,
force or presence was ever made. In fact, the 1st respondent's letters dated
3.2.1992 and 29.5.1992 completely nullify such a plea as taken by the 1 st
respondent before the Appellate Authority.
We do not think it was
permissible in law for the 1st respondent to adopt such a contrary position
to retract from the admissions as made before the Inquiry Officer and the
same was a clear after thought. Admissions made before the Inquiry Officer
would not loose their efficacy and relevance for the purpose of the wheels
of the inquiry set into motion unless there are acceptable reasons that the
same are not voluntary or are under force or duress.
In this context, to appreciate the consequence of admission of a fact
the general position in law can be seen by referring to the provisions of
Section 58 of the Evidence Act. Section 58 deals with the facts which are
admitted and hence not required to be proved. It provides that no fact need
to be proved in any proceedings which the parties thereto or their agents
agree to admit at the hearing or which before the hearing, they agree to
admit by any writing under their hands, or which by any rule of pleading in
force at the time they are deemed to have admitted by their pleadings. The
proviso to this section states that the Court may in its discretion, require the
facts to be admitted to be proved otherwise than by such admissions.
The 1st respondent in writing had admitted to the charges and hence
as a legal requirement such admission becomes relevant. The charges
which are admitted by the 1st respondent were not required to be proved
and the inquiry can be said to be rightly closed. Pertinently the 1 st
respondent agreed to close the enquiry.
It is necessary to advert to the following judgments of the Supreme
18
Court :
The Judgment of the Supreme Court in the case of Additional
District Magistrate (city) Agra vs Prabhakar Chaturdevi & anr (supra)
dealt with a case arising out of misappropriation of money by an employee
who had admitted the fact in writing. After a disciplinary inquiry, the
employee was dismissed from service. His statutory appeal also failed. In a
Writ petition filed by the employee before the High Court of Judicature at
Allahabad, the same was allowed by the learned Single Judge on the
ground that the authorities had not given adequate opportunity to the
employee to defend as he was not permitted to examine witnesses nor he
was supplied the documents, the dismissal order was quashed and set aside
and the employee was directed to be reinstated with full back wages. In a
challenge to the said order of the Allahabad High Court before the Supreme
Court, the Supreme Court observed as under :
“4. ........................in our view, the High Court has erred in ignoring the salient
features of the case namely that Respondent himself by his statement dated
14.12.1984 admitted to have received an amount of Rs.21,000/- and odd and
which could not be deposited by him alongwith his associate on account of their
carelessness and fault. It is difficult to appreciate how the said statement could
be said to have been brought about by any coercion as tried to be submitted on
behalf of the respondent. But even apart from that the order sheet of the Enquiry
19.
officer clearly shows that Respondent Prabhakar as well as Sajan Kumar had
submitted that they have not to give any documentary or oral evidence and that
is how their evidence was closed. Under these circumstances the subsequent
request by Respondent to examine four more witnesses was rightly considered
by the Enquiry Officer to be an afterthought and accordingly such request was
rightly rejected. In fact, on account of the clear admission contained in writing
given by Respondent on 14.12.1984 the charge against him stood proved on
admission and the only question that remained to be considered was about the
nature of punishment to be imposed on him.” (emphasis supplied)
In the case of Channabasappa Basappa Happali vs .State of
Mysore 1 the Supreme Court has held as under :
4.
“ The pleas of the petitioner are quite clear. In fact he admitted all the
relevant facts on which the decision could be given against him and therefore it
cannot be stated that the enquiry was in breach of any principle of natural
justice. At an enquiry facts have to be proved and the person proceeded against
must have an opportunity to cross-examine witnesses and to give his own
version or explanation about the evidence on which he is charged and to lead
his defence. In this case, the facts were two-fold that he had stayed beyond the
sanctioned leave and that he had proceeded on a fast as a demonstration against
the action of the authorities and also for what he called the upliftment of the
country etc. These facts were undoubtedly admitted by him. His explanation
was also there and it had to be taken into account. That explanation is obviously
futile, because persons in the police force must be clear about extension of leave
before they absent themselves from duty. Indeed this is true of everyone of the
services, unless of course there are circumstances in which a person is unable to
rejoin service, as for example when he is desperately ill or is otherwise
reasonably prevented from attending to his duties. This is not the case here. The
petitioner took upon himself the decision as to whether leave could be extended
or not and acted upon it. He did go on a fast. His later explanation was that he
went on a fast for quite a different reason. The enquiry officer had to go by the
reasons given by him. On the whole therefore the admission was one of guilty in
so far as the facts on which the enquiry was held and the learned Single Judge in
the High Court was, in our opinion right in so holding. “
(emphasis supplied)
1
1971 (1) SCC 1
In the case of Delhi Transport Corporation vs. Shyam Lal
20.
(supra) their Lordships of the Supreme Court have observed as under :
The judgment of the Supreme Court in Chairman and Managing
21.
“7. We find that the Tribunal's conclusions are prima facie not correct. The
statement made by the passenger who had paid excess money to the checking
officer is not in the nature of hearsay evidence. Additionally, the effect of the
admission regarding guilt as contained in the letters dated 13.1.1989 and
24.2.1989 have not been considered in the proper perspective. It is a fairly
settled position in law that admission is the best piece of evidence against the
person making the admission. It is however, open to the person making the
admission to show why the admission is not to be acted upon. “
(emphasis supplied)
Director vs Goparaju Sri Prabhakar Haribabu (supra) dealt with an
issue arising out of disciplinary proceedings. A charge sheet was issued to
the delinquent employee, for absence without leave for a period of 53 days,
the employee had admitted the charges and promised to be regular. In the
disciplinary proceedings the employee had accepted his guilt whereupon
the inquiry proceedings were closed recording the admission of the charges
as made by the employee. The disciplinary authority upon consideration of
the inquiry report held the employee guilty of all the charges and ordered
removal from service. In this context,
the Supreme Court observed as
under :
“16.
He in his explanation in answer to the charge sheet pleaded guilty
admitting the charges. In terms of Section 58 of the Evidence Act, charges
having been admitted were not required to be proved. It was on that premise that
the enquiry proceedings was closed. Before the enquiry officer,he did not submit
the explanation of his mother being ill. He despite opportunities granted to
report to duty, did not do it. He failed to explain even his prior conduct.”
18.
It was observed that judicial admissions can be made the foundation of
the rights of the parties.
In a recent judgment of the Supreme Court in the case of Manoj
22.
19.
A subsequent explanation before another authority, which had not been
pleaded in the departmental proceedings, cannot by itself be a ground to hold
that the principles of natural justice had not been complied with in the
disciplinary proceedings.
(emphasis supplied)
H.Mishra vs Union of India (supra) Their Lordships of the Supreme
Court in para 35 have observed as under :
“35. In our opinion, the learned Single Judge and the Division Bench have not
committed any error in rejecting the submissions made by the learned counsel
for the appellant. We are not inclined to examine the issue that the actions of
the appellant would not constitute a misconduct under the Rules. In view of the
admissions made by the appellant, no evidence was adduced before the enquiry
officer by either of the parties. Once the enquiry officer had declined to accept
the conditional admissions made by the appellant, it was open to him to deny the
charges. But he chose to make an unequivocal admission instead of reiterating
his earlier denial as recorded in preliminary hearing held on 26-12-1994. The
appellant cannot now be permitted to resile from the admission made before the
enquiry officer. The plea to reopen the enquiry has been rejected by the appellate
as well as the revisional authority.”
(emphasis supplied)
23.
Learned counsel on behalf of the petitioner is also justified in relying
on the judgment of the learned Single Judge of this Court Mr.Justice
R.M.Lodha, (as His Lordship then was) in case of Canara Bank vs
H.T.Koli. (supra). Dealing with a case arising out of admission of the guilt
in para 6,7 and 8 the following observations were made:
“ 6.
Once the defence of the employee that his statement made on May 20,
1982 and May 21, 1982 was recorded under duress or force or pressure is not
accepted, the admission of the employee in unequivocal term proves his
misconduct. I have already observed above that the facts and circumstances of
the case do not justify the conclusion that the statement made by the employee
on May 20, 1982 and May 21, 1982 was not voluntary or was recorded under
pressure or force and therefore, the only conclusion that can be drawn on the
basis of the employee's admission is that the charge against him is proved.
7.
Thus, the finding recorded by the Industrial Tribunal that the charge
against the employee is not proved cannot be sustained.
8.
Looking to the serious and grave nature of misconduct of fraud and
forgery committed by the employee defrauding the employer-bank and causing
substantial monetary loss, it cannot be said that the punishment of dismissal
inflicted by the employer-bank was unjustified or shockingly disproportionate to
the charge which has been held proved. “
24.
Learned counsel for the petitioner is also justified in relying upon a
similar view taken by the learned Single Judge of this Court by Dr.Justice
D.Y.Chandrachud (as His Lordship then was) in the case Kolhapur Zilla
Sahakari Dudha Utpadak Sangh vs Shivaji Shankar Pharakate & anr
(supra) wherein the delinquent employee had admitted the charges where
the Industrial Court despite admission of the charges had ordered
reinstatement, it was observed in paras 9 and 10 as under :
“9. The record of the enquiry discloses that the workmen were permitted to be
defended by an Advocate. After the enquiry had commenced upon the issuance
of a charge sheet, the evidence of the managements' witness, the Managing
Director of the petitioner, was recorded on 11th June, 1990. On 27th February,
1991 proceedings took place in the course of the enquiry. The Enquiry Officer
noted that the workmen had submitted a representation accepting the allegation
of misconduct contained in the charge sheet dated 8 th August, 1989. The
Enquiry Officer posed several questions to the workmen to verify as to whether
the representations were addressed by the workmen; whether they were
voluntary or otherwise and whether the allegations of misconduct were accepted
to the workmen. To this the answer was in the affirmative. In the letter addressed
by the First respondent to the Enquiry Officer, the incident which took place on
1st April 1989 was not denied. There was an acceptance of the fact that the
workmen were apprehended when they had filled a privately owned tanker on
the night of the date of the incident but it was stated that this was all done at the
behest of a superior. The workmen prayed that they may be reinstated in
service. “
10.
Now there can be no dispute about the fundamental principle of law that
an admission of misconduct, in order to be acceptable as a ground for holding
that the charge is proved, must not be qualified or conditional. The record of the
enquiry dated 27th February 1991 would in fact reveal that the incident which
took place on 1st April 1989 was not disputed. The presence of the workmen at
1.30 a.m. on 1st April 1989, the presence of a private tanker which was brought
into the premises of the chilling plant and the role of the workmen in actually
assisting and facilitating the filling up of 10,000 litres of milk in the tanker is not
in dispute. It must be noted that it was not the defence of the workmen that the
incident did not take place or that they were falsely implicated. The defence of
the workmen at all material times was that they had acted thus in compliance
with the direction of the superior. In these circumstances, the Enquiry Officer
made due enquiries with the workmen on whether the statement was voluntarily
furnished and it was only upon his satisfaction that this was so that the enquiry
was closed. The Labour Court noted that in the enquiry proceedings both the
complainant workmen as well as their Advocate put down their signatures.
Once this was the case, the Labour Court was justified in coming to the
conclusion that the charge of misconduct stood proved. “
(emphasis supplied)
Having considered the aforesaid settled position in law that once an
25.
employee has admitted to the charges and that there is no cogent material to
show that the admission of the charges was recorded under duress or force
or pressure and that the admission was unconditional and in unequivocal
terms, no fault can be found in the Inquiry Officer closing the inquiry
proceedings. In the present case the disciplinary authority on the basis of
the inquiry report which recorded the admission of the 1st respondent held
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that the charges have been proved. In our view, there was nothing unlawful
on the part of the disciplinary authority proceeding on such admission
made by the 1st respondent to pass the order of dismissal considering the
seriousness of the charges.
26.
In this background, there is merit in the submissions which are
urged on behalf of the petitioner that the Central Administrative Tribunal
could not have set aside the order of dismissal as passed by the disciplinary
authority. There is also merit in the submission made by learned counsel
appearing on behalf the petitioner that the judgment in case of Jagdish
Prasad Saxena vs State of Madhya Bharat (supra) was not applicable in
the facts of the present case on which much reliance was placed by the
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learned counsel appearing on behalf of the 1 st respondent. In this judgment,
the Supreme Court was dealing with a case where a charge sheet was
issued to the delinquent employee on the basis of the alleged admissions he
had made in the course of inquiry directed against some other government
servant in connection with commission of certain offences, later on the
delinquent employee was removed from service on the strength of the
alleged admission without holding a formal inquiry as required by the
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Service Rules. In these circumstances, it was held by the Supreme Court
that the statement made by the delinquent employee did not amount to
unambiguous or clear admission of his guilt and failure to hold a formal
inquiry constituted a serious infirmity in the order of dismissal passed
against him.
It is in this context their Lordships of the Supreme Court
made the following observations in para 11:
“11. It is true that the appellant specifically admitted during the course or the
previous enquiry that illegal liquor had been delivered to the contractor, and that
he had given the key of the receiver to Narona. It is on the strength of those
admissions that the High Court took the view that the appellant had substantially
admitted his guilt and so there was really no need for holding a formal enquiry
against him after the charge sheet was supplied to him. In this connection it is
necessary to remember that the previous enquiry was not directed against the
appellant as such, and he was certainly not in the position of an accused in the
said enquiry. In fact, as we have already indicated, the result of the said enquiry
was that the appellant was absolved from any complicity in the commission of
the offence, and the only criticism made against him was that he was slack in his
supervision, that is why he was transferred. In such a case, even if the appellant
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27.
had made some statements which amounted to admission it is open to doubt
whether he could be removed from service on the strength of the said alleged
admissions without holding a formal enquiry as required by the rules. But apart
from this consideration, if the statements made by the appellant do not amount
to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry
would certainly constitute a serious infirmity in the order of dismissal passed
against him. .........”
It is therefore, clear that the facts in the case of Jagdish Prasad
Saxena (supra) were quite different in as much as the employee was
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proceeded without a departmental inquiry and hence the ratio in the said
28.
judgment would not be applicable in the facts of the present case.
It is noteworthy that the judgment in the case of Jagdish Prasad vs
State of Madhya Pradesh (supra) was considered by the Supreme Court
in case of Channabasappa Basappa Happali vs.The State of Mysore (supra)
and it was held that the Judgment was clearly distinguishable.
29.
In view of the aforesaid discussion, we are of the view that the
Central Administrative Tribunal is in a clear error in directing reinstatement
of the 1st respondent with 50 % back wages and permitting the disciplinary
inquiry on reinstatement by allowing the original Application filed by the
1st respondent. The findings of the Central Administrative Tribunal are also
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30.
contrary to the aforesaid legal position and hence cannot be sustained.
In the result, Writ Petition is allowed. The judgment and order
dated 8.3.2002 passed by the Central Administrative Tribunal, Mumbai
Bench, Mumbai in O.A.No.808 of 1994 is quashed and set aside. Rule is
(V.M.Kanade,J)
(G.S.Kulkarni, J)
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No order as to costs.
made absolute in terms of prayer clause (a).
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