BHARAT PETROLEUM CORPORATION LIMITED AND OTHERS versus ANIL PADEGAONKAR on 17 March 2020

1. The two appeals have been preferred by the appellant-Corporation and the respondent-employee respectively, to the extent thatthey are aggrieved by the common order in a writ appeal preferred bythe Corporation. They have thus been heard together and are beingdisposed by a common order.

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2. The Corporation is aggrieved to the extent the impugned ordersets aside the order of punishment on the ground that the charge-sheethad not been issued by the disciplinary authority. The employee isaggrieved by the grant of liberty to the Corporation for issuance of freshcharge-sheet, and denial of back wages while granting reinstatement.In the interregnum, the employee has attained the age of superannuationin February 2018.

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3. A charge-sheet was issued to the employee on 31.12.1993 bythe Deputy General Manager (Aviation) (hereinafter referred to as “the H

ADGM”) while he was working on the post of Aviation Officer at theGeneral Aviation Service Station, Gwalior, in the management cadre inJob Group “A”. It was alleged that fresh sand particles had been foundin the all 10 fuel tanks after his duty hours in the ‘C’ shift ended whilethe earlier inspection during the ‘B’ shift had found it to be free of dirtand water except for minor traces of water in tank nos. 3 and 9. WhileBthe departmental proceedings were pending, a fresh charge-sheet wasissued to the employee on 27.09.1994 with regard to absence from dutyon 13.08.1994. The employee was therefore charged with having actedin a manner prejudicial to the interests of the Corporation and negligencein the performance of duty including malingering or slowing down ofCwork under Clause 6 & 10 of Part III-A of the Bharat PetroleumLimited Conduct, Discipline and Appeal Rules for Management Staff,1976 (hereinafter referred to as ‘the Rules’). Pursuant to a domesticinquiry, the inquiry officer returned a finding of guilt on 06.01.1995. Theemployee was furnished a copy of the report and after considerationof his reply, the Director (Marketing) under Part III-B (2)(f) of theDRules by a common order dated 21.05.1997 ‘discharged’ the employeefrom service. The departmental appeal under the Rules was rejectedby a reasoned order by the Chairman on 05.10.1998.

4. The employee assailed the orders in a writ petition. The learnedSingle Judge, with regard to the first charge-sheet, held that theEpunishment of ‘dismissal’ stood vitiated because the Functional Directoralone was competent to issue the charge-sheet. The second charge-sheet though issued by the disciplinary authority, required reconsiderationas the punishment was held disproportionate to the charge, necessitatingan order of remand. The Corporation was granted liberty in appeal toFissue a fresh charge-sheet with regard to the first charge and to passa lesser order of punishment with regard to the second charge. Thoughreinstatement was ordered, the question of back wages was left forconsideration subject to the outcome of such fresh proceedings.

5. Shri. J.P. Cama, learned senior counsel appearing on behalf Gof the Corporation, submitted that the employee was not ‘dismissed’but ‘discharged’ from service. The DGM being the functional GeneralManager and Head of the Department, the highest officer on the spot,was fully competent under the manual for delegation of authority dated15.12.1987 to issue charge-sheet for a punishment lesser than dismissalunder serial 1(a) of Schedule I under Part III of the Rules. The manualHfor delegation of authority had never been withdrawn or superseded even after amendment of Rule 3(g) on 22.08.1991 with regard to thedefinition of Disciplinary Authority in the Rule. The misconduct on thepart of employee, considering his place of posting at an air force stationwas serious in nature. There was no infirmity in the conduct of thedepartmental proceedings. The employee had since reached the ageof superannuation in February, 2018. Continuance of the proceedingsunder the Rules was an impossibility in absence of any provisions forthe same.

6. The employee did not take any objection in his reply to thecharge-sheet or in the memo of appeal that the DGM was notcompetent to issue the same. Relying on H.V. Nirmala vs. KarnatakaState Financial Corporation, (2008) 7 SCC 639, it was submitted thatthe objection with regard to the lack of jurisdiction ought to have beenraised at the very first instance. The employee took this objection forthe first time before the High Court in the writ petition. In any eventthe employee has failed to demonstrate any prejudice to him thereby,assuming though not admitting any lapse. Reliance was also placedon S.R. Tewari vs. Union of India and Another, (2013) 6 SCC 602,that there could be no standardised yardstick with regard toproportionality of punishment which would depend on the facts of eachcase.

7. Shri Puneet Jain, learned counsel for the employee, submittedthat dismissal was a major punishment under Part III-B (2)(f) of theRules. The Corporation themselves opined that the charges were veryserious. The procedure followed was that for a major penalty. The mereuse of the word ‘discharge’ in the order of punishment therefore couldnot be determinative. The High Court has committed no error in holdingthat the employee had been dismissed from service pursuant to a charge-sheet issued without jurisdiction. The view taken by the High Court thatafter amendment of the term disciplinary authority in Rule 3(g) by theBoard of Directors on 22.08.1991, the manual for delegation ofauthorities dated 15.12.1987 had lost its relevance, does not call for anyinterference. The Functional Director alone was competent to issuecharge-sheet for dismissal under Sr.1(b) of Schedule I under Part IIIof the Rules. The charge-sheet issued by the DGM has rightly beenheld to be without authority, thus vitiating the punishment. The Rulesmake a distinction between the disciplinary authority in Rule 3(g) andcompetent authority in Rule 3(h). Competent authority cannot be equatedwith disciplinary authority. Reliance was placed on Union of India vs.

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AB.V. Gopinath, (2014) 1 SCC 351, to submit that a charge-sheet notissued according to law rendered the entire proceedings non-est. TheHigh Court, in the facts of the case ought not to have given liberty toissue fresh charge-sheet or deny back wages while directingreinstatement.B8. The entire proceedings having been vitiated back wages oughtto have been granted while directing reinstatement relying onChairmen-cum-Managing Director, Coal India Limited and Othersvs. Ananta Saha and Others, (2011) 5 SCC 142. With regard to thesecond charge-sheet, it was submitted that the punishment of dismissalfor absence from place of duty one hour before duty hours got overCwas grossly disproportionate relying on Dev Singh vs. Punjab TourismDevelopment Corporation Limited and Another, (2003) 8 SCC 9.

9. We have considered the submissions on behalf of the parties.The employee was posted at the Air Force Station Gwalior. There canbe no two opinions that the nature of his duties had an inherentDseriousness. Two charge-sheets were issued to him and departmentalproceedings were conducted. The employee was given full opportunityof defence. A finding of guilt was arrived at by the enquiry officerwith regard to both the charges. The employee in his departmentalappeal raised no issues of procedural irregularity with consequentEprejudice. A common order of punishment of ‘discharge’ from servicedated 21.05.1997 followed under Part III B (2)(e) of the Rules. Noorder of ‘dismissal’ was passed under Part III-B (2)(f) of the Rules.If the Corporation was of the opinion that ‘dismissal’ was theappropriate punishment in the facts of the case nothing prevented itfrom stating so. The High Court fell in a serious error by opining thatFthe employee had been ‘dismissed’ from service and on that premisearrived at the conclusion that the charge-sheet was incompetent inabsence of it having been issued by the Functional Director who wasthe disciplinary authority under Sr. 1 (b) of Schedule I under Part IIIof the Rules for dismissal.G

10. Part-III B (2) of the Rules provides for major penalties whichincludes inter alia removal from service which shall not be adisqualification for future employment and dismissal from service whichshall ordinarily be a disqualification from future employment. The Rulestherefore themselves recognise them as different punishments withHvarying severity. Though the word ‘discharge’ does not find reference under the Rules, nonetheless in service jurisprudence, removal and/ordischarge are synonymous leading to a termination or end of servicebut without the punitive consequences of dismissal entailing loss of pastservices, affecting future employment and debarring retiral benefits.There is no dispute that consequent to the impugned order of‘discharge’, the employee has been paid his dues.

11. The employee either in his reply to the charges or in thedepartmental appeal rightly raised no issues with regard to lack ofcompetence in the DGM to issue the charge-sheet. Sr. 1 (a) of ScheduleI, to be read with Part III of the Rules, provides that with regard toJob Group ‘A’ the Functional General Manager was the disciplinaryauthority for all other penalties except that of dismissal. The FunctionalDirector was the disciplinary authority for punishment of dismissal only.The employee for the first time raised the issue in the writ petition thatthe charge-sheet had been issued by other than the disciplinary authority.If the employee had raised the issue either in his reply to the memo ofcharges or in appeal perhaps the Corporation could have addressed theissue better. Nonetheless, since a fundamental issue of jurisdiction hasbeen raised, we shall proceed to examine the issue.

12. Rule 3(e) defines a Functional Manager as the Manager in-charge of a function. Rule 3(g) defines Disciplinary Authority asspecified in Schedule I competent to impose penalties under the Rules.Competent Authority has been defined in Rule 3(h) to mean anyauthority empowered by the Board of Directors or the Chairman byany general or special rule or order to discharge the function or usethe powers specified in the rule or order. Under Schedule I, theFunctional General Manager was the disciplinary authority forpunishment lesser than dismissal and the Functional director was thedisciplinary authority for punishment of dismissal. We are of theconsidered opinion that the term Competent Authority will include adisciplinary authority so authorised in the manner prescribed in 3(h)under the delegation of authority manual dated 15.12.1987. Under PartIII-F(1) of the Rules dealing with procedure for imposing major penalties,the disciplinary authority has been described to include an authority asspecified in Schedule I. It includes both a Functional manager andFunctional Director. Part-III-F(23) provides as follows:

“(23) If the Disciplinary Authority or the Competent Authorityhaving regard to its findings on all or any of the charges is of AB

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Athe opinion that any of the penalties specified in Rule “B” shouldbe imposed on the Management Staff it shall, notwithstandinganything contained in Rule “G”, make an order imposing suchpenalty”

13. The fact that the words ‘Disciplinary Authority or CompetentBAuthority’ have been used interchangeably in Part III-F leaves no doubtin our mind that the delegation of authority manual had never beenrecalled or superseded. It is the specific case of the Corporation thatthe manual for delegation of authority issued on 15.12.1987 had neverbeen withdrawn and the Corporation had all along in all other casesalso acted on basis of the same and that no charge-sheet for aCpunishment lesser than dismissal had ever been issued by the FunctionalDirector. The DGM was therefore fully competent under the manualalso to both suspend and issue charge-sheet. The High Court itselfreasoned that had the penalty been other than dismissal, the FunctionalManager would have been competent to issue the charge-sheet. TheDHigh Court having posed unto itself the wrong question of dismissalfrom service, naturally arrived at an erroneous conclusion.

14. In view of our conclusion that the first charge-sheet had beenissued by an authority competent to do so, the order of discharge callsfor no interference. The direction for issuance of fresh charge-sheetEis therefore held to be unsustainable and is set aside. The direction forreinstatement and grant of back wages including any proportionality ofpunishment under the second charge therefore becomes academic andneeds no consideration.

15. The appeal preferred by the appellant-Corporation is allowedFand that preferred by the respondent-employee is dismissed. Thereshall be no order as to costs.

Divya Pandey

Appeals disposed of.

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