Khanwilkar, J.:— Rule. Rule made returnable forthwith by consent. Advocate for the Respondents waive notice. Having regard to the nature of challenge involved, we decided to finally dispose of the matter at the admission stage itself, by consent.
2. By this Writ Petition, the Petitioner who claims to be working as the Dy. General Manager of the Respondent B.E.S&T. undertaking of Municipal Corporation of Greater Mumabi (MCGM) has prayed for writ to quash and set aside the appointment of the nominated enquiry officer being illegal, bad-in-law and in contravention of the provisions of the Service Regulations as applicable to B.E.S&T. undertaking. The Petitioner further prays that in the alternative some other official from Mumbai Municipal Corporation above the post held by the Petitioner be appointed as enquiry officer.
3. Briefly stated, the Petitioner claims to have joined the B.E.S&T. undertaking on 5th October, 1974 as Probationary Engineer and in due course rose to the position of Dy. General Manager considering his sincere services and work for a period of 34 years. The post of Dy. General Manager is stated to be number two position in the hierarchy i.e next to the General Manager of B.E.S&T. undertaking. The Petitioner was served with a charge sheet issued by the General Manager dated 23rd July, 2009 informing the Petitioner that it has been decided to initiate enquiry against him and for that purpose the named former Judge of the Bombay High Court has been appointed as the enquiry officer. The Petitioner was further informed that he was free to submit his written explanation to the charge sheet at the specified address of the enquiry officer. The acts of misconduct on the basis of which the Petitioner is proceeded against are culled out in Paragraph 11, which reads thus:—
“You are accordingly charged with the following misconducts under S.R Chapter X (10.1 to 10.7)
i. Fraud, dishonesty in connection with the business of the Undertaking.
ii. Breach of any rules or regulations or instructions for the maintenance and running of any department (S.R 12.14 and Administrative Order No. 180 dt. 5.4.1994)
iii. Any act subversive of discipline.
iv. Gross negligence.
v. Misuse of power.
vi. Breach of any law applicable to the Undertaking or any rules made thereunder.
vii. Willful damage or loss to the Undertaking.
viii. Breach of any rules or regulations, or instructions for the maintenance and running of any department (Rules of Tender).
ix. Financial loss to the tune of Rs. 1,50,000/- on account of excavation/digging charges to MCGM and loss of man-days to the Undertaking.
x. Sabotage or loss of the goods or property of the Undertaking.
xi. Willful damage to work in progress.
xii. Taking illegal gratification.”
4. The Petitioner has approached this Court essentially to question the appointment of former Judge of the Bombay High Court as the enquiry officer to conduct the departmental enquiry against him for the alleged misconduct specified in the charge sheet broadly on three counts. The first ground is that only the B.E.S&T. Committee who is the Appointing Authority was competent to proceed against the Petitioner. The General Manager B.E.S&T. who has issued the charge sheet neither has power/authority to conduct an enquiry against the Petitioner nor has powers to delegate his powers to an outsider as an enquiry officer to conduct the enquiry against the Petitioner. The General Manager at best is competent to delegate his powers only to the Officers working under his control, as per the Service Regulation No. 1.5 The second ground is that the General Manager in any case could not have delegated his powers to conduct an enquiry to an outsider appointed by him as an enquiry officer, without the knowledge and consent of the B.E.S&T. Committee. The last ground is that only the B.E.S&T. Committee being the Appointing Authority of the Petitioner has had power to appoint an enquiry officer that too from within the organisation namely Mumbai Municipal Corporation. To buttress the above contentions, the Petitioner has relied on the provisions of The Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as ‘the Act’ for short) which govern the disciplinary action against any of the staff working in the undertaking-such as Section 460R, 460U, 460V, 460W as also the Service Regulations in particular S.R No. 1.5, 2.5, 2.7, 10.3
5. The Respondents have resisted this Petition. According to them, none of the provisions pressed into service prohibit appointment of impartial and competent person to conduct the enquiry who incidentally is an outsider and not from within the organisation. According to the Respondents, there is no express provision which governs the subject as to who is competent to initiate departmental enquiry and who should be appointed as enquiry officer. In absence of such provision, the general principles will govern the field and the only safeguard that needs to be adhered to is that the procedure adopted is fair and reasonable and to provide full opportunity to the Petitioner to defend the charges. According to the Respondents, the General Manager was fully competent to initiate enquiry against the Petitioner as also to issue charge sheet including to appoint an enquiry officer for the conduct of the departmental enquiry against the Petitioner being superior in rank to the Petitioner. Moreover, the appointment of former Judge of the High Court of Bombay as the enquiry officer was legitimate and cannot be termed as illegal or for that matter contrary to any provisions of law.
6. Having considered the rival submissions, the first question that needs to be addressed is as to whether the Appointing Authority alone could initiate the departmental action against the Petitioner. Indeed, issuance of charge sheet and appointing enquiry officer for the conduct of the departmental enquiry are prelude to initiation of departmental action. However, the departmental action would eventually culminate with the decision of the Appointing Authority. The enquiry officer would only complete the procedure of collection of evidence and submit his opinion which will eventually be considered by the Appointing Authority. The final decision, however, would be that of the Appointing Authority. There can be no disagreement on these broad principles. The Petitioner, however, contends that keeping in mind the provisions of the Act and Service Regulation, it would appear that the Appointing Authority in this case B.E.S&T. Committee, alone was competent to initiate and conduct the enquiry against the Petitioner. We shall, therefore, refer to the provisions on which reliance was placed by the Petitioner. Sections 460R to Section 460Y of the Act are under the heading ‘Officers and Servants’. Section 460R deals with Schedule of permanent officiers and servants to be prepared by General Manager and sanctioned by Brihan Mumbai Electric Supply & Transport Committee. Section 460S deals with restriction on appointment of permanent officers and servants. Section 460T deals with creation of temporary post. Section 460 U which is of some significance to the case on hand deals with power of appointment in whom to vest. It postulates that subject to the provisions of Sections 80B, 460R & 460T, the power of appointing Municipal Officers and servants for the purposes of Brihan Mumbai Electric Supply and Transport Undertaking shall vest in the General Manager-Brihan Mumbai Electric Supply and Transport Committee; if the post is equivalent to or higher than the post of Secretary set forth in the schedule sanctioned by Brihan Mumbai Electric Supply and Transport Committee and the Corporation under Section 460R and in the General Manager in all other cases. In so far as, the post of Dy. General Manager which is presently held by the Petitioner is concerned, there is no dispute that the power to make appointment on that post vests with the B.E.S&T. Committee. At the same time, it is not in dispute that the General Manager is a superior officer than the Dy. General Manager, a post which is held by the Petitioner. Section 460V provides that the B.E.S&T. Committee shall frame Service Regulations on matters referred to therein. The said provision reads thus:—
“460V [Brihan Mumbai Electric Supply and Transport Committee] to frame Service Regulations:—
(1) [Brihan Mumbai Electric Supply and Transport Committee] shall from time to time, frame regulations applicable to municipal officers and servants appointed under this Chapter in regard to the following matters:—
(a) fixing the amount and the nature of the security to be furnished by any municipal officer or servant from whom it may be deemed expedient to require security:
(b) regulating the grant of leave to municipal officers and servants;
(c) authorizing the payment of allowances to the said officers and servants, or to certain of them, whilst absent on leave;
(d) determining the remuneration to be paid to the persons appointed to act for any of the said officers or servants during their absence on leave;
(e) authorizing the payment of travelling or conveyance allowances to the said officers and servants;
(f) regulating the period of service of all the said officers and servants;
(g) determining the conditions under which the said officers and servants or any of them, shall on retirement or discharge receive pensions, gratuities or compassionate allowances, and under which the widows, or such other relations as may be prescribed, dependent on any of the said officers and servants shall, after their death, receive compassionate allowances and the amount of such pensions, gratuities or compassionate allowances;
(h) authorizing the payment of contributions, at certain prescribed rates and subject to certain prescribed conditions, to any pension or provident fund which may, with the approval of [the Committee], be established by the said officers and servants or to such provident fund, if any, as may be established by [the Committee] for the benefit of the said officers and servants;
(i) in general, prescribing any other conditions of service of the said officers and servants.
(2) No regulation made by the [Brihan Mumbai Electric Supply and Transport Committee] under this section shall have any force or validity unless and until it has been confirmed by the Corporation.
(3) For the purpose of clause (h) of sub-section (1) any fund established prior to the acquisition of any undertaking by the corporation shall upon the undertaking becoming part of the [Brihan Mumbai Electric Supply and Transport Undertaking] be deemed to be established in the manner mentioned in the said clause, if upon the acquisition of such undertaking arrangements are made by the [the Brihan Mumbai Electric Supply and Transport Committee] for the continuance of the fund.”
7. The other relevant provisions of the Act is Section 460W, which provides for the authority in whom the power of suspending, punishing and dismissing would vest. Section 460X deals with leave of absence while Section 460Y deals with acting appointment.
8. From the bare reading of Section 460V, although it deals with several aspects governing the service conditions of the Officers and servants, it does not specifically deal with the issue as to the mechanism for initiating disciplinary action against the officers and servants of Corporation. Indeed, in exercise of powers bestowed by the provisions of the Act of 1988, Service Regulations for the employees of the Corporation have been formulated and adopted as back as on 10 June, 1925 and amended from time to time. Chapter-I thereof deals with the question of application of the said Regulations. S.R 1.2 provides that nothing contained in the said Service Regulation shall operate in derogation of any law applicable or to prejudice of any right under a registered agreement, settlement or award for the time being in force or contract of service, if any or custom or usage of the undertaking. Clause S.R 1.5 deals with delegation of powers by the General Manager. It stipulates that the General Manager may delegate any powers conferred by the said Regulations to any of the Officers under his control, subject to any condition that he may impose. Chapter-II deals with definitions. We shall refer to some of the definitions which are relevant for deciding the matter in issue. Clause S.R 2.2 defines the meaning of word “Committee”. It provides that the ‘Committee’ means the Brihan Mumbai Electric Supply and Transport Committee constituted under the provisions of Mumbai Municipal Corporation act, 1888. Clause S.R 2.5 defines the meaning of word “Competent Authority”. It reads thus:—
“2.5 “Competent Authority” means the B.E.S&T. Committee or the General Manager or any other officer duly notified as such in the case of holders of appointments to posts for which the B.E.S&T Committee is the Appointment Authority or the General Manager or any other officer/s duly notified as such by him in the case of other members of staff.”
9. Clause S.R 2.7 defines the meaning of word “Officers”. The same reads thus:—
“2.7 “OFFICERS” means members of staff holding appointments in ‘A’ and ‘B’ grade posts and described as such in the Establishment Schedule framed under Section 460 R of the Mumbai Municipal Corporation Act, 1888.”
10. Chapter III of the said Regulations deal with office hours, weekly offs, overtime and holidays. Chapter IV deals with subject of leave while Chapter V deals with allowances. Chapter VI deals with medical examination, invalidation etc. Chapter VII deals with Incentive Schemes and Rewards and Chapter VIII deals with Rental of Undertaking's Quarters, furnitures etc. Chapter IX deals with Employees Welfare Fund, Savings funds etc. Chapter X of the said Regulations deals with subject of “disciplinary action”. The same is of some significance to decide the matter on hand. It would be, therefore, apposite to reproduce the same in its entirety, which reads as follows:
“10.1 This Chapter shall not apply to members of staff governed by the Standing Orders framed under the Bombay Industrial Relations Act, 1946 or any other law for the time being in force.
10.2 Subject to the provisions of any law for the time being in force, a member of staff shall, after enquiry, be liable to be warned, fined, reduced in pay scale, suspended, demoted, dismissed or discharged by the Competent Authority for any breach of departmental rules or discipline and for carelessness, unfitness, neglect of duty or other misconduct. The concerned members of staff shall be informed in writing of the misconduct and the date and time at which the inquiry will be held, which date shall not be less than two days after the service of the notice.
10.3 The delinquent member of staff shall be given an opportunity to answer the charge and permitted to be defended by his representative provided that no such representative shall be allowed in cases where a member of staff is charged with misconduct of a nature which if established, is likely to lead to penalties like warning, fine or suspension for a period not exceeding seven days. Except for reasons to be recorded in writing by the Competent Authority holding the enquiry, the member of staff shall be permitted to produce witnesses in his defence and cross-examine any witnesses on whose evidence the charge rests.
10.4 A member of staff in respect of whom the Appointing Authority is the General Manager and who as a result of such departmental enquiry is ordered to suffer any punishment by any officer other than the General Manager, shall have a right of appeal to the officer immediately superior to the one who has imposed the punishment, provided that such appeal is lodged within 14 days of the receipt in writing of the order appealed against. When the punishment is one of discharge or dismissal, a second appeal shall lie to the General Manager Provided that such appeal is lodged within 14 days of the receipt in writing of the order in the first appeal. At the hearing of any appeal, the member of staff concerned may be defended by his representative.
10.5 A member of staff may be suspended pending the hearing of the case, but if found not at fault, such suspension shall not involve a break in service or loss of salary or wages and allowances or privileges.
10.6 An order of suspension pending an enquiry shall be in writing and may take effect immediately on delivery to the member of staff. Such an order shall set out in detail the alleged misconduct. A member of staff shall be entitled during the period of suspension to a Subsistence Allowance at such rates as the Suspending Authority may direct but not less than one-third of the pay and allowances which he would, but for the suspension, have drawn. Pending an enquiry which may result in disciplinary action, a member of staff may be suspended but if on the conclusion of the enquiry it is decided to take no action against himself, he shall be deemed to have been on duty and shall be entitled to full pay and allowances and to all other privileges for the period of suspension. If some punishment other than the dismissal is imposed, the whole or part of the period of suspension may, at the discretion of the Competent Authority, be treated as on duty with a right to corresponding pay, allowances etc.
10.7 Increments, Withholding of
When an increment is ordered to be withheld temporarily, members of staff will be entitled to draw pay inclusive of the increment which he would have earned in the normal course on the expiry of the period for which the increment was ordereded to be withheld and he shall be entitled to draw further increments due on due dates as if the increment had not been withheld.
When an increment is ordered to be withheld permanently, the member of staff concerned shall be entitled to draw increments in the time-scale on the subsequent due dates.”
11. Besides, the above provisions, Chapter XI of the Regulations deal with matters governing the termination of service and Chapter XII with Miscellaneous conditions of services.
12. According to the Petitioner, the above said Regulations are statutory Regulations and the Respondents are bound to observe the same. Even if, the argument of the Petitioner that the regulations are statutory regulations were to be accepted, the question is whether there is any express provision specifying as to how the disciplinary action should be initiated and who should conduct the enquiry. That can be answered only with reference to the provisions governing the matters of disciplinary action under Chapter X of the Regulations. Clause S.R 10.1 is of no assistance as it merely provides that the Chapter shall not apply to the members of staff governed by the standing orders framed under the Bombay Industrial Relations Act, 1946 or any other law for the time being in force. Clause S.R 10.2 is a provision to guarantee that a member of the staff be liable to be warned, fined, reduced in pay scale, suspended, demoted, dismissed or discharged by the Competent Authority for any breach of departmental rules or discipline and for carelessness, unfitness, neglect of duty or other misconduct only after an enquiry which, however, is subject to the provisions of any law for the time being in force. It further provides that the concerned member of staff shall be informed in writing of the misconduct and the date and time on which the enquiry will be held and further that such date shall not be less than two days after the service of notice. This provision does not expressly provide that the enquiry preceding the proposed action should be initiated and then conducted only by the Competent Authority. The Competent Authority as is defined under Clause S.R 2.5, means the B.E.S&T. Committee or the General Manager or any other Officer(s) duly notified as such, as the case may be. Whereas, Clause S.R 10.2 guarantees only three conditions. Firstly, that the action be taken by the Competent Authority only after enquiry. Secondly, the staff shall be informed in writing of the misconduct and thirdly, such notice should be given not less than two days after the service of the notice. No more and no less. It is in this context, the Petitioner has placed emphasis on clause S.R 10.3 of the Regulations. However, on plain language of the said provision, it merely postulates that the member of staff shall be given an opportunity to answer the charge and permitted to be defended by his representative in specified matters. It further provides that except for the reasons to be recorded in writing by the Competent Authority holding the enquiry, the member of staff shall be permitted to produce witnesses in his defence and cross-examine any witnesses on whose evidence the charge rests. Relying on this part of the provision, it was argued that the concomitant of such provision is that only the Competent Authority is entrusted with the power to initiate disciplinary action by issuance of charge sheet and then itself conduct enquiry against the officer concerned. The question is: whether the expression Competent Authority appearing in clause S.R 10.3 will have to be read literally as the Appointing Authority as defined in clause S.R
2.5 There is no doubt that the expression Competent Authority has been defined in Chapter II of the Regulations, but it cannot be overlooked that the said definition clause will have to be so construed, unless there is anything repugnant to the subject or context. In our opinion, the expression Competent Authority appearing in clause S.R 10.3 will have to be understood in the context in which it appears. It precedes the expression “holding the enquiry”. When the provision is read as a whole, it will have to be understood in the context of its setting as the “enquiry officer” holding the enquiry for reasons to be recorded in writing may be competent to deny permission to the member of staff to produce witnesses in his defence and cross-examine any witnesses on whose evidence the charge rests. It is certainly not a provision to specify as to who is competent to initiate disciplinary action against the member of staff and more so who would be competent to issue charge sheet and conduct the proposed enquiry qua such charge sheet. The said expression “Competent Authority” will have to be understood in the context of the setting in which the said expression has been placed. In our opinion, there is no express or direct provision either in the Act or the Service Regulation dealing with the subject as to who shall be competent to initiate disciplinary action against the member of staff and who should be competent to issue charge sheet and to conduct the enquiry. Indubitably, clauses S.R 10.4 to 10.7 are of no consequence in answering the point in issue. Suffice it to observe that the provisions which are pressed into service by the Petitioner in no way suggest that there is any prohibition against initiation of disciplinary action by a Superior Officer other than the Appointing Authority or that of issuance of charge sheet by such superior officer other than the Appointing Authority. Similarly, none of the provisions in the Regulation which are pressed into service expressly or for that matter implicitly rule out the appointment of an outsider as the enquiry officer. The fact that clause S.R 2.7 defines the expression ‘officers’ and clause 1.5 defines the scope of delegation of powers by the General Manager only to the officers under his control would not militate against the view that we have taken. In that, clause S.R 1.5 provides for delegation of power by the General Manager in relation to the general powers to be exercised by the General Manager referred to in the Regulations. As is observed earlier, there is no express provision in the Regulation or for that matter the Act defining as to who should initiate the disciplinary action against the member of staff. Even conjoint reading of S.R 1.5, 2.7, 10.2 & 10.3 also would not militate against the view that we have taken that these provisions do not stipulate as to who should initiate the disciplinary action or issue charge sheet or conduct the enquiry; nor these provisions can be construed to mean as limiting the power of the superior officers and the Appointing Authority under the general law.
13. That takes us to the question as to whether under the general law, only the Appointing Authority is competent to initiate disciplinary action and itself conduct enquiry against the member of staff. Indeed, according to the Petitioner in the past the Sub-Committee appointed by the B.E.S&T. Committee itself conducted enquiry against the member of staff. That, however, does not mean that, in law, no other Superior Officer would be competent to initiate the disciplinary action or to issue charge sheet and conduct enquiry against the member of staff in absence of express or implied provision in this behalf. The general legal position can be deduced from the decision of the Apex Court in the case of Pradyat Kumar Bhose v. Hon'ble the Chief Justice of Calcutta High Court, AIR 1956 SC 285. It is held that it is well recognized that functionary exercising such a power to dismiss the officer cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. The Court specifically rejected the contention that the delegation of the enquiry amounts to delegation of the power itself, as without any substance. Applying the abovesaid principle to the case on hand, it will have to be held that appointment of enquiry officer by the General Manager to conduct the enquiry against the Petitioner cannot be said to have delegated the functions of the Competent Authority. It is only the Appointing Authority who would be competent to take a final decision on the basis of the enquiry report. The question as to whether the Appointing Authority alone is competent to initiate disciplinary action or to issue charge sheet and itself conduct enquiry has been considered by the Apex Court in the case of State of Madhya Pradesh v. Shardul Singh reported in 1970 (1) SCC page 108. In that case, departmental enquiry was initiated against the sub-Inspector of Police by the Superintendent of Police who, after holding the enquiry submitted his report to the Inspector General of Police. The High Court held that the enquiry held by Superintendent of Police was against the mandate of Article 311(1) of the Constitution as he was incompetent to initiate or conduct the enquiry. This opinion of the High Court was plainly reversed by the Apex Court. The Apex Court observed that Article 311(1) of the Constitution does not in terms require that the authority empowered under the provision to dismiss or remove an official, should itself initiate or conduct the enquiry preceding the dismissal or removal of the officer or even that that enquiry should be done at its instance. In yet another decision, the Apex Court restated the abovesaid legal position. In the case of P.V Srinivasa Sastry v. Comptroller & Auditor General Reported in (1993) 1 SCC 419. The Apex Court in Paragraph-4 observed thus:—
“It is well known that departmental proceeding consists of several stages : the initiation of the proceeding, the inquiry in respect of the charges levelled against that delinquent officer and the final order which is passed after the conclusion of the inquiry. Article 311(1) guarantees that no person who is a member of a civil service of the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. But Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the Appointing Authority. Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holder of a civil post. But in absence of any such rule, this right or guarantee does not flow from Article 311 of the Constitution. It need not be pointed out that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences, and the framers of the Constitution did not consider it necessary to guarantee even that to holders of civil posts under the Union of India or under the State Government. At the same time this will not give right to authorities having the same rank as that of the officer against whom proceeding is to be initiated to take a decision whether any such proceeding should be initiated. In absence of a rule, any superior authority who can be held to be the controlling authority, can initiate such proceeding.”
(emphasis supplied)
14. In Paragraph-6 of the same decision, the Apex Court has referred to the earlier decision in the case of Scienitific Adviser to the Ministry of Defence v. Daniel reported in 1990 Supp SCC 374. In that case Rule 13 of the Central Civil Services Rules (Classification, Control and Appeal) Rules, came for consideration-which expressly provided for authority to institute proceedings against any Government servant. While examining that provision, the Apex Court opined that although Article 311 of the Constitution does not speak as to who shall initiate disciplinary proceedings but that can be provided and prescribed by the rules. But if no rules have been framed, saying as to who shall initiate departmental proceedings, then on the basis of Article 311 of the Constitution it cannot be urged that it is only the Appointing Authority and no officer subordinate to such authority can initiate the departmental proceeding. Even in the present case, we have already noticed that there is no express provision requiring particular Authority to initiate disciplinary action or to issue charge sheet or conduct the enquiry nor there is any implicit prohibition of any other officer except the Appointing Authority to resort to disciplinary action against the member of staff. The only condition that has to be observed is that such officer who has initiated the action is superior in rank to the member of staff against whom the proposed action pertains and that the final decision on such enquiry, however, would be that of the Appointing Authority or the Competent Authority specified by law. Accordingly, we have no hesitation in rejecting the ground put forth by the Petitioner that the B.E.S&T. Committee being the Appointing Authority alone could have initiated the disciplinary action or issued charge sheet and itself conducted the enquiry. That stand cannot be countenanced in view of the well settled legal position. The above discussion also answers the grievance of the Petitioner that it is only the Committee being the Appointing Authority, was competent to appoint an enquiry officer.
15. The next ground is that it is imperative to conduct the enquiry only by an officer within the organisation and not by an outsider. Once again there is no direct provision dealing with this aspect of the matter either way. Whereas, the general law permits appointment of an outsider as the enquiry officer.
16. The Apex Court in the case of Suresh Koshey George v. University of Kerala reported in AIR 1969 SC 198 dealt with similar grievance. In that case, the Vice Chancellor appointed an enquiry officer who was not in service of the organization at the relevant time. Even in that case, the Apex Court proceeded on the basis that there were no statutory rules on the subject. The provision which was pressed into service was merely rules for guidance. Those rules provided that on receipt of complaint against a student, the Vice Chancellor should get an enquiry made in respect of that complaint by an officer designated by the Principal of the College in which the concerned student appeared for his examination. In the peculiar facts of that case, the Vice Chancellor directly appointed officer to enquire into the matter as the enquiry was against a student who incidentally was the son of the Principal of the same college. The Apex Court, therefore, upheld the action of the Vice Chancellor on the reasoning that the provision was not a statutory rule whereas it merely laid down a convenient procedure. In other words, the Apex Court upheld the appointment of an outsider as the enquiry officer by the Vice Chancellor. Reference can be usefully made to another decision of the Apex Court in the case of Thanjavur Textiles Ltd. v. B. Purushotham Reported in (1999) 3 SCC 316. In that case the Respondent contended that having regard to the language of the Standing Orders, the Manager was not permitted to appoint an Advocate who was an outsider as an enquiry officer. The Apex Court in the first place found that it was not necessary to go into the controversy in view of the concession which was made by the Learned Senior Counsel who had appeared for the workman before the Division Bench of the High Court to the effect that he was not raising the extreme contention that the enquiry on the facts on that case could not have been conducted by an Advocate.
17. Nevertheless, the Apex Court in Paragraph 12 proceeded to consider the argument of the Respondents that in cases where a person outside the company was appointed as enquiry officer, he would not be entitled to give findings as to misconduct of the workman. It was argued in that case that the Advocate would only be entitled to record the evidence and send the same to the disciplinary authority; for there could be no delegation to the Advocate in respect of quasi judicial function. This argument did not find favour with the Apex Court and has been rejected in Paragraph 13 of the same decision by observing as follows:—
“Once it was conceded in the High Court by the learned Senior Counsel who appeared for the workmen that an advocate could be appointed as an enquiry officer, the advocate would, in our opinion, have all the normal powers of an enquiry officer including the power to give findings as to the misconduct of the employees. We are unable to make a distinction between the powers of an enquiry officer who is an employee of the Company and an outsider. If the Manager was entitled to appoint an enquiry officer, in either case, the appointee in his capacity as an enquiry officer, would have the same powers. We accordingly hold that the advocate in this case could have been given findings as to misconduct and the Division Bench of the High Court was wrong in thinking that the advocate being an outsider would not have the power to give findings as to the misconduct of the employees.”
18. In Paragraph 15 of the same decision, the Apex Court while considering the decision in the case of Workmen v. Buckingham and Carnatic Mills reported in 1970 (I) LLJ page-26 observed that if the authority concerned had merely delegated power to record evidence, there was nothing wrong in such a delegation as long as the delegate did not express any opinion on the merits of the case. The Apex Court has made that observation in the context of the standing order in the said case. For that reason, the Apex Court distinguished the said decision and proceeded to hold that the Advocate who is an outsider appointed as enquiry officer was certainly entitled to even give findings in regard to misconduct of the employee.
19. Counsel appearing for the Respondent relied on the decision of the Apex Court in Saran Motors Pvt. Ltd., New Delhi v. Vishwanath Reported in (1964) 2 LLJ 139. Even in that case the short question was whether the domestic enquiry held by the Company against its two employees was vitiated by the fact that the enquiry officer began and conducted the enquiry with a bias against the employees. The Tribunal had opined that enquiry officer was incompetent to hold the enquiry as he was sometimes engaged by the company as a lawyer in industrial matters.
20. This finding of bias recorded by the Tribunal did not find favour with the Apex Court. In Paragraph 6, the Apex Court held that such finding was completely erroneous and cannot be sustained. It went on to observe that it is repeatedly pointed out that domestic enquiry in industrial relations must be fairly conducted and supported by evidence but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry. The Court went on to further observe that it is well known that enquiries of this type are generally conducted by the Officers of the employer and in absence of any special invidious as attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. On that reasoning the Court observed that it is obviously unsound to take the view that a lawyer who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employer's lawyer and is paid remuneration for holding the enquiry. In the case of Central Bank Of India v. C. Bernard. reported in (1991) 1 Supreme Court Cases 319 the question examined by the Apex Court was whether the departmental enquiry entrusted to and conducted by a Bank Official stands vitiated if the said officer proceeds with the enquiry and concludes the same after his superannuation during the pendency of the enquiry. While considering the controversy as raised in that case the Apex Court noticed that in Paragraph 19.14 of the bi-partite Agreement, the Chief Executive Officer was entitled to decide which officer(s) should be empowered to hold an enquiry and take disciplinary action in the case of each office or establishment. Under this Paragraph only an Officer of the Bank could be empowered to hold an enquiry and take disciplinary action against the delinquent. The enquiry officer when appointed was in service at the relevant time but during the pendency of enquiry had attained superannuation. When the enquiry was concluded and enquiry report submitted, admittedly the said enquiry officer was not an Officer of the Bank. For that reason, it was held by the High Court in that case that the enquiry was vitiated. To overcome the said finding, the Appellant therein had contended that the enquiry officer need not be an Officer of the Bank; even the third party can be appointed as an enquiry officer to enquire into the conduct of an employee. This contention has been accepted by the Apex Court. The Apex Court, however, added a word of caution that the non-official cannot act as a Disciplinary Authority and pass the order of punishment against the delinquent employee. Keeping in mind the settled legal position, we have no hesitation in taking the view that in the fact situation of the present case, appointment of the former Judge of High Court of Bombay as enquiry officer cannot be said to be illegal. Admittedly, no grievance has been made with regard to the impartiality of the enquiry officer so appointed. Merely because the person so appointed is an outsider and not an officer in the Respondent Corporation does not necessarily result in appointment of such person being illegal and invalid.
21. The last aspect that needs to be addressed is whether the General Manager could delegate his powers to conduct an enquiry to an outsider appointed by him as an enquiry officer without the knowledge and consent of the B.E.S&T. Committee. This aspect already stands answered having regard to the settled legal position in the case of State of Madhya Pradesh (supra) and P.V Srinivasa Sastry (supra). The only limitation is that the officer initiating the disciplinary action or issuing charge sheet and appointing enquiry officer should necessarily be a superior authority to the member of staff against whom the proposed disciplinary action is intended and not of the same rank. Admittedly, the General Manager is superior authority than the Dy. General Manager. We have also noticed that there is no express or implicit prohibition in any of the provisions of the Act or Regulations pressed into service which would militate against initiation of disciplinary action against the member of staff by the General Manager. As a result, there is no substance even in this grievance of the Petitioner.
22. Accordingly, this Petition would fail being devoid of merits. Hence, dismissed with costs.
Comments