KARNATAKA CENTRAL COOPERATIVE Vs. R H GUDAGNUR

JUDGEMENT

(1.) THE initiation of the disciplinary enquiry leads on ultimately to the order of dismissal and where therefore the foundation has not been properly laid the edifice cannot remain. This argument does not appeal to us for the simple reason that initiation is one thing and the ultimate dismissal is another, though they are part of the same proceedings. It may also be recalled that before Article 311 of the Constitution came to he amended by the 42nd amendment it was thought a domestic enquiry would consist of two parts, namely, issue of charge memorandum and the findings constituting one stage and the issue of second show cause notice and the ultimate order constituting the second stage. Therefore, we are firmly of the opinion that there is absolutely nodding wrong in the General Production Superintendent issuing the charge memos dated April 14, 1980 and April 29, 1980. The workman understood the char e, offered his explanation on April 16, 198o and May 5, 1980. He was visited with inquiry notice dated April 19, 1980 and May 6, 1980. He participated in enquiry and as on that the report was submitted on June 17, 1980 and August 26, 1980. He was issued a second show cause notice on July 8, 1980 and he replied on July 11, 1980 and it is thereafter on July 14,1980 the proposed dismissal was passed and he was informed on July 14, 1980 that the application under Section 33(1) would be filed before the Tribunal having regard to the pendency of the Industrial Dispute. 21. Therefore, we hold on point No. 1 that the charge memo issued by the General Production Superintendent (S. S. Saihgal) is valid and does not vitiate the further proceedings resulting in the ultimate order of dismissal. 20. In the case of Inspector General of Police and another v. Thavasiappan (1997 -II -LLJ -191) the Supreme Court was pleased to hold that the act of instituting a disciplinary proceeding is quite different from conducting the enquiry and further in the absence of specific Rule it is not necessary that charges should be framed only by an authority competent to impose proposed penalty or that enquiry should be conducted by such authority. An authority lower in rank than the appointing authority is competent to issue charge sheet and initiate disciplinary proceedings. While explaining this well settled position of law, the Court was pleased to observe as under : '7. Before we consider the requirement of Rule 3(b) we will refer to the three decisions cited by the learned counsel for the appellant. He first invited our attention to the 2 decision of this Court in State of Madhya Pradesh v. Shardul Singh : [1970]3SCR302 . In that case a departmental enquiry was initiated against a Sub Inspector of Police by Superintendent of Police who after holding an enquiry sent his report to the Inspector General of Police who ultimately dismissed the Sub -Inspector of Police from service. The order of dismissal from service was challenged before the High Court of Madhya Pradesh on the ground that the enquiry held by Superintendent of Police was against the mandamus of Article 311(1) of the Constitution as he was incompetent to conduct the enquiry. The Sub -inspector of Police was appointed by the Inspector General of Police. The High Court allowed the petition. The State preferred an appeal to this Court. Rejecting the contention that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should be initiated or conducted by the authorities mentioned in that Article, this Court held as under : 'This Article does not in terms require that the authority empowered under that 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 enquiry should be done at its instance. The only right guaranteed to a civil servant under that provision is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed.' This Court further held that 'we are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that Article.' 21. Keeping in view this well settled legal position, let me now advert to the reasoning of the Tribunal to come to the conclusion that the domestic enquiry is neither fair nor legal in as much as the proceedings for domestic enquiry had been initiated by an incompetent person. The Tribunal to come to the aforesaid conclusion relies upon Rule 6 of the Service Rules framed under Bye -law 27 of the Bank's Bye Laws. It only says that the Board of Directors shall he the competent authority to execute rules, provided that if the Board of Directors delegate its authority to execute any of the rules to the Executive Committee or to a Sub -Committee or the President as the case may be shall be the competent authority to execute such rules. According to the Tribunal it is the Board of Directors which is the competent authority and if it delegates its power to Executive Committee or Sub -Committee or the President then the said persons would be the competent authority and not the Deputy General Manager who has issued the charge memo. In my view, this thinking of the Tribunal has no substance whatsoever. With regard to initiation of disciplinary proceedings, it is now well settled that it is not necessary that the competent authority to impose the penalty must alone initiate domestic enquiry proceedings and that the proceedings can be initiated by any superior authority who can be held to be controlling authority who may be an Officer subordinate to the appointing autnority. Further the respondents had not made any grievance before the Enquiry Officer about the issuance of charge memo by an incompetent person and lastly the respondents have offered their explanation to the charge memo and thereafter participated in the enquiry proceedings. Even before this Court, the respondents are not in a position even to point out how the charge memo issued by Deputy General Manager who according to them is not competent person has caused any prejudice to their defence in the domestic enquiry proceedings. In my view, no prejudice has been caused to the delinquents by issuance of charge memo by the Enquiry Officer since the ultimate order has came to be passed by a competent person. In that view of the matter, the reasoning of the Tribunal is not only opposed to Rule 6 of the Rules but also opposed to the view envisaged by Apex Court and Bench of this Court. 22. In so far as the other reason for rejecting the application filed by the Management for approval of its action in dismissing the respondents is concerned, it is now well settled by the Supreme Court in the case of Deputy Director of Collegiate Education that taking the domestic enquiry proceedings for and passing orders of dismissal, removal or reduction in rank of a Government Servant who has been convicted by a criminal Court is not barred, merely because the sentence or order is suspended by the Appellate Court or on the ground that the said Government servant -accused has been released on bail pending the appeal. Explaining this position the Court was pleased to observe as under : 'We need not, however, concern ourselves any more with the power of the Appellate Court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the 'conduct which has led to his concoction on a criminal charge' and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of the Government servant who has been convicted by a criminal Court is not barred merely because the sentence or order is suspended by the Appellate Court or on the ground that the said government servant accused has been released on bail pending the appeal.' 22A. In view of the above legal position, the reasoning adopted by the Tribunal that in view of the stay granted by the Sessions Court in the appeal filed against the order of conviction passed by learned Magistrate, it is premature to hold that the delinquents are guilty of the offences of defalcation of accounts and misappropriation of funds of T.A.P.C.M.S. is wholly erroneous. The Andhra Pradesh High Court in the case of K. Sampath Kumar v. Food Corporation of India 1996 (3) SLR 666 was pleased to observe as under : '... If a person has been convicted, he becomes a convict in the eye of law and to continue to borne him on the cadre will amount to entertaining a convict in the service of the Corporation. Unless the conviction is set aside on appeal or revision, as the case may be, the person comes within the category of one who has been convicted of a criminal charge. The fact that a person is convicted on a criminal charge after due trial in accordance with law by a Court of competent jurisdiction is proof enough of the fact that he is guilty of the offence committed by him unless the conviction and sentence is set aside by a superior Court. Therefore, a fortiorari, when a person is convicted on criminal charge, he cannot expect the authorities to initiate any enquiry at the departmental level to probe into his conviction and to find out whether he is guilty of the charge or not or indeed whether he is a fit person to be continued in service or not. The conviction on a criminal charge leads to an automatic dismissal from service under the provisions of Regulation 63 of the F.C.I. (Staft) Regulations which clearly mentions the point that We authority shall be at liberty to pass any order which it deems fit and proper in the circumstances of the case.' 23. No doubt, such Regulation as we find in Food Corporation of India (Staff) Regulations, 1971, is not found in the Regulation of the petitioner -Bank but to a person convicted by a competent Court of law, he becomes a convict in the eye of law and to continue to borne him on the cadre will amount to entertaining convicts in the service of respondent -Corporation. In my view, the authorities need not have to hold a detailed departmental enquiry to find out whether he is guilty of the charge or not or indeed whether he is a fit person to be continued in serviceornot. Once a person is convicted by a criminal Court, the person concerned loses his right in the job and can be terminated without a detailed domestic enquiry proceeding. 24. In the result, the impugned common order of the Industrial Tribunal in SL No. 10/1986 and 11/1986 dated July 17, 1987 is set aside and the matter is remitted back to the Tribunal with a further direction to revive SL No. 10/1986 and SL No. 11/1986 and reconsider the application filed by the Management under See. 33(2)(b) of the Industrial Disputes Act in accordance with law. Parties are at liberty to raise such other contentions which are available to them except those contentions which are decided by this Court in this order, including the contentions that the alleged offence in the charge memos has no nexus with the discipline of the petitioner management. 25. With these observations and directions, petition is allowed and rule made absolute. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.