NABISHA HUSSEIN SHAIKH Vs. K K UPPAL

JUDGEMENT

(1.) THIS is an appeal preferred by the Original petitioner in Writ Petition No. 655 of 1982 against the judgment and order of the learned Single Judge dated 24-6-1986 dismissing the writ petition. The appellant at the relevant time was working as Clerk, Grade I, with the Docks Department of the Bombay Port Trust, and had challenged the orders whereby he had been dismissed from service by the Chairman of the B. P. T. The appellant had been served with a charge-sheet dated 14-5-1977 alleging therein that he was in possession of assests worth Rs. 90,054/- approximately, which were disproportionate to his known source of income and that, consequently, he had failed to maintain absolute integrity in relation to his duties as a B. P. T. employee and thereby violated the general principles regarding the maintenance of absolute integrity and devotion to duty in the discharge of his duties equivalent to Rule 3 of the B. P. T. Employees (conduct) Regulations, 1976. Pursuant to the service of this charge-sheet, the B. P. T. had instituted a disciplinary enquiry against the appellant. The Enquiry Officer held that the charges levelled against him stood proved. Briefly stated, the charge-sheet alleged that between the period 1-1-1953 and 31-3-1976, the appellant had committed gross misconduct in so far as he has been found in possession of assets worth Rs. 90,055/- approximately, and that these assets were disproportionate to his known sources of income and furthermore, that the appellant could not satisfactorily account for these assests. The record indicates that prior to the service of the charge-sheet, an enquiry was conducted by the Central Bureau of Investigation (CBI) into these very allegations and that the C. B. I. submitted a report to the B. P. T. to the effect that the C. B. I. did not propose to prosecute the appellant for offences under the Prevention of Corruption Act as there was no sufficient evidence on record for this purpose. On receipt of this report from the C. B. I. , without carrying out any further investigations, the B. P. T. served a charge-sheet on the appellant as indicated above. It is of some relevance to record that the admitted position is that the B. P. T. did not conduct any additional or separate enquiries or investigations and that the solitary basis for the charge-sheet served on the appellant was the report received from the C. B. I. We are rather surprised by these facts and, therefore, made doubly sure at the hearing of the appeal that the B. P. T. has proceeded to commence disciplinary proceedings against the appellant, in the face of the C. B. I. report and without any other material in its possession.

(2.) THE Enquiry Officer, at the conclusion of the enquiry, submitted his report dated 29-11-1979. The appellant was thereafter asked to show cause as to why he should not be compulsorily retired from service on the ground that the charges levelled against him had been established and, furthermore, as to why the subsistance allowance already paid to him during the period of his suspension be varied. The Docks Manager, who is the Disciplinary Authority, by order dated 3-1-1981, directed that the appellant be compulsorily retired from service with immediate effect and that his period of suspension be treated as such. Thereafter the Chairman, by a notice dated 9-9-1981, asked the appellant to show cause having regard to the facts and circumstances of the case as to why the order of the Disciplinary Authority should not be reviewed and why the appellant should not be inflicted with the penalty of dismissal from service. The appellant sent a reply to the Chairman dated 27-9-1981 in which he referred to a writ petition filed by him before the High Court. He requested the Chairman to wait until the decision of that writ petition. The Chairman thereafter proceeded to pass an order dated 21-10-1981 dismissing the appellant from service, which order was forwarded to the appellant by the Docks Manager along with his memorandum dated 13-10-1981. The Chairman has recorded the fact that the legal advisor of the B. P. T. has pointed out to the Chairman that no writ petition had, in fact, been filed in the High Court. The Chairman further stated that the appellant had not shown any valid cause against the proposed action to review the penalty of compulsory retirement and also recorded that since the charge proved was a grave one, the penalty of compulsory retirement was raised to an order of dismissal from service. It is against these orders that the appellant filed the original writ petition. As indicated by us earlier, the learned Single Judge, after hearing learned Counsel appearing on behalf of the petitioner and the respondents, upheld the orders in question. The appellant thereafter preferred the present appeal principally on the ground that the orders in question have resulted in miscarriage of justice and that, consequently, they were liable to be quashed.

(3.) MR. Cama, learned Counsel appearing on behalf of the appellant, has , in the first instance, attacked the validity of the charge-sheet on the ground that the appellant was charged with misconduct alleging that the acquisition by him of assets disproportionate to his known sources of income constituted contravention of "the equivalent to" Regulation 3 of the B. P. T. Employees (Conduct) Regulations, 1976. Mr. Cama submitted that the very basis of the charge-sheet is misconceived in so far as admittedly Regulation 3 of the Regulations, on the basis of which the appellant has been charge-sheeted, came into existence only on 19-6-1976. This position is not disputed. Mr. Cama submits that in so far as the period of misconduct that is alleged in the charge-sheet spans the period 1-1-1953 and 31-3-1976, admittedly, the entire period is prior to the coming into operation of the Conduct Regulations in question. Mr. Cama submits that it is well-settled law that the Regulations in question cannot have retrospective application and that they can only apply prospectively. He further submits that as far as the present proceedings are concerned that it is wholly impermissible to levy a charge under a regulation and allege misconduct under a rule that was not in existence at the time when the misconduct is alleged. In support of this proposition. Mr. Cama has placed strong reliance on the decision of the Supreme Court in the case of (Pyare Lal Sharma v. Managing Director, J. and K. Industries Ltd.) A. I. R. 1989 S. C. 1854. At paragraph (21) of that judgment, the Supreme Court has unequivocally observed that it is a basic principle of natural justice that no one can be penalised on the ground of conduct which was not penal on the day it was committed. Since in fact the relevant provision was not in force at the time when the misconduct was alleged, the appellant is entitled to the protection of clause (1) of Article 20 of the Constitution of India and it was not permissible to conclude that he had committed misconduct under the Regulations in question.