1995 (11) TMI 379 - SC - Indian Laws

Delay in disciplinary probe not fatal; dismissal upheld for disproportionate assets, 10% deduction cap, family gifts counted

SC held that delay in disciplinary proceedings was not fatal where investigation into disproportionate assets can be prolonged; prosecution weakness did ... Non-supply of the inquiry report - Violation different conduct rules and misconduct of being in possession of property disproportionate to his known source of income - delay in initiating disciplinary proceeding is an unfair procedure depriving the livelihood of a public servant offending Article 14 or 21 of the Constitution - Whether the charge of being in possession of assets disproportionate to his known source of income is a misconduct? K. Ramaswamy & B.P. Jeevan Reddy, JJ. - Held that:- In a case of the type on hand, it is difficult to have evidence of disproportionate pecuniary resources or assets or property. The public servant, during his tenure, may not be known to be in possession of disproportionate assets or pecuniary resources. He may hold either himself or through somebody on his behalf, property or pecuniary resources. To connect the officer with the resources or assets is a tardious journey, as the Government has to do a lot to collect necessary material in this regard. In normal circumstances, an investigation would be undertaken by the police under the Code of Criminal Procedure, 1973 to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the whole exercise. Care and dexterity are necessary. Delay thereby necessarily entails. Therefore, delay by itself is not fatal in this type of cases. It is seen that the C.B.I. had investigated and recommended that the evidence was not strong enough for successful prosecution of the appellant under Section 5 (1)(e) of the Act. It had, however, recommended to take disciplinary action. No doubt, much time elapsed in taking necessary decisions at different levels. So, the delay by itself cannot be regarded to have violated Article 14 or 21 of the Constitution. The reason being that if the percentage begins to rise in each case, it gets extended till it reaches the level of incredulity to give the benefit of doubt. It would, therefore, be inappropriate, indeed undesirable, to extend the principle of deduction beyond 10% in calculating disproportionate assets of a delinquent officer. The salary of his wife was not included in the assets of the appellant. The alleged stridhana of his wife and fixed deposits or gifts of his daughter, in appreciation of evidence, were held to be the property of the appellant. It is in the domain of appreciation of evidence. The Court/Tribunal has no power to appreciate the evidence and reach its own contra conclusions. The Tribunal in this case held that the appellant had put in 30 years of service. He had brilliant academic record. He was successful in the competitive examination and was selected as a Class I Officer. He earned promotion after the disciplinary proceeding was initiated. It would be difficult to get a new job or to take a new profession after 50 years and he is 'no longer fit to continue in government service'. Accordingly, it substituted the punishment of dismissal from service to one of compulsory retirement imposed by the disciplinary authority. We find that the reasoning is wholly unsupportable. The reasons are not relevant nor germane to modify the punishment. In view of the gravity of the misconduct, namely, the appellant having been found to be in possession of assets disproportionate to the known source of his income, the interference with the imposition of punishment was wholly unwarranted. We find no merit in the main appeal which is accordingly dismissed with no order as to costs. HANSARIA, J. - HELD THAT:- The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionately of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate. Issues Involved:1. Non-supply of the inquiry report.2. Promotion during the pendency of disciplinary proceedings.3. Definition of misconduct under Civil Service Rules.4. Delay in initiating disciplinary proceedings.5. Judicial review and the role of the Tribunal in disciplinary matters.6. Interference with the punishment imposed by the disciplinary authority.Issue-wise Detailed Analysis:1. Non-supply of the Inquiry Report:The appellant argued that the dismissal order was invalid due to the non-supply of the inquiry report, citing the case of *Union of India & Ors. v. Mohd. Ramzan Khan*. The court acknowledged that non-supply of the inquiry report violates principles of natural justice, as established in *Ramzan Khan*. However, it was clarified that this principle was prospective, applying only to orders passed after the judgment in *Ramzan Khan*. Since the appellant's dismissal occurred on October 29, 1986, prior to this judgment, the dismissal was deemed valid.2. Promotion During Pendency of Disciplinary Proceedings:The appellant was promoted during the disciplinary proceedings, which he claimed should preclude dismissal. The court explained that promotion during pending disciplinary action can follow two procedures: sealed cover or promotion subject to the outcome of the inquiry. The latter was adopted, allowing the disciplinary action to proceed to its logical conclusion, making the promotion no impediment to the disciplinary decision.3. Definition of Misconduct under Civil Service Rules:The appellant contended that possession of assets disproportionate to known income was not defined as misconduct under the Civil Service Rules. The court referred to Section 5(1)(e) of the Prevention of Corruption Act, 1947, defining criminal misconduct as possession of disproportionate assets by a public servant. The court held that this definition suffices for disciplinary action under the Civil Service Rules, negating the need for explicit inclusion in the misconduct list.4. Delay in Initiating Disciplinary Proceedings:The appellant argued that the delay in initiating proceedings violated Articles 14 and 21 of the Constitution. The court noted the complexity and time-consuming nature of investigating disproportionate assets cases, often involving detailed evidence collection. The delay, therefore, was not deemed unfair or violative of constitutional rights.5. Judicial Review and the Role of the Tribunal in Disciplinary Matters:The court emphasized that judicial review is not an appeal but a review of the decision-making process. The Tribunal's role is to ensure fair treatment, not to re-appreciate evidence or substitute its findings for those of the disciplinary authority. The court reiterated that findings based on some evidence are within the disciplinary authority's jurisdiction and not subject to re-evaluation by the Tribunal.6. Interference with the Punishment Imposed by the Disciplinary Authority:The Tribunal had modified the punishment from dismissal to compulsory retirement, citing the appellant's long service and academic record. The court found this reasoning unsupportable, given the gravity of the misconduct. It held that the disciplinary authority's decision should stand unless the punishment shocks the judicial conscience. The court concluded that the Tribunal's interference was unwarranted and reinstated the dismissal order.Separate Judgment by Hansaria, J.:Hansaria, J. concurred with the main judgment but added that High Courts have the inherent power to do complete justice, similar to the Supreme Court under Article 142, especially when the punishment is shockingly disproportionate. He emphasized that judicial review should consider the proportionality of punishment, ensuring it is reasonable and not violative of Article 14. He concluded that while the High Courts should exercise restraint, they have the jurisdiction to modify punishment in exceptional cases to achieve complete justice.