THE SECRETARY, MIN.OF DEFENCE & ORS.versusPRABHASH CHANDRA MIRDHA

                        [2012] 6 S.C.R. 182


A         THE SECRETARY, MIN.OF DEFENCE & ORS.
                               v.
               PRABHASH CHANDRA MIRDHA
                (Civil Appeal No. 2333 of 2007)
                           MAY 29, 2012
B
         [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]

       Service Law - Misconduct - Disciplinary proceedings -
  Whether the authority, lower or higher than of the appointing
C authority, can initiate the proceedings against the delinquent
  on grounds of alleged misconduct - Held: Removal and
  dismissal of a delinquent on misconduct must be by the
  authority not below the appointing authority- However, it does
  not mean that disciplinary proceedings may not be initiated
D against the delinquent by the authority lower than the
  appointing authority - It is permissible for an authority, higher
  than appointing authority to initiate the proceedings and
  impose punishment, in case he is not the appellate authority
  so that the delinquent may not loose the right of appeal - In
E other case, delinquent has to prove as what prejudice has
  been caused to him - Constitution of India, 1950 - Article 311.

       Sampuran Singh v. State of Punjab AIR 1982 SC 1407:
  1982 (3) SCC 200; Surjit Ghosh v. Chairman and Managing
  Director, United Commercial Bank & Ors. AIR 1995 SC 1053:
F 1995 (2) SCC 474; Balbir Chand v. FC/ Ltd. & Ors. AIR 1997
  SC 2229: 1996 (10) Suppl. SCR 156; A. Sudhakar v.
  Postmaster-General Hyderabad & Anr. (2006) 4 SCC 348:
  2006 (3) SCR 373; Inspector General of Police & Anr. v.
  Thavasiappan AIR 1996 SC 1318: 1996 (1) SCR 977; Steel
G Authority of India & Anr. v. Dr. R.K. Diwakar & Ors. AIR 1998
  SC 2210: 1997 (11) SCC 17; State of U.P. & Anr. v.
  Chandrapa/ Singh & Anr. AIR 2003 SC 4119: 2003 (2) SCR
  1062; Transport Commissioner, Madras - 5 v. A. Radha
  Krishna Moorthy (1995) 1 SCC 332; Director General, ES/ &
H                                182
      SECRETARY, MIN.OF DEFENCE & ORS. v.                  183
          PRABHASH CHANDRA MIRDHA
 Anr. v. T. Abdul Razak etc. AIR 1996 SC 2292: 1996 (3)           A
 Suppl. SCR 80 and Chairman-cum-Managing Director, Coal
 India Limited & Ors. v. Ananta Saha & Ors. (2011) 5 SCC
 142: 2011 (5) SCR 44 - relied on.

      Service Law - Misconduct - Disciplinary proceedings -
                                                                  8
 Chargesheet - Challenge to - Held: A chargesheet or show
 cause notice in disciplinary proceedings should not ordinarily
 be quashed by the Court - Chargesheet cannot generally be
 a subject matter of challenge as it does not adversely affect
 the rights of the delinquent unless it is established that the   C
 same has been issued by an authority not competent to initiate
 the disciplinary proceedings - Neither the disciplinary
 proceedings nor the chargesheet can be qliashed at an initial
 stage as it would be a premature stage to deal with the issues
 - Proceedings are not liable to be quashed on grounds that
 proceedings had been initiated at a belated stage or could       D
 not be concluded in a reasonable period unless the delay
 creates prejudice to the delinquent employee - Gravity of
 alleged misconduct is a relevant factor to be taken into
 consideration while quashing the proceedings.
                                                                E
       The State of Madhya Pradesh v. Bani Singh & Anr. AIR
  1990 SC 1308: 1990 Suppl. SCC 738; State of Punjab &
  Ors. v. Chaman Lal Goyal (1995) 2 SCC 570: 1995 (1) SCR
  695; Deputy Registrar, Cooperative Societies, Faizabad v.
  Sachindra f'Jath Pandey & Ors. (1995) 3 SCC 134; Union of F
  India & Anr. v. Ashok Kacker 1995 Supp (1) SCC 180;
  Secretary to Government, Prohibition & Excise Department
  v. L. Srinivasan (1996) 3 SCC 157: 996 (2) SCR 737; State
  of Andhra Pradesh v. N. Radhakishan AIR 1998 SC 1833:
  1998 (2) SCR 693; Food Corporation of India & Anr. v. V. P.
  Bhatia (1998) 9 SCC 131; Additional Supdt. of Police v. T. G
  Natarajan 1999 SCC (L&S) 646; M. V. Bijlani v. Union of India
  & Ors. AIR 2006 SC 3475: 2006 (3) SCR 896; P.O. Agrawal
  v. State Bank of India & Ors. AIR 2006 SC 2064: 2006 (1)
. Suppl. SCR 454; Government of A.P. & Ors. v. V. Appala
                                                                  H
    184    SUPREME COURT REPORTS              [2012] 6 S.C.R.


A Swamy (2007) 14 SCC 49: 2007 (2) SCR 19; Secretary,
  Forest Department & Ors. v. Abdur Rasul Chowdhury (2009)
  7 SCC 305; State of UP. v. Brahm Datt Sharma AIR 1987
  SC 943: 1987 (2) SCR 444; Executive Engineer, Bihar State
  Housing Board v. Ramesh Kumar Singh & Ors. (1996) 1 SCC
B 327: 1995 (5) Suppl. SCR 543; Ulagappa & Ors. v. Div.
  Commr., Mysore & Ors. AIR 2000 SC 3603: 2001 (10) SCC
  639; Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr.
  AIR 2004 SC 1467: 2004 (1) SCR 399; Union of India & Anr.
  v. Kunisetty Satyanarayana AIR 2007 SC 906: 2006 (9)
c Suppl. SCR 257; State of Orissa & Anr. v. Sangram Keshari
  Misra & Anr; (2010) 13 SCC 311 an~ Union of India & Ors.
  v. Upendra Singh (1994) 3 SCC 357 ·_ relied on.

                        Case Law Reference:

0    1982 (3) sec 200             relied on         Para 5
     1995 (2) sec 474             relied on         Para 5
     1996 (10) Suppl. SCR 156     relied on         Para 5
     2006 (3) SCR 373             relied on         Para 5
E
     1996 (1) SCR 977             relied on         Para 6
     1997 (11) sec 11             relied on         Para 7
     2003 (2) SCR 1062            relied on         Para 7
F    (1995) 1 sec 332             relied on         Para 8
     1996 (3) Suppl. SCR 80       relied on         Para 8
     2011 (5) SCR 44              relied on         Para 8
G    1990 Suppl. sec 738          relied on         Para 9
     1995 (1) SCR 695             relied on         Para 9
     (1995) 3 sec 134             relied on         Para 9
     1995 Supp (1) sec 1so        relied on         Para 9
H
     SECRETARY, MIN.OF DEFENCE & ORS. v.                  185
         PRABHASH CHANDRA MIRDHA
 1996 (2) SCR 737                relied on         Para 9        A

 1998 (2) SCR 693                relied on         Para 9
 (1998) 9 sec 131                relied on         Para 9
 1999 sec (L&S) 646              relied on         Para 9        B
 2006 (3) SCR 896                relied on         Para 9
 2006 (1) Suppl. SCR 454         relied on         Para 9
 2007 (2) SCR 19                 relied on         Para 9
                                                                 c
 (2009) 1 sec 305                relied on         Para 10
 1987 (2) SCR 444                relied on         Para 11
 1995 (5) Suppl. SCR 543         relied on         Para 11
 2001 (1 o) sec 639              relied on         Para 11       D

 2004 (1) SCR 399                relied on         Para 11
 2006 (9) Suppl. SCR 257         relied on         Para 11
 (2010) 13 sec 311               relied on         Para 12       E
 (1994) 3 sec 357                relied on         Para 12
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2333 of 2007.
                                                                 F
      From the Judgment & Order dated 26.2.2004 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in Writ
Petition No. 14674 of 1997.

     R.P. Bhatt, Sunita Sharma, B.V. Balaramdas, R. Bala, Anil
Katiyar for the appellants.                                      G

    The Order of the Court was delivered

                         ORDER

    1. This appeal has been preferred against the impugned       H
    186         SUPREME COURT REPORTS               [2012] 6 S.C.R.


A judgment and orders dated 26.2.2004 and 13.8.2004 passed
  by the High Court of Judicature at Hyderabad in Writ Petition
  No. 14674 of 1997, and in Review W.P.M.P. No. 18654 of
  2004. The issue involved in this case is as to whether the
  authority, lower or higher than of the appointing authority, can
B initiate the proceedings against the delinquent on grounds of
  alleged misconduct.

            2. Facts and circumstances giving rise to this appeal are
    that:

C      A. Respondent had been working as an Assistant
  Foreman in the Ordnance Factory, Yeddumailaram, when
  charge memo dated 8.1.1992 was issued to him on the
  alleged demand of bribe of Rs.37,000/- and acceptance of
  Rs.4, 150/- on 3.8.1991 in cash from the representative of firm
D M/s Teela International Limited, Hosur, Bangalore.

       B. Aggrieved by the said charge memo, respondent
  preferred O.A. No. 1641 of 1995 before the Central
  Administrative Tribunal, Hyderabad (hereinafter called as
E 'Tribunal') on 23.12.1995 on the ground that the charge memo
  had been issued to the respondent by the authority not
  competent to do so, being subordinate to his appointing
  authority.

        C. The said application was allowed vide judgment and
F order dated 4.1.1996 only on the ground that the officer who
  had issued the charge memo was subordinate to the appointing
  authority of the delinquent and thus, had no competence to
  initiate the disciplinary proceedings.

G         D. Aggrieved by the said order, a Review Application was
    filed by the appellants which was dismissed vide order dated
    20.3.1997.

       E. Aggrieved, the appellants filed the Writ Petition No.
    14674 of 1997 before the High Court which has been
H
     SECRETARY, .MIN.OF DEFENCE & ORS. v.                       187
         PRABHASH CHANDRA MIRDHA
dismissed vide impugned judgment and order dated                       A
30.6.2004. Review Application filed by the appellants also
stood dismissed vide order dated 13.8.2004.

     Hence, this appeal.

     3. This Court entertained the appeal vide order dated             B
30.4.2007 but did not grant any interim relief and in spite of
notice to the respondent, he did not enter appearance.

     4. The legal proposition has been laid down by this Court
while interpreting the provisions of Article 311 of the Constitution   c
of India, 1950 that the removal and dismissal of a delinquent
on misconduct must be by the authority not below the appointing
authority. However, it does not mean that disciplinary
proceedings may not be initiated against the delinquent by the
authority lower than the appointing authority.                         D

     5. It is permissible for an authority, higher than appointing
authority to initiate the proceedings and impose punishment,
in case he is not the appellate authority so that the delinquent
may not loose the right of appeal. In other case, delinquent has
to prove as what prejudice has been caused to him. (Vide:              E
Sampuran Singh v. State of Punjab, AIR 1982 SC 1407; Surjit
Ghosh v. Chairman and Managing Director, United
Commercial Bank & Ors., AIR 1995 SC 1053; Balbir Chand
v. FCI Ltd. & Ors., AIR 1997 SC 2229; and A. Sudhakar v.
Postmaster-General Hyderabad & Anr., (2006) 4 SCC 348).                F

     6. In Inspector General of Police & Anr. v. Thavasiappan,
AIR 1996 SC 1318, this Court reconsidered its earlier
judgments on the issue and came to the conclusion that there
is nothing in law which inhibits the authority subordinate to the      G
appointing authority to initiate disciplinary proceedings or issue
charge memo and it is certainly not necessary that charges
should be framed by the authority competent to award the
punishment or that the inquiry should be conducted by such an
authority.
                                                                       H
    188       SUPREME COURT REPORTS                   [2012) 6 S.C.R.


A       7. In Steel Authority of India & Anr. v. Dr. R.K. Diwakar &
    Ors., AIR 1998 SC 2210; and State of UP. & Anr. v.
    Chandrapal Singh & Anr., AIR 2003 SC 4119, a similar view
    has been reiterated.

8        8. In Transport Commissioner, Madras - 5 v. A. Radha
    Krishna Moorthy, (1995) 1 SCC 332, this Court held:

                "Insofar as initiation of enquiry by an officer
          subordinate to the appointing authority is concerned, it is
          well settled now that it is unobjectionable. The initiation can
C         be by an officer subordinate to the appointing authority.
          Only the dismissal/removal shall not be by an authority
          subordinate to the appointing authority. Accordingly it is
          held that this was not a permissible ground for quashing
          the charges by the Tribunal."
D
    (See also: Director General, ES/ & Anr. v. T. Abdul Razak etc.,
    AIR 1996 SC 2292; and Chairman-cum-Managing Director,
    Coal India Limited & Ors. v. Ananta Saha & Ors., (2011) 5
    sec 142).
E       9. Law does not permit quashing of chargesheet in a
  routine manner. In case the delinquent employee has any
  grievance in respect of the chargesheet he must raise the issue
  by filing a representation and wait for the decision of the
  disciplinary authority thereon. In case the chargesheet is
F challenged before a court/tribunal on the ground of delay in
  initiation of disciplinary proceedings or delay in concluding the
  proceedings, the court/tribunal may quash the chargesheet after
  considering the gravity of the charge and all relevant factors
  involved in the case weighing all the facts both for and against
G the delinquent employee and must reach the conclusion which
  is just and proper in the circumstance. (Vide: The State of
  Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308;
  State of Punjab & Ors. v. Chaman Lal Goyal, (1995) 2 SCC
  570; Deputy Registrar, Cooperative Societies, Faizabad v.
H Sachindra Nath Pandey & Ors., (1995) 3 SCC 134; Union of
     SECRETARY, MIN.OF DEFENCE & ORS. v.                    189
         PRABHASH CHANDRA MIRDHA
India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180;               A
Secretary to Government, Prohibition & Excise Department
v. L. Srinivasan, (1996) 3 SCC 157; State of Andhra Pradesh
v. N. Radhakishan, AIR 1998 SC 1833; Food Corporation of
India & Anr. v. V.P. Bhatia, (1998) 9 SCC 131; Additional
Supdt. of Police v. T. Natarajan, 1999 SCC (L&S) 646; M. V.        B
Bijlani v. Union of India & Ors., AIR 2006 SC 3475; P.O.
Agrawal v. State Bank of India & Ors., AIR 2006 SC 2064; and
Government of A.P. & Ors. v. V. Appala Swamy, (2007) 14
sec 49).
     10. In Secretary, Forest Department & Ors. v. Abdur           C
Rasul Chowdhury, (2009) 7 SCC 305, this Court dealt with the
issue and observed that delay in concluding the domestic
enquiry is not always fatal. It depends upon the facts and
circumstances of each case. The unexplained protracted delay
on the part of the employer may be one of the circumstances        D
in not permitting the employer to continue with the disciplinary
proceedings. At the same time, if the delay is explained
satisfactorily then the proceedings should be permitted to
continue.
                                                                   E
      11. Ordinarily a writ application does not lie against a
chargesheet or show cause notice for the reason that it does
not give rise to any cause of action. It does not amount to an
adverse order which affects the right of any party 1.,mless the
same has been issued by a person having no jurisdiction/           F
competence to do so. A writ lies when some right of a party is
infringed. In fact, chargesheet does not infringe the right of a
party. It is only when a final order imposing the punishment or
othe_rwise adversely affecting a party is passed, it may have a
grievance and cause of action. Thus, a chargesheet or show         G
cause notice in disciplinary proceedings should not ordinarily
be quashed by the Court. (Vide : State of U.P. v. Brahm Datt
Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State
Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1
SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors.,
                                                                   H
    190      SUPREME COURT REPORTS               [2012] 6 S.C.R.


A AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd.
  Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of
  India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906).

        12. In State of Orissa & Anr. v. Sangram Keshari Misra
B & Anr., (2010) 13 SCC 311, this Court held that normally a
  chargesheet is not quashed prior to the conclusion of the
  enquiry on the ground that the facts stated in the charge are
  erroneous for the reason that correctness or truth of the charge
  is the function of the disciplinary authority.

C       (See also: Union of India & Ors. v. Upendra Singh, (1994)
    3 sec 357).

        13. Thus, the law on the issue can be summarised to the
  effect that chargesheet cannot generally be a subject matter of
D challenge as it does not adversely affect the rights of the
  delinquent unless it is established that the same has been
  issued by an authority not competent to initiate the disciplinary
  proceedings. Neither the disciplinary proceedings nor the
  chargesheet be quashed at an initial stage as it would be a
E premature stage to deal with the issues. Proceedings are not
  liable to be quashed on the grounds that proceedings had been
  initiated at a belated stage or could not be concluded in a
  reasonable period unless the delay creates prejudice to the
  delinquent employee. Gravity of alleged misconduct is a relevant
F factor to be taken into consideration while quashing the
  proceedings.

       14. The instant case requires to be examined in the light
  of the aforesaid settled legal propositions. The respondent
  delinquent challenged the chargesheet on the ground that it had
G been issued by the authority not competent to do so. The
  Tribunal vide impugned order dated 4.1.1996 quashed the
  same only on the ground that the Deputy Director General of
  Ordnance Factory was the appointing authority of the delinquent
  employee and competent to impose the penalty referred to
H under the statutory rules. The chargesheet had been issued by _
     SECRETARY, MIN.OF DEFENCE & ORS. v.                       191
         PRABHASH CHANDRA MIRDHA
the authority subordinate to him. Thus, the same was not issued       A
by the competent authority.

      15. The said judgment and order of the Tribunal shows that
the present appellants were not represented nor any argument
had been advanced on their behalf as neither name of the
                                                                      B
counsel for the appellants has been mentioned rather the space
is left blank, nor any reference to his argument had been made.
The appellants filed a review petition according to which the
order had been passed by the Tribunal without giving an
opportunity to the appellants to file a detailed counter affidavit    C
and a plea had been taken that the authority which issued the
chargesheet had been authorised by the disciplinary authority
to serve the charge memo and conduct/conclude the enquiry
in the name and under the order of the competent authority.
However, the said authority was authorised to impose the
punishment.                                                           D

    The review has been rejected by a cryptic order. The High
Court concurred with the findings recorded by the Tribunal.

     16. Even before us, no order of authorisation in general
                                                                      E
or any rule permitting the competent authority to delegate its
power for conducting the enquiry has been produced. Thus, in
such a fact-situation, it is neither desirable nor possible to deal
with the issue, rather it is desirable that the issue be left open.

     Be that as it may, in case the Tribunal as well as the High      F
Court has permitted the appellants to proceed de novo, we fail
to understand why such a course was not adopted though the
appellants wasted 20 years in litigation without any purpose.

     17. However, in the instant case, the Tribunal has quashed       G
the chargesheet vide order dated 20th March, 1997 in respect
of misconduct alleged to have taken place on 31.8.1991.
Though the allegations against the delinquent had been very
serious i.e. demand and acceptance of bribe, a period of two
decades has passed since the alleged incident. Disciplinary
                                                                      H
    192      SUPREME COURT REPORTS                [2012] 6 S.C.R.


A proceedings could not be proceeded further as the
  chargesheet itself had been quashed. There is nothing on
  record to show that the respondent delinquent is still in service
  and that even if the appellants are permitted to proceed with
  the inquiry, the evidence which was available 21 years ago
8 would be available today.

         18. In view of the above, while leaving the question of law
    open, we do not want to proceed with the appeal further on
    merit.

C        The appeal is accordingly disposed of. No order as to
    costs.

    8.8.8.                                    Appeal disposed of.