2015(1) ALL MR 649
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE AND G.S. KULKARNI, JJ.
Employees' State Insurance Corporation & Ors. Vs. Shri A. V. Tungare & Ors.
Writ Petition No.2296 of 2002
14th March, 2014
Petitioner Counsel: Mr. SURESH KUMAR
Respondent Counsel: Mr. RAMESH RAMAMURTHY
Constitution of India, Art.311 - Evidence Act (1872), S.58 - Disciplinary proceedings - Delinquent accepted all charges in inquiry proceeding and pleaded for lenient view - Thanks letter written to Director General wherein also request made to take a lenient view - Admission of charges appear to be voluntary - Plea that defence assistant and inquiry officer collusively induced him to admit charges - Raised only in appeal and not earlier - Admissions would not lose its efficacy - Charges not required to be proved in terms of S.58 of Evidence Act - Closure of inquiry at such stage and order of dismissal justified. AIR 1961 SC 1070 Disting. (Paras 17, 25, 29)
Jagdish Prasad Saxena Vs. State of Madhya Bharat, AIR 1961 SC 1070 [Para 14,16,26,27,28]
Additional District Magistrate (City) Vs. Prabhakar Chaturdevi & anr., (1996) 2 SCC 12 [Para 15,18]
Delhi Transport Corporation Vs. Shyam Lal, (2004) 8 SSC 88 [Para 15,20]
Chairman & Managing Director Vs. Goparaju Sri Prabhakar Hari Babu, 2008 ALL SCR 1923 =(2008) 5 SCC 69 [Para 15,21]
Manoj H.Mishra Vs. Union of India, 2013 ALL SCR 1621 =(2013) 6 SCC 313 [Para 15,22]
Channabasapa Basappa Happali Vs. The State of Mysore, 1971 (1) SCC 1 [Para 15,19,28]
Kolhapur Zilla Sahakari Dudh Utpadak Sangh Vs. Shivaji Shankar Pharakate & anr., 2009(1) ALL MR 591=2009 (Supp) Bom.C.R.716 [Para 15,24]
Canara Bank Vs. H.T.Koli & anr., (2000) III LLJ 277 Bom [Para 15,23]
G. S. KULKARNI, J. :- What are the consequences of admission of charges by a delinquent employee before the Inquiry Officer in a disciplinary inquiry and whether after recording of such admissions, the inquiry can still proceed or can be closed to submit a inquiry report is the moot issue which arises in the present proceedings.
2. By the present petition under Article 226 of the Constitution of India, the Employees State Insurance Corporation challenges the judgment and order dated 8.3.2002 passed by the Central Administrative Tribunal Mumbai Bench in Original Application No.808 of 1994. By the impugned Judgment the Central Administrative Tribunal has allowed the Original Application filed by the Respondent who was the employee of the Employees State Insurance Corporation whereby the order of termination of the 1st respondent's services is quashed and set aside. It is held that the 1st respondent would be entitled to 50% of the wages from the date of dismissal from service up to the date of his reinstatement. It was further directed that the petitioner would be at liberty to proceed against the 1st Respondent as per law.
The facts in nutshell are :
3. The 1st respondent was in the service of the 1st petitioner since the year 1978. In the year 1990 the 1st respondent was working as Manager Grade -1 at the local office of the 1st petitioner Corporation at Akola. Thereafter the 1st respondent was posted in Tamil Nadu Circle when the charge sheet dated 23.5.1990 was issued to the 1st respondent by the petitioner. The statement of articles of charges contained 11 charges in respect of various acts of the 1st respondent during the period 1.5.1984 to 1.9.1988 when the 1st respondent was posted at Akola in Nagpur Sub-region. It was alleged that the various acts of commission and omissions amounted to violation of rules under the CCS (Conduct) Rules, 1964 read with the Employees State Insurance Corporation (Staff and Conditions of Services) Regulations 1959. The statement of imputations of misconduct was also furnished to the 1st respondent enumerating the basis and the details of various charges. Further various documents in support of the charges were also furnished to the 1st respondent.
4. The 1st respondent filed his reply to the charge sheet and denied all the charges. Shri S.R.Srinivasan the then Joint Regional Director (DE) South Zone Madras was appointed as an Inquiry Officer to conduct the inquiry under the said charge sheet. Shri. Srinivasan held a preliminary inquiry at Nagpur where the 1st respondent states that the charges as levelled against him were denied by him. After the first hearing held on 5.12.1990 Shri S.R.Srinivasan retired on superannuation. Therefore, by an order dated 10.5.1991 issued by the 1st petitioner Shri H.P. Rane the Joint Regional Director Sub-Regional office, Nagpur was appointed as the Inquiry Officer. Shri.S.K.Noor Ahmed was appointed as the presenting officer for the department to replace Shri S.R.Natrajanan who was earlier appointed as the presenting officer. At the hearing of the inquiry, fixed on 23.9.1991 the 1st respondent expressed his inability to appear as he was on leave on medical grounds. The inquiry proceedings were therefore adjourned to 6.1.1992 on which day the 1st respondent appeared and stated that he has already denied all the charges at the hearing held on 5.12.1990. At the said hearing, the 1st respondent also confirmed receipt of the copies of the documents as relied upon by the department in support of the charges as also inspection of the same was given after which the 1st respondent stated that he did not want call for any additional documents and that he did not wish to produce any witness in support of his defence. A regular inquiry was fixed on 21.7.1992 and the same was adjourned to 3.12.1992.
5. On 3.2.1992 the 1st respondent appeared before the Inquiry Officer and requested for engaging the services of Shri J.D.Barahate (Legal Inspector) of the 1st petitioner Corporation as his defence Assistant. This request of the 1st respondent was accepted by the Inquiry Officer and it was indicated that the inquiry can commence as the initial formalities of inspection of documents and furnishing copies thereof was over. At the said hearing the defence assistant Shri J.D.Barahate made a submission that though the 1st respondent had pleaded not guilty to all the 11 charges in the charge sheet, the 1st respondent wanted to change his plea and now wants to plead guilty to all the 11 charges, since on a second thought he was satisfied that the substance in each of the charges was correct. The Defence Assistant therefore, sought permission for changing the plea and for pleading the guilty to all the 11 charges.
6. In this regard, in the recording of the inquiry proceedings of 3.2.1992 all the 11 charges which were independently enumerated under which the respondent made the following handwritten endorsement below every charge :
"I accept the charge"
S/d (A.V.Tungare) 3.2.1992
The Inquiry Officer recorded that in view of the unconditional admission of the charges, there would not be a necessity to go ahead with the inquiry proceedings since all the charges stood proved in totality. The Inquiry Officer asked the 1st respondent whether he had anything further to to say by way of submission in writing. Accordingly, a letter dated 3.2.1992 was submitted by the 1st respondent as also signed by the defence assistant addressed to the Joint Regional Director in charge Sub-Regional office, ESI Corporation Nagpur. The letter reads as under :
The Joint Regional Director (I/O)
Subject: Departmental Enquiry against me pending before you.
I have to submit that I have carefully gone through the charges No.1 to 11 levelled against me for holding departmental Enquiry against me for misconduct and misbehaviour.
In this connection, I have to submit that the omissions and lapses enumerated in the charge sheet were not deliberate on my part or with an ulterior motive to gain something for me. They have occurred innocently during the course of discharging my duties as a Manager for which I sincerely tender my apology.
I voluntarily and unconditionally plead guilty for all the charges levelled against me and humbly request you to kindly pardon me for the same. I have further to submit that these omission and mistakes were occurred only because of the mental disturbance on account of family problems.
I have to submit that my humble request of taking lenient view in awarding the punishment in my case may kindly be conveyed to the Disciplinary Authority for which act of kindness, I shall remain highly obliged.
Thanking you in anticipation,
The defence Assistant of the 1st respondent made oral submissions that it is a fact that lapses occurred on the part of the 1st respondent. However, all the lapses were on account of the disturbed mental condition of the 1st respondent and he had committed the offences without understanding the serious implications involved. It was further submitted that because of the disturbed state of mind on account of certain domestic problems, the 1st respondent was not having balance equilibrium of mind in the result he committed the lapses for which he felt repented and was seeking pardon having realized the mistakes he had committed. It was further submitted by the defence Assistant that if the Corporation had been subjected to any monetary loss on account of the lapses of the 1st respondent he was ready to compensate the Corporation by making good the relevant losses. It was stated that this request may be communicated to the disciplinary authority as a special case with a request that this submission may be kept in view while awarding the punishment if any. It was further submitted that the lapses that were committed by the 1st respondent were not intentional and was made in a disturbed state of mind and hence he was requesting for a minimum penalty that is prescribed under the provisions of law and further submitted that he would be vigilant, very faithful and very loyal and sincere in the performance of his duties and will not give any room for any such complaint was also recorded in the inquiry proceedings. The Inquiry Officer recorded that accordingly the 1st respondent was informed that on account of the fact that the 1st respondent had unconditionally and voluntarily pleaded guilty to all the charges the inquiry is not required to be proceeded and that Shri Kumbhar the Regional Director and Mr.P.N.Dharmadhikari the Audit Inspector who were present as witnesses of the management were therefore, discharged. The aforesaid recording of the inquiry proceedings dated 3.2.1992 was duly signed by the 1st respondent and the defence Assistant and all others who were present.
7. The 1st respondent thereafter addressed a letter dated 29.5.1992 to the Director General of the 1st petitioner stating that as regards the inquiry report he had no comments to offer and requested to take a lenient view. By a detailed order dated 7.7.1992 passed by the disciplinary authority, it was recorded that the charges which were admitted were extremely serious. It was recorded that there were no extenuating circumstances in this case and that the 1st respondent was not a fit person to be retained in the service of the 1st Corporation and hence the penalty of dismissal was imposed on the 1st respondent.
8. The 1st respondent being aggrieved by the dismissal order dated 7.7.1992 preferred an appeal dated 25.8.1992 before the Chairman Standing Committee of the ESIC in which the 1st respondent inter alia contended that the inquiry report had proceeded on a presumption that the 1st respondent had admitted all the charges levelled against him and that from the inception he had denied all the charges and that the same were wrongly framed against him. The 1st respondent contended that the Inquiry Officer had told him that if he did not plead guilty the inquiry will prolong for years and that the charges were not serious and therefore the disciplinary authority had not suspend the 1st respondent and therefore, if he pleaded guilty it would save the 1st respondent from further mental harassment and torture and only a minor punishment would be imposed against him. It was prayed that the order of dismissal be set aside and he be reinstated in service.
9. The Appellate authority by an order dated 1.6.1993 rejected the appeal filed by the 1st respondent. The 1st respondent thereafter preferred a Revision Petition under Regulation 22 of the Employees State Insurance Corporation (Staff and Conditions of Service) Regulation, 1959 before the Secretary, Government of India, Ministry of Labour. By an order dated 17.12.1993 it was held that the Revision Petition was not maintainable.
10. The 1st respondent in the aforesaid circumstances approached the Central Administrative Tribunal, Mumbai Bench, by filing Original Application No.808 of 1994 under Section 19 of the Administrative Tribunals Act praying for a declaration that the 1st respondent had not pleaded guilty to the charges levelled against him and that the charge sheet dated 23.5.1990, the Inquiry Officer's report dated 3.4.1992 were not sustainable in law and that the Inquiry Officer had acted with bias and prejudice in active connivance with the defence Assistant and hence the order of dismissal and order of the appellate authority and the Revisional authority were bad-in-law. The Central Administrative Tribunal by its Judgment dated 20.10.2000 set aside the order of dismissal and subsequent orders passed by the appellate authority and the Revisional authority and remanded the matter to the disciplinary authority to examine whether there was clear admission of guilt by the 1st respondent and whether it was not obtained by conspiracy between the defence Assistant and the Inquiry Officer with an assurance that a lenient view in awarding penalty shall be granted. Against this judgment and order of the Central Administrative Tribunal,Mumbai Bench, Mumbai cross Writ petitions were filed. The petitioners was aggrieved to the extent that the order of dismissal passed by the disciplinary authority as confirmed by the appellate authority was set aside. The 1st respondent was aggrieved to the extent that the Central Administrative Tribunal directed the disciplinary authority to examine whether there was clear admission of the guilt of the 1st respondent and to test the allegation of conspiracy between the defence Assistant and the Inquiry officer.
11. A Division Bench of this Court by its judgment and order dated 23.4.2001 set aside the judgment and order dated 20.10.2000 passed by the Central Administrative Tribunal and restored Original Application No.808 of 1994 to the file of the Central Administrative Tribunal directing that the same be disposed in accordance with law after hearing the parties. In pursuance thereto, the Central Administrative Tribunal by the impugned judgment dated 8.3.2002 adjudicated the Original Application as filed by the 1st respondent whereby the Original Application filed by the 1st respondent was allowed. The Central Administrative Tribunal set aside the order dated 7.7.1992 dismissing the 1st respondent from service and held that the 1st respondent was entitled for 50% wages from the date of dismissal from service till the reinstatement.
12. The present petition was admitted by an order dated 13.9.2002 and by an interim order implementation of the impugned judgment and order of the Central Administrative Tribunal was stayed. During the pendency of the present writ petition, the 1st respondent had attained the age of superannuation on 31.12.2011.
13. We have heard Mr.Suresh Kumar learned counsel appearing for the petitioner and Mr.Ramesh Rammurthy learned counsel appearing for the 1st respondent. With the assistance of the learned counsel for the parties, we have gone through record of the present proceedings.
14. Learned counsel for the petitioner has submitted that the Central Administrative Tribunal has erred in allowing the Original application filed by the 1st respondent when it was an admitted position that the 1st respondent had accepted/agreed to all the charges by a statement made in writing before the Inquiry Officer. He further submits that the 1st respondent further by a letter dated 3.2.1992 addressed to the Regional Director requested to take a lenient view on the ground that he has voluntarily and unconditionally pleaded guilty to all the charges. He submits that not only this but the 1st respondent thereafter by a letter dated 29.5.1992 addressed to the Director General of the 1st respondent again requested to take a lenient view which further compounded the voluntary admission of guilt in respect of all the charges as levelled against him. Learned counsel for the petitioner submits that the reliance on behalf of the 1st respondent on the judgment of the Supreme Court in the case of Jagdish Prasad Saxena vs.State of Madhya Bharat, AIR 1961 Supreme Court 1070 as observed by the Central Administrative Tribunal was misplaced as the same had no application in the facts of the present case. He further submits that on merits the Central Administrative Tribunal could not have come to a conclusion that the charges against the 1st respondent are not proved. He submits that there is an admission made by the 1st respondent before the Inquiry Officer and his subsequent conduct has not been considered by the Central Administrative Tribunal.
15. Learned counsel for the petitioner has relied upon the following judgments in support of his submission that once the charges are admitted by a delinquent employee, a different stand cannot be taken and that as a logical consequence of the admission of charges, necessarily no further inquiry is required to be undertaken by the disciplinary authority :-
"Additional District Magistrate (City) vs Prabhakar Chaturdevi & anr" (1996) 2 SCC 12, Delhi Transport Corporation vs Shyam Lal (2004) 8 SCC 88, Chairman & Managing Director vs Goparaju Sri Prabhakar Hari Babu (2008) 5 SCC 69 : [2008 ALL SCR 1923], Manoj H.Mishra vs Union of India (2013) 6 SCC 313 : [2013 ALL SCR 1621], Channabasapa Basappa Happali vs The State of Mysore 1971 (1) SCC 1, Kolhapur Zilla Sahakari Dudh Utpadak Sangh vs.Shivaji Shankar Pharakate & anr. 2009 (Supp) Bom.C.R. 716 : [2009(1) ALL MR 591], Canara Bank vs H.T.Koli & anr. (2000) III LLJ 277 Bom.
16. On the other hand, Learned counsel appearing on behalf of the 1st respondent would submit that the impugned judgment and order passed by the Central Administrative Tribunal does not call for any interference in the present proceedings in as much as the same has been passed in consonance with the observations of the Supreme court in case of Jagdish Prasad Saxena vs.State of Madhya Pradesh (supra). Relying upon this judgment of the Supreme Court, he submits that the Inquiry Officer on the basis of the said admissions ought not to have closed the inquiry and ought to have proceeded with the inquiry proceedings so as to ascertain whether the management proves the various charges as levelled against the 1st respondent in the charge sheet. He submits that in this case the 1st respondent was influenced by the defence Assistant and the Inquiry Officer to agree to the charges in the inquiry proceedings held on 3.2.1992. He submits that the disciplinary authority and the appellate authority has failed to consider the grievance of the 1st respondent and circumstances under which admissions of the charges came to be made by the 1st respondent. He would submit that there was no prejudice whatsoever caused to the petitioners if the petitioners on granting reinstatement proceed against the petitioner to hold a departmental inquiry as per law to establish the charges.
17. Having considered the rival submissions of the parties we may note that the indisputed facts are that a charge sheet dated 23.5.1990 containing 11 charges was issued to the 1st respondent. An Inquiry Officer was duly appointed to conduct a departmental enquiry. All the documents in support of the charges were duly furnished to the 1st respondent. An opportunity was given to the 1st respondent to represent his case before the Inquiry Officer. The 1st respondent also appointed Shri J.D.Barahate as his defence Assistant. In the inquiry proceedings held on 3.3.1992 the 1st respondent submitted an unconditional acceptance of all the charges and pleaded for a lenient view to be taken in the matter against him. Furthermore, the 1st respondent also submitted a letter dated 3.2.1992 stating that he has voluntarily and unconditionally pleaded guilty to all the charges levelled against him and reiterated that he be pardoned for the same. The 1st respondent further submitted a letter to the Director General dated 29.5.1992 in which the 1st respondent thanked the Director General for relieving him of the botheration of the departmental inquiry and stated that he has no comments to offer in respect of the inquiry report and made a request to take a lenient view in view of the reasons as stated by him in the said letter. These circumstances clearly go to show that admissions of the charges were voluntary and not due to any undue influence on the part of the defence Assistant and the Inquiry Officer. However, contrary to the said position in the Memorandum of Appeal filed against the order of dismissal the 1st respondent for the first time took a stand that he had admitted to the charges as he was told to do so by his defence Assistant and the Inquiry Officer. It is noteworthy that the 1st respondent at no point of time either in the enquiry proceedings or before filing of the appeal made any grievance about the alleged collusive conduct of the defence assistant and the inquiry officer to induce him to admit the charges. No grievance of any duress, force or presence was ever made. In fact, the 1st respondent's letters dated 3.2.1992 and 29.5.1992 completely nullify such a plea as taken by the 1st respondent before the Appellate Authority. We do not think it was permissible in law for the 1st respondent to adopt such a contrary position to retract from the admissions as made before the Inquiry Officer and the same was a clear after thought. Admissions made before the Inquiry Officer would not loose their efficacy and relevance for the purpose of the wheels of the inquiry set into motion unless there are acceptable reasons that the same are not voluntary or are under force or duress.
In this context, to appreciate the consequence of admission of a fact the general position in law can be seen by referring to the provisions of Section 58 of the Evidence Act. Section 58 deals with the facts which are admitted and hence not required to be proved. It provides that no fact need to be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. The proviso to this section states that the Court may in its discretion, require the facts to be admitted to be proved otherwise than by such admissions.
The 1st respondent in writing had admitted to the charges and hence as a legal requirement such admission becomes relevant. The charges which are admitted by the 1st respondent were not required to be proved and the inquiry can be said to be rightly closed. Pertinently the 1st respondent agreed to close the enquiry.
The Judgment of the Supreme Court in the case of Additional District Magistrate (city) Agra vs Prabhakar Chaturdevi & anr (supra) dealt with a case arising out of misappropriation of money by an employee who had admitted the fact in writing. After a disciplinary inquiry, the employee was dismissed from service. His statutory appeal also failed. In a Writ petition filed by the employee before the High Court of Judicature at Allahabad, the same was allowed by the learned Single Judge on the ground that the authorities had not given adequate opportunity to the employee to defend as he was not permitted to examine witnesses nor he was supplied the documents, the dismissal order was quashed and set aside and the employee was directed to be reinstated with full back wages. In a challenge to the said order of the Allahabad High Court before the Supreme Court, the Supreme Court observed as under :
"4. ........................in our view, the High Court has erred in ignoring the salient features of the case namely that Respondent himself by his statement dated 14.12.1984 admitted to have received an amount of Rs.21,000/- and odd and which could not be deposited by him alongwith his associate on account of their carelessness and fault. It is difficult to appreciate how the said statement could be said to have been brought about by any coercion as tried to be submitted on behalf of the respondent. But even apart from that the order sheet of the Enquiry officer clearly shows that Respondent Prabhakar as well as Sajan Kumar had submitted that they have not to give any documentary or oral evidence and that is how their evidence was closed. Under these circumstances the subsequent request by Respondent to examine four more witnesses was rightly considered by the Enquiry Officer to be an afterthought and accordingly such request was rightly rejected. In fact, on account of the clear admission contained in writing given by Respondent on 14.12.1984 the charge against him stood proved on admission and the only question that remained to be considered was about the nature of punishment to be imposed on him." (emphasis supplied)
4. "The pleas of the petitioner are quite clear. In fact he admitted all the relevant facts on which the decision could be given against him and therefore it cannot be stated that the enquiry was in breach of any principle of natural justice. At an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence. In this case, the facts were two-fold that he had stayed beyond the sanctioned leave and that he had proceeded on a fast as a demonstration against the action of the authorities and also for what he called the upliftment of the country etc. These facts were undoubtedly admitted by him. His explanation was also there and it had to be taken into account. That explanation is obviously futile, because persons in the police force must be clear about extension of leave before they absent themselves from duty. Indeed this is true of everyone of the services, unless of course there are circumstances in which a person is unable to rejoin service, as for example when he is desperately ill or is otherwise reasonably prevented from attending to his duties. This is not the case here. The petitioner took upon himself the decision as to whether leave could be extended or not and acted upon it. He did go on a fast. His later explanation was that he went on a fast for quite a different reason. The enquiry officer had to go by the reasons given by him. On the whole therefore the admission was one of guilty in so far as the facts on which the enquiry was held and the learned Single Judge in the High Court was, in our opinion right in so holding." (emphasis supplied)
"7. We find that the Tribunal's conclusions are prima facie not correct. The statement made by the passenger who had paid excess money to the checking officer is not in the nature of hearsay evidence. Additionally, the effect of the admission regarding guilt as contained in the letters dated 13.1.1989 and 24.2.1989 have not been considered in the proper perspective. It is a fairly settled position in law that admission is the best piece of evidence against the person making the admission. It is however, open to the person making the admission to show why the admission is not to be acted upon." (emphasis supplied)
21. The judgment of the Supreme Court in Chairman and Managing Director vs Goparaju Sri Prabhakar Haribabu, [2008 ALL SCR 1923] (supra) dealt with an issue arising out of disciplinary proceedings. A charge sheet was issued to the delinquent employee, for absence without leave for a period of 53 days, the employee had admitted the charges and promised to be regular. In the disciplinary proceedings the employee had accepted his guilt whereupon the inquiry proceedings were closed recording the admission of the charges as made by the employee. The disciplinary authority upon consideration of the inquiry report held the employee guilty of all the charges and ordered removal from service. In this context, the Supreme Court observed as under :
"16. He in his explanation in answer to the charge sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceedings was closed. Before the enquiry officer,he did not submit the explanation of his mother being ill. He despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct."
18. It was observed that judicial admissions can be made the foundation of the rights of the parties.
19. A subsequent explanation before another authority, which had not been pleaded in the departmental proceedings, cannot by itself be a ground to hold that the principles of natural justice had not been complied with in the disciplinary proceedings. (emphasis supplied)
"35. In our opinion, the learned Single Judge and the Division Bench have not committed any error in rejecting the submissions made by the learned counsel for the appellant. We are not inclined to examine the issue that the actions of the appellant would not constitute a misconduct under the Rules. In view of the admissions made by the appellant, no evidence was adduced before the enquiry officer by either of the parties. Once the enquiry officer had declined to accept the conditional admissions made by the appellant, it was open to him to deny the charges. But he chose to make an unequivocal admission instead of reiterating his earlier denial as recorded in preliminary hearing held on 26-12-1994. The appellant cannot now be permitted to resile from the admission made before the enquiry officer. The plea to reopen the enquiry has been rejected by the appellate as well as the revisional authority." (emphasis supplied)
23. Learned counsel on behalf of the petitioner is also justified in relying on the judgment of the learned Single Judge of this Court Mr.Justice R.M.Lodha, (as His Lordship then was) in case of Canara Bank vs H.T.Koli. (supra). Dealing with a case arising out of admission of the guilt in para 6,7 and 8 the following observations were made:
"6. Once the defence of the employee that his statement made on May 20, 1982 and May 21, 1982 was recorded under duress or force or pressure is not accepted, the admission of the employee in unequivocal term proves his misconduct. I have already observed above that the facts and circumstances of the case do not justify the conclusion that the statement made by the employee on May 20, 1982 and May 21, 1982 was not voluntary or was recorded under pressure or force and therefore, the only conclusion that can be drawn on the basis of the employee's admission is that the charge against him is proved.
7. Thus, the finding recorded by the Industrial Tribunal that the charge against the employee is not proved cannot be sustained.
8. Looking to the serious and grave nature of misconduct of fraud and forgery committed by the employee defrauding the employer-bank and causing substantial monetary loss, it cannot be said that the punishment of dismissal inflicted by the employer-bank was unjustified or shockingly disproportionate to the charge which has been held proved."
24. Learned counsel for the petitioner is also justified in relying upon a similar view taken by the learned Single Judge of this Court by Dr.Justice D.Y.Chandrachud (as His Lordship then was) in the case Kolhapur Zilla Sahakari Dudha Utpadak Sangh vs Shivaji Shankar Pharakate & anr., [2009(1) ALL MR 591] (supra) wherein the delinquent employee had admitted the charges where the Industrial Court despite admission of the charges had ordered reinstatement, it was observed in paras 9 and 10 as under :
"9. The record of the enquiry discloses that the workmen were permitted to be defended by an Advocate. After the enquiry had commenced upon the issuance of a charge sheet, the evidence of the managements' witness, the Managing Director of the petitioner, was recorded on 11th June, 1990. On 27th February, 1991 proceedings took place in the course of the enquiry. The Enquiry Officer noted that the workmen had submitted a representation accepting the allegation of misconduct contained in the charge sheet dated 8th August, 1989. The Enquiry Officer posed several questions to the workmen to verify as to whether the representations were addressed by the workmen; whether they were voluntary or otherwise and whether the allegations of misconduct were accepted to the workmen. To this the answer was in the affirmative. In the letter addressed by the First respondent to the Enquiry Officer, the incident which took place on 1st April 1989 was not denied. There was an acceptance of the fact that the workmen were apprehended when they had filled a privately owned tanker on the night of the date of the incident but it was stated that this was all done at the behest of a superior. The workmen prayed that they may be reinstated in service."
10. Now there can be no dispute about the fundamental principle of law that an admission of misconduct, in order to be acceptable as a ground for holding that the charge is proved, must not be qualified or conditional. The record of the enquiry dated 27th February 1991 would in fact reveal that the incident which took place on 1st April 1989 was not disputed. The presence of the workmen at 1.30 a.m. on 1st April 1989, the presence of a private tanker which was brought into the premises of the chilling plant and the role of the workmen in actually assisting and facilitating the filling up of 10,000 litres of milk in the tanker is not in dispute. It must be noted that it was not the defence of the workmen that the incident did not take place or that they were falsely implicated. The defence of the workmen at all material times was that they had acted thus in compliance with the direction of the superior. In these circumstances, the Enquiry Officer made due enquiries with the workmen on whether the statement was voluntarily furnished and it was only upon his satisfaction that this was so that the enquiry was closed. The Labour Court noted that in the enquiry proceedings both the complainant workmen as well as their Advocate put down their signatures. Once this was the case, the Labour Court was justified in coming to the conclusion that the charge of misconduct stood proved." (emphasis supplied)
25. Having considered the aforesaid settled position in law that once an employee has admitted to the charges and that there is no cogent material to show that the admission of the charges was recorded under duress or force or pressure and that the admission was unconditional and in unequivocal terms, no fault can be found in the Inquiry Officer closing the inquiry proceedings. In the present case the disciplinary authority on the basis of the inquiry report which recorded the admission of the 1st respondent held that the charges have been proved. In our view, there was nothing unlawful on the part of the disciplinary authority proceeding on such admission made by the 1st respondent to pass the order of dismissal considering the seriousness of the charges.
26. In this background, there is merit in the submissions which are urged on behalf of the petitioner that the Central Administrative Tribunal could not have set aside the order of dismissal as passed by the disciplinary authority. There is also merit in the submission made by learned counsel appearing on behalf the petitioner that the judgment in case of Jagdish Prasad Saxena vs State of Madhya Bharat (supra) was not applicable in the facts of the present case on which much reliance was placed by the learned counsel appearing on behalf of the 1st respondent. In this judgment, the Supreme Court was dealing with a case where a charge sheet was issued to the delinquent employee on the basis of the alleged admissions he had made in the course of inquiry directed against some other government servant in connection with commission of certain offences, later on the delinquent employee was removed from service on the strength of the alleged admission without holding a formal inquiry as required by the Service Rules. In these circumstances, it was held by the Supreme Court that the statement made by the delinquent employee did not amount to unambiguous or clear admission of his guilt and failure to hold a formal inquiry constituted a serious infirmity in the order of dismissal passed against him. It is in this context their Lordships of the Supreme Court made the following observations in para 11:
"11. It is true that the appellant specifically admitted during the course or the previous enquiry that illegal liquor had been delivered to the contractor, and that he had given the key of the receiver to Narona. It is on the strength of those admissions that the High Court took the view that the appellant had substantially admitted his guilt and so there was really no need for holding a formal enquiry against him after the charge sheet was supplied to him. In this connection it is necessary to remember that the previous enquiry was not directed against the appellant as such, and he was certainly not in the position of an accused in the said enquiry. In fact, as we have already indicated, the result of the said enquiry Swas that the appellant was absolved from any complicity in the commission of the offence, and the only criticism made against him was that he was slack in his supervision, that is why he was transferred. In such a case, even if the appellant had made some statements which amounted to admission it is open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules. But apart from this consideration, if the statements made by the appellant do not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry would certainly constitute a serious infirmity in the order of dismissal passed against him. ........."
27. It is therefore, clear that the facts in the case of Jagdish Prasad Saxena (supra) were quite different in as much as the employee was proceeded without a departmental inquiry and hence the ratio in the said judgment would not be applicable in the facts of the present case.
28. It is noteworthy that the judgment in the case of Jagdish Prasad vs State of Madhya Pradesh (supra) was considered by the Supreme Court in case of Channabasappa Basappa Happali vs.The State of Mysore (supra) and it was held that the Judgment was clearly distinguishable.
29. In view of the aforesaid discussion, we are of the view that the Central Administrative Tribunal is in a clear error in directing reinstatement of the 1st respondent with 50 % back wages and permitting the disciplinary inquiry on reinstatement by allowing the original Application filed by the 1st respondent. The findings of the Central Administrative Tribunal are also contrary to the aforesaid legal position and hence cannot be sustained.
30. In the result, Writ Petition is allowed. The judgment and order dated 8.3.2002 passed by the Central Administrative Tribunal, Mumbai Bench,Mumbai in O.A. No. 808 of 1994 is quashed and set aside. Rule is made absolute in terms of prayer clause (a).
No order as to costs.