BHARAT PETROLEUM CORPORATION LIMITED AND OTHERSversusANIL PADEGAONKAR

                          [2020] 5 S.C.R. 201                             201


            BHARAT PETROLEUM CORPORATION                                  A
                 LIMITED AND OTHERS
                                  v.
                      ANIL PADEGAONKAR
                   (Civil Appeal No. 9778 of 2010)                        B
                          MARCH 17, 2020
        [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
       Bharat Petroleum Limited Conduct, Discipline and Appeal
Rules for Management Staff, 1976 – rr.3(e), (g), (h) – Part III
                                                                          C
B(2)(e), (f); Part III-A, Clauses 6 & 10; Part III-F(1), (23); Sr.1(a),
(b) of Schedule I – Respondent was working as Aviation Officer
at the General Aviation Service Station, Gwalior, in the management
cadre in Job Group ‘A’ – Charge-sheet issued to him by Deputy
General Manager (Aviation) alleging that fresh sand particles were
found in all the 10 fuel tanks after his duty hours – Fresh charge-       D
sheet issued w.r.t his absence from duty – Respondent discharged
from service – Departmental appeal was rejected – Single Judge
ordered remand – Corporation was granted liberty in appeal to
issue fresh charge-sheet w.r.t first charge and to pass a lesser order
of punishment w.r.t second charge – Held: Respondent was posted
                                                                          E
at Air Force Station Gwalior – Nature of his duties had an inherent
seriousness – A finding of guilt was arrived at by enquiry officer
w.r.t both the charges – In his departmental appeal, respondent
raised no issues of procedural irregularity with consequent
prejudice – Common order of punishment of ‘discharge’ from
service followed u/Part III B(2)(e) of the Rules – No order of            F
‘dismissal’ was passed u/Part III-B (2) (f) – If the Corporation was
of the opinion that ‘dismissal’ was the appropriate punishment in
the facts of the case nothing prevented it from stating so – High
Court fell in serious error by opining that the employee had been
‘dismissed’ from service and on that premise arrived at the
                                                                          G
conclusion that the charge-sheet was incompetent in absence of it
having been issued by Functional Director, the disciplinary
authority for punishment of dismissal only – First charge-sheet was
issued by an authority competent to do so – Order of discharge
calls for no interference – Direction for issuance of fresh charge-
sheet is set aside – Service Law.                                         H
                                  201
202           SUPREME COURT REPORTS                      [2020] 5 S.C.R.


A           Disposing of the appeals, the Court
            HELD: 1.1 A finding of guilt was arrived at by the enquiry
      officer with regard to both the charges. The employee in his
      departmental appeal raised no issues of procedural irregularity
      with consequent prejudice. A common order of punishment of
B     ‘discharge’ from service dated 21.05.1997 followed under Part
      III B (2)(e) of the Bharat Petroleum Limited Conduct, Discipline
      and Appeal Rules for Management Staff, 1976. No order of
      ‘dismissal’ was passed under Part III-B (2)(f) of the Rules. If
      the Corporation was of the opinion that ‘dismissal’ was the
      appropriate punishment in the facts of the case nothing
C     prevented it from stating so. The High Court fell in a serious
      error by opining that the employee had been ‘dismissed’ from
      service and on that premise arrived at the conclusion that the
      charge-sheet was incompetent in absence of it having been
      issued by the Functional Director who was the disciplinary
D     authority under Sr. 1 (b) of Schedule I under Part III of the Rules
      for dismissal. [Para 9] [206-D-G]
            1.2 Sr. 1 (a) of Schedule I, to be read with Part III of the
      Rules, provides that with regard to Job Group ‘A’ the Functional
      General Manager was the disciplinary authority for all other
E     penalties except that of dismissal. The Functional Director was
      the disciplinary authority for punishment of dismissal only. In
      view of the conclusion that the first charge-sheet had been
      issued by an authority competent to do so, the order of
      discharge calls for no interference. The direction for issuance
      of fresh charge-sheet is therefore is set aside. [Paras 11, 14]
F     [207-B-C; 208-D-E]
            H.V. Nirmala v. Karnataka State Financial Corporation
            (2008) 7 SCC 639 : [2008] 7 SCR 1157 ; S.R. Tewari
            v. Union of India and Another (2013) 6 SCC 602 :
            [2013] 8 SCR 988 ; Union of India v. B.V. Gopinath
G           (2014) 1 SCC 351 : [2013] 14 SCR 185 ; Chairmen-
            cum-Managing Director, Coal India Limited and Others
            v. Ananta Saha and Others (2011) 5 SCC 142 : [2011]
            5 SCR 44 ; Dev Singh v. Punjab Tourism Development
            Corporation Limited and Another (2003) 8 SCC 9 :
H           (2003) 7 SCALE 122 – referred to.
    BHARAT PETROLEUM CORPORATION LIMITED AND                                 203
            OTHERS v. ANIL PADEGAONKAR

                        Case Law Reference                                   A
[2008] 7 SCR 1157                    referred to           Para 6
[2013] 8 SCR 988                     referred to           Para 6
[2013] 14 SCR 185                    referred to           Para 7
[2011] 5 SCR 44                      referred to           Para 8            B
(2003) 7 SCALE 122                   referred to           Para 8
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9778
of 2010.
      From the Judgment and Order dated 19.08.2008 of the High               C
Court of Judicature of Madhya Pradesh at Gwalior in Writ Appeal No.
582 of 2006.
      With
      Civil Appeal No. 9779 of 2010.
                                                                             D
     J.P. Cama, Sr. Adv., Sumit Goel, Ms. Swati Bhardwaj, Raghav
Bansal, Ms. Suruchi Kumar, M/s. Parekh & Co., Puneet Jain,
Ms. Christi Jain, Harsh Jain, Harshit Khanduja, Abhinav Deshwal,
Ms. Pratibha Jain, Advs. for the appearing parties.
      The Judgment of the Court was delivered by                             E
      NAVIN SINHA, J.
      1. The two appeals have been preferred by the appellant-
Corporation and the respondent-employee respectively, to the extent that
they are aggrieved by the common order in a writ appeal preferred by
the Corporation. They have thus been heard together and are being            F
disposed by a common order.
       2. The Corporation is aggrieved to the extent the impugned order
sets aside the order of punishment on the ground that the charge-sheet
had not been issued by the disciplinary authority. The employee is
aggrieved by the grant of liberty to the Corporation for issuance of fresh   G
charge-sheet, and denial of back wages while granting reinstatement.
In the interregnum, the employee has attained the age of superannuation
in February 2018.
      3. A charge-sheet was issued to the employee on 31.12.1993 by
the Deputy General Manager (Aviation) (hereinafter referred to as “the       H
204            SUPREME COURT REPORTS                           [2020] 5 S.C.R.


A     DGM”) while he was working on the post of Aviation Officer at the
      General Aviation Service Station, Gwalior, in the management cadre in
      Job Group “A”. It was alleged that fresh sand particles had been found
      in the all 10 fuel tanks after his duty hours in the ‘C’ shift ended while
      the earlier inspection during the ‘B’ shift had found it to be free of dirt
      and water except for minor traces of water in tank nos. 3 and 9. While
B
      the departmental proceedings were pending, a fresh charge-sheet was
      issued to the employee on 27.09.1994 with regard to absence from duty
      on 13.08.1994. The employee was therefore charged with having acted
      in a manner prejudicial to the interests of the Corporation and negligence
      in the performance of duty including malingering or slowing down of
C     work under Clause 6 & 10 of Part III-A of the Bharat Petroleum
      Limited Conduct, Discipline and Appeal Rules for Management Staff,
      1976 (hereinafter referred to as ‘the Rules’). Pursuant to a domestic
      inquiry, the inquiry officer returned a finding of guilt on 06.01.1995. The
      employee was furnished a copy of the report and after consideration
      of his reply, the Director (Marketing) under Part III-B (2)(f) of the
D
      Rules by a common order dated 21.05.1997 ‘discharged’ the employee
      from service. The departmental appeal under the Rules was rejected
      by a reasoned order by the Chairman on 05.10.1998.
             4. The employee assailed the orders in a writ petition. The learned
      Single Judge, with regard to the first charge-sheet, held that the
E     punishment of ‘dismissal’ stood vitiated because the Functional Director
      alone was competent to issue the charge-sheet. The second charge-
      sheet though issued by the disciplinary authority, required reconsideration
      as the punishment was held disproportionate to the charge, necessitating
      an order of remand. The Corporation was granted liberty in appeal to
F     issue a fresh charge-sheet with regard to the first charge and to pass
      a lesser order of punishment with regard to the second charge. Though
      reinstatement was ordered, the question of back wages was left for
      consideration subject to the outcome of such fresh proceedings.
             5. Shri. J.P. Cama, learned senior counsel appearing on behalf
G     of the Corporation, submitted that the employee was not ‘dismissed’
      but ‘discharged’ from service. The DGM being the functional General
      Manager and Head of the Department, the highest officer on the spot,
      was fully competent under the manual for delegation of authority dated
      15.12.1987 to issue charge-sheet for a punishment lesser than dismissal
      under serial 1(a) of Schedule I under Part III of the Rules. The manual
H     for delegation of authority had never been withdrawn or superseded
    BHARAT PETROLEUM CORPORATION LIMITED AND                                 205
    OTHERS v. ANIL PADEGAONKAR [NAVIN SINHA, J.]

even after amendment of Rule 3(g) on 22.08.1991 with regard to the           A
definition of Disciplinary Authority in the Rule. The misconduct on the
part of employee, considering his place of posting at an air force station
was serious in nature. There was no infirmity in the conduct of the
departmental proceedings. The employee had since reached the age
of superannuation in February, 2018. Continuance of the proceedings
                                                                             B
under the Rules was an impossibility in absence of any provisions for
the same.
       6. The employee did not take any objection in his reply to the
charge-sheet or in the memo of appeal that the DGM was not
competent to issue the same. Relying on H.V. Nirmala vs. Karnataka
State Financial Corporation, (2008) 7 SCC 639, it was submitted that         C
the objection with regard to the lack of jurisdiction ought to have been
raised at the very first instance. The employee took this objection for
the first time before the High Court in the writ petition. In any event
the employee has failed to demonstrate any prejudice to him thereby,
assuming though not admitting any lapse. Reliance was also placed            D
on S.R. Tewari vs. Union of India and Another, (2013) 6 SCC 602,
that there could be no standardised yardstick with regard to
proportionality of punishment which would depend on the facts of each
case.
       7. Shri Puneet Jain, learned counsel for the employee, submitted      E
that dismissal was a major punishment under Part III-B (2)(f) of the
Rules. The Corporation themselves opined that the charges were very
serious. The procedure followed was that for a major penalty. The mere
use of the word ‘discharge’ in the order of punishment therefore could
not be determinative. The High Court has committed no error in holding
that the employee had been dismissed from service pursuant to a charge-      F
sheet issued without jurisdiction. The view taken by the High Court that
after amendment of the term disciplinary authority in Rule 3(g) by the
Board of Directors on 22.08.1991, the manual for delegation of
authorities dated 15.12.1987 had lost its relevance, does not call for any
interference. The Functional Director alone was competent to issue           G
charge-sheet for dismissal under Sr.1(b) of Schedule I under Part III
of the Rules. The charge-sheet issued by the DGM has rightly been
held to be without authority, thus vitiating the punishment. The Rules
make a distinction between the disciplinary authority in Rule 3(g) and
competent authority in Rule 3(h). Competent authority cannot be equated
with disciplinary authority. Reliance was placed on Union of India vs.       H
206            SUPREME COURT REPORTS                          [2020] 5 S.C.R.


A     B.V. Gopinath, (2014) 1 SCC 351, to submit that a charge-sheet not
      issued according to law rendered the entire proceedings non-est. The
      High Court, in the facts of the case ought not to have given liberty to
      issue fresh charge-sheet or deny back wages while directing
      reinstatement.
B           8. The entire proceedings having been vitiated back wages ought
      to have been granted while directing reinstatement relying on
      Chairmen-cum-Managing Director, Coal India Limited and Others
      vs. Ananta Saha and Others, (2011) 5 SCC 142. With regard to the
      second charge-sheet, it was submitted that the punishment of dismissal
      for absence from place of duty one hour before duty hours got over
C     was grossly disproportionate relying on Dev Singh vs. Punjab Tourism
      Development Corporation Limited and Another, (2003) 8 SCC 9.
             9. We have considered the submissions on behalf of the parties.
      The employee was posted at the Air Force Station Gwalior. There can
      be no two opinions that the nature of his duties had an inherent
D     seriousness. Two charge-sheets were issued to him and departmental
      proceedings were conducted. The employee was given full opportunity
      of defence. A finding of guilt was arrived at by the enquiry officer
      with regard to both the charges. The employee in his departmental
      appeal raised no issues of procedural irregularity with consequent
E     prejudice. A common order of punishment of ‘discharge’ from service
      dated 21.05.1997 followed under Part III B (2)(e) of the Rules. No
      order of ‘dismissal’ was passed under Part III-B (2)(f) of the Rules.
      If the Corporation was of the opinion that ‘dismissal’ was the
      appropriate punishment in the facts of the case nothing prevented it
      from stating so. The High Court fell in a serious error by opining that
F     the employee had been ‘dismissed’ from service and on that premise
      arrived at the conclusion that the charge-sheet was incompetent in
      absence of it having been issued by the Functional Director who was
      the disciplinary authority under Sr. 1 (b) of Schedule I under Part III
      of the Rules for dismissal.
G            10. Part-III B (2) of the Rules provides for major penalties which
      includes inter alia removal from service which shall not be a
      disqualification for future employment and dismissal from service which
      shall ordinarily be a disqualification from future employment. The Rules
      therefore themselves recognise them as different punishments with
H     varying severity. Though the word ‘discharge’ does not find reference
    BHARAT PETROLEUM CORPORATION LIMITED AND                                 207
    OTHERS v. ANIL PADEGAONKAR [NAVIN SINHA, J.]

under the Rules, nonetheless in service jurisprudence, removal and/or        A
discharge are synonymous leading to a termination or end of service
but without the punitive consequences of dismissal entailing loss of past
services, affecting future employment and debarring retiral benefits.
There is no dispute that consequent to the impugned order of
‘discharge’, the employee has been paid his dues.
                                                                             B
       11. The employee either in his reply to the charges or in the
departmental appeal rightly raised no issues with regard to lack of
competence in the DGM to issue the charge-sheet. Sr. 1 (a) of Schedule
I, to be read with Part III of the Rules, provides that with regard to
Job Group ‘A’ the Functional General Manager was the disciplinary
authority for all other penalties except that of dismissal. The Functional   C
Director was the disciplinary authority for punishment of dismissal only.
The employee for the first time raised the issue in the writ petition that
the charge-sheet had been issued by other than the disciplinary authority.
If the employee had raised the issue either in his reply to the memo of
charges or in appeal perhaps the Corporation could have addressed the        D
issue better. Nonetheless, since a fundamental issue of jurisdiction has
been raised, we shall proceed to examine the issue.
       12. Rule 3(e) defines a Functional Manager as the Manager in-
charge of a function. Rule 3(g) defines Disciplinary Authority as
specified in Schedule I competent to impose penalties under the Rules.       E
Competent Authority has been defined in Rule 3(h) to mean any
authority empowered by the Board of Directors or the Chairman by
any general or special rule or order to discharge the function or use
the powers specified in the rule or order. Under Schedule I, the
Functional General Manager was the disciplinary authority for
punishment lesser than dismissal and the Functional director was the         F
disciplinary authority for punishment of dismissal. We are of the
considered opinion that the term Competent Authority will include a
disciplinary authority so authorised in the manner prescribed in 3(h)
under the delegation of authority manual dated 15.12.1987. Under Part
III-F(1) of the Rules dealing with procedure for imposing major penalties,   G
the disciplinary authority has been described to include an authority as
specified in Schedule I. It includes both a Functional manager and
Functional Director. Part-III-F(23) provides as follows:
      “(23) If the Disciplinary Authority or the Competent Authority
      having regard to its findings on all or any of the charges is of       H
208            SUPREME COURT REPORTS                          [2020] 5 S.C.R.


A           the opinion that any of the penalties specified in Rule “B” should
            be imposed on the Management Staff it shall, notwithstanding
            anything contained in Rule “G”, make an order imposing such
            penalty”
             13. The fact that the words ‘Disciplinary Authority or Competent
B     Authority’ have been used interchangeably in Part III-F leaves no doubt
      in our mind that the delegation of authority manual had never been
      recalled or superseded. It is the specific case of the Corporation that
      the manual for delegation of authority issued on 15.12.1987 had never
      been withdrawn and the Corporation had all along in all other cases
      also acted on basis of the same and that no charge-sheet for a
C     punishment lesser than dismissal had ever been issued by the Functional
      Director. The DGM was therefore fully competent under the manual
      also to both suspend and issue charge-sheet. The High Court itself
      reasoned that had the penalty been other than dismissal, the Functional
      Manager would have been competent to issue the charge-sheet. The
D     High Court having posed unto itself the wrong question of dismissal
      from service, naturally arrived at an erroneous conclusion.
             14. In view of our conclusion that the first charge-sheet had been
      issued by an authority competent to do so, the order of discharge calls
      for no interference. The direction for issuance of fresh charge-sheet
E     is therefore held to be unsustainable and is set aside. The direction for
      reinstatement and grant of back wages including any proportionality of
      punishment under the second charge therefore becomes academic and
      needs no consideration.
             15. The appeal preferred by the appellant-Corporation is allowed
F     and that preferred by the respondent-employee is dismissed. There
      shall be no order as to costs.


      Divya Pandey                                            Appeals disposed of.


G




H