Union of India (Uoi) and ors. Vs. Shri Arun Prasada - Court Judgment

Markandeya Katju, C.J.

1.This Appeal has been filed against the impugned judgment of the learned Single Judge dated 25.01.2005 by which he has allowed the writ petition.

2. Heard counsels for the parties and perused the record.

3. The facts of the case have been set out in detail in the judgment of the learned Single Judge and hence we are not repeating the same except where necessary.

4. The petitioner in the writ petition (respondent herein) was appointed as Managing Director, IRCON International Limited w.e.f. 16.05.1997 vide Ministry of Railways letter dated 15.10.1997 on contractual basis for a period of three years and was to be governed by the Discipline & Appeal Rules of IRCON. True copy of the same is Annexure P-1A to the writ petition. Thereafter the Ministry of Railways vide letter dated 22.11.1999 was pleased to extend the service of the petitioner up to 31.01.2002. On completion of the said contractual term of appointment as Managing Director of IRCON International Limited, the respondent retired on attaining the extended age of superannuation of 60 years on 31.01.2002.

5. Before his retirement, the petitioner was served with a Memorandum of charges under Rule 27 of the IRCON Conduct Discipline & Appeal Rules 1981 vide Charge-sheet dated 29.01.2002, Annexure P-IV to the writ petition. The Petitioner submitted his reply to the same. The respondent thereafter held an enquiry under Rule 25 and 26 of the IRCON Conduct Discipline & Appeal Rules 1981 read with Rule 11 (C) of the IRCON Employees Group Gratuity Trust Rules. It is alleged that this action was mala fide since the petitioner had already retired from the service and the aforesaid rules do not apply to the petitioner.

6. Counter-affidavit has been filed by the respondent No.1,2 & 3 and we have perused the same.

7. In para 4 it is stated that disciplinary proceedings were instituted against the petitioner vide Charge-sheet dated 29.01.2002 when he was still in the service of IRCON. The petitioner retired only on 31.01.2002. It is alleged in para 8 that considering the gravity of the charges against the petitioner the proceedings could not have been dropped, as such dropping would have been against the public interest.

8. Rule 11 (C) of the IRCON Group Gratuity Trust Rules states:-

(C) An employee against whom Disciplinary proceedings/ action is contemplated or pending at the time of resignation / retirement etc., will not be paid gratuity, unless the action/ proceedings against him have been finalized. On finalization of the Disciplinary proceedings the release of payment of amount of gratuity will depend upon the final outcome of the disciplinary proceedings and keeping in view the orders of the Disciplinary Authority. Gratuity will not be admissible to an employee whose services are terminated for misconduct, in solvency or inefficiency.

9. Thereafter a supplementary memorandum dated 22.12.2003 was also issued to the petitioner proposing to hold an enquiry into the very same charges leveled against the petitioner vide memorandum dated 29.01.2002. It is alleged in para 12 of the counter-affidavit that the said memorandum dated 22.12.2003 was only in continuation of the earlier memorandum dated 29.1.2002. In order to meet the requirements of the enquiry, the detailed articles for sustaining the charges were also supplied to the petitioner, who was given one more opportunity to submit his written statement of defense.

10. It is alleged in para 14 of the counter-affidavit that the very same proceedings which were initiated on 29.01.2002 are continuing against the petitioner in terms of Rule 11 (C) of the IRCON Group Gratuity Trust Rules when he was still in service.

11.In para 17 of the counter-affidavit, it is stated that the petitioner has filed the present petition on the basis of an utter misconception on his part that altogether fresh proceedings have been instituted against him by virtue of the aforesaid supplementary memorandum dated 22.1.2003. The fact is that the very same proceedings, initiated on 21.09.2002, are being continued by the memorandum dated 22.12.2003.

12. The learned Single Judge allowed the writ petition by holding that the charge-sheet dated 29.01.2002 was only for initiation of minor penalty against the petitioner and hence Rule 11 (C) of the IRCON Group Gratuity Trust Rules will not apply since they only apply where the enquiry culminates in an order of termination of service, which is a major punishment.

13. We are unable to agree with the view taken by the learned Single Judge.

14. It is well settled that mere mention of a wrong provision is not material, if the power is there under some other provision.

15. Thus, in State of Karnataka v. Krishnaji Srinivas Kulkarni and Ors. : (1994)2SCC558 the Supreme Court observed:-

quotation of a wrong provision does not take away the jurisdiction of the authorities to inquire under Section 79-B (3) of the Act.

16. Similarly in Kishun Singh and Ors. v. State of Bihar : 1993CriLJ1700 , the Supreme Court observed:-

It is well settled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid.

17. In Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal : [1983]2SCR676 the Supreme Court observed:-

It is well settled that the exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provisions was mentioned. See in this connection the observations in Pitamber Vajirshet v. Dhondu Navlapa. See in this connection also the observations of this Court in the case of L. Hazari Mal Kuthiala v. I.T.O., Special Circle, Amabala Cantt. This point has again been reiterated by this Court in the case of Hukumchand Mills Ltd. v. State of M.P where it was observed that it was well-settled that a wrong reference to the power under which action was taken by the government would not per se vitiate that action if it could be justified under some other power under which Government could lawfully do that act. See also the observations of the Supreme Court in the case of Nani Gopal bids was v. Municipality of Howrah.

18. In Roche Products Limited v. Collector of Customs and Anr. : 1989(44)ELT194(SC) (vide para 24) the Supreme Court observed:-

When an authority has the power to do a certain Act and in exercise of such power he does the same, but refers to a wrong provision of the law, that would be a mere irregularity and would not vitiate such act.

19. The same view was taken by the Constitution Bench of the Supreme Court in Union of India and Anr. v. Tulsi Ram Patel : (1985)IILLJ206SC where the Supreme Court observed:-

Further , even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. (See Dr. Ram Manohar Lohia v. State of Bihar and Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal) supra.

20. Hence, merely because in the charge-sheet dated 29.1.2002 Rule 27 has been mentioned, in our opinion, this is not very relevant because a perusal of the charge-sheet dated 29.1.2002 shows that very serious charges have been leveled against the petitioner which if found true are very likely to result in the petitioner?(tm)s dismissal. These charges are contained in the Annexure P-IV to the writ petition and the allegation against the petitioner are of financial irregularity of tens of crores of rupees. In the case of Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) etc. v. Secretary Sahakari Noukarara Sangh etc. : (2000)IILLJ1395SC , the Supreme Court has held that even if a financial irregularity is of a very small amount the only punishment is dismissal. Hence if the charges mentioned in the charge-sheet dated 29.01.2002 are found correct the petitioner has to be given the punishment of dismissal following the above decision of the Supreme Court. Thus it is obvious that what was intended was to give a charge-sheet for a major punishment, but Rule 27 was wrongly mentioned. In our opinion the supplementary memorandum dated 22.01.2003 was only in continuation of the charge-sheet dated 29.01.2002, which was clearly issued while the petitioner was in service. In the circumstances the writ appeal is allowed and the impugned judgment passed by the learned Single Judge is set aside and the Writ Petition is dismissed.