# SHRI ANANT R. KULKARNI v. Y.P. EDUCATION SOCIETY AND ORS

- **Citation:** [2013] 6 S.C.R. 1124
- **Court:** Supreme Court of India
- **Decided:** 2013-04-26
- **Case number:** Civil Appeal No. 3935 of 2013
- **Bench:** Dr. B.S. Chauhan, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-anant-r-kulkarni-v-y-p-education-society-and-ors-29219
- **Pages:** 29

## Headnote

Service Law - Departmental enquiry - Punishment
C imposed upon delinquent employee set aside by the Court/
Tribunal as the enquiry stood vitiated for technical reasons -
Entitlement of employer to hold enquiry afresh from the point
it stood vitiated - Held: Once the Court set asides an order
of punishment on the ground, that the enquiry was not properly
D conducted, the Court should not severely preclude the
employer from holding the enquiry in accordance with law -
It must remit the concerned case to the disciplinary authority,
to conduct the enquiry from the point that it stood vitiated, and
to conclude the same in accordance with law - However,
E resorting to such a course depends upon the gravity of
delinquency involved.
Service Law - Departmental enquiry - Enquiry at belated
stage - If can be quashed on the ground of delay - Held: The
court/tribunal should not generally set aside the departmental
F enquiry, and quash the charges on the ground of delay in
initiation of disciplinary proceedings, as such a power is de
hors the limitation of judicial review - The essence of the
matter is that the court must take into consideration all
relevant facts, and balance and weigh the same, so as to
G determine, if it is in fact in the interest of clean and honest
administration, that the said proceedings are allowed to be
terminated, only on the ground of a delay in their conclusion.
Service Law - Departmental enquiry - Enquiry on vague
H
1124
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
1125
SOCIETY
and unspecified charges - Permissibility - Held: Nowhere
A
should a delinquent be served a chargesheet, without
providing to him, a clear, specific and definite description of
the charge against him - When statement of a/legations are
not served with the chargesheet, the enquiry stands vitiated,
as having been conducted in violation of the principles of
B
natural justice - There must be fair-play in action, particularly
in respect of an order involving adverse or penal
consequences.
Service Law - Departmental enquiry - Enquiry against
retired employee - Circumstances when such enquiry can be C
conducted - Held: The relevant rules governing the service
conditions of an employee are the determining factors as to
whether and in what manner the domestic enquiry can be held
against an employee who stood retired after reaching the age
of superannuation - General/y, if the enquiry has been
D
initiated while the delinquent employee was in service, it would
continue even after his retirement, but nature of punishment
would change -
The punishment of dismissal/removal from
service would not be imposed.
Service Law - Departmental enquiry - For misconduct
-
Termination of appelfant-employee -
Chalfenge to -
Meanwhile, appellant stood retired upon reaching the age of
superannuation - Tribunal held that none of the charges
levelled against the appelfant stood proved, and that the
enquiry had not been conducted according to the 1981 Rules
- Termination order accordingly quashed - Writ Petition -
Single Judge of High Court upheld the judgment of Tribunal,
and found the enquiry to be entirely defective and thus, illegal
- Division Bench too, upheld the judgment of the Single
Judge, as well as that of the Tribunal, but simultaneously also
held, that the respondents were at liberty to proceed with the
enquiry afresh, as regards the said charges - On appeal, held:
Division Bench committed error by giving liberty to the
respondents to hold a fresh enquiry - Charges /eve/led
E
F
G
H
1126
SUPREME COURT REPORTS
(2013] 6 S.C.R.
A against the appellant were entirely vague, irrelevant and
unspecific - Question of holding any fresh enquiry on such
vague charges, therefore, unwarranted and uncalled for -
Procedure prescribed under rr.36, 37 and 57 of the 1981
Rules were violated - Moreover, appellant had already retired
B - No rule brought to notice that may confer any statutory
power on the respondent-management to hold fresh enquiry
after retirement of an employee -

## Text

_Characters 0–39,184 of 52,764. This is a partial read: ask again with offset=39184 for what follows._

A
B
[2013] 6 S.C.R. 1124
SHRI ANANT R. KULKARNI
v.
Y.P. EDUCATION SOCIETY AND ORS.
(Civil Appeal No. 3935 of 2013)
APRIL 26, 2013
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Service Law - Departmental enquiry - Punishment
C imposed upon delinquent employee set aside by the Court/
Tribunal as the enquiry stood vitiated for technical reasons -
Entitlement of employer to hold enquiry afresh from the point
it stood vitiated - Held: Once the Court set asides an order
of punishment on the ground, that the enquiry was not properly
D conducted, the Court should not severely preclude the
employer from holding the enquiry in accordance with law -
It must remit the concerned case to the disciplinary authority,
to conduct the enquiry from the point that it stood vitiated, and
to conclude the same in accordance with law - However,
E resorting to such a course depends upon the gravity of
delinquency involved.
Service Law - Departmental enquiry - Enquiry at belated
stage - If can be quashed on the ground of delay - Held: The
court/tribunal should not generally set aside the departmental
F enquiry, and quash the charges on the ground of delay in
initiation of disciplinary proceedings, as such a power is de
hors the limitation of judicial review - The essence of the
matter is that the court must take into consideration all
relevant facts, and balance and weigh the same, so as to
G determine, if it is in fact in the interest of clean and honest
administration, that the said proceedings are allowed to be
terminated, only on the ground of a delay in their conclusion.
Service Law - Departmental enquiry - Enquiry on vague
H
1124
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
1125
SOCIETY
and unspecified charges - Permissibility - Held: Nowhere
A
should a delinquent be served a chargesheet, without
providing to him, a clear, specific and definite description of
the charge against him - When statement of a/legations are
not served with the chargesheet, the enquiry stands vitiated,
as having been conducted in violation of the principles of
B
natural justice - There must be fair-play in action, particularly
in respect of an order involving adverse or penal
consequences.
Service Law - Departmental enquiry - Enquiry against
retired employee - Circumstances when such enquiry can be C
conducted - Held: The relevant rules governing the service
conditions of an employee are the determining factors as to
whether and in what manner the domestic enquiry can be held
against an employee who stood retired after reaching the age
of superannuation - General/y, if the enquiry has been
D
initiated while the delinquent employee was in service, it would
continue even after his retirement, but nature of punishment
would change -
The punishment of dismissal/removal from
service would not be imposed.
Service Law - Departmental enquiry - For misconduct
-
Termination of appelfant-employee -
Chalfenge to -
Meanwhile, appellant stood retired upon reaching the age of
superannuation - Tribunal held that none of the charges
levelled against the appelfant stood proved, and that the
enquiry had not been conducted according to the 1981 Rules
- Termination order accordingly quashed - Writ Petition -
Single Judge of High Court upheld the judgment of Tribunal,
and found the enquiry to be entirely defective and thus, illegal
- Division Bench too, upheld the judgment of the Single
Judge, as well as that of the Tribunal, but simultaneously also
held, that the respondents were at liberty to proceed with the
enquiry afresh, as regards the said charges - On appeal, held:
Division Bench committed error by giving liberty to the
respondents to hold a fresh enquiry - Charges /eve/led
E
F
G
H
1126
SUPREME COURT REPORTS
(2013] 6 S.C.R.
A against the appellant were entirely vague, irrelevant and
unspecific - Question of holding any fresh enquiry on such
vague charges, therefore, unwarranted and uncalled for -
Procedure prescribed under rr.36, 37 and 57 of the 1981
Rules were violated - Moreover, appellant had already retired
B - No rule brought to notice that may confer any statutory
power on the respondent-management to hold fresh enquiry
after retirement of an employee - In absence of any such
authority, the Division Bench erred in creating a postretirement forum that may not be permissible under law -
C Further, departmental enquiry can be quashed on the ground
of delay provided the charges are not very grave - It was not
necessary for the Division Bench to permit the respondents
to hold a fresh enquiry on the .said charges and that too, after
more than a decade of the rettrement of the appellant -
0
Maharashtra Employees of Private School Rules, 1981 -
rr.36, 37 & 57.
The appellant was the Head Master in a school. The
respondents-management issued show-cause notice to
the appellant, under Rule 28 of the Maharashtra
E Employees of Private School Rules, 1981, seeking an
explanation as to why disciplinary proceedings should
not be initiated against him, for his alleged misconduct.
The appellant submitted his reply. Subsequently, the
F Management Committee took a decision to hold
disciplinary proceedings against the appellant as per the
provisions of Rule 36 of the Rules 1981, and in pursuance
thereof, a chargesheet containing 12 charges of
misconduct, was served upon the appellant. The
G charges related to accounts and to the discharge of his
functions as the Headmaster of the school. An Enquiry
Committee
submitted
its
report,
making
a
recommendation that the appellant be dismissed from
service. The enquiry report was accepted by the
Management Committee, and the services of the
H
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
1127
SOCIETY
appellant terminated. Aggrieved, the appellant challenged
A
the termination order by filing appeal before the School
Tribunal. Meanwhile, upon reaching the age of
superannuation, the appellant stood retired. The Tribunal
held, that none of the charges levelled against the
appellant stood proved, and that the enquiry had not
8
been conducted according to the Rules 1981. Thus, the
termination order against the appellant was quashed.
Aggrieved, the respondents-management filed Writ
Petition. A Single Judge of the High Court upheld the
judgment of the Tribunal. The Division Bench too, upheld
C
the judgment of the Single Judge, as ·well as that of the
Tribunal, but simultaneously also held, that the
respondents were at liberty to proceed with the enquiry
afresh, as regards the said charges, and therefore the
present appeal.
D
In the instant appeal, the following questions of law
arose for consideration: (i) In case the punishment
imposed upon the delinquent employee is set aside by
the Court/Tribunal as the enquiry stood vitiated for
technical reasons, whether the employer is entitled to
E
hold the enquiry afresh from the point it stood vitiated;
(ii) Whether the enquiry can be quashed on the ground
of delay; (iii) Whether the enquiry can be permitted to be
held on vague and unspecified charges; and (iv) Under
what circumstances enquiry can be conducted against
F
the delinquent employee who has retired on reaching the
age of superannuation.
Allowing the appeal, the Court
HELD: 1. Once the Court set asides an order of G
punishment on the ground, that the enquiry was not
properly conducted, the Court should not severely
preclude the employer from holding the inquiry in
accordance with law. It must remit the concerned case
H
1128
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A to the disciplinary authority, to conduct the enquiry from
the point that it stood vitiated, and to conclude the same
in accordance with law. However, resorting to such a
course depends upon the gravity of delinquency
involved. Thus, the court must examine the magnitude of
8 misconduct alleged against the delinquent employee. It
is in view of this, that courts/tribunals, are not competent
to quash the charge-sheet and related disciplinary
proceedings, before the same are concluded, on the
aforementioned grounds. [Para 7] [1139-C-E]
C
Managing Director, ECIL, Hyderabad etc.etc. v. 8.
Karunakar etc.etc. ·AIR 1994 SC 1074: 1993 (2) Suppl. SCR
576; Hiran Mayee Bhattacharyya v. Secretary, S.M. School
for Girls & Ors. (2002) 10 SCC 293; U.P. State Spinning C.
Ltd. v. R.S. Pandey & Anr. (2005) 8 SCC 264: 2005 (3)
D Suppl. SCR 603; Union of India v. Y.S. Sandhu, Ex-Inspector
AIR 2009 SC 161: 2008 (13) SCR 784 -
relied on.
2. The court/tribunal should not generally set aside
the departmental enquiry, and quash the charges on the
E ground of delay in initiation of disciplinary proceedings,
as such a power is de hors the limitation of judicial
review. In the event that the court/tribunal exercises such
power, it exceeds its power of judicial review at the very
threshold. Therefore, a charge-sheet or show cause
F notice, issued in the course of disciplinary proceedings,
cannot ordinarily be quashed by court. The same
principle is applicable in relation to there being a delay
in conclusion of disciplinary proceedings. The facts and
circumstances of the case in question, must be carefully
examined, taking into consideration the gravity/
G magnitude of charges involved therein. The Court has to
consider the seriousness and magnitude of the charges
and while doing so the Court must weigh all the facts,
both for and against the delinquent officers and come to
the conclusion, which is just and proper considering the
H
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
1129
SOCIETY
circumstances involved. The essence of the matter is that
the court must take into consideration all relevant facts,
and balance and weigh the same, so as to determine, if
it is intact in the interest of clean and honest
administration, that the said proceedings are allowed to
be terminated, only on the ground of a delay in their
conclusion. [Para 8] [1140-A-D]
State of U.P. v. Brahm Datt Sharma & Anr. AIR 1987 SC
943: 1987 (2) SCR 444; 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; State of Andhra Pradesh v. N.
Radhakishan AIR 1998 SC 1833: 1998 (2) SCR 693; M. V.
Bijlani v. Union of India & Ors. AIR 2006 SC 3475: 2006 (3)
SCR 896; Union of India & Anr. v. Kunisetty Satyanarayana
AIR 2007 SC 906: 2006 (9) Suppl. SCR 257; The Secretary,
Ministry of Defence & Ors. v. Prabash Chandra Mirdha AIR
2012 SC 2250: 2012 SCR 182; Chairman, UC of India &
Ors. v. A. Masilamani JT (2012) 11 SC 533 - relied on.
3.1. Nowhere should a delinquent be served a
chargesheet, without providing to him, a clear, specific
and definite description of the charge against him. When
statement of allegations are not served with the
chargesheet, the enquiry stands vitiated, as having been
conducted in violation of the principles of natural justice.
Evidence adduced should not be perfunctory, even if the
delinquent does not take the defence of, or make a
protest with against that the charges are vague, that does
not save the enquiry from being vitiated, for the reason
that there must be fair-play in action, particularly in
respect of an order involving adverse or penal
consequences. What is required to be examined is
whether the delinquent knew the nature of accusation.
The charges should be specific, definite and giving
details of the incident which formed the basis of charges
A
B
c
D
E
F
G
H
1130
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A and no enquiry can be sustained on vague charges. [Para
10) [1141-F-H; 1142-A]
3.2. The purpose of holding an enquiry against any
person is not only with a view to establish the charges
8
levelled against him or to impose a penalty, but is also
conducted with the object of such an enquiry recording
the truth of the matter, and in that sense, the outcome of
an enquiry may either result in establishing or vindicating
his stand, and hence result in his exoneration. Therefore,
C fair action on the part of the authority concerned is a
paramount necessity. [Para 11) [1142-C-D]
Surath Chandra Chakravarty v. The State of West Bengal
AIR 1971 SC 752: 1971 (3) SCR 1; State of Andhra Pradesh
& Ors. v. S. Sree Rama Rao AIR 1963 SC 1723: 1964 SCR
D 25; Sawai Singh v. State of Rajasthan AIR 1986 SC 995: 1986
(2) SCR 957; U.P.S.R. T.C. & Ors. v. Ram Chandra Yadav
AIR 2000 SC 3596: 2000 (9) SCC 327; Union of India &
Ors. v. Gyan Chand Chattar (2009) 12 SCC 78: 2009 (10)
SCR 124; Anil Gi/urker v. Bilaspur Raipur Kshetria Gramin
E Bank & Anr. (2011) 14 SCC 379 - relied on.
4. The relevant rules governing the service
conditions of an employee are the determining factors as
to whether and in what manner the domestic enquiry can
be held against an employee who stood retired after
F reaching the age of superannuation. Generally, if the
enquiry has been initiated while the delinquent employee
was in service, it would continue even after his retirement,
but nature of punishment would change. The punishment
of dismissal/removal from service would not be imposed.
G [Para 18) [1144-G-H; 1145-A]
NO/DA Entrepreneurs Association v. NO/DA & Ors. AIR
2011 SC 2112: 2011 (8) SCR 25; Kirti Bhusan Singh v. State
of Bihar & Ors. AIR 1986 SC 2116: 1986 (3) SCR 230;
H Bhagirathi Jena v. Board of Directors, O.S.F.C. & Ors. AIR
SHRI ANANT R. KULKARNI v. YP. EDUCATION
1131
SOCIETY
1999 SC 1841: 1999 (2) SCR 354; U.P. State Sugar A
Corporation Ltd. & Ors. v. Kamal Swaroop Tandon (2008) 2
SCC 41: 2008 (1) SCR 887 - relied on.
B
B.J. She/at v. State of Gujarat & Ors. AIR 1978 SC 1109:
1978 (3) SCR 553; Ramesh Chandra Sharma v. Punjab
National Bank & Anr. (2007) 9 SCC 15: 2007 (7) SCR 585;
UCO Bank & Anr. v. Rajinder Lal Capoor AIR 2008 SC 1831:
2008 (5) SCR 775; State of Assam & Ors. v. Padma Ram
Borah AIR 1965 SC 473; R. T. Rangachari v. Secretary of
State AIR 1937 PC 27; State of Punjab v. Khemi Ram AIR
1970 SC 214: 1970 (2) SCR 657 - referred to.
C
5.1. In the instant case, the Tribunal, as well as the
Single Judge of the High Court have recorded a
categorical finding of fact to the effect that initiation of
departmental enquiry against the appellant had been o
done with malafide intention to harass him. The charges
were not specific and precise; in fact, they were vague
and unspecific. Furthermore, the Management committee
had failed to observe the procedure prescribed in Rules
36 & 37 of the Maharashtra Employees of Private School
Rules, 1981. The said Rules 36 & 37, prescribe a complete
procedure for the purpose of holding an inquiry, wherein
E
F
it is clearly stated that an inquiry committee should have
minimum three members, one representative from the
Management committee, one to be nominated by the
employees from amongst themselves, and one to be
chosen by the Chief Executive Officer, from amongst a
panel of teachers who have been awarded National/State
awards. In the instant case, there was only a two member
committee. The procedure prescribed under the Rules is
based on the Principles of Natural Justice and fair play,
G
to ensure that an employee of a private school, may not
be condemned unheard. [Para 21] [1149-C-F]
5.2. The Tribunal, as well as the Single Judge have
both made it clear that the inquiry had not been
H
1132
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A conducted in accordance with the provisions of Rules 36
and 37 of the Rules 1981. However, they themselves have
dealt with each and every charge, and have recorded
their findings on merit. The Management committee failed
to prove even a single charge against the appellant. The
8 present case is certainly not one where a punishment
has been set aside only on a technical ground, that the
inquiry stood vitiated for want of a particular requirement.
Thus, in light of such a fact situation, the Division Bench
has committed an error by giving liberty to the
C respondents to hold a fresh enquiry. [Paras 21, 22] [1149F-H; 1150-A]
5.3. The conclusion reached by the Division Bench
that the Tribunal and the Single Judge had found that
there was a defect in the manner in which the enquiry
D was held, and therefore there was no question of it
recording a finding on merit to the effect that charges
levelled against the appellant were not proved, is also not
sustainable in law. It is always open for the Court in such
a case, to examine the case on merits as well, and in case
E the Court comes to the conclusion that there was intact,
no substance in the allegations, it may not permit the
employer to hold a fresh enquiry. Such a course may be
necessary to save the employee from harassment and
humiliation. [Para 24] [1150-F-H]
F
5.4. In the instant case, there is no allegation of
misappropriation/ embezzlement or any charge which
may cast a doubt upon the integrity of the appellant, or
further, anything which may indicate even the slightest
moral turpitude on the part of the appellant. The charges
G relate to accounts and to the discharge of his functions
as the Headmaster of the school. The appellant has
provided satisfactory explanation for each of the
allegations levelled against him. Moreover, he has retired
in the year 2002. The question of holding any fresh
H
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
1133
SOCIETY
enquiry on such vague charges is therefore, unwarranted
A
and uncalled for. [Para 25) [1151-A-B]
5.5. Rules 36 and 37 of the Rules 1981, which
prescribe the procedure of holding an enquiry were
violated. The charges levelled against the appellant were
8
entirely vague, irrelevant and unspecific. As per statutory
rules, the appellant was not allowed to be represented by
another employee. Thus, the procedure prescribed under
Rule 57(1) of the Rules 1981 stood violated. No
chargesheet containing the statement of allegations was
C
ever served. A summary of the proceedings, alongwith
the statements of witnesses, as is required under Rule
37(4) of the Rules 1981, was never forwarded to the
appellant. He was not given an opportunity to explain
himself, and no charge was proved with the aid of any
documentary evidence. There existed no charge against
D
the appellant regarding his integrity, embezzlement or
mis-appropriation. The Single Judge has also agreed with
the same. However, the Division Bench, though also in
agreement, has given liberty to the respondents to hold
a fresh enquiry. The court has not been apprised of any
E
rule that may confer any statutory power on the
management to hold a fresh enquiry after the retirement
of an employee. In the absence of any such authority, the
Division Bench has erred in creating a post-retirement
forum that may not be permissible under law. [Paras 26,
F
27) [1151-E-H; 1152-A-B]
5.6. In light of the facts and circumstances of the
case, none of the charges are specific and precise. The
charges have not been accompanied by any statement G
of allegations,or any details thereof. It is not therefore
permissible, for the respondents to hold an enquiry on
such charges. Moreover, it is a settled legal proposition
that a departmental enquiry can be quashed on the
ground of delay provided the charges are not very grave.
H
1134
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A [Para 28] [1152-C-D]
5.7. As the Tribunal as well as the Single Judge have
examined all the charges on merit and also found that the
enquiry has not been conducted as per the Rules 1981,
8 it was not the cause of the Management Committee which
had been prejudiced, rather it had been the other way
around. In such a fact-situation, it was not necessary for
the Division Bench to permit the respondents to hold a
fresh enquiry on the said charges and that too, after more
than a decade of the retirement of the appellant. The
C appellant shall be entitled to recover all his salary and
retirement dues, if not paid already. [Paras 29, 30] [1152E-G]
Case Law Reference
D
1993 (2) Suppl. SCR 576 relied on
Para 7
c2002) 10 sec 293
relied on
Para 7
2005 (3) Suppl. SCR 603 relied on
Para 7
E
2008 (13) SCR 784
relied on
Para 7
1987 (2) SCR 444
relied on
Para 8
1990 Suppl. sec 738
relied on
Para 8
F
1995 (1) SCR 695
relied on
Para 8
1998 (2) SCR 693
relied on
Para 8
2006 (3) SCR 896
relied on
Para 8
2006 (9) Suppl. SCR 257 relied on
Para 8
G
2012 SCR 182
relied on
Para 8
JT (2012) 11 SC 533
relied on
Para 8
1971 (3) SCR 1
relied on
Para 9
H
SHRI ANANT R. KULKARNI v. YP. EDUCATION
1135
SOCIETY
/ .....
1964 SCR 25
relied on
Para 11
A
1986 (2) SCR 957
relied on
Para 11
2000 (9) sec 327
relied on
Para 11
2009 (10) SCR 124
relied on
Para 11
B
(2011) 14 sec 379
relied on
Para 11
2011 (8) SCR 25
relied on
Para 12
1978 (3) SCR 553
referred to
Para 12 c
2007 (7) SCR 585
referred to
Para 12
2008 (5) SCR 775
referred to
Para 12
AIR 1965 SC 473
referred to
Para 13
AIR 1937 PC 27
referred to
Para 13
D
1970 (2) SCR 657
referred to
Para 14
1986 (3) SCR 230
relied on
Para 15
1999 (2) SCR 354
relied on
Para 16
E
2008 (1) SCR 887
relied on
Para 17
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3935 of 2013.
From the Judgment & Order dated 04.10.2011 of the High
F
Court of Judicature of Bombay in Letters Patent Appeal No.
171 of 2011 in Writ Petition No. 1849 of 2003.
C.U. Singh, Prity Kunwar, Shivaji M. Jadhav for the
Appellant.
G
Braj Kishore Mishra, Vijay Kumar, M.D. Adkar, Aparna
Jha, Siddhartha Arya Vishwajit Singh for the Respondents.
The Judgment of the Court was delivered by
H
1136
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the impugned judgment and order dated 4.10.2011 of
the High Court of Judicature of Bombay in Letters Patent
Appeal No.171 of 2011 arising out of Writ Petition No. 1849
of 2003, by way of which the Division Bench of the High Court
B upheld the judgment of the learned Single Judge, as well as
that of the School Tribunal (hereinafter referred to as the
'Tribunal'), quashing the enquiry against the appellant, while
giving liberty to respondent Nos.1 and 2 to hold a fresh enquiry
c
on the charges levelled against the appellant.
2. Facts and circumstances giving rise to this appeal are
that:
A. The appellant was appointed as Assistant Teacher in
the school run by the respondents on 7.6.1965, and was
D promoted as the Head Master of the said school on 21.6.1979.
B. A new Management Committee came into power in the
year 2000, and began to raise allegations of misconduct
against the appellant, as the appellant had certain
E apprehensions with respect to the eligibility of certain office
bearers of the Management Committee.
C. The respondents-management issued show-cause
notice dated 21.2.2001 to the appellant, under Rule 28 of the
Maharashtra Employees of Private School Rules, 1981
F (hereinafter referred to as the 'Rules 1981'), seeking an
explanation as to why disciplinary proceedings should not be
initiated against him, for his alleged misconduct. The appellant
submitted his reply on 3.3.2001, and also challenged the
eligibility of some of the elected members of the Management
G Committee.
D. The Management Committee, vide resolution dated
4.3.2001 took a decision to hold disciplinary proceedings
against the appellant as per the provisions of Rule 36 of the
H Rules 1981, and in pursuance thereof, a chargeshoet dated
SHRI ANANT R. KULKARNI v. YP. EDUCATION
1137
SOCIETY [DR. B.S. CHAUHAN, J.]
17.5.2001 containing 12 charges of misconduct, was served
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upon the appellant. The appellant vide letter dated 1.7.2001,
submitted his clarifications with respect to the said charges that
had been levelled against him.
E. An Enquiry Committee consisting of two members
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instead of three, as per the Rules 1981, conducted the enquiry
and submitted its enquiry report on 20.5.2002, making a
recommendation that the appellant be dismissed from service.
The said enquiry report was accepted by the Management
Committee, and the services of the appellant were terminated
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vide order dated 24.5.2002 w.e.f. 31.5.2002.
F. Aggrieved, the appellant challenged the said termination
order by filing Appeal No.65 of 2002, before the Tribunal. The
respondents contested the appeal. However, upon reaching the
age of superannuation, the appellant stood retired on
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30.9.2002.
G. The Tribunal vide judgment and order dated 19.10.2002
held, that none of the charges levelled ·against the appellant
stood proved, and that the enquiry had not been conducted
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according to the Rules 1981. Thus, the termination order
against the appellant was quashed.
H. Aggrieved, the respondents-management filed Writ
Petition No.1849 of 2003 before the High Court, and the
learned Single Judge decided the said writ petition vide
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judgment and order dated 20.4.2011, upholding the judgment
of the Tribunal, and found the enquiry to be entirely defective
and thus, illegal.
I. The respondents-management filed Letters Patent
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Appeal No.171 of 2011, and the Division Bench too, upheld
the judgment of the learned Single Judge, as well as that of the
Tribunal, but simultaneously also held, that the respondents were
at liberty to proceed with the enquiry afresh, as regards the said
charges.
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[2013] 6 S.C.R.
A
Hence, this appeal.
3. Shri C.U. Singh, learned senior counsel appearing for
the appellant, has submitted that the charges have been found
to be vague, and that the enquiry was conducted in violation of
8
the statutory Rules 1981, and further that none of the charges
reflected embezzlement or mis-appropriation, and cast no
doubt upon the integrity of the appellant whatsoever. As the
appellant stood retired on 30.9.2002, the question of holding
a fresh enquiry in 2011 could not arise. The court does not lack
competence to decide the case on merits even if it comes to
C the conclusion that there has been violation of statutory rules,
principles of natural justice or the order also stood vitiated on
some other technical ground. There is no statutory rule
permitting the Management Committee to hold an enquiry
against a person who has retired a decade ago, particularly
D when the school is a government-aided school, and the
appellant-employee receives pension from the State. Thus, the
appeal deserves to be allowed.
4. Per contra, Shri Braj Kishore Mishra, learned counsel
E appearing for the respondents, has submitted that a person
cannot be allowed to go scot-free simply because he has
retired. An enquiry can be conducted against him, and he can
be punished by withholding either full or part of his pension. No
fault can be found with the impugned judgment and thus, the
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appeal is liable to be dismissed.
5. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.
6. The appeal raises the following substantial questions of
G law:-
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(i) In case the punishment is set aside by the Court/Tribunal
as the enquiry stood vitiated for technical reasons, whether
the employer is entitled to hold the enquiry afresh from the
point it stood vitiated;
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
1139
SOCIETY [DR. B.S. CHAUHAN, J.]
(ii) Whether the enquiry can be quashed on the ground of
A
delay;
(iii) Whether the enquiry can be permitted to be held on
vague and unspecified charges; and
(iv) Under what circumstances enquiry can be conducted
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against the delinquent employee who has retired on
reaching the age of superannuation.
In case the punishment is set aside:
7. It is a settled legal proposition that, once the Court set
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asides an order of punishment on the ground, that the enquiry
was not properly conducted, the Court should not severely
preclude the employer from holding the inquiry in accordance
with law. It must remit the concerned case to the disciplinary
authority, to conduct the enquiry from the point that it stood
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vitiated, and to conclude the same in accordance with law.
However, resorting to such a course depends upon the gravity
of delinquency involved. Thus, the court must examine the
magnitude of misconduct alleged against the delinquent
employee. It is in view of this, that courts/tribunals, are not
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competent to quash the charge-sheet and related disciplinary
proceedings, before the same are concluded, on the
aforementioned grounds.
(Vide: Managing Director, ECIL, Hyderabad etc.etc. v. 8.
Karunakar etc.etc. AIR 1994 SC 1074; Hiran Mayee
Bhattacharyya v. Secretary, S.M. School for Girls & Ors.,
(2002) 10 SCC 293; UP. State Spinning C. Ltd. v. R.S.
Pandey & Anr., (2005) 8 SCC 264; and Union of India v. Y.S.
Sandhu, Ex-Inspector AIR 2009 SC 161).
Enquiry at belated stage:
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8. The court/tribunal should not generally set aside the
departmental enquiry, and quash the charges on the ground of
delay in initiation of disciplinary proceedings, as such a power
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[2013] 6 S.C.R.
A is de hors the limitation of judicial review. In the event that the
court/tribunal exercises such power, it exceeds its power of
judicial review at the very threshold. Therefore, a charge-sheet
or show cause notice, issued in the course of disciplinary
proceedings, cannot ordinarily be quashed by court. The same
8 principle is applicable in relation to there being a delay in
conclusion of disciplinary proceedings. The facts and
circumstances of the case in question, must be carefully
examined, taking into consideration the gravity/magnitude of
charges involved therein. The Court has to consider the
C seriousness and magnitude of the charges and while doing so
the Court must weigh all the facts, both for and against the
delinquent officers and come to the conclusion, which is just and
proper considering the circumstances involved. The essence
of the matter is that the court must take into consideration all
relevant facts, and balance and weigh the same, so as to
D determine, if it is intact in the interest of clean and honest
administration, that the said proceedings are allowed to be
terminated, only on the ground of a delay in their conclusion.
(Vide: State of U.P. v. Brahm Datt Sharma & Anr., AIR 1987
SC 943; ·State of Madhya Pradesh v. Bani Singh & Anr., AIR
E 1990 SC 1308; State of Punjab & Ors. v. Chaman Lal Goyal,
(1995) 2 SCC 570; State of Andhra Pradesh v. N.
Radhakishan, AIR 1998 SC 1833; M. V. Bijlani v. Union of
India & Ors., AIR 2006 SC 3475; Union of India & Anr. v.
Kunisetty Satyanarayana, AIR 2007 SC 906; The Secretary,
F Ministry of Defence & Ors. v. Prabash Chandra Mirdha, AIR
2012 SC 2250; and Chairman, LIC of India &'Ors. v. A.
Masilamani, JT (2012) 11 SC 533).
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Enquiry - on vague charges :
9. In Surath Chandra Chakravarty v. The State of West
Bengal, AIR 1971 SC 752 this Court held, that it is not
permissible to hold an enquiry on vague charges, as the same
do not give a clear picture to the delinquent to make out an
effective defence as he will be unaware of the exact nature of
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
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SOCIETY [DR. B.S. CHAUHAN, J.]
the allegations against him, and what kind of defence he should
A
put up for rebuttal thereof. The Court observed as under:-
"The grounds on which it is proposed to take action have
to be reduced to the form of a definite charge or charges
which have to be communicated to the person charged
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together with a statement of the a/legations on which each
charge is based and any other circumstance which it is
proposed to be taken into consideration in passing
orders has to be stated. This rule embodies a principle
which is one of the specific contents of a reasonable or C
adequate opportunity for defending oneself. If a person
is not told clearly and definitely what the allegations are
on which the charges preferred against him are founded,
he cannot possibly, by projecting his own imagination,
discover all the facts and circumstances that may be in
the contemplation of the authorities to be established
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against him." (Emphasis added)
10. Where the chargesheet is accompanied by the
statement of facts and the allegations are not specific in the
chargesheet, but are crystal clear from the statement of facts,
in such a situation, as both constitute the same document, it
cannot be held that as the charges were not specific, definite
and clear, the enquiry stood vitiated. Thus, nowhere should a
delinquent be served a chargesheet, without providing to him,
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a clear, specific and definite description of the charge against · F
him. When statement of allegations are not served with the
chargesheet, the enquiry stands vitiated, as having been
conducted in violation of the principles of natural justice.
Evidence adduced should not be perfunctory, even if the
delinquent does not take the defence of, or make a protest with
against that the charges are vague, that does not save the
enquiry from being vitiated, for the reason that there must be
fair-play in action, particularly in respect of an order involving
adverse or penal consequences. What is required to be
examined is whether the delinquent knew the nature of
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A accusation. The charges should be specific, definite and giving
details of the incident which formed the basis of charges and
no enquiry can be sustained on vague charges.
(Vide: State of Andhra Pradesh & Ors. v. S. Sree Rama
8 Rao, AIR 1963 SC 1723; Sawai Singh v. State of Rajasthan,
AIR 1986 SC 995; U.P.S.R. T.C. & Ors. v. Ram Chandra
Yadav, AIR 2000 SC 3596; Union of India & Ors. v. Gyan
Chand Chattar, (2009) 12 SCC 78; and Ani/ Gilurker v.
Bi/aspur Raipur Kshetria Gramin Bank & Anr., (2011) 14 SCC
c 379).
11. The purpose of holding an enquiry against any person
is not only with a view to establish the charges levelled against
him or to impose a penalty, but is also conducted with the object
of such an enquiry recording the truth of the matter, and in that
D sense, the outcome of an enquiry may either result in
establishing or vindicating his stand, and hence result in his
exoneration. Therefore, fair action on the part of the authority
concerned is a paramount necessity.
E Enquiry against a retired employee:
12. This Court in NO/DA Entrepreneurs Association v.
NO/DA & Ors., AIR 2011 SC 2112, examined the issue, and
held that the competence of an authority to hold an enquiry
against an employee who has retired, depends upon the
F statutory rules which govern the terms and conditions of his
service, and while deciding the said case, reliance was placed
on various earlier judgments of this Court including B.J. She/at
v. State of Gujarat & Ors., AIR 1978 SC 1109; Ramesh
Chandra Sharma v. Punjab National Bank & Anr., (2007) 9
G SCC 15; and UCO Bank & Anr. v. Rajinder Lal Capoor, AIR
2008 SC 1831.
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13. In State of Assam & Ors. v. Padma Ram Borah, AIR
1965 SC 4 73, a Constitution Bench of this Court held that it is
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
1143
SOCIETY [DR. S.S. CHAUHAN, J.]
not possible for the employer to continue with the enquiry after
A
the delinquent employee stands retired. The Court observed:-
"According to the earlier order of the State Government
itself, the service of the respondent had come to an end
on March 31, 1961. The State Government could not by
8
unilateral action create a fresh contract of service to take
effect from April 1, 1961. If the State Government wished
to continue the service of the respondent for a further
period, the State Government should have issued a
notification before March 31, 1961."
(Emphasis added)
While deciding the said issue, the Court placed reliance
on the judgment in R. T. Rangachari v. Secretary of State, AIR
c
1937 PC 27.
D
14. In State of Punjab v. Khemi Ram, AIR 1970 SC 214,
this court observed:
"There can be no doubt that if disciplinary action is sought
to be taken against a government servant it must be done
before he retires as provided by the said rule. If a
disciplinary enquiry cannot be concluded before the date
of such retirement, the course open to the Government
is to pass an order of suspension and refuse to permit
the concerned public servant to retire and retain him in
service till such enquiry is completed and a final order
is passed therein."
15. In Kirti Bhusan Singh v. State of Bihar & Ors., AIR
1986 SC 2116, this Court held as under:
" .... We are of the view that in the absence of such a
provision which entitled the State Government to revoke
an order of retirement ....... which had become effective
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and final, the order passed by the State Government
revoking the order of retirement should be held as having
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been passed without the authority of law and is liable to
be set aside. It, therefore, follows that the order of
dismissal passed thereafter was also a nullity."
16. In Bhagirathi Jena v. Board of Directors, O.S.F.C. &
8
Ors., AIR 1999 SC 1841, this Court observed:
• ... There is also no provision for conducting a
disciplinary enquiry after retirement of the appellant and
nor any provision stating that in case misconduct is
established, a deduction could be made from retiral
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benefits. Once the appellant had retired from service on
30-6-1995, there was no authority vested in the
Corporation for continuing the departmental enquiry even
for the purpose of imposing any reduction in the retiral
benefits payable to the appellant. In the absence of such
D
an authority, it must be held that the enquiry had lapsed
and the appellant was entitled to full retiral benefits on
retirement. "
17. In U.P. State Sugar Corporation Ltd. & Ors. v. Kamal
E Swaroop Tandon, (2008) 2 SCC 41, this Court dealt with a
case wherein statutory corporation had initiated proceedings
for recovery of the financial loss from an employee after his
retirement from service. This Court approved such a course
observing that in the case of retirement, master and servant
relationship continue for grant of retrial benefits. The
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proceedings for recovery of financial loss from an employee is
permissible even after his retirement and the same can also
be recovered from the retrial benefits of the said employee.
18. Thus, it is evident from the above, that the relevant rules
G governing the service conditions of an employee are the
determining factors as to whether and in what manner the
domestic enquiry can be held against an employee who stood
retired after reaching the age of superannuation. Generally, if
the enquiry has been initiated while the delinquent employee
H was in service, it would continue even after his retirement, but
SHRI ANANT R. KULKARNI v. Y.P. EDUCATION
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SOCIETY [DR. B.S. CHAUHAN, J.]
nature of punishment would change. The punishment of A
dismissal/removal from service would not be imposed.
19. The case requires to be examined in the light of the
aforesaid legal propositions.
The following charges were framed against the appellant:
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(a)
Charge No.1 :-The first respondent did not submit
dead stock verification report in spite of several
letters.
(b)
Charge No.2:-The first respondent did not submit c
the documents such as cash books, ledgers and
voucher files in spite of demands made by the
management.
(c)
Charge No.3:- relates to not calling School
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Committee meeting and causing loss of Rs.48851/
- as no timely approval was obtained for that
expenditure from the school committee.
(d)
Charge No.4:- The first respondent did not send
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appointment proposal dated 4.9.2000 of Mr.
Ghadge for approval to the Education Officer
(Secondary) Z.P.