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CASE NO.:

Appeal (civil) 1477 of 2000

PETITIONER:

AIR INDIA LTD.

Vs.

RESPONDENT:

M. YOGESHWAR RAJ

DATE OF JUDGMENT: 02/05/2000

BENCH:

D.P.Wadhwa, Ruma Pal

JUDGMENT:

RUMA PAL, J

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Leave granted.

The appeal has been preferred from the order of the

High Court of Bombay dated 18th September 1999 by which the

High Court issued a rule and granted interim relief on the

writ application filed by the respondent. The subject

matter of challenge in the writ application was a show cause

notice dated 30th August, 1999 issued by the appellant to

the writ petitioner The impugned show cause notice followed

an earlier show cause notice (referred to as the first

notice) issued to the respondent by the appellant on

29.12.1998. It was alleged in the first notice that the

respondent had been given appointment by the appellant in

1976 on the basis of his claim that he belonged to a

Schedule Tribe against a post reserved for Schedule

Caste/Schedule Tribe. A caste certificate had been

submitted by the respondent at the time of his appointment

which had been issued by the Tutor, Department of Pathology,

Institute of Medical Sciences, Osmania Medical College,

Hyderabad and attested by the Tahsildar, Hyderabad Urban

Taluk without the signature of the concerned Tahsildar. As

the caste certificate was not in the prescribed form from

the competent authority, the respondent had been called upon

by the appellant to submit a proper certificate. Pursuant

to this, a caste certificate dated 4th February, 1998 had

been submitted by the respondent. It was alleged in the

first notice that the caste certificate so produced was a

forged document. It was further stated in the first notice

that the appellant was a prima facie of the view that it

could not repose any more confidence in any manner on the

respondent and that the appellant was prima facie of the

view, having regard to nature of duty discharged by the

appellant, that the respondent was not a person who could be

retained in service. The respondent was charged with breach

of clause 19 (2) (viii) of the Certified Standing Orders.

The respondent was accordingly called upon to submit an

explanation in writing within three days from the date of

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communication of the first notice failing which further

disciplinary action would be initiated against him in

accordance with the Certified Standing Orders. By letters

dated 2nd January, 1999 and 25th January, 1999, the

respondent asked for extension of time to submit his written

submissions. It was granted by the appellant. On Ist

February, 1999 the appellant asked the respondent to submit

his explanation within three days from the communication of

that letter. No explanation was submitted by the

respondent. The Inquiry Proceedings were commenced on 12th

February, 1999 to inquire into the charges framed against

the respondent under the first notice. Witnesses were

examined and an inquiry report was submitted on 29.4.1999.

The Inquiry Committee came to the conclusion that the caste

certificate dated 4th February, 1998 had turned out to be a

bogus certificate. It was however noted that the original

caste certificate submitted by the respondent in 1976 had

been affirmed by a certificate issued from the office of the

Collector, Hyderabad on 11.3.1999. The Inquiry Committee

was of the view: Merely securing a wrong or false

certificate, by itself does not amount to a misconduct. The

certificate may be false due to ignorance or incompetence

and therefore a wrong or false certificate does not

necessarily create delinquency on part of the person who

produces it.

Accordingly, the Inquiry Committee found the

respondent not guilty of the charges framed. It was in this

background that the show cause notice impugned by the

respondent before the High Court was issued by the

Disciplinary Authority. In substance, the notice stated

that the caste certificate dated 4.2.1998 had been found to

be forged. As far as the caste certificate dated 11.3.1999

was concerned it was stated that the address mentioned in

the Collectors certificate had not been mentioned as the

respondents place of residence in any of his records with

the appellant. It was also stated that the Collectors

letter did not refer to the caste certificate dated 4.2.1998

and that if the 1976 certificate was genuine, it was to be

explained why the bogus caste certificate dated 4.2.1998 was

produced. According to the notice, the Inquiry Committee

had not dealt with these details in its report. The

Disciplinary Authority concluded by saying: In view of

the above prima facie I am of the view that acts of

misconduct levelled against you vide chargesheet referred to

above has been established and tend to hold you guilty of

the acts of misconduct and however before coming to such

conclusions, I hereby give you an opportunity to submitting

your say as to why you should not be held guilty of the

above charges within 3 days of communicating of this letter

to you. In case you fail to submit any satisfactory

explanation within the stipulated period of time. I propose

to award you the punishment of dismissal from the services

of the Company without retirement benefits in full as per

Clause No. 20 ( i ) of the Certified Standing Orders

applicable to you.

Clearly, the Disciplinary Authority was yet to make up

his mind as to the guilt of the respondent. According to

the appellants, the challenge to the proceedings was

premature and the High Court should not have entertained the

writ application as disputed questions of fact were

involved. However, we do not wish to deal with this aspect

of the matter as the High Court by the order under appeal

has issued a Rule Nisi and it will be open to the appellants

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to raise this and other contentions in their answer to the

Rule. We are not aware as to the reason why the High Court

was persuaded to issue a Rule Nisi, but in its further

observations, Prima facie, we are satisfied that the

petitioner belongs to the Schedule Caste/Schedule Tribe and

also grant of an interim order staying the proceedings

before the Disciplinary Authority were erroneous. It

appears from a copy of the writ petition that the respondent

has not questioned the jurisdiction of the Disciplinary

Authority to issue the impugned Show Cause Notice. The two

issues of the respondents caste and whether he had

adequately explained the production of the bogus certificate

of 4.10.98 are yet to be decided by the Disciplinary

Authority. Both the issues are primarily issues of fact.

The High Court should not have preempted a factual decision

of the disciplinary authority on the issues. Nor should the

High Court have stayed the proceedings on a prima facie

finding on the subject matter of enquiry particularly when

the competence of the Disciplinary Authority was not in

doubt. The respondents reliance on the decision of Sur

Enamel and Stamping Works (P) Ltd. V. Their Workmen 1964

(3) SCR 616 and State of Haryana V. Om Prakash, Constable

1990 (Supp) SCC 282 is misplaced. In both cases, orders of

dismissal had already been passed. Furthermore, the orders

of dismissal had been passed on proceedings which were not

the subject matter of the charge and of which the employee

had not been put on notice. In the case before us, apart

from the fact that no final order has been passed by the

Disciplinary Authority, the substance of the impugned notice

in no way differs from that of the first notice. The third

decision noted by the respondent viz. State of Madhya

Pradesh V. Bani Singh & Another 1990 (Supp) SCC 738 is also

inappropriate. The decision related to disciplinary

proceedings initiated in respect of incidents which had

taken place 12 years earlier. It was said: The

irregularities which were the subject matter of the enquiry

is said to have taken place between the years 1975-77. It

is not the case of the department that they were not aware

of the said irregularities, if any, and came to know it only

in 1987. According to them even in April 1977, there was

doubt about the involvement of the officer in the said

irregularities and the investigations were going on since

then. If that is so, it is unreasonable to think that they

would have taken more than 12 years to initiate the

disciplinary proceedings as stated by the Tribunal. There

is no satisfactory explanation for the inordinate delay in

issuing the charge memo and we are also of the view that it

will be unfair to permit the departmental enquiry to be

proceeded with at this stage. Here the disciplinary

proceedings were initiated against the respondent because of

the production of a bogus certificate dated 4.10.1998. The

disciplinary proceedings were initiated on 29.12.98. There

was no delay. Besides the respondent participated in the

enquiry without protest. We, therefore, allow the appeal

and set aside the order dated 18th September 1999 in so far

as it stayed the operation of the show cause notice dated

30th August 1999 as well as the finding relating to the

caste of the respondent. There will be no order as to

costs.