JUDGMENT
Vikramajit Sen, J.
1. In this Writ Petition the Petitioner has prayed for the quashing of the ‘Supplementary Memorandum’ dated 22.12.2003, which, as per its very caption, is in continuation of the earlier Memorandum dated 29.1.2002 issued under Rule 27 of the IRCON Conduct Discipline and Appeal Rules 1981. The Supplementary Memorandum, inter alia, states that the President has decided that an Inquiry may be held in the manner as laid down in Clauses 3 to 9 of Rules 25 and 26 of the IRCON Conduct Discipline and Appeal Rules 1981 read with Rule 11(c) of the IRCON Employees Group Gratuity Trust Rules; the earlier Memorandum does not refer to Rule 11(c). It has also been prayed that the proposed proceedings are vitiated by delay, since the Petitioner had superannuated on 31.1.002, whereas the Departmental Enquiry is founded on the Memorandum/Charge-sheet dated 22.12.2003. Court should refrain from interfering with the conclusion of a Departmental Enquiry.
2. Cases are common-place where it has been contended that once an employee has been acquitted in a criminal case, disciplinary proceedings on the same subject should be dropped forthwith. The view in Kundan Lal v. The Delhi Administration, Delhi and Ors., 1976(1) SLR 133 where Departmental Proceedings had been quashed consequent upon the acquittal of the delinquent employee has not been ubiquitously followed. In Shaik Kasim v. The Superintendent of Post Offices, Chingle put Dn. and Anr., AIR 195 Madras 502 it has been held that if Departmental Proceedings are initiated on identical facts, evidence and charges as those in the criminal proceedings and where the acquittal is substantially on merits, it would be proper for the disciplinary proceedings to be brought to an end. Similar arguments had been raised before the Hon’ble Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., 1999 (2) SLR 338, where the differences in the burden of proof required before a domestic enquiry and a criminal Court was clearly emphasised. The Court ruled in favor of continuance of Departmental Proceedings as well as criminal prosecution. In Sulekh Chand and Salek Chand v. Commissioner of Police and Ors., , it has been observed that ”it is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental inquiry on the selfsame allegations and take appropriate disciplinary action”. Krishnakant Raghunat Bibhavenekar v. State of Maharashtra and Ors., was decided without reference to Anthony’s case(supra). Pending his criminal trial the employee was placed under suspension and consequent upon his acquittal in that prosecution because of insufficient evidence, he was reinstated but consequential benefits were not granted to him. The Court opined that-It is true that when a government servant is acquitted of offences, he would be entitled to reinstatement. But the question is whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of the prosecution of a public sevant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sends riples among the people in the office/locality and shows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taking puitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view tis grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did no commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including trating suspension period as period of not on duty (and on payment of subsistence allowance etc.)
3. In Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar, , it has been opined that
”acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application”.
These decisions have been discussed although I am fully mindful of the fact that in the case in hand criminal charges have not been famed against the present Petitioner and therefore there was no occasion for his acquittal. The reason for mentioning the series of judgments is to underscore the preponderant view that normally Disciplinary Inquiries should be allowed to run their course
4. The decision of the Apex Court in Union of India and Ors. v. Upendra Singh, 1994 SCC (Lands) 768 is of direct relevance. The Court enunciated that a writ of prohibition can be issued only when the lack of jurisdiction to continue with the departmental inquiry is patently obvious. The following extract from the Judgment is extremely instructive:
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath and Sons. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus: (SCC p. 317, para 8) Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judcial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.
7. Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the Tribunal haseld that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate. The learned counsel for the Petitioner has pursued a path which avoids the merits or veracity of the charges levelled against the Petitioner. It is his argument that on legal grounds alone both the Charge-sheets/Memorandums are liable to be quashed. Theatio in Upendra Singh’s case (supra) convinces me that the rare exception established therein can thus be traversed through and if the Memorandums are contrary to law per se, sans a consideration of the factual matrix, the Petition would be firmly founded Can Departmental Inquiries be continued after the retirement/superannuation of the employee.
5. Mr. Krishna, learned counsel for the Respondent has submitted that if a domestic inquiry is commenced during the service or tenure of the employee, even though by the issuance of a Charge-Sheet alone, then it can be continued and a decision can be delivered thereon even post the cessation of the master and servant relationship. In State Bank of India v. A.N. Gupta and Ors., their Lordships, Sujata V. Manohar and D.P. Wadhwa, JJ. had overruled the decision of the High Court of Andhra Pradesh in T. Narasiah v. SBI, (1978) 2 LLJ 173 and of the High Court of Bombay in J.K. Kulkarni v. State Bank of India in MP No. 964 of 1997 decided on 29.11.1997, for the reason that those decisions imparted validity to disciplinary proceedings against an employee even after his superannuation, for which no provision existed either in the Pension Rules or in the Service Rules. The Apex Court rejected the plea that the Provident Fund Trustees were empowered to withhold the Provident Fund till after thy had had an opportunity to establish and determine the amount, if any, due from the Respondents to the Bank. In Bhagirathi Jena v. Board of Directors, O.S.F.C. and Ors., the Hon’ble Supreme Court cogitated upon a Regulation which did not contain any specific provision enabling deductions from the Provident Fund consequent upon misconduct established in a Departmental Inquiry, nor was there any provision made for continuation of the Departmental Inquiry after superannuation. The Bench comprising their Lordships M. Jagannadha Rao and S.S.M. Quadri, JJ. had this to say:
7. In view of the absence of such a provision in the above said regulations, it must be held that the Corporation had no legal authority to make any reduction in the retrial benefits of the appellant. There is also no provision for conducting a disciplinry enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retrial benefits. Once the appellant had retired from service on 30.6.1995, there was no authority vested ithe 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 an authority, it must be held that the enquiry had lapsed and the appellant ws entitled to full retiral benefits on retirement.
8. Learned Senior Counsel for the respondent placed reliance on the judgment of this Court in Takhatray Shivadattray Mankad v. State of Gujarat. It is true that that was a case of imposing a reduction in the pension and gratuity on account of unsatisfactry service of the employee as determined in an enquiry which was extended beyond the date of superannuation. But the above decision cannot help the respondent inasmuch as in that case there was a specific rule namely Rule 241-A of the Junagadh State Penson and Parwashi Allowance Rules, 1932 which enabled the imposition of a reduction in the pension or gratuity of a person after retirement. Further, there were rules in that case which enabled the continuance of the departmental enquiry even after superanuation for the purpose of finding out whether any misconduct was established which could be taken into account for the purpose of Rule 241-A. In the absence of a similar provision with the regulations of the respondent-Corporation, the above judgment of Mankad case cannot help the respondent.
6. Chandra Singh and Others v. State of Rajasthan and Anr., was decided by a Bench presided over by V.N. Khare, C.J. and S.B. Sinha and Dr. A.R. Lakshmanan, JJ. The Court again unequivocally reiterated the view that ”a departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceedings is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms where of, whole or a part of the pension can be withheld or withdrawn wherefor a proceedings has to be initiated. Furthermore, no rule has also been brought to our notice providing for continuation of such proceedings despite permitting the employee concerned toretire. In the absence of such a proceeding, the High Court or the State cannot contend that the departmental proceedings against the appellant Mata Deen Garg could continue”. In this analysis the only possible conclusion is that the departmental inquire can continue after retirement of the employee concerned only if Rules so permit. Seven Learned Judges of the High Court of our country have spoken in one voice on this issue and it is therefore no longer res integra that it is impermissible for an emploer to continue disciplinary proceedings in circumstances where its Regulations do not categorically contemplate such continuance. Factual matrix of the case.
7. The Appointment Letter of the Petitioner as Managing Director, IRCON specifically mentioned that the Conduct, Discipline and Appeal Rules would apply mutates mutants to him. No Rule has been shown which empowers the continuance of a Departmental Inquiry post retirement/superannuation. Indeed, learned counsel for the Respondent had conceded this position and, therefore, whether the Petitioner had been charged with a minor or major penalty makes no substantial difference for arriving at the conclusion that such proceedings are impermissible under the said IRCON Conduct Discipline and Appeal Rules 1981. The reference by learned counsel for the Petitioner to minor and major penalties was made with the view of establishing that the Memorandum dated 22.12.203 was an altogether new one. Therefore, even if the argument that Departmental Inquires which had commenced prior to retirement/superannuation could continue even on the happening of that event is assumed to be correct, even then the second Charge-Sheet/emorandum was liable to be struck down on the short ground that it had been issued after the cessation of the Petitioner’s services with the Respondent. In the said Memorandum dated 22.12.2003 a reference, no doubt, has been made to Rule 11(c) of the IRCN Employees Group Gratuity Trust Rules but for the first time. Since it is at the fulcrum of the dispute, it would be necessary to reproduce it:
An employee against whom disciplinary action/proceedings 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 finalisation of the disciplinary proceedings, the release of payment of amount of gratuity will depend on 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 termenated for misconduct, insolvency or inefficiency. As has already been seen from a study of the opinions expressed by the Hon’ble Supreme Court in the cases mentioned above, if this Rule indeed permits the continuance of the Inquiry even after the superannuation of the Petitioner, the Departmental Inquiry which has been interdicted by this Court would be in consonance with law.
8. The controversy as to minor or major punishment emanates from the Order dated 29.1.2002 on the subject of Departmental Proceedings against the Petitioner. It states that that President has approved initiation of minor penalty, disciplinary proceedings against the Petitioner under Rule 27 of the IRCON Conduct, Discipline and Appeal Rules 1981. The Petitioner superannuated on 31.1.2002 and it is his contention that he left the services of the Respondent unconditionally since Certificate dated 31.1.2002 metions that he ”as Managing Director from 16.5.1997 has relinquished the charge of the post of Managing Director of Ircon International Ltd. with effect from 31st January, 2002(AN) on attaining the age of superannuation”. It is contended that mention ought to have been made of the Memorandum dated 29.1.2002 and since it is not so done, the only conclusion that should be drawn is that the Memorandum stood withdrawn. On 11.2.2002 the Petitioner had made a request for the release of his retiral benefits it is not in dispute that the Petitioner had submitted a detailed Reply to the Memorandum of Charges on 25.2.2002.
9. Rule 25 establishes the procedure for imposing major penalties and Rule 26 contemplates action which is expected of the Disciplinary Authority on the submission of the Inquiry Report. Rule 27, which contemplates the imposition of minor penalties prescribes the issuance of the imputations of misconduct and misbehavior, the giving of an opportunity of a written defense, and passing orders thereafter. The distinction between the two is that an Inquiry is not envisaged in the latter event. In my view its unnecessary to dwell any further on the ramifications of Rules 25 to 27 dealing with major and minor penalties for the reason that all of them lose their efficacy consequent upon the superannuation of the Petitioner on 31.1.2002 since there is no provision authorising the continuance of an Inquiry after the cessation of the master/servant relationship. Mr. Krishna has been at pains to clarify that the Memorandum dated 22.12.2003 was in continuation of the earlier Memorandum dated 29.1.2002 and that the imputations of misconduct or misbehavior have not changed. I find it difficult to accept this argument since there is a deliberate and not insignificant shift from minor to major penalties. Even if Rule 25 merely lays down the procedure for imposing majer penalties, one cannot lose sight of the differences between the two penalties and the fact that a more detailed procedure is laid down for the major penalties. The two Memorandums are, therefore, distinct of each other, and the reference to Rule 11(c) of IRCON Employees Group Gratuity Trust Rules, for the first time, fortifies my conclusion. The Respondents obviously realised that the Departmental Inquiry was legally invalid after 31.1.2002 on which day the Petitioner had superannuated, and the any possible method to legitimise the Enquiry was by relying on the said Rule 11(c).
10. Mr. Krishna has attempted to brush aside the failure to advert to Rule 11(c) as legally insignificant on the argument that the Gratuity Rules would come into play only after the retirement/ superannuation of the employee concerned. It is his submission that for this sole reason the Memorandum dated 29.1.2002 made no reference to the Gratuity Rules. If this is so, the Rule itself is not attracted, since it cannot be contended that the proceedings were, in the language of the Rule itself, ”contemplatedor pending at the time of resignation/retirement”. The present case, therefore, falls squarely within the ratio in Upendra’s case (supra), namely, that the lack of jurisdiction to continue with the Departmental Inquiry is patently obvious. As has already been recorded above, learned counsel for the Petitioner had steered clear of the correctness of the imputations made against the Petitioner and had rested his arguments squarely on the obvious illegality of the proceedings. It appears to me that the Departmental Inquiry was more in the nature of an Inquisition. The alleged loss caused to IRCON by the Petitioner is stated to be approximately Rs. 13 crores, whereas the recoveries that can be made from the gratuity would be a nominal amount of less than Rs. 3,00,000/-. Mr. Krishna contends that the impact of the delay in the issuance of the Memorandum dated 22.12.2003 is an altogether different issue, since it touches upon latches. In my view, the long delay is indicative of the Inquiry being in the nature of an Inquisition.
11. For these manifold reasons I am of the opinion that the proposed Inquiry pursuant to the Memorandum dated 22.12.2003 is patently illegal and calls to be struck down. The interim Orders are made absolute and the Writ Petition is allowed.
12. Parties to bear their respective costs.