voluntary confession of charges by worker can close down investigation

8/12/2019 Voluntary confession of charges by worker can close down investigation

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tRNG 1 wp.2296.02IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.2296 of 2002

1. Employees' State Insurance Corporation }Panchdeep Bhavan otla Road! Ne" #elhi

$. %he Secretary! Government o& India! }inistry o& (a)our! Shram Sha*tiBhavan! Ne" #elhi. }

+. %he Chairman!Standin, CommitteeESI Corporation! ESIC Buildin, }otla Road! Ne" #elhi.

-. %he #irector General!ESI Corporation! }ESIC Buildin,! otla Road! Ne" #elhi

. %he #eputy /dministrative 0&&icer }

2i,ilance3 ESI Corporation!Panchdeep Bhavan! otla Road!Ne" #elhi. }

4. %he 5inancial CommissionerESI Corporation! Panchdeep Bhavan!otla Road! Ne" #elhi. }

.. Petitioners vs

1. Shri /.2.%un,are R60 }%amhane 7ouse! Near Chavadi! Neral!%al ar8at #istrict Rai,ad

}$. Shri 7.5.Rane9t.Re,ional #irector!

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tRNG 2 wp.2296.02Su) Re,ional 0&&ice! ESIC }Panchdeep Bhavan!Ganesh Peth!Na,pur.

+. Shri 9.#.Barahate }Insurance Inspector (3Su) Re,ional 0&&ice!ESICPanchdeep Bhavan!Ganesh Peth!Na,pur. }

.. 0ri,. Respondent Nos.: ; hat are the conse?uences o& admission o& char,es )y a delin?uent

employee )e&ore the In?uiry 0&&icer in a disciplinary in?uiry and "hether

a&ter recordin, o& such admissions! the in?uiry can still proceed or can )e

closed to su)mit a in?uiry report is the moot issue "hich arises in the

present proceedin,s.

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tRNG 3 wp.2296.022. By the present petition under /rticle $$4 o& the Constitution o& India!the Employees State Insurance Corporation challen,es the 8ud,ment and

order dated


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tRNG 4 wp.2296.02char,e sheet dated $+..1AA@ "as issued to the 1st respondent )y thepetitioner. %he statement o& articles o& char,es contained 11 char,es in

respect o& various acts o& the 1strespondent durin, the period 1..1A


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tRNG 5 wp.2296.02order dated [email protected] issued )y the 1stpetitioner Shri 7.P. Rane the 9ointRe,ional #irector Su)Re,ional o&&ice! Na,pur "as appointed as the

In?uiry 0&&icer. Shri.S..Noor /hmed "as appointed as the presentin,

o&&icer &or the department to replace Shri S.R.Natra8anan "ho "as earlier

appointed as the presentin, o&&icer. /t the hearin, o& the in?uiry! &ied on

$+.A.1AA1 the 1strespondent epressed his ina)ility to appear as he "as on

leave on medical ,rounds. %he in?uiry proceedin,s "ere there&ore

ad8ourned to 4.1.1AA$ on "hich day the 1strespondent appeared and stated

that he has already denied all the char,es at the hearin, held on .1$.1AA@.

/t the said hearin,! the 1st respondent also con&irmed receipt o& the copies

o& the documents as relied upon )y the department in support o& the char,es

as also inspection o& the same "as ,iven a&ter "hich the 1 st respondent

stated that he did not "ant call &or any additional documents and that he did

not "ish to produce any "itness in support o& his de&ence. / re,ular in?uiry

"as &ied on $1.:.1AA$ and the same "as ad8ourned to +.1$.1AA$.

. 0n +.$.1AA$ the 1strespondent appeared )e&ore the In?uiry 0&&icer

and re?uested &or en,a,in, the services o& Shri 9.#.Barahate (e,al

Inspector3 o& the 1stpetitioner Corporation as his de&ence /ssistant. %his

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tRNG 6 wp.2296.02re?uest o& the 1strespondent "as accepted )y the In?uiry 0&&icer and it "asindicated that the in?uiry can commence as the initial &ormalities o&

inspection o& documents and &urnishin, copies thereo& "as over. /t the said

hearin, the de&ence assistant Shri 9.#.Barahate made a su)mission that

thou,h the 1strespondent had pleaded not ,uilty to all the 11 char,es in the

char,e sheet! the 1st respondent "anted to chan,e his plea and no" "ants

to plead ,uilty to all the 11 char,es! since on a second thou,ht he "as

satis&ied that the su)stance in each o& the char,es "as correct. %he #e&ence

/ssistant there&ore! sou,ht permission &or chan,in, the plea and &or

pleadin, the ,uilty to all the 11 char,es.

4. In this re,ard! in the recordin, o& the in?uiry proceedin,s o&

+.$.1AA$ all the 11 char,es "hich "ere independently enumerated under

"hich the respondent made the &ollo"in, hand"ritten endorsement )elo"

every char,e =

F I accept the char,e FS6d

/.2.%un,are3 +.$.1AA$

%he In?uiry 0&&icer recorded that in vie" o& the unconditional

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tRNG 7 wp.2296.02admission o& the char,es! there "ould not )e a necessity to ,o ahead "iththe in?uiry proceedin,s since all the char,es stood proved in totality. %he

In?uiry 0&&icer as*ed the 1strespondent "hether he had anythin, &urther to

to say )y "ay o& su)mission in "ritin,. /ccordin,ly! a letter dated

+.$.1AA$ "as su)mitted )y the 1strespondent as also si,ned )y the de&ence

assistant addressed to the 9oint Re,ional #irector in char,e Su)Re,ional

o&&ice! ESI Corporation Na,pur. %he letter reads as under =

F %o!

%he 9oint Re,ional #irector I603Su) Re,ional 0&&ice!

ESI Corporation!N/GPR.

Su)8ect= #epartmental En?uiry a,ainst me pendin,)e&ore you.

Sir!

I have to su)mit that I have care&ully ,one throu,h the char,es No.1 to11 levelled a,ainst me &or holdin, departmental En?uiry a,ainst me &or

misconduct and mis)ehaviour.

In this connection! I have to su)mit that the omissions and lapses

enumerated in the char,e sheet "ere not deli)erate on my part or "ith anulterior motive to ,ain somethin, &or me. %hey have occurred innocently durin,

the course o& dischar,in, my duties as a ana,er &or "hich I sincerely tendermy apolo,y.

I voluntarily and unconditionally plead ,uilty &or all the char,es

levelled a,ainst me and hum)ly re?uest you to *indly pardon me &or the same. Ihave &urther to su)mit that these omission and mista*es "ere occurred only

)ecause o& the mental distur)ance on account o& &amily pro)lems.

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tRNG 8 wp.2296.02I have to su)mit that my hum)le re?uest o& ta*in, lenient vie" ina"ardin, the punishment in my case may *indly )e conveyed to the #isciplinary/uthority &or "hich act o& *indness! I shall remain hi,hly o)li,ed.%han*in, you in anticipation!

Hours &aith&ully! S6d

/.2.%un,are 3 /N/GER GR/#EI

S6d 9.#.Barahate 3

#t.+.$.1AA$Place=Na,pur #E5ENCE /SSIS%/N% F

%he de&ence /ssistant o& the 1strespondent made oral su)missions

that it is a &act that lapses occurred on the part o& the 1st respondent.

7o"ever! all the lapses "ere on account o& the distur)ed mental condition

o& the 1st respondent and he had committed the o&&ences "ithout

understandin, the serious implications involved. It "as &urther su)mitted

that )ecause o& the distur)ed state o& mind on account o& certain domestic

pro)lems! the 1strespondent "as not havin, )alance e?uili)rium o& mind in

the result he committed the lapses &or "hich he &elt repented and "as

see*in, pardon havin, realied the mista*es he had committed. It "as

&urther su)mitted )y the de&ence /ssistant that i& the Corporation had )een

su)8ected to any monetary loss on account o& the lapses o& the 1st

respondent he "as ready to compensate the Corporation )y ma*in, ,ood

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tRNG 9 wp.2296.02the relevant losses. It "as stated that this re?uest may )e communicated tothe disciplinary authority as a special case "ith a re?uest that this

su)mission may )e *ept in vie" "hile a"ardin, the punishment i& any. It

"as &urther su)mitted that the lapses that "ere committed )y the 1st

respondent "ere not intentional and "as made in a distur)ed state o& mind

and hence he "as re?uestin, &or a minimum penalty that is prescri)ed

under the provisions o& la" and &urther su)mitted that he "ould )e vi,ilant!

very &aith&ul and very loyal and sincere in the per&ormance o& his duties

and "ill not ,ive any room &or any such complaint "as also recorded in

the in?uiry proceedin,s. %he In?uiry 0&&icer recorded that accordin,ly the

1st respondent "as in&ormed that on account o& the &act that the 1st

respondent had unconditionally and voluntarily pleaded ,uilty to all the

char,es the in?uiry is not re?uired to )e proceeded and that Shri um)har

the Re,ional #irector and r.P.N.#harmadhi*ari the /udit Inspector "ho

"ere present as "itnesses o& the mana,ement "ere there&ore! dischar,ed.

%he a&oresaid recordin, o& the in?uiry proceedin,s dated +.$.1AA$ "as

duly si,ned )y the 1strespondent and the de&ence /ssistant and all others

"ho "ere present.

:. %he 1strespondent therea&ter addressed a letter dated $A..1AA$ to

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tRNG 10 wp.2296.02the #irector General o& the 1stpetitioner statin, that as re,ards the in?uiryreport he had no comments to o&&er and re?uested to ta*e a lenient vie". By

a detailed order dated :.:.1AA$ passed )y the disciplinary authority! it "as

recorded that the char,es "hich "ere admitted "ere etremely serious. It

"as recorded that there "ere no etenuatin, circumstances in this case and

that the 1strespondent "as not a &it person to )e retained in the service o&

the 1stCorporation and hence the penalty o& dismissal "as imposed on the

1strespondent.


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tRNG 11 wp.2296.02he pleaded ,uilty it "ould save the 1st respondent &rom &urther mentalharassment and torture and only a minor punishment "ould )e imposed

a,ainst him. It "as prayed that the order o& dismissal )e set aside and he )e

reinstated in service.

A. %he /ppellate authority )y an order dated 1.4.1AA+ re8ected the

appeal &iled )y the 1strespondent. %he 1strespondent therea&ter pre&erred a

Revision Petition under Re,ulation $$ o& the Employees State Insurance

Corporation Sta&& and Conditions o& Service3 Re,ulation! 1AA )e&ore the

Secretary! Government o& India! inistry o& (a)our. By an order dated

1:.1$.1AA+ it "as held that the Revision Petition "as not maintaina)le.

1@. %he 1st respondent in the a&oresaid circumstances approached the

Central /dministrative %ri)unal! um)ai Bench! )y &ilin, 0ri,inal

/pplication No.


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tRNG 12 wp.2296.02pre8udice in active connivance "ith the de&ence /ssistant and hence theorder o& dismissal and order o& the appellate authority and the Revisional

authority "ere )adinla". %he Central /dministrative %ri)unal )y its

9ud,ment dated [email protected]@.$@@@ set aside the order o& dismissal and su)se?uent

orders passed )y the appellate authority and the Revisional authority and

remanded the matter to the disciplinary authority to eamine "hether there

"as clear admission o& ,uilt )y the 1st respondent and "hether it "as not

o)tained )y conspiracy )et"een the de&ence /ssistant and the In?uiry

0&&icer "ith an assurance that a lenient vie" in a"ardin, penalty shall )e

,ranted. /,ainst this 8ud,ment and order o& the Central /dministrative

%ri)unal!um)ai Bench! um)ai cross >rit petitions "ere &iled. %he

petitioners "as a,,rieved to the etent that the order o& dismissal passed )y

the disciplinary authority as con&irmed )y the appellate authority "as set

aside. %he 1st respondent "as a,,rieved to the etent that the Central

/dministrative %ri)unal directed the disciplinary authority to eamine

"hether there "as clear admission o& the ,uilt o& the 1st

respondent and to

test the alle,ation o& conspiracy )et"een the de&ence /ssistant and the

In?uiry o&&icer.

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tRNG 13 wp.2296.0211. / #ivision Bench o& this Court )y its 8ud,ment and order dated$+.-.$@@1 set aside the 8ud,ment and order dated [email protected]@.$@@@ passed )y the

Central /dministrative %ri)unal and restored 0ri,inal /pplication No.


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tRNG 14 wp.2296.021+. >e have heard r.Suresh umar learned counsel appearin, &or thepetitioner and r.Ramesh Rammurthy learned counsel appearin, &or the 1

st

respondent. >ith the assistance o& the learned counsel &or the parties! "e

have ,one throu,h record o& the present proceedin,s.

1-. (earned counsel &or the petitioner has su)mitted that the Central

/dministrative %ri)unal has erred in allo"in, the 0ri,inal application &iled

)y the 1st respondent "hen it "as an admitted position that the 1 st

respondent had accepted6a,reed to all the char,es )y a statement made in

"ritin, )e&ore the In?uiry 0&&icer. 7e &urther su)mits that the 1st

respondent &urther )y a letter dated +.$.1AA$ addressed to the Re,ional

#irector re?uested to ta*e a lenient vie" on the ,round that he has

voluntarily and unconditionally pleaded ,uilty to all the char,es. 7e

su)mits that not only this )ut the 1st respondent therea&ter )y a letter dated

$A..1AA$ addressed to the #irector General o& the 1 st respondent a,ain

re?uested to ta*e a lenient vie" "hich &urther compounded the voluntary

admission o& ,uilt in respect o& all the char,es as levelled a,ainst him.

(earned counsel &or the petitioner su)mits that the reliance on )ehal& o&

the 1strespondent on the 8ud,ment o& the Supreme Court in the case o&

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tRNG 15 wp.2296.029a,dish Prasad Saena vs.State o& adhya Bharat 1 as o)served )y theCentral /dministrative %ri)unal "as misplaced as the same had no

application in the &acts o& the present case. 7e &urther su)mits that on

merits the Central /dministrative %ri)unal could not have come to a

conclusion that the char,es a,ainst the 1st respondent are not proved. 7e

su)mits that there is an admission made )y the 1 strespondent )e&ore the

In?uiry 0&&icer and his su)se?uent conduct has not )een considered )y the

Central /dministrative %ri)unal.

1. (earned counsel &or the petitioner has relied upon the &ollo"in,

8ud,ments in support o& his su)mission that once the char,es are admitted

)y a delin?uent employee! a di&&erent stand cannot )e ta*en and that as a

lo,ical conse?uence o& the admission o& char,es! necessarily no &urther

in?uiry is re?uired to )e underta*en )y the disciplinary authority =

F/dditional #istrict a,istrate City3 vs Pra)ha*ar Chaturdevi ; anrJ$! #elhi %ransport

Corporation vs Shyam (al+! Chairman ; ana,in, #irector vs Gopara8u SriPra)ha*ar 7ari Ba)u-! ano8 7.ishra vs nion o& India ! Channa)asapa Basappa

7appali vs %he State o& ysore4 ! olhapur Dilla Saha*ari #udh tpada* San,h

vs.Shiva8i Shan*ar Phara*ate ; anr.:! Canara Ban* vs 7.%.oli ; anr.e &ind that the %ri)unal's conclusions are prima &acie not correct. %hestatement made )y the passen,er "ho had paid ecess money to the chec*in,

o&&icer is not in the nature o& hearsay evidence. /dditionally! the e&&ect o& the

admission re,ardin, ,uilt as contained in the letters dated 1+.1.1A


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tRNG 24 wp.2296.02R..(odha! as 7is (ordship then "as3 in case o& Ca(a%a Ba(1 )#H.T.8o,".supra3. #ealin, "ith a case arisin, out o& admission o& the ,uilt

in para 4!: and < the &ollo"in, o)servations "ere made=

F 4. 0nce the de&ence o& the employee that his statement made on ay $@!

1A


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tRNG 25 wp.2296.02FA. %he record o& the en?uiry discloses that the "or*men "ere permitted to )ede&ended )y an /dvocate. /&ter the en?uiry had commenced upon the issuance

o& a char,e sheet! the evidence o& the mana,ements' "itness! the ana,in,

#irector o& the petitioner! "as recorded on 11 th9une! 1AA@. 0n $:th 5e)ruary!1AA1 proceedin,s too* place in the course o& the en?uiry. %he En?uiry 0&&icer

noted that the "or*men had su)mitted a representation acceptin, the alle,ationo& misconduct contained in the char,e sheet dated < th /u,ust! 1A


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tRNG 26 wp.2296.02$. 7avin, considered the a&oresaid settled position in la" that once anemployee has admitted to the char,es and that there is no co,ent material to

sho" that the admission o& the char,es "as recorded under duress or &orce

or pressure and that the admission "as unconditional and in une?uivocal

terms! no &ault can )e &ound in the In?uiry 0&&icer closin, the in?uiry

proceedin,s. In the present case the disciplinary authority on the )asis o&

the in?uiry report "hich recorded the admission o& the 1st respondent held

that the char,es have )een proved. In our vie"! there "as nothin, unla"&ul

on the part o& the disciplinary authority proceedin, on such admission

made )y the 1strespondent to pass the order o& dismissal considerin, the

seriousness o& the char,es.

$4. In this )ac*,round! there is merit in the su)missions "hich are

ur,ed on )ehal& o& the petitioner that the Central /dministrative %ri)unal

could not have set aside the order o& dismissal as passed )y the disciplinary

authority. %here is also merit in the su)mission made )y learned counsel

appearin, on )ehal& the petitioner that the 8ud,ment in case o& Ja!"#$

P%a#a! Sa&'(a )# S*a*' of Ma!$+a B$a%a* supra3 "as not applica)le in

the &acts o& the present case on "hich much reliance "as placed )y the

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tRNG 27 wp.2296.02learned counsel appearin, on )ehal& o& the 1 strespondent. In this 8ud,ment!the Supreme Court "as dealin, "ith a case "here a char,e sheet "as

issued to the delin?uent employee on the )asis o& the alle,ed admissions he

had made in the course o& in?uiry directed a,ainst some other ,overnment

servant in connection "ith commission o& certain o&&ences! later on the

delin?uent employee "as removed &rom service on the stren,th o& the

alle,ed admission "ithout holdin, a &ormal in?uiry as re?uired )y the

Service Rules. In these circumstances! it "as held )y the Supreme Court

that the statement made )y the delin?uent employee did not amount to

unam)i,uous or clear admission o& his ,uilt and &ailure to hold a &ormal

in?uiry constituted a serious in&irmity in the order o& dismissal passed

a,ainst him. It is in this contet their (ordships o& the Supreme Court

made the &ollo"in, o)servations in para 11=

F11. It is true that the appellant speci&ically admitted durin, the course or the

previous en?uiry that ille,al li?uor had )een delivered to the contractor! and that

he had ,iven the *ey o& the receiver to Narona. It is on the stren,th o& thoseadmissions that the 7i,h Court too* the vie" that the appellant had su)stantially

admitted his ,uilt and so there "as really no need &or holdin, a &ormal en?uirya,ainst him a&ter the char,e sheet "as supplied to him. In this connection it is

necessary to remem)er that the previous en?uiry "as not directed a,ainst theappellant as such! and he "as certainly not in the position o& an accused in the

said en?uiry. In &act! as "e have already indicated! the result o& the said en?uiry"as that the appellant "as a)solved &rom any complicity in the commission o&

the o&&ence! and the only criticism made a,ainst him "as that he "as slac* in hissupervision! that is "hy he "as trans&erred. In such a case! even i& the appellant

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tRNG 28 wp.2296.02had made some statements "hich amounted to admission it is open to dou)t"hether he could )e removed &rom service on the stren,th o& the said alle,edadmissions "ithout holdin, a &ormal en?uiry as re?uired )y the rules. But apart&rom this consideration! i& the statements made )y the appellant do not amountto a clear or unam)i,uous admission o& his ,uilt! &ailure to hold a &ormal en?uiry

"ould certainly constitute a serious in&irmity in the order o& dismissal passeda,ainst him. K......J

$:. It is there&ore! clear that the &acts in the case o& Ja!"#$ P%a#a!

Sa&'(a supra3 "ere ?uite di&&erent in as much as the employee "as

proceeded "ithout a departmental in?uiry and hence the ratio in the said

8ud,ment "ould not )e applica)le in the &acts o& the present case.

$


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tRNG 29 wp.2296.02contrary to the a&oresaid le,al position and hence cannot )e sustained.+@. In the result! >rit Petition is allo"ed. %he 8ud,ment and order

dated

voluntary confession of charges by worker can close down investigation

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