(Order of the Court was delivered by D.MURUGESAN, J.) The petitioner was appointed to the Central Industrial Security Force during the year 1990 as a Constable. He was issued with a charge memo dated 9.1.2007 containing the following charges:-
"(1) Gross misconduct and negligence in that No.914440095 Constable C.K.G.Nathan of CISF Unit CPCL Manali was detailed for "A" shift duty from 0500 hrs to 1300 hrs on 12.12.2006 at West Gate-II in checking Rifle failed to take care of his duty area due to which unclaimed amount of Rs.485/- recovered from his area of responsibility by a team while raiding the area at about 1235 hrs on 12.12.06. Hence the charge.
(2) Gross misconduct, in that No.914440095 Constable C.K.G.Nathan of CISF Unit CPCL Manali discarded the rifle issued to him without properly handing over it and intentionally ignored to change the rifle duty as per the instructions at West Gate-II on 12.12.2006. Hence the charge."
By explanation dated 19.1.2007, he disputed the charges. In spite of such denial, the Assistant Commandant, Central Industrial Security Force, the first respondent passed the impugned order dated 9.2.2007 imposing a minor penalty of withholding of one increment for a period of one year which will not have the effect of postponing his future increments of pay. The said order was taken on appeal before the Deputy Commandant, Central Industrial Security Force, the second respondent and the same was rejected on 25.6.2007. The orders of both the disciplinary authority as well as the appellate authority are questioned in this writ petition.
2. We have heard the learned counsel for the petitioner and the learned counsel for the respondents.
3. The only ground of challenge is that inasmuch as the charges are denied, the respondents ought to have conducted enquiry before imposing the penalty. On the other hand, it is the stand of the respondents that in the event the respondents impose a minor penalty, no enquiry is contemplated in terms of Rule 37 of the Central Industrial Security Force Rules, 2001. The punishment of withholding of increment is a minor penalty in terms of Rule 34(ix) of the said Rules. Hence no enquiry is contemplated.
4. We have carefully considered the above submissions. Of course, as per Rule 34(ix) of the Rules, withholding of increment is a minor penalty. Rule 37(1)(b), of course, empowers that in the event the disciplinary authority so desires can order an enquiry. Learned counsel for the respondents would submit that only in the event the disciplinary authority desires depending upon the case warranting an enquiry, such an enquiry could be ordered and not otherwise. In our opinion, the stand taken by the respondents cannot be accepted. When the charges are denied, denial of the same must necessarily be presumed as one of placing the burden of proving the charges on the respondents. Though a right is conferred on the disciplinary authority to order enquiry if he is satisfied on the facts of this case, such a right is not conferred under Rule 37 on the delinquent employee. In such a situation, it is for the Court to import the principles of natural justice for such an enquiry in the event the charges are denied. Enquiry is a bare minimum for a delinquent to expect from the employer before he is inflicted with the penalty, even in case of minor penalty.
5. The principles of natural justice means "fair play in action" and the requirement of natural justice depends upon the facts of each case. In judging the validity of an order when the complaint is admittedly non compliance of the principles of natural justice, the following principles must be kept in mind. In case the rules contemplate either a notice calling for explanation or an enquiry or a personal enquiry, compliance of the same is mandatory. In fact, Rule 36 of the Rules relating to the procedure for imposing major penalties contemplates the above procedure and to this extent there cannot be any dispute.
6. Whether such compliance of the principles of natural justice is also required in case where the rules do not contemplate an enquiry. In our opinion, even in case where the rules do not make a provision for enquiry in cases where minor penalties are imposed, nevertheless, the compliance of the principles of natural justice may be required and the non compliance may vitiate the order. Then again, it depends upon the facts of each case. In the event the charges are very minor and the order imposing minor penalty merely refers to the charge without adversely imputing anything about the delinquent employee, the failure to conduct an enquiry will not vitiate the order. However, the same cannot be the general rule. In case if the charges are serious in nature and nevertheless the employer proceeds to follow Rule 37 and the order of punishment contains certain adverse imputation, remarks or even comments on the delinquent employee which may be considered as a stigma or which may likely to affect his reputation in the eye of public, certainly the failure to conduct enquiry by giving an opportunity to such delinquent employee would vitiate the order for non compliance of the principles of natural justice. This principle also applies to the case where charges are minor, nevertheless some imputations/observations are made against the delinquent. The test to decide whether an enquiry is required or not is not the mere fact of minor penalty is imposed, but the nature of charges, the nature of observations or findings of the disciplinary authority while passing final orders of penalty. While deciding the question as to whether the failure on the part of the employer to hold an enquiry in the absence of rules would by itself vitiate the order, the Court must keep the above principles in mind.
7. When the petitioner specifically refutes the charges framed against him, it is but proper for the disciplinary authority to indicate the reasons in writing as to why the enquiry is dispensed with on the facts of the given case. This is more so because the authority is duty bound to consider the imputation of the misconduct or misbehaviour committed by the delinquent officer, the explanation offered by him and the relevant records to satisfy himself as to whether an enquiry is necessary or not in terms of Rule 37(1)(b) of the Rules. On the facts of this case, the explanation of refutal of the charges was not accepted and findings were rendered in the impugned orders holding that the charges were proved without assigning any reason. In our considered view, such a procedural lapse would defeat the valuable right of a delinquent employee to establish his case as to the imputation. In fact the question of affording opportunity even for imposition of minor penalty came up for consideration before this Court in W.P.No.34587 of 2005 dated 1.4.2009 and this Court, following the judgment of the Supreme Court in O.K.Bhardwaj v. Union of India and others, 2002 SCC (L&S) 188, held that such an enquiry is mandatory, where the charges are refuted by the delinquent, and remitted the matter to the authorities for conduct of enquiry.
8. In view of the above, the orders questioned in the writ petition are quashed to enable the respondents to conduct enquiry and the matter is remitted back to the respondents to proceed from the stage where the defect had crept in by conduct of enquiry, after considering the explanation of the petitioner, and pass orders in the light of the observations made in this order. Such an exercise shall be completed within a period of two months from the date of receipt of a copy of this order or on production of the same by the petitioner. The writ petition is disposed of accordingly. No costs.
ss To
1. The Assistant Commandant Central Industrial Security Force CISF Unit, CPCL, Manali Chennai 600 068
2. The Deputy Commandant Central Industrial Security Force CISF Unit, CPCL, Manali Chennai 600 068