Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     2333     OF     2007   

The Secretary, Min.of Defence & Ors.                    …Appellants   

VERSUS

Prabhash Chandra Mirdha                                       …Respondent  

O     R     D     E     R   

1. This appeal has been preferred against the impugned  

judgment and orders dated 26.2.2004 and 13.8.2004 passed by the  

High Court of Judicature at Hyderabad in Writ Petition No. 14674 of  

1997, and in Review W.P.M.P. No. 18654 of 2004. The issue  

involved in this case is as to whether the authority, lower or higher  

than of the appointing authority, can initiate the proceedings against  

the delinquent on grounds of alleged misconduct.  

2. Facts and circumstances giving rise to this appeal are that:

A. Respondent had been working as an Assistant Foreman in  

the Ordnance Factory, Yeddumailaram, when charge memo dated

Page 2

8.1.1992 was issued to him on the alleged demand of bribe of  

Rs.37,000/- and acceptance of Rs.4,150/- on 3.8.1991 in cash from  

the representative of firm M/s Teela International Limited, Hosur,  

Bangalore.

B. Aggrieved by the said charge memo, respondent preferred  

O.A. No. 1641 of 1995 before the Central Administrative Tribunal,  

Hyderabad (hereinafter called as `Tribunal’) on 23.12.1995 on the  

ground that the charge memo had been issued to the respondent by  

the authority not competent to do so, being subordinate to his  

appointing authority.

C. The said application was allowed vide judgment and order  

dated 4.1.1996 only on the ground that the officer who had issued  

the charge memo was subordinate to the appointing authority of the  

delinquent and thus, had no competence to initiate the disciplinary  

proceedings.  

D. Aggrieved by the said order, a Review Application was filed  

by the appellants which  was dismissed vide order dated 20.3.1997.

E. Aggrieved, the appellants filed the Writ Petition No. 14674  

of 1997 before the High Court which has been dismissed vide  

impugned judgment and order dated 30.6.2004.  Review Application  

filed by the appellants also stood dismissed vide order dated  

13.8.2004.  

2

Page 3

Hence, this appeal.

3. This Court entertained the appeal vide order dated 30.4.2007  

but did not grant any interim relief and in spite of notice to the  

respondent, he did not enter appearance.   

4.         The legal proposition has been laid down by this Court while  

interpreting the provisions of Article 311 of the Constitution of  

India, 1950 that the removal and dismissal of a delinquent on  

misconduct must be by the authority not below the appointing  

authority.  However, it does not mean that disciplinary proceedings  

may not be initiated against the delinquent by the authority lower  

than the appointing authority.  

5.        It is permissible for an  authority, higher than appointing  

authority to initiate the proceedings and impose punishment, in case  

he is not the appellate authority so that the delinquent may not loose  

the right of appeal. In other case, delinquent has to prove as what  

prejudice has been caused to him. (Vide: Sampuran Singh v. State  

of Punjab,  AIR 1982 SC 1407; Surjit Ghosh v. Chairman and  

Managing Director, United Commercial Bank & Ors., AIR 1995  

SC 1053; Balbir Chand v. FCI Ltd. & Ors., AIR 1997 SC 2229;    

3

Page 4

and  A.  Sudhakar  v.  Postmaster-General  Hyderabad  &  Anr.,  

(2006) 4 SCC 348).

6. In  Inspector General of Police & Anr. v. Thavasiappan,  

AIR 1996 SC 1318, this Court reconsidered its earlier judgments on  

the issue and came to the conclusion that there is nothing in law  

which inhibits the authority subordinate to the appointing authority  

to initiate disciplinary proceedings or issue charge memo and it is  

certainly not necessary that charges should be framed by the  

authority competent to award the punishment or that the inquiry  

should be conducted by such an authority.  

7. In Steel Authority of India & Anr. v. Dr. R.K.  

Diwakar & Ors., AIR 1998 SC 2210; and  State of U.P. & Anr. v.  

Chandrapal Singh & Anr.,  AIR 2003 SC 4119, a similar view has  

been reiterated.  

8. In  Transport Commissioner, Madras – 5   v. A. Radha  

Krishna Moorthy, (1995) 1 SCC 332, this Court held:  

“Insofar as initiation of enquiry by an officer  subordinate to the appointing authority is  concerned, it is well settled now that it is  unobjectionable. The initiation can be by an  officer subordinate to the appointing authority.  Only the dismissal/removal shall not be by an  authority subordinate to the appointing authority.  Accordingly it is held that this was not a  

4

Page 5

permissible ground for quashing the charges by  the Tribunal.”

(See also: Director General, ESI & Anr. v. T. Abdul Razak etc.,  

AIR 1996 SC 2292; and Chairman-cum-Managing Director, Coal  

India Limited & Ors. v. Ananta Saha & Ors., (2011) 5 SCC 142).  

9. Law does not permit quashing of chargesheet in a routine  

manner. In case the delinquent employee has any grievance in  

respect of the chargesheet he must raise the issue by filing a  

representation and wait for the decision of the disciplinary authority  

thereon.  In case the chargesheet is challenged before a court/tribunal  

on the ground of delay in initiation of disciplinary proceedings or  

delay in concluding the proceedings, the court/tribunal may quash  

the chargesheet after considering the gravity of the charge and all  

relevant factors involved in the case weighing all the facts both for  

and against the delinquent employee and must reach the conclusion  

which is just and proper in the circumstance. (Vide: The State of  

Madhya Pradesh v. Bani Singh & Anr., AIR 1990 SC 1308; State  

of Punjab & Ors. v. Chaman Lal Goyal, (1995) 2 SCC 570;  

Deputy Registrar, Cooperative Societies, Faizabad v. Sachindra  

Nath Pandey & Ors., (1995) 3 SCC 134; Union of India & Anr. v.  

Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to  

5

Page 6

Government, Prohibition & Excise Department v. L. Srinivasan,  

(1996) 3 SCC 157;  State of Andhra Pradesh v.  N. Radhakishan,  

AIR 1998 SC 1833; Food Corporation of India & Anr. v. V.P.  

Bhatia, (1998) 9 SCC 131;  Additional Supdt. of Police v. T.  

Natarajan, 1999 SCC (L&S) 646; M.V. Bijlani v. Union of India  

& Ors., AIR 2006 SC 3475;   P.D. Agrawal v.  State Bank of India  

& Ors., AIR 2006 SC 2064; and Government of A.P. & Ors. v. V.  

Appala Swamy, (2007) 14 SCC 49).  

10. In Secretary, Forest Department & Ors. v. Abdur Rasul  

Chowdhury, (2009) 7 SCC 305, this Court dealt with the issue and  

observed that delay in concluding the domestic enquiry  is not  

always fatal. It depends upon the facts and circumstances of each  

case. The unexplained protracted delay on the part of the employer  

may be one of the circumstances in not permitting the employer to  

continue with the disciplinary proceedings.  At the same time, if the  

delay is explained satisfactorily then the proceedings should not be  

permitted to continue.   

11. Ordinarily  a  writ  application  does  not  lie  against  a  

chargesheet or show cause notice for the reason that it does not give  

rise to any cause of action. It does not amount to an adverse order  

which affects the right of any party unless the same has been issued  

by a person having no jurisdiction/competence to do so. A writ lies  

6

Page 7

when some right of a party is infringed. In fact, chargesheet does not  

infringe the right of a party.  It is only when a final order imposing  

the punishment or otherwise adversely affecting a party is passed, it  

may have a grievance and cause of action. Thus, a chargesheet or  

show cause notice in disciplinary proceedings should not ordinarily  

be quashed by the Court. (Vide :  State of U.P. v.  Brahm Datt  

Sharma,  AIR  1987  SC  943; Executive  Engineer,  Bihar  State  

Housing Board v.  Ramesh Kumar Singh & Ors., (1996) 1 SCC  

327; Ulagappa & Ors.  v.  Div.  Commr.,  Mysore  & Ors.,  AIR  

2000 SC 3603 (2);   Special Director & Anr. v. Mohd. Ghulam  

Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. v.  

Kunisetty Satyanarayana, AIR 2007 SC 906).

12. In  State of Orissa & Anr. v. Sangram Keshari Misra &  

Anr.,  (2010)  13  SCC  311,   this  Court  held  that  normally  a  

chargesheet is not quashed prior to the conclusion of the enquiry on  

the ground that the facts stated in the charge are erroneous for the  

reason that correctness or truth of the charge is the function of the  

disciplinary authority.

(See also: Union of India & Ors. v. Upendra Singh, (1994) 3 SCC  

357).  

7

Page 8

13. Thus, the law on the issue can be summarised to the effect  

that chargesheet cannot generally be a subject matter of challenge as  

it does not adversely affect the rights of the delinquent unless it is  

established that the same has been issued by an authority not  

competent to initiate the disciplinary proceedings. Neither the  

disciplinary proceedings nor the chargesheet be quashed at an initial  

stage as it would be a premature stage to deal with the issues.  

Proceedings are not liable to be quashed on the grounds that  

proceedings had been initiated at a belated stage or could not be  

concluded in a reasonable period unless the delay creates prejudice  

to the delinquent employee. Gravity of alleged misconduct is a  

relevant factor to be taken into consideration while quashing the  

proceedings.  

14. The instant case requires to be examined in the light of the  

aforesaid settled legal propositions.  The respondent delinquent  

challenged the chargesheet on the ground that it had been issued by  

the authority not competent to do so.  The Tribunal vide impugned  

order dated 4.1.1996 quashed the same only on the ground that the  

Deputy Director General of Ordnance Factory was the appointing  

authority of the delinquent employee and competent to impose the  

penalty referred to under the statutory rules. The chargesheet had  

8

Page 9

been issued by the authority subordinate to  him. Thus, the same was  

not  issued by the competent authority.   

15. The said judgment and order of the Tribunal shows  that the  

present appellants were not represented nor any argument had been  

advanced on their behalf as neither name of the counsel for the  

appellants has been mentioned rather the space is left blank, nor any  

reference to his argument had been made. The appellants filed a  

review petition according to which the order had been passed by the  

Tribunal without giving an opportunity to the appellants to file a  

detailed counter affidavit and a plea had been taken that the authority  

which issued the chargesheet had been authorised by the disciplinary  

authority to serve the charge memo and conduct/conclude the  

enquiry in the name and under the order of the competent authority.  

However, the said authority was authorised to impose the  

punishment.   

The review has been rejected by a cryptic order.  The High  

Court concurred with the findings recorded by the Tribunal.  

16. Even before us, no order of authorisation in general or any  

rule permitting  the competent authority to delegate its power for  

conducting the enquiry  has been produced. Thus, in such a fact-

situation, it is neither desirable nor possible  to deal with the issue,  

rather it is desirable that the issue  be left open.  

9

Page 10

Be that as it may, in case the Tribunal as well as the High  

Court has permitted the appellants to proceed de novo, we fail to  

understand why such a course was not adopted though the appellants  

wasted 20 years in  litigation without any purpose.  

 17.        However, in the instant case, the Tribunal has quashed the  

chargesheet vide order dated 20th March, 1997 in respect of  

misconduct alleged to have taken place on 31.8.1991. Though the  

allegations against the delinquent had been very serious i.e. demand  

and acceptance of bribe, a period of two decades has passed since  

the alleged incident. Disciplinary proceedings could not be  

proceeded further as the chargesheet itself had been quashed. There  

is nothing on record to show that the respondent delinquent is still in  

service and that even if the appellants are permitted to proceed  with  

the inquiry, the evidence which was available 21 years ago would be  

available today.  

18.          In view of the above, while leaving the question of law  

open, we do not want to proceed with the appeal further on merit.  

           The appeal is accordingly disposed of.  No order as to costs.  

                                                                                                                                   ………………………..J.                                                                          (DR. B.S. CHAUHAN)

10

Page 11

                                                                         ………………………..J.                                                                            (DIPAK MISRA) NEW DELHI; MAY 29, 2012

11