17 March 2020
Supreme Court


Case number: C.A. No.-009778-009778 / 2010
Diary number: 26936 / 2008




CIVIL APPEAL NO(s). 9778 OF 2010




CIVIL APPEAL NO(s). 9779 OF 2010






The two appeals have been preferred by the appellant­

Corporation and the respondent­employee respectively, to the

extent that  they are aggrieved by the common order  in a writ

appeal preferred by the Corporation. They have thus been heard

together and are being disposed by a common order.



2. The Corporation  is  aggrieved  to the  extent the impugned

order sets aside the order of punishment on the ground that the

charge­sheet had not been issued by the disciplinary authority.

The employee is aggrieved by the grant of liberty to the

Corporation for issuance of fresh charge­sheet, and  denial of

back wages while granting reinstatement. In the interregnum, the

employee  has attained the  age of  superannuation  in February


3. A charge­sheet was issued to the employee on 31.12.1993

by the Deputy General Manager (Aviation) (hereinafter referred to

as “the  DGM”)  while  he  was  working on the  post of  Aviation

Officer at the General Aviation Service Station, Gwalior, in the

management cadre in Job Group “A”.   It was alleged that fresh

sand particles had been found in the all 10 fuel tanks after his

duty  hours in the ‘C’ shift ended  while the earlier inspection

during the ‘B’ shift had found it to be free of dirt and water except

for minor traces of water in tank nos. 3 and 9.   While the

departmental proceedings were pending, a fresh charge­sheet



was issued to the employee on 27.09.1994 with regard to absence

from duty on 13.08.1994.   The employee was therefore charged

with having acted in a manner prejudicial to the interests of the

Corporation and negligence in the performance of duty including

malingering or slowing down of work under Clause 6 & 10 of Part

III­A of the  Bharat  Petroleum Limited Conduct,  Discipline  and

Appeal Rules for Management Staff, 1976 (hereinafter referred to

as ‘the Rules’). Pursuant to a domestic inquiry, the inquiry officer

returned  a finding of guilt on  06.01.1995.  The employee  was

furnished  a copy of the report and  after consideration  of  his

reply, the Director (Marketing) under Part III­B (2)(f) of the Rules

by a common order dated 21.05.1997 ‘discharged’ the employee

from service. The departmental appeal under the Rules was

rejected by a reasoned order by the Chairman on 05.10.1998.  

4. The  employee  assailed the  orders in  a  writ  petition.  The

learned Single Judge, with regard to the first charge­sheet, held

that the punishment of ‘dismissal’ stood vitiated because the

Functional  Director  alone  was  competent to issue the  charge­

sheet. The second charge­sheet though issued by the disciplinary



authority, required reconsideration as the punishment was held

disproportionate to the charge, necessitating an order of remand.

The Corporation was granted liberty in appeal to issue a fresh

charge­sheet with regard to the first charge and to pass a lesser

order of punishment with regard to the second charge. Though

reinstatement was ordered, the question of back wages was left

for consideration subject to the outcome of such fresh


5. Shri. J.P. Cama, learned senior counsel appearing on behalf

of the Corporation, submitted that the employee was not

‘dismissed’ but ‘discharged’ from  service. The  DGM being the

functional  General  Manager  and Head of the  Department, the

highest officer on the spot, was fully competent under the

manual for  delegation  of authority  dated  15.12.1987 to issue

charge­sheet for a punishment lesser than dismissal under serial

1(a) of  Schedule I  under Part  III  of  the Rules. The manual  for

delegation of authority had never been withdrawn or superseded

even after amendment of Rule 3(g) on 22.08.1991 with regard to

the definition of Disciplinary Authority in the Rule.   The



misconduct  on the  part of employee, considering  his  place  of

posting at an air force station was serious in nature.  There was

no infirmity in the conduct of the departmental proceedings. The

employee had since reached the age of superannuation in

February, 2018. Continuance of the proceedings under the Rules

was an impossibility in absence of any provisions for the same.  

6.  The employee did not take any objection in his reply to the

charge­sheet or in the memo of appeal that the DGM was not

competent to issue the same. Relying on  H.V. Nirmala vs.

Karnataka State Financial Corporation, (2008) 7 SCC 639, it

was submitted that the objection with regard to the lack of

jurisdiction ought to have been raised at the very first instance.

The employee took this objection for the first time before the High

Court in the writ petition.  In any event the employee has failed to

demonstrate any prejudice to him thereby, assuming though not

admitting any lapse.   Reliance was also placed on  S.R. Tewari

vs. Union of India and Another, (2013) 6 SCC 602, that there

could be no standardised yardstick with regard to proportionality

of punishment which would depend on the facts of each case.



7. Shri Puneet Jain, learned counsel for the employee,

submitted that dismissal was a major punishment under Part III­

B (2)(f) of the Rules. The Corporation themselves opined that the

charges were very serious.  The procedure followed was that for a

major penalty. The mere use of the word ‘discharge’ in the order

of  punishment therefore  could not  be determinative.  The High

Court has committed no error in holding that the employee had

been dismissed from service pursuant to a charge­sheet issued

without jurisdiction. The view taken by the High Court that after

amendment of the term disciplinary authority in Rule 3(g) by the

Board of Directors on 22.08.1991, the manual for delegation of

authorities dated 15.12.1987 had lost its relevance, does not call

for any interference. The Functional Director alone was

competent to  issue charge­sheet for  dismissal  under Sr.1(b)  of

Schedule I under Part III of the Rules. The charge­sheet issued by

the  DGM has  rightly  been  held to  be  without  authority, thus

vitiating the punishment. The Rules make a distinction between

the disciplinary authority in Rule 3(g) and competent authority in

Rule 3(h). Competent authority cannot be equated with



disciplinary authority.  Reliance was placed on  Union of India

vs. B.V. Gopinath,  (2014) 1 SCC 351, to submit that a charge­

sheet not issued according to law rendered the entire proceedings

non­est.   The High Court, in the facts of the case ought not to

have given liberty to issue fresh charge­sheet or deny back wages

while directing reinstatement.

8. The entire proceedings having been vitiated back wages

ought to have been granted while directing reinstatement relying

on  Chairmen­cum­Managing Director, Coal India Limited

and Others vs. Ananta Saha and Others,  (2011) 5 SCC 142.

With regard to the second charge­sheet, it was submitted that the

punishment of dismissal for absence from place of duty one hour

before duty hours got over was grossly disproportionate relying

on  Dev Singh vs. Punjab Tourism Development Corporation

Limited and Another, (2003) 8 SCC 9.

9. We have considered the submissions on behalf of the

parties.   The employee was posted at the Air Force Station



Gwalior.  There can be no two opinions that the nature of  his

duties had an inherent seriousness. Two charge­sheets were

issued to  him  and  departmental proceedings  were conducted.

The employee was given full opportunity of defence.  A finding of

guilt was arrived at by the enquiry officer with regard to both the

charges. The employee in his departmental appeal raised no

issues of procedural irregularity  with consequent  prejudice.  A

common order of  punishment of  ‘discharge’ from service dated

21.05.1997 followed under Part III B (2)(e) of the Rules.  No order

of ‘dismissal’ was passed under Part III­B (2)(f) of the Rules.   If

the Corporation was of the opinion that ‘dismissal’ was the

appropriate punishment in the facts of the case nothing

prevented it from stating so. The High Court fell in a serious error

by opining that the employee had been ‘dismissed’ from service

and on that premise arrived at the conclusion that the charge­

sheet was incompetent in absence of it having been issued by the

Functional Director who was the disciplinary authority under Sr.

1 (b) of Schedule I under Part III of the Rules for dismissal.  



10.   Part­III B (2) of the Rules provides for major penalties which

includes  inter  alia  removal from service  which  shall  not  be  a

disqualification for future employment and dismissal from service

which shall ordinarily be a disqualification from future

employment. The Rules therefore themselves recognise them as

different  punishments  with  varying  severity.  Though the  word

‘discharge’ does not find reference under the Rules, nonetheless

in service jurisprudence, removal and/or discharge are

synonymous leading to a termination or end of service but

without the punitive consequences of dismissal entailing loss of

past services, affecting future employment and debarring retiral

benefits. There is no dispute that consequent to the impugned

order of ‘discharge’, the employee has been paid his dues.

11. The employee either  in his reply to the charges or  in the

departmental appeal rightly raised no issues with regard to lack

of competence in the DGM to issue the charge­sheet. Sr. 1 (a) of

Schedule I, to be read with Part III of the Rules, provides that

with regard to Job Group ‘A’ the Functional General Manager was

the disciplinary authority  for  all  other penalties except  that of



dismissal.  The Functional Director was the disciplinary authority

for punishment of dismissal only. The employee for the first time

raised the issue in the writ petition that the charge­sheet had

been issued by other than the disciplinary authority. If the

employee had raised the issue either in his reply to the memo of

charges or in appeal perhaps the Corporation could have

addressed the  issue better.  Nonetheless,  since a  fundamental

issue of jurisdiction has been raised, we shall proceed to examine

the issue.  

12. Rule 3(e) defines a Functional Manager as the Manager in­

charge of a function.  Rule 3(g) defines Disciplinary Authority as

specified in Schedule I competent to impose penalties under the

Rules.  Competent Authority  has been defined  in Rule  3(h) to

mean any authority empowered by the Board of Directors or the

Chairman by any general or special rule or order to discharge the

function or use the powers specified in the rule or order. Under

Schedule I, the Functional General Manager was the disciplinary

authority for punishment lesser than dismissal and the

Functional director was the disciplinary authority for punishment



of  dismissal.  We are of the considered opinion that the  term

Competent Authority will include a disciplinary authority so

authorised in the manner prescribed in 3(h) under the delegation

of authority manual dated 15.12.1987.  Under Part III­F(1) of the

Rules dealing with procedure for imposing major penalties, the

disciplinary authority has been described to include an authority

as specified in Schedule I. It includes both a Functional manager

and Functional Director. Part­III­F(23) provides as follows:

“(23) If the Disciplinary Authority or the Competent

Authority having regard to its findings on all or any

of the charges is of the opinion that any of the

penalties specified in Rule “B” should be imposed on

the Management Staff it shall, notwithstanding

anything contained in Rule “G”, make an order

imposing such penalty”


13. The fact that the words ‘Disciplinary Authority or

Competent Authority’ have been used interchangeably in Part III­

F leaves no doubt in our mind that the delegation of authority

manual had never been recalled or superseded. It is the specific

case of the Corporation that the manual for delegation of

authority issued on 15.12.1987 had never been withdrawn and



the Corporation had all  along  in all  other cases also acted on

basis of the same and that  no charge­sheet for  a punishment

lesser than dismissal  had ever  been  issued by the  Functional

Director. The DGM was therefore fully competent under the

manual also to both suspend and issue charge­sheet. The High

Court itself reasoned that had the penalty been other than

dismissal, the Functional Manager would have been competent to

issue the charge­sheet. The High Court having posed unto itself

the wrong question of dismissal from service, naturally arrived at

an erroneous conclusion.  

14. In view of our conclusion that the first charge­sheet had

been  issued by an authority  competent  to do so, the order  of

discharge calls for no interference. The direction for issuance of

fresh charge­sheet is therefore held to be unsustainable and is

set aside. The direction for reinstatement and grant of back

wages including any  proportionality of punishment  under the

second charge therefore becomes academic and needs no




15. The appeal preferred by the appellant­Corporation is

allowed and that preferred by the respondent­employee is

dismissed.  There shall be no order as to costs.   

…………...................J. [ASHOK BHUSHAN]

…………...................J. [NAVIN SINHA]