Discharge is termination of service - without the punitive consequences of loss of past services, affecting future employment and debarring retiral benefits; SC.

Supreme Court of India

Justice Navin Sinha & Justice Ashok Bhushan

The SC on March 17, 2020 {BHARAT PETROLEUM CORPORATION  LIMITED AND OTHERS v. ANIL PADEGAONKAR} had held that the   DGM   was  fully   competent   under   the manual to both suspend and issue charge­sheet to the employee as he was 'discharged' and not 'dismissed'. It was held that 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. It was held that there is no dispute in the present case that consequent to the impugned order of ‘discharge’, the employee has been paid his dues.

It was held that the   employee   was   posted   at   the   Air   Force   Station Gwalior. It was held that there can be no two opinions that the nature of his duties   had   an   inherent   seriousness. It was also held that  two   charge­sheets   were issued to him and departmental proceedings were conducted. The employee was given full opportunity of defence. It was held that a finding of guilt was arrived at by the enquiry officer with regard to both the charges. It was held that the   employee   in   his   departmental   appeal   raised   no issues of procedural irregularity with consequent prejudice. It was held that a common order of punishment of ‘discharge’ from service dated 21.05.1997 followed under Part III B (2)(e) of the Rules. It was held that no order of ‘dismissal’ was passed under Part III­B (2)(f) of the Rules. It was held that 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.

It was held that 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 chargesheet 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.

It was further held that 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. It was held that 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.  It was held that 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.

It was held that nonetheless, since a fundamental issue of jurisdiction has been raised, the SC examined the issue. It was held that the High Court  itself   reasoned   that   had   the   penalty   been   other   than dismissal, the Functional Manager would have been competent to issue the charge­sheet. It was held that the High Court having posed unto itself the wrong question of dismissal from service, naturally arrived at an erroneous conclusion – as the employee was ‘discharged’ and was not ‘dismissed’. The   DGM   was   therefore held  fully   competent   under   the manual also to both suspend and issue charge­sheet.

It was held 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 was therefore held to be unsustainable and was set   aside. It was held that the   direction   for   reinstatement   and   grant   of   back wages including any proportionality of punishment under the second   charge   therefore   becomes   academic   and   needs   no consideration. In present case as both the parties filed appeal before the SC, accordingly, in view of the above, the   appeal   preferred   by   the   appellant­ - Corporation   was allowed   and   that   preferred   by   the   respondent-­employee   was dismissed by the SC.

In the present case, the Corporation was aggrieved to the extent the impugned order set aside the order of punishment on the ground that the charge­sheet had not been issued by the disciplinary authority. The   employee   was   aggrieved   by   the   grant   of   liberty   to the Corporation   for issuance of fresh   charge­sheet, and denial of back wages while granting reinstatement. In view of above, the appeal of the employee was dismissed by the SC.