Can ‘obedience’ to superior justify an illegal act? Bombay High Court says no, upholds engineer’s compulsory retirement

‘Employer’s action, judicial interference’

• A departmental enquiry is not a criminal trial but an internal fact-finding exercise undertaken by the employer to examine whether the conduct of an employee amounts to misconduct under the service rules.
• The findings of fact recorded in a properly conducted departmental enquiry are not to be taken lightly.
• Judicial interference is the exception and not the rule in these matters.
• “Fairness” in procedure is the foundation of any disciplinary action.
• The allegation of demand and acceptance of money strikes at the integrity of public administration and requires scrutiny.
• The standard of proof in a departmental enquiry is not that of a criminal trial, and the test is preponderance of probability.

• If the procedure itself is flawed, the findings cannot stand, and similarly, every irregularity does not automatically invalidate the enquiry.
• The enquiry officer is the primary authority to appreciate the evidence placed on record in these matters, and the court does not sit as a court of appeal over such findings.
• Natural justice requires notice, opportunity and fair consideration. It does not require perfection.
• When misconduct involves elements touching upon corruption and procedural manipulation, the employer is justified in taking a serious view.
• Compulsory retirement is one of the major penalties provided under the service rules.
• It does not carry stigma in the same manner as dismissal or removal since it allows the employee to retain certain service benefits while bringing the employment to an end in public interest.

Suspension, bribery, compulsory retirement

• Shashank Balkrishna Bangale was appointed as a Junior Engineer in 1995 and was confirmed in service after successful completion of the prescribed probationary period.
• During the course of his employment, certain complaints were received against him alleging serious misconduct.
• Considering the nature and gravity of the allegations, he was placed under suspension on August 31, 2002.
• Subsequently, by order dated September 26, 2002, a fact-finding committee was constituted to examine the complaints against him.
• The committee conducted its inquiry and noted that he had furnished blank tender forms to contractors who were not duly registered with the competent authorities.
• It was also alleged that he had improperly opened tender envelopes in violation of the prescribed procedure.
• It was also claimed that he took a bribe of Rs 12,000 for the approval of a tender.
• After investigation and affording opportunities to the man, the competent disciplinary authority imposed the penalty of compulsory retirement with effect from July 20, 2005, by an order passed in April 2005.
• Aggrieved by this decision, the man filed an appeal before the University and College Tribunal at Pune.
• The tribunal, by its July 2006 order, allowed the appeal, setting aside the order of compulsory retirement and directing reinstatement of the man with full back wages.
• The university challenged this order of the tribunal in the present case.

‘Tribunal erred in its order’

• Appearing for the university, Senior Advocate Ram S Apte argued that the previous order passed by the university tribunal is contrary to the settled principles governing disciplinary proceedings and is unsustainable in law.
• It was contended that the tribunal exceeded its jurisdiction in reappreciating the sufficiency of evidence placed on record in the departmental enquiry.
• Apte pointed out that once the enquiry officer has reported its findings where charges are proved, the scope of judicial scrutiny is limited, and the only question that may arise is whether the punishment imposed is grossly disproportionate.
• He also stated that the tribunal failed to apply the well-settled principle that a subordinate employee is not obliged to carry out manifestly illegal instructions of a superior.

• He highlighted that the tribunal wrongly attributed to a superior, the sole responsibility of the issuance of blank tender forms to ineligible contractors.
• Even if the subordinate did not have final authority, his participation in issuing blank tender forms to ineligible contractors and opening their financial bids was itself contrary to the rules.
• Misconduct does not depend upon final approval authority but upon participation in acts in breach of established procedure.
• The tribunal was at fault in holding that the issuance of tender forms and the opening of tender documents did not form part of his duties.

‘Violation of natural justice’

• On the contrary, the man’s counsel, advocate Sanjay Kshirsagar, submitted that the disciplinary authority must record specific findings on each charge.
• He pointed out that the enquiry officer failed to properly evaluate the evidence and recorded findings of guilt without adequate analysis of the material placed on record.
• Kshirsagar also stated that his client had acted strictly in accordance with the directions of his superior officers and had no independent discretion in the issuance of tender forms or opening of tenders.
• He insisted that his client had filed a detailed written statement, but the disciplinary authority failed to consider his explanation and defence evidence in proper perspective.
• It was argued that the enquiry proceedings were conducted in violation of principles of natural justice.
• It was further submitted that no financial loss or prejudice was caused to the university in relation to the tenders, and therefore, the penalty of compulsory retirement was excessive and unsustainable.
• He mentioned that his client had no authority to decide eligibility or issuance of forms, and he lacked independent decision-making power.
• Owing to the same, Kshirsagar argued that there is no violation of any relevant rules that can be attributed to him.

Court’s analysis

• The material placed on record suggests that the engineer was provided a reasonable opportunity to defend himself or to challenge the evidence.
• There is no convincing demonstration of procedural unfairness which has resulted in a miscarriage of justice.
• The plea of violation of principles of natural justice cannot be accepted in the present case.
• In service law, obedience to superior orders is not an absolute defence, especially when the act is directly contrary to prescribed rules.
• If a rule requires verification of eligibility before issuance of a tender form, a subordinate officer cannot simply say that he acted under instructions and escape responsibility.
• Orders from a superior do not dilute statutory compliance.

• If the procedure mandates that financial envelopes shall not be opened unless eligibility is established, opening them contrary to that mandate remains a violation, regardless of who else stood in the room.
• In service matters, once misconduct is proved in a fair enquiry, it is primarily for the disciplinary authority to decide what penalty is appropriate.
• The authority is expected to consider the gravity of the charge, the position held by the employee, the impact of the misconduct on the institution, and the overall circumstances.
• Grant of full back wages assumes that the removal was unjustified and that the employee suffered loss solely because of wrongful action by the employer.
• A junior engineer entrusted with technical and procedural responsibilities is expected to maintain strict adherence to rules.
• The tribunal’s order of July 2006 is set aside, and the order of compulsory retirement is reinstated with no back wages.