Raksh Pal Rana vs Union Of India And Anr on 28 December, 2012

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Jammu & Kashmir High Court

Raksh Pal Rana vs Union Of India And Anr on 28 December, 2012

1. A short question of law raised in this appeal is whether the absence of use of expression provisional in the dissenting note prepared by the appointing authority for communicating the same with the inquiry report to the Charged Officer would vitiate the order inflicting the punishment of reducing the pay of the delinquent to the lowest scale in the time scale of Rs. 10000- 325-15200 for a period of three years etc. The question has been raised in the instant appeal under Clause 12 of the Letters Patent which is preferred by the Charged Officer, Deputy Commandant in the Central Reserve Police Force. The appeal is directed against the judgment and order dated 2 09.04.2008 rendered by learned Single Judge of this Court, holding that the rules have been religiously complied with.

2. Brief survey of facts would be necessary before we embark upon to answer the pristine question posed in the preceding para. The charged-Officer Shri Raksh Pal Rana was posted as Deputy Commandant, Central Reserve Police Force (CRPF) and was functioning as QM/MTO/Adjutant, 61 Bn CRPF Mantripokhri, Imphal. Two trucks bearing No. DIL-1704 and DL-IC-6598 of 16 Bn CRPF were intercepted by Customs and Central Excise authorities near Patna on the intervening night of 11/12 August, 1995, which were allegedly carrying contraband Ganja. One Shri B. S. Yambem, Commandant 61 Bn, when learnt about the seizure on 13.08.1995, he allegedly issued an ante-dated office order No. o.III-I/95-Ops-61 dated 07.08.1995 indicating that Shri Ram Singh Assistant Commandant would proceed to Dimapur area on 08.08.1995 for special operation duty in one light vehicle and two 1 Ton/ 3/5 Ton along with escort to be selected by him. A copy of the said ante-dated office order was allegedly delivered to the charged officer Shri R. P. Rana on 13.08.1995 but he also ante-dated his acknowledgement for having received it on 07.08.1995. Shri R. P. Rana, Dy. Commandant, with a view to fabricate evidence for dispatch of vehicle for special operational duties 3 as mentioned in the aforesaid ante-dated office order of the Commandant, called SI/MM B. L.Roy and ordered him to prepare an ante-dated report to the effect that he had inspected all the three vehicles Nos. DIL-4107, DL-IC-6598 and Gypsy No. DDD-5220, on 8.8.1998 before dispatch for special operations.

3. In the Court of Inquiry conducted by the then Additional Director General (HQR) during February, 1996 in connection with seizure of contraband Ganja, a prima facie case of misconduct was found to be made out on the part of many officers including R. P. Rana, Deputy Commandant. Thus a Regular Departmental Inquiry was ordered to be conducted against him on the following charges:-

Article-1:

That the said Shri R. P. Rana, Deputy Commandant while posted and functioning as QM/MTO/Adjutant of 61 Bn CRPF. Mantripokhri, Imphal during August,1995, committed a serious misconduct in that when a copy of office order No. D.III.!/95-Ops-61 dated 7.8.95 regarding detailment and dispatch of Shri Ram Singh Assistant Commandant and party for special operations in Dimapur area was handed over to him on 13.8.95, he deliberately ante-dated its acknowledgement for having received the same on 7.8.95. Thus the said Shri R. P. Rana, Dey.

Commandant failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Govt. servant and thereby violated the provisions of Rule 3(1) (II) and (II) of CCS (Conduct) Rules, 1964. Article-II:

That the said Shri R. P. Rana, Deputy Commandant while posted and functioning in the aforesaid capacity during the aforesaid period committed a serious misconduct in that when he received the ante- dated 4 office order No. D.III.I/95-Ops-61 dated 7.8.95 on 13.8.95 as mentioned in Article-I of Charge above, he ordered his subordinates, MM/SI B. L. Roy to prepare ante-dated inspection reports of the three vehicles which were used by Shri Ram Singh Asstt.

Commandant and party for carrying contraband ganja to Didarganj. Thus, the said Shri R. P. Rana Dy. Commandant failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Govt. servant and thereby violated the provisions contained in Rule 3(I) (ii) (iii) of CCS (Conduct) Rules, 1964.

4. It is pertinent to notice that the procedure prescribed for conducting the Departmental Inquiry in the present case is the one prescribed by Central Civil Services (Classification, Control and Appeal) Rules, 1965. In the Departmental Inquiry elaborate proceedings were conducted which led to the conclusion that both the articles of charge were not proved.

5. The enquiry report conducted was sent for advice to Central Vigilance Commission. Accordingly the Central Vigilance Commission tendered their advice vide letter dated 04.02.2003, which was also part of the dissenting note sent to the Charged Officer. Similar charges levelled against others stood proved which include S/Shri L. N. Mishra, DC; A.K. Kelsy, DC; Sanjay Kumar, AD and B. H. Chaudhury, AC. The Ministry of Home Affairs accepted the findings and have recommended suitable major penalty against all of them. The Central Vigilance Commission further advised that the Inquiry Officer has not appreciated the evidence in its proper perspective and the 5 disagreement of the Ministry of Home Affairs with the findings of the Inquiry Officer in respect of Shri Rana appears to be in order because it is based on available evidence on record consistent with the facts and circumstances of the case. The proven charge of misconduct on the part of Shri Rana would warrant a major penalty on him. Accordingly, the Director General, CRPF prepared a dissenting note dated 4.4.2002 and sent the same to the Charged Officer Shri Rana along with the inquiry report.

6. The Charged Officer entered reply and vide letter dated 22.4.2002 put forward his point of view along with a covering letter (Annexure-E). After taking into consideration his representation and the opinion of the Union Public Service Commission dated 4.2.2003, the order of punishment was issued by the President, inflicting the punishment that pay of Shri Rana be reduced to lowest stage in the time scale of pay i.e. to Rs. 10,000/- in the pay scale of Rs. 10,000-325-15,200/- for a period of three years w.e.f. 01.04.2003 with the stipulation that during the period of such reduction he was not to earn increments of pay and on expiry of such period of reduction it would have effect of postponing the future increments of his pay. A copy of the advised tendered by the Union Public 6 Service Commission was also added with the communication sent to the Charged Officer Sh. Rana.

7. The Officer challenged this order by filing SWP No. 839 of 2003 which has been dismissed by the impugned judgment and order dated 9.4.2008 rendered by the learned Single Judge of this Court. According to the opinion expressed by the learned Single Judge, if there is adequate evidence available on record the Disciplinary Authority could always record disagreement giving its detailed reasons. The requirement of law is that the Charged Officer has to be furnished a copy of the disagreement note along with the copy of the Inquiry Report so as to provide him an opportunity to file a representation against the formation of the opinion by the Disciplinary Authority contrary to the one formed by the Inquiry Officer. All these steps have been followed religiously. The learned Single Judge rejected the arguments that the Disciplinary Authority was required to grant an opportunity of hearing before recording a disagreement note. The learned Single Judge also found that if the findings recorded either by the Inquiry Officer or for that matter by the Disciplinary Authority in the dissenting note were perverse and laconic or without support of any evidence on record, then the Courts are within their jurisdiction to interfere in such matters. In that regard the learned Single Judge has placed reliance on the 7 observations made by Honble the Supreme Court in the off quoted judgment titled as State of Orissa v. Bidyabushan Mohapatra, AIR 1963 SCC 449. Commenting upon the case in hand, the learned Single Judge found that the Inquiry Officer did not properly appreciated the evidence and other material available before it in reaching to a conclusion that the charges were not proved and recorded its disagreement with those findings. In the disagreement note sufficient reasons have been recorded and the same constitute basis of show cause notice issued to the appellant-petitioner along with a copy of the Inquiry Report. It clearly mentions that the Charged Officer was at liberty to file any representation which he did. After taking into account the representation, the Disciplinary Authority passed the impugned order, therefore, it cannot be said that the conclusion recorded in the disagreement note by the Disciplinary Authority was not supported by any evidence or that the Charged Officer was not afforded any opportunity of hearing before passing the order. The learned Single Judge found that Rule 14 and 15 of the 1965 Rules have been religiously complied with and there was no requirement of providing oral hearing before recording the disagreement note by the Disciplinary Authority.

8. Mr. M. K. Bhardwaj, learned senior counsel for the appellant, has vehemently argued that the dissenting note does not answer the prescriptions of the provisions of Rule 15 (2) ,(3) and (4). According to the learned counsel Disciplinary Authority could have recorded a dissenting note only if there was evidence on record sufficient to reach a conclusion contrary to the one reached by the Inquiry Officer. The learned senior counsel has maintained that the sufficiency of evidence is one consideration at this stage in Disciplinary proceeding. Accordingly it has been submitted that some negligible evidence may not be regarded as sufficient to reverse the findings in a Regular Departmental Inquiry.

9. Another submission made by Mr Bhardwaj is that the dissenting note pronouncingly displays a prejudice mind against the appellant because the final opinion stood actually formed to indict the charged officer-appellant and inflict punishment upon him. In support of his submission learned counsel has placed reliance on paras 26 and 28 of the constitution bench judgment of Honble the Supreme Court in the case of Managing Director, ECIL, Hyderabad and ors. v. B. Karunakar, (1993) 4 SCC 727. He has also placed reliance on the judgments of Honble the Supreme Court rendered in the cases of Punjab National Bank v. Kunj Behari Misra, (1998)7 SCC 84 and State Bank of India and ors v. K. P. 9 Narayanan Kutty, (2003) 2 SCC 449 and argued that if a final opinion has been found to be formed in the dissenting note itself or in the show cause notice issued to the Charged Officer then soliciting of representation from him is a mere formality because opinion stands already formed to inflict punishment on him. On the same principle Mr. Bhadwaj has also cited a Division Bench judgment of Delhi High Court in case of Prabhat Singh Charak v. Union of India and anr (W.P. (C) 5078/2004 decided on 02.12.2009 and argued that the note of dissent in the case in hand and the Prahbhat Singh Charaks case are identical and, therefore, it should be construed in the same manner.

10. Mr. P. S. Chandel, learned Central Government counsel has produced the record before us. Referring to the dissenting note Mr. Chandel has argued that by no stretch of imagination it could be regarded as an expression of final opinion by the Disciplinary Authority. In support of his submission Mr. Chandel has given many reasons. According to Mr. Chandel, the first reason is available in the last para of the dissenting note which shows that the disciplinary authority was to take suitable action after considering inter alia the representation if any to be made by the Charged Officer. The representation was solicited in writing by the disciplinary authority within a period of 15 days 10 from the date of receipt of the letter. According to the learned counsel the dissenting note may not have used the language of Rule 15 (2), (3) & (4) of the 1965 Rules but the omission to use the expression provisional would not wipe out the intention of the order which can be gathered from the last para of the dissenting note. Mr. Chandel has further argued that in none of the judgments of Honble the Supreme Court it has been laid down that if order in substance is provisional in character then merely because it does not use the expression provisional then such an order would be vitiated because the law look to the substance not to the form. A reasonable person reading this order cannot constitute an opinion that the author of the order has finally made up his mind to indict the Charged Officer and to inflict the punishment. Learned counsel has maintained that there is not a whisper with regard to the inflicting of punishment in the dissenting note and therefore, the dissenting note deserves to be upheld.

11. Answering the argument based on the case law cited by learned counsel for the appellant, Mr. Chandel has argued that in case of Kunj Bihari Misra (supra) no dissenting note was supplied and naturally Honble the Supreme Court by following the principles laid down in B. Karunakars case held that before forming an adverse opinion differing with the findings of the 11 Inquiry Officer, the Charged Officer was required to be given an opportunity to make representation. In Prabhat Singh Charaks case (supra) the Delhi High Court has dealt with a dissenting note which has recorded positive findings against the Charged Officer. There is nothing in the judgment of the Division Bench to highlight that if the final opinion has been formed after receipt of representation from the Charged Officer then what is effect which is the situation in the case in hand. Therefore, it has been argued that the law in letter and spirit has been followed by the learned single judge who has taken a correct view by rejecting the submission made by the appellant.

12. Mr. Chandel has also argued that altogether a new case is being projected in the appeal. The plea of prejudice has neither been raised in the reply to the show cause notice nor in the writ petition. According to the learned counsel no such plea has either been raised before the learned Single Judge or in the memo of appeal. There is no basis laid down for raising the issue because prejudice resulting from predetermined mind has to be factually present and it has to be shown as has been laid down in para 30 of B. Karunakars case (supra) by Honble the Supreme Court.

13. We have bestowed our thoughtful consideration on the rival contentions advanced at the bar. Before we embark upon 12 to consider those contentions, it would be apposite to examine the provisions of Rule 15 which postulates the action required to be taken on the inquiry report after its submission by the Inquiry Officer to the Disciplinary Authority. The issue concerning disagreement between the finding recorded by the Inquiry Officer and the Disciplinary Authority has been dealt with by sub-Rule (2), (3) and (4) of Rule 15. The aforesaid sub- Rules have direct bearing on the issue raised before us and are thus set out below in ex tenso:-

15 (2). The Disciplinary Authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Cls. (i) to

(iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order of imposing such penalty. Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Cls. (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed.

Provided that in every case where it is necessary to consult the commission, the record of the inquiry shall be forwarded by the Disciplinary 13 Authority to the Commission for its advice and such advise shall be taken into consideration before making an order imposing any such penalty on the Government servant.

14. A conjoint reading of the aforesaid Rules would show that if the Disciplinary Authority is in disagreement with the findings of the Inquiry Officer on any article of charge then it can record its disagreement and proceed to record its own findings on such charge if the evidence on record is sufficient for the purpose. The Rule further provides that the Disciplinary Authority, keeping in view the nature of findings on all or any article of charges may proceed to inflict any of the penalties specified in Clauses (i) to (iv) on the charged Officer. It is mandatory to consult the Public Service Commission by sending the record of inquiry by the Disciplinary Authority for its advice. The advice tendered by the Commission is also required to be taken into consideration before imposing any penalty on the government servant. For imposing penalty it is not necessary to afford to the Charged Officer any opportunity to make a representation on the penalty proposed to be imposed.

15. Before the learned Single Judge the argument raised was that an opportunity of hearing is required to be afforded to the Charged Officer before the Disciplinary Authority records a note 14 of disagreement and provisional findings to the contrary. There is no room for such an argument nor it emerges from the rules. It has rightly been rejected by the learned Single Judge on the ground that there was no such provision in the Rules. We also find that the provisions of Rules have been religiously complied with. At this stage it would be necessary to read the dissenting note as the fate of the officer is dependent on that note. The dissenting note is set out below in ex tenso:-

Sub:-Departmental Enquiry.

A departmental enquiry was conducted against you by Shri Y. N. Srivastava, IPS the then ADG CRPF. The report of the Inquiry Officer and a copy of second stage advice tendered by CVC vide their UO No. 97/HMA/16 dated 4.2.2002 are enclosed herewith. The Inquiry Officer in his report had held Article-I & II of the charge framed against you as not proved. The disciplinary authority did not agree with the findings of the Inquiry Officer on the basis that the IO had not appreciated the evidence in a proper perspective and held both the charges framed against you as proved due to the following:-

(a) During the COI conducted by Shri A.V. Liddle, the charged officer had deposed that under the stress of his Commandant, he had attended his acknowledgement on the office order dated 7.8.1995 (Ex-S-5). The IO has eliminated the said exhibit by his discussion on para 10.7 of his report which is not acceptable. The charged officer had not rebuted the validity of the said document but only objected its inclusion. The statement made before COI can be used as a document in support of prosecution during the course of regular enquiry. The original copy of listed document S-1 is held up with the Central Excise authorities in connection with criminal proceedings and hence could not provide the same during the DE proceedings. However, during the course of enquiry the photocopy of the said document was obtained from Central Excise authorities and the initial of the charged officer for having received the said order by acknowledging it antedated is very much available.

Hence the denial of charged officer on the grounds of 15 not providing the original/authenticated copy of the said document is only a technical aspect.

(b) The signature of the charged officer was to be tallied with his specimen signatures and not through statement of either PW or DW. In view of the existence/issue of the said antedated order (S-1) by the Unit Commandant, requirement of issue of copy of said order to the charged officer being QM/MTO/Adjt at the time of the incident etc., clearly drawn convenient inference that the article I of the charge framed against the officer stands as proved. The observation of the IO on the risky stand of the charged officer that he had even gone to the extent to suggest obtaining the opinion of the handwriting experts having no logic to disprove the charge. The Departmental enquiry being a quasi judicial process no standard degree of proof at par with criminal proceedings is required.

(c) On the basis of deposition of SI (MM) B.L. Roy, it has been clearly established that the charged officer called him on 16.8.1995 and wrote a statement in English saying that he had inspected the vehicle on 8.8.1995 before dispatch on special operations and obtained his signature in order to create evidence to safeguard his position. This is a mere technicality and instead of asking his subordinate to prepare a antedated inspection report of the vehicles the charged officer prepared a statement to the effect that the vehicles were inspected before dispatch and obtained the signatures of his subordinate. Hence, the article-II of the charge also stands proved.

2. The disciplinary authority will take suitable decision after considering the report of the Inquiry Officer and reasons for disagreement thereon as stated above and your representation if any. If you wish to make any representation or submission, you may do so in writing to the disciplinary authority within 15 days on receipt of this letter

16. A perusal of the dissenting note would show that there is sufficient evidence for the Disciplinary Authority to sustain the findings. In any case the quantum of proof is not within the competence of judicial review. It has come on record that the opinion expressed by the Public Service Commission dated 16 04.02.2003 was also taken into account before passing the order of punishment.

17. The only ground of challenge mounted against the dissenting note is that it has recorded the findings finally without leaving any room to comment by the Charged Officer. In other words, it has been suggested that the Disciplinary Authority has already concluded that the findings recorded in dissenting note are final and only punishment is to be awarded.

18. It is true that findings recorded by the Disciplinary Authority in a case where it is not itself the Inquiring Authority have to be provisional in nature so that the response of the Charged Officer may be evoked but in a case where the dissenting note specifically says that the Disciplinary Authority would take suitable decision after considering the report of the Inquiry Officer, reasons for disagreement thereon as stated in the note itself and the representation of the Charged Officer then it is not easy to accept that the Disciplinary Authority has recorded its final opinion by concluding that the findings are final. It is not disputed that right is conferred on the Disciplinary Authority to disagree with the findings of the Inquiry Officer where it is not the inquiring authority itself. The evidence on record disclosed by the Disciplinary Authority to sustain the allegation of ante-dated letters is unassailable and in fact no 17 argument has been advanced to challenge that the findings are laconic or perfunctory in nature. The hair splitting argument that the word provisional has not been used and on that basis alone the dissenting note is vitiated would not cut any ice because law look to the substance and not to the form. Therefore, we do not find any legal infirmity in the view taken by the learned Single Judge. The order inflicting punishment of reducing the pay of the Charged Officer to the lowest scale in the time scale of Rs. 10000-15200 for a period of three years has been rightly upheld and we approve the reasoning adopted by the learned Single Judge.

19. The stage is now set to deal with the arguments raised by Mr. Bhardwaj, learned counsel for the appellant. The argument raised by him in sum and substance is that in the absence of provisional opinion expressed by the Disciplinary Authority the Charged Officer has suffered a prejudice. Firstly it is not the pleaded case either in the writ petition or in the Letters Patent Appeal and secondly how the Charged Officer would suffer a prejudice when the Disciplinary Authority has in the concluding part of the dissenting note clarified that the final order was to be passed only after taking into consideration the reply if any to be submitted by the Charged Officer. The reply was actually sent and the order of punishment adequately reflects application of 18 mind on that reply. Even in that reply no such objection was taken as to how the Charged Officer has suffered prejudice or how the principles of natural justice or any rule/regulations have been violated. Therefore, the argument raised by Mr. Bhardwaj is found to be devoid of merit and is hereby rejected.

20. As a sequel to the above discussion this appeal fails and the same is dismissed. The view taken by the learned Single Judge is up held along with the order of punishment dated 24.03.2003.

21. No costs.

(Hasnain Massodi) (M. M. Kumar)  
      Judge       Chief Justice
JAAMU:  
28.12. 2012
Anil Raina, Secy.

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