Central Administrative Tribunal - Delhi
Chander Lal Ranga vs Union Of India Through on 12 September, 2012
Central Administrative Tribunal
Principal Bench
OA No.4265/2010
Reserved on : 29.08.2012
Pronounced on : 12.09.2012
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Chander Lal Ranga
Former PPS, Ministry of External Affairs,
T-Block, H.No.5-A,
Gali No.1, Shukkar Bazar,
Uttam Nagar,
Delhi 110 059. Applicant.
(By Advocates: Shri Devesh Singh, Senior Advocate alongwith
Shri Pradeep Dahiya and Shri A. Mittal)
Versus
1. Union of India through
The Secretary,
Ministry of External Affairs,
South Block,
New Delhi.
2. Department of Personnel and Training through
The Secretary,
North Block,
New Delhi.
3. Union Public Service Commission through
The Secretary,
Dholpur House,
Shahjahan Road,
New Delhi. Respondents
(By Advocate: Smt. Priyanka Bhardwaj)
O R D E R
Dr. Ramesh Chandra Panda, Member (A):
Shri Chander Lal Ranga, applicant herein, is aggrieved by the order dated 18.02.2010 (Annexure A-1) by which he was imposed the penalty of compulsory retirement from service, and also by the order dated 15.06.2010 (Annexure A-2) in which the appellate authority has rejected the applicants revision petition against the penalty order. He has, therefore, prayed to quash both the impugned orders dated 18.02.2010 and 15.06.2010 with further prayer to grant all consequential benefits to him.
2. Brief facts of the case would disclose that the applicant, who joined as Personal Assistant (PA) in the Ministry of External Affairs (MEA) on 08.07.1982, rose to the level of Principal Private Secretary (PPS) on 20.08.2000. He was posted as PPS in the Indian Embassy at Washington, which he joined on 11.10.2001. While working in the Indian Embassy at Washington he submitted a representation dated 18.08.2004 (Annexure A-3) seeking permission to leave his daughter in USA for pursuing her studies and the said request was granted by MEA. It is the case of the applicant that at that time his request for extension of six months on educational ground of his son, who was in 10th grade, was under consideration of the MEA. Further, he requested for grant of three months ex-India leave for the above purpose. On 04.11.2004, a fax message (Annexure A-4) was received from MEA asking the applicant to send duly filled in home leave application form. Therefore, he submitted on 04.11.2004 (Annexure A-5) the filled in standard ex-India leave form, which was forwarded to MEA. But, the Indian Embassy at Washington received a message (Annexure A-6) from MEA on 19.01.2005 intimating the applicant that his request for ex-India leave did not find favour with MEA. However, the applicant further requested extension of his tenure in Washington upto 30.04.2005, or sanction of ex-India leave, vide his letter dated 02.02.2005 (Annexure A-7) on the ground that his son was to complete his 10th grade examination at that point of the year and he would not get admission for his son in Delhi. On the above request, he was conveyed the approval of the competent authority vide message dated 04.02.2005 (Annexure A-8) for ex-India leave upto 30.04.2005. On 28.04.2005, the applicant submitted yet another application (Annexure A-9) for grant of four months ex-India leave on the ground that his wife, who was operated upon on 30.08.2004, was suffering from post operational complications and her doctors advised her for all clinical tests and check ups on regular basis, which would need four months to stay at Washington. The said request of the applicant was turned down vide Fax Message dated 01.07.2005 (Annexure A-10). Instead of joining the post at Delhi, however, he sought two years of ex-India leave on medical grounds of his wife vide his letter dated 24.08.2005 (Annexure A-11). It is his case that as per his leave records at that time he had 64 days of ACL, 315 days of EL and 441 days of HPL and his leaves for the past ten years was lapsing. His case was that only due to exceptional circumstances on medical grounds of his wife he applied for two years ex-India leave. However, his request for two years ex-India leave was rejected vide Memorandum dated 22.09.2005 and he was directed to report for duty by 10th October, 2005. It was his further case that it was not possible for him to join at Delhi due to ailing wife who was working there at Washington and school going minor children. Therefore, he sent an e-mail to the Joint Secretary (AD) Ministry of External Affairs with a request to review his representation for grant of ex-India leave for two years. On 13.06.2007 the applicant received Memorandum dated 11.05.2007 (Annexure A-14), as per which it was proposed to hold an inquiry against him under Rule 14 of CCS (CCA) Rules, 1965 for two following Articles of Charges:-
Article I: That the said Shri C.L. Ranga, PPS, has been absenting himself from his duties in an unauthorized manner with effect from 2 May 2005 after expiry of ex-India leave sanctioned to him till 30 April 2005.
Article II: That the said Shri C.L. Ranga, PPS, did not comply with the order of the Government transferring him from Embassy of India, Washington, to Headquarters of the Ministry of the External Affairs, New Delhi. Shri Ranga also defied Government of Indias instructions directing him to report for duty at the Headquarters of the Ministry of External Affairs, New Delhi. In view of the above two charges, the applicant was alleged to have exhibited lack of devotion to duty and conduct unbecoming of a Government servant thereby violating the provisions of Rules 3(1)(i) and (iii) of the CCS (Conduct) Rules, 1964. Along with Charge Memorandum he was furnished statement of imputation of misconduct, list and photocopies of relied on documents. The applicant submitted his reply dated 21.06.2007 (Annexure A-15) to the aforesaid Memorandum pleading not guilty and alleging that the charges leveled against him were unsympathetic, inhuman and explained circumstances due to which he could not join his duties at Delhi and, inter alia, informed that he would join his service at Delhi in October, 2007. However, it is seen that the applicant has submitted his travel plans to the Mission seeking approval for final air passage for self and wife with luggage and requested to leave his son behind to pursue his college education. It is averred that the doctor treating his wife has certified on 13.09.2007 that she is fit to return to India. The applicant was informed vide letter dated 27.11.2007 (Annexure A-18) that his request for grant of passage to travel back to India had been acceded to subject to the condition that his family would not be eligible for return passage. Finally the applicant reported for duty in the Headquarters at New Delhi on 28.02.2008(FN). At Washington, Shri Ashraf, Counsellor (CL) was the Inquiry Authority (IA) but later at Delhi vide letter dated 26.05.2008 Smt. Sangeeta B. Mann was appointed as Inquiring Authority (IA) to conduct enquiry against him. The IA conducted the departmental inquiry where the applicant submitted his defence statement and document. The IA held both charges as fully proved and submitted her report dated 27.08.2008 (Annexure A-25). The applicant received the enquiry report dated 27.08.2008 vide letter dated 11.09.2008. The applicant submitted his representation against the enquiry report on 23.09.2008 reiterating that his overstay in US should be considered sympathetically. However, the Disciplinary Authority after taking into consideration the representation of the applicant and the enquiry report, held the charges as fully proved against the applicant vide letter dated 12.06.2009 and the records were sent to the Union Public Service Commission (UPSC) for its advice. The UPSC in its turn suggested in the advice imposition of penalty of compulsory retirement from service coupled with 1/3rd cut in pension on permanent basis. However, the Disciplinary Authority feeling that the advice of the UPSC was stiff keeping in view the state-of-affairs of the applicant, sent the records vide letter dated 28.01.2010 to Department of Personnel & Training (DOP&T) for its advice in the matter. The DOP&T suggested only the penalty of compulsory retirement. The Disciplinary Authority decided to accept the advice of the DOP&T and passed the impugned order dated 18.02.2010 (Annexure A-1) imposing the penalty of compulsory retirement from service on the applicant. Aggrieved by the said penalty order, the applicant submitted a Revision Petition under Rule 29 of CCS(CCA) Rules, 1965 with a request to revise the impugned order dated 18.02.2010 whereby penalty of compulsory retirement from service was imposed upon him but the same was rejected vide order dated 15.06.2010 (Annexure A-2) by the competent authority. Being aggrieved by both the impugned orders dated 18.02.2010 and 15.06.2010, the applicant has instituted the present Original Application.
3. Shri Devesh Singh, learned senior counsel for the applicant while highlighting the background of the case and hardship that the applicant had been going through due to penalty of compulsory retirement from service, anchored his contention on three main grounds. All other points indicated in the OA and the arguments raised during the hearing revolved around these three main contentions. (i) The applicant has to overstay in the USA mainly on the grounds of his wifes operation and post operational complications, and completion of the education being undertaken by the applicants daughter and son. His further argument was that the respondents have granted the applicant initially ex-India leave in order to complete the studies of his daughter and thereafter the applicant only overstayed. Shri Devesh Singh further submits that the applicant has been intimating the respondent-MEA periodically requesting for extension of his ex-India leave. Despite the rejection of his request for ex-India leave, the applicant returned back to India and joined his duties and as such the period treated as unauthorized absence by the applicant should not be considered as such but should be treated as overstayal and the period should be regulated as per the leave to which he was entitled to. He hastened to add that the applicant had enough of leave to his credit and his earlier leave for over 10 years had lapsed as in those years the applicant being a very conscientuous officer did not avail the leave. The respondents have ignored the past good conduct of the applicant and termed the overstay as unauthorized absence to impose the harsh punishment of compulsory retirement from service on him. (ii) His further argument was that for the overstay in the USA for three specific reasons as stated above, the applicant was inflicted the punishment of compulsory retirement from service which should be termed as shocking the conscience of the Tribunal as it was disproportionate to the alleged misconduct. The past records of the applicant should have been taken into account and number of years left for him to serve the Government could have been considered appropriately before deciding to impose such a harsh major penalty on the applicant. His submission is that on the grounds of disproportionate penalty to the alleged misconduct the impugned orders should be quashed and set aside. (iii) On the ground of violation of principles of natural justice, Sh. Devesh Singh submitted that the competent Disciplinary Authoritys mind was influenced first by the report of the UPSC and later on by the advice of the DoP&T. As the applicant had no opportunity to defend himself on such advice/report before the penalty order was passed, the penalty order passed was illegal due to violation of principles of natural justice. In this regard, he placed his reliance on the judgment of the Honble High Court of Delhi in the case of R.P. Singh versus Union of India and Others reported in 136 (2007) Delhi Law Times 625 (DB). He also submitted that in a recent judgment of the Honble Supreme Court namely Union of India and Others versus S.K. Kapoor [2011-4-SCC-589] it has been held that the disciplinary authority has to put the charged officer on notice by supplying the report of UPSC before he could conclude what type of penalty should be imposed. Therefore, the illegality has been caused by the Disciplinary Authority by not supplying the applicant a copy of the UPSC report and DOP&T advice before the penalty order was passed. He, therefore, urges that on the above three grounds, the OA should be allowed, penalty orders should be quashed and set aside besides reinstating the applicant into service with all consequential benefits.
4. Pursuant to the notice issued by this Tribunal, the respondents have entered appearance and filed their counter affidavit on 14.02.2011.
5. Smt. Priyanka Bhardwaj, learned counsel representing the respondents, controverted the above contentions advanced by the learned senior counsel for the applicant. She submitted that the enquiry report brought out clearly that both the Article of Charges were held as fully proved. The Disciplinary Authority considered the enquiry report, representation of the applicant thereon and came to the conclusion that the charges having been proved the applicant deserved to be accorded appropriate punishment. It is stated that the applicant has mentioned in his own letter that the medical condition of his wife is not life threatening. Her condition did not prevent her from travel and the applicant requested that air passage in respect of his wife to Delhi was booked for 12.07.2005 and treatment for her was also available in Delhi. Despite all these informed by the applicant, he did not join his post at Delhi. Mrs. Bhardwaj further submitted that the applicant by his own admission had stated that his wife was working part-time on the basis of the approval of the MEA and the cost of her treatment would be covered by the insurance provided by the employer. Therefore, it is contended that the applicants personal reasons do not attract the public interest for which he has not joined the post at Delhi. Therefore, the applicants absence was found to be unauthorized which being a serious matter, the punishment imposed was proportionate. She placed her reliance on the judgment of Honble Supreme Court in the matters of State of Rajasthan & Another versus Mohd. Ayub Naaz [JT -2006-1-SC-162] wherein it was held that if the charge of willful absence from duty stood proved against the delinquent government servant, he should be removed from service. In the instant case Smt. Bhardwaj states that instead of removing the applicant from service he has been compulsorily retired from service. Therefore, from the proportionality angle the punishment imposed on the applicant, Mrs. Bhardwaj would contend, was adequate and was not disproportionate.
6. Further, referring to the non-supply of UPSC/DOP&T report, she contended that the applicant was supplied with the copy of the UPSC report along with the penalty order and as per Rule 32 of CCS (CCA) Rules a copy of UPSC advice was required to be furnished to the charged officer along with the order imposing penalty. The said requirement was met in the instant case. In this context, he placed her reliance on the judgment of the Honble Apex Court in the matter of Union of India versus T.V. Patel [2007-4-SCC-785].
7. The learned counsel for the respondents further refuted the argument that the applicant had sufficient leaves to his credit for which the unauthorized absence period should have been regulated by granting appropriate leave, and contended that the applicant had exhibited very serious indiscipline by not joining back at MEA Headquarters at Delhi but continued in USA for months together and avoided to join his duties in the MEA Headquarters at Delhi. In view of the judgment of Honble Supreme Court in T.V. Patels case (supra), the supply of DOP&T/UPSC reports to the applicant along with the penalty order was legally justifiable and there was no violation of the principles of natural justice.
8. The respondents in their counter reply have also raised the legal issue that the Tribunals role in disciplinary matters is rather limited and Tribunal cannot interfere with the findings of the facts based on evidence and cannot substitute its own independent findings nor can take up the role of appellate authority over the competent authorities. In this context, she placed her reliance on the judgment of Honble Supreme Court in the matter of B.C. Chaturvedi versus Union of India and others (1995-6-SCC-749) and submitted that in the guise of judicial review the Tribunal should not sit on appeal over the decision taken by the Disciplinary and Appellate Authorities. Courts and Tribunals should not interfere in such matters but can only interfere if the principles of natural justice and the statutory rules have been violated in arriving at the conclusion. She further relied on the judgment of Honble Supreme Court in V. Ramana versus A.P.S.R.T.C. and Others (AIR-2005-SC-3417). In view of her above contentions, she argues for dismissal of the OA.
9. Having heard the contentions of the parties, with the assistance of the counsel we perused the pleadings and relied on judgments. The controversy for our determination is whether the penalty order passed by the competent authority is legally sustainable?
10. In the first instance we may dwell on the issue of the limited judicial review power available with the Tribunal to look into the disciplinary proceedings raised by the learned counsel for the respondents. She argued that the Tribunal should restrain to re-appreciate the evidence and substitute the penalty sitting as an appellate authority. We are conscious of the limited powers of the Tribunal in the exercise of power of judicial review under Article 226 of the Constitution of India. Thus, we note here the settled position in law on the powers of the Tribunal as to what extent this Tribunal can interfere in the matters of disciplinary proceedings. We went through a catena of judgments of Honourable Supreme Court of India in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities and identified the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Kuldeep Singh Versus Commissioner of Police and others [1999(2) SCC 10]; Om Kumar versus Union of India (2001) 2 SCC 386); V. Ramana versus A.P.S.R.T.C. and Others (AIR-2005-SC-3417); M.V. Bijlani versus Union of India [2006 SCC - 5-88]; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC]; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257]; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, and statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; presence or absence of some evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the wednesbury principle, probability of preponderance doctrine and the like. Some of the guiding principles, we kept in our mind while deciding the present OA, are as follows:-
(1) The Tribunal cannot interfere with the findings of the Inquiry Officer which is based on some evidence and substitute its own independent findings.
(2) When the findings of the disciplinary authority or the appellate authority are based on some evidence, the Tribunal cannot re-appreciate the evidence and substitute its own findings.
(3) Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which decision is made as the decision making process is as important as the decision itself.
(4) When an inquiry is conducted on the charge(s) of misconduct against a public servant, where the authority held the proceedings against the delinquent officer, the Tribunal is empowered to determine: (i) Whether the inquiry was conducted by the competent officer? (ii) Whether principles of natural justice have been complied with? (iii) Whether the findings / conclusions are based on some evidence or no evidence to reach a finding/conclusion? (iv) Whether the mode of inquiry is in violation of statutory rules? (v) Whether the findings are arbitrary or utterly perverse?
(5) Adequacy of evidence or reliability of evidence applies to the disciplinary proceedings. When the Inquiry Officer finds and accepts the evidence, his conclusion normally is guided by such evidence and as such the disciplinary authority is entitled to hold the delinquent officer as the guilty or otherwise of the charge.
(6) The disciplinary authority exercises his quasi judicial power to appreciate the evidence and finding on each of the charges is arrived after proper analysis of evidence of the prosecution and defence witnesses and documents.
(7) The Tribunal can interfere with the decision of the Disciplinary /Appellate/Revisionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards or unreasonable.
11. The principal ground taken by the learned senior counsel for the applicant in the present OA relates to the non-supply of DOP&T and UPSC reports. Admittedly, the UPSC report has been supplied to the applicant along with the penalty order. The penalty order is dated 18.02.2010 and the applicant received the same but did not have opportunity to defend himself before the penalty order was passed. Though the applicant filed his Revision Petition after the receipt of the UPSC report but that does not cure the primary illegality which has crept in the passing of the penalty order. The UPSC furnished its advice, which was not communicated to the applicant seeking his representation. On the other hand, the Disciplinary Authority sought the advice of DOP&T. The penalty suggested by the UPSC was modified by the DOP&T in its advice. The Disciplinary Authority has accepted and followed the suggestions given by the DOP&T. It is noticed that though the DOP&T advice has been referred to in the penalty order, the same has not been supplied to the applicant. This, in our considered view, clear denial of an opportunity to the applicant to submit his representation. Both the reports of UPSC and DOP&T have not been supplied to the applicant before the penalty order was inflicted on him by the disciplinary authority. Thus, it is noted that at that stage the principles of natural justice have been violated and the illegality has crept in.
12. In this context, it would be appropriate for us to refer to the law set by the Honble Supreme Court on the matters whether the delinquent official should be supplied with the copy of the UPSC report prior to the penalty order or along with the penalty order or after the penalty order. The Honble Supreme Court in the matter of Union of India & Others versus S.K. Kapoor reported in 2011-4-SCC-589 wherein after referring the decision of Union of India versus T.V. Patels case reported in 2007-4-SCC-785, observed as follows:-
7. In the aforesaid decision, it has been observed in para 25 that the provisions of Article 320(3) (c) of the Constitution of India are not mandatory. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patels case is clearly distinguishable.
8. There may be a case where the report of Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula Vs. Union of India & Ors., Civil Appeal No.642 of 2004 decided on 30th January, 2004.
9. It may be noted that the decision in S.N. Narulas case (supra) was prior to the decision in T.V. Patels case (supra). It is well settled that if a subsequent co-ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narulas case (supra) was not noticed in T.V. Patels case (supra), the latter decision is a judgment per incuriam. The decision in S.N. Narulas case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
13. The above law laid by the Honble Supreme Court in the matter of S.K. Kapoors case (supra) though relates to the non-supply of UPSC report before the penalty order was passed, the same ratio decidendi would be also applicable for non-supply of DoP&T report.
14. Testing the penalty order on the touch stone of the above Judgment of Honble Supreme Court, we note that the decision of the Disciplinary Authority has been influenced by the report/advice of UPSC and DOP&T. In this regard, we refer to the paragraph nos. 7, 8 & 9 of the order dated 18.02.2010 which influenced the mind of the Disciplinary Authority. The same is extracted below:-
7. The case records were sent to UPSC for its advice. The Commission examined the case dispassionately and vide its letter No. F.3/293/2008-SI dated 12.06.2009 (copy enclosed) advised that ends of justice would be met if the penalty of compulsory retirement coupled with one third cut in pension on a permanent basis is imposed on Shri C.L. Ranga, PPS. The Disciplinary Authority felt that the advice tendered by the UPSC was stiff keeping in view of the fact that the CO had about nine years of service left and he had grown up children to look after. The case records were sent to DOPT for its advice on the matter.
8. DOPT, vide its advice tendered vide ID No.39034/12/2009-Estt(B) dated 28.01.2010 (copy enclosed), has observed that gravity of defiance of Ministrys directions can be gauged from the fact that even after issue of the charge sheet, the CO took 10 months to report for duty at New Delhi. DOPT has advised that penalty of compulsory retirement as advised by the UPSC is reasonable. However, the competent authority in DOPT has not accepted further advice of UPSC for one third cut in pension on permanent basis, along with compulsory retirement. DOPT has advised that ends of justice would be met if the penalty of compulsory retirement from service is imposed on Shri C.L. Ranga, PPS.
9. The Disciplinary Authority has decided to accept the advise of DOPT, because from the case records it is clear that the CO gave higher priority towards family welfare than towards his service in the Government of India, Ministry of External Affairs. Further he could have easily continued further treatment of his wife in India, including Delhi, where facility is available.
15. Learned counsel for the respondents referred to the Rule 32 of CCS (CCA) Rules, 1965 to submit that a copy of the advice of the UPSC, as prescribed in the Rule, is to be provided to the delinquent official along with a copy of the order passed in the case. Therefore, in compliance of the statutory rule 32 of CCS (CCA) Rules, the respondents have followed the principle. We have given our considerably thought on the said arguments. It must be noted that the principles of natural justice and compliance thereof in the quasi judicial matters like disciplinary proceedings are the basic principles as established in the law laid by the Honble Supreme Court in various judgments as stated above. Rule 32 envisages that whenever Commission is consulted a copy of the report should be given along with the penalty order. It is not prohibited to provide a copy of the same in advance when the UPSC advice has been followed by the competent disciplinary authority in arriving at his conclusion and decision of imposing a penalty. The judgment of Honble Supreme Court in S.K. Kapoors case (supra) as indicated above clearly lays down the ratio that any document being relied upon by the Disciplinary Authority before passing a penalty order must provide the same to the delinquent official in order to grant him opportunity to defend himself on the advice so tendered by the UPSC. Therefore, the law laid by the Honble Supreme Court supplements the rule position. The non-compliance of audi alteram partem would vitiate the penalty order so passed without supply of the copy of UPSC report.
16. In view of the authoritative pronouncement of Honble Supreme Court on the issue, the competent authority having not given an opportunity to the applicant to respond to the advice of the UPSC and also the DOP&T report, the impugned penalty order would, therefore, suffer from the violation of the principles of natural justice. On this ground alone, the penalty order is not sustainable in the eyes of law.
17. Some more points were raised by the learned senior counsel for the applicant, like the penalty being disproportionate compared to the proved misconduct. At this stage, we restrain to consider and offer our views on all other grounds taken by the applicant in the OA and the contentions canvassed during the hearing, lest our views would impact the decision in the disciplinary case. The applicant, therefore, will have the liberty to raise those grounds including quantum of punishment before the Disciplinary Authority in his representation to be submitted on UPSC and DOP&T report/advice which would be considered appropriately in the final order to be passed by the Disciplinary Authority.
18. Considering the totality of the facts and circumstances of the case, we find that the impugned penalty order suffers from the legal infirmity on the grounds of non-supply of UPSC and DOP&T advice/report before the passing of the impugned penalty order, as the principles of natural justice have been violated. Resultantly, the penalty order dated 18.02.2010 and order of the Appellate Authority dated 18.06.2000 are quashed and set aside. Consequently, the respondents are directed to reinstate the applicant in service forthwith. However, liberty is granted to the respondents to continue with the disciplinary case against the applicant from the stage where the legal infirmity has crept in. We are of the considered view that the legal infirmity has been crept in from the stage of non-supply of DOP&T and UPSC advice/report to the applicant before passing of the impugned penalty order dated 18.02.2010. The respondents are, therefore, directed (i) to send a copy of the DOP&T advice to the applicant for his representation ; (ii) to get the representation of the applicant on the UPSC advice already communicated to him along with the penalty order and (iii) to pass appropriate order which should be speaking and reasoned one. The applicant is also directed to furnish his response to the UPSC and DOP&T advice within a period of four weeks from the date of receipt of a copy of the DOP&T advice. He has the liberty to raise the grounds taken in the OA in his representation. The period falling between the date of compulsory retirement upto the date of reinstatement pursuant to this order will abide by the ultimate decision to be taken by the Disciplinary Authority. Let the Disciplinary Authority take the decision in the case as expeditiously as possible but positively within a period of three months from the date of receipt of representation of the applicant.
19. In terms of our above orders, directions and observations, the present Original Application is allowed leaving the parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (Syed Rafat Alam)
Member (A) Chairman
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