Central Administrative Tribunal - Delhi
Shri S.D. Sharma vs Government Of Nct Of Delhi on 10 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 1162/2012
Reserved On:06.01.2014
Pronounced on:10.02.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (J)
Shri S.D. Sharma
H.No.WP-191,
Village Wazirpur,
Ashok Vihar,
Delhi-110052. ..Applicant
By Advocate: Shri Tamli Wad.
Versus
1. Government of NCT of Delhi
Through the Lt. Governor of Delhi,
Raj Niwas,
Raj Niwas Marg,
Delhi-11054.
2. Ministry of Human Resource and Development
Through Secretary,
Government of India,
Department of School Education and Literacy,
B-Wing,
Ground Floor,
Shastri Bhawan,
New Delhi.
3. Services Department-II,
Through its Principal Secretary,
Government of NCT of Delhi,
Delhi Secretariat,
IP Estate,
New Delhi.
4. Food, Supplies and Consumer Affairs Department,
Through its Commissioner,
Government of NCT of Delhi,
K-Block Vikas Bhawan,
ITO New Delhi.
5. Directorate of Education,
Through Director of Education,
Government of NCT of Delhi,
Old Secretariat.
6. Union Public Service Commission,
Through its Chairman,
Dholpur House,
Shahjahan Road,
New Delhi. .Respondents
By Advocate: Shri Rajeev Kumar for Respondent No.2.
Shri Amit Anand for Respondent No.5.
Ms. Minal Sehgal for Shri D.S. Mahendru
for Respondent No.6.
ORDER
Honble Mr. G. George Paracken, Member (J) The grievance of the Applicant is against the impugned order No.F-16/2005-UT.I dated 21.02.2011 by which the President has imposed upon him the penalty of 30% cut in his monthly pension (which would have been otherwise admissible) on a permanent basis. Earlier he had approached this Tribunal, vide OA No. 2569/2008, when the President has passed an order dated 16.11.2007 imposing the same punishment upon him. Since it was a bald order, without dealing with any of the contentions raised by the Applicant therein and without giving any other reasons, this Tribunal set aside the aforesaid order but with a liberty to pass a fresh order taking into consideration the various grounds and other contentions raised by the Applicant.
2. The brief facts of the case are that, vide Memorandum No.F.8(38)/Vig./DNW/2K/119687, dated 06.11.2000 the Disciplinary Authority proposed to hold an enquiry against the Applicant under Rule 14 of the CCS (CCA) Rules, 1965. The statement of imputation of misconduct or misbehaviour in respect of which the enquiry was proposed to be held was as under:-
ARTICLE-I That the said Shri S.D. Sharma, Grade-II (DASS)/HC while functioning as Grade-II(DASS)/Inspector, Food & Supplies in Circle No.13 transferred from Food & Civil Supplies & Consumer Affairs Department of Directorate of Education by Services-II Deptt., Govt. of NCT of Delhi, vide Order No.F.3/15/91S.II/dated 10.08.1993 and relieved by the Dy. Commissioner (Admn) Food & Civil Supplies, Delhi. Vide Order No.F.8(1)/93-F&S/Admn./3846 dated 14.12.1994 and further relieved by FSO Circle-13 with the direction to report for duty to the Director of Education, Old Secretariat, Delhi w.e.f. 23.12.1993 vide Order No.3/93 dated 23.12.1994. He did not report for duty in Directorate of Education, Delhi.
Thus, Shri S.D. Sharma, Grade-II (DASS)/HC committed misconduct in as much as he failed to comply the order of his superior officers and the above act on the part of Shri S.D. Sharma, Grade-II (DASS)/HC reflects lack of devotion to duty and negligency and thereby violating the provisions contained in clause (i) (ii) & (iii) of sub-rule (1) of Rule-3 of CCS (Conduct) Rules, 1964.
ARTICLE-II That during the aforesaid period and while functioning in the aforesaid office, the said Shri S.D. Sharma, Grade-II(DASS)/HC was continued to remain absent from duty willfully and unauthorisedly w.e.f. 23.12.93 to 01.02.2000.
Thus the said Shri S.D. Sharma, Grade-II(DASS)/HC has failed to maintain devotion to duty and acted in a manner which is unbecoming of a Government Servant and thereby violated the provisions contained in clause (i) (ii) & (iii) of sub-rule (1) of Rule-3 of CCS (Conduct) Rules, 1964.
Along with the said Memorandum, the Disciplinary Authority has also furnished a list of documents by which the aforesaid Articles of Charges were proposed to be sustained. However, there was no one in the list of witnesses. After holding an enquiry in the matter, the Enquiry Officer came to the conclusion that both the Articles of Charges have been proved. The relevant part of the said report reads as under:-
Article of charge As per charge-sheet Shri S.D. Sharma, Grade-II (DASS)/HC, CO while functioning as Grade-II(DASS)/Inspector, Food & Supplies in Circle No.13 transferred from Food & Civil Supplies & Consumer Affairs Department of Directorate of Education by Services-II Deptt., Govt. of NCT of Delhi, vide Order No.F.3/15/91S.II/dated 10.08.1993 and relieved by the Dy. Commissioner (Admn) Food & Civil Supplies, Delhi, vide Order No.F.8(1)/93-F&S/Admn./3846 dated 14.12.1994 and further relieved by FSO Circle-13 with the direction to report for duty to the Director of Education, Old Secretariat, Delhi w.e.f. 23.12.1993 vide Order No.3/93 dated 23.12.1993. He did not report for duty in Directorate of Education, Delhi.
Thus, Shri S.D. Sharma, Grade-II (DASS)/HC, CO committed misconduct in as much as he failed to comply the order of his superior officers and the above act on the part of Shri S.D. Sharma, CO reflects lack of devotion to duty and negligency and thereby violating the provisions contained in clause (i) (ii) & (iii) of sub-rule (1) of Rule-3 of CCS (Conduct) Rules, 1964.
During the course of inquiry Mr.S.D. Sharma, CO has not provided any documentary proof that he was not absent w.e.f. 23.12.1993 to 01.02.2000.
Moreover IO put a question on 26.08.2004 regarding relieving and joining dates, i.e., 23.12.1993 (relieving from F&S Deptt.) and 23.12.1993 (joining in Education Deptt.).
But Shri S.D. Sharma, CO has not given any proof of his joining on 23.12.1993 but he raised some irrelevant objections without any substance on 26.08.2004 as per his note placed on 6?n and 60/C (Vol.II). Moreover, it seems some alterations in relieving dated i.e. 23.12.1993 (Forenoon) but altered as Afternoon (A/N) as clear from 43/C (Vol.I).
It is evident from the letters No.F.8(1)/93-F&S/Admn/3846 dated 14.12.1993 and 3/93 dated 23.12.1993 issued by F&S Deptt. that Mr. S.D. Sharma, CO has not joined his duty in Directorate of Education on 23.12.1993 (Afternoon) or 24.12.1993 (F/N) and he was absent w.e.f. 23.12.1993 to 01.02.2000.
Thus the charges lack of devotion to duty and negligency and violation of the provisions of Rules is proved.
Article II of charge During 23.12.1993 to 01.02.2000 Mr. S.D. Sharma, CO was remained absent w.e.f. 23.12.1993 to 01.02.2000.
Thus CO has failed to maintain devotion to duty and acted in a manner which is unbecoming of a Govt. Servant and thereby violated the rules.
During the course of inquiry proceedings Shri S.D. Sharma, CO, has not proved that he was not absent w.e.f. 23.12.1993 to 01.02.2000. As per joining letter of Shri S.D. Sharma, CO in the Directorate of Education on 02.02.2000 (Forenoon) (7/C & 8/C Vol.II). It is evident that Shri S.D. Sharma, CO, was not on duty from 23.12.1993 to 01.02.2000 neither in F&S Deptt. nor in Educ. Deptt.
During the course of inquiry proceedings on 05.11.2004 IO asked seven written questions regarding his absence period of Shri S.D. Sharma, CO but he has not replied the questions directly and put a vague note on the proceeding sheet and noting sheet without any proper reply of the question (9/N & 88/C. Vol.II).
Going through the records and other relevant documents it seems that Shri S.D. Sharma, CO was absent w.e.f. 23.12.1993 to 01.02.2000 without any proper application to the appropriate authority i.e. Directorate of Education Government of NCT Delhi, after his relieving. The list of documents shown in Annexure-III of the charge sheet are official proof that Mr. S.D. Sharma, CO violated the provision contained in Clause (i), (ii) & (iii) of Sub-Rule (1) of Rule-3 of CCS (Conduct) Rules, 1964.
Thus the article of charge II is proved.
3. Applicant made his representation dated 25.5.2005 against the aforesaid report. As the Disciplinary Authority has not considered the Enquiry Officers report and his representation for a considerably long time, he approached this Tribunal, vide OA No.1635/2006 seeking a direction to the Respondents to finalise the disciplinary proceedings, if any, pending against him within a reasonable time but not beyond three months. While, considering the aforesaid prayer, this Tribunal observed that it was 2 years before the Applicants retirement, the Respondents have initiated disciplinary proceedings against him in which an Enquiry Officer has also submitted his report, yet the disciplinary proceedings are still pending against him. This Tribunal has, therefore, disposed of the said OA at the admission stage itself vide order dated 04.08.2006 with a direction to respondents No.2 and 3 to dispose of the disciplinary proceedings, if any, pending against him within a period of three months. However, the Respondents filed MA No.2334/2006 in the aforesaid OA seeking extension of time and as a matter of indulgence, this Tribunal extended the time up to 31.03.2007 to finalize the departmental proceedings. It was also mentioned in the said order that if the proceedings are not concluded by that date, necessary consequences would follow. Despite the said order, the Respondents moved another MA No.662/2007 seeking further extension of time. Again this Tribunal extended the time for a further period of 6 weeks. Yet again they have not complied with the order of this Tribunal and filed MA No.978/2007 for extension of time and this Tribunal vide order dated 16.05.2007 granted further 3 months time to complete the proceedings. Again, the Respondents filed MA No. 1535/2007 as the 4th application for extension of time, but in the meanwhile, the Enquiry Officer has submitted his report and the Tribunal disposed of the MA by observing as follows:-
4. We have heard learned counsel representing the parties and with their assistance examined the records of the case. In the context of the facts of the present case, there will be no need to go into the ground seeking extension of time that the Ministry and/or UPSC was not impleaded as party respondent as, it is an admitted position that the inquiry has been completed and in ultimate analysis, punishment of imposing a cut of 10% in the pension of the applicant has been suggested. If the suggestion made by the department for imposing a cut of 10% in pension is accepted by the UPSC, at the most, the pension of the applicant will be reduced by 10% and he is already getting a provisional pension. If, however, the advice of the UPSC is that the cut in pension to the extent of 10% is not justified, the applicant will get full pension as per rules. The surviving claim of the Applicant is only with regard to the gratuity, and even if there is an imposition of a cut to the extent of 10% in the Applicants pension, it is not disputed that the Applicant in any case would get gratuity. We do not find it a fit case for further extension of time. During the course of arguments, learned counsel requesting the respondents in original lis, however, stated that the gratuity would be given to the applicant within one month from today. If the Respondents may make over the gratuity to the Applicant within the time as asked for by the counsel, no further action may be permitted to the Applicant in the original lis.
5. The present Misc. Application is disposed of in the manner as mentioned above.
4. Finally, the Disciplinary Authority issued the order dated 16.11.2007 imposing upon the Applicant the penalty of 30% cut in his monthly pension as aforesaid. The said order reads as under:-
No.F.5-16/2005-UT.1
Government of India
Ministry of Human Resource Development
Department of School Education and
Literacy
B-Wing, Ground Floor,
Shastri Bhawan
New Delhi, the 16th November, 2007
ORDER
Departmental proceedings under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, were initiated against Shri S.D. Sharma, Grade-II (DASS)/Head Clerk (Retd.), Govt. of NCT of Delhi vide Directorate of Education (Vigilance Branch), Govt. of NCT of Delhi Memo no.F.8(38)/Vig./DNG/2K/11967 dated 06.11.2000.
2. During the course of inquiry by Govt. of NCT of Delhi, Shri S.D. Sharma retired from Government service on 31.10.2002 on attaining the age of superannuation. Since the proceedings against Shri Sharma could not be completed prior to his retirement, the proceedings against him were deemed to be proceedings under Rule 9 of Central Civil Service (Pension) Rules, 1972 and were continued and concluded in the matter as if he had continued in the service.
3. Shri Bhane Ram, Principal, Govt. Boys Sr. Sec. School, Rani Bagh, Delhi was appointed as the Inquiring Officer to enquire into the articles of charges against Shri S.D. Sharma. A copy of the Inquiry Report had been made available to Shri Sharma through Administrative Officer (Vig.), Directorate of Education (Vigilance Branch), Govt. of NCT of Delhi Memorandum No.F.DE.7/(1HQ)/19/NGV/05/1899 dated 15.04.2005. Shri Sharma, made a representation on 25.05.2005.
4. The President had reached a provisional conclusion that based on the case records and other facts and circumstances relevant to this case, imposition of a penalty was warranted and, therefore, referred the case to the Union Public for their advice. The Commission vide their letter No.F.3/49/2007-SI dated 12.09.2007 (copy enclosed) communicated their advice in the case.
5. The President has carefully considered the records of the proceedings, the report of the Inquiring Authority, the representation made by Shri Sharma on the report of the Inquiry Officer and the advice of the Union Public Service Commission and held that the ends of justice would be met if a penalty of 30% cut in monthly pension (which would have been otherwise admissible) on permanent basis is imposed upon of Shri S.D. Sharma, Grade-II (DASS)/Head Clerk (Retd.), and that his gratuity, if not otherwise, may be released in full. The President orders accordingly.
(By order and in the name of the President) Sd/-
(V. Jayachandran) Director (UT).
As already stated that the aforesaid order was challenged before this Tribunal vide OA No. 2569/2008 and since the same was a bald order, without dealing with any of the contentions raised by the Applicant and without giving any reasons, this Tribunal set aside the aforesaid order of the President but with the liberty to pass a fresh order taking into consideration the various grounds and other contentions raised by the Applicant. It is in pursuance of the directions of the aforesaid order that the Respondents have now passed the fresh impugned order dated 21.02.2011. The Applicant has challenged the aforesaid OA on the following grounds:-
(i) The impugned charge memo dated 06.11.2000 itself was issued in violation of Rule 14 (3) of the CCS (CCA) Rules, 1965 which reads as under:-
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
According to the learned counsel for the Applicant, admittedly there was not a single prosecution witness to prove the charge levelled against the Applicant. In this regard, she has relied upon the judgment of the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 wherein it has been held that mere production of documents is not enough to prove the charge. The relevant part of the said judgment is as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
(ii) The impugned Memorandum of Charge dated 06.11.2000 was issued without the certified copies of the list of documents. In spite of his request dated 14.11.2000, they have not been supplied to him. Ignoring the aforesaid request and without giving him an opportunity to make his representation against the charge, the Disciplinary Authority has appointed the Enquiry Officer vide order dated 21.07.2001 and thereafter appointed the Presenting Officer vide order dated 21.08.2001. Learned counsel for the Applicant has argued the aforesaid procedure adopted by the Disciplinary Authority is in violation of Rule 14(5)(a) of the CCS (CCA) Rules, 1965 wherein it has been held that only on receipt of the written statement of defence or if no written statement of defence is submitted by the Government servant, any enquiry can be held. The learned counsel argued that the aforesaid procedure irregularly amounts to unfairness and it also shows the predetermined mind of the Disciplinary Authority. In this regard, the learned counsel for the Applicant relied upon the judgment of the of the Apex Court in the case of Kashinath Dikshita Vs. Union of India and Others 1986 (3) SCC 229 wherein it has been held as under:-
10..When a Government servant is facing a disciplinary proceedings, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defense, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible?
(iii) The Enquiry Officer has violated the provisions contained in sub-rule 18 of Rule 14 of the CCS (CCA) Rule, 1965 which provides as under:-
(18) The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
On the contrary, the Enquiry Officer put the blame on the Applicant stating that the Charged Officer has not provided any documentary proof that he was not absent w.e.f. 23.12.1993 to 01.02.2000. In this regard, the learned counsel for the Applicant has relied upon the judgment of the Apex Court in Ministry of Finance and Another Vs. S.B. Ramesh 1998 (3) SCC 227 wherein the Apex Court has upheld the following findings:-
After these proceedings on 18-6-91 the Enquiry Officer has only received the brief from the PO and then finalised the report. This shows that the Enquiry Officer has not attempted to question the applicant on the evidence appearing against him in the proceedings dated 18-6-91. Under sub-rule (18) of Rule 14 of the CCS (CCA) Rules, it is incumbent on the Enquiry authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as a witness. This mandatory provision of the CCS (CCA) Rules has been lost sight of by the Enquiry authority. The learned counsel for the respondents argued that as the inquiry itself was held ex parte as the applicant did not appear in response to notice, it was not possible for the Enquiry authority to question the applicant. This argument has no force because, on 18-6-91 when the inquiry was held for recording the evidence in support of the charge, even if the Enquiry Officer has set the applicant ex parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to particpate in the enquiry hereafter/or even if the inquiry authority did not choose to give the applicant an opportunity to cross-examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule (18) of Rule 14 of CCS (CCA) Rules. The omission to do this is a serious error committed by the enquiry authority.
(iv) In the present case, there is no valid evidence against the Applicant and this Tribunal may quash and set aside the order of the Disciplinary Authority. In this regard, the learned counsel for the Applicant has relied upon the judgment of the Apex Court in the case of Kuldeep Singh Vs. The Commissioner of Police and Others 1999 (2) SCC 10 wherein it has been held as under:-
6. It is no doubt true that the High Court under Art. 226 or this Court under Art. 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.
7. In Nand Kishore v. State of Bihar, AIR 1978 SC 1277 : (1978) 3 SCC 366 : (1978) 3 SCR 708, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and, that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.
(v) The Enquiry Officer himself has been cross-examining the Applicant in the entire proceedings. In the absence of any prosecution witness, the Enquiry Officer thoroughly questioned the Applicant and came to the conclusion that since the Applicant has not produced any documentary proof against the charge levelled against him, they are proved. In this regard, the learned counsel for the Applicant relied upon the judgment of the High Court of Kerala in S. Krishnan Nair Vs. The Divisional Superintendent (P.B.), Southern Railway and Others 1972 IILLJ 288 Ker wherein it was held as under:-
9. I will first advert to the attack made against the procedure adopted by the inquiry officer. The charge against the petitioner evidently was that he had made a statement on 12-6-1967, which contained untrue allegations about his superior. It cannot be said that there has been an admission of the charge in Ext. P-6. At any rate that is unimportant when, in Ext. P-8 the inquiry officer has asked the delinquent officer whether he denies the charge and the officer has endorsed that he denies the charge. That necessarily presupposes that the inquiry officer was going into the question of the truth or otherwise of the charge and if that be the case he cannot assume that there was an admission and so no proof was required. He has to proceed as in a case where the charge has to be proved. The admission of the petitioner at the time of the inquiry that the statement shown to him was signed by him does not prove the charge. That is because, if the petitioner's case is that he had not handed it over to anyone is accepted he cannot be found guilty since merely to write adversely about a superior officer and keep it in one's pocket cannot amount to misconduct. The inquiry officer seems to think that if the subordinate harbours ill-will against a superior officer in his mind that by itself is misconduct. That cannot be the case. It is the outward manifestation of the feelings of the person concerned against his superior officer that could be considered to be objectionable. So if there is no evidence that the statement which is said to have been written and kept by the officer has been published, in the sense handed over or conveyed to some one else, there cannot be any scope for action. There is no evidence to show that the petitioner handed over the statement to someone. I have already stated the thoroughly unsatisfactory state of affairs as to the evidence relating to the circumstances under which and the person to whom the statement is said to have been handed over. This is relevant because if the statement had been made, say, for example, to the Vigilance officer or any police officer in connection with some enquiry at their request, it cannot be said that the petitioner must, therefore, be held guilty of making a complaint against a superior officer. Therefore, the propriety of proceeding against the petitioner will depend upon the ascertainment of these facts and circumstances which in the circumstances it is not possible for want of material in support of the charge. As I have indicated earlier, the counter-affidavit also does not in any way help in this matter. This being the state of affairs, I do not think that there was any material for the first respondent to come to a decision against the petitioner on the charge framed. That would be sufficient for the purpose of this case.
10. But I do not consider it desirable to leave this matter without noticing the very irregular nature of the inquiry and the conduct of the inquiry officer which would be abhorrent to any judicial conscience. The inquiry officer has apparently misunderstood his role. He is not the prosecutor in the case. It is not his duty to somehow prove the charge. It is not for him to assume that the delinquent officer is guilty and try to bring out admissions from the delinquent officer so that the charge against him may be proved. Such an approach would apparently indicate bias on the part of the inquiry officer and so must certainly be avoided. I am referring to this because what the inquiry officer has apparently done in this case is to prepare a series of questions intended to cross-examine the petitioner with a view to bring out from him that the statement was written, signed and handed over by him, so much so, the charge stands proved. It is not an attempt at elucidation of facts by the inquiry officer. It is true that any officer holding an enquiry could put questions to the delinquent officer so as to elucidate answers from him to explain the facts appearing in the case against him. This is more for the purpose of giving the officer concerned an opportunity of explaining the case against him than to fix him with the guilt. When the inquiry officer forgets his role and instead of putting questions with a view to elucidate answers for a proper understanding of the facts before him and begins a searching cross-examination, the object of which is apparently evident, he ceases to be an inquiry officer any more and his action is liable to be attacked successfully by the officer who is prejudiced by the consequent action. I will just, in brief, refer to the cross-examination evidenced by Ext. P-9, After ascertaining whether the statement referred to earlier was given by the petitioner (to which the petitioner replied that it was written and signed by him but not given by him) the inquiry officer further questioned him as to what was the occasion for writing and signing that document. He would further ask why, if it was not given, should such a statement have been prepared. When the answer is given, the next question is an attempt to contradict the answer. The further questions are by way of cross-examination on the answers given by him by way of confrontation with contradictions. Then a reference is made to Ext. P-6 explanation and an attempt is made to show that in Ext P-6 explanation there is an admission that the charge is true. The cross-examination proceeds in this strain and I need not refer to it any further. Suffice it to say that there is nothing but the manifestation of the ingenuity of the officer in the role of a cross-examiner attempting to bring out the guilt of the person examined.
11. Any enquiry into charges against a. civil servant or any domestic enquiry into the conduct of an employee must necessarily be in conformity with rules of fair-play. It has been noticed time and again by Courts that when the officer holding the enquiry takes a role different from that of a person who is to adjudicate on the dispute impartially and without bias, he becomes disqualified and it could no longer be said that the result of the enquiry is fair. If, in such circumstances, the Court is called upon to interfere, it will only be too willing to find that there has not been a fair-deal to the person against whom the enquiry is held.
12. The Supreme Court, as early as in the decision in Meenglas Tea Estate v. Its Workmen MANU/SC/0139/1963, said thus:
The Tribunal held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The enquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him. In the present case neither was any witness examined nor was any statements made by any witness tendered in evidence. The enquiry, such as it was, was made by Mr. Marshall or Mr. Nichols who were not only in the position of Judges but also of prosecutors and witnesses. There was no opportunity to the persons charged to cross-examine them and indeed they drew upon their own knowledge of the incident and instead cross-examined the persons charged. This was such a travesty of the principles of natural justice that the Tribunal was justified in rejecting the findings and asking the company to prove the allegation against each workman de novo before it.
Justice Gajendragadkar in the decision of the Supreme Court in Associated Cement Companies Ltd. v. Their Workmen MANU/SC/0159/1963, said at page 399 thus:
It is true that domestic enquiries need not be conducted in accordance with the technical requirements of criminal trials, but they must be fairly conducted and in holding them, considerations of fair-play and natural justice must govern the conduct of the enquiry officer.
Again at page 400 the learned Judge said thus:
The other infirmity in the present proceedings flows from the fact that the enquiry has commenced with a close examination of Malak Ram himself. Some of the questions put to Malak Ram clearly sound as questions in cross-examination. It is necessary to emphasize that in domestic enquiries the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry.
These decisions of the Supreme Court have been referred to by This Court in the decision in Rajappa Menon v. Union Government 1965 K.L.T. 554. But of course, on the facts of that case, the learned Judge held that since the delinquent officer against whom the enquiry was made had given a statement in which he did not challenge the nature of the enquiry, he would be precluded from complaining later.
5. The Respondents in the reply have stated that the Applicant while working as Grade-II(DASS)/Head Clerk in the Government of NCT of Delhi, a departmental inquiry was initiated against him on the ground that he, while functioning as Grade-II(DASS)/Inspector in Food Supplies & Consumer Affairs Department Circle No.13, was transferred from Food Supplies & Consumer Affairs Department to Directorate of Education by the Services Department of Govt. of NCT of Delhi vide its order dated 10.08.1993. He was relieved of his duties by the Deputy Commissioner (Admn.), Food Supplies & Consumer Affairs Department on 14.12.1993 and was further relieved by FSO Circle No.13 with the directions to report for duty to the Directorate of Education, Old Secretariat w.e.f. 23.12.1993. The Appellant, however, did not report for duty in the Directorate of Education besides the fact that he committed departmental misconduct, inasmuch as, he failed to comply with the orders of superior officers. He also absented w.e.f. 23.12.1993 to 01.02.2000. An inquiry under Rule 14 of the CCS (CCA) Rules, 1965 was initiated vide Memo dated 06.11.2000. The charge against the petitioner was that even after having been relieved, he did not report for duty in Directorate of Education. He continued to remain absent from duty fully unauthorized w.e.f. 23.12.1993 to 01.02.2000. During the inquiry, the appellant superannuated. The Inquiry Officer vide his report dated 08.11.2004 proved the charge. The copy of the inquiry report was supplied to the appellant. The appellant submitted his representation on 25.05.2005. Since appellant had retired on attaining the age of superannuation, the proceedings under Rule 9 of CCS (Pension) Rules, 1972 continued and President was required to pass an order imposing punishment, if any. That vide letter dated 12.09.2007, the Union Public Service Commission advised a cut of 30% in pension in view of the fact that the official had absented for 7 years. Finally, vide order dated 16.11.2007, Ministry of Home Affairs passed the impugned order imposing cut of 30% in the pension. President agreed with the advice of UPSC. Aggrieved by the aforesaid order of penalty, the Applicant filed OA No.2569/2008 before the Honble CAT and the same was allowed by Honble CAT with the direction to the Competent Authority to pass a fresh order within three months. In view of the observation of the Tribunal, Ministry of HRD issued fresh order dated 21.02.2011 maintaining the penalty imposed regarding 30% cut in monthly pension on a permanent basis.
6. As far as the grounds taken by the Applicant, the reply of the Respondents was as follows:-
Para 5 and Grounds (a) to (x) are wrong and hence denied. It is submitted that appellant having failed to bring anything on record to show that his absence was authorized, the Inquiry Officer rightly found him guilty and President has rightly imposed the 30% cut in pension.
7. We have heard the learned counsel for the parties. We find merit in the various grounds on which the impugned order of the Disciplinary Authority has been challenged in the OA. We fully agree with the learned counsel for the Applicant that this is a case of no evidence. Admittedly, there was not a single prosecution witness to prove the document relied upon by the Applicant. The only reason, according to the Enquiry Officer that the charges levelled against the Applicant were proved was that the Applicant did not provide any documentary proof that he was not absent from 23.12.1993 to 01.02.2000. Instead proving the charge by adducing the evidence on behalf of the prosecution, the Enquiry Officer has left the onus of disproving the charge on the Applicant. Further, it is seen that the Disciplinary Authority did not furnish the listed document to the Applicant in spite of his representation dated 24.12.2004. Further, it is seen that the Enquiry Officer took four years to submit a report which does not contain any defence of the Applicant, assessment of evidence and findings on each charge. On the other hand, Rule 14 (23) of the CCS (CCA) Rules, 1965, provides as under:-
(23)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-
(a) the articles of charge and the statement of the imputations of misconduct or misbehaviour;
(b) the defence of the Government servant in respect of each article of charge;
(c) an assessment of the evidence in respect of each article of charge; (d) the findings on each article of charge and the reasons therefor.
EXPLANATION- If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge:
Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include :-
(a) the report prepared by it under clause (i). (b) the written statement of defence, if any, submitted by the Government servant; (c) the oral and documentary evidence produced in the course of the inquiry; (d) written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry; and (e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.
8. In our considered view, neither the Enquiry Officer nor the Disciplinary Authority was serious in holding the enquiry against the Applicant. They held it as an empty formality. Even the UPSC did not bother to see whether the enquiry was held in accordance with the Rules. They, without any application of mind, recommended cut of 30% pension and the Disciplinary Authority faithfully followed it. In the above facts and circumstances of the case, we quash and set aside the Enquiry Officers report dated 08.11.2004 and the Disciplinary Authoritys order 16.11.2007. We also order that the full pension shall be restored to Applicant forthwith. They shall also refund the withheld pension and any other terminal benefits based on the Disciplinary Authoritys order with interest at GPF rate within a period of two months from the date of receipt of a copy of this order. The Respondents shall also pass appropriate order in implementation of the aforesaid direction within the aforesaid period.
9. However, we make it clear that the aforesaid findings and directions are not in any way a reflection of this Tribunals consideration regarding the veracity or otherwise of the charge that the Applicant remained absent from duty with effect from 23.12.1993 to 01.02.2000.
10. No order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh