Central Administrative Tribunal - Delhi
Shri V.K. Kapoor vs Central Board Of Secondary Education on 10 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH T.A. No. 06/2010 Reserved On:27.10.2014 Pronounced on:10.11.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri V.K. Kapoor S/o Shri Sat Prakash Kapoor R/o 356, Sector-A, Pocket-C, Vasant Kunj, New Delhi-110070. Applicant By Advocate: Shri S.K. Gupta. Versus 1. Central Board of Secondary Education Through its Secretary/Chairman, Shiksha Kendra, 2 Community Centre, Preet Vihar, Delhi-110092. 2. The Union of India Through its Secretary, Ministry of Human Resources, Development & Education, New Delhi. ..Respondents By Advocate: Ms. Manisha Garg. ORDER
G. Geroge Paracken, Member(J) This case was originally filed as Suit No.119/2003 before the Court of Senior Civil Judge, Delhi. As the subject matter of the suit was Service and the jurisdiction to decide such matter rests with this Tribunal, the Civil Court transferred this case to this Tribunal vide order dated 24.12.209 and it was registered as T.A. No.6/2010. The grievance of the Applicant in this case is against the orders passed in disciplinary proceedings against him which culminated in the imposition of penalty of compulsory retirement from service.
2. Brief facts: The Respondent-Central Board of Secondary Education (CBSE for short), vide Memorandum dated 28.08.1998, initiated disciplinary proceedings against the Applicant under Rule 9.12 of CBSE Service Rules, 1985 read with corresponding provisions in CCS (CCA) Rules, 1965. The statement of Articles of Charges framed against him were as under:-
ARTICLE-I:
That the said Shri V.K. Kapoor, while functioning as Assistant Secretary in the Regional Office, Delhi, CBSE, during the year 1998, committed grave misconduct by submitting a joint application dated 14.05.1998 along with Shri Sudhir Kumar Sharma, Section Officer to the Chairman, CBSE that they were allegedly threatened by Shri Dharamveer, Assistant, CBSE, and further stated if no action was taken against Shri Dharamveer by 19.05.1998, they would go on hunger strike in the court-yard of the H.Qr. building w.e.f. 20.05.1998, which was in violation of the Conduct Rules applicable to the Boards employees.
It is, therefore, construed that by his above mentioned misconduct Shri V.K. Kapoor, Assistant Secretary failed to maintain devotion to duty and behaved in a manner unbecoming of a Boards employee, thereby violating the provisions of Rules 7.2, 7.3 and 7.20 of CBSE Service Rules, 1985.
ARTICLE-II:
That during the aforesaid period and while functioning in the aforesaid office, the said Shri V.K. Kapoor committed grave misconduct and misbehaviour with Prof. B.P. Khandelwal, Chairman, CBSE, Shri S.C. Gupta, Secretary, CBSE and Shri Shashi Bhushan, Deputy Secretary (V&A) at about 3.00 PM on 26.06.1998 in the chamber of the Chairman, CBSE on 2nd floor, Shiksha Kendra, 2, Community, Centre, Preet Vihar, Delhi-110092 by barging into the chamber of the Chairman unauthorisedly and without permission and shouting at the aforesaid officers using absurd, filthy and unparliamentary language without any provocation in presence of a number of employees working in the personal staff of the Chairman and others listed as witnesses in Annexure-IV of the memo of charges. By his above conduct, Shri Kapoor obstructed the normal discharge of duties by the aforesaid officers; tried to intimidate them and put them under wrongful confinement which are serious offences.
It is, therefore, alleged that by his above mentioned grave misconduct, Shri V.K. Kapoor, Assistant Secretary failed to maintain devotion to duty and behaved in a manner unbecoming of a Boards employee, thereby violating the provisions of Rules 7.2 & 7.3 of CBSE Service Rules, 1985.
ARTICLE-III :
That during the aforesaid period and while functioning in the aforesaid office the said Shri V.K. Kapoor committed grave misconduct and misbehaviour with Prof. B.P. Khandelwal, Chairman, CBSE at about 10.45 A.M. on 29.6.1998 in his chamber on 2nd floor, Shiksha Kendra, 2, Community Centre, Preet Vihar, Delhi-110092 by entering his chamber unauthorisedly and without permission and shouting at the aforesaid officer and putting off his clothes including his undergarments, thereby becoming nude, and sitting on the floor in his chamber and crying at the top of his voice in presence of a number of employees working in the personal staff of the Chairman and others listed as witnesses in Annexure-IV of the memo of charges. By his above conduct, the aforesaid Shri V.K. Kapoor obstructed the normal discharge of duties by the aforesaid officer namely Prof. B.P. Khandelwal, Chairman, CBSE and intimated him as well as put him under confinement, which are serious offences.
It is, therefore, alleged that by his above mentioned grave misconduct, Shri V.K. Kapoor, Assistant Secretary failed to maintain devotion to duty and behaved in a manner unbecoming of a Boards employee, thereby violating the provisions of Rules 7.2 & 7.3 of CBSE Service Rules, 1985.
ARTICLE-IV:
That during the aforesaid period and while functioning in the aforesaid office, the said Shri V.K. Kapoor committed grave misconduct and misbehaviour by entering room No.304 of Shri Shashi Bhushan, Deputy Secretary (V.&A.) at about 9.45 A.M. on 3.7.1998 and shouting at the top of his voice using absurd, filthy and unparliamentary language against the Chairman, Secretary and Deputy Secretary (V.&A.) in presence of Shri Y.R. Sachdeva, Assistant Secretary (Admn.I). By his above conduct, Shri V.K. Kapoor clearly obstructed the normal discharge of duties by the aforesaid officers; tried to intimidate them and put them under confinement, which are serious offences.
It is, therefore, alleged that by his above mentioned grave misconduct, Shri V.K. Kapoor, Assistant Secretary failed to maintain devotion to duty and behaved in a manner unbecoming of a Boards employee, thereby violating the provisions of Rules 7.2 & 7.3 of CBSE Service Rules, 1985.
3. The list of documents and list of witnesses by which/whom the aforesaid Articles of Charges were proposed to be proved were as under:-
List of Documents
1. The joint application of Shri V.K. Kapoor, Assistant Secretary & Shri Sudhir Kumar Sharma, Section Officer (R.&I.), Regional Office, Delhi dated 14.5.1998 addressed to the Chairman, CBSE.
2. The transfer order No.Admn.I/CBSE/98/6690-99 dated 26.6.1998.
List of Witnesses
1. Prof. B.P. Khandelwal, Chairman, CBSE, Preet Vihar, Delhi-110092.
2. Shri S.C. Gupta, Secretary, CBSE, Preet Vihar, Delhi-110092.
3. Shri Shashi Bhushan, Deputy Secretary (V.&A.), CBSE, Preet Vihar, Delhi-110092.
4. Shri Sukh Daqyal, Deputy Secretary (Admn.III), CBSE, Preet Vihar, Delhi-110092.
5. Shri S.P. Sethi, Deputy Secretary (Admn.II), CBSE, Preet Vihar, Delhi-110092.
6. Shri Y.R. Sachdeva, Assistant Secretary (Admn.I), CBSE, Preet Vihar, Delhi-110092.
7. Shri V. Vishwanadham, A.P.R.O., CBSE, Preet Vihar, Delhi-110092.
8. Shri M.K. Arora, PS to Chairman, CBSE, Preet Vihar, Delhi-110092.
9. Shri Shekhar Chandra, Steno to Chairman, CBSE, Preet Vihar, Delhi-110092.
10. Shri Pradeep Kumar, Peon in the office of the Chairman, CBSE, Preet Vihar, Delhi-110092.
11. Shri Jai Sagar Mehto, Peon in the office of the Chairman, CBSE, Preet Vihar, Delhi-110092.
4. A detailed enquiry was held in the matter and the Inquiry Officer submitted his report dated Nil. As far as first Article of Charge is concerned, the Inquiry Officer gave the benefit of doubt to the Applicant and held only he should have been more discrete in signing the representation made by his subordinate. As far as the second Article of Charge is concerned, the Inquiry Officer held that parts of charge relating to the barging into the room of the Chairman by the CO on 26.06.1998 and creating of unruly scene in the room of the Secretary on 29.06.1998 in the evening by the CO are fully proved but that part relating to shouting of slogans and lying down before the Chairmans car by the CO has not been fully proved. As far as third and fourth Articles of Charge are concerned, the Inquiry Officer held that they were fully proved as they were severe.
5. A copy of the aforesaid report was furnished to the Applicant to enable him to make a representation, if any, against the same. Accordingly, he made a representation against the said report on 09.01.2000 and the Disciplinary Authority vide its order dated 05.11.2001, imposed upon him the penalty of compulsory retirement from service from the date of receipt of the said order. Applicant made an appeal against the said order on 13.01.2002. However, the Appellate Authority, vide its order dated 07.08.2002, rejected it and held that the penalty imposed upon him by the Disciplinary Authority was adequate and justified.
6. The Applicant filed Suit No.119/2003 (supra) challenging the aforesaid findings of the Inquiry Officer and orders of the Disciplinary as well as Appellate Authorities on the ground that the Disciplinary Authority framed the charge against him in violation of sub-rules (2), (3) and (4) of Rule 14 of the CCS (CCA) Rules, 1965 which reads as under:-
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
XXX XXX XXX (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. XXX XXX XXX
(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
His contention is that it was Shri B.P. Khandelwal, the then Chairman of CBSE who was his Disciplinary Authority as well as one of the prosecution witness who decided to initiate major penalty proceedings against him for his alleged grave misconduct. In this regard, he relied upon the notings obtained by him under Right to Information Act, 2005 dated 3.7.1997 in which the aforesaid Disciplinary Authority has held that the Applicant failed to keep his mental balance, his presence in the office and he would cause more grave incidents and he seriously needs medical check-up by the Medical Board, his entry in the office must be restrained till he is cleared by the Board. The Applicant has also stated that Shri Shashi Bhushan, Deputy Secretary, CBSE was yet another witness in the case and he was the officer who drafted the Memo of Charges against him and placed before the Secretary, Department of Education who in turn observed that till the Chairman, CBSE himself is aggrieved party, the charge sheet should be served by another authority lest it should be treated as ab initio void and it is in the fitness of thing to request the controlling authority to appoint some competent officer of the Ministry of Human Resource Development to take charge of the case and to initiate disciplinary proceedings against him. The Chairman, CBSE referred the file back to the Education Secretary to nominate an ad hoc Disciplinary Authority in the matter. Accordingly, Shri Jawahar Srivastava, Deputy Secretary (Scholarships) in the Ministry of HRD was entrusted with the disciplinary proceedings. It was thereafter that the charge which has been drafted by Shri Shashi Bhushan was singed by Shri Jawahar Srivastava.
7. The contention of the learned counsel for the Applicant is that the Chairman, CBSE, Shri B.P. Khandelwal being the aggrieved party and a witness in the matter, could not have decided to initiate disciplinary proceedings against the Applicant and directed a subordinate officer to draft the Articles of Charges. Further, his submission is that the ad hoc Disciplinary Authority has only simply signed the draft charges and issued the same without any application of mind. In this regard, the Applicant has relied upon the following judgments of the Apex Court:-
(i) Rattan Lal Sharma VS. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Others 1993 (4) SCC 10.
(2) Chairman-cum-M.D. Coal India Limited and Others vs. Ananta Saha & Others JT 2011 (4) SC 252.
(3) Union of India and Others Vs. B.V. Gopinath & Others JT 2013 (12) SC 392.
In its judgment in Rattan Lal Sharma (supra), the Apex Court held that the deciding authority must be impartial and without bias. The judgment in the case of Secretary to Govt. Transport Dept. v. Munuswamy, 1988 (Suppl) SCC 651 was referred to in the said judgment wherein it has been held that a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Further, it was held that no man shall be a judge in his own cause and personal bias is one of the three major limbs of bias, others being pecuniary bias and official bias. The relevant part of the said judgment reads as under:-
9. In Administrative Law, Rules of natural justice are foundational and fundamental concepts and law is now well settled that the principles of naturaI justice are part of the legal and judicial procedures.
One of the cardinal principles of natural justice is: 'Nemo debet esse judex in propria causa' (No man shall be a judge in his own cause). The deciding authority must be impartial and without bias. It has been held by this Court in Secretary to Govt. Transport Dept. v. Munuswamy, 1988 (Suppl) SCC 651: (AIR 1988 SC 2232), that a predisposition to decide for or against one party without proper regard to the true mertis of the dispute is bias. Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias. A classic case of personal bias was revealed in the decision of this Court in State of U. P. v. Mohd. Nooh, 1958 SCR 595: (AIR 1958 SC 86). In the said case, a departmental enquiry was held against an employee. One of the witnesses against the employee turned hostile. The officer holding the enquiry then left the enquiry, gave evidence against the employee and thereafter resumed to complete the enquiry and passed the order of dismissal. This Court quashed the order of dismissal by holding inter alia that the rules of natural justice were grievously violated."
In its judgment in the case of Chairman-cum-MD, Coal India Ltd. & Others (supra), the Apex Court held that Plea by delinquent that at the time of his initial appointment, the CMD,CIL was the competent authority to initiate disciplinary proceedings and subsequent amendment in rules would not be applicable. Admittedly the delinquent has been an officer in E-2 Grade and has been posted in Subsidiary Company i.e. ECL. There is no doubt that in terms Rules 27 and 28 the disciplinary proceedings could be initiated by the CMD,CIL or by the CMD of ECL. As the delinquent was working in ECL Subsidiary Company, the High Court erred in holding that the CMD of ECL was not competent to initiate the proceedings. The relevant part of the said order reads as under:-
30. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.
XXX XXX XXX
32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
In B.V. Gopinath and Others (supra), the Apex Court held as under:-
Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.
8. The Respondents have filed their reply. The learned counsel for the Respondents Ms. Manisha Garg has submitted that the contention that the draft charge framed by Shri Shashi Bhushan who is one of the witnesses was different from the final draft charge issued by the ad hoc Disciplinary Authority. She has also submitted that it is a well settled law that a charge sheet can be drawn by an authority subordinate than the Disciplinary Authority. However, in the present case the ad hoc Disciplinary Authority has applied and only then, the Articles of Charges have been issued. The learned counsel for the Respondents has also submitted that the Appellate Authority has considered all the objections raised by the Applicant and passed a speaking order rejecting the appeal. The relevant part of the said order reads as under:-
a) The charge sheet was not approved by the Chairman, CBSE, but was forwarded through him to the ad-hoc disciplinary authority for approval. Formulation of a draft charge sheet by the Chairman, CBSE who was a complainant and material witness in the case and its approval by the ad-hoc authority of the same charge sheet without alteration cannot be presumed to have been done without application of mind. Alterations or modifications are done whenever and wherever needed, not only for the sake of providing proof of application of mind. However a cursory glance at the draft charge-sheet shows that several alterations and modifications have been done.
b) The Inquiry Officer was not pre-determined by the CBSE and later concurred to by the ad-hoc disciplinary authority. He was chosen among a number of names suggested by the Assistant appointed to help the ad-hoc disciplinary authority. These names were not screened or suggested by the Chairman, CBSE or any other material witness.
c) It is difficult to understand how it can be inferred that the Inquiry Officer was inclined towards favouring the prosecution when he ordered for an adjournment of three weeks on the request of the defence. Shri Kapoor would have had a legitimate complaint if no adjournment had been granted or a short adjournment had been ordered.
d) The procedure of hearing and cross-examination is provided under Rule 14 of the CCA Rules. It is also clear that a copy of the oral statement of witnesses recorded from day to day in departmental inquiry should be furnished to the delinquent officer by the Inquiry Officer at the close of the days proceedings and at least three days before the delinquent officer himself is called upon to make his statement. There is thus no need as per rules of making the statement available before the hearing per se but only before the delinquent official himself is called upon to make his statement. It is also not a practice to give adjournments for cross-examination of witnesses. In the instant case there is thus no violation of the rules.
e) The allegation that while typing, certain portions were conveniently added or omitted does not seem to be borne out by the record. An examination of the order sheet dated 19-3-99 clearly states that the Assistant (A & V) had only pointed out typographical error after the statement was recorded and this had not affected adversely the interest of the CO as the witness himself stated on verification at the time of the proceedings itself.
f) The assumption that the Presenting Officer was false in stating that statement of witnesses have not been recorded when the statement of Chairman, CBSE and the Deputy Secretary, CBSE were available on the notings on the CBSE files is clearly based on a mis-understanding of the procedure. The Presenting Officer while stating the above was referring to the fact that before the commencement of the disciplinary proceedings no statement of witnesses had been recorded. The statements referred to by Shri Kapoor were internal documents which cannot be termed as statements recorded during inquiry.
g) As far as the allegations of allowing the witnesses to refresh their memory and thereby making the cross-examination totally ineffective is concerned, it may be stated that this does not vitiate the proceedings. Infact, as per rules, earlier written statements given by the witness may be read out to him and he may be specifically questioned whether he admits the same or not and if he does so, the statement may be marked as an Exhibit and the CO asked to proceed with the cross-examination (Chapter 11 Sl. No.6 Swamys Compilation). A perusal of the cross-examination of Shri Jai Shekhar Mehto does not reveal any infirmity.
h) As recorded earlier, there is no provision for providing statement of witnesses to the defence before cross examination. What is required to be provided is a copy of the day to day proceedings of the inquiry.
i) Absence of a formal order by the Controlling Authority of the CBSE cancelling the appointment of Shri Srivastava as ad-hoc disciplinary authority is not a substantive lacuna since vide letter No.F. No.1-43/98-Sch. 3 dated 22nd August, 2000 of MHRD to the Chairman, CBSE the decision of the Controlling Authority was clearly communicated that since the former Chairman had left the organisation, the present Chairman CBSE, who is the disciplinary authority in the case of officers of the rank of Assistant Secretary in the CBSE, may take further appropriate necessary action in this case.
j) The provision for communicating the orders made by the Disciplinary Authority to the charged officer and supply of a copy of a report of inquiry has now been amended and as per Rule 15.1A of the CCS (CCA) Rules, 1965, the Disciplinary Authority shall forward a copy of the report of the Inquiring authority to the charged officer. The order made by the disciplinary authority thus need not be communicated at that stage.
k) In view of the letter referred to under sl. No. i) the contention of the charged officer that the penalty order has been passed by Chairman, CBSE not in his capacity as disciplinary authority, but as Chairman, CBSE, is not acceptable.
l) The Chairman, CBSE has made a mention in his order at Para 2.2 of the typographical error in the report of the Inquiry Officer wherein the date of the incident was erroneously typed as 29-6-98 instead of 26.6.98. I have no reason to dis-agree with the observation of the Chairman of the CBSE that this error does not negate the inferences of the Inquiry Officer. It may be mentioned here that bona-fide mistakes are to be corrected when brought to notice. The appointment of the ad-hoc disciplinary authority was not illegal, but in the interest of justice to ensure that the proceedings were conducted in a fair, just and transparent manner.
9. Learned counsel for the Respondents has also submitted that no prejudice has been caused to the Applicant by the action of the Disciplinary Authority as well as the ad hoc Disciplinary Authority in the matter.
10. We have heard the learned counsel for the Applicant Shri S.K. Gupta and the learned counsel for the Respondents Ms. Manisha Garg. The main argument of the learned counsel for the Applicant is that the initiation of the Articles of Charges against him, the proceedings held by the Enquiry Officer and orders of the Disciplinary and Appellate Authority are all against the principles of natural justice. However, we have gone through the entire documents on record. It is seen that the Disciplinary Authority of the Applicant, Prof. B.P. Khandelwal, the then Chairman, CBSE and the two officers working under him, namely, Shri S.C. Gupta, Secretary and Shri Shashi Bhushan, Deputy Secretary were the aggrieved parties (complainant) and the prosecution witnesses in the disciplinary proceedings initiated against the Applicant. It was one of those witnesses, Shri Shashi Bhushan had drawn charge sheet against the Applicant at the instance of the Disciplinary Authority, Prof. Khandelwal. However, in view of the fact that he was a material witness and he was also the Disciplinary Authority, the entire file pertaining to misbehaviour and misconduct of the Applicant was sent to the Education Secretary, Ministry of Human Resource Development and the controlling authority of the Disciplinary Authority to appoint an ad hoc Disciplinary Authority. Accordingly, the controlling authority vide order dated 17.08.1998 appointed Shri Jawahar Srivastava, Deputy Secretary in the said Ministry to be the ad hoc Disciplinary Authority. Thereafter, the Applicant was served with the charge sheet dated 28.08.1998. Even though the said charge was basically the one drafted earlier, we find that the ad hoc Disciplinary Authority has applied its mind and made appropriate corrections/changes. As the Applicant has denied the charges, Shri V.P. Suri, former Director of Education was appointed as the Enquiry Officer. Thereafter, the Enquiry Officer held the enquiry proceedings and submitted his report holding that the charges against the Applicant have been proved. A copy of the said report was furnished to the Applicant and he filed his representation against it. Both the aforesaid report and representation were considered by the ad hoc Disciplinary Authority. Meanwhile, Prof. Khandelwal left CBSE and Shri Ashok Ganguli was appointed as the Chairman and he was allowed to function as the Disciplinary Authority in consultation with the controlling authority. Thereafter, the new Disciplinary Authority vide its order dated 05.11.2001 imposed the major penalty of compulsory retirement from service upon the Applicant. The Applicant filed appeal dated 13.01.2002 against the said order but the Appellate Authority rejected it vide order dated 11.08.2002. The contention of the Applicants counsel that the procedure adopted by the authorities in the enquiry proceedings was in violation of sub-rule (2), (3) and (4) of Rule 14 of the CCS (CCA) Rules, 1965 which have been made applicable to the employees of Respondent No.1 is not correct. In this regard, it is to be kept in mind that the Disciplinary Authority of the Applicant was a complainant as well as a witness against the Applicant. Accordingly, the controlling authority of the Disciplinary Authority has appointed an ad hoc Disciplinary Authority and the charge drawn against the Applicant was sent to him for consideration. It was thereafter, the ad hoc Disciplinary Authority has issued the Memorandum of Charge to the Applicant. Therefore, it cannot be said that the ad hoc Disciplinary Authority has not applied its mind before issuing the charges. Thereafter, it was the ad hoc Disciplinary Authority which has appointed Shri V.P. Suri, a former Director of Education as the Enquiry Officer to enquiry into the charges against the Applicant. The Presenting Officer was Shri B.R. Gupta, a Joint Secretary in CBSE. The Applicant has not given any valid reasons to doubt about their impartiality or fairness in holding the enquiry. The Applicant also had appointed his choice Defence Assistant Shri A.K. Roy. After a very detailed enquiry in the matter, the Enquiry Officer held that the first Charge that the Applicant had submitted a joint representation to the Chairman, CBSE in violation of the rules was not proved. As regards the second Charge that on 26.06.1998, the Applicant barged into the room of the Chairman and shouted at the top of his voice against the Chairman and the Deputy Secretary, threatened to sit on dharna and commit self-immolation etc. using absurd, filthy and unparliamentary language without provocation is concerned, the Enquiry Officer concluded that the parts relating to the barging into the room of the Chairman by the CO on 26.06.1998 and creating of unruly scene in the room of the Secretary on 29.06.1998 in the evening by the CO are fully proved but that part relating to shouting of slogans and lying down before the Chairmans car by the CO has not been proved fully. Again, the Enquiry Officer concluded that the 3rd Charge that the Applicant again barged in the chamber of the Chairman on 29.06.1998 and the 4th Charge that he entered the room of Shri Shashi Bhushan, Deputy Secretary on 03.07.1998 and shouted at the top of his voice and threatened that if his transfer order was not cancelled within one hour, he would teach the entire administration a lesson which they would not be able to forget in their whole life, have also been proved during the enquiry. A copy of the aforesaid report was furnished to the Applicant and he availed himself of the opportunity to make a representation against it. By that time, Shri Khandelwal has demitted his office and Shri Ashok Ganguli joined as the new Chairman of CBSE. Thereafter, he took over the duties and responsibilities of the Disciplinary Authority and imposed the penalty of compulsory retirement from service vide order dated 05.11.2001. The Applicant has also filed the statutory appeal against the aforesaid order and the Appellate Authority duly considered it and thereafter rejected the appeal. Hence, the order dated 05.11.2001 compulsorily retiring the Applicant from service became final.
11. As regards the contention of the Applicants counsel that the enquiry proceedings are held in violation of the principle of natural justice, we do not find any merit in it, in the facts and circumstances of the case. The charges against the Applicant were proved in an enquiry where the Applicant was given all the opportunities to rebut them. Therefore, there is no question of any prejudice caused to him. The Apex Court in its judgment in State Bank of Patiala and Others Vs. S.K. Sharma 1996 (3) SCC 364 held as under:-
33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and not adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing." (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
In N.K. Prasada Vs. Government of India and Others 2004 (6) SCC 299, the Supreme Court held as under:-
"29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby."
12. In the above facts and circumstances of the case, we do not find any merit in this OA and accordingly the same is dismissed. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh