Central Administrative Tribunal - Delhi
Chhedi Lal vs Union Of India Through on 26 February, 2009
Central Administrative Tribunal Principal Bench OA No.1377/2008 MA No.139/2009 New Delhi this the 26th day of February 2009. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Chhedi Lal, Commissioner of Income Tax (Appeal)-XXI, F-301, Vikas Bhawan, New Delhi. -Applicant (By Senior Counsel Shri P.P. Khurana with Shri Kamal Khurana, Advocate) -Versus- 1. Union of India through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi. 2. Chairman, Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, North Block, New Delhi. 3. Mr. Arvind Shankar, Commissioner of Income Tax-V, Ahmedabad-5, Room No.127, Narayan Chamber, Ashram Road, Ahmedabad-5. -Respondents (By Advocate Shri R.N. Singh) O R D E R (ORAL) Mr. Shanker Raju, Honble Member (J):
Applicant, a Commissioner of Income Tax, by virtue of this OA impugns memorandum for a major penalty issued under Rule 14 of the CCS (CCA) Rules, 1965 on 23.5.2006, 29.5.2006 as well as an order passed on 13.3.2008, whereby the President of India being the disciplinary authority (DA) appointed an enquiry officer (EO). By way of an interim order passed on 8.7.2008 further proceedings have been stayed in the disciplinary proceedings. There has been a stay of further disciplinary proceedings, which has been continued till date.
2. Applicant, who has been issued a chargesheet for major penalty proceedings vide memo dated 24.10.2002, challenged the same in OA-553/2003 before the Ahmedabad Bench of the Tribunal, which was disposed of on 3.3.2005 giving liberty to the applicant to assail the orders and take up all the grounds. The enquiry was initiated against applicant in 2002 on the allegations that the assessment was done in contravention of rules, where the EO exonerated the applicant. This has been disagreed to by the DA on 1.7.2005 and till date no final decision has been arrived at. As a result thereof, an order passed was challenged in OA-2770/2002, which was disposed of on 8.9.2004 with a direction to the respondents to hold review DPC and consider the claim of applicant. Accordingly, the applicant was promoted from Additional Commissioner of Income Tax to regular Commissioner of Income Tax.
3. A chargesheet was issued to the applicant on 23.5.2006 on the following articles of charge:
Article of charge-I That the said Shri Chhedi Lal, while functioning as JCIT Special Range, Rajkot during FY 1996-97 and 1997-98, displayed gross negligence with malafide intent while handling block assessment proceedings (1985-86 to 1995-96) in the case of M/s Rubicon Industries Ltd. by accepting the retraction of earlier disclosure of about Rs.40 lac and ignoring evidence of the seized document A-1, which contained summary of bogus billing for a specific period and without recording the statement of Shri Anil Singhvi, who apparently retracted from the earlier disclosure By his aforesaid acts, Shri Chhedi Lal has, therefore, failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant, thereby violating the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct), Rules 1964.
Article of charge-II That the said Shri Chhedi Lal, while functioning as JCIT Special Range, Rajkot during FY 1996-97 and 1997-98, displayed gross negligence with malafide intent in handling scrutiny assessment in M/s Hathi Chemical, Porbander for the block period (1985-86 to 12.10.1995) by accepting a revised inventory of stock furnished by the assessee in utter disregard of the appraisal report and subsequent communication of the ADIT during assessment proceedings conveying that the assessee should not have any ground for grievance when he himself had agreed to volumetric measurement for value of inventory. The reasons advanced by Shri Lal for accepting the revised inventory are for from reasonable.
By his aforesaid acts, Shri Chhedi Lal has, therefore, failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant, thereby violating the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct), Rules 1964.
Article of charge III That the said Shri Chhedi Lal, while functioning as JCIT Special Range, Rajkot during Fyrs. 1996-97 and 1997-98, displayed gross negligence with malafide intent in handling block assessment proceedings in Maganlal Popatlal Prajapati, Prop. M/s Mandlik Brothers, Gondal in as much as the fact that the return of undisclosed income was less than the income disclosed in the course of search proceedings escaped his notice.
By his aforesaid acts, Shri Chhedi Lal has, therefore, failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant, thereby violating the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct), Rules 1964.
Article of charge IV That the said Shri Chhedi Lal, during his tenure as JCIT, Spl Range, Rajkot in the F.Yrs. 1996-97 and 1997-98, completed the scrutiny proceedings in M/s Ajanta Electronics Pvt. Ltd., Morvi for A.Y. 1995-96 in undue haste although expiry of limitation was one year away. He not only allowed excess deduction u/s 80HHC, but he also failed to verify the unsecured loan of Rs.28 crore, share capital of Rs.50 lakh and capitalisation of assets of Rs.22 lakh in the first year of the assessee company, thereby conferring under benefit to the assessee, with ulterior motive.
By his aforesaid acts, Shri Chhedi Lal has, therefore, failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant, thereby violating the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct), Rules 1964.
Article of charge-V That the said Shri Chhedi Lal while functioning as JCIT, Spl Range, Rajkot during the F.Yrs. 1996-97 and 1997-98, displayed casual approach in handling scrutiny assessment in the case of M/s Austin Engineering Co. Ltd. for AY. 1994-95 by allowing excess claim of deduction u/s 80HH and u/s 801. Receipt for insurance claim on damages for machinery imported enclosed by the assessee itself indicated that total receipts included receipts otherwise than from business operation.
By his aforesaid acts, Shri Chhedi Lal has, therefore, failed to maintain absolute integrity, devotion to duty and exhibited conduct unbecoming of a Government servant, thereby violating the provisions of Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the CCS (Conduct), Rules 1964.
4. The above chargesheet has been challenged by Shri P.P. Khurana, learned senior Counsel, appearing for the applicant along with Shri Kamal Khurana during the course of proceedings has by way of MA-139/2009 raised an additional ground that the chargesheet served upon applicant has not been approved by the competent authority, i.e., the concerned Finance Minister.
5. Shri P.P. Khurna states that while a similar chargesheet was issued to one Shri Vijay Khanna who was approving authority and Commissioner of Income Tax at the time when the applicant was an additional Commissioner has not only approved initiation of assessment but the assessment orders, the chargesheet against him has been set aside on the ground of the allegations being levelled on the basis of anonymous and pseudonymous complaint by an order passed in OA-2698/2004 dated 20.7.2005 and the aforesaid decision when carried by the respondents before the Delhi High Court was upheld in W.P. (C) No.507/2007 by an order passed on 22.1.2007. Learned counsel would contend that applicant is identically situated with Shri Vijay Kumar as in his case the anonymous complaints were verified and thereafter an enquiry was initiated and the same has been in the case of applicant, as admitted by the respondents in their reply to para 4 xvi and para 4 xxvi it is also stated that the aforesaid plea when taken in ground 5 (O) the contention of applicant being similarly circumstanced is reiterated. In the above view of the matter, it is stated that being contrary to law the chargesheet has to be set aside.
6. Learned counsel would also contend that while the competent authority, i.e., Minister of Finance to whom as per the Transaction of Business Rules the powers have been delegated by the President having only approved initiation of disciplinary proceedings but no approval of the competent authority has been sought to the chargesheet issued the same gets vitiated in the light of the decision of the coordinate Bench in S.K. Srivastava v. Union of India & Ors., OA No.1434/2008 decided on 18.12.2008.
7. Learned counsel would also contend that in response to the memorandum the applicant on 12.6.2006 filed his reply to the chargesheet as his written statement where as the allegations pertained to 10 years in the past without giving any defence contention relevant documents have been sought, including assessment in respect of five firms in which applicant has been alleged to have committed misconduct, which were forming part of the record, yet without giving any document when the applicant has reserved his right to file a detailed written statement of defence and without considering the defence statement an EO has been appointed, which not only contravenes Rule 14 (4) of the CCS (CCA) Rules, 1965 but also is in contravention of the decision of the Apex Court in State of Punjab v. V.K. Khanna, (2001) 2 SCC 330. Learned counsel would also raise the issue of inordinate and unexplained delay in serving the chargesheet to the applicant as well as splitting of the charges. In this regard, it is stated that assuming the contention of the respondents as correct pertaining to the assessment upto the year 1998 in 2002 the applicant was issued an explanatory memorandum and on reply thereof in 2002 itself there has been an inordinate and unexplained delay, each day of about 4 years in issuing the chargesheet, which has prejudiced the applicant as at this remotest point of time no defence is available with the applicant and it is difficult to recapitulate the same, which has vitiated the enquiry in view of the decision of the Apex Court in P.V. Mahadevan v. M.D. T.N. Housing Board, (2005) 6 SCC 636.
8. Learned counsel would also state that the applicant was performing quasi-judicial functions and the assessment not being challenged by the Income Tax Department in appeal the remedy of which was open to them the case of applicant is only of either an error of judgment or a negligence without any culpability, as such even assuming the law in K.K. Dhawan v. Union of India, 1993 (2) SCC 56, where, in none of the exceptions carved out, his case is covered, as the charge of undue benefit to the assessee with ulterior motive has not been explained in any manner in the imputation and as this is only an administrative lapse, as a quasi-judicial authority, enquiry cannot be initiated against the applicant. It is also stated that in case of delay, each case has to be considered in its circumstances and as there is no specific charge levelled and extraneous matter has been considered a protracted enquiry where no reasonable explanation is tendered, the enquiry is liable to be set aside, for which the decision of the Apex Court in Ramesh Chander Singh v. High Court of Allahabad & Anr., CA No.2015 of 2006, decided on 26.2.2007 by a three-Judge Bench has been relied upon.
9. On the other hand, learned counsel of respondents Shri R.N. Singh, vehemently opposed the contentions and stated that in the decision of the Apex Court in V.K. Khanna (supra) all other raised issues were not found favoured with and only on the CVC guidelines the enquiry on anonymous complaint was set aside. It is stated that in Vijay Khannas case (supra) a recent decision in Union of India v. L.K. Puri, by a Division Bench of the Honble Court dated 4.7.2008, reported in 151 (2008) DLT 669 (DB) it is held that OM of 29.8.2000 of Central Vigilance is only regulatory and as such one is not entitled to CVCs advice. Accordingly, it is stated that on the basis of the decision of the Apex Court in C.C.M. v. G. Ratnam, JT 2007 (10) SC 378 violation of CVCs guidelines would not make the enquiry illegal. The learned counsel has also relied upon the following decisions to buttress his plea:
i) Union of India and others v. Upendra Singh, (1994) 3 SCC 357.
ii) Union of India and another v. Kunisetty Satyanarayana, (2006) 12 SCC 28.
iii) Municipal Corporation of Delhi & Anr. v. R.V. Bansal, LPA NO.505/2004, decided on 3.3.2006.
iv) Dy. Inspector General of Police v. K.S. Swaminathan, (1996) 11 SCC 498.
v) State of Punjab & others v. Ajit Singh, (1997) 11 SCC 368.
vi) Bal Krishan v. Food Corporation of India, CWP No.4714/2002 decided on 13.9.2002 (P&H).
vii) B.D. Luthra v. Chairman & Managing Director, Punjab National Bank, 2004 V AD (Delhi) 229.
viii) Dal Singh v. Union of India & Ors., (OA No.340/2008), decided on 7.7.2008.
10. The learned counsel would also contend that in the matter of the additional grounds raised for which no pleadings have been taken in the OA, the same cannot be raised. However, reply to the MA filed by applicant raising additional grounds was filed wherein it is stated that as per Rule 3 of the Transaction of Business Rules it is competent for the Minister to delegate its functions to the Secretary and Finance Minister has given its approval to initiate disciplinary proceedings does not require later on. Authentication of orders Rules, 1958 were relied upon to contend that as per para 40 it would be sufficient if Ministers orders are taken up for taking action ancillary to the issue of chargesheet. However, formal orders of Minister should be obtained at the stage of passing the final orders. Administrative set up of the Government is also shown to substantiate his plea.
11. Learned counsel at one stage states that it is not open for the applicant to approbate and reprobate simultaneously. It is stated that if the case of Vijay Khanna (supra) has been relied upon it is to be relied upon by applicant in its entirety where all other issues have been raised.
12. Shri Singh states that at the stage of Rule 14 (4) written statement of defence is sought only for the purpose of admission and denial of the charges and the stage to seek documents and inspection is after the EO was appointed as per Rule 21.2 of the Vigilance Manual. Learned counsel would also contend that decision in S.K. Srivastava (supra) is distinguishable as it is per incuriam of the statutory provisions, as reflected by the learned counsel in his reply to the MA.
13. Preliminary objections have been raised, by relying upon several decisions, to contend that at the interlocutory stage of the issue of the chargesheet unless the chargesheet is contrary to law, it cannot be interfered with. It is also stated that in the matter of delay, when the delay is well explained and the same has to be brought out on complaint to the EO and as in the capacity of a quasi-judicial authority applicant when acted to undue favour the assessee his case is covered under the exceptions of K.K. Dhawans case (supra) and at this stage to further go beyond the allegations and to arrive at the conclusion whether any final view of the matter could have been taken, cannot be sustained.
14. Reiteration of the plea has been made by the learned Senior Counsel in the rejoinder.
15. We have carefully considered the rival contentions of the parties and perused the material on record.
16. In the matter of interference at an interlocutory stage in a departmental proceeding right from the trite law in Upendera Singh (supra) the reasons in Kunnisetty (supra) clearly ruled that the chargesheet issued is void ab initio, i.e., contrary to law which can be interfered with. We have no doubt in our mind that as a Tribunal we have no jurisdiction to go into the correctness of the charge or to substitute our own views, but if in exercise of judicial review on perusal of the charges and the ancillary and the relied upon annexures we find that right from the inception the enquiry is illegal and contrary to law, which includes the statutory rules, it can be set aside.
17. With the above backdrop one of the grounds raised through additional affidavit to which we allow the applicant and MA is accordingly allowed, non-approval of the chargesheet by the competent authority, i.e., Minister of Finance is taken as a ground to assail the chargesheet. Though the respondents have vehemently opposed it but as it is a legal issue going to the root of the matter and the respondents have filed a detailed reply to rebut this ground the same is treated as a valid legal point raised by the applicant and is considered.
18. In S.K. Srivastavas case (supra) the Tribunal in similar circumstances where the initiation of proceedings was approved but the charge memo was not approved, set aside the order. A subsequent Bench of this Tribunal in OA-800/08 on 5.2.2009 in B.V. Gopinath v. Union of India & Others, when confronted with the aforesaid issue, after taking into consideration the same pleas which have been put-forth by the respondents herein, held as follows:
11. Learned counsel would also rely upon the Authentication of Order and other Instruments, Rules 1958 and also Govt. of Indias (Transaction of Business) Rules, 1961 to contend that power of the President have been delegated under the aforesaid rules. The procedure lays down that disciplinary authority has to follow the same and in such view of the matter, Finance Minister is competent to delegate the function to the Secretary or by a special order on delegation to any other authority, which on being delegated, the proceedings initiated against the applicant are valid in law.
12. Learned counsel would also contend that presenting officers certificate shows that the document sought for by the applicant has been served upon him, which is transfer proforma and as such, they should be given reasonable time to conclude the proceedings to bring the disciplinary proceedings to a logical conclusion.
13. Shri Gangwani would also contend that the allegations against Govind Manish were different and quashing of the charge sheet when challenged before the High Court, a stay would disentitle the applicant to treat the aforesaid case as a precedent to be followed in the instant case.
14. A reference to Rule 14 (3) of Rules 1965 has been made to contend that the charge sheet is with jurisdiction.
15. What has been submitted under Rule 14 (4) of Rules 1965 is to deliver a copy of the article of charge and imputation. It is not necessary as per Rule 20.2 of Vigilance Manual that written statement of defence is to be sought and before appointment of inquiry officer or the presenting officer, the charge memo be approved.
16. We have carefully considered the rival contentions of the parties and perused the material on record.
17. We find during the course of hearing, learned counsel for applicant has produced before us an office order dated 19.7.2005 whereby delegation of various powers in respect of disciplinary action has been stated. Insofar as levels of decision making for approval of charge memo is concerned, Finance Minister being the disciplinary authority is the only authority competent to seek approval and there is no delegation provided or permissible.
18. In the light of above on perusal of page 85 of the paper book what we find that the disciplinary authority has approved only initiation of the proceedings and simultaneously sanctioned for prosecution. In the disciplinary proceedings further approval has been given to the appointment of inquiry as well as presenting officers. We do not find even remotest reference to the charge sheet to be issued to the applicant either deemed approval or with a reservation that the same stands approved by the Finance Minister.
19. A decision of coordinate Bench, to which we do not disagree, is a binding precedent in the wake of doctrine of precedent and the decision of the Apex Court in Sub Inspector Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others, (2000) 1 SCC 644.
20. The dicta ruled mutatis mutandis applies to the facts and circumstances of the present case. Insofar as the issue of non-approval of the charge sheet and what amounts to approval has been dealt with and mere approval of initiation of proceedings and appointment of inquiry and presenting officers would not amount to according approval to the charge memo, which is a subsequent stage under Rules 1965. It is very strange that when an approval goes to the disciplinary authority, it should not preempt and reserve in contingency right of approval or this deemed approval has to be effective for all proceedings to come. A requirement in law and the manner in which even the quasi-judicial authority has to act is to be in a manner prescribed under the statute, as the administrative authorities while acting as quasi-judicial authorities, being creature of status, are bound, in all fours, by it. As no specific approval has been accorded by the disciplinary authority to the charge sheet, it is right from inception without jurisdiction and is not sustainable in law. We respectfully follow the dicta in S.K. Srivastavas case (supra), which covers the present issue.
21. As regards the appointment of inquiry officer, Rule 14 (5) (a) of Rules 1965 has an object sought to be achieved with a reasonable nexus. In case a charge memo is issued to delinquent, who is being proceeded against under Rules 1965, then on his written statement rebutting the charge and the brief submitted thereupon as to illegality, an inference on consideration has to be drawn by the disciplinary authority that either the charges are contrary to law or are not warranted on the basis of material supplied to the delinquent. In such an event, an inquiry will not proceed further and shall culminate into exoneration of the concerned without following the entire ordeal of the disciplinary proceedings. This opportunity is possible only when a charge memo is issued and on receipt of the statement of defence, an inquiry officer is appointed. Short-circuiting this procedure when it is mandated under the rules and which causes infraction of a substantive procedure causing prejudice to the concerned, then the entire gamut and methodology adopted by the disciplinary authority would be construed as dehors the rules and in such an event, the appointment of inquiry officer in this case is also not sustainable in law.
22. Insofar as the abatement of the inquiry is concerned, we do not want to record any finding, as we are satisfied that in the present form neither the charge sheet nor the continued proceedings are sustainable in law.
19. In the present case, we do not find any approval of the competent authority to the charge-memo issued to the applicant, as such respectfully agreeing with our view in Gopinaths case (supra) we follow the same, which vitiates the chargesheet.
20. Another issue which is raised is that in case of Vijay Khanna (supra) the Tribunal vide its order (supra) on an anonymous and pseudonymous complaint set aside the disciplinary proceedings though the matter is subjudice before the High Court as it is yet to be overturned, the same holds a precedent for us to be followed lest we disagree with it. The contention of the respondents counsel that the decision in L.K. Puri (supra) would apply including G. Ratnams case (supra) is misconceived, as therein an issue was regarding supply of CVCs advice, yet the fact of pseudonymous complaint was not raised and no finding has been recorded on it. The ratio decidendi would not be to a finding, which has not been recorded.
21. Moreover, the decision in Ratnams case (supra) has been considered by the subsequent Bench in Moni Shankar v. Union of India & Another, 2008 (1) SCC (L&S) 819, where the Railways instructions have been found to be followed coupled with other illegalities. From the perusal of the counter reply we find that in both the cases of Vijay Khanna (supra) as well as applicant in the present OA the complaint was pseudonymous complaint but verifiable and after thoroughly verifying a decision was taken in both the cases to initiate disciplinary proceedings. This shows that the genesis and basis of a proceeding was pseudonymous complaint and as per the guidelines this cannot be sustained. We respectfully follow the decision in Vijay Khannas case (supra), which makes the chargesheet nullity in law.
22. Another aspect of the matter is that the applicant in response to the memorandum has filed his response on 12.6.2006, whereby apart from denying the charges as the matter was 10 years old and there was difficulty in recapitulating the events applicant has asked for certain assessment report in respect of five companies and while reserving a right to a detailed elucidation on various issues involved, this has been construed as written statement of the applicant and the DA appointed an EO.
23. Learned counsel of respondents would contend that the stage to seek documents is a later stage and in the written statement what is required is only denial of charges. Rule 14 (4) and (5) (a) provide as under:
(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.(5)
(a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers if necessary to do so, appoint under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government Servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15.
24. In this view of the matter along with articles of charge a list of documents and witnesses has to be served upon and only then the EO is appointed. The documents sought for by the applicant is not with a view to finally defend the charges but at the outset to seek reasonable opportunity to be delivered the documents which were forming basis of the imputation against him with a pious hope that on receipt of the documents which were stale and the chargesheet being inordinately delayed apart from denying the documents a reasonable valid explanation, which if considered apt by the DA the enquiry can be dropped at this stage and there is no requirement of further continuing the proceedings. GIMHA OM dated 12.3.1981 and 8.12.1982 deal with dropping of the charges at the initial stage of defence where it is stipulated that the DA has inherent powers to drop the charges and is not bound to appoint an EO if it is satisfied on the basis of written statement of defence that there is no further cause to proceed with. However, certain formalities are to be completed like CVC consultation.
25. In the light of the above, when there is a scope to curtail the enquiry and culminate it at the threshold to avoid and prevent unnecessary sufferings by a Government servant on vexatious charges for which a valid defence is produced the defence to be given by the delinquent through his certain statement is the bone of contention and his promotion unless a rebuttal with explanation as to no charge made out on any misconduct is made out, as alleged, what is required is that the minimum of the documents appended as list of documents and in the instant case the assessment report which are made basis to allege a misconduct against the applicant if demanded the written statement where a right is reserved to file a detailed written statement treating this as a defence statement and act of the DA to proceed further by appointment of EO is non-consideration of record, defence of the applicant in this case has prejudiced the applicant as at the threshold of the enquiry a right and an opportunity to establish his innocence and no proof of misconduct has been deprived to him. Though documents are to be given, i.e., both relied upon by the prosecution and also required in the defence by the delinquent in a disciplinary proceedings the stage at which it is to be given though specified in Rule 14 of the Rules, yet Rule 14 (5)(a) does not preclude documents to be given to facilitate the charged officer to file an effective written statement to avail of an opportunity of dropping the enquiry by the DA on application of mind. When a person seeks time either to file reply before the DA or reserves his right to file a detailed one, on fulfilment of condition, which in the present case supply of the documents denial thereof certainly in violation of principles of natural justice and violates one of its components of audi alteram partem. In Ranjit Singh v. Union of India, 2006 (4) SCALE 154 in a situation where against the enquiry report the delinquent official sought time to file representation when not allowed has been considered to be violation of principles of natural justice. Applying mutatis mutandis the same to the present situation where the applicant has not filed his detailed written statement of defence, non-communication to him to deny the documents by the respondents and non-supply thereof he has been prevented from filing an effective written statement, which has deprived him of a reasonable opportunity. The act is certainly in violation of principles of natural justice. The Apex Court in V.K. Khannas case (supra) as to the jurisdiction of interference in judicial review in a disciplinary proceeding and written statement of defence to be filed before the appointment of the EO, the following observations have been made:
33. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in Interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings.
34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias - What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply - Is it an indication of a free and fair attitude towards the concerned officer? the answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record.
26. The above proposition of law as a binding precedent covers on all fours the illegality committed in the present case. The Andhra Pradesh High Court, Full Bench decision in Govt. of A.P. and ors. v. M.A. Majeed and anr., 2006 (2) ATJ HC FB 581 has dealt with a similar situation where further proceedings were not considered and statement of defence filed by the delinquent official the rules in vogue were in parimateria with Rule 14 (5) (a) of CCS (CCA) Rules, 1965 it is clearly ruled that it was mandatory to consider the defence before an EO has been appointed.
27. The other legal grounds, since not discussed, are not adjudicated.
28. In the result, for the foregoing reasons, OA is allowed. The chargesheet dated 23.5.2006 is set aside. Applicant is directed to be accorded all consequential benefits, as permissible in law, as per Rules, within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.