Central Administrative Tribunal - Delhi
P.S. Bisht vs Union Of India (Uoi) And Ors. (Through ... on 22 April, 2008
ORDER Meera Chhibber, Member (J)
1. This matter has been placed before me as a third member as there was difference of opinion amongst the members of Division Bench. The point of reference formulated by both the Hon'ble Members is as follows:
Whether it is permissible in a disciplinary proceeding to bring on record the documents and witnesses tendered in a different and separate inquiry where the concerned delinquent had no opportunity of rebuttal.
If not, whether this would have the effect of wiping out other evidence, if any, on record against the delinquent in his own enquiry.
2. Hon'ble Members have even differed on the final decision of OA. Hon'ble Member (A) has held OA is liable to be dismissed as it is not a case of no evidence while Hon'ble Member (J) has held OA is partly allowed. Respondents have been directed to reinstate the applicant with all consequential benefits with liberty to resume the proceedings from the stage of examination of S/Shri Balachandran and Mukesh Chaturvedi. In these circumstances, it is necessary to decide the OA on merits.
3. The applicant has sought following relief:
(i) to quash and set aside the impugned order dated 24/29.3.2004, appellate authority order dated 28.9.2005 and revisionary authority order dated 2.8.2006 (Annexure A-1A).
(ii) to direct the respondents to reinstate the applicant in service with all consequential benefits including arrears.
4. Brief facts of the case are as follows. Applicant was served with memorandum 26.6.2004 under rule 10 of EPF Staff (Classification, Control and Appeal) Rules with following allegations:
ARTICLE-I Shri Prem Singh Bisht, Upper Division Clerk while posted and functioning in the Sub-Accounts Office, Nehru Place during the year 1998-99 committed a gross misconduct in as much as he entered into a conspiracy with his wife Smt. Sadhna and Shri Sutikshan Suyal, UDC and to fraudulently withdrew sums of Rs. 11,515/- and Rs. 3,060/- from the Employees' Provident Fund Organisation by representing that Smt. Sadhna was an employee of M/s Tarapore and Company, 502, Ansal Chamber II, 6, Bhikaji Cama Place, New Delhi despite knowledge that Smt. Sadhna was never employed with the said establishment.
By his aforesaid acts of omissions and commissions, Shri Prem Singh Bisht, UDC failed to maintain absolute integrity and devotion to duty and conducted himself in a manner unbecoming of an employee of the Central Board of Trustees in violation of Rule 3(1),(I), (ii) & (iii) of CCS (Conduct) Rules, 1964 which are mutatis mutandis applicable to him by virtue of Regulation 27 of the EPF (Staff and Condition of Service) Regulation, 1962.
5. Inquiry Officer gave his report holding the charge as proved. Copy of same was served on the applicant along with show cause notice dated 8.5.2002. Applicant gave his representation. Disciplinary authority after considering all the points passed a detailed and reasoned order on 24/29.3.2004 dismissing him from service (page 16 at 25). Being aggrieved applicant filed an appeal which too was rejected by a reasoned order dated 28.9.2005 (page 30). Applicant then filed revision petition which too was rejected vide order dated May, 2006 (page 26).
6. It is in these circumstances present OA has been filed challenging the above orders. In the prayer clause dates of the revisionary order is wrongly mentioned as 2.8.2006.
7. It is submitted by the counsel for the applicant that even though respondents' whole case was based on letter dated 13.7.1999 written by one Shri Balachandran but he was never produced in the enquiry to prove his letter, therefore, no reliance could have been placed on the said letter. On the contrary, Inquiry Officer gave his findings on the basis of statement of one Shri Mukesh Chatuverdi but he was also never produced as a witness in the departmental enquiry, therefore, applicant has been denied the right to cross-examine the said witness. The findings, therefore, get vitiated. It was on the on the basis of these findings, that penalty has been given, therefore, those orders are also liable to be quashed and set aside.
8. Counsel for the applicant submitted that applicant only helped his wife in filling up the form but that does not constitute nay misconduct because form 6A were sent by M/s Tarapore and Co. and applicant had no role in it. His wife was an employee in the said Company, which is proved by Anand Suyal, who was the Personnel Manager in M/s Tarapore & Co.
9. Counsel for applicant relied on the following judgments:
Hardwari Lal v. State of U.P. reported in 1999 (2) SCSLJ 360 Ministry of Finance and Another v. S.B. Ramesh .
10. Respondents on the other hand have submitted Sh. Balachandran was cited as a PW but he did not come as he had left M/s Tarapore Co. However, Sh. Mukesh Chaturvedi, the then Dy. Director (Vigilance) with respondent appeared as a witness in Sutikshan Suyal's departmental enquiry and he recognized the signatures of Sh. Balachandran. The case of applicant was interlinked with Sh. Sutikshan Suyal, UDC and Sh. Rakesh Bandoori, UDC, therefore, Sh. Chaturvedi's evidence was used in all the cases as he had only recognized the signatures of Sh. Balachandran, therefore, it cannot be stated that principles of natural justice have been violated.
11. In the enquiry full opportunity was given to the applicant to defend himself but he could not show any evidence that his wife was an employee of M/s Tarapore & Co. He cross-examined all PWs. Full opportunity was given to the applicant to defend himself. Orders have been passed by the authorities after dealing with the evidence which has come on record. It has been proved in enquiry that applicant had entered into conspiracy with his wife Smt. Sadhna and Sh. Sutikshan Suyal, UDC (dismissed) and fraudulently withdrew a sum of Rs. 11,515/- and Rs. 3060/- from Employees Provident Fund Organization, therefore, this case calls for no interference.
12. I have heard both the counsel and perused the pleadings as well as disciplinary proceeding's record.
13. If I was to answer the reference No. 1 as posed without referring to the facts of this case, I would have agreed with the views of Hon'ble Member (J) that it is not permissible to bring on record the documents and statement of witnesses tendered in a different and separate enquiry where delinquent had no opportunity to cross-examine the said witness because that is settled law. However, in the instant case, there is another angle of the reference. 'If not, whether this would have the effect of wiping out other evidence, if any, on record against the delinquent in his own enquiry.'
14. In view of above, I would have to test both the questions, as referred to above, with reference to the facts of this case.
15. The charge against applicant, who was working as UDC in the Sub Accounts Office of Employees Provident Fund Organisation (EPFO), can be divided in two parts viz. He entered into a conspiracy with his wife and Sh. Sutikshan Suyal, UDC and fraudulently withdrew an amount of Rs. 11,515/- and Rs. 3060/- from EPFO; By representing that Smt. Sadhena was an employee of M/s. Tarapore & Company, 502, Ansal Chambers-II, 6, Bhikaji Cama Place, New Delhi despite knowledge that Smt. Sadhna was never employed with the said establishment.
16. It would also be relevant to quote statement of imputation because all the facts are narrated therein clearly. For ready reference, it reads as under:
The establishment M/s. Tarapore and Company had submitted a return in Form 6A for the year 1997-98 to the SAO, Nehru Place. This return was received in the office on 13th October, 1998. During his visit to the establishment Shri A.S. Saxena, Enforcement Officer saw with date 21.10.98. Subsequently Shri Sutikshan Suyal who was working as a 'Consultant' in the establishment got prepared a false return for the year 1997-98 which was received in the SAO on 11.3.1999. In the false return names of many individuals appearing as members in the earlier return were replaced by different names. The wages paid to the individuals whose names were put in the second return were shown as much higher than of those individuals whose names appeared in the first return against the same Account Numbers. The inflated wages were shown with the intention of claiming higher deduction and deposit of Provident Fund dues in the office and claiming the same by filing Forms in 19B, 10B, 10C etc. Immediately after the receipt of the second return, on 15.03.1999 Shri Prem Singh Bisht, UDC filed a claim in his own hand writing in the name of his wife Smt. Sadhna against A/c No. DL/18595/139 in the Forms 19B and 10C. The claim forms thus filed showed the Bank Account Number to which the dues were to be remitted as No. 7112 in the Dena Bank, Nehru Place, New Delhi '19 branch. The claims were passed and two cheques Nos. 681922 and 689040 both dated 15.04.1999 for Rs. 11,515/- and Rs. 3,060/- respectively were sent to the said account. The said Account has been found to be a joint account in the name of Shri Prem Singh Bisht and Smt. Sadhna, and he has given his office address, that is 60, Skylark Building, Nehru Place, New Delhi to the Bank. The sums were later on withdrawn. Smt. Sadhna's name for the first time appeared in the 6-A Returns filed by the establishment in the SAO, Nehru Place on 11.03.1999 against A/c No. 18595/139. In the earlier 6-A Return filed for the same year the establishment had given the name of Shri Jagdish against this Account Number. Shri Prem Singh Bisht had clear knowledge that his wife had never been employed in the said establishment. He has also never given any information about the alleged employment to the office, which he was required to do under Rule 4(1)(ii) of the CCS (Conduct) Rules, 1964, if his wife were actually employed in that establishment. On the contrary, in the claim an attempt was made to conceal Smt. Sadhna's relationship with Shri Prem Singh Bisht by indicating her husband's name as Darban Singh. The furtive nature of this act is also indicative of malafide. Moreover, the employer has also given in writing that Smt. Sadhna was never employed in that establishment. Despite this knowledge he entered into the conspiracy with his wife and Shri Sutikshan Suyal by altering the 6-A Return to manage filing a claim in the name of Smt. Sadhna. His hand writing on the claim form and the fact that the Bank Account is in his name clearly establishes his active involvement in the fraud. By his aforesaid acts of omissions and commissions, Shri Prem Singh Bisht, UDC failed to maintain absolute integrity and devotion to duty and conducted himself in a manner unbecoming of an employee of the Central Board of Trustees in violation of Rule 3(1), (I), (ii) & (iii) of CCS (Conduct) Rules, 1964 which are mutatis mutandis applicable to him by virtue of Regulation 27 of the EPF (Staff and Condition of Service) Regulation, 1962.
17. Applicant gave his reply to the memorandum wherein he denied having committed any fraud as he maintained, his wife Smt. Sadhna was actually in service of M/s. Tarapore & Co. (page-50 at 51). However, since disciplinary authority was not satisfied enquiry was held.
18. In the enquiry, Sh. Balachandran, General Manager M/s Tarapore and Co. was shown as a witness but he did not participate in spite of notice as he had left the job by that time. He was the signatory of letter dated 13.7.1999 regarding non-employment of Mrs. Sadhna Bisht. Letter dated 13.7.1999 was also a relied upon document. This letter for ready reference reads as under:
The Dy. Driector (Vigilance) (NZ) EPFO ' 9th Floor, Mayur Bhawan, Cannaught Circus, New Delhi-110 001.
Dear Sir, With reference to your visit to our office on 12.7.1999, we would like to inform you that NMR staff as per list enclosed herewith have not worked with us. We further wish to inform you that Mr. S. Suyal was working with us as consultant to PF and he has been only preparing and submitting all the records/reports pertaining to PF to the concerned authority since beginning.
Thanking you, Yours faithfully, for Tarapore & Co., General Manager (NZ).
19. The list enclosed with the letter showed 20 names who were not working with M/s. Tarapore Co. and this list included the name of Leela Suyal, Sadhna, Anand Suyal and Manju Badwani. It is relevant to note that this letter was written by Sh. Balachandran who was GM (NZ) of Tarapore & Co. and it was addressed to the Dy. Director Vigilance. It was clearly mentioned therein that it was Sutikshan Suyal who was preparing and submitting all the records pertaining to PF as he was working as Consultant with the Company, therefore, charge was based on this information given in official capacity from one office to the other.
20. Learned Counsel for the applicant strenuously argued that since Sh. Balachandran did not appear in departmental enquiry, letter written by him cound not have been proved by the Inquiry Officer on the statement of Sh. Mukesh Chaturvedi as he also did not appear in applicant's departmental enquiry. It is seen counsel for the applicant is proceeding in the matter, as if it is a criminal trial, where each and every thing has to be proved by the prosecution to the hilt, little realizing that in a departmental enquiry charge can be proved on preponderance of probabilities. It is not as if Shri Balachandran was not summoned. He was summoned but he did not come because by that time, he had left the job. Applicant has not challenged the correctness of letter. In other words, it is not his case that the letter was not signed by Shri Balachandran or that he was not competent to write the said letter. Since letter was written to Dy. Director (Vigilance), he could have recognized the signatures to prove the letter. The Dy. Director did recognize the signature in departmental enquiry of other employee but unfortunately he was not produced in applicant's departmental enquiry. This procedural irregularity shall be dealt with separately but it cannot be said that charge against applicant would fail simply because Sh. Balachandran was not produced. In the instant case when a specific charge was levelled against the applicant that he had entered into conspiracy to file claim of PF on behalf of his wife, knowing fully well that his wife was never employed with M/s Tarapore & Co., onus had shifted on him to prove that his wife was indeed employed with M/s Tarapore & Co. because that was his defence.
21. At this juncture it would be relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Orissa Mining Corporation and Another v. Ananda Chandra Prusty it was held as under:
In a disciplinary or a departmental inquiry, the question of burden of proof depends upon the nature of charges and the nature of explanation put forward by the delinquent officer.
The position with respect to burden of proof is as clarified by us hereinabove viz., that there is no such thing as an absolute burden of proof, always lying upon the department in a disciplinary inquiry. The burden of proof depends upon the nature of explanation and the nature of charges. In a given case the burden may be shifted to the delinquent officer, depending upon his explanation.
In view of above judgment, according to me onus had shifted on applicant to prove that his wife was employed with M/s Tarapore & Co. because that was applicant's defence.
22. Let us examine what evidence was produced by the applicant to defend himself in the enquiry. In order to defend himself, applicant produced Sh. Anand Suyal as a witness who stated that he was working as Personal Manager in M/s Tarapore & Co. He prepared the returns of PF and got them countersigned by the authorized signatory. He also stated that Smt. Sadhna Bisht was an employee of M/s Tarapore & Co. Similarly applicant produced Shri Sutikshan Suyal as a defence witness, who stated that his son Shri Anand Suyal had informed him that Smt. Sadhna Bisht was employed with M/s Tarapore & Co. However it is relevant to note Shri Anand Suyal could not give his own date of appointment. Neither he produced his own appointment letter nor any experience certificate nor remembered whether he used to put his signature in the attendance register or not. Moreover, he had written a letter to M/s Tarapore & Co. that he would return Rs. 50,000/- to them. This letter was signed by Shri Sutikshan Suyal also. No explanation has been given by Anand Suyal & Sutikshan Suyal why this letter was written by them to M/s Tarapore & Co. The answer is obvious that they wanted to make good the loss caused by them. Apart from it, in letter dated 13.4.1999 written by G.M., M/s Tarapore & Co., it was clearly mentioned that it was Shri Sutikshan Suyal who was working as Consultant with the company for provident work and not Shri Anand Suyal. In fact Anand Suyal's name figured in the list who were not the employees of M/s Tarapore & Co. Therefore, since his own appointment itself was not proved, no reliance can be placed on his statement that Smt. Sadhna Bisht was an employee of M/s Tarapore & Co. Moreover, in cross-examination Shri Anand Suyal could not even tell the procedure of filling the form or depositing of PF forms etc. Though he stated he had recommended Mrs. Sadhna for appointment as Accounts Clerk but he could not say whether she wrote any accounts book or not or for what exact work she was appointed. He could also not explain how apart from Mrs. Sadhna, his mother, brother, Mrs. Manju Bandoori w/o Sh. Rakesh Bandoori & Mrs. Janaki, who were all his relatives joined the same company on same day i.e. 01.3.1997. It has also come on record that Smt. Sadhna was also Sh. Sutikshan Suyal's relative as admitted by him. All these facts clearly indicate forms 6A was wrongly filled by Sh. Sutikshan Suyal by interposing the names of his relatives and friends and applicant also entered into the conspiracy in as much as he filled up the form of his wife for withdrawing the provident fund knowing fully well that she was not an employee of M/s Tarapore & Co.
23. Apart from above, it is also proved from the statement of Sh. B.P. Jain, Asstt. Accounts Officer in EPFO read with letter dated 13.7.1999 that it was Sh. Sutikshan Suyal, who used to prepare the returns of M/s Tarapore & Co. as was told to him by the officials and not Anand Suyal, therefore, it is clear that Anand Suyal did not prepare the returns of above said Company. Accordingly, Anand Suyal's statement has rightly not been believed either by the Inquiry Officer or by the disciplinary/appellate authority. In fact from the statement of Sh. B.P. Jain it is clear that Sutikshan Suyal used to fill the forms of employees of M/s Tarapore & Co. with regard to their PF. It is thus clear that statements of Anand Suyal and Sutikshan Suyal cannot be relied upon as they are contradicted not only by the letter dated 13.7.1999 written by G.M., M/s Tarapore & Co. but also Sh. B.P. Jain.
24. Apart from statement of Anand Suyal and Sutikshan Suyal, no other valid evidence was produced by the applicant to show that his wife was an employee of M/s Tarapore & Co., therefore, it can safely be concluded applicant could not defend himself. All these facts clearly show that indeed a conspiracy was entered into between Shri P.S. Bisht, Shri Sutikshan Suyal and other employees along with applicant's wife to fraudulently withdraw the PF amount, knowing fully well that applicant's wife was not an employee of M/s Tarapore & Co. I say so because applicant has not been able to prove that his wife was an employee of M/s Tarapore & Co., even though that was exactly the charge against him. He produced a salary slip but that was also not signed, therefore, no reliance could not have been placed on such pay slip.
25. Had his wife actually been employed there, she could have produced some certificates or a letter duly signed and stamped by a senior officer from the said company to this effect or produced some officer/colleague from the said company who could prove his own appointment and applicant's wife's employment with the said company, but no such evidence was produced. Applicant could not even say what work his wife was doing in M/s Tarapore and Co. Moreover, it has rightly been pointed out by the authorities that applicant had not even informed his office that his wife was employed.
26. On the contrary in letter dated 13.7.1999 General Manager of M/s Tarapore and Co. had informed the Dy. Director (Vigilance) that Mrs. Sadhna had not worked with their company. This letter was written on the letter head of M/s Tarapore and Co. I have no reason to doubt the veracity of this letter because this is official correspondence written by the General Manager with reference to the visit made by Dy. Director (Vigilance). The Inquiry Officer did summon him but since he had left the office, he did not attend the enquiry. On this ground alone enquiry would not get vitiated because correctness of letter was never challenged by the applicant. His only argument is that the letter was not proved. However since no one challenged the signatures of Sh. Balachandran, even if he had not come in the enquiry, enquiry would not get vitiated.
27. The conspiracy is further proved from the statement of Sh. B.P. Jain, AAO and Sh. Vinod Kumar Jayant, LDC, which explained that these persons became so emboldened that they even declared a canteen operator working for over six years in SAO, Nehru Place as an employee of M/s Tarapore & Co. and attempted to withdraw the money by inserting his name also in the revised 6-A form. All these facts stare at the face of applicant and Ors. because it is too apparent that Shri Sutikshan Suyal along with others had tried to insert the name of his relatives and friends in order to enrich themselves illegally. At the cost of repetition, it is stated no explanation was given as to how all the relatives of Shri Suyal and his friends found place in the revised form 6-A. Since returns were filled by Sh. Sutikshan Suyal, it is clear that a racket was operating which needed to be dealt with an iron hand. I am informed Shri Sutikshan Suyal has also been dismissed from service.
28. Since it is a serious charge involving withdrawal of funds illegally, it was the right decision to dismiss such employees.
29. It is also relevant to note that Assistant Government Examiner Shri B.A. Vaid had appeared in the enquiry and he confirmed that the form of Sadhna Bisht was written by applicant. Applicant has not explained why he wrote the name of Mrs. Sadhna's father when she was married and why he did not write his own name against husband's name. Obviously, it was done with the intention not to disclose her identity. It is also proved that the amount was deposited in the account of Mrs. Sadhna, which was in joint name with the applicant and said amount was withdrawn by them.
30. From above, it is clear that applicant had entered into a conspiracy with his wife and Shri Sutikshan Suyal, UDC to fraudulently withdraw amount of Rs. 11575/- and Rs. 3060/- from EPFO by representing that Smt. Sadhna was an employee of M/s Tarapore and Co. despite knowledge that she was never employed with the said establishment. In view of above, it is clear that charge against applicant stood proved as he could not prove that his wife was an employee of M/s Tarapore & Co. I would, therefore, agree with the Hon'ble Member (A) to the extent that merely because there is some technical irregularity in the enquiry (as would be pointed out below), other evidence against applicant would not get wiped out.
31. I however hasten to add here that there is a technical flaw inasmuch as reliance has been placed on the statement of Shri Mukesh Chaturvedi by the Inquiry Officer as well as disciplinary authority while giving findings and imposing punishment by observing that Sh. Mukesh Chaturvedi had recognized the signatures of M/s Balachandran. Admittedly, he was not produced in applicant's enquiry. Law is well settled that reliance can be placed on a witness in an enquiry only if he is produced in the enquiry otherwise delinquent loses his valuable right to cross-examine the said witness. Had no reliance been placed on his statement, I would not have interfered in the matter. It is also not the case of respondents that if enquiry was held. Since enquiries were held separately and Inquiry Officer as well as disciplinary authority both have placed reliance on his statement, it was incumbent on the part of respondents to produce him as a witness in the Inquiry Officer so that applicant could have cross-examined him. To this extent there is an irregularity committed by the respondents, therefore, I would agree with the Hon'ble Member (J) to the extent that the finding & orders are liable to be set aside by giving liberty to the respondents to start the proceedings from the stage of calling Shri Mukesh Chaturvedi as a witness in the enquiry and after recording his statement chance has to be given to the applicant to cross-examine the said witness. Thereafter fresh orders should be passed after complying with the procedure as per rules. I do not agree with the Hon'ble Member (J) with regard to the direction for reinstatement and consequential benefits because Hon'ble Supreme Court has repeatedly held whenever there is a technical irregularity found in the enquiry, matter should be remitted back to the authority for starting the enquiry from that stage. In such circumstances, no direction should be given for reinstatement or consequential benefits. At this stage, it would be relevant to quote from the judgment of Hon'ble Supreme Court in the case of State of Punjab and Ors.Vs. Dr. Harbhajan Singh Greasy reported in 1996 (9) SCC 322, wherein it was held as under:
It is now a well- settled law that when the enquiry was found to be faulty, it would not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Pending enquiry, the delinquent must be deemed to be under suspension. The consequential benefits would depend upon the result of the enquiry and order passed thereon.
32. In the case of NTC (WBAB&O) Ltd. and Anr. v. Anjan K. Saha , Hon'ble Supreme Court held as under:
9. We fail to appreciate the reasoning of the High Court in the instant case that in addition to the procedural infirmity of non-supply of enquiry report, there being non-compliance of Clause 14 (4) (c) of Standing Order requiring grant of opportunity of hear-ing against proposed penalty, the employee has to be granted relief of reinstatement with full back wages and the employer can be given liberty to hold a de novo enquiry.
10. As stated by the High Court, we do not find that the language of Clause 14(4)(c) is mandatory. In any case, non-compliance thereof cannot be held to be a more vitiat-ing factor than non-supply of enquiry re-port. If the Constitution Bench of this Court in cases of non-supply of enquiry report di-rects the procedure to be adopted by allow-ing the employer to re-start the enquiry from the stage of supply of enquiry report with-out reinstating the employee, why such a course should not be directed to be adopted where the other grievance of the employee is denial of opportunity to show cause against proposed penalty. When the Court can direct a fresh enquiry from the stage of supply of enquiry report the next step in the enquiry of giving opportunity against the proposed penalty can also be directed to be taken. After the fresh enquiry is over from the stage of supply of enquiry report, the employee can be granted opportunity against proposed penalty in terms of Clause 14(4)(c) of the Model Standing Order Rules. Conse-quential order, if any passed, shall abide the final result of the proceedings. As held in the case of B. Karunakar and Ors.(supra), if the employee is cleared of the charges and is reinstated, the disciplinary authority would be at liberty to decide according to law how it will treat the period from the date of dismissal till the period of reinstatement and the consequential ben-efits.
11. As a result of the discussion afore-said this appeal preferred by the employer is partly allowed. The impugned orders of the High Court to the extent they directed reinstatement in service of the respondent with full monetary dues are set aside. It is di-rected that in accordance with the legal position explained in the case of B. Karunakar and Ors.(supra) [in paragraph 31 as quoted above], there would be a formal reinstatement of the employee for the limited purpose of enabling the employer to proceed with the enquiry from the stage of furnishing him with the copy of the enquiry report. The employer can place him under suspension for completing the enquiry. After conclusion of the enquiry in the manner as directed in the case of B. Karunakar and Ors.(supra), if the employee is exonerated, the authority shall decide according to law how the intervening period from the date of his dismissal to the date of his reinstatement shall be treated and what consequential benefits should be granted. If on the contrary, the employee is found to be guilty, before taking final decision he should be heard on the proposed penalty in accordance with Clause 14(4)(c) of the Stand-ing Order on the quantum of punishment.
33. In view of above settled position, with utmost regards, I do not agree with the Member (J) to the extent that applicant needs to be reinstated in service or given any consequential benefits. Except placing reliance on Shri Mukesh Chaturvedi's statement, all other reasonings given by the respondents are found to be valid. Since findings and orders are not substantial due to above technical irregularity, I hold that the orders dated 29.3.2004 and May, 2006 passed by respondents and findings recorded by Inquiry Officer are not sustainable. Accordingly, they are quashed and set aside. However, liberty is given to the respondents to proceed from the stage of examining Sh. Mukesh Chaturvedi in the enquiry in the presence of applicant by giving him opportunity to cross-examine the said witness and then to pass fresh orders, after complying with the procedure as laid down in the rules. I clarify that applicant would not be entitled to either reinstatement or consequential benefits because charge is otherwise proved against the applicant. Respondents may put the applicant under suspension for the purpose of completing the above procedure from the stage of examining Shri Mukesh Chaturvedi. Intervening period shall be decided by the respondents by issuing specific order, after final orders are passed in the departmental enquiry. This exercise shall be completed preferably within a period of three months from the date of receipt of a copy of this order, provided applicant cooperates with them, otherwise it would be open to the respondents to pass appropriate orders by giving reasons, therefore, applicant is directed to cooperate.
34. OA stands disposed off with above directions. No costs.