Central Administrative Tribunal - Delhi
Shri Manik Chand vs Union Of India on 15 April, 2011
Central Administrative Tribunal
Principal Bench
OA No.3218/2009
New Delhi, this the 15th day of April, 2011
Honble Dr. Ramesh Chandra Panda, Member (A)
Honble Dr. K.B. Suresh, Member (J)
Shri Manik Chand,
S/o Late Ramchand,
Ex.Postal Asstt. Saiyan,
Distt. Agra (U.P.)
R/o 5/763 Avas-Vikas Colony,
Sikandara
Agra-7.
Applicant
(By Advocate : Shri G.S. Lobana )
Versus
1. Union of India, though
The Secretary,
Ministry of Communication and IT,
Department of Posts
Dak Bhawan Sansad Marg,
New Delhi.
2. The Chief Postmaster General,
U.P. Circle Lucknow.
3. The Postmaster General,
Agra Region-
Agra.
4. The Director Postal Services,
O/o the Postmaster General,
Agra Region,
Agra.
5. The Sr. Supdt. of Post Offices,
Agra D.
Agra.
. Respondents
( By Advocate : Shri R.C. Gautam)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Impugning (i) the order dated 20.11.2006 (Annexure-A1) passed by the Disciplinary Authority by which the Applicant was awarded the penalty of dismissal from service; (ii) the order dated 5/11.07.2007 (Annexure-A2) of the Appellate Authority whereby his appeal was rejected; and (iii) the order dated 19.6.2009 (Annexure-A3) whereby the Revision Authority upholding the orders of the Disciplinary and Appellate Authorities rejected his revision petition, the Applicant is before this Tribunal in the present OA with following prayers :-
8.1 That the impugned punishment order, (Annexure-A-1) Appellate order (Annexure-A-2) and Revision order (Annexure-A-3) may kindly be quashed and set-aside and the applicant be ordered to be reinstated in services with all consequential benefits.
8.2 That any other benefit or relief which in the present facts and circumstances or the case deemed fit and proper be allowed to be applicant.
8.3 That the examplory cost be awarded to the applicant.
2. The origin of this case can be traced to the cheque clearance fraud detected in August, 2001 which took place at Agra Head Post Office (HO). The alleged offence seems to have involved many persons and purported to have taken place by the cheque clearance PA of Agra HO by opening S.B./TD/MIS accounts and getting KVP encashed either by himself or by others by making deposits in the said accounts on the strength of fake cheque clearance and subsequently withdrawing the amount from those accounts. The CBI conducted investigation, pursuant to which several officials including the Applicant were identified as alleged subsidiary offenders. Applicant was suspended vide order dated 20.10.2001 which was revoked vide Memo dated 7.10.2002. He was chargesheeted under Rule 14 of CCS (CCA) Rules vide Charge Memo dated 14.3.2006 (Annexure-A5) with following 3 charges :-
Statement of article of charged framed against Shri Manik Chand PA Saiyan PO Agra.
ARTICLE-I While working as Sub Post Master Baluganj SO Agar during the period from 14-8-2000 to 29-9-2001, Shri Manik Chand committed grave misconduct inasmuch as he accepted Canara Bank Agra Cantt. Cheque No.175517 dated 28-8-2000 for `3,00,000/- alongwith three pay-in-slips (SB-103) for `100000/- each and three applications-cum-SS of depositor (SB-3) card through SAS agent No.839 on 28-8-2000 for opening of three 1 year time deposit accounts in the name of Smt. Shweta Singh R/o 74 Naulakha, Agra Cantt. without challenging the omission of signature and specimen signature of depositor on SB-3 card, the essential condition for opening of account. On receipt of clearance of cheque from Agra HO on Baluganj cheque collection list dated 28-8-2000 with Agra Ho clearing stamp dated 29-8-2000, he opened 1 year TD Account No.6500012, 6500013 and 6500014 for `1,00,000/- each on 31-8-2000 accordingly.
Before completion of maturity period ending on 31-8-2001 of said TD Accounts, said Shri Manik Chand requested to Sr. P.M. Agra for supply of cash worth `3,15,000/- through his SO daily account dated 30-8-2001 retaining excess cash `13,190.75 beyond authorized minimum cash balance `500/- in anticipation of withdrawal of final amount from the said TD Accounts while there was no liability with him on 30-8-2001 as it is clear from the application for withdrawal (SB-7) dated 4-9-2001. Said Shri Manik Chand again requested for supply of cash through SO daily account dated 3-9-2001 with a remark.
Accordingly on receipt of cash worth `325000/- through revised SO slip dated 4-9-2001, said Shri Manik Chand allowed and paid the amount of withdrawal of `1,08,243.00 from 1 year TD Account 6500012, 6500013 and 6500014 each (Total `3,24,729.00) to the depositor Smt. Shweta Singh on forged identification of unknown person named Shri Kishan Singh R/O 74 Naulakha Agra Cantt. While no such depositor Smt. Shweta Singh and identifier (Witness) Shri Kishan Singh was found residing at the given address H.No.74 Naulakha Agra Cantt. in the enquiry nor even said Shri Manik Chand could produce any such depositor or identifier in the course of enquiry. Thus willful act and omission in discharge of his legitimate duties of said Shri Manik Chand, the department sustained of loss of `3,24,729/- (Rupees Three lac twenty four thousand seven hundred twenty nine only).
By Acting in aforesaid manner, said Shri Manik Chand violated rule-31 of Postal Manual Volume-VI Part-III, Rule-21, 23(1) and 23(2) of PO SB Manual Volume-I and Rule-60 (1), 60(3) and 03 of FHB Vol-I. Thus said Shri Manik Chand is alleged to have failed to maintain absolute integrity and devotion to duty and acted in such a manner which is unbecoming of a Government Servant and thereby infringed Rule-3 (1) (i), 3(1) (ii) and 3(1) (iii) of CCS (Conduct) Rules-1964.
ARTICLE II While working as APM SB-I Agra HO during the period from 11-4-98 to 13-4-98, 6-5-98 to 12-5-98, 2-7-98 to 14-11-98, 7-12-98 to 13-1-99, 16-1-99 to 21-1-99, 23-1-99 to 4-1-2000, 4-3-2000 and 18-3-2000, Shri Manik Chand committed grave misconduct inasmuch as he failed to (i) To get the prescribed cheques register maintained at SB counter-I and to examine and sign the same in respect of cheques received at counter with pay-in-slip (SB-103) on above dates and retain pay-in-slip in custody. (ii) To get the list of cheque collection prepared at counter. (iii) To maintain triplicate copy of cheque collection list with clearance pasted in guard file to keep watch over clearance of cheque. (iv) To check and challenge the receipt of fake pay-in-slips (SB-103) for opening of MIS accounts from cheque clearance PA with clearance date stamp and clearance number etc and put his signature on SB-3 cards of above MIS account. (v) To obtain a declaration on SB-3 cards of above MIS accounts from the depositors to the fact that deposit in all MIS accounts taken together do not exceed the maximum limit and allowed opening of Agra HO MIS account No.103090, 103582, 103635 and 103673 through fake cheque clearance vouchers/pay in slip (SB-103) on 18-2-99 for `3,00,000/- on 10-9-99 for `204000/-, on 12-10-99 for `162000/- and on 24/25-9-99 for `300000/- respectively. The department had to pay interest of `87000/-, `44800/-, `66000/- and `34020/- to the depositors of above mentioned MIS account. Thus the department has sustained a loss of `11,97,820/- due to gross negligence, carelessness and non observance of the Rules.
By acting the aforesaid manner, said Shri Manik Chand is alleged to have violated procedure and instructions contained in Rule-31 (6) read with Annexure-I instruction No.10(1) and (2) and Rule-35 (10) of PO SB Manual Volume-I read with Rule 158 and 159 (1) (b) of PO SB Manual Volume-I and also failed to maintain absolute integrity and devotion do duty as required under Rule-3 (1)(i), Rule-3 (1)(ii) and Rule 3 (2)(i) of CCS (Conduct) Rules-1964.
ARTICLE III While working as APM SB-I Agra Ho during the period from 11-4-98 to 13-4-98, 6-5-98 to 12-5-98, 2-7-98 to 14-11-98, 7-12-98 to 13-1-99, 16-1-99 to 21-1-99, 23-1-99 to 4-1-2000, 4-3-2000 and 18-3-2000, Shri Manik Chand committed grave misconduct inasmuch as he failed (i) to check and scrutinize thoroughly the entries of cheque number, date of issue of cheque, Name of Bank etc. in the application for purchase of KVP (NC-69), (ii) to get the prescribed register of cheques maintained at SB counter-I as per rules, (iii) to get the list of collection cheques prepared at SB counter-I (iv) to retain the applications of purchase of KVP with him till the receipt clearance certificate of cheques and thereby facilitated issuance of KVPs amounting to `13,60,000/- at Agra HO on various dates under regn. No.65249, 65250, 65251, 65252, 65253, 65254, 65255, 65256, 66978, 66979, 69755, 69756, 69757, 67758, 70099, 70100, 70381, 70382, 70437, 70438, 70583, 70584, 70887, 70888, 71391, 71392, 72067, 72068, 72265, 72266, 72267, 72268 = 32 on the strength of fake cheque clearance given by Shri Bhupendra Pal Singh cheque clearance PA Agra HO. Thus due to gross negligence, slackness in supervision and non observance of Rules of said Shri Manik Chand, the department has sustained loss of `13,60,000.00.
By acting in aforesaid manner, said Shri Manik Chand violated Rule-9(1)(e), 11 & 12 of PO SB Manual Volume-II and procedure and instructions contained in Rule-31 (6) of Annexure-I of PO SB Manual Volume-I. Thus said Shri Manik Chand is alleged to have failed to maintain absolute integrity and devotion duty as required under Rule-3 (1), 3(1) (ii) and Rule-3 (2) (i) of CCS (Conduct) Rules-1964.
3. Denying the above charges, the Applicant submitted his defence representation/reply vide his letter dated 24.3.2006. Hence, the Inquiry Officer (IO) and Presenting Officer were appointed vide Memo dated 29.03.2006. The I.O. submitted the Inquiry Report vide his letter dated 22.9.2006 (Annexure-A9) holding the charges as proved. Findings of the IO is as follows :-
4. The above said report of the IO was sent to the Applicant and on receipt of the same on 5.10.2006, he submitted his defence representation on 16.10.2009. The Director Postal Services being the Competent Disciplinary Authority having considered the IOs report, defence representation of the Applicant offering his comments on all 19 points raised by the Applicant came to the conclusion that out of 3 charges framed against him, Article of charges II and III were fully proved and the Article of Charge I was proved except the allegation of retaining excess cash of `13190.75 beyond authorized minimum cash balance of `500/- on 30.08.2001. He also concluded that the charges were proved beyond doubt and the Department sustained a loss of `2882549 due to Applicants gross negligence, carelessness and non observance of Rules. In view of the above findings, the Disciplinary Authority inflicted upon the Applicant penalty of dismissal from service with immediate effect vide his order dated 20.11.2006 (Annexure-A1). Being aggrieved by the above order, he preferred an appeal dated 11.12.2006 which on consideration was rejected by the Appellate Authority in his Memo dated 05/11-07-2007 (Annexure-A2). Feeling aggrieved by the decision of the Appellate Authority, the Applicant in his petition dated 3.8.2007 approached the Revision Authority who also rejected the same vide his order dated 19.6.2009 (Annexure-A3). Assailing all these 3 orders, the Applicant is before this Tribunal in the present OA.
5. We heard Shri G.S. Lobana, learned counsel for the Applicant and Shri R.C.Gautam, learned counsel representing the Respondents. With the assistance of the counsel for the parties, we perused the pleadings as well.
6. The Applicant has raised number of grounds in the OA and has challenged the legality of impugned orders. Shri G.S. Lobana raised the following important contentions : (i) The impugned orders are hit by the doctrine of double jeopardy as the Respondents have inflicted on the Applicant under a charge sheet issued to him under Rule 16 of CCS (CCA) Rules, 1965 the punishment of recovery of `5000 vide order dated 29.4.2005 and for the same set of separate charges he has been dismissed from service. Reliance was placed on the judgment of Honble Supreme Court in Lt. Governor of Delhi and Others Versus H.C. Narender Singh [2006 SCC (L&S) 87]. (ii) The Applicant was prejudiced in his defence as all the documents sought for by him for his defence were not provided to him. He submitted his application dated 8.5.2006 to the Inquiry Authority (IA) requesting to make available 32 documents required for his defence. The IA refused to allow 5 of these documents i.e. 1,11,12,25 and 26 without giving any reason. This vitiated the impugned order under sub Rule 12 of Rule 14 of the CCS (CCA) Rules, 1965 as this caused prejudice to the Applicant in defending his case. With regards to additional documents sought for during the inquiry by the Applicant, the Presenting Officer/Disciplinary Authority failed to provide as many as 18 of them (Serial No.2,3,5,78, 9, 10, 13, 15, 16, 17, 18, 19, 20, 24, 27, 29, 30 and 31) without any reason. The Presenting Officer was asked to provide majority of those documents by the IA but those were not provided to the Applicant. He raised this issue before Disciplinary, Appellate and Revision Authorities, it was mentioned that the permitted documents were not supplied as those were not available with SSPO Agra. The non supply of permitted and relevant documents caused great prejudice to the Applicant. As a result, it is contended that he could not properly cross examine the witnesses. Shri Lobana places his reliance on the law laid by Honble Supreme Court in Union of India Versus Naman Singh Shekhawat [2008(4) SCC 1). (iii) It is further submitted that there is no allegation of fraud or misappropriation against the Applicant. The allegation is that he has not checked the matter, as per the rules and alleged lapse are technical in nature without attributation of any mala fide or motive to the Applicant. (iv) It is contended that the alleged misconduct took place in the year 1998 and the Applicant was issued charge-sheet on 14.3.2006 which is objected to on the grounds of unexplained and unjustified delay. (v) It is further contended that the Applicant has been discriminated as similarly situated persons have been either exonerated or imposed punishment to the lesser extent. In this context, he draws our attention to Shri Munna Lal Sharma Versus Union of India & Another (OA No.2303/2008 decided on 17.11.2009) wherein, the Tribunal directed to restore back full pension to the Applicant as due to him and refund the amount which was recovered/cut from his pension. Union of India agitated against the said order in Writ Petition (Civil) No.5165/2010 where the Honble High Court of Delhi while dismissing the Writ Petition in limine upheld the orders passed by the Tribunal. In these two judgments, it was decided mainly on the ground that the prejudice was caused to the petitioners therein as appropriate documents relevant to the case were not given to the Applicant for perusal to defend himself effectively in the disciplinary case. On the said issue of discriminatory treatment it was highlighted that the main accused was one Bhipinder Pal Singh who connived with Suresh Chandra Aggarwal. It was also stated that the Trial Court at Ghaziabad in the criminal case convicted 6 persons, namely, Bhupinder Pal Singh, Rajinder Pal Singh, Smt. Sharda Singh, Suresh Chander Aggarwal, Smt. Lajja Aggarwal and Shri Rajiv Aggarwal. The Applicant and many others were identified as subsidiary offenders. Out of 51 subsdiary offenders, it was submitted by Shri G. S. Lobana that many of them have been exonerated and some of them have been imposed lesser punishment. He, therefore, terms dismissal from service as discriminatory and disproportionate in nature as the Applicants alleged misconduct was not serious as he was not involved in the fraud nor he has been part of the conspiracy. His case was that of a supervision lapse. Shri Lobana placed his reliance on the judgment of Honble Supreme Court on the issue of discriminatory treatment in the case of Tata Engineering and Locomotive Company Limited Versus Jitendra Pd. Singh and Another (2001 (10) SCC 530) and in the case of Chander Lal Verma Versus State of Rajasthan and Others decided by the Honble Rajasthan High Court reported in AISLJ 2006 (2) 282. (vi) Shri Lobana also went through the charges framed against the Applicant to submit that the Applicant has not connived with the alleged offenders. At best the Applicant can be said to have committed misconduct of involving procedure lapse. He very extensively argued that the check clearance Postal Assistant was the main culprit in the case and the Applicant was not in any way involved in the fraud along with the said accused. He submits that the Applicant has followed the normal practice in the opening of Savings Bank, Term Deposit, Monthly Income Scheme and other associated matters which have been referred in the charge memo. He submits that the Applicant is innocent and should not have been visited with the punishment of dismissal from service. (vii) It is also contended that the punishment of dismissal from service is shockingly disproportionate and harsh in nature as the Applicants alleged misconduct was only for supervisory and procedure lapses. The Applicant having not been involved either in misappropriation or embezzlement of any amount, the penalty imposed on him by dismissing him from service is absolutely disproportionate. In view of the above arguements, learned Counsel for the Applicant argues that the Applicants case is a fit case to be allowed directing the Respondents to reinstate the Applicant in service with all consequential benefits.
7. Shri R. C. Gautam, learned Counsel for the Respondents, replying to the contentions raised by the Applicants Counsel referred to number of case laws to drive home the contention that role of the Tribunal in exercise of powers under judicial review is rather limited in disciplinary cases. Referring to the judgment of Honble Supreme Court in the case of Union of India and Another Versus B. C. Chaturvedi [(1995) 6 SCC 750], he submits that the Tribunal cannot reappreciate the evidence and substitute its own findings. Judicial review is not an appeal over a decision but a review of the manner in which the decision is made. Shri Gautam submits that once the enquiry was conducted on the charges and misconduct committed by the Applicant, the Tribunals role is to determine whether the enquiry was held by the competent authority and principles of natural justice have been complied with or not? He also submitted that the probability of preponderance being the guiding principle the Tribunal cannot go into the details of the evidence but to find out whether some evidences are available in support of the charges. His submission is that the Disciplinary Authority is the judge of the facts as revealed in the enquiry and the Appellate Authority thereafter exercises coextensive power to reappreciate the evidence and also to judge the proportionality of punishment. He also referred to the judgment of Honble Supreme Court in the case of State Bank of Patiala and Others Versus S. K. Sharma [1996) 3 SCC 364], wherein the Honble Supreme Court summarized he principles and inter alia observed that an order passed imposing punishment on an employee consequent to the departmental enquiry in violation of the rules, regulations and statutory provisions governing such enquiries should not generally be set aside unless the Tribunal comes to the conclusion the provisions violated is of a substantive nature and procedure in character. Further it has been submitted therein that if the procedural provisions of mandatory in nature is violated the jurisdiction of the Tribunal would be there to examine. In this context, Shri Gautam submits that the Inquiry Officer has properly conducted the enquiry and held the charges as proved. Though there may not be embezzlement or misappropriation of the funds of the Department but due to the negligence and supervisory lapses, the loss incurred by the Department in financial terms is enormous for which the Applicant is responsible. Referring to Munna Lal Sharmas case (supra) he submits that the facts of Munna Lal Sharmas case (supra) and the present case being different the judgment of this Tribunal in Munna Lals case should be distinguished. He submits that there was no discrimination between the Applicant and other delinquent officials involving in the said fraud case. He submits that it is a big scam and fraud in which crores of rupees have been lost to the Respondents. The Applicant has played an important role in circumventing the procedures and has been responsible for not exercising appropriate supervisory responsibilities. He also submitted that the documents alleged not to have been supplied to the Applicant by the Enquiry officer or by the Presenting Officer, those were not found to be not relevant in the case and, therefore, the non supply of those documents would in no way prejudice the Applicant. In view of the contraverting arguments raised by the Counsel for the Respondents, he submits that the punishment imposed on the Applicant being proportionate to the proved misconduct, the OA is liable to be dismissed.
8. We have very carefully gone through the respective submissions made by both the parties and their counsels and have gone through the pleadings as well. We would now dwell on the role of the Tribunal in disciplinary case as has been settled in various judgments of the Honble Supreme Court.
9. It is trite that this Tribunal can examine the evidence to find out whether there is any evidence against the Applicant in the case. At this stage, we examine the settled legal position on the powers of the Tribunal as to what extent this Tribunal can interfere in the matters of disciplinary proceedings. We note our power is limited. We went through many judgments of Honourable Supreme Court of India in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities and identified the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Kuldeep Singh Versus Commissioner of Police and others [1999(2) SCC 10]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; availability or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the Wednesbury principle, probability of preponderance doctrine and the like. Some of the guiding principles, we kept in our mind while deciding the present OAs, are as follows:-
* The Tribunal cannot interfere with the findings of the Inquiry Officer which is based on evidence and substitute its own independent findings.
* When the findings of the disciplinary authority or the appellate authority are based on some evidence, the Tribunal cannot re appreciate the evidence and substitute its own findings.
* Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which decision is made.
* When an inquiry is conducted on the charge(s) of misconduct against a public servant, where the authority held the proceedings against the delinquent officer, the Tribunal is empowered to determine -Whether the inquiry was conducted by the competent officer? Or -Whether rules of natural justice have been complied with? Or -Whether the findings/conclusions are based on some evidence or no evidence to reach a finding/conclusion? Or -Whether the mode of inquiry is in violation of statutory rules? Or -Whether the findings are arbitrary or utterly perverse?
* Adequacy of evidence or reliability of evidence applies to the disciplinary proceedings including the notes of disagreement.
* When the Inquiry Officer finds and accepts the evidence, his conclusion normally is guided by such evidence and as such the disciplinary authority is entitled to hold the delinquent officer as the guilty or otherwise of the charge.
* The disciplinary authority exercises his quasi judicial power to appreciate the evidence and finding is based on the same.
* In case of an appeal, the Appellate Authority has co-extensive power to re appreciate the evidence and the nature of punishment and the Appellate Order is to be passed as expeditiously as possible.
* The Tribunal can interfere with the decision of the Disciplinary / Appellate / Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards.
* The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
* The Tribunal is entitled to arrive at its own conclusion on the premise that evidence adduced in the enquiry meets or does not meet the requirement of burden of proof, namely preponderance of probability.
10. In the backdrop of the above settled position in law, we may advert now to the grounds taken in the OA.
11 With reference to the ground on which the impugned order has been assailed by the Applicant, namely, double jeopardy, we have carefully and closely gone through the charge sheet for minor penalty on the one and the charge sheet for major penalty on the other. Minor penalty of recovery so imposed is not the subject matter of the major penalty proceedings. In fact these proceedings relate to spell of different periods as can be seen from the pleadings. Thus the alleged misconducts are stated to have been committed during the period 11.4.1998 to 13.4.1998, 6.5.1998 to 12.5.1998, 2.7.1998 to14.11.1998, 7.12.1998 to 13.1,1999, 16.1,1999 to 21.1.1999, 23.1.1999 to 4.1.2000, 4.3.2000 and18.3.2000. As against this, the minor penalty proceedings were initiated in respect of misconduct alleged to have been committed during the said period but were not the subject matter of the major penalty proceedings and, therefore, the plea of double jeopardy cannot be legally sustained.
12. As regards delay in initiating the disciplinary inquiry as alleged by the Applicant, we note that the CBI conducted detailed enquiry and processed the Criminal case in the Trial Court. The fall out of the main case is the subsidiary offenders to be dealt departmentally. The whole process of investigation/enquiry to link offences with offenders in a scam of this nature and magnitude would take some time. Thus, we are of the considered view that it would not have prejudiced the Applicant. We also find that the Respondents have passed final orders within the stipulated time frame. We are, therefore, of the view that the impugned orders are not open to objection on account of delay in the inquiry as contended by the applicant.
13. We will now deal with the Applicants principal contention relating to denial of reasonable opportunity of being provided as a result of non-supply of the documents sought by him in his defence. Government of India have issued instructions in 1961 clearly stipulating to supply of copies of documents and to afford access to official records to the delinquent official, which view, even holds good even today. For better appreciation of the issue involved in this case, it would be appropriate to reproduced paragraphs 1 to 5 of Government of India, M.H.A., O.M. No.F.30/5/61-AVD dated 25th August, 1961:-
1. The question often arises whether a particular document or set of documents asked for by a Government servant involved in a departmental enquiry should be made available to him or not and pending the decision on the question, the submission of the written statement by the Government servant concerned is delayed, in some cases for months. In view of this, and also of the judgment pronounced by the Supreme Court in Raizada Trilock Nath v. The Union of India, in which it has been decided that failure to furnish copies of documents such as the First Information Report and statements recorded during investigation amounts to a violation of Article 311 (2) of the Constitution, the whole question of the extent access of official records to which a Government servant is entitled under the All India Services (Discipline and Appeal) Rules or the Central Civil Services (Classification, Control and Appeal) Rules has been examined in consultation with the Ministry of Law.
2. The right of access to official records is not unlimited and it is open to the Government to deny access if in its opinion such records are not relevant to the case, or not desirable in the public interest to allow such access. The power to refuse access to official records should, however, be very sparingly exercised. The question of relevancy should be looked at from the point of view of the defence and if there is any possible line of defence to which the document may, in some way, be relevant, though the relevance is not clear to the Disciplinary Authority at the time the request is made, the request for access should not be rejected. The power to deny access on the ground of public interest should be exercised only when there are reasonable and sufficient grounds to believe that public interest will clearly suffer. Cases of the latter type are likely to be very few and normally occasion for refusal to access on the ground that it is not in public interest should not arise if the document is intended to be used in proof of the charge and if it is proposed to produce such a document before the Inquiry Officer, if an enquiry comes to be held. It has to be remembered that serious difficulties arise when the Courts do not accept as correct the refusal by the Disciplinary Authority, of access to documents. In any case, where it is decided to refuse access, reasons for refusal should be cogent and substantial and should invariably be recorded in writing.
3. Government servants involved in departmental enquiries often ask for access to and/or supply of copies of-
documents to which reference has been made in the statement of allegations;
documents and records not so referred to in the statement of allegations but which the Government servant concerned considers are relevant for the purpose of his defence;
statements of witnesses recorded in the course of
(a) a preliminary enquiry conducted by the department; or
(b) investigation made by the Police;
reports submitted to Government or other Competent Authority including the Disciplinary Authority, by an officer appointed to hold a preliminary inquiry to ascertain facts; and reports submitted to Government or other Competent Authority including the Disciplinary Authority by the Police after investigation.
4. A list of the documents which are proposed to be relied upon to prove the charge and the facts stated in the statement of allegations should be drawn up at the time of framing the charge (this will incidentally reduce the delay that usually occurs between the service of the charge-sheet and the submission of the written statement). This list should normally include Anonymous and pseudonymous complaints on the basis of which inquiries were started need not be included in the list. The list so prepared should be supplied to the officer either along with the charge-sheet or as soon thereafter as possible. The officer should be permitted access to the documents mentioned in the list, if he so desires.
5. If the officer requests for any official records other than those included in the list, the request should ordinarily be acceded to in the light of what has been stated in Paragraph 2 above.
14. We may now examine the present case in the light of the aforesaid instructions. The applicant asked the Inquiry Officer on 8-5-2006 to provide him certain documents 32 in number in his defence, which he would be requiring to defend himself. The inquiry officer denied the access to 5 of those documents but without recording any reasons there for. Further, he requested Presenting Officer and Disciplinary Authority some more documents of which as many as 18 such documents were not provided despite the directions of the Inquiry Officer. No reasons have been assigned for the same. The thrust of the Respondents argument in this regard was that relied upon documents have been provided to the Applicant. Therefore, no prejudice would have been caused to him. We are not inclined to subscribe to this. Documents or records not so referred to in the statement of allegations may be relevant for the purpose of defence of the delinquent officer. Relevancy of the documents has already been determined by the Inquiry Officer by directing the supply of the same to the Applicant. Non-supply of the same would certainly operate to the prejudice and disadvantage of the Applicant and to that extent, we conclude that the Applicant has been denied reasonable opportunity which is violation of the principles of natural justice.
15. The entire gamut of the scam reveals that the fraud committed by the Offenders and conspirators have already been convicted in the Trial Court The next group of persons found by CBI as subsidiary offenders include the Applicant. The conduct or misconduct of the Applicant assumes relevance. It is admitted position that he is not the one, who has committed the fraud or misappropriated / embezzled the amount resulted in loss to the Government. The main culprit has been some other people. The allegations against the applicant leveled are that he has failed to make proper check and verification of the documents as envisaged in the relevant rules. He did not gain any pecuniary benefits personally on account of such failure in any way. We note that in Munna Lal Sharmas case (supra) this Tribunal considered similar issues and allowed the OA restoring the full pension to the Applicant in the said OA. The Honourable High Cort of Delhi has also upheld the decision of the Tribunal We find that the Applicant in the present OA is similarly situated person facining similar charges as in case of Munna Lal Sharma. Further, it is also an admitted fact that in response to similar allegations alleged to have occurred during the period and committed by many of the Applicants colleagues have been inflicted with minor penalty. The Respondents themselves have proceeded under minor penalty proceedings whereupon penalty of recovery of a sum of Rs.5000/- was ordered to be made on many similarly situated persons found to be in the category of subsidiary offenders. There is logic in the contention of Applicants counsel that he is similarly situated and circumstanced as Munna Lal Sharma and others. In these premises, imposition of penalty of dismissal from service appears to be on higher side and grossly disproportionate.
16. In the totality of the facts and circumstances of the case and for the reasons stated above, we are of the considered opinion that the Applicant has been prejudiced by the non supply of the documents and enquiry proceeding has been vitiated from that stage. We therefore have no other option but to quash and set aside the impugned orders and remit back the case to Inquiry Officer.
17. In terms of our above directions the Original Application is allowed, and the impugned orders of the Disciplinary, Appellate and Revision Authorities and the Inquiry Officers Report are accordingly quashed and set aside. Resultantly, the Applicant is reinstated to service and the case is remanded back to the Inquiry Officer to continue the enquiry from the stage where the procedural infirmity has crept in. The Disciplinary Authority while passing his order in the case would take into account our observation and more specifically the points discussed by us in this order and on the proportionality angle, and also pass order on the treatment of the period the Applicant had spent out side the service from the date his dismissal from service to the date of reinstatement. No order as to costs.
(Dr. K. B. Suresh) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
/pj/