Central Administrative Tribunal - Bangalore
M. Veerayya vs Union Of India (Uoi) And Ors. on 11 January, 2007
Equivalent citations: 2007(3)SLJ27(CAT)
ORDER G. Shanthappa, Member (J)
1. The applicant has filed this O.A. Under Section 19 of the A.T. Act, 1985, seeking the following reliefs:
(i) For quashing Order No. 8-121/2004/Vig-II dated 24.6.2004 of respondent No. 2 (Annexure-A/9), imposing the penalty of dismissal from service on the applicant and also for quashing Order No. 1-15/2005-Vig.III dated 29.3.2006 of respondent No. 1 (Annexure-A/12).
(ii) Consequently, for a direction on the respondents to reinstate the applicant in service will full back salary and continuity of service, with consequential benefits.
(iii) Grant any other relief as deemed fit in the facts and circumstances of the case.
2. The brief facts of the case are:
While the applicant who was married and working as Jr. Engineer in Bidar during 1979-80, one lady named Smt. Savithri made a complaint to the General Manager, Karnataka Circle, alleging that the applicant had married her and neglected to maintain her and her two children. Based on the said complaint, the Divisional Engineer called for an explanation from the applicant. After considering the explanation, the proceedings were dropped by an order dated 1.3.1985. The Director of Telecom, Hubli, issued a charge memo Under Rule 14 of CCS (CCA) Rules, 1965, dated 31.7.1985 (Annexure-A/1) on the applicant, alleging that the applicant had contracted second marriage in violation of the provisions contained in Rule 21(2) of CCS (Conduct) Rules, 1964. An enquiry was held and based on the findings of the enquiry, without furnishing a copy of the enquiry report, the applicant was dismissed from service vide order dated 31.12.1987. The applicant preferred an appeal. The Appellate Authority confirmed the punishment order vide his order dated 12.7.1988. Against the said orders, the applicant approached this Tribunal through O.A. No. 1877 of 1988. This Tribunal by its order dated 1.6.1990 (Annexure-A/2), disposed of the said O.A., setting aside the order of dismissal and directing the respondents to consider the explanation of the applicant to the enquiry report and take appropriate action.
3. Thereafter, a copy of the enquiry report was furnished to the applicant, to which he submitted his reply. After considering the reply, the applicant was again dismissed from service by an order dated 11.3.1993 and further confirmed in appeal vide order dated 24.11.1994. The applicant challenged both these orders before this Tribunal in O.A. No. 1978 of 1995. The O.A. was allowed on 31.12.1996 (Annexure-A/3), giving liberty to the respondents to hold a fresh enquiry and take a decision in the matter.
4. Based on the direction of this Tribunal in O.A. No. 1978 of 1995, the Telecom District Manager, Raichur, issued a charge memo on 6.5.1997 (Annexure-A/4). The charge is as follows:
That the said Sri M. Veerayya, while functioning as J.E., contracted second marriage while working as J.E., Bidar in violation of the provisions contained in Rule 21(2) of CCS (Conduct) Rules, 1964 and thus the said Shri Veerayya, J.E., displayed moral turpitude and acted in a manner which is unbecoming of a Government Servant, thereby contravened the provisions of Rule 3(1)(iii) of CCS (Conduct) Rules, 1964.
Along with the charge memo, a list of documents and a list of witnesses were also supplied.
5. The applicant approached this Tribunal vide O.A. No. 687 of 2002, seeking amongst other directions, a direction on the respondents to consider him for promotion to the higher grades and extend consequential benefits. The said O.A. was disposed of by this Tribunal, directing the respondents to complete the departmental enquiry and pass appropriate orders in accordance with law, within a period of six months. On extension of further time for three months allowed by this Tribunal on 2.1.2004, the enquiry was concluded. The enquiry report was submitted on 29.4.2004 and a copy supplied to the applicant. The applicant submitted his explanation to the enquiry findings on 8.6.2004. In his explanation the applicant has pointed out the irregularities. Thereafter, considering the explanation and the findings of the enquiry, the Disciplinary Authority passed the impugned order dated 24.6.2004 (Annexure-A/9), dismissing the applicant from service. The applicant preferred an appeal on 11.8.2004, challenging the order of the Disciplinary Authority. The Appellate Authority confirmed the order of dismissal on 29.3.2006 (Annexure-A/12).
6. The grounds urged by the applicant for challenging the impugned orders are:
(i) The respondents have violated the mandatory provisions of Rule 14 of CCS (CCA) Rules, 1965, since (a) the documents were not introduced through any of the witnesses but were submitted by the Presenting Officer and the contents of the documents were not proved (b) the sole witness, the complainant, Smt. Savitri has failed to depose in the enquiry in spite of being given a number of opportunities (c) The statements made in the documents were relied upon by the Enquiry Officer to arrive at his finding, which were not subjected to cross-examination (d) the Enquiry Officer failed to put questions to the applicant on the circumstances appearing against him in view of the fact that the applicant has not examined himself in the enquiry and thereby violated the mandatory provisions of Rule 14(18) of the CCS (CCA) Rules, 1965.
(ii) The impugned orders are not speaking orders since no reasons have been assigned.
(iii) The findings are based on imagination and surmises. The Appellate Authority has failed to consider the grounds of appeal and failed to exercise the powers vested in him Under Rule 16 of CCS Rules, 1965.
Based on the said grounds, the applicant has sought for quashing of the impugned orders in this O.A., and seeking consequential benefits.
7. Per contra, the respondents have filed a detailed reply rejecting the claim of the applicant. The respondents submit that on the charge of bigamy, an inquiry was conducted and based on the documentary evidence issued to the applicant, the charges were proved and accordingly, the Disciplinary Authority dismissed the applicant vide the impugned order. The Appellate Authority after considering all facts and circumstances, rejected the appeal of the applicant by a speaking order. All natural justice was extended to the applicant during enquiry. The applicant has failed to prove his case for grant of reliefs. As the explanation given by the applicant to the Divisional Engineer was not found satisfactory, a charge sheet was issued to him vide memo dated 15th June, 1981 and an oral enquiry was ordered. The charge sheet was subsequently withdrawn on technical grounds and Director (Telecom), Hubli, issued a fresh charge sheet on the applicant vide memo dated 31.7.1985. The respondents have denied that the enquiry has been held in violation of mandatory provisions of Rule 14 of CCS (CCA) Rules, 1965. The documents were introduced by the Presenting Officer and the applicant was permitted to inspect the documents as per rules. The witness though summoned, did not appear in the hearing. The statements relied upon during enquiry are the written statements of the applicant and he was at liberty to produce himself as defence witness during enquiry and question the authenticity of the statements. As the applicant has not produced himself as a witness during enquiry, he has not been examined by the Enquiry Officer. The applicant was provided with every opportunity and he also submitted his written brief of defence, it cannot be concluded that enquiry has been vitiated by not putting mandatory question to him by the Enquiry Officer. The findings of the Enquiry Officer are based on accepted documents and not on imagination and surmises. The Disciplinary Authority and the Appellate Authority have considered all facts and circumstances of the case before arriving at the decision regarding penalty to be imposed on the applicant. The enquiry proceedings have been held in accordance with the provisions of CCS (CCA) Rules, 1965, and charge has been proved against the applicant on the basis of records. As per Rule 21(2) of CCS (Conduct) Rules, 1964, no Government servant having a spouse living, shall enter into or contract a marriage with any person. Since the applicant admitted in his statement of the earlier marriage, the charge levelled against him is proved. This Tribunal had directed in O.A. No. 1978 of 1995 that the department is at liberty to direct fresh enquiry under CCS (CCA) Rules. The applicant had filed O.A. No. 1816 of 2000 for granting him ad-hoc promotion. In compliance of the judgment dated 6th May, 2004, in O.A. No. 687 of 2002, the final order was issued by the department on 24th June, 2004. The Appellate Authority has considered the grounds of appeal in accordance with the provisions of CCS (CCA) Rules, 1965, in consultation with U.P.S.C. Upon consideration of all facts and circumstances of the case, the Appellate Authority came to the conclusion that the penalty imposed on the charged officer was justified and as such, his appeal was rejected. The respondents submit that there has been no violation of rules and principles of natural justice while imposing the penalty on the applicant. As such, the reliefs claimed by the applicant should be rejected and the O.A. dismissed.
8. We have heard the learned Counsel for the applicant, Mr. A.R. Holla, and the learned Addl. CGSC, Mr. S. Sugumaran for the respondents.
9. After a careful consideration of the rival contentions and pleadings, the short question that arises for consideration is whether the procedure laid down for conducting enquiry has been followed by the respondents and notice issued by them to the applicant along with U.P.S.C.'s opinion before passing of the final orders?
10. It is an admitted fact from either side that the charge memo dated 31.7.1985 (Annexure-A/1), was supplied to the applicant. Along with the articles of charge (Annexure-I), the statement of imputation of misconduct in support of the charge (Annexure-II), the list of documents (Annexure-III) and list of witnesses (Annexure-IV), have been supplied to the applicant. The applicant submitted his representation denying the charges. The applicant had earlier approached this Tribunal in O.A. No. 1877 of 1988 against the orders of the Disciplinary Authority dismissing him from service vide the order dated 31.12.1987 and the Appellate Authority confirming the said penalty. This Tribunal disposed of the O.A. by setting aside the orders of the Disciplinary Authority and the Appellate Authority and remitting the matter to the Disciplinary Authority to continue the proceedings from the stage of the Enquiry Officer's report. Subsequent to the said order, enquiry was held that the applicant was dismissed from service. Against this order of dismissal dated 11.3.1993, the applicant approached this Tribunal by filing O.A. No. 1978 of 1995. This Tribunal by its order dated 31.12.1995 disposed of the O.A. setting aside the findings of the Disciplinary Authority as also the penalty imposed on the applicant, which was affirmed by the Appellate Authority and Revisional Authority and directed the respondents to reinstate the applicant into service. Liberty was given to the respondent-department to direct a fresh enquiry under CCS (CCA) Rules, if the department felt so, within three months. Para 3 of the order dated 31.12.1995 in O.A. No. 1978 of 1995 is extracted below:
Having heard arguments on both sides, we feel this application could be disposed of by referring to facts which are in narrow compass. We have no hesitation in agreeing with the contention of the learned Counsel for the applicant that the procedure laid down under Rule 14 of the CCS (CCA) Rules has not been followed by the Enquiry Officer. He committed a grave error in calling upon the applicant, examined 3 witnesses and thereafter Savitri entered the box. Rule 14 makes it mandatory that after written statement is filed, the Disciplinary Authority shall place its evidence and thereafter the witnesses for the delinquent official may be examined. It is note worthy that the Enquiry Officer without there being any witness to speak about the contents of the documents relied upon by him, straightaway referred to a good number of documents to support his finding that the charge of bigamy as proved. In our view, this is not the procedure laid down by rules to be followed and the applicant was prejudiced by the manner in which the enquiry was conducted. The learned Sr. Central Government Standing Counsel for the respondents was asked if the case does not involve complicated question of law and fact which could be decided only in a Civil Court. He stated that the law is well settled in this behalf that if the fact of taking a wife in marriage is either admitted or is established then the Disciplinary Authority can certainly act on the material establishing charge and take action under the rules. Therefore, according to him, it is no where laid down as a rule that whenever a question of bigamy is involved, the Disciplinary Authority should take off his hands and leave the matter to the Civil Court. It all depends on the nature of evidence relied upon by the Disciplinary Authority and whether he complied with the prescribed procedure and if at all there is violation, the same can be challenged in the judicial forum. Therefore, according to him, when this Tribunal finds that there was the transgression of the rules of procedure, it is only desirable that an opportunity should be given to comply with the relevant rules in completing inquiry and then test if the evidence and other material produced is sufficient to hold the charge as proved. We think this course should be adopted by us when we find that the Enquiry Officer was not justified in not following the mandatory requirements prescribed in Rule 14 of the CCS (CCA) Rules. Leaving other contentions open, we think on this ground alone the application has to be allowed and it is allowed. We set aside the findings of the Disciplinary Authority and the penalty imposed by him and affirmed by the Appellate Authority and the Revisional Authority and direct that the applicant shall be reinstated within 2 weeks from the date of receipt of a copy of this order. The department, however, is at liberty to direct a fresh inquiry under the CCS (CCA) Rules. It at all the department feels a fresh inquiry should be ordered, this decision shall be taken within 3 months from the date of receipt of a copy of this order. The period involved from the date of dismissal till reinstatement, shall be regulated by the Disciplinary Authority, keeping in view FR 54(A) of FR regarding his back wages.
Subsequent to the said order, the memo dated 6.5.1997 at Annexure-A/4 was issued with a copy of the charge memo dated 31.7.1985. The applicant then filed O.A. No. 687/2002, praying for quashing of the proceedings under the said charge memo. This Tribunal disposed of the O.A. on 25th April, 2003, with the following direction:
In the light of the facts, the respondents are directed to have the departmental enquiry against the applicant completed and pass appropriate orders in accordance with law within a period of six months from the date of receipt of a copy of this order. The applicant will be given a reasonable opportunity as per law to defend himself. The applicant will cooperate with the Competent Authorities for speedy completion of the enquiry within six months.
Subsequently, the enquiry was conducted The applicant participated in the enquiry and Enquiry Officer submitted his report.
11. We have carefully examined the enquiry report as per Annexure-A/7. It is an admitted fact from either side that no oral evidence has been recorded by the Enquiry Officer. Based on the documents at Annexure-III to the charge memo, the Enquiry Officer came to the conclusion that the charges levelled under Article-I of the memorandum dated 31.7.1985 as proved beyond doubt. It is relevant to extract the procedure followed by the Enquiry Officer as per page 2 of the enquiry report dated 29.4.2004, which is as follows:
The charges framed against the said Sri M. Veerayya, SDE Bidar, were proposed to be sustained with the help of the documents listed vide Annexure-3 of the charge sheet.
The charges framed against the said Sri M. Veerayya, SDE Bidar, were also proposed to be sustained with the help of the witness vide Annexure-IV of the charge sheet as under.
(1) Smt. Savitri - Complainant Sri P.M. Balachandran, the then Superintendent of Post Offices, Raichur, and Shri B.N. Reddi, the then SDOT, Raichur, were initially appointed as I.O. and P.O. respectively by the then Disciplinary Authority i.e. TDM Raichur.
Preliminary hearings were conducted at Raichur by Sri P.M. Balachandran the then I.O. on 26.5.2000, 13.6.2000 and 23.6.2000. In these sittings, business up to the production and verification of documents listed in Annexure-III of the charge sheet was completed. The following five members were permitted by I.O. as defence witnesses to defend the case based on the request of the charged officer.
1. Sri Veerbhadrayya C/o M. Veerayya Bidar.
2. Smt. Ratnabai C/o M. Veerayya Bidar.
3. Sri Gundayya C/o M. Veerayya Bidar.
4. Smt. Sugalamma W/o late Gurunath Swami Bhalki.
5. Smt. Sharada W/o M. Veerayya Bidar.
The undersigned continued the inquiry from the stage where it was left by Sri P.M. Balachandran. The regular hearings were conducted at Bidar on 29.1.04, at Gangavati on 17.2.04 and 9.3.04, at Gulbarga on 15.3.04 and again finally at Bidar on 26.3.04.
Examination of lone witness Smt. Savitri was stated during the sittings at Gangavati and Gulbarga. The witness Smt. Savitri did not attend the sittings on any day. She had refused to accept notices for any of the hearings. Specially, sittings were held at Gangavati for the convenience of the witness as she was staying there. Though all the opportunity was extended, the witness, who was the original complainant and on whose complaint the disciplinary action was initiated, chose not to be present during the inquiry proceedings.
During the sitting on 26.3.04, examination of witnesses was concluded as defence witnesses also failed to appear and the C.O. withdrew their presentation. During this sitting, both parties i.e. the P.O. And C.O. opted for written briefs instead of oral arguments. Accordingly, P.O. submitted this brief on 31.3.04 and copy of the same was given to the C.O. on 1.4.04 and C.O. submitted his brief dated 21.4.04 on 26.4.04.
The P.O. in his brief has relied on all the documents of the Annexure-III of the charge sheet and argued that the charges were proved.
The C.O. in his brief had argued that, (1) The witness has failed to testify her complaint dated 23.10.1980 based on which the charge sheet was issued.
(2) There is no proof for his alleged marriage with Smt. Savitri.
(3) A mere complaint cannot be accepted as a fact and the issues are concocted. And CO. submitted various Court/CAT decision in support of his points.
12. We have carefully examined the observations made by the Enquiry Officer. The Enquiry Officer has not recorded the evidence but had come to the conclusion based only on the documents. We consider these observations as no evidence at all. Mere coming to conclusion based on documents cannot prove that charges are based on evidence. When the complainant has never attended any of the sittings of enquiry or has come forward to give her evidence, the averment made in the complaint is not proved. The observation made by the Enquiry Officer that the charge against the applicant has been proved, is not sustainable in the eye of law.
13. The learned Counsel for the applicant, in support of his case, has relied on the judgment of the Hon'ble Apex Court in the case of Balkishan A. Devidayal v. State of Maharashtra . It was held in the said case that incriminating statements made during enquiry, protection under Article 20(3) of the Constitution is not available. Article 20 of the Constitution of India reads as follows:
(1) xxx xxx xxx (2) xxx xxx xxx
(3) No person accused of any offence shall be compelled to be a witness against himself.
The Hon'ble Apex Court has held in the above mentioned judgment at Paras 64 to 70 as under:
64. Clause (3) of Article 20 of the Constitution reads thus:
No person accused of any offence shall be compelled to be a witness against himself.
An analysis of this clause shows three things. Firstly, its protection is available only to a "person accused of any offence". Secondly, the protection is available only to a "person accused of any offence". Secondly, the protection is against compulsion "to be a witness". Thirdly, this protection avails "against himself.
65. It follows that if any of these ingredients does not exist, this Clause (3), will not be attracted. Keeping this in mind, it will be appropriate to concentrate on the first point as to whether during the inquiry under Section 8 of the 1966 Act when the appellant made the incriminating statement in question, he was a "person accused of any offence" within the contemplation of Article 20(3).
66. In M.P. Sharma v. Satish Chandra (ibid) which is a decision by a seven Judges Bench of this Court, it was held that determination of this issue will depend on whether at the time when the person made the self-incriminatory statement, a formal accusation of the commission of an offence had been made against him. "Formal accusation" is ordinarily brought into existence by lodging of an F.I.R. Or a formal complaint to the appropriate authority or Court against the specific individual, accusing him of the commission of a crime which, in the normal course, would result in his prosecution. It is only on the making of such formal accusation that Clause (3) of Article 20 becomes operative covering that individual with its protective umbrella against testimonial compulsion.
67. The interpretation placed by the Court in M.P. Sharma 's case, on the phrase "person accused of any offence" used in Article 20(3) was reiterated in Bhagwan Das v. UOI (Crl. As. Nos. 131-132 of 1961, D/-20-9-1963 (SC) (ibid). It was reaffirmed in Raja Narayanial Bansilal v. Maneck Phiroz Mistry ).
68. Again, in the State of Bombay v. Kathi Kalu Oghad one of the propositions enunciated by the Court was that to bring a statement within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused anv time after the statement has been made. The same proposition was reiterated by Gajendragadkar C.J. In Joseph Augusthi (ibid), and again by the Constitution Bench in Ramesh Chand Mehta's case . In the instant case, at the time when the alleged incriminating statement was made before the Officer of the R.P.F., no formal complaint in regard to the commission of an offence had been filed against him in Court, nor had any F.I.R. been lodged with the Police specifically accusing the appellant or the author of that statement of the commission of an offence. It is, therefore, manifest that at the material time the author of the self-incriminatory statements in question, did not fulfil the character of a "person accused of an offence" within the meaning of Article 20(3).
69. The last authority to be noticed in regard to the interpretation of the phrase "person accused of any offence", in Ramanlal Bhogilal Shah's case AIR 1973 SC 1196 (ibid). The petitioner Ramanlal Bhogilal Shah was arrested under Section 19-B of the Foreign Exchange Act. The grounds purportedly served on him under Sub-section (1) of Section 19-B for the offence under Section 4(2) and Section 22 of the Act, punishable under Section 23, were elaborate. The question arose whether after these grounds had been served on the petitioner, it could be said that he was 'a person accused of an offence' within Article 20(3) of the Constitution. The petitioner was produced before the Magistrate, who released him on bail. Thereafter, First Information Report was recorded under Section 154,. Criminal Procedure Code, and an order was obtained from the Magistrate, permitting the investigation to be made under Section 155(2) Criminal Procedure Code. The Enforcement Officer had examined the petitioner and put his conclusions in the grounds of arrest which were served on the petitioner. Under these circumstances, the Court held that the petitioner was definitely a "person accused of an offence" within the meaning of Article 20(3) of the Constitution and at any rate, the petitioner was accused of an offence when the F.I.R. was recorded and, therefore, the summons issued by the Enforcement Directorate would be illegal. At the same time, it was held that although the petitioner is a 'person accused of an offence' the only protection that Article 20(3) gave him is that he could not be compelled to be a witness against himself, but this did not mean that he need not give information regarding matters which do not tend to incriminate him. Consequently, the Court did not set aside the summons and held that the petitioner was bound to appear before the Enforcement Directorate and answer such questions that did not incriminate him.
70. To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person "accused of an offence" within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an F.I.R. or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in Court. In the instant case, no such formal accusation had been made against the appellant when his statement(s) in question were recorded by the RPF Officer.
14. It has been submitted by the learned Counsel for the respondents in the present case that since the applicant did not come forward to give his evidence, the charges were proved based on the documents, hence the above judgment of the Apex Court is not applicable to the facts of the case.
15. We have carefully examined the facts of the case, Article 20(3) of the Constitution and the above mentioned judgment of the Apex Court. We find that in the present case also, the respondents have compelled the applicant to give evidence. This is not called for. The applicant was furnished with a copy of the enquiry report and the applicant has submitted his representation denying the charges and pointing out the lacuna during enquiry. Based on the enquiry report and the applicant's representation dated 8.6.2004, the Disciplinary Authority passed the penalty order dated 24.6.2004 at Annexure-A/9, dismissing the applicant from service. On a careful examination of the order of the Disciplinary Authority, we find no reasons have been assigned while accepting the enquiry report. The concluding para of the impugned order dated 24.6.2004 is only imposing the penalty of dismissal from service. Prior to the conclusion, no reasons have been assigned. Hence, we are of the opinion that the order dated 24.6.2004 is not a speaking order and is not sustainable in the eye of law.
16. The applicant preferred an appeal before the Appellate Authority (Annexure-A/10), raising many grounds. During the pendency of appeal, the applicant approached this Tribunal vide 0. A. No. 354/2005. This Tribunal disposal of the 0. A. on 27.1.2006 directing the Appellate Authority to dispose of the appeal expeditiously and not beyond two months. The Appellate Authority decided the applicant's appeal on 29.3.2006 after obtaining advice from U.P.S.C. on 13.3.2006 Paras 9 and 10 of the order of the Appellate Authority reads as under:
9. The President is the Appellate Authority in this case. After approval by the MOS (C & IT) the case was sent to UPSC for advice on 8.2.2006 and now the advice of UPSC has been received vide letter No. F. 3/480/2005-S1 dated 13.3.2006. In their advice, UPSC have concluded that Shri M. Veerayya had married Savitribai before he joined the Department and as per his own statement, he married Smt. Sharada on 6th June, 1979. Thus he contracted second marriage while his first wife was alive. As per advice of UPSC, the Department was fully competent to initiate disciplinary proceedings against Shri M, Veerayya and dismiss him from service. Taking into account all the aspects relevant to the case, UPSC have advised that ends of justice would be met in the case if the appeal of Shri M. Veerayya, Ex-SDE is rejected.
10. Therefore, taking into account all the facts and circumstances of the case and assessing the case in its totality, the President has accepted the advice of the UPSC in this case and ordered that the appeal of Shri M. Veerayya, Ex-SDE, may be rejected. A copy of the UPSC letter No. F.3/480/2005-S 1 dated 13.3.2006 is enclosed.
17. It is seen from the above conclusion, the Appellate Authority has not decided the appeal on his own but was influenced by the opinion of UPSC. Before taking a final decision in the case, the Appellate Authority has not supplied to the applicant a copy of UPSC's advice. On this point, we refer to the two following decisions of the Hyderabad Bench and Ahmedabad Bench of the Tribunal:
(i) M. Gopala Krishna Murthy v. UOI and Ors. O.A. No. 1730/2000 decided on 28.8.2001, reported in 2001(3) ATJ 279.
(ii) Mahendra Doshi v. UOl and Ors. O.A. No. 219/2001 decided on 23.4.2004, reported in 2005(1) SLJ 155.
18. In O.A. No. 1730/2000, the applicant who was an Audit Officer, was alleged to have abused his position in demanding and accepting bribe of Rs. 1000 from the decoy in order to drop the audit objection against his pay fixation. Disciplinary proceedings were initiated and the Enquiry Officer found the charge of demanding not proved. With regard to acceptance of money, thrusting of money into his hands alone was established and there was no evidence as to his acceptance. UPSC, in its advice, displaced the findings and found the applicant guilty. President accepted the findings of UPSC and passed the impugned order of withholding of entire pensionary benefits. The Hyderabad Bench of the Tribunal quashed the impugned order on the ground that advice of UPSC has not been supplied to the applicant before passing the final order.
19. In O.A. No. 219 of 2001, the applicant had approached the Ahmedabad Bench of the Tribunal against the disciplinary proceedings and the final order of punishment. Though UPSC and CVC had been consulted in the matter, their reports had not been furnished to the applicant before passing of the final orders. The Ahmedabad Bench of the Tribunal held that Supreme Court in their various decisions have opined that copy of CVC/UPSC report has to be given to the delinquent along with the show cause notice to enable him to give an effective reply. As such, the impugned orders were quashed. The Disciplinary Authority was directed to issue a show cause notice containing the decision on merits without being influenced by the advice of CVC. A direction was also given to provide the applicant a copy of the CVC and UPSC advice to enable the applicant to make his representation against the report before passing of the final orders.
20. The learned Counsel for the applicant has relied on the judgment of the Apex Court in Civil Appeal No. 3091 of 1995-Ministry of Finance and Anr. v. S.B. Ramesh 1998(2) SLJ 67 in respect of violation of Sub-rule (18) of Rule 14 of CCS (CCA) Rules, to support the case of the applicant. The Hon'ble Supreme Court, by its order dated 2.2.1998, dismissed the appeal holding that the Tribunal was justified in rendering the findings and setting aside the impugned order.
21. In the present case, though enquiry was held, Sub-rule (18) of Rule 14 of CCS (CCA) Rules has not been complied with fully. It is relevant to extract the said Sub-rule which is as follows:
14. (18) The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
22. We have carefully examined the provisions of the relevant rules, the procedure adopted by the Enquiry Officer and also the ratio of the above mentioned judgment of the Hon'ble Supreme Court. On the facts of the case, we are of the view that the departmental enquiry conducted in this case is totally unsatisfactory, without following the minimum procedure for proving the charge.
23. The learned Counsel for the applicant has relied on the judgment of the Principal Bench of the Tribunal in Lalit Kumar v. UOI and Ors. O.A. No. 831 of 2004 decided on 18.2.2005 reported in 2006(1) SLJ 86. The said judgment also relates to violation of Rule 14(18) and non-supply of UPSC advice before passing of final orders by the Appellate Authority.
24. The facts of the case before the Principal Bench are squarely applicable to the facts of the case before us. Hence, the procedure followed by the respondents is not in conformity with Sub-rule (18) of Rule 14 of CCS (CCA) Rules, 1965. Besides, a copy of the advice of UPSC was not furnished with the show cause notice to the applicant. As such, the impugned orders are not sustainable. We are of the considered view that based on the enquiry report and the orders of the Disciplinary Authority and Appellate Authority and the reasons assigned in the preceding paras, the charge levelled against the applicant is not proved. The procedure followed by the respondents in holding the applicant guilty of the charge, is violative of the principles of natural justice.
25. Accordingly, we quash the impugned orders and direct the respondents to reinstate the applicant in service from the date he was dismissed from service, with full back salary and other consequential benefits.
26. The learned Counsel for the respondents submits when this Tribunal has come to the conclusion that there is a lacuna in the conduct of enquiry and hence a direction be given by this Tribunal to the Enquiry Officer to proceed with the enquiry from the stage where the lacuna has been committed.
27. It has already been held by this Tribunal in O.A. No. 1978 of 1995 that when there has been transgression of rules of procedure, an opportunity should be given to comply with the relevant rules in completing the enquiry and then test if the evidence and other material produced is sufficient to hold the charge as proved since the Enquiry Officer was not justified in not following the mandatory requirements prescribed in Rule 14 of CCS (CCA) Rules. Hence, how giving a direction to the Enquiry Officer to conduct the enquiry from the stage where lacuna has occurred, does not arise. Accordingly, the contention of the learned Counsel for the respondents is rejected.
28. Since the applicant has attained the age of superannuation on 31st August, 2006, it is not possible to reinstate him into service. However, formal orders of his reinstatement in service has to be issued by the respondents and thereafter, all consequential benefits have to follow. The respondents are directed to comply with the above directions within a period of three months from the date of receipt of a copy of this order.
29. This O.A. is allowed to the extent as indicated above. No costs.