Delhi High Court - Orders
Uoi & Anr vs Satnam Singh & Anr on 17 November, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
$~R-257
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7844/2007
UOI & ANR ..... Petitioners
Through: Ms. Manisha Agrawal Narain, CGSC
with Ms. Rakshita Goyal, Mr.Sandeep
Singh Somaria & Ms. Mona Dureja,
Advocates for Respondent/ UOI.
versus
SATNAM SINGH & ANR ..... Respondents
Through: Respondent No.1 in person.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 17.11.2022
1. The present petition is arising out of order dated 05.04.2007 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1086/2006 titled "Shri Satnam Singh vs. Union of India & Ors."
2. The facts of the case reveal that the Respondent/employee who was a member of the Indian Administrative Service (IAS) was promoted as Senior Scale Officer in 1980 and Junior Administrative Grade (JAG) on 11.10.1987. While he was serving with the Government, a charge-sheet for misconduct was issued under Rule 14 of the CCS (CCA) Rules, 1965 on 05.05.1992 alleging that he furnished a false Transfer TA claim (TTA claim). After issuance of the charge-sheet, he demanded certain documents, i.e. the alleged TTA claim form and the same was not given to him. It is in those circumstances, after a punishment was inflicted upon him, i.e. for stoppage of two increments, he came before the Tribunal by filing an Original Application, i.e. O.A. No. 34/2003. The Original Application was Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34 disposed of by the Tribunal and the matter was remanded back to the Disciplinary Authority to proceed ahead afresh from the stage mentioned by the Tribunal. The order passed by the Tribunal is reproduced as under:-
"Applicant impugns penalty order, dated 10.7.2002 imposing upon him punishment of withholding of two increments with cumulative effect. He has sought quashment of the aforesaid with consequential benefits.
2. Applicant, while posted as Deputy Director (AS) , was proceeded against in a major penalty chargesheet under Rule 14 of the CCS(CCA) Rules 1965 for claiming false TTA claims as well as transportation of personal effects. He has also been served several memos to substantiate the claims.
3. Though earlier the annexures and documents were not served upon applicant on his request by an order dated 21.9.1995, the relevant documents have been served.
4. Applicant through his communication dated 28.10.1995, demanded a copy of the TA Bills which is a subject matter of the inquiry as well as copy of the preliminary inquiry report and statements recorded therein, however, the same have not been served upon the applicant.
5. Though no witnesses were examined in the inquiry, the inquiry officer relying upon confidential inquiry made by the Collector which allegedly found the claim of the applicant as bogus held the applicant guilty of the charge. On receipt of the inquiry report, applicant vide its communication dated 16.3.1999 demanded the aforesaid documents with a view to file the effective reply but the same were not served upon the applicant as such he has filed his reply reiterated his demand.
6. The matter was referred to the UPSC for advice. In the advice of the UPSC, the aforesaid contentions have not been considered and the confidential inquiry was relied upon to recommend withholding of two increments cumulatively.
7. By an order dated 10.7.2002 on the basis of advice of the Commission, President of India being the disciplinary authority Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34 imposed the aforesaid punishment.
8. Shri B.S. Mainee, learned counsel for applicant, apart from the other legal contentions raises issue of non-supply of the relied documents which were essential to the defence of the applicant vitiate the proceedings as the applicant has been deprived of an opportunity to effectively defend the charge. Despite demand, the documents have been denied without any justification and reasons.
9. The preliminary inquiry is a formal inquiry which precedes disciplinary proceedings and in the nature of an investigation into the circumstances to unearthen the allegations, quantum of misconduct and the evidence in support. As all the factors and components of preliminary inquiry are satisfied in the confidential inquiry which has been relied upon by the authorities, taking into account this extraneous matter without putting the applicant into notice for his rebuttal, vitiates the proceedings which in violation of the principle of natural justice as well as fair play.
10. On the other hand, respondents‟ counsel, Shri Madhav Manikar, vehemently opposed the contentions and stated that the conduct of the applicant of not responding to the memos and his failure to explain itself proves the misconduct.
11. Moreover, it is stated that it has been proved during the course of inquiry that the applicant has forwarded false TTA claims whereas his family had not been residing with him, and as it is not necessary to supply preliminary inquiry report, the inquiry has been conducted in accordance with rules and the orders passed are reasoned, respondents‟ counsel prays for dismissal of the OA.
12. We have carefully considered the rival contentions of the parties. It is a settled position of law that any document which is required for the defence of the charged officer, and is in possession of the departmental authorities, is to be served upon him.
13. Moreover, a relied upon documents on the basis of which the finding of guild has been arrived at is necessarily to be Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34 served upon the charged officer when a specific request is made by him.
14. In so far as the confidential inquiry conducted by Collector at Madurai, the same had not been furnished to the applicant despite his specific request. In view of the decision of the Apex Court in State of U.P. & Others v. Shatrughan Lal, JT 1998 (6) SC 55, denial of preliminary inquiry report and statements vitiates the proceedings.
15. In so far as the applicant has been denied an opportunity for want of these documents, to rebut the conclusions arrived at and to effectively defend the charge, the action of the respondents is in violation of principles of natural justice and fair play which is inbuilt in the procedure laid down under Rule 14 of the CCS (CCA) Rule, 1965.
16. In view of the above, in our considered view, the impugned orders cannot be sustained in law.
17. In the result, for the forgoing reasons, OA is partly allowed. Impugned orders are quashed and set-aside. Applicant shall be entitled to all consequential benefits. However, if so advised, the respondents are at liberty to resume the proceedings from the appropriate stage in accordance with rules. No costs."
3. In spite of there being a direction by the Tribunal to conclude the departmental enquiry, the matter was delayed by the Department and a second Original Application was preferred, i.e. O.A. No. 3049/2004, wherein a categorical direction was passed to the employer on 23.12.2004 to complete the enquiry, preferably within six months. The order dated 23.12.2004 is reproduced as under:-
"The applicant had earlier filed O.A.34/2003. This Tribunal had quash the order passed by the disciplinary authority holding that the applicant should have been supplied the copy of the preliminary enquiry report.Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34
2. The applicant‟s learned counsel contends that only on
24.5.2004, a copy of the said report has been supplied and no enquiry officer has been appointed but no further action thereafter has been taken.
3. Keeping in view the said facts and also that the enquiry is pending for sufficiently long time, it is directed that the disciplinary authority will direct the enquiry officer to complete the enquiry at the earliest preferably within six months of the receipt of the certified copy of the present order subject to applicant co-operating in the same. With these directions, the O.A. is disposed of."
4. In spite of the order being passed by the Tribunal to conclude the departmental enquiry within six months, as the enquiry was not concluded, a contempt petition was preferred before the Tribunal being C.P. No.292/2005, which was disposed of by order dated 29.11.2005 and the following order was passed in the matter:-
"Respondents have filed MA 1580/2005 seeking extension of time to implement the „Tribunal‟ order dated 23.12.2004 whereby respondents were directed to direct the enquiry officer to complete the enquiry at the earliest preferably within six months of the receipt of the certified copy of the present order subject to applicant co-operating in the same.
2. It is stated by the respondents that after the orders were received by them they had appointed Sh. Kaushal Srivastava as Inquiry Officer on 8.2.2005 but he had to be relieved due to some administrative reasons. Thereafter Shri K.R. Bhargava was appointed as Inquiry Officer but due to his pre occupation the enquiry could not be concluded. He has started the inquiry but from 21.7.2005 applicant is not cooperating, therefore time may be extended by another 6 months.
3. Application for extension of time was vigorously opposed by the counsel for applicant, on the ground that this MA has been filed after the expiry of six months, therefore, this Court has Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34 become functus officio and MA cannot be entertained. It may, therefore, be dismissed. He has relied on the judgment given by the Tribunal in the case of Union of India Vs. Suraj Bhan reported in ATJ 2004 (1) page 330) and K.B. Bhardwaj Vs. UOI reported in 2002(2) ATJ 478).
3. We have heard both the learned counsel and perused the pleadings as well. Counsel for respondents produced two letters dated 30.9.2005 written by Shri Rajiv Rai, Deputy Secretary to the Govt. of India to counsel intimating him that the case was fixed by the Inquiry Officer on 21.7.2005, 17.8.2005, 6.9.2005, 16.9.2005 and 26.9.2005. However, applicant did not cooperate inasmuch as he has stated that he has already filed CP and some orders are likely to be passed thereon and also letter written by applicant himself addressed to the Inquiry Officer to the effect that he is retiring on 30.9.2005, as such he may not be in a position to examine and receive the official documents and it is very likely that he may not be able to keep them safely because he is required to pack up his belonging hurriedly. He has also stated that since he has filed CP it would be better to await the outcome of the CP as order is likely to be passed by the Tribunal.
4. From the above facts it is clear that respondents as well as applicant both are at fault. Initially respondents took time to change the Inquiry Officer but after Inquiry Officer was changed, applicant did not cooperate with the Inquiry Officer as is clear that inquiry was fixed on 21.7.2005, 17.8.2005, 6.9.2005, 16.9.2005 and 26.9.2005 but applicant did not attend the same on the ground that 6 months have already expired.
5. The question is whether applicant could have refused to attend the enquiry officer 6 months or whether inquiry would have come to end automatically thereafter. We are clear in our mind that order dated 23.12.2004 cannot be interpreted in this manner because the words used by Tribunal were preferably within six months from the date of receipt of the order.
6. Preferably only means desirable. It cannot be stretched to mean that inquiry could not have continued beyond 6 months as was being suggested by the counsel for applicant. Since the Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34 word used was preferably, enquiry could go beyond 6 months also therefore, it is wrong to suggest that after 6 months, enquiry would abate or court would become functus officio. The judgments relied upon by counsel are distinguishable as in those cases positive directions were given to do something within stipulated period. The word preferably was not used there. It was in those circumstances held that any action taken by respondents beyond the stipulated period would be without jurisdiction. Therefore, they are not applicable in the present case.
7. We are satisfied that the present Inquiry Officer wants to complete the inquiry, therefore, last opportunity is given to the respondents to complete the enquiry within 6 months positively. This period of 6 months would commence from 21.7.2004 i.e. 6 months after the copy of order was received by them which is stated to be on 13.1.2005. The respondents should now complete the enquiry positively by 31.1.2006 provided applicant cooperates. It is made clear that if inquiry is not completed by 31.1.2006, the same shall stand as dropped. In case applicant does not cooperate, inquiry officer shall proceed in accordance with law.
8. With the above directions, MA is disposed off.
9. In view of the order passed in MA, CP does not lie at this stage. The same is accordingly dropped with liberty to the applicant, that in case, any grievance still survives after 31.1.2006, he may seek redressal in accordance with law."
5. The contempt proceedings were dropped and in spite of there being an order to conclude the departmental enquiry, the enquiry was not concluded. As the same were not concluded, MA No. 245/2006 was preferred by the employer to grant a further period beyond 31.01.2006 to complete the enquiry. The Tribunal has dismissed the application by an order dated 03.04.2006 and the said order is reproduced as under:-
Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34"By the present Miscellaneous Application, respondents seek extension of two months more time to complete the inquiry in terms of order passed by this Tribunal on 29.11.2005 in CP 292/2005. Since the said period has already expired, the present Miscellaneous Application has become infructuous. Accordingly the same is disposed of."
6. The Respondent employee superannuated on 30.09.2005. He preferred O.A. No. 1086/2006 stating that as no time was granted by the Tribunal to conclude the departmental enquiry his terminal dues and other dues had not been paid to him. The Petitioner claimed consequential benefits on account of closure of the departmental enquiry in terms of the order passed by the Tribunal. The Tribunal has allowed the Original Application and paragraphs 8 and 9 of the order passed by the Tribunal read as under:-
"8. An order of the Tribunal is binding on respondents. An order passed in OA on 29.11.2005 made it clear to the respondents that enquiry is to be completed positively by 31.1.2006, though subject to cooperation by applicant, if not, nothing precluded the enquiry officer on liberty to proceed in accordance with law. In this view of the matter, applicant has sought for documents on 11.10.2004, yet the proceedings held on 21.5.2006 show that for the first time the enquiry officer had sought for examination of witnesses. Right from 29.11.2005 till 25.1.2006 when two months clear time was available to the enquiry officer and applicant was cooperating has not even called these witnesses for examination and only after the date was approaching the enquiry officer called the witnesses on 25.1.2006, which is hardly six days away from the cut off date. The act of applicant to refuse examination is his right, as from the Tribunal‟s order we find that respondents were directed to positively conclude the enquiry by 31.1.2006, for want of any material on record to show that right from 29.11.2006 till Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34 31.1.2006 applicant has failed to cooperate with the enquiry, nothing precluded the enquiry officer to close the enquiry and give its finding and if at all non-cooperation has come-forth from applicant to resort to exparte proceedings. Having not done so, the cut off date of 31.1.2006 is sacrosanct in the present case and cannot be exceeded to. In the order passed on MA for extension this Tribunal specifically has extended this date as 31.1.2006 to some other date for completion of enquiry. Rejection of MA for extension on the ground that time prayed for had already expired is not tacit or express approval as to accede to the request of department to extend time, as held in Pranab Kumar Datta (supra) that if the time limit prescribed for completing the enquiry with the conditions attached fulfilled cannot be extended for want of any extension of time is deemed to be closed. The decision in K.B. Bhardwaj (supra) having failed to complete the enquiry within the prescribed time even punishment imposed has been held to be without jurisdiction. The justification tendered by respondents where their own enquiry report suffers from infirmities in the dates, as the enquiry report is dated 21.1.2006 and certain proceedings have been wrongly mentioned, shows that the enquiry officer has not paid any heed to the directions of the Tribunal and it is his laxity and inordinate delay which has overshot the period of limitation laid down by the Tribunal to complete the enquiry. In such view of the matter, we do not want applicant to suffer any more and deem the enquiry as closed, as per the directions of the Tribunal, which cannot be acted, in any manner adverse to the interest of applicant.
9. Resultantly, for the foregoing reasons, OA is allowed. We declare that the disciplinary proceedings against applicant are deemed as dropped. In this view of the matter, applicant shall be entitled to all consequential benefits as also his consideration on opening the sealed cover for promotion to the NFSG and SAG w.e.f. 24.5.1991 and 1.11.2002 respectively with all consequential benefits. This shall be done within a period of two months from the date of receipt of a copy of this order. No costs."
7. We are in the year of 2022 and an interim order is continuing in the Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34 present case. In the considered opinion of this Court, once a departmental enquiry has not concluded within the time frame as directed by the Tribunal, and no further extension was granted by the Tribunal and the order declining extension of time to conclude the departmental enquiry has not been challenged, the Tribunal was justified in allowing the Original Application directing the Respondents to pay consequential benefits pursuant to his retirement.
8. Resultantly, this Court does not find any reason to interfere with the order passed by the Tribunal in the peculiar facts and circumstances of the case, especially, when the Petitioner is 77 years of age; he is a retired pensioner and he is not getting full pension since 2004 on account of the present case. In light of the aforesaid, no interference is required by this Court in respect of the order passed by the Tribunal. The Respondent shall comply with the order passed by the Tribunal positively within 90 days from today. It is made clear that if the order passed by this Court is not complied with in 90 days, as directed by this Court, the Respondent Satnam Singh shall be entitled for interest against all outstanding dues, including arrears of pension @ 12% per annum from the date of entitlement till the amount is actually paid to him.
9. The writ petition stands dismissed.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J NOVEMBER 17, 2022/B.S. Rohella Signature Not Verified Digitaaly Signed By:BHUPINDER SINGH ROHELLA Signing Date:24.11.2022 15:28:34