Central Administrative Tribunal - Delhi
N. Mohammad, Jag Danics Project ... vs Union Of India (Uoi) And Ors. on 13 February, 2007
Equivalent citations: 2007(3)SLJ1(CAT)
ORDER Shanker Raju, Member (J)
1. Applicant an ad hoc Junior Administrative Grade (JAG) Officer of DANICS vide this O.A. has assailed a Presidential order dated 31.8.2005 wherein concurring with the advice of UPSC in pursuance of disciplinary proceeding under Rule 14 of CCS (CCA) Rules, 1965 (hereinafter referred to "1965 Rules"), a major penalty of compulsory retirement has been imposed upon him.
2. Brief factual matrix of the case transpires that the applicant, who initially joined service with respondents as Tehsildar in 1972, vide notification dated 30.8.1994, was appointed to officiate as a Selection Grade Officer w.e.f. 17.5.1993 and was appointed on ad hoc basis as JAG for a period of six months. Applicant owned property bearing Survey No. 72 at Port Blair, which was earlier in the name of his father, who died in 1979. The aforesaid property was mutated jointly in the name of his wife and sons. The ground floor was rented, which goes to the mother of the applicant. The remaining rent was being received by his brother. As the condition of the building was dilapidated and unfit for human habitation, applicant on 2.12.1992 informed the Deputy Commissioner, Andmans, the Competent Authority to get the property converted into RCC one. The permission was accorded on 30.12.1992. The aforesaid permission to reconstruct was done on a survey by revenue and PWD authorities. The building plan on application was also approved. On 29.1.1993, under Section 159 (9) of Andaman and Nicobar Islands, Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred to as "Regulation 1966"), applicant sought permission to dispose of the house standing on site No. 205/P, Port Blair. Applicant, who was sanctioned Rs. 25,000 from GPF account on account of medical treatment of his mother that he required this money to construct his house and utilization thereof vide letter dated 27.11.1993.
3. Also informed by the applicant is a loan of Rs. 1 lakh taken from Andaman and Nicobar State Cooperative Bank Limited. It was further informed that land 205/P was soled to Smt. Parun Devi.
4 On 20.7.1994, applicant informed the Deputy Commissioner, the Competent Authority about sale of gold ornaments of his wife as well as on 6.10.1994 about collection of advance rent to the tune of Rs. 3,15,000 from the tenant for financing the cost of construction of his house at Survey No. 72, Port Blair on behalf of mother, who was not assessed to the income tax.
5. Construction of three storied building completed in 1994 and the total cost comes to Rs. 20,53,380, which was jointly borne by the applicant, his brother and his mother with the financial help.
6. The disciplinary proceedings initiated against the applicant by the President under Rule 14 of 1965 Rules on 8.8.2001 with the following articles of charge:
ARTICLES OF CHARGE:
ARTICLE-I That the said Shri N. Mohammed, Junior Administrative Grade (Ad hoc) officer of the Delhi, Andaman and Nicobar Islands, Lakshadweep Daman and Diu and Dadra and Nagar Haveli Civil Service, while functioning as Assistant Commissioner (Settlement) in the District Administration, Andamans, in the UT of Andaman and Nicobar Islands, during the period of 1982-1983 constructed as multi-storied residential-cum-shopping complex on the land bearing survey No. 72 at Aberdeen Bazar, Port Blair, in the joint names of himself, his brother Shri N. Mohammed Hanif and his mother Smt. Fathima Bibi, after demolition of the existing wooden house and shop situated therein without obtaining the prior permission of the Competent Authority and thereby violated the provisions of Rule 18(2) of CCS (Conduct) Rules, 1964.
ARTICLE-II That the said Shri N. Mohammed sold land bearing survey No. 205-P admeasuring 200 sq. mtrs situated at Haddo owned by him to Smt. Parun Devi at a cost of Rs. 1,15,000 on 16.06.1993 without the prior permission of the Competent Authority and thereby violated the provision of Rule 18(2) of the CCS (Conduct) Rules, 1964.
ARTICEL-III That the said Shri N. Mohammed obtained a loan of Rs. 1,00,000 from the Andaman and Nicobar Cooperative Bank on 04.11.1993 for the purpose of financing the construction of the said residential-cum-shopping complex without the prior approval of Competent Authority and thereby violated the provisions of Rule 16(4) of CCS (Conduct) Rules, 1964.
ARTICLE-IV That the said Shri N. Mohammed collected rent amounting to Rs. 3,15,000 in advance from his tenants during 1994 in contravention of the provisions contained in Regulations 5(1)(b) of A and N Islands Rent Control Regulation, 1964 and also did not inform the Competent Authority about the said transactions as required under Rule 16(4) of the CCS (Conduct) Rules, 1964. That the said Shri N. Mohammed by his above acts failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant and thereby violated the provisions of Rule 3(I) and (iii) and Rule 16(4) of the CCS (Conduct) Rules, 1964.
ARTICLE-V That the said Shri N. Mohammed sold gold ornaments of his wife Smt. Sakeena Bibi to M/s Golden Jewellery Aberdeen Bazar, Port Blair for Rs. 64,529 during the period 1993 and 1994 and failed to report the said transaction to the prescribed authority and thereby violated the provisions of Rule 18(3) of the CCS (Conduct) Rules, 1964.
ARTICLE-VI That the said Shri N. Mohammed made a false statement to the Chief Secretary-cum-Chief Vigilance Officer, Andaman and Nicobar Administration, vide his letter dated 27.07.1998, that the total cost of the said residential-cum-shopping complex was only Rs. 20,53,390 of which his share was Rs. 9,34,354, his brother's share was Rs. 9,84,056 and his mother's share was Rs. 1,35,000 whereas the PWD Department of Andaman and Nicobar Administration assessed the construction cost of the said complex, thereby giving grounds to believe that he financed the cost of the house through unfair means and was in possession of assets disproportionate to his known sources of income. Shri N. Mohammed by his above act failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant and thereby violated the provisions of Rule 3(1)(1) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE-VII That the said Shri N. Mohammed made a false statement to the Chief Secretary-cum-Chief Vigilance Officer, Andaman and Nicobar Administration, vide his letter dated 27.07.1998 to the effect that he and his wife, Smt. Sakeena Bibi, took advances amounting to Rs. 80,000 from their respective General Provident Funds for the purpose of part financing the construction of the said multi-storied residential-cum-shopping complex, whereas the said advances were taken for the purposes of treatment of his mother and for defraying the expenses on higher studies and marriage of daughter. The said Shri N. Mohammed by his above act failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant and thereby violated the provisions of Rule 3(1) and (i) and (iii) of the CCS (Conduct) Rules, 1964.
7. A Parliament question was raised as to construction of multi-storey building at Port Blair. In the reply of the Secretary of Municipal Council, Port Blair, it was found to be a motivated complaint vide letter dated 8.7.1997, as the PWD calculated the cost of construction of building and estimated the cost as Rs. 49,33,345. The appropriate cost index as on 1992 was not applied. Vide letter dated 13.7.1998, the Deputy Secretary (Vigilance) sought an explanation from the applicant as to the disproportionate asset and his reply, as no action was taken and the applicant was also promoted as ad hoc JAG Officer. During the course of inquiry on first stage CVC advice, the Inquiry Officer, after recording evidence and taking defence of the applicant, held all the articles of charge proved. Second stage inquiry was also sought from CVC and on tentative proposal to inflict a major punishment of compulsory retirement UPSC was consulted, which on one of the charges disagreed with the Disciplinary Authority. The advice of the UPSC was considered by the President in imposition of penalty of compulsory retirement and the copy of the advice thereof was also sent along with order.
8. During the course of inquiry, P. W. 1 has sought time to tender information as to the cost of the construction and later on submission of revenue report and valuation, no opportunity to cross-examine was ever afforded to the applicant.
9. Mr. P.P. Khurana, learned Senior Advocate took various legal grounds to assail the impugned order. Foremost he contends that as the Inquiry Officer appointed in the disciplinary proceedings is also a JAG Officer, applicant, who was also holding the post on officiating basis as JAG, the appointment of Inquiry Officer should be of an officer one rank higher than the applicant and this has vitiated the inquiry.
10. Learned Counsel would contend that whereas in the advice of UPSC there has been a disagreement on Article 2 of the charge with the Disciplinary Authority, yet the copy of the advice has not been furnished before the order of penalty is issued. Learned Counsel has relied upon the decision of the Apex Court in S.N. Narula v. Union of India and Ors. C. A. 642/2004, decided on 30.1.2004.
11. Learned Counsel would further contend that the order passed by the Disciplinary Authority, i. e., the President, is a mechanical order without dealing with the contentions of the applicant and without recording reasons, which shows non-application of mind.
12. Learned Counsel stated that present is a case of no misconduct, as the applicant has been alleged to have violated Rules 16and 18 of the CCS (Conduct) Rules, 1964 (hereinafter referred to as "Conduct Rules") whereby a previous sanction is required for any investment by the Government Officer, which has been complied with in the present case and in acquiring immovable property as per Rule 18(2), previous knowledge to the prescribed authority is mandated and by referring to certain documents, it is stated that all the articles of charge have not been established by the evidence and the Inquiry Officer without specifying as to which is the Competent Authority in the preset case, held the applicant guilty merely on suspicion, surmises and conjectures without dealing with the defence documents and contentions of the applicant, which shows a perverse finding. In such view of the matter, learned Counsel would contend that the reasons recorded by the Inquiry Officer are on ipsi dixit and it appears that the authorities were tantamount to hold the applicant guilty of the charges levelled, with some ulterior bias and motive.
13. Learned Counsel for applicant argued that whereas the cause of action had arisen on the basis of allegations in 1992-1994, an inquiry was initiated in 2001 without any reasonable explanation of delay, which has prejudiced the applicant in the matter of defence.
14. Mr. Khurana contended that article one of the charge alleges against the applicant non-seeking of prior permission of Competent Authority in violation of Rule 18(2) of the Rules to construct the multistorey residential complex. In this regard, it is submitted that a permission from the Deputy Commissioner, Andamans, who happens to be the Competent Authority of the applicant, as he was functioning as Assistant Commissioner, Group 'B' Officer being the Head of the Department, is a valid compliance and as this permission was granted to the applicant on 31.12.1992, this article of charge is not established.
15. Learned Counsel would further contend that the Inquiry Officer has established this charge only on the ground that the permission sought is not an intimation to the Competent Authority as the applicant had neither mentioned the fact of a Government servant nor indicated his designation. It is relevant to quote Rules 18(1) and (2) of the Conduct Rules, which read as under:
18. Movable, immovable and valuable property.
(1)(i) Every Government servant shall on his first appointment to any service or post submit a return of his assets and liabilities, in such form as may be prescribed by the Government, giving the full particulars regarding:
(a) the immovable properly inherited by him, or owned or acquired by him or held by him on lease or mortgage, either in his own name or in the name of any member of his family or in the name of any other person;
(b) shares, debentures and cash including bank deposits inherited by him or similarly owned, acquired, or held by him;
(c) other movable property inherited by him or similarly owned, acquired or held by him; and
(d) debts and other liabilities incurred by him directly or indirectly.
Note 1. Sub-rule (1) shall not ordinarily apply to Class IV servants but the Government may direct that it shall apply to any such Government servant or class of such Government servants.
Note 2. In all returns, the values of items of movable property worth less than Rs. 2,000 may be added and shown as a lump-sum. The value of articles of daily use such as clothes, utensils, crockery, books, etc., need not be included in such return.
Note. 3. Where a Government servant already belonging to a service or holding a post is appointed to any other civil service or post, he shall not be required to submit a fresh return under this clause.
(ii) Every Government servant belonging to any service or holding any post included in Group-A or Group-B shall submit on annual return in such form as may be prescribed by the Government in this regard giving full particulars regarding the immovable property inherited by him or owned or acquired by him or held by him on lease or mortgage either in his own name or in the name of any member of his family or in the name of any other person.
(2) No Government servant shall, except with the previous knowledge of the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family:
Provided that the previous sanction of the prescribed authority shall be obtained by the Government servant if any such transaction is with a person having official dealings with him.
16. If one has regard to the above, what is required is acquiring of immovable properly with the previous knowledge of prescribed Competent Authority, i.e., Deputy Commissioner of Andamans.
17. As regards Article 2 of the charge, which pertains to selling of property to one Paru Devi, learned Senior Counsel has shown that the applicant has applied for permission to dispose of the property and has been granted the same under Section 159 (9) of Regulation 1966 on 29.1.1993. Accordingly, it is stated that prior knowledge of the Competent Authority was there, as such the conclusion arrived at by the Inquiry Officer as to permission not under Conduct Rules where the prescribed authority is Administrator, is misconceived and this charge is not established.
18. So far as Article 3 of the charge as to information to Deputy Commissioner, Andamans not received is concerned, learned Senior Counsel has shown that an information has been sent to the Deputy Commissioner as to loan taken by the applicant. Accordingly, it is stated that there is no violation of Rule 16(4) of Conduct Rules, which is reproduced hereinbelow, where nothing in the sub-rule shall apply in respect of any transaction entered into by an employee with the previous sanction of the Government:
16. Investment, lending and borrowing:
(1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx
(4)(i) No Government servant shall, save in the ordinary course of business with a Bank or a public limited company, either himself or through any member of his family or any other person acting on his behalf,-
(a) lend or borrow or deposit money, as a principal or an agent, to, or from or with, any person or firm or private limited company within the local limits of his authority or with whom he is, likely to have official dealings or otherwise place himself under any pecuniary obligation to such person or firm or private limited company; or
(b) lend money to any person at interest or in a manner whereby return in money or in kind is charged or paid:
Provided that a Government servant may give to, or accept from, a relative or a personal friend a purely temporary loan of a small amount free of interest, or operate credit account with a bona fide tradesman or make an advance of pay to his private employee:
Provided further that nothing in this sub-rule shall apply in respect of any transaction entered into by a Government servant with the previous sanction of the Government.
(ii) When a Government servant is appointed or transferred to a post of such nature as would involve him in the breach of any of the provisions of Sub-rule (2) or Sub-rule (4), he shall forthwith report the circumstances to the prescribed authority and shall thereafter act in accordance with such order as may be made by such authority.
19. Learned Senior Counsel would also contend that the Inquiry Officer has not established this and as the sanction of the Government was accorded, may be post facto, has condoned the aforesaid misconduct.
20. Insofar as Article 4 of the charge as to collection of rent of Rs. 3,15,000 from the tenant and the conclusion of the Inquiry Officer as to non-filling return by the mother of the applicant is concerned, learned senior Counsel contends that the aforesaid information was sent to the Deputy Commissioner on 6.10.1994 and the previous knowledge was implied in such a case. As no misconduct is made out, the conclusion arrived at by the Inquiry Officer is perverse.
21. As regards Article 5 of the charge, as to the gold ornaments being sold and violation of conduct Rules, learned senior Counsel states that the applicant informed the concerned authority on 20.7.1994 that he has sold the gold ornaments of his wife for construction of house. The Inquiry Officer to this article of charge has knowledge on the ground that in his application, he stated that the gold ornaments were the 'sthree dhan' and rather admitted such information, which complied with Rule 16(3) of the Conduct Rules, as such this article of the charge could not be established by any logic.
22. As regards Article 6 of the charge as to the difference in estimate has been calculated by the Inquiry Officer on the basis of justification given by the Chief Engineer P.K. Mazumdar, learned Senior Counsel would contend that during the course of inquiry when examining, P.W. 1 C.M. Singh in an answer to the re-examination contended that the discrepancy in both the documents where the cost is at variance, he would have to consult the revenue officer and taxation branch and a reply to be given thereto. It is contended that subsequently view letter dated 18.2.2003, the aforesaid witness has given clarification, which was taken on record by the Inquiry Officer without putting it to the applicant and without affording him a reasonable opportunity, which deprives him a right to defend effectively and in turn on denial of reasonable opportunity is in violation of principles of natural justice.
23. Learned Senior Counsel would also contend that when the house was constructed in 1992-1997, the cost of construction should have been imputed accordingly but the cost of construction as in 2003 cannot be a criteria and in such view of the matter, applicant cannot be held guilty of the charge.
24. As regards Article 7 of the charge as to the advances taken by his wife, who is also a Government employee, it is contended by learned senior Counsel that any misconduct attributable to his wife would not entail any adverse finding against the applicant or punishment thereof. It is stated that the applicant though applied for loan for his mother's treatment but later on clearly written to the authorities for conversion of this amount in utilization of construction of his house. Accordingly, it is stated that no misconduct has been committed by the applicant, which is well explained and prior information is sent to the Competent Authority on 27.11.1993.
25. Learned Counsel would contend that in Paragraph 4. 14 of the counter reply, when the applicant in his O.A. has averred as to sanction of loan and selling of gold ornaments, the respondents in response to this admitted that the information was given but approval was required. What is required under the rules is the previous knowledge of the concerned authority, which has been complied with.
26. Learned Counsel for applicant further contended that in Paragraph 4.12 of the O.A., applicant has clearly stated that he has given information to the Deputy Commissioner and as no objection has been raised, it will not amount to misconduct. In respondent thereto, the respondents in corresponding paragraph of the reply admitted that the said communication, though made, cannot be treated as an intimation to the prescribed Competent Authority under the Rules.
27. Learned Counsel would also contend that in response to the clarification by the PWD it is admitted that due to oversight, the building was initially indicated as four-storied building and the cost was calculated but it is rather three-storied building, as such it is an inadvertent error or mistake on part of the respondents.
28. Learned Counsel would further contend that in show cause notice issued to the applicant on 13.7.1998 as to possession of disproportionate asset, it is admitted that he had intimated about reconstruction of his house after taking a loan and also selling the gold ornaments, which is a clear admission on their part to refuse the allegations alleged against the applicant.
29. Learned Counsel stated that it is because of bias that after several years on inquiry has been initiated against him where even taking the viewpoint of a common reasonable prudent man, the finding is perverse and the punishment imposed is without any justifiable basis, which cannot be countenanced in law, as held by the Apex Court in Kuldeep Singh v. Commissioner of Police and Ors. 1999(3) SLJ 111 (SC) : JT 1998 (8) SC 603.
30. On the other hand, Mr. R.V. Sinha, learned Counsel appearing for the respondents vehemently opposed the contentions and stated that in the matter of disciplinary proceedings what is precluded in the judicial review by the Tribunal is assessment of evidence, substitution of views and to go into the correctness of charge.
31. Learned Counsel contends that the Competent Authority is Administrator and Deputy Commissioner (Revenue) is not the Competent Authority. He further contends that the applicant, who has sought permission from an in Competent Authority, violation of the rules has been established.
32. Insofar as the order of the Disciplinary Authority is concerned, it is stated that when the Inquiry Officer records a detailed finding, which is accepted by the Disciplinary Authority, there is no requirement of acceptance and recording reasons by the Disciplinary Authority.
33. Learned Counsel would contend that from the order passed by the President, there has been an implied acceptance of advice of UPSC and the reasons are required only when some disagreement is arrived at.
34. Learned Counsel would also contend that non-supply of the UPSC's advice has not prejudiced the applicant and as procedural rules, i.e., Rules 17 and 18 of the 1965 Rules mandate supply of the copy of the UPSC's advice along with the order, mere violation of procedural rules, even if of mandatory nature, for want of establishment of prejudice, there is no violation of principles of natural justice.
35. Learned Counsel has relied upon the decision of the Apex Court in State Bank of Patiala and Ors. v. S. K. Sharma to buttress his plea. Another reliance has been placed by the learned Counsel on a decision of the Apex Court in B. C. Chaturvedi v. Union of India and Ors. to contend that in the matter of disciplinary proceedings if the punishment imposed is shockingly disproportionate and offensive of Wednesbury principle of reasonableness, only then the illegality is to be cured from the stage it has been cropped up.
36. Also relied upon a decision of the Apex Court in Government of India and Anr. v. George Philip JT 2006 (10) 487 to contend that the Wednesbury principle as a secondary Reviewing Authority having been established in Om Kumar v. Union of India JT 2000 (Suppl.3) SC 92, the Tribunal is without jurisdiction in judicial review to interfere in any manner in the finding recorded by the departmental authorities.
37. Learned Counsel for respondents has also read the conclusion arrived at by the Inquiry Officer and stated that the charges levelled against the applicant are established on cogent evidence and material, and as the applicant has failed to proof his innocence, punishment imposed upon him is commensurate with the misconduct. Accordingly, he prays for dismissed of the O.A.
38. We have carefully considered the rival contentions of the parties and perused the material placed on record.
39. We follow the dicta of the decisions cited by the learned Counsel for respondents but in the matter of disciplinary proceedings, if no misconduct is attributable to the Government servant and there is no violation of the rules, which defines misconduct and also the finding arrived at is so perverse that it does not pass the test of a common reasonable prudent man, the order being passed on no misconduct, suspicion and surmises cannot be countenanced in law as held in the Constitution Bench decision of the Apex Court in Union of India and Ors. v. H.C. Goyal also the decision in Kuldeep Singh's case (supra).
40. What is not allowed in judicial review is re-appreciation of evidence, substitution of views and to examine the correctness of the charges but since nothing precludes for the purpose of finding as to whether the conclusion establishes any misconduct or the finding is perverse, we can always read the evidence and supporting material of defence to come to a finding.
41. In the light of above, before we proceed to take up the question whether any misconduct is attributable to him or validly established in law, the legal infirmity cropped up in the proceedings are relevant to be highlighted. Though in Managing Director, ECIL v. B. Karunakar and Ors. 1993(3) SLJ 193 (SC) : 1993 SCC (LandS) 1184, the Apex Court founded the principle of prejudice but sometimes substantive mandatory provisions of rules if not followed, the test of prejudice would have no application. A prejudice would be caused if any duty cast upon the authorities has not been discharged and some material has been withheld from the concerned or his defence has not been considered in an order passed by the quasi-judicial authority where the discretion is vested.
42. While public functionaries on Administrative and Executive side discharge their duties and pass orders on quasi-judicial side in disciplinary proceedings, they have to conform to the statutory rules mandated to be followed and the discretion vested should have to be exercised in a judicious manner. The decision making process is always open to judicial review as held by the Apex Court in Union of India v. Kuldeep Singh .
43. Recording of reason by a quasi-judicial authority is mandatory unless dispensed with specifically as held by the Apex Court in a Constitution Bench decision in S.N. Mukherjee v. Union of India 1991(1) SLJ 1 (SC) : 1991 SCC (L&S) 242.
44. In the light of above, it is trite that when Disciplinary Authority records a finding, it has to agree with the Inquiry Officer. This recording of reasons is dispensed with. However, when the finding of the Inquiry Officer is non-reasoned or where the defence has not been considered and this finding has not been directly put to the concerned employee, UPSC's advice is an additional evidence, which weighs in the minds of the Disciplinary Authority to impose a punishment upon the Government servant holding Group 'A' post. In such view of the matter, the decision of the Apex Court in Union of India v. Charanjit Singh Khurana S.L.P. 9816/2002, clearly ruled that when there is a disagreement between the Disciplinary Authority and the UPSC or vice versa, the advice of UPSC has to be tendered by the Disciplinary Authority before imposition of punishment. In the present case, though the Disciplinary Authority has given benefit of doubt to the applicant on Article 2 of the charge, yet the UPSC has taken a different view and on disagreement establishing the charge, recommended a penalty of compulsory retirement. As the advice of the UPSC has not been admittedly tendered to the applicant along with the final order, there has been a deprivation to the applicant of reasonable opportunity, as this additional material of disagreement by the UPSC has weighted in the minds of the Disciplinary Authority to impose upon the applicant penalty of compulsory retirement. As it is difficult to segregate from the composite charge as to which charge has been culminated into its gravity to entail extreme punishment, the applicant has certainly been prejudiced in the matter of defence, which vitiates the impugned order. Decision cited by the applicant in S.N. Narula's case (supra) has also reiterated the aforesaid view and being binding on us is accordingly followed.
45. Disciplinary Authority when confronted with a representation of the concerned employee to the inquiry report, which constituted additional material, Rule 15 of 1965 Rules provides on order to be passed by the Disciplinary Authority on imposition of the punishment and as the Government of India's instructions issued from time to time, supplements the rule as per DOPT's O.M. of 13.7.1981 and 5.11.1985 while passing a final order, the Disciplinary Authority has to record reasons on the basis of the decision of the Apex Court referred to above. As being part of principles of natural justice and in compliance of accord of reasonable opportunity, reasons are essence and relevant as for want of reasons the Appellate Authority would be prejudiced in evaluating the correctness of the order and also it entails miscarriage of justice when the orders are challenged in the Courts. For want of reasons, the bent of mind and the decision-making process of the Disciplinary Authority would not be known and it would not facilitate into proper adjudication of the controversy. The Apex Court in Director (Marketing) Indian Oil Corporation Limited and Anr. v. Santosh Kumar ruled that Disciplinary and Appellate Authorities should record reasons in support of the order, as reasons show application of mind. Reasons are recorded in the course of decision-making process when after evaluating the conclusion arrived at by the Inquiry Officer and the defence contentions raised by the delinquent and on weighing and balancing the contentions, the reasons would have to certainly indicate as an implication of mind at least a discussion, mention and adjudication of the important points raised.
46. From the perusal of the order passed by the President, what we find is that the factual matrix upto the advice of the UPSC has been incorporated and in the penalty made paragraph, consolidating all the allegations against the applicant, the charge has been established with entailment of penalty of compulsory retirement. We do not find in the order any agreement either to Inquiry Officer's report or to the UPSC's advice when the only condition precedent for dispensing with the reasons in the Disciplinary Authority's order is an agreement to the Inquiry Officer's report or the UPSC's advice. Without any agreement in its literal sense shown in the order, we do not find any valid compliance made by the respondents. Accordingly, we have no hesitation to hold that having not dealt with the contentions of the applicant, orderpassed by the President is without application of mind and is a bald one without recording reasons, which cannot be sustained in law. Accordingly, the inquiry as well as the consequent orders are vitiated on the grounds that extraneous material has been considered and the applicant has been deprived of a reasonable opportunity, as the respondents have withheld certain important piece of material from him. P.W. 1 in his testimony has sought time to consult and to file report from discussion after discussion with revenue and land authorities. The aforesaid report in 2003 when filed has not been put for rebuttal to the applicant. As he has been deprived of a reasonable opportunity to cross examine this witness, who was called later on in the inquiry and non-rebuttal of the material taken on his back, is certainly a deprivation of reasonable opportunity and prejudice has been caused, as this piece of material has been relied upon to proof the charge against the applicant.
47. Insofar as the allegations levelled against the applicant in articles of charge is concerned, we have seen the finding of the Inquiry Officer and find that the Inquiry Officer on his ipsi dixit without dealing with the defence documents and contentions of the applicant on surmises, established the charge. Rules 16(3) and Rule 18(2) and (4) prescribe in case of acquiring movable and immovable property to give information to the Competent Authority and take prior approval as well. Though, the applicant from time to time to the Deputy Commissioner, Andamans, who has been also looking after the charge of Revenue, being the prescribed Competent Authority, as the applicant was Group 'B' officer, sought permission and informed him on permission, yet the finding of the Inquiry Officer without specifying as to who was the prescribed authority, the Administrator of Andamans being observed as a prescribed authority, is not a correct legal factual position under the Rules. It is also the next higher authority, who is the Disciplinary Authority of the applicant as Group 'B' officer, is the Competent Authority and was certainly the Deputy Commissioner. The admission of the respondents in response to Paragraphs 4.12 and 4.14 as to the intimation given is not an intimation as prescribed under Conduct Rules, is an illegality and a rationale. Even if the applicant has not mentioned the fact about his wife being a Government servant, yet if on acquiring movable and immovable property and as to selling of gold ornaments when his wife has informed to the concerned authority, there is a valid compliance of the rules. If the rules are no followed as per definition then a hyper-technical view for an infraction to the rules would not constitute its violation and as it is trite that when no misconduct is attributable to a Government servant, he cannot be punished. We fortify this stand as per the decision of the Apex Court in Laxman Dundappa Dhamanekar and Anr. v. Management of Vishwa Bharata Seva Samiti and Anr. 2002(1) SLJ 121 (SC) : 2002 SCC (L&S) 63.
48. A mere negligence, which is not culpable and as no repercussion, which is not violative of any statutory rules, is not a misconduct as per the decision of the Apex Court in Union of India v. J. Ahmed .
49. We are of the considered view that without any violation of the rules, as referred to by the respondents, applicant has been punished arbitrarily on suspicion and surmises, more particularly on an allegation of 1993 in 2005 certainly with some ulterior motive to mar his service career of about 23 years. The finding arrived at by the Inquiry Officer would not qualify even the test of a common reasonable prudent man. As such the finding recorded, which has been relied upon to inflict major penalty upon the applicant, is no evidence and no misconduct and also is perverse finding.
50. In the result, for the foregoing reasons, O.A. is allowed. Impugned order is set aside. Applicant is entitled to all the consequential benefits. No costs.