Central Administrative Tribunal - Delhi
Acp Mahitap Singh Bisht vs Union Of India on 29 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.82/2013 & OA NO.274/2013 Reserved on 10.01.2014 Pronounced on 29.01.2014 HONBLE JUSTICE MR. SYED RAFAT ALAM, CHAIRMAN HONBLE MR. ASHOK KUMAR, MEMBER (A) OA 82/2013 ACP Mahitap Singh Bisht, PIS NO.16770085 S/o Late Shri K.S. Bisht, Aged 57 years, R/o XY-50, Sarojini Nagar, New Delhi. Applicant (By Advocate: Shri M.K. Bhardwaj) VERSUS 1. Union of India, Through its Secretary, Ministry of Home Affairs, New Delhi. 2. The Director C.B.I, C.G.O. Complex, Lodi Road, New Delhi. 3. The Commissioner Police Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 4. The Under Secretary, Govt. of India, Ministry of Home Affairs, North Block, New Delhi 5. The Deputy Secretary (Home-I), Home Police-I/Establishment Department, 5th Level, CWing, Delhi Secretariat, I.P. Estate, New Delhi. 6. The Joint Commissioner Police, Headquarters, Delhi Police Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. Respondents (By Advocate: Shri R.N. Singh on behalf of respondents no.1 & 4, Shri Amit Anand on behalf of respondents no.3, 5 & 6 and Shri R.V. Sinha on behalf of respondent no.2) OA No.274/2013 ACP Mahitap Singh Bisht, PIS NO.16770085 S/o Late Shri K.S. Bisht, Aged 57 years, R/o XY-50, Sarojini Nagar, New Delhi. Applicant (By Advocate: Shri M.K. Bhardwaj) VERSUS 1. Union of India, Through its Secretary, Ministry of Home Affairs, New Delhi. 2. The Director C.B.I, C.G.O. Complex, Lodi Road, New Delhi. 3. The Commissioner Police Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 4. The Deputy Secretary (Home-I), Home Police-I/Establishment Department, 5th Level, CWing, Delhi Secretariat, I.P. Estate, New Delhi. 5. The Joint Commissioner Police, Headquarters, Delhi Police Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. Respondents (By Advocate: Shri R.N. Singh on behalf of respondents no.1 & 4, Shri Amit Anand on behalf of respondents no.3, & 5 and Shri R.V. Sinha on behalf of respondent no.2) :ORDER: MR. ASHOK KUMAR, MEMBER (A):
These OAs were dismissed earlier vide order dated 13.09.2013 against which the applicant filed WP (C) No.6198/2013 and WP (C) No.6199/2013 before the Honble High Court of Delhi. The Honble High Court in its judgment and order dated 25.10.2013, set aside the impugned order with further directions as follows:-
12. Accordingly, the only way out is to quash the decision dated September 13, 2013 for the reason it omits to note the contentions and the decisions relied upon by the petitioner.
13. We do so. Impugned decision dated September 13, 2013 dismissing OA No.82/2013 and OA 274/2013 is set aside. Both Original Applications are restored with a direction that the two shall be placed before a Bench of which neither Mr. G. George Paracken, Member (J) nor Dr. Birendra Kumar Sinha, Member (A) would be members of. We would request the Chairperson of the Central Administrative Tribunal to preferably hear the two Original Applications in a Bench which comprises the Honble Chairperson.
14. We would expect a decision within this calendar year.
15. The two writ petitions stand disposed of.
2. Pursuant to the aforenoted directions of the Honble High Court of Delhi, both these OAs were taken up for hearing on 18.11.2013 and at the suggestion of learned counsel for parties written submissions were allowed to be filed after being exchanged between the counsel. The matter was again taken up for hearing on 10.12.2013, 24.12.2013 and 03.01.2014. Arguments finally concluded on 10.01.2014 and the matter was reserved for orders.
3. Both OAs have been filed relating to the same event. The applicant has challenged the impugned order dated 03.01.2013 by which the applicant has been reverted to the post of Inspector from ACP, entry grade of Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Police Service (DANIPS) w.e.f. 16.10.2009 with further direction that recommendations of the DPC in respect of the applicant would be treated as kept in sealed cover at Annex-A/1 in OA No.82/2013. Order dated 08.01.2013 impugned at Annexure-A/1 in OA No.274/2013 gives effect to impugned order dated 03.01.2013. Since both the cases relate to the same subject i.e. withdrawal of promotion of the applicant and his reversion to his earlier post of Inspector, and the cause of action as well as the grounds taken are virtually the same, both OAs have been heard together.
4. Brief facts of the case are that the applicant was appointed as a Sub Inspector in Delhi Police on 07.04.1977. He was later selected on deputation as Inspector in Central Bureau of Investigation, initially for a period of one year, which was subsequently continued under orders issued by the competent authority, till the year 1992, in which year, he was recommended by UPSC for appointment as Dy. Superintendent of Police in CBI on deputation basis. Notification dated 07.01.1993 was issued inter alia specifying that applicant was being appointed to officiate as D.S.P in the CBI on deputation basis w.e.f. 15.12.1992 where he continued to officiate till 21.08.2008 and was repatriated by an order issued on that date to Delhi Police as Inspector. Thereafter, vide notification dated 19.10.2009, he was promoted as ACP, i.e. the Entry Grade to DANIPS by the duly constituted Departmental Promotion Committee (DPC) and was given his first posting as ACP/PG Cell, Central District on 20.10.2009. Applicant states that he continued to discharge his duties against that post to the best of his efficiency and diligence and unblemished record without any major or minor punishments, as would be evident from the ACRs earned by him.
5. The applicant was served with the impugned order dated 03.01.2013 whereby it was communicated by Ministry of Home Affairs that he had been reverted to the post of Inspector w.e.f the date he was appointed in the Entry Grade of DANIPS, and that the recommendations of the DPC relating to the applicant would be treated as kept in sealed cover and further action to finalize the disciplinary case against the applicant be taken by the competent authority.
6. On receipt of orders dated 03.01.2013, the applicant filed the OA. However, since no subsequent order implementing the decision was taken on the above noted orders, the applicant has stated in OA No.82/2013 that he was not yet relieved from his present posting as ACP, Special Branch, Police Bhawan, Ansari Road and has contended that the decision of reverting the applicant from ACP to Inspector has been taken without affording a reasonable opportunity to him. Such reversion has caused grave prejudice to the applicant and he has hence sought immediate intervention of the Tribunal to safeguard his interests from being illegally and arbitrarily reverted from the post of ACP to Inspector.
7. In OA No.274/013, the Delhi Police vide order dated 08.01.2013 communicated that in pursuance of Govt. of India, Ministry of Home Affairs communication dated 03.01.2013, the Headquarters endorsement dated 19.10.2009 read with Ministry of Home Affairs notification dated 16.10.2009 (which related to appointment of the applicant to the entry grade of DANIPS w.e.f. 15.10.2009) was withdrawn. The communication also states that the competent authority had ordered that the recommendations of the DPC in respect of the applicant would be treated as kept in sealed cover.
8. Various grounds have been taken in the OA, one of them being that once applicant was regularly appointed to a post after holding proper DPC, he could not be reverted to a lower post without following the principles of natural justice inter alia requiring issuance of show cause notice and giving opportunity to represent against such notice, while in the present case, the respondents have issued the reversion order without issuing any show cause notice to the applicant. Respondents have failed to appreciate that the impugned orders are based on wrong facts. Such action ignores the law relating to departmental inquiry which provides that only if a departmental inquiry were pending could the applicants name be kept in sealed cover. No order initiating departmental inquiry under rule 14 of CCS(CCA) Rules has been issued and thus no departmental inquiry can be construed to be pending against the applicant. Even otherwise, any action having civil consequences can be taken only after issuance of show cause notice. In view of the circumstances in which the applicant has been reverted, such show cause notice was required to be given to him. The Departmental Promotion Committee had taken a decision to promote the applicant after considering relevant service records and also that no departmental inquiry was pending against him. Moreover, as per the impugned order dated 03.01.2013, the report submitted by the sexual harassment committee is deemed to be a report under rule 14 of CCS (CCA) Rules. No order to this effect has been served upon the applicant and it is, therefore, presumed that no such order was passed by the competent authority. Even the report of the sexual harassment committee dated 21.12.2005 clearly established that it was a fact finding inquiry and not an inquiry as envisaged in rule 14 of CCS (CCA) Rules. The required procedure under Rule 14 of CCS (CCA) Rules had not been followed by the sexual harassment committee. The report of this committee cannot be treated as under rule 14 of CCS (CCA) Rules because no imputation of mis-conduct or articles of charge were served upon the applicant. No opportunity was also given to cross-examine the witnesses and to produce defence witnesses under the said rules. No procedure was followed while reverting the applicant after a lapse of three years through the impugned orders and, therefore, the impugned orders dated 03.01.2013 and 08.01.2013 are without jurisdiction. No order could be issued by the CBI since the applicant was working there on deputation and the parent department of the applicant was Delhi Police. No consent was either taken of the parent department by CBI before initiating any departmental inquiry under Rule 14 of CCS (CCA) Rules. While the alleged incident was of 2005, till 2013 no action was taken in respect of the report of the sexual harassment committee which was given in the year 2005. It was actually a fact finding inquiry. The impugned orders, therefore, cannot be held to be legal and valid. In a series of judgments of the Honble Apex Court, it has been held that non-issuance of show cause notice amounts to violation of the principles of natural justice, if any adverse order is passed against an individual. This is what has happened in the case of the applicant and the impugned orders are, therefore, bad in law.
9. The applicant has sought relief in this OA inter alia seeking to quash and set aside the impugned orders dated 03.01.2013 and 08.01.2013, with a prayer to allow the applicant to continue in the promoted rank as ACP, i.e. entry grade of DANIPS as per order dated 19.9.2009 with all consequential benefits, and further that the respondents be restrained from reverting the applicant to the post of Inspector in pursuance of the impugned orders dated 03.01.2013 and 08.01.2013.
10. In the Counter reply filed on behalf of respondents, it is stated that the applicant was appointed as Sub-Inspector and confirmed on that post after which he was deputed to CBI on deputation as Inspector of Police for a period of one year w.e.f. 13.01.1987, which was extended from time to time. In between, he was granted promotion to the rank of Inspector (Exe.) w.e.f. 18.8.1994 and confirmed in the rank of Inspector on 18.8.1996. While on deputation to CBI, when the applicant was working as Dy. Supdt. of Police, a complaint dated 20.10.2005 was received from Ms. Reema Bhatti, ad hoc Steno, CBI alleging that she was sexually harassed by the applicant on 19.10.2005 (forenoon). On receipt of the complaint, a Committee headed by Smt. S. Sundari Nanda was constituted by Director, CBI to inquire into the complaint filed by Ms. Reema Bhatti in terms of the order of the Honble Supreme Court in the case of Vishaka & Others Versus State of Rajasthan. The committee examined witnesses and ultimately submitted its report on 21.12.2005 wherein the allegations were substantiated. This report of the Complaint Committee was deemed to be an Inquiry Report under the CCS (CCA) Rules, 1965 and a copy of the report was made available to the applicant for making a written representation. The applicant submitted his written representation on 31.8.2006. The comments of Director, CBI were also obtained on the report of the Complaint Committee and the representation of the applicant and, thereafter, in the light of the specific comments of the Director CBI, the disciplinary authority after considering the report of the committee, representations of the applicant and the specific comments of the Director, CBI, took a tentative decision to impose penalty on the applicant. The case records were referred to the UPSC for statutory advice. The UPSC vide their letter dated 09.01.2008, advised that the ends of justice would be met in this case if the penalty of reduction to a lower stage by one stage in the time scale of pay for a period of one year with further direction that he will not earn increment of pay during the period of such reduction and on its expiry, it will have the effect of postponing the future increments of his pay is imposed on Shri M.S. Mahitap Singh Bisht (i.e. the applicant). The penalty advised by the UPSC, being one of the major penalties under the CCS (CCA) Rules, it was decided by the competent authority in the DOP&T to go by the advice of the UPSC for imposition of a major penalty on the applicant. As per Rule 21(2)(ii) of the CCS (CCA) Rules, if a major penalty is to be imposed under Rule 11, the services of the Govt. servant have to be placed at the disposal of the lending authority. Accordingly, the lending authority was informed through the Ministry of Home Affairs ID note dated 20.7.2007 for commencement of disciplinary proceedings against the applicant. He was repatriated by CBI on 10.10.2008 after granting him 60 days E.L. and was subsequently taken on the strength of Delhi Police on 05.02.2009 and posted in Crime & Railways. The decision was conveyed to the Vigilance Branch of Delhi Police on 23.7.2008. It is stated in the counter reply that the case remained pending in the Vigilance Branch and Crime Branch for decision.
11. In between, Ministry of Home Affairs, New Delhi vide letter dated 03.12.2008 asked for the service particulars of Inspectors of Delhi Police, including the name of the applicant, for appointment to the Entry Grade of NCT of DANIPS. Accordingly, the service particulars of the applicant along with others were forwarded to the Ministry. Nothing had been reported against the applicant by Vigilance Branch and Crime Branch. The applicant was appointed to the entry grade of DANIPS vide notification dated 16.10.2009 by the Ministry of Home Affairs. Subsequently, MHA vide letter dated 06.02.2012 asked for the circumstances under which the applicant was appointed to the entry grade of DANIPS even though the disciplinary proceedings for major penalty was pending against him and UPSC had advised imposition of major penalty. A vigilance inquiry was got conducted from which it appeared that the advice of UPSC was received from GNCT of Delhi vide letter dated 23.7.2008, when the applicant was on deputation. He subsequently joined Delhi Police on 05.02.2009, i.e. after 6 months & 13 days of the receipt of the said letter, and he was posted in Crime and Railways. This letter was sent to the Addl. CP/Crime office by the Vigilance Branch. While the report was pending between the Vigilance Branch and Crime Branch, the applicant had been promoted as ACP and the matter was referred to the Govt. of NCT of Delhi by Vigilance Branch on 07.06.2010 to implement the advice of the UPSC. A vigilance inquiry was conducted into the matter and responsibility on officers was fixed for this lapse. In the meanwhile, MHA vide letter dated 03.01.2013 decided to take action of reverting the applicant to the Inspector grade with effect from the date he was appointed to DANIPS and further that the recommendations of the DPC in respect of the applicant would be treated as kept in the sealed cover. It was thus already directed in the said communication of MHA that further action to finalize the disciplinary case against the applicant be taken by the competent disciplinary authority. Thereafter, MHA notification dated 16.10.2009 relating to the appointment of the applicant to the entry grade of DANIPS w.e.f. 16.10.2009 was withdrawn. Respondents have urged that the applicant has been reverted to his substantive rank, i.e. Inspector. The order repatriating him and withdrawal of his promotion have been duly acknowledged by the applicant. The order of reversion is not actually a penal action but is a case of withdrawal of erroneous promotion under the provisions of FR 31-A of the Govt. of India. Under this FR there is no mandatory requirement of issuing a show cause notice as in the present case. Moreover, the report of the Complaint Committee was deemed to be an Inquiry Report under the CCS (CCA) Rules and a copy of the report was made available to the applicant for making a written representation on 31.08.2006. Meeting the requirement of Rule 21(2)(ii) of the CCS (CCA) Rules, the competent authority, i.e. DOP&T decided to repatriate the applicant to the lending authority, and transmitted the proceedings of the inquiry to the lending authority for necessary action. The facts of the inquiry could not be intimated to the DPC and hence the promotion of the applicant was erroneous. In the light of this, the decision to keep the recommendations of the DPC in sealed cover has been taken as disciplinary action for major penalty was pending against the applicant on the date of DPC although the same was not brought to the notice of the DPC. The applicant has contended that there should be an entry in the ACRs of the applicant with respect to the enquiry pending against him. Since the ACR format does not contain any column for making such entry, it could not be so done and the vigilance report also did not mention it erroneously. In the absence of such a report to the DPC, the DPC recommended the applicant for appointment to the entry grade of DANIPS erroneously, and hence such erroneous promotion was withdrawn and the recommendations of the DPC kept in sealed cover.
12. A separate counter affidavit has been filed in OA No.82/2013 on behalf of respondents no.1 and 4. Referring to the sequence of events as mentioned in the counter reply of the respondents, it has been mentioned that the DPC was not aware of pendency of the disciplinary proceedings against the applicant at the relevant time and thus there is nothing wrong in the decision to keep its recommendations in respect of the applicant in sealed cover as the promotion was erroneous and ab initio void. It has also been stated that the applicant has received the report of the Complaint Committee on 25.05.2006 against which he furnished his representation dated 31.08.2006 and he was thus aware of the pendency of disciplinary proceedings against him. In the absence of any order of the competent authority closing the said disciplinary proceedings, the applicant cannot presume closure of the said proceedings. As per Govt. of India instruction below Rule 15 of CCS (CCA) Rules, 1965, once disciplinary proceedings have been initiated against an official, these cannot be closed without sending an intimation to that effect to the accused official. Since no order to that effect was passed by the competent authority, the applicants contentions are not tenable. Moreover, if the factual status regarding the applicant would have been brought to the notice of the Ministry/DPC and had vigilance clearance not been accorded, the applicant would not have been promoted to the entry grade of DANIPS. The applicant, therefore, did not deserve any opportunity to furnish any explanation against the order dated 03.01.2013. Since the Complaint Committee had been constituted in terms of proviso to Rule 14(2) of CCS (CCA) Rules, there was no need to issue any of separate order for initiation of said disciplinary proceedings.
13. Both parties were heard.
14. Learned counsel for the applicant referred to the impugned order dated 03.01.2013 and drew attention to the fact that the report regarding sexual harassment was dated 21.12.2005 and after a lapse of nearly eight years, the appointment of the applicant in the Entry Grade of DANIPS has been held to be erroneous and ab initio void in the impugned order dated 03.01.2013. He also drew attention to the judgment of the Honble Supreme Court in the case of Union of India etc. etc. Versus K.V. Jankiraman, etc. etc. (1991) 4 SCC 109 in which the issue of Sealed Cover Procedure has been dealt with, and in pursuance of which the DOP&T has issued OM dated 14.09.1992. The judgment in the case of Union of India & Ors. Versus Anil Kumar Sarkar in Civil Appeal No.2537/2013 was cited wherein the Honble Supreme Court had held that a disciplinary proceeding is presumed to be initiated only when a charge sheet is issued. Counsel argued that in the present case, the complaint was received on 20.10.2005 at which time the applicant was on deputation and the report of the Committee regarding the alleged sexual harassment was submitted on 21.12.2005. The Committee was required to follow the procedure under Rule 14 of the CCS (CCA) Rules, i.e. of informing the applicant about the so called inquiry, and to provide him a copy of the charge sheet or complaint. Without giving him a list of witnesses and opportunity to cross-examine them, how could it be presumed that the applicant was facing disciplinary proceedings. Referring to the judgment in the case of Prof. Bidyug Chakraborty Versus Delhi University & Ors. by the Honble High Court of Delhi in W.P. (C) No.8226/2007, learned counsel argued that the Honble High Court of Delhi had held in the said judgment that mere supply of the report is meaningless unless the delinquent is given an opportunity to make representation against it and representation made, if any, is considered by the Disciplinary Authority before recording its findings. The Complaint Committee as envisaged by the Honble Supreme Court in Vishakha case, would be deemed to be an Inquiry Authority for the purpose of CCS (CCA) Rules 1965, and that the report of this Committee shall be also deemed to be an inquiry report under the Rules. The Disciplinary Authority would, thereafter, act on the report in accordance with the rules. Counsel for applicant argued that the report of sexual harassment was submitted in 2005 and the applicant was promoted in 2009 as ACP, i.e. the Entry Grade to DANIPS vide order dated 19.09.2009. It was only on 03.01.2013 that he was reverted to the grade of Inspector with effect from the date of his appointment to DANIPS on the ground that a Disciplinary Proceeding was going on against him. According to the OM dated 09.08.1988 of the DOP&T on the subject of erroneous confirmation of Govt. servant, it was necessary for the respondents to issue a show cause notice and provide an opportunity to be heard before passing any order affecting the Govt. servant. Such was also the view taken by the Honble Supreme Court in Ram Ujarey Vesus Union of India (1999) 1 SCC 685 wherein it had been held that if promotion orders were to be cancelled as having been passed on account of mistake, an opportunity of hearing was necessarily to be given to the concerned official. Similar view was taken by the Honble Apex Court in the case of M.S. Usmani and Ors. Versus Union of India & Ors., (1995) 2 SCC 377 and in Union of India and Anr. Versus Narendra Singh, (2008) 1 SCC 547. In the case of State of Punjab and Ors. Versus Chaman Lal Goyal (1995) 2 SCC 570, the Honble Supreme Court held that it was in the interest of justice as well as in the interest of administration that inquiry which had proceeded to a large extent is allowed to be completed. It was further held that the promotion made, if any, pending the inquiry shall be subject to review after conclusion of inquiry and in the light of findings in the inquiry report. The Honble Supreme Court in N.K. Durga Devi Versus Commissioner of Commercial Taxes, Hyderabad and Ors., (1997) 11 SCC 91, held that no order could have been passed without giving notice to all affected parties since that would be in violation of the principles of natural justice. In Jagdish Prasad Shastri Versus State of U.P. and Ors. (1970) 3 SCC 631 also it was held that before such an order could be made, it was obligatory upon the appropriate authority to give an opportunity to explain.
15. Another argument advanced on behalf of the applicant was that as held in the case of Ashok Kumar Singh Versus Union of India and others, 2002 (61) DRJ 43 by the Honble High Court of Delhi in CWP No.6799/1999, an employee on promotion was vested with certain valuable rights and these could not be taken away without an inquiry in time as per the mandate of Article 311 of the Constitution and that the respondents failure to do so, renders their order of reversion unsustainable. The judgment in the case of Gurdip Kaur and another Versus State of Haryana and others, in C.W.P No.19728/1996 by the Honble Punjab and Haryana High Court and in R.L. Rathore Versus Delhi Power Supply Co. Ltd., 2004 (2) SLJ 265 (Delhi) were also cited by the learned counsel in support of the contention that an opportunity of notice and hearing was necessary before passing the impugned order dated 03.01.013. No order was ever passed by the competent authority nor was any order of censure ever served on the applicant.
16. Apart from the arguments made by the learned counsel, written submissions have also been filed on behalf of the applicant in which some other judgments have been cited, namely:-
i) Hc/Dvr Shiv Kumar Singh Versus Ministry of Home Affairs &Ors., (2010) ILR 2 Delhi 569 in WP (C) No.4631/2008.
ii) Ram Binay Sharma Vs. Chairman, Coal India Ltd. & Ors., (2008) 2 OLR 327 in WP (C) No.4047/2007 of the Honble High Court of Orissa.
iii) K.S. Shankaranarayan Vs. Inspector General of Police and Ors. in W.P. No.39395 of 2005 of the Honble High Court of Madras.
iv) Duni Chand Vs. State of H.P. and Anr. ILR 1980 9 HP 576 in CWP No.36/1973 of the Honble High Court of Himachal Pradesh.
v) Akbar Ali Vs. Union of India and Ors. in WP (C) Nos.238(SH) of 2006 and 3954/2004 of the Honble High Court of Gauhati (Shillong Bench).
vi) Lakshmi Chand, Lascar Vs. Union of India & Ors. in OA No.2569/1992 of the CAT, Principal Bench.
17. It has also been contended in the written submissions that the applicant was holding the substantive post of Inspector in Delhi Police and was later promoted to the post of ACP and hence the disciplinary proceedings could have been initiated either by the Delhi Police or by the Ministry of Home Affairs. The CBI could have informed the Delhi Police who could have initiated the proceedings with the approval of the disciplinary authority, which was not done. In Section 21 of General Clauses Act, 1987 also, the regular promotion given under DANIPS Rules to the applicant could be taken away under the same procedure followed for making regular promotion. This was also not done and impugned order, therefore, is bad in law. No proceedings under Rule 14 of the CCS (CCA) Rules could be said to be pending against the applicant either on the date of DPC, or on the date of promotion or subsequently. If the proceedings are treated as pending, the same could not be the basis to take away the promotion of the applicant effective from October 2009. Arbitrariness is the very negation of the rule of law and if there is arbitrariness in State action, the Courts are competent to strike it down as held in the case of Kumari Shrilekha Vidyarthi & Ors. Vs. State of UP & Ors. AIR 1991 SC 537. Moreover, respondents have not approached the Tribunal with clean hands since they have not disclosed that the OM dated 21.03.1968 was modified vide OM dated 09.08.1988. Based on the above arguments, it has been submitted on behalf of applicant that the OA be allowed with costs.
18. Mr. R.N. Singh, learned counsel, argued on behalf of Respondents no.1 and 4. Referring to the arguments placed on behalf of applicant, he drew attention to Para 4.5 to Para 4.7 of the OA No.274/2013 to argue that as stated in Para 4.5, the respondents had issued a Memorandum dated 17.05.2006 along with the report of the Complaint Committee dated 21.12.2005 asking the applicant to file a reply to the said report. Further, as appears from Annex-A/5 of the OA, which is a copy of Memorandum dated 17.05.2006, respondents had forwarded the report of the Complaint Committee in terms of sub-rule (1) of Rule 15 of the CCS (CCA) Rules, 1965 to the applicant when he was posted as DSP in CBI and as appears from Annex-A/5, the same was received by the applicant on 25.05.2006. Letter dated 26.05.2006 (Annex-A/6) was addressed by the applicant to the Director (Vigilance), Department of Personnel & Training to acknowledge receipt of the Memorandum dated 25.05.2006 and requesting that documents listed in that letter be made available to him to submit his representation. In this way, learned counsel argued that not only was the report received by the applicant but also that he was given opportunity to file representation which he did vide his letters dated 07.06.2006 and 31.08.2006 (Annex-A/7 (colly)) in which the applicant has categorically denied the averment made in the complaint report and also that the proposed punishment of Censure was not attracted at all, as the findings of the Committee were based on concocted, baseless and malicious allegations. However, the applicant in Para 4.8 of the OA has contended that till the filing of the OA, no action or punishment had been given to the applicant, which according to learned counsel, was not correct. To corroborate the afore-noted arguments, reference was also made to the report of Complaint Committee on sexual harassment. Attention was drawn to the 3rd paragraph of the report (page 32 of the paper book) which mentioned that the applicant had denied the allegation against him by the complainant and further that this statement of the applicant was enclosed as Annex-B of the report. During the arguments, the chronology of events stated in Para-B of the affidavit of Respondents no.1 and 4 was reiterated, as also that the inquiry report submitted by the sexual harassment committee was deemed to be a report under Rule 14 of the CCS (CCA) Rules 1965. It was argued that the applicant was promoted as ACP on 16.10.2009 on the recommendations of the DPC, because the DPC was not aware that a disciplinary case was pending against him. Applicants promotion to the post of ACP (entry grade of DANIPS) vide notification dated 16.10.2009 was thus erroneous. Had the DPC been aware of the pendency of the disciplinary proceedings, their recommendations would have been placed in sealed cover. Learned counsel argued that since the promotion was erroneous and ab initio void, the Ministry decided to revert the applicant to the post of Inspector grade with effect from the date of his appointment to DANIPS. The recommendations of the DPC qua the applicant would, therefore, be treated as kept in sealed cover. The Delhi Police has withdrawn appointment of the applicant in Entry Grade of DANIPS w.e.f. 06.10.2009 through impugned communication dated 08.01.2013. Further action to finalize the disciplinary case against the applicant would be taken by the disciplinary authority after reversion of the applicant. Concluding his arguments learned counsel for the respondents submitted that it was incorrect that the applicant was unaware of the proceedings of the sexual harassment Committee, as well as the deliberations of the Committee, since the applicant himself had not only received the memorandum, had acknowledged the same, and had thereafter filed his representation objecting to the proposed punishment of censure. Learned counsel argued that in the given circumstances, it cannot be the applicants case that he was unaware of the inquiry proceedings. The impugned order being in consonance with the relevant rules and instructions could not be treated as defective nor did it require any intervention.
19. Mr. Amit Anand appeared on behalf of Respondents no.3 and 6 and argued that the report of the Sexual Harassment Committee headed by the then DIG, CBI, which enquired into the complaint and examined various witnesses, was received on 21.12.2005. The report of the Committee substantiated the allegations against the applicant. In terms of the judgment in Vishakha case (supra), the report of the Complaint Committee was deemed to be an inquiry report under the CCS (CCA) Rules. The applicant had duly submitted his representation on 31.08.2006 and after considering his representation as well as the report of the Complaint Committee, a view was taken by the disciplinary authority to impose a penalty on the applicant and the case records were referred to the UPSC for statutory advice. UPSC sent their advice with records and suggested the penalty to be imposed, which was one of the major penalties specified in the CCS (CCA) Rules. The competent authority i.e. Department of Personnel and Training decided to go by the advice of the Commission for imposition of a major penalty on the applicant. The proceedings of the inquiry were transmitted to the lending authority through the Ministry of Home Affairs on 20.07.2007 and the applicant was repatriated after availing his leave to the Delhi Police on 05.02.2009. Learned counsel for Respondents no.3 and 6 also handed over a copy of Letter no. 9383/P.Cell/Vig. (P-IV) dated 08.11.2013 on the subject Report disciplinary proceedings against Shri Mahitap Singh Bisht, the then Dy. SP,CBI/Inspector, Delhi Police. Referring to the contents of the letter, it was pointed out by the learned counsel that the applicant had been reverted to the post of Inspector with effect from the date he was appointed to the DANIPS and he had been transferred from Special Branch to Security Unit of Delhi Police vide order dated 17.01.2013. He stood relieved vide DD No.24 dated 02.07.2013. However, applicant had not reported in Security Unit and was still on medical rest. Necessary action regarding disciplinary proceedings against the applicant was required to be taken by the Joint CP/Security, Delhi after he resumed duty in the Security Unit. Till date, therefore, no order imposing any punishment had been passed against the applicant. Learned counsel also produced records pertaining to disciplinary proceedings against the applicant.
20. Written submissions have been filed on behalf of Respondents no.3 and 6 reiterating the facts in their counter reply.
21. Counsel for Respondent no.2, Shri R.V. Sinha, appeared and argued stated that at the present stage, the CBI was not concerned. The related files and papers would be with the Delhi Police, i.e. Respondents no.3 and 6. He also stated that in the present OAs, the applicant was highlighting the impugned order as bad because no show cause notice was given to him. The applicant was fully aware of the complaint of sexual harassment against him as well as the inquiry proceeding and the report of the Complaint Committee. This was evident from the fact that the applicant had participated in the inquiry proceedings and had also given representations against the allegations. Thus, applicant was fully aware of the charges against him and, therefore, there was no need to issue a show cause notice. Issuance of such a notice would be a futile exercise and a mere formality. Mr. Sinha, therefore, argued that no show cause notice before issuance of impugned orders dated 03.01.2013 and 08.01.2013 was required.
22. Responding to the arguments made by the respondents counsel, Mr. M.K. Bhardwaj handed over a compilation of documents. He specifically referred to the copy of the documents viz. CBI ID No.505/CO-202-2005A-0003/ACU-IX dated 07.092006 on the subject Supply of copies of documents to Sh. M.S. Bisht, DSP, CBI Special Unit, New Delhi wherein it had been stated that the recording of statement of the aforesaid witnesses was directly done by the Committee and their individual statements were not recorded. Mr. Bhardwaj argued that this clearly indicated that the applicants statement was not recorded by the Committee. Learned counsel also drew attention to Para-2 of the DOP&T OM dated 09.08.1988 (Annex-P/18) according to which in matters of erroneous confirmation of Government servants, the principle of natural justice would be complied with by giving the Government servant a show cause notice and opportunity to be heard before passing any order affecting him. He also drew attention to Para-5 of the judgment of the Division Bench of the Honble High Court of Delhi in Ashok Kumar Singh Versus Union of India and Others (Annex-P/9) stating that the facts and circumstances in that judgment were similar as in these OAs.
23. We have perused the pleadings and documents on record in detail and have also given consideration to the arguments of the counsel for the parties.
24. The Original records relating to the inquiry proceeding and the inquiry report on the allegation of sexual harassment was produced before us, which we have perused. There are five records of the DOP&T numbered as Annexure-1 bearing file no.221/7/2006-AVD.II (LF-6) on the subject Complaint dated 20.10.2005 containing the photocopy of the complaint regarding the allegation of sexual harassment filed by one Reema Bhatti dated 20.10.2005. According to this, the complainant was working on adhoc basis as Stenographer since 02.09.2005. The next folder marked as Annexure-II (LF-2) is on the subject Inquiry report dated 21.12.2005 along with its enclosures which contains the order issued by the CBI (Anti Corruption-III) constituting the Committee to look into the complaint of sexual harassment put forth by Reema Bhatti, adhoc Steno SU, Delhi, as also the inquiry report of the Committee headed by one Ms. S. Sundari Nanda, DIG of Police, CBI/AC-III/New Delhi dated 21.12.2005, the statement of the applicant dated 09.11.2005 and the statement of one Shri R.S. Jaggi working as DSP, CBI, US, New Delhi. The next folder marked as Annexure-III (LF-7) is on the subject DP&T Memorandum dated 17.05.2006 along with a copy of the Complaints Committee Report dated 21.12.2005. This contains the memo dated 17.05.2006 from Director (Vigilance) enclosing copy of the Complaint Committee Report addressed to the applicant to submit his representation, if any, within 15 days along with annexures. The next folder marked as Annexure-IV (LF-5) is on the subject Records of delivery of charge-sheet to the Charged Officer. This contains the receipt by the applicant of memo dated 17.05.2006 along with copy of the Complaint Committee report dated 21.12.2005. The next folder marked as Annexure-V (LF-4) is on the subject Reply of the Charged Officer (i.e. applicant) addressed to the Director (Vigilance) in reply to his letter dated 17.05.2006. The next folder marked as Annexure-VI (LF-3) is on the subject Parawise comments of the Disciplinary Authority on the representation of the Charged Officer. This contains the communication dated 24.11.2006 from one Shri Anurag, Supdt. of Police (Pers.), CBI, New Delhi addressed to the Director, DP&T, AVD.II, New Delhi (Shri P.K. Tripathi) stating that in pursuance of DP&T letter dated 06.10.2006 asking for specific comments of Director, CBI on the representation dated 31.08.2006 of the Charged Officer (i.e. applicant in OA), the specific comments of CBI on the representation dated 31.08.2006 of the Charged Officer are enclosed. It further states that this was issued with the approval of Director, CBI. The specific comments are contained in four pages. It is noted that all the papers in the aforenoted six folders are attested copies.
25. There are also two other folders of the Office of the DCP (Vigilance), Delhi Police marked as LF-8 on the subject Regarding disciplinary action against Inspr. M.S. Bisht, No.DI/726. There is note stating that file in A part regarding disciplinary action against Inspector M.S. Bisht was sent to Addl. CP/Crime, Delhi for taking necessary action on 09.04.2009, but despite repeated requests/reminders the same has not been received back so far. It is stated that a draft letter is placed to write to the Addl. CP/Crime, Delhi with the request to return the said file after taking necessary action at the earliest. In pursuance to this note sheet, which was approved by the DCP (Vigilance), letter no.11765 dated 09.12.2009 was sent. Prior to the issuance of this letter similar request was sent earlier to return file after taking necessary action on 16.09.2009, 01.10.2009, 16.09.2009 and 12.10.2009. The next folder marked LF-9 of the Delhi Police is on the subject Sh. M.S. Bisht, Dy. Supdt. of Police contains ACRS of Sh. Bisht.
26. These folders do not show of any final decision having been taken by the disciplinary authority or the completion of the disciplinary proceedings in which the complaint was made as far back as on 20.10.2005, the inquiry report was submitted on 21.12.2005, representation of the Charged Officer (i.e. applicant) was submitted on 31.08.2006 and specific comments of the CBI on the representation of the Charged Officer was sent to the DP&T, New Delhi on 24.11.2006. We note with anguish the delay that has been taken place in the matter as appears from the records as aforenoted.
27. The applicant in the present OAs has actually assailed the impugned order dated 03.01.2013, by which his order of promotion has been withdrawn w.e.f. the date he was promoted earlier and his reversion to the earlier post of Inspector. The impugned order dated 03.01.2013, however, does not relate to the proceedings of the Inquiry Committee and its report regarding the allegation of sexual harassment. These are, therefore, distinct from each other. It is a different thing that the report of the Complaint Committee on the allegation of sexual harassment, was in the background of the matter leading to the impugned order. Thus, while the two aspects are inter-related, yet what has been assailed is the decision of withdrawal of the applicants promotion and his reversion. The issue to be examined would be whether before withdrawing his promotion and reverting him to his earlier post, a show cause notice was required to be issued to him or not considering the requirements of related rules and principles of natural justice. It is clear from the pleadings that even in the matter regarding the alleged sexual harassment, the Complaint Committee before finalizing its recommendations had issued a memorandum asking him to represent within 15 days on the proposed punishment. It was only thereafter that the Inquiry Committee finalized its report. It is not clear as to why, therefore, the respondents did not consider it necessary to issue a show cause notice to afford opportunity to represent against the proposed action before passing the impugned orders of withdrawing the applicants promotion and reverting him. Had this been done, it would have caused no prejudice to the respondents and they could as well have passed their order after considering the reply received from the applicant. At best, such a procedure could have led to slight delay of a few weeks, but considering the entire chronology of events and the delay highlighted by the applicant in withdrawing the applicants promotion and his reversion, such delay would not be of much consequence.
28. One of the arguments of the respondents is that issuance of show cause notice would be a mere formality since the applicant already had knowledge of the complaint against him and also of the inquiry report of the Complaint Committee. At the same time, however, respondents have nowhere contended that the applicant had formal and prior knowledge of the action to be taken by the respondents of withdrawing his promotion and reverting him to the earlier post. This has led to the grievance of the applicant only because no show cause notice was issued to the applicant prior to the issuance of impugned orders dated 03.01.2013 and 08.01.2013. It is also evident that there was a considerable time-lag between the applicants promotion and the subsequent action of withdrawing his promotion and reverting him to the earlier post. The promotion order was issued on 19.09.2009 and impugned orders are dated 03.01.2013 and 08.01.2013. A show cause notice could have been issued, and after considering the same, a decision could have been taken and thereafter, necessary orders could have been passed. This could have led to a slight delay; nevertheless, it would not have led to any grievance to the applicant of not being given opportunity to show cause before taking any adverse action against him and would have been in-conformity with the principles of natural justice. For this reason, the issuance of show cause notice cannot be treated as a mere formality or an exercise in futility.
29. Among the various judgments and documents produced before us, the DOP&T OM dated 09.08.1988 (supra) appears to be relevant in the present matter since this OM relates to erroneous confirmation of Government servants. Para-2 of the said OM is reproduced:-
2. According to the instructions contained in this Departments OM dated 21.3.1968, if the order of confirmation was made in contravention of executive or administrative instructions, it cannot be set aside as cancellation of confirmation in such cases would amount to reduction in rank without any fault on the part of the officer confirmed. The position in this respect has been reexamined in the light of the recent decisions of the courts and it has been decided that there is no objection to the competent authority passing an order rectifying the earlier erroneous confirmation order of the official which was passed in contravention of the existing Rules/instructions whether statutory or administrative/executive, as otherwise it would amount to perpetuation of the mistake and would be detrimental to the larger interests of Government. However, these cases, the principles of natural justice should be complied with by giving the Government servant a show cause notice and opportunity to be heard before passing any order affecting him.
(emphasis provided)
30. Although the aforenoted OM relates to erroneous confirmation, it also relates to reduction in rank resulting out of the cancellation of confirmation as well. In the present OAs, while the issue does not relate to confirmation, but actually to withdrawal of promotion, it nevertheless led to the consequent reversion of the applicant from the post (i.e. Entry Grade of DANIPS) to which he had been promoted. The DOP&T in the above noted OM stated that while there would be no objection in rectifying the earlier erroneous order but in line with the principles of natural justice, a show cause notice and opportunity to be heard must be issued before passing any order affecting the Government servant. In this light of the matter, a show cause notice could have been issued to the applicant as per the above OM of DOP&T before passing the impugned orders. Such action would then have been in compliance of the principles of natural justice as well as the above referred OM of DOP&T.
31. The other citation, which appears to be relevant to the facts of the present OAs, is the judgment of the Division Bench of the Honble High Court of Delhi in Ashok Kumar Singh (supra). It appears from the copy of the judgment (Annex-P/9) that in that case, the petitioner was regularly promoted on 10.07.1996 and was later converted into adhoc on noticing that he was facing a prosecution case at the time of his empanelment. It was accordingly informed vide letter dated 23.08.1999 that his promotion was purely on adhoc basis and until further orders. By a subsequent order dated 06.09.1999, he was reverted to the earlier post. In the present OAs also, the applicant was promoted on the recommendations of the DPC which did not have knowledge of the pending disciplinary proceedings against the applicant. Subsequently when this fact came to the knowledge of the authorities, he was reverted. We find that the facts in the present OAs are similar to the facts in the matter of Ashok Kumar Singh (supra). The Division Bench of the Honble Delhi High Court in Para-5 of their judgment observed as under:-
5. There is no dispute that petitioner was promoted to the post of Assistant Engineer (Group-B) substantively on the recommendation of DPC. It is true that his promotion was subject to the condition that should not have been facing any punishment in D&AR/Vig. case, but, that condition, did not stipulate that his promotion was liable to be set at naught if he was found facing any such enquiry/investigation. It is well settled that an employee cannot be deprived of his promotion merely because of pendency of some enquiry or investigation against him. That Honble Supreme Court had provided for adoption of sealed cover procedure to safeguard interest of employee seeking promotion, facing disciplinary action and awaiting punishment. But failure to adopt such procedure was not fatal where an employee was promoted in ignorance or overlooking this. As such respondents were not justified to revert petitioner to Group-C post straight away because their DPC had failed to adopt the requisite procedure. It was understandable if he was imposed any punishment meanwhile. But that was not the case and if respondents wanted to revert him necessary, they were under an obligation to follow the procedure established by law and to satisfy the requirements of Article 311. It is not in dispute that petitioner was vested with certain valuable rights on his promotion and these could not be taken away at his back and without an enquiry in time with mandate of Article 311. Respondents failure to do so renders their order of reversion unsustainable. Tribunal, therefore, was in error in taking the view that they had rectified the mistake. We accordingly allow this petition and quash the reversion order dated 6.9.1999 passed by respondents against petitioner. We are, however, informed that he was still holding the post of Assistant Engineer (Group-B) pursuant to interim stay orders obtained by him. As such, there was no need to direct his reinstatement to the promoted post. (emphasis provided)
32. Given the aforenoted observations of the Honble Delhi High Court it would appear, there was reason to issue a show cause notice to the present applicant before passing the impugned order of withdrawing his promotion and thereby reverting him to his earlier post.
33. Applicant has produced a series of judgments, which we have noted above, in which the Honble Supreme Court has held that a show cause notice in such cases was necessary in order to provide reasonable opportunity to the affected employee to present his case against any proposed adverse action against him. On the other hand, the respondents have tried to justify their action stating that the events leading to the promotion of the applicant was because of the DPC not being informed regarding the pending disciplinary proceedings, and further that had the DPC knowledge of the pendency of the disciplinary proceedings, it would not have recommended his promotion, and he could not have been granted the said promotion. Taking this argument further, respondents have argued that since the disciplinary proceeding was pending and the recommendations of the DPC were made in the absence of knowledge of the pending proceedings, the promotion in question was erroneous and ab initio void.
34. As noted above, the Honble Supreme Court has held in many of their judgments that it may be better to give a prior show cause notice so as to provide an opportunity to the affected employee to represent against the show cause notice.
35. While there are a series of judgments of the Honble Apex Court, which have been cited during arguments and in the written submissions filed by the parties which have been noted above, we do not wish to burden this order by referring to the several other judgments of the Honble Supreme Court on the issue. However, one must take note of the decision of the 5 judge Bench of the Honble Supreme Court in Mohinder Singh Gill Versus Chief Election Commissioner (1978) 1 SCC 405. In this celebrated judgment, the Honble Supreme Court dealt with issue of natural justice and its different aspects as would be apparent from the following:-
43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of Authority. It is the hone of healthy government, recognized from earliest times and not a mystic testament of Judgment made law. Indeed, from the legendary days of Adam and of Kautilyas Arthasastra the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.
(emphasis provided) In paragraph 52, the Honble Apex Court observed as under:-
52. So now we are face to face with the naked issue of natural justice and its pro tem exclusion on grounds of necessity and non-stultification of the on-going election. The Commission claims that a direction for re-poll is an 'emergency' exception. The rules of natural justice are rooted in all legal systems, not any 'new theology' and are manifested in the twin principles of nemo judex in causa sua and audi alteram partem. We are not concerned here with the former since no case of bias has been urged. The grievance ventilated is that of being condemned unheard. Sporadic applications or catalogue of instances cannot make for a scientific statement of the law and so we have to weave consistent criteria for application and principles for carving out exceptions. If the rule is sound and not negatived by statute, we should not devalue it nor hesitate to hold every functionary who affects others' right to it. The audi alteram partem rule has a few facets two of which are (a) notice of the case to be met; and (b) opportunity to explain. Let us study how far the situation on hand can co-exist with canons of natural justice. While natural justice is universally respected, the standards vary with situations contracting into a brief, even post-decisional opportunity, or expanding into trial-type trappings.
(emphasis provided)
36. The issue of hearing in matters having civil consequences or where a civil right was being adversely affected was also observed by the Honble Apex Court in paragraph 66 as follows:-
66. It was argued, based on rulings relating to natural justice, that unless civil consequences ensued, hearing was not necessary. A civil right being adversely affected is a sine qua non for the invocation of the audi alteram partem rule. This submission was supported by observations in Ram Gopal (1970) 1 SCR 472 : (AIR 1970 SC 158), Col. Sinha (1971-1 SCR 791): (AIR 1971 SC 40). Of course, we agree that if only spiritual censure is the penalty temporal laws may not take cognizance of such consequences since human law operates in the material field although its vitality vicariously depends on its morality. But what is a civil consequence, let us ask ourselves, by passing verbal booby-traps? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence ------------------------- (emphasis provided)
37. It thus appears from this judgment that the application of the principles of natural justice intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person, and further that no decision must be taken which would affect the right of any person without his/her being informed of the case and giving him/her an opportunity of putting forward his/her case, and that the order involving civil consequences must be made consistent with the rules of natural justice. We have noticed from the facts and circumstances of the matter in the present OAs that the impugned order did involve civil consequences for the applicant and a prior show cause notice would be justified.
38. On the other hand, there are some other judgments of the Apex Court and various High Courts in which it has been held that given the facts and circumstances of the case, a prior show cause notice may not be necessary and that it may not be issued only as a mere formality.We are reminded of the observations of the Honble Apex Court in Ashok Kumar Sonkar Vs. Union of India & others (2007) 4 SCC 54, wherein the Honble Supreme Court considered the issue of exclusion or in-applicability of the principles of natural justice and observed in Paras 26, 27 and 28 are as under:-
26. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillar of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
27. It is also, however, well-settled that it cannot be put any straight jacket formula. It may not be in a given case applied unless a prejudice is shown. It is not necessary where it would be a futile exercise.
28. A court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.
(emphasis provided)
39. The aforenoted observations of the Honble Supreme Court, therefore, lead to the conclusion that a court of law does not insist on compliance of useless formality and it would not issue any such direction where the result would remain the same, in view of the fact or situation prevailing or in terms of the legal consequences.
40. It has also been held that it could not be put to any straitjacket formula by which it could be clearly distinguished as to which cases would require a prior show cause notice to the concerned employee, or those where it may not be necessary to do so, which would depend on the facts and circumstances of each case.
41. The Honble Supreme Court in Para 57 of its judgment in Mohinder Singh Gill case (supra) while considering the possibility of such varied situations observed as under:
57. We may not be taken to say that situational modifications to notice and hearing are altogether impermissible. They are, as the learned Addl. Solicitor General rightly stressed. The glory of the law is not that sweeping rules are laid down but that it tailors principles to practical needs, doctors remedies to suit the patient, promotes, not freezes, life's processes, if we may mix metaphors. Tucker L.J. drove home this point when he observed in the Duke of Norfolk case ((1949) 1 All ER 109) (supra):
"There are no words which are of universal application to every kind of inquiry..... The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."
This circumstantial flexibility of fair hearing has been underscored in Wiseman v. Borneman (1971) AC 297 by Lord Reid when he said he would be "sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules." Lord Denning, with lovely realism and principled pragmatism, set out the rule in Salvarajan (1976) 1 All ER 12.
"The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress or, in some such way adversely affected by the investigation and report, when he should be told the case made against him and be afforded a fair opportunity of answering it. The investigation body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report."
Courts must be tempered by the thought while compromise on principle is unprincipled, applied administrative law in modern complexities of government must be realistic, not academic. The myriad maybes and the diverse urgencies are live factors. Natural justice should not destroy administrative order by insisting on the impossible.
(emphasis provided)
42. Having examined the aforesaid judgments and various others, which we have not reproduced in our judgment to avoid unnecessarily burdening our judgment it could safely be said that no hard and fast rules or any straitjacket formula is laid down in any of the authority as to in which matter and where the rules of natural justice are to be applied as the same is to be tested on the facts of each and every case. However, where the order under challenge is bound to have civil or evil consequences, in that event our view is that rules of natural justice have to be adhered to.
43. In the case of the present applicant in the two OAs, it is apparent that the applicant did not have prior information about the contemplated action of withdrawal of his promotion and the consequent reversion. The order withdrawing his promotion was issued on 03.01.2013 while his order of promotion was issued on 16.10.2009. The applicant had, therefore, worked on the promoted post of ACP for more than 3 years and his reversion to the post of Inspector definitely involved civil and evil consequences for him. It could not be, therefore, presumed that a show cause notice would be a mere formality. We, therefore, feel it necessary that a show cause notice should have been issued to the applicant, which would have been in line with the principles of natural justice.
44. Having given our thoughtful considerations to the submissions advanced before us and also keeping in view the facts of the case and the legal position as enunciated by the Apex Court as well as different High Courts, and also keeping in view the DOP&T OM dated 09.08.1988 noticed above, we are of the considered view that in the instant case principles of natural justice do attract and, therefore, the impugned order suffers from the vice of violation of principles of natural justice. We, therefore, in the facts and circumstances of the case, dispose of both the OAs with the directions to the respondents to comply with the principles of natural justice by affording the applicant an opportunity of showing cause and hearing, if necessary. We accordingly provide that the respondents shall issue show cause notice to the applicant within two weeks from the date of pronouncement of the order. The applicant shall submit his reply to the show cause notice within two weeks thereafter. The respondents shall thereafter examine and consider the reply so filed by the applicant and dispose of the same by a reasoned order expeditiously within a period of three weeks from the date of filing of reply. The impugned orders dated 03.01.2013 and 08.01.2013, in the meanwhile, shall be kept in abeyance and would abide by the decision taken by the respondents after considering the reply to the show cause filed by the applicant. We make it clear that our order may not be construed to have expressed any opinion on the merit of the case. The respondents, therefore, while considering the reply/show cause filed by the applicant, should not be prejudiced or influenced by the observations made in this order.
45. In the result, both the OAs are disposed of with the above directions. However, there shall be no order as to costs.
(Ashok Kumar) (Syed Rafat Alam) Member (A) Chairman /jk/