Central Administrative Tribunal - Delhi
G.P. Bhatia vs Union Of India Through on 16 January, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.40/2011 Order reserved on: 14.11.2013 Order pronounced on: 16.01.2014 Honble Shri George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) G.P. Bhatia Dy. Welfare Commissioner R-16, Anupam Nagar, Raipur (Chhatisgarh). ..Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Union of India through The Secretary and Disciplinary Authority, Ministry of Labour and Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001. 2. The Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances And Pension, North Block, New Delhi-110 001. 3. The Secretary, Union Public Service Commission, Dholpur House, New Delhi-110011. 4. Mrs. Padma Balasubramaniam Former Joint Secretary, C/o Secretary, Ministry of Labour and Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi-110 001. 5. Shri S.R. Joshi Dy. Director General and Inquiring Authority, Ministry of Labour and Employment, Jaiselmer House, Man Singh Road, New Delhi-110011. ..Respondents (By Advocate: Shri Rajesh Katyal) ORDER
By Honble Mr. G. George Paracken, Member (J) The Applicant in this Original Application seeks the following reliefs:-
(a) Quash the order of punishment dated 04.10.2010 (Annexure A-1) and order of remittance of enquiry as order by DAs order dated 29.05.2005 (Annexure A-2) for the grounds stated in para 5.1 to 5.33 of the OA.
(b) Quash the order dated 10.02.2011 passed by the Respondents (Annexure M-1).
(c ) To order initiation of disciplinary proceedings against Shri S.R. Joshi, respondent No.5 for converting three simple listed documents into three sets of listed documents and for abrupt closing of disciplinary proceedings in DOS-13 without giving any opportunity to applicant to present and defend his case for violating Rule 14, 16 to Rule 14, 19 (proving charge different from what was alleged) and making mockery of law.
2. The brief facts of the case are that the Applicant was served with a Memorandum dated 25.09.2002 proposing to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965.
The Statement of Articles of Charges framed against him was as under:-
Article-I That Shri G.P. Bhatia while functioning as Senior Administrative Officer (on deputation) to National Bio-Fertilizer Development Centre at Ghaziabad misbehaved by sending a Memorandum dated 16.3.2001 to Shri Vinod Vaish, Secretary and Smt. Padma Balasubramanian, Joint Secretary, Ministry of Labour sending therewith abnormal (unmentionable contents).
Article-II That Shri G.P. Bhatia has perpetrated a similar act on 6th March, 2002 by sending his unmentionable material to the Union Labour Secretary.
3. The Statement of imputation of misconduct or misbehavior in support of the aforesaid Articles of Charges framed was as under:-
Article-I & II Shri G.P. Bhatia, a Grade-IV Officer of Central Labour Service while working as Senior Administrative Officer (on deputation) to National Bio-Fertilizer Development Centre, Ghaziabad sent a Memorandum on 16.3.2001 to Shri Vinod Vaish, Secretary and Smt. Padma Balasubramanian, Joint Secretary, Ministry of Labour sending therewith abnormal material (unmentionable) which is unobjectionable and thereby insulted senior functionaries in the Ministry of Labour.
Shri G.P. Bhatia has perpetrated a similar act on 6th March, 2002 by sending same unmentionable abnormal material to Secretary, Ministry of Labour.
The writing of such obnoxious and implicatively obscene and dirty Memorandum/letter by Shri G.P. Bhatia is against all the norms of official conduct and decorum, which is unbecoming of a Govt. servant violating Rule 3 (iii) of the CCS (CCA) Rules.
4. The list of documents by which the Articles of Charges were proposed to be sustained annexed with the aforesaid Memorandum dated 25.09.2002 were the following:-
List of documents by which the articles of charge framed against Shri G.P. Bhatia, Grade-IV officer of CLS, are proposed to be sustained.
1. Memorandum dated 16th March, 2001 sent by Shri G.P. Bhatia to Shri Vinod Vaish, Secretary and Smt. Padma Balasubramanian, Joint Secretary, Ministry of Labour sending therewith abnormal (unmentionable contents) material.
2. Memorandum dated 16th March, 2002 sent by Shri G.P. Bhatia to the Secretary which is insulting to the Union Labour Secretary.
3. Report of Govt. Examiner of Questioned Documents, Government of India, Shimla (No.CX-198/2002 dated 5th August, 2002) (verifying the handwriting (signatures) of Shri G.P. Bhatia) confirming thereby that the letters containing the unmentionable material were indeed signed by Shri G.P. Bhatia.
5. After the departmental enquiry was completed in the matter, the Enquiry Officer submitted its report dated 27.04.2005 holding that the Applicant was guilty on the following issues:-
(i) Authoring and getting delivered the three letters dated 16.3.2001, 16.3.2001 and 6.3.2002 which had been listed in the Annexures to the charge sheet.
(ii) Insinuating that the author of letters dated 16.3.2011 had sent precious ornaments to the Secretary, Ministry of Labour, Shri Vinod Vaish and the Joint Secretary, Ministry of Labour, Smt. Padma Balasubramanian and they accepted/kept those in their Bank lockers and, thus, took bribes.
Secretary had on first sight of dak recorded on it, rightly, as obnoxious behavior. The Joint Secretary also recorded what is this about? I take objection.
The action of the author of the letter is a highly despicable misconduct or insinuating, falsely, corrupt practice and denigrating the high officers.
(iii) Sending a gift of lock of hair as reward for extending his deputation and offer of best posting as in the letter dated 06.03.2002 is again a cruel joke. This is repetition of an insolent behaviour of one year earlier.
The above are in violation of Rule 3(1)(iii) of the CCS (Conduct) Rules, 1964 and is established through the due process of law in the CCS (CCA) Rules, 1965.
6. A copy of the aforesaid report was also furnished to him vide the Respondents Office letter dated 11.08.2005. On receipt of the same, the Applicant submitted his representation on 22.09.2005. After considering the report of the Enquiry Officer dated 27.04.2005 and the Applicants representation on it dated 22.09.2005, the Disciplinary Authority (President) was of the opinion that the Government Examiner of Questioned Documents (GEQD for short), Shimla should have been summoned in the inquiry proceedings as a witness and the Charged Officer should have been given an opportunity to examine him. As a result, a further enquiry in the matter was ordered in exercise of powers under Rule 15 (1) of the CCS (CCA) Rules, 1965 and the case was remitted to the Inquiring Authority for further enquiry and report. However, the Applicant has filed a revision petition dated 08.06.2006 addressed to the President under Rule 29 of the CCS (CCA) Rules challenging the decision of the Disciplinary Authority dated 29.05.2006 remitting the case. However, the Disciplinary Authority appointed Shri S.R. Joshi, Deputy Director General, Ministry of Labour as the Enquiry Officer and vide letter dated 09.01.2009 and he directed the Applicant to be present before him for enquiry on 28.01.2009. But the submission of the Applicant was that the enquiry proceedings get stayed when a revision petition is filed and is pending before the Revisional Authority (i.e. President) against any order of the Disciplinary Authority. He had also informed the Inquiry Officer that the Disciplinary Authority had no powers to remit the case for further enquiry after enquiry report had already been forwarded to the Charged Officer and his comments on the same has been sought. Further, the Disciplinary Authority was empowered to remit the case to old or new Inquiring Authority only before the enquiry report is forwarded to the Charged Officer. The Enquiry Officer referred the aforesaid objection to the Administrative Officer on 13.02.2009 with the request to examine and take a decision on it. The Applicant has also made similar representations and it was referred to the Administrative Section as in the case of previous representation. But the Administrative Section, vide its order dated 17.6.2009, allowed the said Enquiry Officer to proceed in the enquiry. Thereafter, the enquiry was held on 28.01.2010, on which date the Applicant was present whereas Shri Amar Singh, Government Examiner of Questioned Documents (GEQD), Shimla did not appear. Accordingly, the enquiry was adjourned to 23.07.2009 and then again to 11.08.2009. On 11.08.2009, Shri L. Nato Singh, Assistant GEQD, Kolkatta appeared for his examination. However, since the Applicant did not appear, the enquiry was again adjourned to 10.09.2009 and on that date both the Applicant and Shri L. Nato Singh were present. Shri Nato Singh gave the details of examination of documents before examination by Presenting Officer and cross examination by the Applicant. Shri L. Nato Singh examined the documents and confirmed that opinion No.CX-198/2002 dated 02.08.2002 bears his signature. During the cross examination, Shri L. Nato Singh confirmed that he examined the case together with Shri Amar Singh. During the cross examination, he opined that the person who wrote the blue enclosed signatures stamped and marked A1 to A9 also wrote the red enclosed signatures similarly stamped and marked Q1, Q2 and Q3 written on three letters dated 16.3.2001, 16.3.2001 and 06.03.2002 respectively. He also stated that they have their own Standard Operating Procedure (SOP) where all the examiners have to follow a specific procedure as mandated and certified by National Accreditation Board of Laboratory. The Charged Officer cross-examined the said witness at great length.
7. On the basis of the aforesaid enquiry and the enquiry held earlier, the Enquiry Officer Shri S.R. Joshi vide his report dated 26.02.2010 reiterated that the Applicant was guilty on the following count:-
(i) Authoring and getting delivered the three letters dated 16.3.2001, 16.3.2001 and 6.3.2002 which had been listed in the Annexures to the charge sheet.
(ii) Insinuating that the author of letters dated 16.3.2011 had sent precious ornaments to the Secretary, Ministry of Labour, Shri Vinod Vaish and the Joint Secretary, Ministry of Labour, Smt. Padma Balasubramanian and they accepted/kept those in their Bank lockers and, thus, took bribes.
Secretary had on first sight of dak recorded on it, rightly, as obnoxious behavior. The Joint Secretary also recorded what is this about? I take objection.
The action of the author of the letter is a highly despicable misconduct or insinuating, falsely, corrupt practice and denigrating the high officers.
(iii) Sending a gift of lock of hair as reward for extending his deputation and offer of best posting as in the letter dated 06.03.2002 is again a cruel joke. This is repetition of an insolent behaviour of one year earlier.
8. Applicant submitted his representation dated 06.05.2010 against the findings of Shri S.R. Joshi, Inquiring Authority to the Secretary, Ministry of Labour and Employment. According to the Applicant, the charge sheet has become dead on 25.02.2005 but the Respondents are carrying it forward for the last 5 years only to harass him. He has also stated that there was not an iota of difference between the earlier findings arrived at by the Inquiring Authority, Dr. A.V. Singh and the later findings arrived at by the Inquiring Authority, Shri S.R. Joshi. Rather, Shri S.R. Joshi has reproduced some paragraphs of Dr. A.V. Singhs report dated 27.04.2005 and submitted as his report without any application of mind. The other ground taken by the Applicant was that when he has filed review/revision petition to the President on 08.06.2006 against the order of the Disciplinary Authority remitting the case to the Enquiry Officer, till it has been disposed of, further enquiry should not have been proceeded. The Applicant has also challenged the findings of the Enquiry Officer on the ground of non-application of mind and violating the principles of natural justice. According to him, he has never been given any opportunity to present his defense either by the first Inquiring Authority, Dr. A.V. Singh or by the next Inquiring Authority, Shri S.R. Joshi. Therefore, both the enquiry reports could only be termed as fiction as they are not supported by an iota of evidence. He has also stated that there was no match between the charges leveled by the Disciplinary Authority reproduced by the Inquiring Authority in its report and charges proved by the Inquiring Authority. In this regard he has prepared a chart to show that there was no matching among (i) the original Articles of Charges as contained in the charge sheet, (ii) the Articles of charges as reproduced by the Inquiring Authority in para 3 of his report and (iii) the Articles of charges proved by the next Inquiring Authority in Para 10 of his report. The said table reads as under:-
Original Articles of Charges as contained in the charge sheet Articles of charges as reproduced by 4th Inquiring Authority in para 3 of his report Articles of charges proved by 4th Inquiring Authority in Para 10 of his report 1 2 3 ANNEXURE-1 The Statement of Articles of Charges framed against Shri G.p. Bhatia, Grade-IV Officer of Central Labour Service.
Article-I That Shri G.P. Bhatia while functioning as Senior Administrative Officer (on deputation) to National Bio-Fertilizer Development Centre at Ghaziabad misbehaved by sending a Memorandum dated 16.3.2001 to Shri Vinod Vaish, Secretary and Smt. Padma Balasubramanian, Joint Secretary, Ministry of Labour sending therewith abnormal (unmentionable contents).
Article-II That Shri G.P. Bhatia has perpetrated a similar act on 6th March, 2002 by sending his unmentionable material to the Union Labour Secretary.
Shri G.P. Bhatia, a Grade-IV Officer of Central Labour Service while working as Senior Administrative Officer (on deputation) to National Bio-Fertilizer Development Centre, Ghaziabad sent a Memorandum on 16.3.2001 to Shri Vinod Vaish, Secretary and Smt. Padma Balasubramanian, Joint Secretary, Ministry of Labour sending therewith abnormal material (unmentionable) which is unobjectionable and thereby insulted senior functionaries in the Ministry of Labour.
Shri G.P. Bhatia has perpetrated a similar act on 6th March, 2002 by sending same unmentionable abnormal material to Secretary, Ministry of Labour.
The writing of such obnoxious and implicatively obscene and dirty Memorandum/letter by Shri G.P. Bhatia is against all the norms of official conduct and decorum, which is unbecoming of a Govt. servant violating Rule 3 (iii) of the CCS (CCA) Rules.
On the basis of the enquiry from the present stage and the enquiry held earlier IA, reiterate that the CO Shri G.P. Bhatia is guilty of:-
(i) Authoring and getting delivered the three letters dated 16.3.2001, 16.3.2001 and 6.3.2002 which had been listed in the Annexures to the charge sheet.
(ii) Insinuating that the author of letters dated 16.3.2011 had sent precious ornaments to the Secretary, Ministry of Labour, Shri Vinod Vaish and the Joint Secretary, Ministry of Labour, Smt. Padma Balasubramanian and they accepted/kept those in their Bank lockers and, thus, took bribes.
Secretary had on first sight of dak recorded on it, rightly, as obnoxious behavior. The Joint Secretary also recorded what is this about? I take objection.
The action of the author of the letter is a highly despicable misconduct or insinuating, falsely, corrupt practice and denigrating the high officers.
(iii) Sending a gift of lock of hair as reward for extending his deputation and offer of best posting as in the letter dated 06.03.2002 is again a cruel joke. This is repetition of an insolent behaviour of one year earlier.
9. However, the Disciplinary Authority, vide its order dated 04.10.2010, observed that there was no doubt that the letters sent by the Applicant to Senior Officers of the Ministry of Labour with offensive enclosures were intended to be a grossly insulting act and must be viewed as a very grave case of indiscipline and insubordination. The sending of biological material, i.e., tufts of hair, in the instant case, is deeply offensive and deserves to be dealt with accordingly, particularly as the communication in question was addressed to very Senior Officers of the Ministry of Labour. Therefore, the gravity of the offence proved against Applicant is such as to warrant the imposition of a major penalty. He has also, in exercise of the powers conferred in Rule 15 (4) of the CCS (CCA) Rules, 1965 and in consultation with the Union Public Service Commission imposed the penalty of reduction of pay by two stages in the time scale of pay for a period of two years with further directions that he will not earn increments of pay during the period of such reduction and on the expiry of the such period, the reduction will not have the effect of postponing the future increments of pay, on the Applicant with immediate effect.
10. Thereafter, the review petition dated 03.11.2010 was decided by the President vide order dated 10.02.2011. According to the said order, in the lengthy representation submitted by the review applicant under Rule 29-A of the CCS (CCA) Rules, 1965, he has not brought forth any fresh grounds to review the penalty imposed upon him. It was also observed in the said order that on majority of issues, the Applicant has travelled far beyond the scope of review and those need not be responded to. Therefore, the Review Petition was rejected.
11. Learned counsel for the Applicant Shri S.K. Gupta has argued that Rule 15 (1) of the CCS (CCA) Rules, 1965 could not have been invoked in the case of the Applicant as the stage prescribed in sub-rule (2) thereof has already been crossed by the Disciplinary Authority. Further, according to him, none of his objections raised against the report of the Enquiry Officer and the action of the Disciplinary Authority remitting the case for further enquiry have been considered in the impugned order of the Disciplinary Authority dated 04.10.2010.
12. Another ground raised by the learned counsel for the Applicant is that once the order dated 29.05.2006 passed by the Disciplinary Authority remitting the case to the Inquiring Authority under Rule 15 has been passed, the first enquiry report has become redundant and cannot be relied upon for further proceedings. According to the learned counsel, the enquiry proceedings should have been continued from the stage as provided under Rule 14 (2) in order to bring it to a logical conclusion. But no further proceedings have been admittedly held by the Enquiry Officer. Again, the Applicant submitted that the Enquiry Officer abruptly stopped the enquiry on 10.09.2009 after recording the deposition of Shri L. Nato Singh. According to him, such a procedure is absolutely in violation of Rule 14 (2) and Rule 14 (11) of the CCS (CCA) Rules, 1965 which are reproduced as under:-
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
XXX XXX XXX EXPLANATION - Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the disciplinary authority.
(11) The inquiring authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence:
(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3);
(ii) submit a list of witnesses to be examined on his behalf; NOTE-
If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.
(iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3).
NOTE-
The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government.
13. Other contention of the Applicants counsel is that the charge is absolutely vague. In this regard he has submitted that there was no specific mention as to what Rules 1965 have been violated by the Applicant. The Presenting Officer was also of the view that Rule of 3 (i) (iii) of the CCS (Conduct) Rules has been wrongly invoked in this case. Again, the Enquiry Officer pointed out that it is a lacuna in the proceedings that the details of the employees who opened the dak on behalf of the Joint Secretary and the Secretary have not been indicated. The response of the Presenting Officer in this regard was that it was not possible to say precisely as to who might have opened the dak allegedly sent by the Charged Officer.
14. The other submission of the learned counsel for the Applicant is that this is a case of no evidence, therefore, the findings of the Enquiry Officer are perverse. In this regard he has submitted that none of the Articles of Charges have been linked with the officer. The Enquiry Officer, vide his order sheet dated 22.02.2005, has admitted that the documents received from the Disciplinary Authority, in the context of sub-rules (3) and (6) of Rule 14 of the CCS (CCA) Rules, 1965, did not contain a list of witnesses or any statement of any witness, to substantiate the imputed misconduct/misbehavior on the part of the Charged Officer. In fact, in the interest of justice, the Enquiry Officer had allowed the Presenting Officer to give the list of witnesses, if any, on whom he would rely for proving the allegations. On the other hand, from the letter of the Ministry of Labour dated 21.4.2004, it is clear that the Disciplinary Authority was not aware as to who has opened the dak allegedly sent by the Charged Officer to the Secretary (L) and the Joint Secretary (PB). The Disciplinary Authority was also unable to identify or produce any witness, in support of the charges framed by the Disciplinary Authority.
15. The other contention of the Applicant is that order of the Disciplinary Authority is a non-speaking order and it does not contain any reasons.
16. The Respondents in their reply have submitted that two memoranda dated 16.3.2001 written on the letterhead of National Biofertiliser Development Centre, Ghaziabad where Applicant was serving as Sr. Administrative Officer (on deputation) and addressed to Shri Vinod Vaish, the then Secretary of the Ministry of Labour and Smt. Padma Balalsubramanium, the then Joint Secretary, also of this Ministry bears signature of the Applicant were received enclosing tufts of hair saying in print Please accept my precious ornaments for keeping in your Bank Lockers. Another letter dated 06.03.2002 addressed to Shri Vinod Vaish, the then Secretary (L) signed by the Applicant on the letterhead of National Biofertiliser Development Centre, Ghaziabad was received enclosing a tuft of hair with the comments many many thanks to you for extending deputation period beyond 4th year and offering the best posting place. Please accept my gift as under. The above insolent behaviour allegedly exhibited by the Applicant led to initiation of disciplinary proceedings.
17. They have also stated that while the enquiry was proceeding in the matter, Applicant had earlier filed OA No. 2029/2009 before this Tribunal seeking to quash the charge sheet. However, this Tribunal disposed of the said OA vide order dated 07.05.2010 directing the Disciplinary Authority to pass appropriate order within a period of six weeks. Further, they have submitted that the Enquiry Officer submitted its report on 26.2.2010. After examination of the said report and its acceptance in accordance with Rule 15(2) of the CCS (CCA) Rules, 1965, forwarded a copy of the same to the Applicant for submitting his representation, if any. The Applicant has also submitted his representation on 6.5.2010. On examination of the same it was found that the Applicant did not bring forth any new fact that could alter the scenario of the case pending against him. Thereafter, the Disciplinary Authority referred the matter to the UPSC seeking their advice with regard to the appropriate punishment to be imposed upon the Applicant. Accordingly, UPSC vide letter dated 27.8.2010 advised that, taking into account all aspects relevant to the case, ends of justice would be met if the penalty of reduction of pay by two stages in the time scale of pay for a period of 2 years with further direction that he will not earn increments of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing the future increments of his pay is imposed on the Applicant. The Disciplinary Authority concurred with the aforesaid advice rendered by the UPSC. Accordingly, the impugned order dated 04.10.2010 was issued to the Applicant. They have also stated that the Applicant has been given ample opportunity to defend his case and enquiry has been held in accordance with the rules. They have further stated that Rule 15 (1) of the CCS (CCA) Rules, 1965 provides for remitting the case to the Inquiring Authority for further enquiry. They have also stated that the enquiry report submitted by the Enquiry Officer was provided to the Applicant for enabling him to make representation, if any. Again, it was on his submission that he was denied opportunity of cross examination of official of GEQD, Shimla that the Appellate Authority remitted the case to the Disciplinary Authority to give ample opportunity to him to defend his case. They have also submitted that it was on the basis of the detailed and independent examination of the entire case records, the Disciplinary Authority has come to its own conclusion. However, despite all efforts, the written brief of the Applicant was not traceable in the Ministry. Therefore, it could not be sent to the UPSC. However, the report of the Enquiry Officer, Dr. A.V. Singh, which considered the written brief of Applicant, was sent to the UPSC. They have also stated that the review/revision petition under Rule 29 of the CCS (CCA) Rules, 1965 was filed by the Applicant before completion of the enquiry. However, the same was referred to the DOP&T and they held that in the disciplinary case against Applicant, the President being the Disciplinary Authority the question of revision of the order passed by the Disciplinary Authority does not arise and only a review petition was admissible in such a case. However, Rule 29 (A) of the CCS (CCA) Rules, 1965 provides for review by the President of an order passed by him only if any new fact or material which has the effect of changing the nature of the case comes to his notice. Since, the review petition of the Applicant did not bring out any such new fact/material, no review on Disciplinary Authoritys orders lies.
18. Further, they have submitted that Applicant is a self-proclaimed crusader against corruption, transfer scam, etc. and he was leveling false allegations of victimization and criminal conspiracy against Disciplinary Authority and his senior colleagues. However, it was for the Applicant to prove those allegations. As regards the allegation of forgery of his signatures, he was given sufficient opportunity to prove the same during the course of departmental enquiry. Moreover, the penalty order has been passed after conducting detailed enquiry against the Applicant and it is a matter of record that the documents which have been sent by the Applicant were sent to GEQD, Shimla and it submitted its report wherein it has been concluded that the letters dated 16.3.2001 and 06.03.2002 were signed by the Applicant. Hence, the action of the department is based on the advice of the experts and the Applicant has failed to show any illegality in the same and, therefore, the allegation of the Applicant that the charges were based on surmises and conjectures is liable to be dismissed.
19. Learned counsel for the Respondents has also relied upon the judgment of the Apex Court in State of Uttar Pradesh Vs. Man Mohan Nath Sinha and Another 2009 (8) SCC 310 wherein it has been held that judicial review cannot be directed against the decision but has to be confined to the decision making process. Further it has been held that court cannot sit in judgment on merits of the decision and it is not open to reappreciate and appreciate the evidence led before Enquiry Officer and examine findings recorded by the Enquiry Officer as a court of appeal and reach its own conclusion. The relevant part of the said judgment reads as under:-
15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re- appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court.
16. Resultantly, the appeal is allowed and the order dated May 23, 2008, passed by the High Court is set aside. Writ Petition is restored to the file of the High Court for fresh hearing and disposal. Needless to say that the respective arguments of the parties are kept open to be agitated before the High Court which obviously will be considered on their own merit. We request the High Court to dispose of the matter as expeditiously as may be possible and preferably within four months. No order as to costs.
20. We have heard the learned counsel for the Applicant Shri S.K. Gupta and the learned counsel for the Respondents Shri Rajesh Katyal. We have also perused the entire records of the case made available by the Respondents. As submitted by the learned counsel for the Respondents citing the judgment of the Apex Court in Man Mohan Nath Sinhas case (supra), there cannot be any second opinion on the well settled legal proposition that the power of judicial review is not directed against the decision but it shall be on the decision making process. The Apex Court in State of A.P. Vs. S. Sree Rama Rao AIR 1963 SC 1723, held that the High Court (in this case this Tribunal) is not constituted as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. In Union of India v. Parma Nanda (1989) 2 SCC 177 it is held at page SCC 189 as under:
"27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter."
Again, a Bench of three judges of the Apex Court considered the scope of judicial review in its judgment in B.C. Chaturvedi Vs. Union of India 1995 (6) SCC 749 and held as under:-
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
21. From the aforesaid judgments of the Apex Court what is to be seen in a departmental enquiry is whether it has been done consistent with the rules and in accordance with the principles of natural justice. Further, it is also to be seen whether the findings or conclusions are based on some evidence. Therefore, the interference of the Court/Tribunal shall be only where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence.
22. The Article of Charge against the Applicant was that he misbehaved by sending a Memorandum dated 16.3.2001 to Shri Vinod Vaish, Secretary and Smt. Padma Balasubramanian, Joint Secretary, Ministry of Labour sending therewith abnormal (unmentionable contents). He perpetrated a similar act on 6th March, 2002 by sending his unmentionable material to the Union Labour Secretary. The Statement of Imputation of misconduct or misbehaviour in support of imputation of misconduct in support of the aforesaid Article of Charge further says that the aforesaid act on the part of the Applicant, he insulted senior functionaries in the Ministry of Labour and the writing of such obnoxious and implicatively obscene and dirty Memorandum/letter by Applicant is against all the norms of official conduct and decorum, which is unbecoming of a Govt. servant violating Rule 3 (iii) of the CCS (CCA) Rules. The only documents by which the aforesaid Articles of Charge were proposed to be framed were the two Memorandums dated 16.03.2001 and 16.03.2002 alleged to have been sent by the Applicant to Shri Vinod Vaish, Secretary, Smt. Padma Balasubramanian, Joint Secretary, M/o Labour and against to the Union Law Secretary. There was no witness on behalf of the prosecution to prove the aforesaid charges. However, the Enquiry Officer in its report dated 27.04.2005 has stated that on receipt of the aforesaid Memorandum both Shri Vinod Vaish ad Smt. Padma Balasubramanian recorded in those Memorandums as obnoxious behaviour and what is this about? I take objection respectively. But none of those officers have been cited as witness. No other person has also been cited as witness to prove the aforesaid charges. Under Rule 14(3) of the CCS (CCA) Rules, 1965, it is mandatory on the part of the Disciplinary Authority to provide a list of witness to prove the list documents attached with the statement of imputation of misconduct or misbehaviour. The said Rule reads as under:-
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
However, in the present case, admittedly there was not a single witnesss. As held by the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570, mere production of documents is not enough but its contents have to be proved by examining witnesses. The relevant part of the said judgment reads as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
23. It is seen that the charge against the Applicant is that he sent two Memorandums dated 16.03.2001 and 06.03.2002 to Vinod Vaish, Secretary and Smt. Padam Balasubramanian, Joint Secretary and they have made their remarks on those Memoranda. They are, therefore, material witness in the case. But the Disciplinary Authority did not include them in the list of witnesses for reasons best known to him. On the other hand, their comments on the said Memoranda has been relied upon by the Enquiry Officer and the Disciplinary Authority. Such an action on the part of the aforesaid authorities are against the principles of natural justice. No statement or document can be validly proved if the maker of that document/statement is not summoned in the enquiry for the purpose of affording a reasonable opportunity to a Charge Officer to cross examine him. The Apex Court considered the issue of non-examination of the material witnesses in its judgment in Harwari Lal Vs. State of U.P. and Others JT 1999 (8) SC 418. It was held in the said judgment that, in the absence of non-examination of the material witnesses, the enquiry held is not proper and it is to be quashed and set aside on that ground alone. The relevant part of the said judgment is as under:-
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
24. Further, it is seen that the Disciplinary Authority has proposed to hold an enquiry against the Applicant under Rule 14 of the CCS (CCA) Rules, 1965, without any list of witnesses whereas sub-rule (3) of the said Rule mandates that not only there shall be a list of documents by which the articles of charge are proposed to be proved but there shall also be list of witnesses by whom they are to be proved. It is a constitutional mandate under Article 311(2) that before any penalty is imposed upon a person, he shall be given a reasonable opportunity of being heard in respect of the charges and the Disciplinary Authority can do so only on the basis of the evidence adduced during such enquiry. Again, the denial of opportunity to the delinquent employee to cross-examine the witness who has been examined on behalf of the prosecution is nothing short of denial of reasonable opportunity. Sub-rule (14) of Rule 14 of the CCS (CCA) Rules, 1965 also envisages granting reasonable opportunity to the Government servant to defend his case. The said Rule reads as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
Dealing with similar provision in Rule 16(3) of the Delhi Police (Punishment & Appeal) Rules, 1980, the Apex Court in its judgment in Kuldeep Singh Vs. Commissioner of Police and Others 1999 (2) SCC 10 has held as under:-
32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them..
25. However, Enquiry Officer in his report held that the charge against the Applicant has been proved while the charge against the Applicant was that he misbehaved by sending a Memorandum dated 16.3.2001 to Shri Vinod Vaish, Secretary and Smt. Padma Balasubramanian, Joint Secretary, Ministry of Labour sending therewith abnormal (unmentionable contents) and perpetrated a similar act on 6th March, 2002 by sending his unmentionable material to the Union Labour Secretary, which has been proved by the Enquiry Officer was that the Applicant has authored and got the three Memorandums listed in the list of documents. He insinuated by sending precious ornaments to the Secretary, Ministry of Labour, Shri Vinod Vaish and the Joint Secretary, Ministry of Labour, Smt. Padma Balasubramanian and they accepted/kept those in their Bank lockers and, thus, took bribes. Further, the Secretary had on first sight of dak recorded on it, rightly, as obnoxious behavior. Further, according to the Enquiry Officer, the action of the author of the letter is a highly despicable misconduct or insinuating, falsely, corrupt practice and denigrating the high officers and sending a gift of lock of hair as reward for extending his deputation and offer of best posting as in the letter dated 06.03.2002 is again a cruel joke and it was a repetition of an insolent behaviour of one year earlier. As stated earlier, the aforesaid findings of the Enquiry Officer is not based on any evidence adduced during the enquiry. Following the dicta laid down by the Apex Court in catena of cases, the findings recorded without having any evidence on record cannot be sustained.
26. The Disciplinary Authority in this case has not exercised its powers in accordance with the prescribed rules and procedures. Under sub-rule 21(b) of Rule 14 of CCS (CCA) Rules, 1965, the Disciplinary Authority, before imposing a suitable punishment on the Applicant, may order for further examination of any witness if it is found necessary in the interest of justice. In such a situation, the Inquiry Officer may recall the witness and examine, cross-examine and re-examine him. Under Rule 15(1) ibid, the Disciplinary Authority may also remit the case to the Inquiring Authority for further enquiry according to the provisions of Rule 14. However, if the Disciplinary Authority was satisfied by the Enquiry Officers proceedings and with his report, under Rule 15(2) ibid, it shall forward a copy of the said report to the Government servant who shall be required to submit his written representations or submissions to the Disciplinary Authority within 15 days. On receipt of the representation and after its consideration, the Disciplinary Authority may proceed further to impose any penalty on the Government servant as provided in sub-rule (3) and (4) of Rule 15 ibid. The said rules are reproduced as under:-
14(21)(b) The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules.
XXX XXX XXX 15(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
(2A) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules (3) and (4).
(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in rule 16, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed :
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.
Under Rule 14(21)(b) ibid the power of the Disciplinary Authority to further examination of any of the witnesses is limited to only the witnesses who have been examined and not any other witnesses. Again, power of the Disciplinary Authority under Rule 15(1) ibid is to remit the case to the inquiring authority for further inquiry before the stage of furnishing the copy of the enquiry report to the Applicant under Rule 15(3) ibid. However, in the present case, the authority adopted an entirely different procedure de hors the aforesaid rules and brought a new witness, that too, after a copy of the enquiry report has been furnished to the Applicant and obtained his representation under Rule 15(3) ibid. Thereafter, the Disciplinary Authority ordered for further enquiry in the matter and got the same conducted by a new Enquiry Officer. The Apex Court in Union of India Vs. K.D. Pandey and Another 2002 (10) SCC 471 held that when the enquiry report submitted by the Enquiry Officer contains specific findings in respect of each of the charges after discussing the matter, if the Disciplinary Authority is not satisfied with the said report, it cannot remit the matter to the inquiring authority for further enquiry. If it does so, it would amount to second enquiry and not further enquiry in the same matter and if such practice is allowed, the same would result in the abuse of the process of law. The relevant part of the said judgment is as under:-
5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly.
27. Again, it is seen that once the Applicant has submitted his representation on the enquiry report, under Rule 15(2A), the Disciplinary Authority is required to consider it and to record its findings as specified in sub-rules (3) & (4) which have been extracted earlier in the order before proceeding further in the matter. Instead, it referred the matter to the UPSC seeking their advice on the punishment to be imposed upon the Applicant and the UPSC readily rendered its advice to impose upon the Applicant the penalty of reduction of pay by two stages in the time scale of pay for a period of 2 years with further direction that he will not earn increments of pay during the period of such reduction and on expiry of such period, the reduction will not have the effect of postponing the future increments of his pay is imposed on the Applicant. The Disciplinary Authority just concurred with the aforesaid advice and imposed the same penalty upon the Applicant. A perusal of the order of the Disciplinary Authority does not show that it has applied its mind in the matter at all. This issue was considered by this Bench in OA 4089/2011 Shri R.P.S. Panwar Vs. U.O.I. and Others decided on 03.12.2013 and held that the Disciplinary Authority cannot leave it to the UPSC to determine as to what penalty has to be imposed upon the delinquent employee. The relevant part of the said order reads as under:-
As the proposed penalty fall within disciplinary matters affecting a person serving under Government as envisaged in Article 320(3)( c), the Disciplinary Authority has to consult the UPSC on it. In other words, even after the aforesaid amendment, consultation with the UPSC includes consultation on the proposed penalty arrived at by the Disciplinary Authority independently. Therefore, the Disciplinary Authority cannot leave it to the UPSC to determine the penalty to be imposed upon the Government servant. In the judgment of Manbodhan Lal Srivastava (supra) also, the Apex Court has clearly stated that consultation with UPSC has been specifically provided for to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services. Therefore, it is incumbent upon the Executive Government, where it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.
28. We have also seen that the Applicant had submitted a Revision Petition under Rule 29 of the CCS (CCA) Rules, 1965 on 08.06.2006 against the order of the Disciplinary Authority dated 29.05.2005 remitting the case to the Enquiry Officer. However, it was considered and disposed of only on 01.02.2011 much after the order of the Disciplinary Authority dated 04.10.2010 imposing the penalty upon the Applicant thereby rendering his Revision Petition infructuous.
29. For all the aforesaid reasons, we find that the Enquiry Officers reports dated 27.04.2005 and 26.02.2010, Disciplinary Authoritys orders dated 29.05.2005 and 04.10.2010 are not sustainable and accordingly they are quashed and set aside. However, liberty is granted to the Disciplinary Authority to initiate fresh proceedings against the Applicant and conclude the same in accordance with the law, if so advised. While doing so, the Respondents shall also keep in mind of the fact that the alleged incidents have taken place nearly 12 years ago and about the availability of the material witness to prove the charge.
30. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh