Central Administrative Tribunal - Bangalore
Dr. Anil Kumar Mukhi vs The Chief Soil Survey Officer And Ors. on 18 November, 2005
Equivalent citations: 2006(92)SLJ105(CAT)
ORDER G. Shanthappa, Member (J)
1. The above applicant is filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
The applicant thus has been penalized illegally and which has a devastating effect not only in his career but also in the matter of sanction of retiral benefits. Having been aggrieved by the irredeemable damages, the applicant humbly prays that this Hon'ble Tribunal be pleased to:
(i) call for the complete records and on scrutiny,
(ii) set aside the Charge Sheet No. 13011/39/92-AVU dated 28.08.1995 at Annexure-12 passed by the 3rd respondent in toto;
(iii) set aside the penalty order 1301 1/39/92-AVUdated9.01.2004at Annexure-A33, passed by the 3rd respondent in toto;
(iv) set aside the order No. 13011/39/92-AVU dated 4.10.2004 at Annexure-A38 passed by 3rd respondent in toto;
(v) set aside order No. E-12-1/G(A)/45 dated 26.02.2004 at Annexure-A40 passed by 1st respondent.
(vi) direct the respondents to promote the applicant earlier to the date of promotion (July - August 1998 (Sic 2000) of Shri C.P. Singh, as Senior Soil Survey Officer in view of Chaman Lal Goyal's decision vide para 12, as the case of the applicant falls squarely in the ambit of the case supra, as there has been an abnormal delay and there was no enquiry pending against the applicant from 8.10.1997 to 30.07.1999 viz., the date of submission of P.O's brief (pre-de novo) and the date of passing orders to conduct a de novo enquiry respectively or promote the applicant from the date of the expiry of the residual period in the present rank, whichever is early;
(vii) Consequently, to award fixing of pay in the higher cadre for which the applicant was entitled and sanction of increments in the higher post;
(viii) Award exorbitant costs in view of the fact that applicant has been put to mental trauma right from 1992; and
(ix) Award any other benefits that this Hon'ble Tribunal may deem fit in view of the facts and circumstances of the case taking into consideration of the repetition of the inquiries, of which have been held in the most illegal and arbitrary manner.
2. Brief facts of the case of the case are:- The applicant was working as Soil Survey Officer, Group-A - Senior Class-I in 1988. In the month of October 1992 there were certain allegations against one Smt. K. Rajeshwari, U.D.C. regarding non-remittance of L.I.C. premia and professional tax collected from the staff members. The applicant held preliminary inquiry on the allegation and furnished a report. The 2nd respondent issued an order constituting a Fact Finding Committee ('F.F.C.' for short) to enquire on certain representations and complaints alleged to have been received from some members of the respondents office. The applicant was directed to make available all the records to the said F.F.C. Subsequently, the F.F.C. had conducted the inquiry in which the applicant was not called to participate in the proceedings. Thereafter in the month of February 1993 the applicant was transferred to Hyderabad. Subsequently, the applicant was served with a charge memo consisting of 7 charges, along with Annexure-II containing statement of imputations of misconduct, Annexure-III comprising list of witnesscs-3 in number to substantiate these 7 charges, no list was produced as Annexure-IV mentioning the list of documents produced. The applicant was charge sheeted under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the Rules for short). Since copies of statements of witnesses were not enclosed, the applicant desired for furnishing copies of the said documents on 25.9.1995. The applicant submitted his representation to the charge memo pleading not guilty on 11.09.1996 and desired the Inquiring Authority to furnish copies of 25 documents. Subsequently, the inquiry was held on 26.12.1996 and the inquiry proceedings were completed on 7.10.1997, The Presenting Officer was directed to submit his brief on 7.10.1997 which he submitted on 8.10.1997. One of the grievances of the applicant is that the inquiry was not in accordance with Rule 14(23) of the Rules and no list of documents was supplied as provided under Rule 14(3)(ii) of the Rules.
3. Subsequently, on 30.07.1993 the 2nd respondent has issued an order appointing an Inquiry Officer to conduct a de novo inquiry on account of the earlier Inquiry Officer was transferred. The Inquiry Officer had conducted and concluded the inquiry. During the course of inquiry, the applicant desired that all the 36 documents be furnished to him. On completion of de novo inquiry which was held on between 22.09.1999 and 24.09.1999 (only three days), the Presenting Officer presented his brief on 1.10.1999. The applicant has furnished his brief on 5.11.1999. Again on 5.07.2000 the 2nd respondent has ordered to remit the case to enquire the charges framed against the applicant from the stage of "recording of deposition". The applicant desired to furnish his brief. The applicant submitted his representation to the inquiry report on 30.10.2002. The 1st respondent sought advice from the Union Public Service Commission. The Union Public Service Commission has advised imposition of penalty of stoppage of increment for two years with cumulative effect. In the meanwhile junior of the applicant one Sri C.P. Singh was promoted to the post of Senior Soil Survey Officer during July/August, 1998 by overlooking the applicant. The applicant sought for closure of the inquiry on several times. Finally, without considering the representation, the respondents have imposed a major penalty of "stoppage of increments for two years with cumulative effect" on partial providing of charges which would affect further promotion and not only increments while in service, but also affect his retiral benefits such as pension/family pension, encashment of leave, DCRG etc, apart from necessity to carry on with stigma. Being aggrieved by the said order of imposition of penalty on 9.01.2004, the applicant submitted an appeal under Rule 23 (ii) read with Rule 23(iv)(a) of the Rules to the Appellate Authority. Instead of rejecting the said appeal under Rule 22, suo motu exercising the powers vested in him under Rule 29A of the Rules the Appellate Authority has rejected the appeal. Being aggrieved by the said order, the applicant approached this Tribunal challenging the charge memo, order of the Disciplinary Authority and the order passed under Rule 29-A of the Rules on the ground that the impugned orders are not sustainable in the eye of law, that the respondents have not followed the Rules while imposing the penalty and they have not followed the judgment of the Hon'ble Apex Court reported in the case of State of Punjab and Ors. v. Chaman Lal Goyal (1995) 2 SCC 570 : 1995(2) SLJ 126 (SC). The respondents have not followed Sub-rule (3)(ii)(b) of Rule 14 of the Rules, Rule 14(23) of the Rules and the principles laid down by the Hon'ble Apex Court 1987(3) ATC 281, Sham Prasad Mishra v. Union of India. The charges framed against the applicant were vague which amounts to denial of reasonable opportunity to the applicant and also the charges are not clear, definite and specific.
4. In the preliminary inquiry held on 11.09.1996, the applicant was directed to be present himself for regular inquiry on 26.12.1996, there was a delay of 10 months from the date of issue of charge sheet that has not been explained. As per O.M. issued by the DOPT dated 16.12.1972 there cannot be a delay of beyond 6 months from the date of commencement of the inquiry and date of finalisation of the inquiry. In the present case for a cause of action that arose in 1993 the inquiry commenced on 11.09.1996 and finalized on 11.10.2002 culminating in awarding penalty as late as on 21.01.2004. The delay of 12 years is against the principles of natural justice. The fundamental right of the applicant under Article 21 of the Constitution is violated. Failure to furnish copies of documents amounts to violation of Article 311(2) of the Constitution of India. The main ground for quashing the entire proceedings is that a de novo inquiry is not permissible under law and also as directed by the Hon'ble Apex Court in a Constitutional Bench decision in the case of K.R. Deb v. Collector of Central Excise (1971) 1 SLR 29. The de novo inquiry was held in between 30.07.1999 and 8.10.1997, which was based on the same co-accused/witnesscs. The entire inquiry which was based on "no sanction in law or the rule, justifies the applicant's contention that the very purpose for which the inquiry was initiated wanted to be completed against the applicant to deprive him from even being considered for the promotion." Accordingly Rule 15(1) of the Rules is violated. Before imposing the penalty, the Disciplinary Authority has to supply the Union Public Service Commissioned advice. In the instant case the Union Public Service Commission advice was supplied along with the impugned order of penalty. Hence, the procedure followed by the Disciplinary Authority violates the direction of the Hon'ble Apex Court in the case of Avtar Singh v. State of Punjab 1996 LIC 1623.
5. Another main legal issue is that the Reviewing Authority has decided the appeal. Rule 22 of the Rules, does not provide for an appeal from any order of the President who has suo motu decided to deal with appeal in terms of Rule 29 A of the Rules ibid and passed the impugned order. The authority who issued the impugned order has no power to review his own order. Hence, the impugned order passed under Rule 29A of the Rules is not in accordance with law and the same shall be quashed.
6. As per Rule 11 of the Rules - Sub-rule (v) to (ix) stoppage of increments for two years with cumulative effect is passed. There is no such provision for imposing the above penalty. Hence, the imposition of penalty is illegal, hence, the charge memo and the orders of the President are liable to quashed and that consequential benefits shall be granted.
7. Per contra, the respondents have filed a detailed reply denying the averments made in the O.A. and supported the impugned orders except few of the averments are admitted.
8. The respondents have refuted the averments made in the O.A. and they have admitted that the charge sheet vide charge memo dated 28.08.1995 of violating rule/procedure and failing in his duty as Head of Office and Drawing and Disbursing Officer. The respondents have averred that the order dated 1.12.1992 at Annexure-A3 is not a genuine copy of the office order. The office order was dated 28.09.1992. The applicant has fabricated the said document, which is at Annexure-R2. The applicant wrote a letter to CSSO expressing his views on the method of inquiry by the FFC. In the proceedings of FFC it was also on record that the applicant had made his representation before the FFC regarding one Sri Rajendra through his letter No. BRC/92-93/3331. The report of the FFC was not provided to the applicant at that time as the decision to initiate disciplinary proceedings against the applicant had already been taken by the Disciplinary Authority. In terms of Rule 15 Sub-rule (2) of the Rules, a copy of the inquiry report shall be provided to the charged officer to enable him to submit, if he so desires, his written representation. As per Rule 15(1), The Disciplinary Authority if it is not itself the Inquiring Authority, for reasons to be recorded by it in writing, to remit the case to the Inquiring Authority for further inquiry and report. Central Vigilance Commission need to be consulted at two stages in the course of disciplinary proceedings against the gazetted Government servant. The case was referred to the Central Vigilance Commission for its second stage advice in February, 1998, In May, 1998 CVC returned the case with the remarks that the inquiry was not conducted as per the prescribed procedure and advised that the inquiry may be conducted de novo in accordance with the prescribed rules. Hence, the question of forwarding a copy of the inquiry report to the applicant did notarise.
9. The Central Vigilance Commission observed that in the present case the applicant and others were involved in a case of misappropriation and although a separate and simultaneous inquiry was initiated by the Disciplinary Authority under Rule 14, the Inquiry Officer held common proceedings. In view of this, the department was advised to remit the to the Inquiry Officer to hold the inquiry from the stage of recording deposition. The Commission observed that the report of the Inquiry Officer suffers from lack of proper documentation and as such directed the Ministry to remit the case back to the Inquiry Officer for conducting a de novo inquiry. There was no procedural lapse or violation of rule. The respondents have relied on the decision of the Hon'ble Apex Court in the case of P. Mani Paul v. Union of India 1991(15) ATC 92 : 1991(2) SLJ 468 (CAT--Emakulam).
10. The inquiry report was forwarded to the applicant in October, 2002. After considering the representation of the applicant, the case was referred to the Union Public Service Commission in February, 2003 for determination of quantum of penalty. As per the UPSC advice, the charged official did not exercise adequate check on the Cashier that as Head of Office and DDO, the applicant had undoubted supervisory responsibility and was clearly remiss in his management of his office and in the discharge of his functions as DDO was not vigilant enough to ensure proper maintenance and timely scrutiny of financial transactions and returns. The UPSC advised for imposition of penalty of stoppage of increments for 2 years with cumulative effect. Absolutely, there is no delay, if any, it is due to procedural requirement. The respondents have denied that there was absolutely no action by the Disciplinary Authority from 9.10.1997 to 30.07.1999.
11. The Disciplinary Authority in the case of the applicant is the President of India and the penalty was imposed by order and in the name of the President of India. Rule 22 of the Rules provides that no appeal shall lie against any order made by the President. Rule 29-A of the Rules provides for review by the President either suo motu or otherwise when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, comes or is brought to the notice of the President. Rule 29-A of the Rules has not prescribed for any personal hearing. The contention of the applicant for an appeal under Rule 22 or 23 is incorrect. All the grounds urged by the applicant are not tenable in the eye of law. Hence, the O.A. is liable to be dismissed.
12. Subsequently, the applicant has filed rejoinder in which there is no much clarification made. We have considered the averments made in the rejoinder.
13. We heard Mr. Arul Anandu, learned Counsel for the applicant and Mr. M. Vasudeva Rao, learned Counsel for the respondents.
14. The learned Counsel for the applicant has relied on the judgments which are as follows:
(1) State of Punjab v. Chaman Lal Goyal.
(2) Babu Verghese v. Bar Council of Kerala.
(3) 2000 (1) SLR (CAT) 380 (PB-ND) Gulab Singh v. Union of India, (4) 2000 (1) SLJ (CAT) 362 Dr. P.A. Rajan v. The Director General of Health Services.
(5) 2000( 1) SLJ (CAT) 1 Trilok Nath Katyal v. Union of India.
(6) 2005(1) SLJ (CAT) 155 Mahendra Doshi v. Union of India.
The procedure referred as per the chapter 'Facets of Vigilance - Prevention to Prosecution' regarding the procedure of Central Vigilance Commission, complaints their investigations and disposals, belated, de novo and ex-parte proceedings in the case of belated charge sheets.
15. The learned Counsel for the respondent has relied on the following judgments and on the basis of the proceedings:
(1) State Bank of Patiala v. S.K. Sharma.
(2) Secretary to Govt. v. Srivaikundathan.
(3) 1999 SCC (L &S) 1424 R.S. Saini v. State of Punjab.
(4) Director General of Police v. R. Janibasha.
(5) Dr. A. K. Mitra v. D. Appa Rao.
(6) U.P.S.R.T.C. v. Har Narain Singh.
(7) State of Haryana v. Jagat Singh.
(8) Registrar of Co-operative Societies v. F.X. Fernando.
(9) 1995 Supp(4) SCC 235 Union of India v. Raj Kishore Parija.
(10) 2002 SCC (L & S) 251 Syed Rahimuddin v. Director General.
(11) State of Punjab v. Chaman Lal Goyal.
The applicant has also referred this judgment.
16. After hearing the learned Counsel from either side, the learned Counsel has raised many grounds in the O.A. hut he has restricted his arguments on the following points:
(i) List of documents and the documents sought, in the representation were not supplied as provided under Rules 14(3) and 14(23) of the Rules.
(ii) De novo inquiry held after concluding the full pledged inquiry was not permissible.
(iii) Delay in conclusion of the inquiry violates the principles of natural justice.
(iv) There is no penalty of stoppage of increment for 2 years with cumulative effect under Rules 11(v) to (ix) of the Rules.
(v) Legality of the order of the Disciplinary Authority, representation to the charge sheet and all the representations of the applicant were not considered by the Disciplinary Authority.
(vi) The impugned order of the Disciplinary Authority is not a speaking order, non-supply of UPSC advice prior to imposition of penalty and exercise of powers under Rule 29A is illegal which violates the principles of natural justice. Hence, the entire proceedings including the charge memo are liable to he quashed.
17. The respondents have alleged that on some al legations of the non-remittance of LIC premia and professional tax collected from the staff members by the applicant, the 2nd respondent issued on office order dated 1.12.1992 by constituting a fact finding committee to enquire into, but he was not directed to participate in the deliberations of the said Committee held at Bangalore. In the year 1993 the applicant was transferred to Hyderabad, the 1st respondent directed the applicant to explain as to the reasons on the alleged non-handing over of certain records to the applicant's successor concerning the said allegations. The applicant was served with a charge memorandum dated 28.08.1995 along with Annexure-I, statement of Articles of 7 charges, Annexurc-II, statement of imputations of misconduct and misbehaviour and Annexure-III, list of witnesses mentioning three documents. The charges levelled against the applicant are as follows:
ARTICLE OF CHARGE-I:
Dr. A.K. Mukhi, while working as Soil Survey Officer at Bangalore Regional Centre at All India Soil and Land Use Survey failed to remit LIC Premia LIC during the period from May, 1990 to March, 1991 and a total amount of Rs. 80,362.50 remained undisbursed to LIC causing difficulties to the policy holders of that Establishment.
ARTICLE OF CHARGE-II:
Dr. A.K. Mukhi, Soil Survey Officer again failed to deposit the LIC premium of the employees of the said Establishment during the period of November, 1991 to August, 1992 involved an amount of Rs. 89,955.60.
ARTICLE OF CHARGES-III:
He has misappropriated Rs. 80,362.50 and Rs. 98,955.60 during the period from May, 1990 to March, 1991 and November, 1991 to August, 1992 and finally deposited them in April, 1991 and October, 1992 respectively only after the fact of the defalcation came to notice.
ARTICLE OF CHARGE-IV:
He, as a Soil Survey Officer, failed in his duties in payment of professional tax of the eligible employees of the Bangalore Regional Centre which remained unpaid during September, 1990 to August, 1992.
ARTICLE OF CHARGE-V:
Dr. A.K. Mukhi has failed in his duty as Soil Survey Officer to ensure the proper maintenance and upkeep of records in that he did not check entries in the appropriate ledgers. He did not sign the DD Register.
ARTICLE OF CHARGE-VI As the Head of Office he has not ensured the safe custody of important records and documents in spite of his being aware of the fact that the Fact Finding Committee had inspected the records in connection with non-deposition of LIC premia and professional tax and the records were relevant in this case as evidence.
ARTICLE OF CHARGE-VII While relinquishing the charge as Head of Office on transfer, from the Bangalore Regional Centre, he did not hand over the files relevant in this case to his successor deliberately and has thus attempted to conceal evidence to stall the process of the case.
Thus, Dr. A.K. Mukhi has misappropriated Government money and acted in a manner unbecoming of the Government servant. He has also violated office procedure and has failed in his duties as Head of the Office and has deliberately attempted to hinder the progress of the case and has therefore, contravened the provisions of Rules 3(i) & (ii) and 3(2) of the Conduct Rules.
Annexures-A3 and R2, the contents of the orders are one and the same except the date, the respondents alleged the order is a fabricated one. We consider there is no much relevancy in the issue in deciding the office order.
Non-Supply of List of Documents and Inquiry Report
18. Since copy of list of witnesses was not enclosed along with the charge memo, the applicant desired for furnishing the said copy. The applicant denied the charges by way of representation dated 11.09.1996 (Annexure-A16) in which he requested for furnishing of 25 documents before initiation of regular inquiry. Regular inquiry proceedings were completed on 7.10.1997 and the applicant was directed to submit his brief. On 8.10.1997, the applicant submitted his brief. The applicant was not provided with a copy of inquiry report in accordance with the Rules. After conclusion of the inquiry, on submission of Presenting Officer's brief and applicant's brief and as per Rule 14(3) (ii) and as per Rule 14(23) of the Rules, a copy of the inquiry report-ought to have been forwarded to the applicant. The relevant Rule is extracted hereunder:
14. Procedure for imposing major penalties xxx xxx xxx (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 imputations of misconduct or misbehaviour in support of each article of charge, which shall contain:
(a) astatement 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.
xxx xxx xxx (23)(i)After the conclusion of the inquiry, a report shall be prepared and it shall contain:
(a) the articles of charge and the statement of the imputations of misconduct or misbehaviour;
(b) the defence of the Government servant in respect of each article of charge;
(c) an assessment of the evidence in respect of each article of charge;
(d) the findings on each article of charge and reasons therefor.
19. The applicant has contended that the respondents did not supply the documents were also the Fact Finding Committee report. List of documents are also not supplied as requested in his representation. Hence the principles of natural justice are violated. The respondents have admitted that documents were not listed along with the charge memo. The documents which are referred by the applicant are of his own documents. Hence, the question of supplying the documents does not arise. Learned Counsel for the respondents relied on the judgment of the Hon'ble Apex Court, 2002 SCC (L & S) 254 (Syed Rahimuddin v. Director General, CSIR). The said judgment referred by the respondents is not applicable to the facts of the case. When the applicant did not object when the inquiry was in progress, there is no prejudice caused to the applicant even if the documents were not supplied. On this aspect, the learned Counsel for the respondents had relied on the judgment of the Hon'ble Apex Court in (1996) 3 SCC 364 (State Bank of Patiala v. S.K. Sharma) wherein it is held:
31. Sub-clause (iii) is, without a doubt, conceived in the interest of the delinquent officer and hence, he could waive it. From his conduct, the respondent must be deemed to have waived it. This is an aspect which must be borne in mind while examining a complaint of non-observance of procedural rules governing such enquiries. It is trite to remember that, as a rule, all such procedural rules are designed to afford a full and proper opportunity to the delinquent officer/employee to defend himself and are, therefore, conceived in his interest. Hence, whether mandatory or directory, they would normally be conceived in his interest only.
32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of Sub-clause (iii) be in the interest of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are riot allowed to defeat the ends of justice. Principles of natural justice are not the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise.
33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/ statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is reasonable and adequate opportunity to the delinquent officer/employee. They are generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/ employee in defending himself property and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. This Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/Government is over, the employee shall he given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received afair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to he ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/" no hearing" and "no fair hearing", (a) In the case of former, the order passed would undoubtedly be valid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according, to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere].
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situation, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
The applicant has relied on the judgment, P. Mani Paul v. Union of India (supra). The said judgment is not produced, but we refer to the said judgment. Paras 5(ii) and (iii) thereof are relevant which are extracted below:
(ii) In all these four cases the applicants had requested the Enquiry Officer to cause a production of 21 documents and in their written request the applicants had indicated the purpose for which these documents were needed. It is seen that only 2 documents were made available while the other documents were not made available to the applicants on the ground that they were not relevant for the purpose of the enquiry and also on the ground that some of the documents were required for filing returns and that some others were in the possession of the police. We have gone through the written requests made by the applicants. We are not convinced that the decision of the Disciplinary Authority that the documents were not relevant for the purpose of the enquiry is not correct. Certain documents required by the applicants appear to be absolutely essential for effective cross-examination of the witnesses examined to prove the charges. Further, the documents should not be withheld for the reason that they were required for filing returns or that they are in the possession of the police department. The officers of the police department could have been called upon to produce the documents required by the applicants if they were in the possession of the police department especially, when an officer of the police department was examined to prove the charges against the applicants. Therefore, we are convinced that the respondents have denied reasonable opportunity to the applicants to properly defend themselves in the enquiry as the documents required by them for the purpose of effectively cross-examining the witnesses were not made available to them.
(iii) The applicants have in the applications averred that the statement recorded during the preliminary enquiry of one witness Mr. Sivadasan, who was examined as defence witness was not made available in spite of requests made by them and that since the Disciplinary Authority has relied upon that statement and had produced the same as Annexure-I to the disciplinary order, the procedure adopted is highly irregular and illegal. Mr. Sivadasan was not examined as a witness to prove the charges. So even if his statement was not made available in the ordinary course, it cannot be said that any substantial prejudice, was caused to the applicants by not giving his statement. But in these cases it is seen that the Disciplinary Authority has in his orders relied on the statement of the witness Mr. Sivadasan and has appended the same as Annexure 1 to the disciplinary orders. The appending of this statement in the disciplinary order without giving the statement to the applicant during the enquiry did not serve any purpose. If the Disciplinary Authority wanted to rely on the statement of Mr. Sivadasan the same should have been given to the applicants during the course of the enquiry. Therefore, this course adopted by the Disciplinary Authority is also highly irregular. Therefore, for this reason also it has to be held that the inquiry held is not regular.
When a copy of the list of documents and report was not supplied there was violation of the said Rules on the part of the respondents. The decisions referred by the respondents are not applicable to the contention of the applicant. Hence, we considered the law laid down by the Apex Court which is extracted above.
Legality of De-Novo Inquiry
20. The 2nd respondent issued an order dated 30.07.1999 for de novo inquiry on account of the 1st Inquiry Officer was transferred and not available. The Presenting Officer was appointed on 30.07.1999. A communication dated 25.08.1999 was issued to the applicant to attend the inquiry. The applicant submitted a letter requesting all the 36 documents which are referred in Annexure-A16 may be called for since these were not traceable. The applicant has also sought for certain documents and contended that Rule 15 prohibits 2nd inquiry vide representation dated 22.09.1999 (Annexure-A24). On completion of de novo inquiry, the Presenting Officer has submitted his brief on 1.10.1999. The applicant submitted his defence brief on 5.11.1999 taking his all legal grounds. The 2nd respondent has issued order dated 5.07.2000 (Annexure-A28) remitting the case to enquire the charges from the stage of "recording of depositions" vide memorandum dated 4.10.2002 (Annexure-A29) without considering the representation, the said order was passed. Hence, the procedure of appointment of inquiry officer is illegal. A copy of the de novo inquiry report dated 24.12.1999 (Annexure-A30) was furnished to the applicant. Findings of the Inquiry Officer were Charges 1,2 and 4 proved to the extent that as DDO and Head of Office failed to ensure required deposit of amount of premium and professional tax with LIC and neglect on his part led to the cashier not depositing the money at her will, Charge No. 3 was not proved holding that the money has neither been misappropriated by Sri Mukhi nor deposited by him, Charges 5, 6 and 7 are proved. Here, we have to examine whether the Inquiry Officer has taken care about the representations of the applicant. As directed by the Hon'ble Apex Court, we are not the fact finding authority. We have carefully gone through the inquiry report and the impugned order. The Inquiry Officer has not considered the representation dated 5.11.1999. While ordering for de novo inquiry, whether the authority has followed Rule 15(1) of CCS (CCA) Rules. It is relevant to extract Rule 15(1), which is as follows:
The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case of 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.
The definition of "de novo" as per Black's Law Dictionary is - "Anew; afresh; a second time. A venire de novo is a writ for summoning a jury for the second trial of a case which has been sent back from above for a new trial." The contention of the respondents that when the inquiry report was not supplied, the appointment of second Inquiry Officer amounts to continuation of earlier inquiry. Hence, there is no violation of Rule 15. The contention of the applicant that the order appointing de novo inquiry proceedings was on 30.07.1999, though the first inquiry was completed on 8.10.1997, the de novo inquiry was based on the same co-accused/witnesses. The entire inquiry which was based on no sanction in law or the Rules justified the applicant's contention that the very purpose for which the inquiry was initiated wanted to be completed against the applicant to deprive him from even being considered for promotion. The Disciplinary Authority has been vested with enough authority and power to consider the evidence itself and come to his own conclusion under Rule 9 of the Rules. The Disciplinary Authority without assigning the reasons, de novo inquiry was ordered which is illegal. In this aspect the learned Counsel for the applicant has relied on the judgment of the Apex Court in the case of K.R. Deb v. Collector of Central Excise (supra). We have carefully examined the provision and the order of de novo inquiry which clearly speaks about the second inquiry which commences from initial stage of earlier inquiry. In Gulab Singh v. Union of India (supra) the Principal Bench of this Tribunal has held at Paragraphs 15 and 16 as follows:
15. We find that the second question has been decided in the case of S.N. Sharma (supra). We reproduce the relevant paragraphs: "For deciding this question, before going into any authority on the point, we will first see what the statute provides for Rule 15 of CCS (CCA) Rules lays down the procedure and the action to be taken by the Disciplinary Authority on the enquiry report. It reads thus:
15(1) The Disciplinary Authority, if it is not itself the I.O. may, for reasons to be recorded by it in writing remit the case to the Enquiry Authority for further enquiry and report and the Enquiry Authority shall thereupon proceed to hold the further enquiry according to the provisions of Rule 14, as far as may be.
15(1) The Disciplinary Authority shall, it is disagrees with the findings of the Enquiry Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose.
A careful reading of the above quoted provisions would clearly show that under Sub-rule (1) of Rule 15, the Disciplinary Authority can remit the case to the Enquiry Authority for further enquiry and report for reasons to be recorded in writing. Further enquiry does not mean a de novo enquiry afresh. What is a further enquiry as contemplated under Rule 15(1) of the CCS (CCA) Rules came up for consideration before the Hon'ble Supreme Court in K.R. Deb v. Collector of Central Excise, Shillong. Their Lordships of the Supreme Court in Para 13 of the judgment observed as follows:
It seems to us that Rule 15 on the face of it, really provides for one enquiry but it may he possible if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined for some other reason, the Disciplinary Authority may ask the I.O. to record further evidences. But there is no provision in Rule 15 for the completely setting aside previous enquiries on the ground that the report of the I.O. or officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
In para 14 Their Lordships further observed that:
In our view the rules do not contemplate an action such as was taken by the Collector on 13.02.1962. It seems to us that the Collector, instead of taking responsibility himself was determined to get some officer to report against the applicant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant.
4, The Disciplinary Authority if it is of opinion that the enquiry is incomplete or irregular in any respect can, while acting under Sub-rule 1 of Rule 15, only remit the case for further enquiry and cannot order a de novo enquiry. There is a world of difference between enquiry and further enquiry. In the further enquiry whatever omission was there in the enquiry which can be supplied as per rules, can be supplied by adducing further evidence. But, if it is a de novo enquiry, whatever was recorded at the earlier enquiry would not form part of the enquiry file which is likely to prejudice the Government servant facing the charge. If that is allowed, the Disciplinary Authority, if he finds that the evidence at the enquiry is in favour of the charged officer, can wipe them off by ordering a de novo enquiry to be commenced with a clean slate. That is not the legislation intent in framing the rules. The position is very clear from the rule itself. The observations of the Hon'ble Supreme Court quoted above make it further clear. This is not in dispute that a de novo enquiry has been ordered in this case.
16. We find that a similar view has been taken by the Apex Court in the case of State Bank of Bikaner and Jaipur v. Ajay Kumar Gulati (Civil Appeal No. 9226/96) decided on 16.06.1996 1996(3) SLJ 38 (SC). It was held therein that in the case of de novo enquiry, the stage to start afresh enquiry is after the evidence already recorded. In the present case, we find that the main lacuna relates to an initial and elementary item as regards the period of absence. The Apex Court has held that a fresh enquiry should not be held from the very beginning. The Disciplinary Authority has, therefore, faultered in this respect in the present case. Respondents have also acted illegally by issuing on 29-3-1996 an executive, order having retrospective effect.
Hence impugned orders violate Rule 15(1) of CCS (CCA) Rules.
Regarding Delay in Conclusion of Inquiry
21. The applicant submitted his representation (Annexure-A31) dated 30.10.2002. On consideration of the representation, on 9.01.2004 the Disciplinary Authority i.e., the President has imposed the penalty of stoppage of increment for 2 years with cumulative effect. The said order was passed on the advice of the UPSC. The UPSC advice dated 11.03.2003 was communicated along with the impugned order. The contentions of the applicant are that there was delay in conducting the inquiry, the alleged incident took place in the year 1992, the inquiry was concluded in the year 1997, the applicant was served with a brief submitted by the Presenting Officer and the inquiry report was not supplied to the applicant. Subsequently a de novo inquiry was ordered. There is no provision under the Rules for holding de novo inquiry. In view of the judgment of the Hon'ble Apex Court in the case of K.R. Deb v. Collector of Central Excise (supra) the entire proceedings initiated are vitiated. The applicant has also contended that the applicant had objected for de novo inquiry. The applicant had participated in the de novo inquiry under protest. The representation was considered, but the objections raised by the applicant were rejected. Even the report of the Fact Finding Committee was not supplied. The respondents have not explained the delay in concluding the inquiry.
22. The contention of the respondents that there was no delay in concluding the inquiry, the applicant was given an opportunity to participate in the inquiry, from the date of incident till he was served with the charges there was no delay and that cannot be considered as delay. During the course of inquiry one Inquiry Officer was transferred to his parent department, subsequently another Inquiry Officer was appointed and hence there was no delay.
23. The respondents have relied on the judgment of the Hon'ble Apex Court (Union of India v. Raj Kishore Parija (supra). Para 2 of the said judgment reads as under:
2. Heard parties. There is no doubt that the employee was suspended from the year 1984 and the charge sheet was served on him in the year 1988. The enquiry is not yet complete. The Tribunal was, therefore, right in ordering reinstatement of the employee. However, the Tribunal travelled beyond its jurisdiction in quashing the charges and the disciplinary proceedings themselves. We are informed that pursuance of the order of the Tribunal the respondent-employee has been reinstated in service.
In Registrar of Cooperative Societies, Madras and Anr. v. F.X. Fernando (supra). At para 17 it is held as follows:
17. Then again the finding the there is long delay in initiating of departmental proceedings cannot be supported because in this case the Directorate of Vigilance and Anti-Corruption had not been prompt. Therefore, the appellant cannot be faulted. Accordingly, we set aside the order of the Tribunal and direct that the matter be proceeded with from the stage at which it was left. It is a settled principle of law that justice must not only be done but must be seen to be done. Therefore, we would direct that another Enquiry Officer be appointed in order to remove any apprehension of bias on the part of respondent. The Civil Appeal will stand allowed with no costs.
In State of Punjab v. Chaman Lal Goyal (supra), in (1996) SCC (L & S) 80 (B. C. Chaturvedi v. Union of India), We have considered the judgments referred by the applicants and also the respondents. Here is a case where according to the charges the incident took place between May, 1990 and March, 1991, the Fact Finding Authority was appointed and subsequently a charge memo dated 28.08.1995 was issued, during the said period the respondents have issued a notice to attend the inquiry, after obtaining the report from the Fact Finding Committee the impugned charge memo was issued. The inquiry report dated 24.12.1999 as per Annexure-A30 was forwarded to the applicant as late as on 4.10.2002, whereas the inquiry authority who conducted the de novo inquiry notwithstanding the fact that the very constitution of de novo inquiry is illegal and thus there was a gap of 34 months to forward a copy of the inquiry report to the applicant to submit his representation. Though the applicant had submitted his representation to the inquiry report on 30.10.2002, the Disciplinary Authority has not considered the gap of 34 months and also the representations of the applicant. In reply to the said contention, the respondents have stated that there was no delay in conclusion of the inquiry. The stand taken in the reply statement at para 40 is that the initial report of inquiry was submitted by Sri S.K. Swami on 27th December, 1999 and an appendix to the inquiry report was submitted by him in January 2001 and the report was accepted in consultation with the CVC by the Disciplinary Authority in August 2002. The Chief Vigilance Officer has issued the order not in the capacity as CVO but for and on behalf of the President of India, which is the Disciplinary Authority. The delay of 5 months was due to the fact that Disciplinary Authority desired a clarification from the UPSC. The applicant totally misrepresented the facts. The CVC had recommended imposition of minor penalty. The Disciplinary Authority had only taken a tentative view on the advice of the UPSC and they have further contended that there is no requirement of forwarding a copy of Disciplinary Authority's letter to the UPSC seeking its advice. We have carefully examined the contention taken from either side. We are of the considered view that the delay has not been explained by the Inquiry Officer as held by the Apex Court as stated above and it is held that there was delay in concluding the inquiry.
No Penalty under Rule 11(v) to (ix) of CCS (CCA) Rules
24. Learned Counsel for the applicant has submitted that the penalty imposed under the impugned order is not found in Rule 11(iv). As per the impugned order, the penalty was imposed which is extracted from the impugned order is as follows:
Now therefore, the penalty of stoppage of increments for two years with cumulative effect is hereby imposed upon Dr. A.K. Mukhi and the Disciplinary Authority orders accordingly.
Here we have to refer to Rule 11(iv) which deals with a minor penalty and it reads:
(iv) withholding of increments of pay.
The impugned penalty is a stoppage of increments for two years with cumulative effect. After careful consideration of the provision and the impugned order, we are of the considered view that the impugned penalty is neither minor penalty nor major penalty.
Legality of the Order of the Disciplinary Authority
25. The applicant has contended that the impugned order is not a speaking order, no reasons are assigned and all the objections of the applicant were not considered. Before passing the order, the advice of the UPSC was not supplied, without hearing the applicant on the advice the impugned order was passed and a copy of the advice of the UPSC was not supplied which is illegal and violates the principles of natural justice.
26. We have carefully examined the impugned order. The impugned order does not give reasons on the objections raised by the applicant, as assigned in Paras 17 and 18 above, the D.A has not considered the representation of the applicant as per Annexure-A26 dated 5.11.1999 and also representation to the at Annexure-A31 dated 30.10.2002. The impugned order was passed on the basis of the advice of the UPSC and the advice of the UPSC was also supplied along with the impugned order. The respondents have also admitted that the advice of the UPSC was supplied along with the order. In Para 41 (vii) of the reply statement the respondents refuted that a copy of the advice of the UPSC is required to be given to the applicant before imposition of the penalty. Even then there is no lacuna or illegality while passing the order. Our view on the contention taken by either side regarding supply of UPSC advice before passing the impugned order, the Disciplinary Authority has to give an opportunity to the applicant by supplying the UPSC advice. Only after giving an opportunity by way of issuing the show cause notice, the impugned order of penalty has to be passed. In this aspect the Hon'ble Apex Court has held in the case of Managing Director, ECIL v. B. Karunakar (1993) 4 SCC 727 : JT 1993 (6) SC 1 : 1993(3) SLJ 193 (SC) as follows:
6. It will be instructive to refer briefly to certain authorities on this aspect of the matter. We may first refer to the decision of this Court in Kem Chand v. Union of India and Ors. 1958 SCR 1080 where two questions squarely fell for consideration, viz., what is meant by the expression "reasonable opportunity of showing cause against the action proposed" and at what stage the notice against the proposed punishment was to be served on the delinquent employee. After referring to the decisions of the Judicial Committee in R. Venkata Rao v. Secretary of State for Indian L.R (1936) 641.A.55 and of the Federal Court in Secretary of State for India v. I.M. Lall (1945) FCR 103, the Court held that the reasonable opportunity envisaged by the provisions of Article 311(2) as originally enacted, was at the following stages:
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally.
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the inquiry is over and after applying his mind to the gravity of otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.
27. Para 17 of Charanjit Singh Khurana v. Union of India (Principal Bench, New Delhi) 1994(2) SLJ 360 (CAT) reads:
17. The reasonings given by Their Lordships of the Supreme Court in the case of Managing Director, ECIL, Hyderabad (supra) for the supply of a copy of a report of the inquiry officer to a delinquent also apply to the advice given by the Commission. The reasonings given by the Commission in support of its advice are an additional material unknown to the employee but are taken into consideration by the Disciplinary Authority while arriving at its conclusion. The advice of the Commission constitutes an important material before the Disciplinary Authority, which is likely to influence its conclusions, We, therefore, take the view that the right to receive a copy of the advice of the Commission is an essential part of the reasonable opportunity at the first stage, as envisaged in Article 311 (2) of the Constitution and also a requirement of the principles of natural justice. Before the judgment of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad (supra), the legal position was fluid and the mist has been cleared now. Rule 32 of the rules by necessary implication denied to a delinquent employee the right to receive a copy of the advice of the commission before the Disciplinary Authority took its decision on the question whether the charge against such an employee stood established. Keeping in view the fact, that innumerable orders of the Disciplinary Authority would be rendered bad on the ground that a copy of the advice tendered by the Commission to the Disciplinary Authority had not been supplied to a delinquent employee by the Disciplinary Authority before imposing a punishment upon him, we feel that such an illegality should not be taken into account in cases where the Disciplinary Authority had passed orders of punishment before 1.10.1993, the date on which the Hon'ble Supreme Court rendered its judgment in the case of Managing Director, ECIL, Hyderabad (supra). We, therefore, hold that the petitioner cannot derive any advantage of the fact that a copy of the advice of the Commission was not furnished to him before the passing of the impugned order.
In the present case the impugned orders were passed after 1.10.1993 and hence the ratio in Managing Director, ECIL, Hyderabad decided by the Hon'ble Supreme Court is applicable.
28. The respondents have also admitted, the UPSC advice was not given prior to impugned order. Since a copy of the UPSC advice was not supplied to the applicant, the advice of the Commission constitutes an important material before the Disciplinary Authority, which is a material which influence its conclusion. In view of this, the right to receive a copy of the advice of the Commission is an essential part of reasonable opportunity at the appropriate stage, as envisaged in Article 311(2) of the Constitution of India and also a basic requirement of principles of natural justice. In view of the decision of the Hon'ble Apex Court on the admitted facts from either side, the impugned order of the Disciplinary Authority is not sustainable in the eye of law and is liable to be quashed.
29. The learned Counsel for the applicant has strongly contended that the Disciplinary Authority should not be influenced by the opinion of the UPSC and the opinion of the UPSC should not be extracted in the impugned order. Learned Counsel for the respondents strongly contended that even if the opinion of the UPSC is referred to in the impugned, there is no prejudice caused to the applicant. We considered the contentions of either side that the Disciplinary Authority has not applied his independent mind and he has relied on the opinion of the UPSC. He has referred to the opinion of the UPSC in the impugned order. Hence, the Disciplinary Authority has not applied his mind. He has imposed the penalty on the basis of the advice of the UPSC. Hence, the impugned order is not sustainable in the eye of law. We are fully convinced that the impugned order of the D.A, violates the principles of natural justice.
Legality of the Order under Rule 29-A of CCS (CCA) Rules
30. The learned Counsel for the applicant has submitted that the impugned order of the Disciplinary Authority which was challenged by way of filing an appeal, that appeal has been converted into review petition and the authority who passed the original order has passed the order on the review petition which is totally uncalled for. We have carefully examined the impugned order dated 4.10.2004 (Annexure-38), in which an appeal has been converted into review. It is referred in Para 4 of the impugned order that Rule 22 of the CCS (CCA) Rules, 1965, provides, inter alia, that no appeal shall lie against any order made by the President, Rule 29A of the aforesaid rules, however, provides for review by the President either suo moto or otherwise against any order passed under CCS (CCA) Rules when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, comes or is brought, to the notice of the President. In another para, the President has treated the appeal as revision petition under Rule 29 of CCS (CCA) Rules. The President has decided the review petition without assigning the reason. The impugned order and revision does not speak about the grounds taken in the petition. The applicant has assailed 22 Paras in the petition but none of the grounds are considered, even on the legal terms also. The review has been decided on a short ground that the applicant has not submitted any new material or evidence which could not be produced or was not available at the time of passing the order. When the applicant raised the legal ground regarding de novo inquiry and also the opinion of the UPSC was not supplied prior to passing the impugned order. None of the grounds are considered by the President under Rule 29 (A). The review petition was decided by the competent authority and the Joint Secretary, NRM Division, had only communicated the orders on the review petition. Hence, there is no illegality while deciding the review petition. Hence, we consider that the impugned order of the President under Rule 29-A is not a speaking order. Hence, it violates the principles of natural justice. Consequent to the said impugned order, the impugned order at Annexure~A40 dated 26,2.2004 was issued, which is also not sustainable in the eye of law.
31. The decisions referred by the applicant are applicable to the facts of the case; on the contrary the decisions referred by the respondents, which are not applicable in the facts of the case. As discussed in the aforesaid paragraphs we grant reliefs (i) to (v) prayed for by the applicant. Regarding reliefs (vi) and (vii) relating to grant of promotion with retrospective effect, the respondents have admitted that as the disciplinary proceedings were going on the recommendations of the Department Promotion Committee in which the applicant's junior was promoted have been Kept in sealed cover as far as the applicant is concerned. We order that the sealed cover may be opened and the recommendations of the Departmental Promotion Committee be accepted and implemented as the disciplinary proceedings have been quashed. The respondents are directed to pay costs of this application which is assessed to be Rs. 3,000 to the applicant. With the above direction the reliefs prayed for have been granted to the extent above.
32. O.A. is disposed of.