Central Administrative Tribunal - Delhi
Raj Kumar vs Union Of India on 30 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3399/2010 MA 2382/2010 New Delhi this the 30th day of May, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Raj Kumar, aged 49 years, S/o Late Shri W.R. Jassal, R/o H. No. 89, Type-III, North West, Moti Bagh, New Delhi. Applicant (By Advocate Shri R.N. Singh) VERSUS Union of India, through 1. The Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, North Block, New Delhi. 2. The Secretary, Ministry of Heavy Industry and Public Enterprise, Department of Heavy Industry, Udyog Bhawan, New Delhi. Respondents (By Advocate Shri Amit Anand) O R D E R Mr.L.K. Joshi, Vice Chairman (A) :
The Applicant is challenging the order dated 22.07.2010 passed by the President qua disciplinary authority, imposing on him the punishment of removal from service on the ground that it was passed without conducting the disciplinary inquiry as per the prescribed procedure in terms of rules and without affording him the opportunity to defend himself adequately. He is also assailing the Memorandum of Charge dated 12.06.2007 vide which disciplinary proceedings were started against him as being frivolous.
2. The Applicant was posted as Upper Division Clerk (UDC) in the Department of Heavy Industry at the relevant time. A Memorandum of Charge dated 12.06.2007 was issued, by which the following Article of Charge was communicated to him:
That the said Shri Raj Kumar, while functioning as UDC in GA Section of Department of Heavy Industry during the year 2000 had tampered the approvals given by the then Joint Secretary(GA) for getting the tiling work done in certain rooms of Udyog Bhawan under the charge of Department of Heavy Industry (Room Nos. 156, 117-A, 275, 480, 123-B, 124-C, 282 and 184) inasmuch as the name of the contractor to whom the job was proposed to be given was obliterated by applying white fluid and in its place the name of some other contractor was written in hand. Thereafter, the work was assigned to the contractor whose name was planted in place of the original name. Shri Raj Kumar has infringed Rule 3 of the CCS (Conduct) Rules, 1964. The statement of imputation of misconduct has also been reproduced below:
"During the year 2000, while working in GA Section as UDC Shri Raj Kumar Singh had put up the following proposals for fixing of tiles in the rooms of Department of Heavy Industries:
The proposal for fixing of tiles in Room No. 156 and 117-A put up on 19.9.2000.
The proposal for fixing of tiles in Room No. 275 and 480 put up on 4.10.2000.
3. The proposal for fixing of tiles in Room No. 123-B and 124-C put up on 24.10.2000.
The proposal for fixing of tiles in Room No. 282 and 184 (Room occupied by the then PS to JS(A)) put up on 27.10.2000.
In the above proposals the name of the contractor to whom the job of fixing tiles was proposed to be given was indicated and the proposals were approved by the then Joint Secretary Shri Ajoy Acharya. However, after obtaining the approval of Joint Secretary, Shri Raj Kumar obliterated the name of the contractor to whom the work was to be assigned by applying white fluid and in its place wrote the name of M/S Evergreen in hand. The work was then assigned to M/S Evergreen who completed the same and presented the bills for payment. On 13.12.2001, Shri Raj Kumar put up a to the then Under Secretary (GA) Shri O.P. Verma certifying that the bills submitted by M/S Evergreen for the above work were in order and may be passed. The bills were accordingly passed. The guilt of Shri Raj Kumar is further compounded by the fact that the said note dated 13.12.2001 was put up by Shri Raj Kumar not in his own name but in the name of some other dealing assistant. This is clear from the fact that note is written in the handwriting of Shri Raj Kumar. Thus it is clear that the Raj Kumar was involved in the tampering of the note portion of the file. By his above misconduct, Shri Raj Kumar is guilty of violating Rule 3 of CCS (Conduct) Rules, 1964."
A list of documents by which the Article of Charge framed against him was proposed to be sustained was annexed at Annex III of the Memorandum of Charge. There was no list of witnesses. The inquiry authority in his report dated 29.05.2008 exonerated the Applicant and held the charge to be not proved. It may be mentioned that the inquiry was conducted jointly against the Applicant and one M. R. Bali, Under Secretary, and the report given by the inquiry authority dealt with both the cases. The disciplinary authority, however, disagreed with the inquiry authority and issued a note of disagreement on 08.07.2009 and communicated it to the Applicant for submitting his representation against the same. After considering the representation of the charged officer, the disciplinary authority decided under Rule 15 (1) of the CCS (CCA) Rules, 1965 that the case be remitted for further inquiry to the inquiry authority, which should be held from the stage of introduction of prosecution documents and their inspection by the charged officer, with reference to the additional documents, which, inter alia, included the report of the Government Examiner of Questionable Documents (GEQD). Since the previous inquiry authority had retired on superannuation, a new inquiry authority was also appointed. The Applicant made a representation dated 07.12.2009 against the procedure being followed by the inquiry authority in conducting the fresh inquiry. The inquiry authority gave its report on 14.01.2010 and held the charge to be proved against the Applicant. The inquiry culminated in the punishment of 'removal from service' for the Applicant. The order of punishment was passed by the President because it was based on the joint inquiry report against the Applicant, a UDC, and M.R. Bali, Under Secretary.
3. Several arguments have been advanced by the learned counsel for the Applicant to show that the entire inquiry against him has been vitiated because of the wrong procedure followed by the disciplinary and inquiry authorities. It was submitted that the Memorandum of Charge did not contain any list of witnesses, which is mandatory under Rule 14 (3) (ii) (b) of the CCS (CCA) Rules, 1965. Neither any witness was mentioned in the Memorandum of Charge nor any witness was called by the inquiry authority. Rule 14 (3) (ii) (b) ibid has been extracted below:
14. (3) (ii) (b) 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 a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. It was argued that the documents could not have been proved without the witnesses, especially the allegation regarding the handwriting of the charged officer to substantiate the allegation that although the note was written by the Applicant, yet it was written in the name of some other person. Advertence has been made to the observation of the first inquiry authority that:
"In the absence of material witness or opinion of handwriting expert it can not be an established that it was Shri Raj Kumar who had obliterated the name of the contractor to whom the work was to be assigned by applying white fluid and in its place wrote the name of M/S Evergreen in hand. The P.O. has stated that are screwed the of the bills vide documents at S-13 reveals that Bills No.5424 dated 15. 12. 2000 and No. 6263 dated 3.12.2001, were processed by Shri Raj Kumar as per the document at S-11. Shri Raj Kumar has denied that the note was recorded by him and that the initials are his. In the circumstances the fact could have been established only through examination of a 'Handwriting Expert' even an official who had worked in GA Section at the relevant period. No such evidence was produced."
The learned counsel would further advert to the observation of the first inquiry authority that:
"But as rightly pointed out by the charged officer, no witness has been produced by the Prosecution to prove the basic facts of (a) the stage or the exact timing of such act and (b) when the alleged tampering took place. It is only through a the position of a witness that such a truth can be unfolded. The documents listed by the Disciplinary Authority in Annexure III to the Charge Memorandum do not by themselves establish who is the person responsible for the alleged tampering; at what stage or time the alleged tampering took place and in whose favour the work order had been issued. These basic facts would have been established only through examination of the witnesses."
The learned counsel would further contend that it was trite that if something was required to be done in a particular manner, that must be done in that manner only and not in any manner otherwise.
4. It was further argued that after the submission of his representation against the note of disagreement of the disciplinary authority, the latter should have passed the order in the inquiry as per the rules. The disciplinary authority, on receipt of the report of the inquiry authority, had to proceed under either Rule 15 (1) of the CCS (CCA) Rules, 1965 or under Rule 15 (2) ibid. The Rules 15 (1) and 15 (2) ibid have been extracted below:
15 (1) The Disciplinary Authority, if it is not itself the Inquirying 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.
15 (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. The disciplinary authority could have remitted the case to the inquiry authority for further inquiry and report or he could have recorded his note of disagreement on the report of the inquiry authority and communicated the same to the Applicant along with the report of the inquiry authority for the comments of the charged officer. The disciplinary authority followed the most unusual procedure of inviting the comments of the second Respondent, Ministry of Heavy Industries and the second Respondent sought the opinion of the GEQD to fill the gaps in the inquiry and to bring in fresh evidence against the Applicant. Even the first Respondent, the Department of Personnel and Training, which was conducting the inquiry, found the action of the second Respondent in adducing fresh evidence to be objectionable and questionable. In this context the note of the Under Secretary, DOP&T, addressed to the second Respondent has been adverted to, which has been reproduced below:
No.109/3/2007-AVD-1 Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training AVD-1 New Delhi, Dated the 9th March, 2009 Office Memorandum Sub: Disciplinary Proceedings against Shri M.R.Bali, Under Secretary and Shri Raj Kumar, Asstt-Comments on the Inquiry report regarding.
The undersigned is directed to refer to Department of Heavy Industry O.M. No. C-13015/2/2005-Vig. Dated 15.1.2009, on the subject mentioned above to say that the Inquiry Report in the case was referred to Department of Heavy Industry on 27th June, 2008. After lapse of 8 months, Department of Heavy Industry instead of giving their comments on the Inquiry Report made available to them are contemplating to make further inquiries by getting authenticity of the documents written by one of the Charged Officer verified.
2. Rule 15 (1) of the CCS (CCA) Rules 1965 states that The Disciplinary Authority, if it is not itself the Inquirying Authority may for reasons to be recorded in writing remit the case to the Inquirying Authority for further inquiry and report and Inquiry Authority shall thereupon to proceed to hold further enquiry according to the provisions of Rule 14 as far as may be. But it needs to be noted that the right of remission back to Inquiry Authority is not unfettered. While the Disciplinary Authority is not bound by the findings of the IO it is basically the inquiry report along with the evidence recorded therein that constitute the materials on which the DA has to ultimately act. It may also be pertinent to state that there are rulings of judiciary to the effect that Disciplinary Authority can remit Inquiry Report back to the Inquiry Officer for limited purpose or for removing some ambiguity in the evidence or to remove some procedural defects and not for recording additional evidence on behalf of disciplinary authority. The proposed action on the part of the Department of Industry in this context would not be appropriate as the reference to the Examiner of Questioned Documents at this stage after the receipt of IOs report would only amount to carrying out inquiry at the back of the charged officer and would amount to an effort to fill the gaps in the evidence after a conscious decision based on the view of Department of Heavy Industry to the effect that an expert opinion after the Advice of CVC was not considered required. It was only expected that the Department of Heavy Industry states if it has anything to say in regard to the validity of findings of IO and grounds for disagreement if any.
3. The proposed action has placed this department in a piquant situation. Irrespective of the outcome of the report of Examiner of Questionable documents, the proposed action at this stage by the Department of Heavy Industry would give the charged officer a tool to question the final decision of the Disciplinary Authority, as and when taken, on the ground that the decision is based on evidence which was not part of the inquiry proceedings. Even if it is decided to place the findings of the Examiner of Questioned documents before the Charged officers and give them an opportunity to defend themselves the charged officers would plead for examination/cross examination of the Examiner of Questionable Documents which from the point of the principle of natural justice cannot be washed away. This would effectively mean referring the case back to the inquiry authority essentially for assessment and evaluation of new evidence unearthed in the form of report of the Examiner of Questionable Documents.
4. Department of Heavy Industry is, therefore, requested to reconsider their decision and furnish their comments, if any, on the Inquiry Report by 20th March, 2009. If no comments are received by that date, the Department will proceed to make a determination based on the findings and material of the Inquiry Officers Report. It may incidentally be pointed out that Shri Raj Kumar, UDC has moved an application under the RTI Act for furnishing a copy of the IOs report.
Sd/-
( P.K.Ravi) Under Secretary to the Government of India Department of Heavy Industry Even the CVC found it to be objectionable, as recorded in its advice dated 18.06.2009, in which it was, inter alia, mentioned that:
"it may not be legally advisable to use the findings in the report of GEQD as it was not part of inquiry records and the COs have not been given and opportunity to examine them and defend themselves."
The note of disagreement was accompanied by the second stage advice of the Central Vigilance Commission (CVC), which was to conduct a de novo inquiry. The advice of the CVC, inter alia, stated that:
Sub: Case against Shri M R Bali, US and Shri Raj Kumar, UDC ****** Deptt. of Personnel & Training may refer to their UO No. 109/3/07-AVD-1, dated 04/06/2009, on the above subject.
2. The Commission has examined the case. It has observed that the charges against S/Shri Bali and Raj Kumar have been held as not proved by the IO, as, during the enquiry proceedings it could not be proved that the hand-writing in the tampered documents was that of Shri Raj Kumar and that the tampering had been done during the tenure of Shri Bali. After submission of the inquiry report, DHI has obtained the views of GEQD on some of the related documents. In this connection, it may not be legally advisable to use the findings in the report of GEQD as it was not part of inquiry records and the COs have not been given an opportunity to examine them and defend themselves.
3. In view of above, the best option for DOPT would be to request for more time from Honble CAT and order a de-novo inquiry, with the findings of GEQD included in the inquiry documents. The Commission would advise accordingly. It was contended that the note of disagreement relied on the report of the GEQD, which was not a part of the relied upon documents and to which the Applicant had no access. The report not being a part of the disciplinary inquiry could not have been relied upon by the disciplinary authority in his note of disagreement. It was argued that the note of disagreement contradicted itself as could be seen from the following observation in the said note:
WHEREAS, a copy of Inquiry officers report along with tentative reasons for disagreement with IOs findings, CVCs 2nd stage advice and the GEQD report was supplied to Shri M.R. Bali, US and Shri Raj Kumar, UDC for making representations, if any, vide memorandum dated 9th July 2009, indicating therein that the tentative reasons for disagreement are based solely on the records produced during the inquiry. It was submitted that the GEQD report was not a relied upon document, yet the note of disagreement was based on that, while at the same time stating that the reasons for disagreement were based solely on the records produced during the inquiry. As a result the note of disagreement is illegal and cannot be sustained. The disciplinary authority also introduced four new documents in the fresh inquiry, which is totally illegal and void in law. The procedure followed by the new inquiry authority also had no sanction in law because he proceeded to conduct the inquiry as if it was a fresh inquiry. He had to proceed from a certain stage and not from the initial stage, as he did. The Applicant brought it to the notice of the disciplinary authority that the procedure being followed in the inquiry was contrary to the rules. However, no action was taken in the matter to rectify the mistakes. The inquiry authority proved the charge against the Applicant without examining the witnesses because no witness had been cited in the Memorandum of Charge. The learned counsel for the Applicant would contend that this was totally against the principles of natural justice. The authenticity and veracity of the documents could only be proved by the witnesses, especially the report of the GEQD.
5. It was also argued that the Memorandum of Charge dated 12.06.2007 was served for the incidents of the year 2000 and was thus extremely belated, which caused serious prejudice to the charged officer in defending himself. The co-delinquent of the Applicant, Shri M.R. Bali, had successfully pleaded before this Tribunal in OA number 3223/2010, decided on 20.04.2011, that delay in serving the Memorandum of Charge had prejudiced his defence. The Application of the said M.R. Bali was allowed by the Tribunal on the ground of delay in serving the charge sheet. It was argued that the same argument applies in favour of the Applicant herein.
6. It was further argued that the disciplinary authority had made up his mind at the very outset about the guilt of the Applicant by stating in the statement of imputation of misconduct that the note certifying that the Bill submitted by M/S Evergreen was in the handwriting of the Applicant, when even the report of the GEQD was not available. The inquiry was thus converted into a farce, contended the learned counsel for the Applicant.
7. In yet another argument the learned counsel would contend that the Applicant had been discriminated against because no action was taken against Shri O.P. Verma, who passed the bill of the contractor and Shri K.D. Joshi, the Section Officer, through whom the files were submitted.
8. In support of his arguments, the Applicant has placed reliance on State Bank of Bikaner and Jaipur Vs. Ajay Kumar Gulati arising out of C.A. number 9226/1996 decided on 16.07.1996; Ramchandra Keshav Adke and others Vs. Govind Joti Chavare and others , reported in AIR 1975 SC 915; Lalit Popli Vs. Union of India and Others, 75 (1998) DLT 269 (Delhi High Court); Prabhu Dayal and others Vs. Municipal Corporation of Delhi and another, CWP number 1131 of 1975 decided by the Delhi High Court on 29.02.1980; and K.R. Deb Vs. The Collector of Central Excise, Shillong, AIR 1971 SC 1447.
9. The only argument pressed by the learned counsel for the Respondents was that the Applicant did not participate in the fresh inquiry conducted by the second inquiry authority, as noted by the latter in the report of the inquiry:
"2. Notice for holding Preliminary hearing on 02.12.2009 in the "further inquiry" was issued by the undersigned on 01.12.2009.
"2.1. In response to this notice Shri Raj Kumar submitted a letter stating "that I am on earned leave for three days from 2nd to 4th December 2009 due to pre-board examination (XIIth class) of my daughter and I cannot attend preliminary hearing in these days due to this." Thereafter on 07.12.2009, Shri Raj Kumar sent another letter wherein he questioned the legality of "further inquiry" being conducted by the undersigned and informed that he has moved Honble CAT. Shri Raj Kumar also stated that unfortunately he is compelled to remain on leave owing to personnel juxtapositional (sic)exigencies."
10. However, in the written arguments, submitted with our permission, it has been stated that in the departmental enquiry the charge is proved on the basis of preponderance of probability. Judged on the touchstone of this principle, no fault can be found in the decision of the disciplinary authority. It has also been contended that the impugned order dated 22.07.2010 and the order by which further inquiry has been directed to be conducted are detailed orders and give cogent reasons for the conclusions therein. It has also been stated that no reliance was placed on the report of the GEQD, without first giving an opportunity to the Applicant through further inquiry proceedings to rebut it. The tentative disagreement with the report of the inquiry authority was not based on the report of the GEQD. It has further been stated that the charged officer himself had said in his representation dated 29.07.2009 that the fact of tampering of record could be proved only by an expert agency. It has further been pointed out that the Applicant has nowhere, during the course of the first inquiry, objected that no witnesses have been cited or disputed that the documents were not authentic.
11. In State Bank of Bikaner and Jaipur Vs. Ajay Kumar Gulati (supra) the question for consideration before the Honourable Supreme Court was the stage from which the de novo inquiry should be started. In the case before the Supreme Court a disciplinary inquiry was held against the respondent and the inquiry authority reported that certain grave charges were established against him. Upon receiving the comments of the respondent, the disciplinary authority informed him as follows:
"With reference to your representation dated the 16th December, 1993, with regard to proceedings and findings of the Enquiry Officer constituted earlier to go into the charges against you, we have carefully gone into the points raised by you in your representation and having applied our mind dispassionately have observed that though his findings are sufficient for taking a view in the matter, to expel every iota of doubt and to provide every opportunity to you to put your defence, another opportunity in the name of justice may be given to you to make your position clear.
I have, therefore, issued orders for conducting the enquiry against you afresh and have appointed Shri S.K. Supekar, Branch Manager, D.N. Market, Ahmedabad as Enquiry Officer to conduct the necessary departmental enquiry. The notice dated 29.4.1994 issued by me in this respect is enclosed.
The date, time and place of the enquiry, will be advised to you by the Enquiry Officer. You are advised to remain available to him as and when required. Please also finalise the selection of your representative for defending your case, before the commencement of the proceedings in case you wish to engage one.
Please acknowledge receipt.
Yours faithfully.
Sd/-
C.K. MISHRA Notified Disciplinary Authority".
A new inquiry authority was appointed and was directed by the disciplinary authority to commence inquiry as per the schedule given by the latter. The respondent questioned the above order of the disciplinary authority before the High Court, which passed the following order:
We are of the view that the enquiry should not be from the very beginning. The Departments evidence has already been completed and some evidence of the petitioner has also been recorded. The New Enquiry Officer should now proceed to give opportunity to the petitioner to produce his documentary and oral evidence and also consider the question of recalling any witness for further cross-examination by the petitioner and then proceed to decide the matter afresh.
The petitioner be given his dues according to the rules.
With these directions, this writ petition is disposed of. Parties are left to bear their own costs. The application is also disposed of. The appellant then approached the Supreme Court challenging the order of the High Court on the ground that it could not have directed that the inquiry should be confined only to recording of the evidence to be adduced by the respondent alone. The Honourable Supreme Court held thus:
"7. We are not prepared to agree. The High Court has given reasons for the directions it has given in supersession of the orders of the notified disciplinary authority. We are unable to say that the view taken by the High Court is not a possible view. Acting under Article 136, we do not think it advisable to interfere with the order of the High Court, even if we find that another view of the matter is possible." (emphasis added) This judgement is in the facts and circumstances of the above case and the Honourable Supreme Court has not laid down any law. In Ramchandra Keshav Adke (supra) the issue under consideration was about certain provisions of the Bombay Tenancy Act, 1948. Under the said act a tenant could surrender his tenancy in favour of the landlord, provided that such surrender should be in writing and should be verified by the Mamlatdar. In the case before the Honourable Supreme Court the verification of the surrender of the tenancy was not done by the Mamlatdar. Successive courts held this surrender to be wrong. The view was upheld by the Honourable Supreme Court. The learned counsel for the Applicant has pointed to the following observation of the Honourable Supreme Court in the above judgement:
"Next point to be considered is, what is the consequence of non-compliance with the mandatory procedure? A century ago, in Taylor V. Taylor, Jasel M.R. adopted the rule that where the power is given to do certain things in a certain way, that thing must be done in that way, or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council in Nazir Ahmad V. Emperor and later by this Court in several cases, to a Magistrate making a record under ss. 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other." The rule will be effected with full force in the present case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non-est for the purpose of s. 5 (3) (b)."
In Lalit Popli (supra) it was held that the opinion of the Handwriting Expert was not conclusive evidence as he was not a qualified person and court had passed strictures against him. However, this judgement is also in the peculiar facts of the case, where the Handwriting Expert was held to be incompetent. Since this is not the stand of the Applicant in this case that the GEQD was incompetent, this judgement has no application in the instant case. The judgement in Prabhu Dayal (supra) has also no application in the instant case because the findings of the inquiry in this case had been set aside by the court as being based on conjectures and hearsay and as such perverse. Fresh inquiry was ordered on the same charges by the disciplinary authority. The Honourable Delhi High Court held that the respondent Corporation was not entitled to order a fresh inquiry against the petitioner in respect of the same charges which had been validly found by the Labour Court not to have been established or proved before the domestic inquiry. This judgement also would not apply in the facts of the instant case.
12. We have carefully considered the arguments of the learned counsel for the parties and also perused the record placed before us.
13. On the perusal of the records there is no gainsaying that there are serious flaws in the conduct of the departmental inquiry and the procedure followed by the inquiry authority and the disciplinary authority. Rule 14 (3) (ii) (b) provides that along with the Memorandum of Charge, the charged officer should be provided a list of documents and a list of witnesses, by whom the articles of charge are proposed to be sustained. The specific charges in this case relate to tampering with the record, by stating that the note dated 13.12.2001 was not put up with his own name, but in the name of some other dealing assistant. It is stated that the note was, however, in the handwriting of the Applicant. An allegation of tampering with the record has to be proved through witnesses. These had to be based on the proof that the handwriting was that of the Applicant. The first inquiry officer had rightly remarked that such an allegation could be proved only on the basis of the report of the handwriting expert. The disciplinary authority has disagreed with the reasoning of the first inquiry authority by observing that:
"ii) IO has not made any effort to compare the handwriting. The charged officers, particularly Rajkumar has not specifically commented has denied that such a comparison does not reveal or cannot reveal any similarity. IO has merely accepted the denial of the charged officer, namely, Shri Rajkumar, that he has not tampered S-7-10, or the writing in S-11 is not his handwriting and not under his signature, without even attempting to compare the handwriting in the relevant documents as stated by PO. In the above context, the IO while accepting the pleas of the charged officer that no witness was produced handwriting expert's opinion was not there, has attempted to apply the rigours of evidence applicable to criminal proceedings. The rigours of evidence as per evidence act (sic) cannot be extended to departmental inquiry where evidence is required to be evaluated on the basis of 'preponderance of probability' and not beyond reasonable doubt."
Such reasoning is difficult to accept. Preponderance of probability does not mean that there should be no need for recording the evidence of witnesses in a departmental inquiry. The inquiry authority is not a handwriting expert and by merely looking at the handwriting on the document which was allegedly tampered with and the handwriting of the charged officer obtained on some piece of paper in his presence, he could not have pronounced that both the handwritings were of the same person. Even in the departmental inquiry, the question of handwriting is decided by a handwriting expert, who is called to depose in the inquiry. The reason given by the disciplinary authority for disagreeing with the report of the inquiry authority is neither sound nor logical in this regard. What is more surprising is that even the report of the GEQD was not proved by the person who wrote the report. In his report dated 15.05.2009 the Government Examiner has himself written that in case it was not practicable to record the evidence in Shimla (where the office of GEQD is located), Shri R.S. Rana, Assistant Government Examiner should be called for recording the evidence by the court. Merely because the Applicant had not appeared in the departmental inquiry, it would not be sufficient reason to dispense with the presence of the Assistant Government Examiner for the inquiry authority to satisfy himself. It is nowhere provided in the rules that the presence of the witnesses should be dispensed with if the charged officer abstains himself during the course of the inquiry.
14. We have also extracted above the Rules 15 (1) and (2) of the CCS (CCA) Rules, 1965. The disciplinary authority has violated the rules also because after receiving the report of inquiry authority, he could not have sent the report for comments of the Department of Heavy Industries. He should have either sent it back to the inquiry authority for further inquiry or should have recorded his note of disagreement and sent it to the charged officer, along with the report of inquiry authority, for his representation against it. No other course of action is permitted under the Rules. The second Respondent, Department of Heavy Industries, also made a serious mistake in making a reference to the GEQD after receiving the report of inquiry authority. The disciplinary authority has itself questioned this procedure in its note dated 12.03.2009, which has been fully reproduced above. After recording the above note, it was strange, to say the least, that the disciplinary authority should nevertheless proceeded to do, what it had explicitly stated was wrong thing to do, that is, go ahead with the further inquiry and introduce the report of the GEQD, which was not a part of the documents relied upon in the inquiry. The CVC has also noted the same, as seen from the advice rendered by it to the DOP&T, which has been quoted above. This is a serious lapse and the Respondents cannot sweep it under the carpet by pleading that the report had been shown to the charged officer, when it was sent to him along with the note of disagreement and the report of inquiry authority. If the disciplinary authority started taking such liberties with the procedure prescribed under the rules, the rules would lose their sanctity. The Honourable Supreme Court has laid down the law that where the power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Keeping this in mind, the total departure of the disciplinary authority from the prescribed procedure cannot be countenanced.
15. Rule 15 (1) provides for further inquiry, the scope of which is to cure some serious defects in the inquiry or to record the evidence of a witness who was not available at the time of original inquiry. In K.R. Deb, the Honourable Supreme Court held thus:
It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquirying Officer 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. The intention of the aforesaid Rule is not that if fresh inquiry should be initiated by introducing new documents, which were previously not available, for example, in the instant case the introduction of the report of the GEQD. The disciplinary authority itself has accepted this flaw in the procedure in his letter dated 12.03.2009, which has been noted above.
16. The Articles of Charge and the imputations of misconduct also suffer from the flaw that there is no mention of the name of the contractor to whom the work was originally assigned and in whose place the name of M/S Evergreen was substituted.
17. The charged officer was only of the rank of UDC and the disciplinary authority in his case would have been perhaps the Joint Secretary. The order has, however, been passed by the President, which has deprived the Applicant of the opportunity to file appeal against the order of the disciplinary authority.
18. We do not, however, agree with the Applicant that the delay in issuing the Memorandum of Charge has caused prejudice to him and that his case would be covered by the order of this Tribunal in the case of M.R. Bali (supra). In case of M.R. Bali, it was held that the record could have been tampered with during the long period of delay by someone in the section, in which the file was kept. This was one of the main reasons for holding that he had been severely prejudiced by delay in issuing the Memorandum of Charge. In the instant case the Applicant himself has been charged with tampering. The ratio of the various judgements of the Honourable Supreme Court in State of Punjab and others Vs. Chaman Lal Goyal, (1995) 2 SCC 570, State of Andhra Pradesh Vs. N. Radhakrishnan, JT 1998 (3) SC 123 and State of Madhya Pradesh Vs. Bani Singh and another, (1991) 16 ATC 514 is that the effect of delay in each case depends on the facts and circumstances of that case and the nature of charge. We are of the considered opinion that in the instant case the Applicant cannot argue that he has been prejudiced by delay in issuing the charge sheet against him because the charge against him is very serious and it is such that it can be proved on the basis of documents and testimony of expert witnesses and others about the authenticity of documents. Except only saying that he has been prejudiced by delay in issuing the charge sheet, no reasons have been given to support this contention.
19. On the basis of above consideration, the impugned orders cannot be maintained and are accordingly quashed and set aside. However, the charge against the Applicant is serious and in our considered opinion it would be necessary that fresh inquiry should be held from the stage of framing of the charge against him. Since the impugned orders have been set aside on technical grounds, we are not giving any directions about consequential benefits, which would abide by the decision in the fresh departmental inquiry. The Respondents are directed to complete the inquiry within six months of the receipt of a certified copy of this order. In the facts and circumstances of the case there will be no orders as to costs.
( L.K.Joshi) ( V.K.Bali ) Vice Chairman (A) Chairman `sk