Delhi High Court - Orders
T.C. Sivakumar vs Union Of India & Ors on 24 May, 2023
Author: Yashwant Varma
Bench: Yashwant Varma, Dharmesh Sharma
$~24 & 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 513/2021
T.C. SIVAKUMAR ..... Appellant
Through: Mr. Tushar Ranjan Mohanty,
Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Vijay Joshi and Mr. Gurjas
Singh Narula, Advs.
25
+ LPA 106/2022
UNION OF INDIA & ORS. ..... Appellants
Through: Mr. Vijay Joshi and Mr. Gurjas
Singh Narula, Advs.
versus
T.C.SIVAKUMAR ..... Respondent
Through: Mr. Tushar Ranjan Mohanty,
Adv.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 24.05.2023 LPA 513/2021, CM APPL. 47584/2021 & CM APPL. 47586/2021
1. The original writ petitioner [appellant in LPA 513/2021] as well as the Union of India [appellant in LPA 106/2022] question the correctness of the judgment rendered by the learned Single Judge dated 15 November 2021. The writ petition was partly allowed with the impugned orders of 29 May 2020 and 01 June 2020 being quashed. The learned Single Judge has further provided that the petitioner would not only be entitled to all retirement benefits including pension, he would also be entitled to draw full salary for the LPA 513/2021 & LPA 106/2022 Page 1 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:13 period of suspension between the period 20 November 2014 to 30 May 2016.
2. The remaining prayers which were laid in the writ petition have come to be refused. Since the learned Single Judge has already noticed the facts leading up to the filing of the writ petition in great detail, we do not propose to burden the instant judgment with a repetition of the same except to the limited extent wherever so required for the purposes of disposal of the present appeal.
3. The petitioner was appointed as a Lecturer in the National Institute for the Empowerment of Persons with Intellectual Disabilities1 on 08 January 1990. In contemplation of disciplinary proceedings being initiated, he came to be suspended on 20 November 2014. That suspension was thereafter extended on 10 February 2015, 06 August 2015 and 09 November 2015. On 22 December 2015, a chargesheet came to be issued laying as many as ten imputations of misconduct against the petitioner. The departmental enquiry ensued in accordance with the rules which apply. In the meanwhile and during the pendency of the disciplinary proceedings, the suspension of the petitioner came to be revoked on 30 May 2016. Undisputedly, while the aforesaid order revoked the suspension of the petitioner, it did not carry any decision of the competent authority dealing with the period between 20 November 2014 till the passing of that order and neither did it stipulate the manner in which the period of suspension was liable to be treated.
4. Upon culmination of the departmental proceedings, an enquiry report came to be submitted exonerating the petitioner of the charges which stood leveled. The Disciplinary Authority however formed the opinion that the same was not liable to be accepted and consequently 1 Institute LPA 513/2021 & LPA 106/2022 Page 2 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:13 drew up a Disagreement Note of November 2018. Since the Disagreement Note would have some bearing on the arguments which were addressed before us, the same is extracted hereinbelow:-
―F.No.3-6/2013 NI Government of India Department of Empowerment of Persons with Disabilities Ministry of Social Justice& Empowerment th
5 Floor, B Wing, Pt. Deendayal Antyodaya Bhavan, CGO Complex, New Delhi-110002, T.No.011-24369029 Dated November, 2018 NOTICE WHEREAS Shri T.C. Siva Kumar, Director, NIEPID (previously known as NIMH) was proceeded against under Rule 14 of CCS(CCA) Rules, 1965 in respect of the financial irregularities committed by him vide memo of even number dated 22.12.2015 as per 1st stage advice of CVC conveyed vide letter no.015/EDN/032/300987 dated 30.11.2015.
WHEREAS Shri C.K. Khaitan the then JS & CEO, National Trust was appointed as Inquiring authority who in his inquiry report dated 25.7.2017 concluded that all the charges leveled against Shri T.C. Siva Kumar were baseless.
WHEREAS the Presenting Officer (P.O.) in his written brief held the Articles of charge no.I, V, VI & VII as proved but the Inquiring Authority did not take into account the submissions made by the Presenting Officer but simply relied upon the submissions made by Charged Officer (C.O.) in his written brief and concluded the findings accordingly. He did not mention anything in respect of remaining articles of charge viz II, III, IV, VIII, IX & X. by simply relying on the version of the C.O. that since the P.O. has not mentioned anything in respect of these charges, these were not proved.
WHEREAS the Disciplinary Authority does not agree with the findings of the Inquiring Authority and holds that the Articles of charge no.I, V, VI & VII as proved and is of the view of imposing major penalty upon Shri T.C. Siva Kumar.
WHEREAS the case was referred to CVC for seeking 2nd stage advice of CVC.
WHEREAS CVC vide OM no.015/EDN/032/395829 dated 24.9.2018 has intimated that Commission has examined the case and observed that present proposal of the Department for 2nd stage advice to impose major penalty is in line with 1st stage advice of Commission. Such cases would be dealt at the level of CVO & LPA 513/2021 & LPA 106/2022 Page 3 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 DA concerned in the organization/Department and also advised to forward a copy of the final order issued by DA to the Commission. NOW therefore a copy of Inquiry Report, copy of 2nd stage advice letter dated 24.9.2018 of CVC and the tentative views/disagreement of the Disciplinary Authority as mentioned in the above paras is being sent to Shri T.C. Siva Kumar with the directions to send his representation on the report of the Inquiring Authority within 15 days of the receipt of this notice, failing which it will be presumed that he has no representation to make and the case will be processed further as per the provisions of CCS(CCA) Rules, 1965.
(Sauranshu Sinha) Under Secretary to the Govt. of India Shri T.C. Siva Kumar, Director, NIEPID, Secunderabad.‖
5. As would be manifest from a reading of the Disagreement Note, the petitioner was provided a copy of the enquiry report as well as the second stage Advise Letter dated 24 September 2018 received by the Union from the Central Vigilance Commission2 together with the tentative views/disagreement of the Disciplinary Authority. The petitioner was thus provided an opportunity to respond to the same in order for the disciplinary proceedings to proceed further.
6. Ultimately, a Penalty Order of April 2019 came to be passed imposing the penalty of reduction in the pay scale by one stage. Consequently, the pay of the petitioner stood reduced from Rs.1,51,400/- to Rs.1,47,000/-. The Disciplinary Authority further proceed to hold that the same would be effective for a period of one year with a further direction that the petitioner would not earn increments of pay during that period. The Disciplinary Authority further held that on the expiry of one year, the deductions so inflicted would have the effect of postponing his future increments of pay also.
7. Since the Disagreement Note and the proceedings which were taken in close proximity thereof would have same bearing on the issues which stood canvassed in the instant appeal, the Court deems it 2 CVC LPA 513/2021 & LPA 106/2022 Page 4 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 apposite to additionally extract the following parts from the order imposing penalty: -
8. WHEREAS the CVC vide their O.M. No.015/EDN/032/395829 dated 24.9.2018 tendered advice as under: -
―The Commission has examined the case and observed that the present proposal of the Department for SSA to impose major penalty is in line with first stage advice of the Commission. Such cases would be dealt at the level of CVO & DA concerned in the organization/Department. Therefore, in view of CVC guidelines, the proposal of the Department is returned to CVO, DEPwD to decide the case at the level of CVO & DA concerned.‖
9. WHEREAS a copy of the advice of CVC, a copy of the inquiry report and a copy of the views of disciplinary authority were sent to said Shri T.C. Siva Kumar asking him to send his representation. The points raised by him in his representation are detailed & discussed below: -
(x) (a) The undated Notice under reference is issued by Shri Sauranshu Sinha, the Under Secretary, DEPwD without any reference that Shri Sauranshu Sinha has been directed by the Disciplinary Authority/CVO of the Department to issue that Notice.
The contention of the CO carries no weight as the notice was issued as per the approval of the competent authority. Vide this notice the copies of documents were sent to the CO as per the provisions of Rule 15 of CCS(CCA) Rules, 1965 under the signature of the authorized signatory.
(b) The above referred Notice is based on the Memo even number3-6/2013-NI dated 22.12.2015. This Memo titled as ‗Memorandum', has nowhere mentioned on ‗financial irregularities committed by him' that is by the undersigned. Hence, it is not appropriate to insert new terms as mentioned by Shri Sauranshu Sinha in his Notice dated Nil.
The contention of the CO is not correct as the memo dated 22.12.2015 was issued in the prescribed format as per CCS(CCA) Rules, 1965 and the Articles of charge clearly mention that there were alleged financial irregularities.
(xi) The Presenting Officer (PO) in his Brief, vide Serial number 6 had made an analysis of the witness and subsequently in Serial number 7 on conclusion, has stated that ‗based on the analysis on statement given by Shri B.V. Ram Kumar and Mrs. R. Lalita UDC during the examination, the articles of charge I, V, VI and VII are proved'.
LPA 513/2021 & LPA 106/2022 Page 5 of 15This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 With reference to the contention of the CO, it is submitted that the presenting officer in Para 6 pertaining to the analyses of the witnesses has proved that the Articles of charge no I, V, VI & VII were proved on the basis of statements of witnesses and documents on record. He (CO) has also confirmed this in Para no.7.
(xii) The Memo of even number 3-6/2013-NI dated 22.12.2015 stated 10 Charges in Annexure I and II (Articles of Charges and Statement of Imputations, respectively), while Annexure III was attached with a List of Documents by which the Articles of Charges framed had mentioned Charges only from 1 to VII.
The contention of the CO carries no weight as the relevant documents were provided to him for inspection.
(xiii) In addition to the reference on Sl. No.3 above, the Annexure IV of the memo dated 22.12.2015 had listed Sh. Sampath Singh, Hindi Typist NIMH, Secunderabad as witness even for Article of Charge XI which does not exist. The contention of the CO is not correct as Shri Sampath Singh (Stage Witness) has not been listed for Article of charge no XI. It has been mentioned as X of the list of Articles of the charge.
(xiv) During the Inquiry process, the undersigned had categorically established that all the 10 Charges are not maintainable and are baseless. This was further established with documentary proof in the brief submitted by him. In this regard, it is submitted that these are the contentions/submissions of the CO which are not to be relied.
(xv) With respect to Article of Charge No.V, neither the Witnesses Shri B.V. Ram Kumar nor Mrs. R. Lalitha are listed as witness as per the Annexure-IV of the Memo dated 22.12.2015. Hence, it cannot be established that Article of Charge V was proved with the analysis of the statements of Shri B.V. Ram Kumar or Mrs. R. Lalitha. Even then in his Cos, brief had factually proved the Article of Charge V as wrong and hence was not maintainable.
(xvi) The attempt to prove Article of Charge VI is against the Principles of Natural Justice that there was no documentary proof against him. The list of Documents attached in Annexure III of the Memo dated 22.12.2015 in support of the Charge of Article VI was devoid of the letter dated 20.11.2013 of M/s Sree Ramana Process on which the Charge was made. Even then, the Charges under Article of Charges VI was established as non-maintainable in the Brief submitted by him. Hence, the Articles of Charge VI against him baseless. (xvii) The Article of Charge VII was again based on the letter of the Printer, M/s Sree Ramana Process dated 20.11.2013. As mentioned in Sl. No.7 above, the Charge was LPA 513/2021 & LPA 106/2022 Page 6 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 made without any documentary proof of the letter of the Printer, M/s Sree Ramana Process dated 20.11.2013. Hence, the Charge was not tenable as he could not defend the Charge in the absence of non-availability of the document on which the charge was made. However, despite this, in the brief submitted by him refuted the Charge as per the Examination in Chief and Cross Examination of Witness No.3, that is, Sh. B.V. Ram Kumar, DD (Admn), NIMH, Secunderabad.
(xviii) The substance of Article -I in the Annexure - I of the Memo dated 22.12.2015 it has been alleged that the undersigned did not take any action as per as per Ministry's letter dated 05.04.2013 and subsequent reminders. But the remaining Articles from II to X have allegations on the actions taken. Hence, it is proved by itself that the allegation in Article - I was untenable.
The contention of the CO in Para vi, vii, viii, ix are not correct in view of the factual position stated in the above paras.
10. WHEREAS the disciplinary authority has carefully considered the advice of CVC, the inquiry report, records of inquiry, and representation submitted by Shri T.C. Siva Kumar and all other relevant records of the case. It has been observed that the grave misconduct on the part of the CO Shri T.C. Siva Kumar has been clearly established as observed by the CVC also.
11. WHEREAS the disciplinary authority observed that the ends of justice would be met if the penalty of reduction to one lower stage is imposed upon the said Shri T.C. Siva Kumar with the directions that he will not earn increments of pay during the period of such reduction and on the expiry of such period the reduction will have the effect of postponing his future increments of his pay.‖
8. The penalty consequently came into effect on or about 01 May 2019 and ended on 30 April 2020. The petitioner was to superannuate upon attaining the age of retirement on 31 May 2020. A few days before that, the impugned order of 29 May 2020 came to be passed by the fourth respondent stipulating that the petitioner would be entitled only to a provisional pension. The aforesaid action was premised upon Rules 9 and 69(2) of the Central Civil Services (Pension) Rules, 19723. The aforesaid action was founded upon a purported vigilance clearance being awaited from the concerned Ministry.
3CCS (Pension) Rules, 1972 LPA 513/2021 & LPA 106/2022 Page 7 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14
9. Before the learned Single Judge, the aforesaid action was impugned by the petitioner who asserted that since as on 29 May 2020, no judicial or departmental proceedings were pending, there was no justification for the release of a provisional pension only. It was further asserted that since no order of suspension also was in force, there existed no justification for full pensionary benefits not being granted to the petitioner. Apart from the aforesaid, the petitioner also appears to have assailed the validity of the chargesheet as well as the issues emanating from the Disagreement Note.
10. The learned Single Judge has held in favour of the petitioner insofar as the issue of provisional pension is concerned. It was noted that in terms of Rule 9(4) of the CCS (Pension) Rules, 1972, a provisional pension is liable to be sanctioned in respect of a government servant who was about to attain the age of superannuation provided any department or judicial proceedings had already been instituted or were being continued in terms of Rule 9(2) of the CCS (Pension) Rules, 1972. The learned Single Judge found that undisputedly no judicial or departmental proceedings were pending against the petitioner as on 29 May 2020. It also took note of the fact that no order had also been passed by the respondents referable to Rule 9(2) and which contemplates the continuation of disciplinary proceedings initiated while an employee may be in service and which are proposed to be continued even after his retirement. The learned Judge also found that Rule 69(2) would have no application since the order of suspension had been revoked by the respondents themselves way back in 2016.
11. Turning then to the issues which arise out of a failure on the part of the respondents to pass an order dealing with the period during which the order of suspension had operated, the learned Single Judge LPA 513/2021 & LPA 106/2022 Page 8 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 held that the judgment of the Division Bench of this Court in Vijay Kumar Agarwal vs. Union of India4, which was upheld by the Supreme Court in Vijay Kumar Agarwal vs. Union of India5 was clearly applicable and since the competent authority had failed to pass an order or take a decision with respect to treatment of the period of suspension either at the time when it was revoked or within a reasonable period therefrom, the entire period during which the said order operated was liable to be treated as time spent in service. The learned Judge has relied upon paragraph 25 of the decision in Vijay Kumar Agarwal and the same is reproduced hereinbelow: -
―25. We note that Rule 5 B of the All India Services (Discipline & Appeal) Rules 1969 is parimateria with FR 54 B and in the decisions reported as 1993(25) ATC 321 GirdhariLal v. Delhi Administration &Ors, 1993 (24) ATC 641 Basant Ram Jaiswal v. Area Manager (North) MTNL Bombay, 1996 (3) (Supp.) LLJ 855 HiraLal v. DDA &Ors. and AIR 1987 SC 2257 O.P. Gupta v.
UOI &Ors. it has been held that while revoking the suspension it is the duty of the competent authority to pass an order regarding pay and allowances for the period a government servant remained under suspension and that the composite order has to be a part of the same transaction having two parts and that the power to revoke the suspension cannot be exercised in isolation of the power to pass an order regarding pay and allowances. But, the said decisions do not hold that if no order pertaining to pay and allowances is passed, an order revoking suspension is void and non-est. As clarified by the Tribunal in Basant Ram Jaiswal's case (supra), in such situation the competent authority cannot exercise the power under FR 54 B. Thus, the law is that if while revoking the suspension or within a reasonable time thereof, no order is passed pertaining to pay and allowances for the period of suspension, the authority is denuded from passing such order and the inevitable result would be the Government servant being entitled to the fully salary for the period he remained under suspension.‖ In view of the aforesaid, the learned Judge ultimately proceeded to hold that the petitioner would be entitled to full salary for the period falling between 20 November 2014 to 13 May 2016.
42010 SCC OnLine Del 4416 5 (2015) 17 SCC 625 LPA 513/2021 & LPA 106/2022 Page 9 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14
12. The Disagreement Note as penned by the Disciplinary Authority was assailed by the petitioner in light of the principles enunciated in Punjab National Bank & Others vs. Kunj Behari Misra6 and Yoginath D. Bagde vs. State of Maharasthra and Another7. It was contended that a reading of the Disagreement Note would ex facie establish that the Disciplinary Authority had prejudged the entire issue and had already formed a definitive opinion as to why the findings returned by the Enquiry Officer were not liable to be accepted. This, according to the petitioner, was clearly contrary to the principles which had been enunciated by the Supreme Court in the two decisions aforenoted. It was also submitted that the petitioner was also not afforded an opportunity of personal hearing as was mandated in light of the law as declared in Kunj Behari Misra and Yoginath D. Bagde. The learned Single Judge, however, came to conclude that a comprehensive reading of the Disagreement Note would establish that the Disciplinary Authority had only expressed a tentative view while disagreeing with the conclusions of the Enquiry Officer. It was further held that the petitioner did not raise any objection in this respect and proceeded further to participate in the disciplinary proceedings. The challenge as addressed on this score was consequently negated. The learned Single Judge has also proceeded to reject the challenge which was laid to the original chargesheet holding that the same was clearly belated and merited rejection on the ground of laches itself. It is in the aforesaid backdrop that the present two appeals have come to be instituted before this Court.
13. Insofar as the appeal preferred by the Union is concerned, suffice it to state that learned counsel has woefully failed to establish 6 (1998) 7 SCC 84 7 (1999) 7 SCC 739 LPA 513/2021 & LPA 106/2022 Page 10 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 any error, patent or otherwise, in the ultimate conclusions which came to be recorded by the learned Single Judge insofar as the issue of provisional pension and treatment of the suspension period is concerned. As has been correctly noted by the learned Single Judge, neither Rule 9 nor Rule 69(2) of the CCS Rules, 1972 could be said to have been attracted since the petitioner was neither under suspension on 29 May 2020 nor were there any disciplinary proceedings pending or proposed to be continued post his attaining the age of superannuation. The mere pendency of a vigilance clearance would not trigger either Rule 9 or Rule 69 of the aforesaid Rules.
14. Insofar as the issue of treatment of the period of suspension is concerned, the same clearly stands conclusively settled against the Union by the judgment in Vijay Kumar Agarwal. Admittedly, no order or decision was taken by the competent authority with respect to the treatment of the suspension period either on 30 May 2016 or within a reasonable period therefrom. In the considered opinion of this Court, the learned Single Judge has thus correctly come to the conclusion that the entire period of suspension is liable to be treated as in service and on full salary.
15. Turning then to the challenges which stood raised by the petitioner, we find no ground which may justify interference with the ultimate conclusions as returned by the learned Single Judge insofar as the challenge to the chargesheet is concerned. However, insofar as the Disagreement Notice is concerned, we do find merit in the submissions that were addressed by learned counsel for the petitioner appellant before us.
16. An ex-facie reading of the Disagreement Note would establish that while taking that decision, the Disciplinary Authority had already come to a positive conclusion that it was not possible to agree with the LPA 513/2021 & LPA 106/2022 Page 11 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 findings of the Enquiry Officer and that the imposition of a major penalty was warranted. The record would further reflect that based upon the aforesaid conclusions as recorded, the CVC also appears to have been moved for advice. The CVC in terms of its letter of 24 September 2018 proceeded to convey its opinion that a major penalty was clearly warranted. The Disagreement Notice came to be issued after the receipt of the aforesaid advice of the CVC. The procedure so adopted is thus evidently contrary to the principles laid down by the Supreme Court in Kunj Behari Misra and Yoginath D. Bagde.
17. In both those decisions, the Supreme Court had laid emphasis on the Disciplinary Authority providing an adequate opportunity to the delinquent employee to establish why the findings of the Enquiry Officer should be accepted and those findings exonerating the employee accepted by the Disciplinary Authority. However, and as is manifest from the Disagreement Note, not only had the Disciplinary Authority prejudged the guilt of the petitioner, it had even gone further and sought the second stage advise for imposition of penalties from the CVC.
18. The Court also bears in mind the principles laid down by the Supreme Court in Oryx Fisheries Private Limited vs. Union of India and Others8, where while dealing with the notice requiring a person to show cause, the following salient principles came to be laid down:-
―27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings 8 (2010) 13 SCC 427 LPA 513/2021 & LPA 106/2022 Page 12 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 become an idle ceremony.
28. Justice is rooted in confidence and justice is the goal of a quasi- judicial proceeding also. If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against.
31. It is of course true that the show-cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show- cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.
32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice.
33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi- judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it.
34. A somewhat similar observation was made by this Court in KumaonMandalVikas Nigam Ltd. v. Girja Shankar Pant [(2001) 1 SCC 182 : 2001 SCC (L&S) 189] . In that case, this Court was dealing with a show-cause notice-cum-charge-sheet issued to an employee. While dealing with the same, this Court in para 25 (SCC p. 198 of the Report) by referring to the language in the show- cause notice observed as follows:
―25. Upon consideration of the language in the show- cause notice-cum-charge-sheet, it has been very strongly contended that it is clear that the officer concerned has a mindset even at the stage of framing of charges and we also do find some justification in such a submission since the chain is otherwise complete.‖ After para 25, this Court discussed in detail the emerging law of bias in different jurisdictions and ultimately held in para 35 (SCC p. 201 of the Report), the true test of bias is:LPA 513/2021 & LPA 106/2022 Page 13 of 15
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:14 ―35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom--in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained:‖ (emphasis supplied)‖ The Disagreement Note clearly fails to meet even the aforenoted tests.
19. However, by the time these appeals were taken up for consideration, the petitioner had long exited service. In the facts of the present case, we also failed to find any justification to remit the matter to the Disciplinary Authority for drawl of proceedings afresh and from the stage when it had expressed disagreement with the findings of the Enquiry Officer.
20. Learned counsel for the petitioner appellant fairly stated before us that he would be satisfied if the ultimate penalty order is modified only to the extent that the pensionary benefits liable to be drawn by the petitioner are not impacted. Bearing in mind the conclusions that we have arrived at and stand recorded hereinabove, we find that the ends of justice would merit the aforesaid submission being accepted and the controversy rendered a quietus.
21. On an overall consideration of the aforesaid facts, we come to conclude that the appeal of the petitioner appellant must be partly allowed. We proceed to do so by allowing the said appeal and holding that while the reduction in pay which was to operate for a period of one year from the date of penalty year shall remain untouched, it would not impact the increments of pay which may have otherwise been enjoyed by the petitioner post that period. The pension as fixed LPA 513/2021 & LPA 106/2022 Page 14 of 15 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 02:30:15 for the petitioner shall consequently be revised in terms of the aforenoted direction and consequential relief be accorded to the petitioner appellant.
22. Since we have found that the appeal as instituted by the Union fails to raise any grounds on which the judgment of the learned Single Judge may warrant interference, it is liable to be dismissed.
23. Accordingly, and for all the aforesaid reasons, LPA 513/2021 along with pending applications shall stand allowed to the extent noticed above.
LPA 106/2022 & CM APPL. 7478/2022 (Interim Direction)
24. The appeal shall for reasons aforenoted stand dismissed.
25. Pending application also stands disposed of.
YASHWANT VARMA, J.
DHARMESH SHARMA, J.
MAY 24, 2023/neha LPA 513/2021 & LPA 106/2022 Page 15 of 15 This is a digitally signed order.
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