Central Administrative Tribunal - Delhi
Shri Raja Ram vs Govt. Of N.C.T.D on 8 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 577/2009
MA 391/2009
New Delhi this the 8th day of October, 2010
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. L.K. Joshi, Vice Chairman (A)
Honble Mrs. Meera Chhibber, Member (J)
1. Shri Raja Ram,
S/o Shri Babu Lal Sharma,
R/o F-7/119, Ganga Vihar,
Delhi-94
2. Shri M.P. Aggarwal,
S/o Shri Laxman Parsad,
R/o C-2, West Jyoti Nagar,
Shahdara, Delhi Applicants
(Through Shri Sachin Chauhan, Advocate)
VERSUS
1. Govt. of N.C.T.D.,
Through Secretary Education,
New Sachivalaya, I.P. Estate,
New Delhi
2. The Director of Education,
Directorate of Education,
Govt. of N.C.T.D., Old Secretariat,
Delhi
3. The Principal,
SKV, School, D.D.A. Flats,
East Loni Road, Delhi . Respondents
(Through Shri Vijay Pandita, Advocate)
O R D E R
Mr. L.K. Joshi, Vice Chairman (A) The Central Civil Services (Classification, Control and Appeal Rules, 1965- hereafter CCS (CCA) Rules, 1965- provide the detailed procedure for conducting disciplinary proceedings against an employee of the Government for some alleged misconduct. Briefly, the procedure prescribes that the disciplinary authority, who is the appointing authority of the employee, issues a Memorandum containing the Articles of Charge and imputations in support of the charge for the alleged misconduct, seeking the charged officers reply to the charges. If the disciplinary authority is satisfied by the reply of the charged officer, the enquiry is dropped. If the disciplinary authority is not satisfied, an inquiry authority to inquire into the charges and a presenting officer to present the case on behalf of the Government are appointed. The charged officer can engage an assistant to assist him in the inquiry. After considering the evidence of the witnesses for the prosecution and the defence, recorded during the inquiry proceedings, the records produced, the brief of the presenting officer and the statement of defence of the charged officer, the inquiry authority records his report and returns his finding whether the charges have been proved, partially proved or not proved. The report is then submitted to the disciplinary authority. If the charges are held to be proved the disciplinary authority sends the report of the inquiry authority to the charged officer to give his representation against the report. The disciplinary authority then decides on the quantum of punishment in consultation with the Union Public Service Commission, where necessary. If the charges have been held to be not proved or partially proved, the disciplinary authority may exonerate the charged officer. If, however, the disciplinary authority disagrees with the inference of the inquiry authority, he may record a tentative note of disagreement and communicate it to the charged officer along with the copy of the inquiry report for the charged officer to make a representation against the note of disagreement of the disciplinary authority. The disciplinary authority may decide to punish the charged officer or exonerate the charged officer after considering the representation against the note of disagreement. Rule 15 (2) of the CCS (CCA) Rules, 1965 provides for recording of the note of disagreement. The Rule is extracted below:
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 is 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. (emphasis added) It is also noteworthy that the disciplinary proceedings are quasi-judicial in nature and the principles of natural justice fully apply. It is also expected that the inquiry authority and the disciplinary authority, shall act judiciously, fairly and without any prejudice.
2. The issue before us in the instant case is regarding the nature of the note of disagreement. Rule 15 (2) provides that the disciplinary authority may record his tentative reasons for disagreeing with the enquiry authority. The question has often arisen regarding the use of appropriate words when the reasoning given by the disciplinary authority can be considered to be tentative and also the use of inappropriate words, terms or phrases, which may give to the note of disagreement the colour of finality when it ceases to be tentative. It is precisely on this issue that a Division Bench of this Tribunal has referred the matter for the consideration of a larger bench. The reference reads thus:
4. In our view the issue needs to be referred to a larger Bench for definitive pronouncements on as to when the note of disagreement would cease to be tentative and assume the form of final pronouncement of the guilt of the charged officer.
3. In the Random House dictionary of the English language the word tentative has been defined as follows:
"Tentative: unsure, not definite or positive; hesitant".
What is then the purport of Rule 15 as regards the tentative reasons for disagreement? It should mean that the disciplinary authority does not agree with the conclusions of the enquiry authority, yet its reasons for disagreement are not definite or positive. It would then depend on the expression used for disagreeing with the conclusions of the enquiry authority, which would show whether the reasons are definite and positive or not so.
4. The issue is no longer ret integra. The Honourable Supreme Court considered the issue in Yoginath D. Bagde Vs. State of Maharastra, 1999 SCC (L&S) 1385. The disciplinary committee of the High Court disagreed with the findings of the enquiry authority in the proceedings against Yoginath D Bagde, a judicial officer. The note of disagreement reads thus:
Discussed: For the reasons recorded in Annexure `A hereto, the Committee disagrees with the finding of the enquiry officer and finds that the charges levelled against the delinquent judicial officer have been proved.
It was, therefore, tentatively decided to impose upon the judicial officer penalty of dismissal from service.
Let notice, therefore, issued to the delinquent judicial officer calling upon him to show cause why penalty of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed upon him.
Show-cause notice will be accompanied by a copy of the report of the enquiring authority and the reasons recorded by this Committee." (emphasis added) The Honourable Supreme Court while dealing with the contentions made the following observations:
In view of the provisions contained in the statutory rule extracted above, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, "an opportunity of hearing" may have to be read into the rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be not guilty by the enquiring authority, is found guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded. (emphasis added) It was further observed that:
34. Along with the show-cause notice, a copy of the findings recorded by the enquiry officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.
37. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (AIR 1998 SC 2713) in which it had been categorically provided, following earlier decisions, that if the disciplinary authority does not agree with the findings of the enquiry officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary authority that the findings already recorded by the enquiry officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.
38. The Disciplinary Committee consisted of five seniormost Judges of the High Court which also included the Chief Justice. The Disciplinary Committee took a final decision that the charges against the appellant were established and recorded that decision in writing and then issued a notice requiring him to show cause against the proposed punishment of dismissal. The findings were final; what was tentative was the proposal to inflict upon the appellant the punishment of dismissal from service. (emphasis added) The issue was also considered by the Honourable Delhi High Court in CWP 2665/2002, Commissioner of Police Vs. Constable Pramod Kumar and another decided on 12th September 2002. The note of disagreement was recorded by the disciplinary authority, about which the High Court observed that "[I]n its notice to show cause, however, the authority arrived at a final conclusion and the same was not a tentative one." The matter was in an appeal before the Honourable Delhi High Court from an order of this Tribunal, in which the Tribunal, after noting Yoginath D Bagde (supra), had allowed the Application and set aside the note of disagreement. The Honourable Delhi High Court noted as follows in paragraph 7 of the judgement cited above:
7. The inquiry report submitted by the Inquiry Officer is a detailed one. He considered all the materials on record and arrived at a finding of fact that the delinquent officers are not guilty. The disciplinary authority, however, recorded his positive finding to the effect that upon notice of the entire material on record the respondents are guilty. The said findings are contained in about six and a half pages. Nowhere in the findings did he suggest that such findings are tentative ones. The concluding paragraph of the note of disagreement was also quoted in the judgement, which reads as follows:
8. He concluded:
The totality of the facts and circumstances of the case and evidence on record lends credence to the allegations made. This aspect of the charge, therefore, also stand proved against the Inspr. (emphasis added) The disciplinary authority had quoted copiously from his note of disagreement in the final order of punishment. It was then observed as follows in paragraphs 12 and 13 of the judgement:
12. It is true that a disciplinary authority is entitled to disagree with the findings of the Inquiry Officer.
13. However, while disagreeing with such findings, he must arrive at a decision in good faith. He, while disagreeing with the findings of the Inquiry Officer, was required to state his reasons for such disagreement but such a decision was required to be tentative one and not a final one. A disciplinary authority at that stage could not have pre-determined the issue nor could arrive at a final finding. The records clearly suggest that he had arrived at a final conclusion and not a tentative one. He proceeded in the matter with a closed mind. An authority which proceeds in the matter of this nature with a pre-determined mind, cannot be expected to act fairly and impartially. (emphasis added) Apart from the judgement of the Honourable Supreme Court in Yoginath D Bagde (supra), the judgement in K L Shephard and others Vs. Union of India and others, AIR 1988 SC 686 was also noted. The paragraph quoted in the judgement of the Honourable Delhi High Court reads thus:
16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. (emphasis added) The High Court also observed that bias or pre-judgement of guilt may even be a ground for quashing a charge-sheet. The judgement of this Tribunal was upheld.
5. However, in Union of India & Ors. Vs. Prof. P N Bhat, WP) no. 11754-58/2004, the Honourable Delhi High Court struck a different chord. The note of disagreement recorded by the disciplinary authority in case of P N Bhat, an employee of ICAR, is quoted below:
The undersigned is directed to refer to the subject cited above and to enclose herewith a copy of the report of the Inquiry Officer.
The inquiry report has been examined in the Council and it is proposed to differ with the findings of the Inquiry Officer in respect of the following articles of charge for reasons indicated alongside:-
Article of charge IV Inquiry officer has held the charge as not proved on the ground that the charge officer had repaid the excess amount. It would, however, be seen that an amount of Rs. 1227/- claimed in excess, was received by charged officer in January, 1990 and June, 1990 while the charged officer refunded the money only in January 1991 and November, 1991 i.e. only after the excess claim had been investigated into a Memo was issued to the charged officer on 27.6.1990. Thus, the charge that charged officer preferred a false claim is proved.
Article of Charge V Inquiry officer has held the charge that procedures were not followed in the purchase of Fermenter alongwith accessories at a cost of Rs. 15 lakhs as not proved because it was certified by the company that it was a proprietory item and no tenders were required to be called. It would, however, be seen that in the initial note itself, it has been mentioned that IVRI had purchased a Fermenter from M/s Bioengg. AG. Switzerland which was yet to be installed. The requisition for the Fermenter from the identified firm i.e. M/s L.H. Fermenter Limited, England, was signed by Dr. (Mrs.) Bhat (W/o Dr. P.N. Bhat) and Shri Rasool. No mention was made about the fact that the equipment was a proprietory item while the purchase was being processed. The certificate from the firm is undated and appears to have been added as an after thought.
Article of charge-VII Inquiry Officer has held the charge that no tenders were called for the purchase of image Analysis Systems at a cost of Rs. 18 lakhs from a West German firm in 1985 as not proved on the ground that the equipment was of proprietory nature and the purchase procedures were followed. It would be seen from records that, in the requisition for immediate purchase, there was no justification as to why there was such an urgency. There is no indication of any distress subsequently even though the equipment could be installed in December, 1986 i.e. after a gap of two years. DGS&D was also bye-passed on the pretext of emergency. Thus the charge that purchase procedures were not followed is proved.
If Dr. P.N. Bhat wishes to make any representation or submission on the findings of the Inquiry Officer and disagreement of the Council on some of the findings of the Inquiry Officer he may do so in writing to the disciplinary authority within fifteen days of receipt of this Memorandum. The disciplinary authority will take a suitable decision after considering the inquiry report and submission of the charged officer. The said P N Bhat approached this Tribunal in OA number 3155/2002 and the Tribunal, in the light of the wordings in the said note, and relying on Yoginath D Bagde (supra), considered the same to be a final expression of opinion by the disciplinary authority and held that to be in violation of rules for not being tentative. The matter was carried to the High Court in judicial review in the aforementioned Writ petition. The Honourable High Court held thus:
7. We have carefully perused the said disagreement note and on scrutinising thereof, we are of the considered opinion that disagreement note that has been prepared and finalized by the disciplinary authority was of tentative nature which is apparent from the expression used in the language of the aforesaid office memorandum. It is clearly stated that after examination of the inquiry report the Council has proposed to differ with the findings of the Inquiry Officer. The said expression clearly makes it clear that the aforesaid difference and disagreement is only tentative in nature and not a final decision. The same is also corroborated by the last paragraph of the said communication wherein it is clearly stated that the disciplinary authority would take a suitable decision after considering the inquiry report and submission of the charged officer. Therefore, whatever was recorded in the said disagreement note was apparently tentative in nature and not a final decision taken. The disciplinary authority proposed to take a final decision after scrutiny of the inquiry report and the reply, if any, received from the respondent.
8. In that view of the matter, the submission of the counsel for the respondent that the said disagreement note was a final decision and not a tentative opinion cannot be accepted. The Tribunal also fell into an error in considering the said opinion as a final opinion and not as a tentative opinion. The decision, which is referred to by the learned Tribunal in its decision, namely, Yoginath D. Bagade v. State of Maharashtra & Anr. reported in 1999 VIII AD (SC) 201, in our considered opinion is distinguishable on facts. A reading of the said decision would make it clear that in the said case not only the disciplinary authority, in the disagreement note, took a final decision in respect of disciplinary proceeding but also decided about the penalty which was to be imposed on the charged employee and decided to impose upon him the penalty of dismissal. In that context the aforesaid observations were recorded by the Supreme Court, which in our opinion have no application to the facts and circumstances of this case. In that view of the matter we are of the considered opinion that the decision which is rendered by the Tribunal can not be sustained and is against the settled principles of law and, therefore, the same is set aside and quashed. This judgement, however, did not notice the judgement of the High Court in Commissioner of Police Vs. Ct. Pramod Kumar (supra).
6. The matter again came up for hearing in Union of India Vs. Baljit Singh Sondhi, WP) number 11273/2009, decided on 19.07.2010. The said Baljit Singh Sondhi had filed an OA before this Tribunal, which was allowed on the ground that the disciplinary authority had held the charges to be proved in the note of disagreement. In the Writ Petition filed by the Union of India, the High Court, upheld the judgement of this Tribunal observing thus:
12. With the decision of the Supreme Court reported as (1998) 7 SCC 84 PNB Vs. Kunj Behari Misra, law got settled that if the Disciplinary Authority does not agree with the findings of the Inquiry Officer, a tentative opinion has to be formed by the Disciplinary Authority and has to be supplied to the charged officer for his response.
13. In Yoginath D. Bagdes case (supra) it was held that where the Disciplinary Authority does not for a tentative opinion but records a conclusive finding that the report of the Inquiry Officer is wrong, it would be a formality to thereafter issue a notice to the charged employee requiring him to respond to the notice concerned.
14. In Yoginath D. Bagdes case (supra), noting the aforesaid taint the order of the Disciplinary Authority was quashed without the matter being remanded.
15. On the facts of the instant case, the decision of the Tribunal cannot be faulted with as it is in conformity with the law declared in Yoginath D. Bagdes case. In Union of India and others Vs. Dr. V T Prabhakaran, WP) number 559/2010 also the High Court made the following observations on this issue:
23. With the two viewpoints noted above, it assumes importance to note that evidenced by the decision of the Supreme Court reported as 1999 (7) SCC 739 Yoginath D. Bagde vs. State of Maharashtra & Ors., the jurisprudence in service law is that the disciplinary authority should not prejudge the gravamen of the allegations or for that matter even the charge, and should not use language which shows that the disciplinary authority has already made up its mind. It is only after the inquiry is over and the delinquent is heard with respect to the report of the inquiry officer; and when exonerated at the inquiry but the disciplinary authority not agreeing with the report, upon hearing him qua the note of disagreement, the final opinion has to be rendered. It is important to highlight that in Yoginath D. Bagdes case (supra) conclusive determination of the guilt by the disciplinary authority before giving an opportunity to the delinquent to respond to the note of disagreement was held to be a case of a closed mind qua the response of the delinquent, resulting in the disciplinary authority denuding himself the jurisdiction to decide with reference to the response of the delinquent to the note of disagreement.
7. Although in P.N. Bhat (supra), the view was taken that a note of disagreement would not cease to be tentative even if the view is expressed that the charges stand proved as long as opportunity is given to the charged officer to represent against the note of disagreement and as long as penalty is not proposed in the note of disagreement, yet the trend as seen from the recent judgements of the Honourable Delhi High Court in Baljit Singh Sondhi (supra) and Dr. V.T. Prabhakaran (supra) as relied upon by the Applicant, is that an expression of opinion about the charges being proved would amount to an expression of final opinion, as a consequence of which the note of disagreement would not be considered tentative, which is the requirement of Rule 15 ibid. We respectfully agree with this view.
8. The Honourable Supreme Court, in Yoginath D Bagde (supra), had held the decision of the disciplinary committee of the High Court to be wrong, not because it had proposed penalty in the note of disagreement but because a final view about the guilt of the charged officer had been taken. It is clear from the observation of the Supreme Court that findings were final: what was tentative was the punishment. In our view this could only be interpreted as saying that the findings should be tentative. The observation of the Supreme Court in K L Shepherd (supra) is significant that once a decision is taken, it is more likely than not to be upheld and not changed merely on consideration of the representation. During the course of arguments the learned counsel for the Government of NCT of Delhi wondered as to what the disciplinary authority should record, if it cannot record that the charges stand proved by the reasoning given by the disciplinary authority. The correct procedure in our view is for the disciplinary authority to record that the disciplinary authority does not agree with the conclusions of the inquiry authority on the grounds, which may then be stated. The grounds can thereafter be mentioned, without concluding that the charge(s) is/are proved. The charged officer will then have an opportunity to repel the reasoning of the disciplinary authority. Only after going through the representation of the charged officer against his reasoning in the note of disagreement, the disciplinary authority may come to any conclusion about the charges being proved or not proved. If the disciplinary authority comes to the conclusion about the guilt of the charged officer without hearing him, it would show an inbuilt bias and the cause of the charged officer will suffer. In essence, inferring of guilt without giving an opportunity to the charged officer to be heard would be in gross violation of the principles of natural justice that an employee should be given full opportunity to defend himself before being held to be guilty. The Article 311 of the Constitution also mandates that no employee would be dismissed, removed or reduced in rank without being given a reasonable opportunity of being heard. The CCS (CCA) Rules have been framed under the proviso to the Article 309 of the Constitution and these are thus statutory rules and cannot be trifled with lightly. The rules have to be followed in letter and spirit. Therefore, if the rules provide that the disciplinary authority has to give tentative reasons for disagreeing with the inquiry authority, it is definitely precluded from expressing definite and positive finding of guilt in the note of disagreement and thereby giving only a post- decisional hearing to the charged officer.
9. In the light of the above we hold that a note of disagreement would not be tentative if it states that the charges against the charged officer stand proved. Mere expression of such view would make the note of disagreement bad in law and liable to be quashed and set aside. The reference is thus answered. The OA is remanded to the DB.
( Meera Chhibber ) ( L.K. Joshi ) ( V.K. Bali ) Member (J) Vice Chairman (A) Chairman /dkm/