Central Administrative Tribunal - Allahabad
Sanjay Kumar Singh vs Post Up Circle on 19 February, 2025
Reserved on 13.02.2025.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
ALLAHABAD this the 19th day of February 2025.
Present:
HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER (A)
ORIGINAL APPLICATION NO. 330/00194 of 2023.
Sanjay Kumar Singh aged about 54 years son of Late Badri Prasad Singh,
R/o Village and Post Senapur Via Lab Leoruwa District Jaunpur.
..........Applicant
Versus
1. Union of India through its Secretary, Ministry of Communication
and Information (I&T) Sansad Marg Dak Bhawan, New Delhi.
2. Post Master General, Varanasi Region, Varanasi.
3. Director Postal Services, Prayagraj Region, Prayagraj.
4. Supdt. Of Post Offices, Jaunpur Division Jaunpur.
....Respondents
Present for the Applicant: Shri B.N Singh/
Smt. Shyama Singh
Present for the Respondents: Shri Rajni Kant Rai
ORDER
BY HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J) By means of present original application, applicant has sought following relief (s):-
"(a) To issue a suitable order or direction to call for record and set aside impugned orders dated 21.4.2022 and 31.01.2023 (Annexure No. A-1 & 2).
MANISH KUMAR SRIVASTAVA 2
(b) To issue a suitable order or direction to the respondents to reinstate in service to the applicant with all consequential benefits.
(c) To pass such other and further order as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(d) To award cost of the petition in favour of the applicant".
2. The brief facts of this case are that the applicant while working as SPM Zafarabad Jaunpur was served with the chargesheet dated 26.10.2019 alleging three charges. Applicant made representation dated 11.11.2019 and denied the charges. Inquiry Officer was appointed and submitted its enquiry report on dated 25.11.2021. Applicant submitted reply to the enquiry report. After receiving the reply on enquiry report, respondent No. 3/Disciplinary Authority passed the order dated 21.04.2022 imposing the punishment of reduction of his pay from 60400/- to Rs. 55200/- w.e.f. 01.05.2022 for a period of three years with cumulative effect. Aggrieved against the order of disciplinary authority, applicant filed appeal dated 28.05.2022 before the appellate authority taking various legal grounds. Inspite of considering the legal grounds made by the applicant in his appeal, appellate authority disagreed with the punishment given by the disciplinary authority issued a show cause notice dated 26.10.2022 in exercise of power conferred vide Rule 29 (1) (v) of CCS (CCA) Rules, 1965 intending to revise the said punishment order. In reply to the show cause notice, applicant preferred detailed representation dated 07.11.2022 but appellate authority revised the punishment of applicant from reduction of pay from 60400/- to Rs. 55200/- w.e.f. 01.05.2022 for a period of three years with cumulative effect to compulsory retirement by its order dated 31.01.2023. Being aggrieved, applicant filed present OA challenging the orders of Disciplinary Authority dated 21.4.2022 and Appellate Authority dated 31.01.2023.
3. On notice, respondents have filed counter affidavit wherein it has been submitted that applicant made fraudulent withdrawal from Sabhapati Yadav account and kept money in his pocket. Therefore, complaint has been received from the office of respondents regarding irregularity made MANISH KUMAR SRIVASTAVA 3 by the applicant for fraudulent withdrawal. On receiving the complaint, a chargesheet was served upon the applicant. Against the chargesheet, applicant submitted a representation dated 11.11.2019 denying the charges. On the basis of enquiry report, the disciplinary authority has imposed punishment for reduction of pay from ₹60,400 to ₹55,200 for 3 years with cumulative effect. Applicant submitted his appeal against the punishment order. According to Rule 29(1)(v) of CCS (CCA) Rules, 1965 appellate authority issued show cause notice to enhance the punishment. After due consideration of the applicant's representation on show cause notice, appellate authority enhanced the punishment as punishment imposed by the Disciplinary Authority was not commensurate to the gravity of charges.
4. Rejoinder affidavit has also been filed by the applicant in which the applicants have reiterated the facts as stated in the OA and denied the contents of the counter affidavit.
5 We have heard Shri B.N Singh, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents and perused the record.
6. Submission of the learned counsel for the applicant is that charges leveled against the applicant are not proved. Procedure prescribed under CCS (CCA) Rules 1965 for conducting enquiry have not been followed. No opportunity of hearing was given to the applicant to adduce his evidence, thus, there is violation of principle of natural justice. It was further argued that statement recorded during the preliminary enquiry have been relied upon by the Inquiry Officer but the witnesses concerned have not been examined nor serious efforts to procure the attendance of those witnesses have been made at the end of Inquiry officer. It was next argued that important witness Smt. Safia Parveen, whose statement in the preliminary enquiry has been recorded on dated 22.9.2019 and has been relied upon by the Inquiry Officer but she has not been produced for examination during regular enquiry. Due to this reason, the applicant was not able to defend his case through cross examination. It is also argued MANISH KUMAR SRIVASTAVA 4 that at no point of time the applicant was afforded opportunity to examine himself as witness in the regular enquiry. It is also argued that if for the sake of argument, this fact be taken into consideration that applicant did not examine himself as witness in the regular enquiry then also it was incumbent upon the Inquiry Officer to interrogate the applicant/charged official under Rule 14 (18) of CCS (CCA) Rules 1965, which is a mandatory provision. It is further argued that non adherence of aforesaid provision has vitiated the enquiry report. It is further argued that disciplinary authority has imposed the punishment on dated 21.4.2022. Six months' time is allowed to the Appellate Authority to give show cause notice to enhance the punishment. In this matter, show cause notice has been issued on 26.10.2022 after expiry of the six months which is illegal. Thus, punishment enhanced by the Appellate Authority is illegal and without jurisdiction, thus, argued that order passed by the Appellate Authority is liable to be set aside. It is next argued that double punishment has been imposed upon the applicant. Disciplinary authority only passed the order for reduction in rank/pay whereas appellate authority enhancing the punishment passed the order for compulsory retirement of the applicant, which comes under the purview of double jeopardy. Learned counsel for the applicant also refers to the Annexure A-8, the show cause notice issued by the appellate authority to the applicant on dated 26.10.2022 and further argued that OA be allowed and impugned orders passed in the matter be set aside as it is a no evidence case. Learned counsel for the applicant has placed reliance on the following case laws:-
(i) Kuldeep Singh Vs. Commissioner of Police and others reported in 1999 Supreme Court Cases (L&S) 429;
(ii) State of U.P and others Vs. Saroj Kumar Singh reported in 2010 AIR (SC) 3131;
(iii) Ministry of Finance and another Vs. S.B. Ramesh reported in 1998 AIR (SC) 853.
7. Learned counsel for the respondents referring to the impugned orders passed in the matter argued that order passed by the disciplinary MANISH KUMAR SRIVASTAVA 5 authority was not commensurate with the gravity of the charges levelled against the applicant. In that situation appellate authority issued show cause notice taking recourse to the provision of Rule 29 of CCS (CCA) Rules and after affording opportunity to the applicant passed the order dated 31.01.2023 whereby punishment was enhanced and applicant was compulsorily retired. Applicant had participated in the enquiry. Opportunity of hearing has been given to him. There is sufficient evidence in the enquiry, thus, enquiry report submitted by the Inquiry Officer is based on evidence which has rightly been accepted by the Disciplinary Authority. There is no illegality and perversity in the impugned orders. Since punishment imposed upon the applicant by the Disciplinary Authority has been enhanced by the Appellate Authority, thus, plea taken by the applicant that double punishments have been imposed is wrong and contrary to the fact. On scrutiny of the punishment imposed upon the applicant, Appellate Authority has rightly imposed the punishment of compulsory retirement. Applicant has made statement during preliminary enquiry. He has not specifically denied the allegation levelled against him, thus, no illegality, infirmity and perversity can be traced in the impugned orders. OA lacks merit and is liable to be dismissed.
8. We have considered the rival submissions advanced by the learned counsel for the parties and have gone through the entire records.
9. In this matter as is evident from the record, enquiry was started and chargesheet was served upon the applicant on 26.10.2019. Enquiry report was submitted on 25.11.2021. On submission of the enquiry report, same has been served upon the applicant. Representation against the enquiry report has also been submitted by the applicant. Disciplinary Authority considering the representation of the applicant submitted against the enquiry report passed the order dated 21.4.2022 imposing the punishment to the applicant for reduction of his pay from Rs. 60400/- to Rs. 55200/- w.e.f. 01.05.2022 for a period of three years with cumulative effect. It further appears that although appeal filed on behalf of the applicant is said to be pending before the appellate authority yet a show cause notice MANISH KUMAR SRIVASTAVA 6 for enhancement of the punishment has been issued on dated 26.10.2022. If the period between the punishment imposed by the Disciplinary Authority i.e. 21.4.2022 and the issuance of the show cause notice for enhancement of punishment by the Appellate Authority i.e. 26.10.2022 is counted it comes to 6 months and 4 days.
10. Before adverting to the submission raised on behalf of the parties, it will be useful to quote the provision of Rule 29 of CCS (CCA) Rules 1965:-
"29. Revision (1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a Government
servant serving in the Indian Audit and Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or
(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the appellate authority, within six months of the date of the order proposed to be revised or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the
order, or impose any penalty where no penalty has been imposed; or MANISH KUMAR SRIVASTAVA 7
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary :
Provided further that no power of revision shall be exercised by the Comptroller and Auditor-General, Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications or the Head of Department, as the case may be, unless-
(i) the authority which made the order in appeal, or
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for revision shall be commenced until after-
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules".
11. Sub rule (1) (v) of the Rule 29 of CCS (CCA) Rules specifically provides that appellate authority within six months of the date of the order proposed to be revised may issue show cause notice for enhancing the penalty imposed by the Disciplinary Authority. If the aforesaid period provided under Rule 29 by the statute is taken into consideration and compared the same with the date of issuance of show cause notice for enhancement of punishment in this matter, it is evident that show cause notice has been issued after expiry of six months. Thus, show cause notice itself becomes invalid/illegal and any order passed on the basis of such show cause notice, which is illegal will also become illegal. Thus, MANISH KUMAR SRIVASTAVA 8 we are of the view that show cause notice dated 26.10.2022 issued by the Post Master General, Varanasi Region, Varanasi for enhancing the punishment is illegal and order passed by the Appellate Authority on dated 31.1.2023 enhancing the punishment is also illegal and is liable to be set aside.
12. As far as punishment imposed by the Disciplinary Authority and conducting of the enquiry in accordance with the CCS (CCA) Rules is concerned, certainly statement made by witness - Safia Parveen during course of preliminary enquiry has been relied upon in the regular enquiry but this witness has not been examined by the prosecution. Perusal of the record also reveals that notice was issued to the witness concerned but she did not turn up. Prosecution/Presenting Officer dropped the witness concerned. It is a settled legal position that if witnesses have not been examined in the regular enquiry, their previous statements recorded during the preliminary enquiry cannot be taken into consideration.
13. It is also evident from the record that applicant/charged official has not examined himself in the matter as witness although defence brief has been submitted. In this regard, it will be useful to quote Rule 14 (18) of CCS (CCA) Rules:
"(18) The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him".
14. In para 12 of the S.B. Ramesh (supra), the Hon'ble Supreme Court has held as under:-
"12. It is necessary to set out the portions from the order of the Tribunal which gave the reasons to come to the conclusion that the order of the Disciplinary Authority was based on no evidence and the findings were perverse. The Tribunal, after extracting full the evidence of SW-1. the only witness examined on the side of the prosecution. and after extracting also the proceedings of the Enquiry Officer dated 18.6.91. observed as follows:-
MANISH KUMAR SRIVASTAVA 9 "After these proceedings on 18.6.91 on the Enquiry Officer has only received the brief from the PO and then finalised the report. This shows that the Enquiry Officer has not attempted to question the applicant on the evidence appearing against him in the proceedings dated 18.6.91. Under Sub-Rule 18 of Rule 14 of the CCS (CCA) Rules. It is incumbent on the Enquiry authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as witness. This mandatory provision of the CCS (CCA) Rules has been lost sight of by the Enquiry authority. The learned counsel for the respondents argued as the applicant did not appear in response to notice. It was not possible for the Enquiry authority to question the applicant. This argument has no force because. on 18.6.91 when the inquiry was held for recording the evidence in support of the charge, even if the Enquiry officer has set the applicant ex-parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the inquiry authority did not choose to give the applicant an opportunity to cross- examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule 18 of Rule 14 of CCs (CCA) Rules. The omission to do this is a serious error committed by the enquiry authority.
Secondly, we notice that the enquiry authority has marked as many as 7 documents in support of the charge. while SW-1 has proved only one document: namely, the statement of Smt. K.R. Aruna alleged to have been recorded in his presence. How the other documents were received in evidence are not explained either in the report of the Enquiry authority or in the proceedings. Even if the documents which were produced along with the charge sheet were all taken on record. unless and until the applicant had requested the Enquiry officer to mark certain documents in evidence on his side. the enquiry authority had no jurisdiction in marking all those MANISH KUMAR SRIVASTAVA 10 documents which he had called for the purpose of defending himself on the side of the applicant while he has not requested for making of these documents on his side. It is seen that some of these documents which is marked on the side of the defence not at the instance of the applicant. has been made use of by the enquiry authority to reach a finding against the applicant. This has been accepted by the disciplinary authority also. We are of the considered view that this is absolutely irregular and has prejudiced the case of the applicant. These documents, which were not proved in accordance with law should nor have been received in evidence and that, any inference drawn from these documents is misplaced and opposed to law, we further find that the enquiry authority as well as, the disciplinary authority have freely made use of the statement alleged to have been made by the statement alleged to have been made by Smt Kr Aruna in the presence of SW1 and it was on that basis that they reached the conclusion the applicant was living with Smt. K.R. Aruna and that, he was the father of the two children on Smt. K.R. Aruna. The S.W.1 in his deposition which is extracted above, has not spoken to the details contained in the statement of Smt. K.R. Aruna which was marked as Ex.1. Further it is settled law that any statement recorded behind the back of a person can be made use of against him in a proceeding unless the person who is said to have made that statement is made available for cross-examination, to prove his or her veracity. The disciplinary authority has not even chosen to include Smt. K.R. Aruna in the list of witnesses for offering her for being cross- examined for testing the veracity of the documents exhibited at Ex.1 veracity of the documents exhibited at Ex.1 which is said to be her statement.
Therefore, we have no hesitation in coming to the conclusion that the enquiry authority as well as, the disciplinary authority have gone wrong in placing reliance on Ex.1 which is the alleged statement of Smt. K.R. Aruna without offering Smt. K.R. Aruna as a witness for cross- examination. The applicant's case is that the statement was recorded under coercion and duress and the finding based on this statement is absolutely unsustainable as the same is not based on legal evidence. The other documents relied on by the Enquiry authority, as well as by the disciplinary authority for reaching the conclusion that the applicant and Smt. K.R. Aruna were living together and that they MANISH KUMAR SRIVASTAVA 11 have begotten two children have also been not proved in the manner in which they are required to be proved."
Then. again after extracting the relevant portions from the disciplinary authority's order, the Tribunal observed as follows:-
"We have extracted the fore-going portions from the order of the disciplinary authority for the purpose of demonstrating that the disciplinary authority has placed reliance on a statement of Smt. K.R. Aruna. without examining Smt. K.R. Aruna. without examining Smt. Aruna as a witness in the inquiry and also on serval documents collected from somewhere without establishing the authenticity thereof to come to a finding that the applicant has conducted himself in a manner unbecoming of a Government servant. The nomination form alleged to have been filed by Sri Ramesh for the purpose of Central Government Employees' Insurance Scheme, was not a document which was attached to the memorandum of charges as one on which the Disciplinary Authority wanted to rely on for establishing the charge. This probably was one of the documents which the applicant called for, for the purpose of cross-examining the witness or for making proper defence. However, unless the Government servant wanted this document to be exhibited in evidence, it was not proper for the Enquiry Authority to exhibit it and to rely on it for reaching the conclusion against the applicant. Further, an inference is drawn that S.B.R.Babu mentioned in the school records (admission registers and Sh.Ramesh mentioned in the Municipal records was the applicant, on the basis of a comparison of the hand-writing or signature or telephone numbers are only guess work. which do not amount to proof even in a disciplinary proceedings. It is true that the degree of proof required in a departmental disciplinary proceedings, need not be of the same standard as the degree of proof required for establishing the guilt of an accused in a criminal case.
However, the law is settled now that suspicion, however strong, cannot be substituted for proof even in a departmental disciplinary proceeding. Viewed in this perspective we find there is a total dearth of evidence to bring home the charge that the applicant has been living in a manner unbecoming of a Government servant or that, he has exhibited adulterous conduct by living with Smt. K.R.Aruna and begetting children."
15. In paragraphs Nos. 28 to 35, the Hon'ble Supreme Court in the case of Kuldeep Singh (supra) has held as under:-
"28. Rule 16(3) is almost akin to Sections 32 and 33 of the Evidence Act. Before the Rule can be invoked, the factors enumerated therein, namely, that the presence of the witness cannot be procured without undue delay, inconvenience or expense, have to be found to be existing as they constitute the condition-precedent" for the MANISH KUMAR SRIVASTAVA 12 exercise of jurisdiction for this purpose. In the absence of these factors, the jurisdiction under Rule 16(3) cannot be exercised.
29. Rajpal Singh and Radhey Shyam, who were the original complainants along with Shiv Kumar, were not examined and the Enquiry Officer, regarding their absence, has stated in his report as under:-
"The two prosecution witnessess Rajpal Singh and Radhya Shyam have not attended to proceeding. They have not been found residing in their vill. now and it had come to notice that the defaulter has managed their disappearance and has settled them some where in Devli Khanpur and also has arranged their employment but the addresses of those PWs are not known. Such is the act of the defaulter to create his defence and is an attempt to hide his misconduct. Though their complaint Ex. PW-1/A has been exhibited and has been taken on file to ascertain the facts and for natural justice. This will show that the blame for the non-availability of these two witnesses has been laid on the appellant who was already under suspension and it is not understandable as to how and on what basis or on what material, the Enquiry Officer came to the conclusion that the appellant was responsible for their disappearance or had procured employment for them in Devli Khanpur. If it was known to the Enquiry Officer that they were available in Devli Khanpur, was any attempt made to contact them at Devli Khanpur or to bring them to the enquiry proceedings from that place, is not indicated by the Enquiry Officer in his report making it obvious that the factors necessary for the exercise of jurisdiction under Rule 16(3) were not present and it was not open to the Enquiry Officer to have taken recourse to this Rule to bring on record the previous statement of the complainants which allegedly was recorded by Inspector D.D. Sharma. Moreover, the so-called previous statement itself of the complainants appears to be a highly suspicious document for the reason that S.H.O., D.D. Sharma had stated before the Enquiry Officer that he had received a complaint of Radhey Shyam, Rajpal Sing and Shiv Kumar whereupon all the three persons were summoned by him and after verifying the facts from those complainants had recorded their statement which he had dictated to ASI Jagdish Prasad. There were, therefore, two documents:
(i) The original complaint made by the aforesaid three persons:
(ii) The statement of these persons, recorded by ASI Jagdish Prasad, at the dictation of S.H.O., D.D. Sharma, after verifying the facts, set out in the complaint, from these persons.
31. The original complaint was not placed on the record and it was the statement, recorded by S.H.O., D.D. Sharma, which was produced before the Enquiry Officer. The absence of original complaint, therefore, indicates that there was, in fact, no MANISH KUMAR SRIVASTAVA 13 complaint in existence which further supports the statement of Department's own witness Smt. Meena Mishra that no payment was made by her on 22.02.1990.
32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.
33. In State of Mysore vs. Shiv Basappa 1963(2) SCR 943 = AIR 1963 SC 375, the witness was not examined in the presence of the delinquent so far as his examination-in-chief was concerned and it was his previous statement recorded at an earlier stage which was brought on record. That statement was put to the witness who acknowledged having made that statement. The witness was thereafter offered for cross-examination and it was held that although the statement (examination-in-chief) was not recorded in the presence of the delinquent, since the witness had been offered for cross-examination after he acknowledged having made the previous statement, the rules of natural justice were sufficiently complied with.
34. In Kasoram Cotton Mills Ltd. vs. Gangadhar 1964(2) SCR 809 = AIR 1964 SC 708 AND State of U.P. vs. Om Prakash Gupta, AIR 1970 SC 679, the above principles were reiterated and it was laid down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross-examination by the delinquent.
34. Having regard to the law as set out above, and also having regard to the fact that the factors set out in Rule 16(3) of the Delhi Police (F&A) Rules, 1980, did not exist with the result that Rule 16(3) itself could not be invoked, we are of the MANISH KUMAR SRIVASTAVA 14 opinion that the Enquiry Officer was not right in bringing on record the so-called previous statement of witnesses Radhey Shyam and Rajpal Singh".
16. In the case of Union of India and others Vs. Surendra Kumar in W.P (C) 11031/2022, CM Appl. 32309/2022 & 32310/2022 decided on 02.06.2023 Hon'ble Delhi High Court has held as under:-
"22. It may further be noticed that in terms of Rule 14(18) of CCS (CCA) Rules, after the prosecution evidence is over, the charged officer is required to submit his statement of defence indicating his line of defence, if any. The evidence is to be led in the same manner giving an opportunity of cross- examination to the Presenting Officer. Thereafter, the Inquiring Authority shall enquire the charged officer if he wishes to appear as his own witness and in case the charged officer declines to do so, the Inquiring Authority is required to generally question him to explain any circumstances appearing against him.
The statement of the respondent, if any, recorded in defence has not been placed on record or discussed in the Inquiry Report. Neither, it has been reflected in case the questions were put up to the respondent in respect of the evidence appearing against him during the course of inquiry as contemplated under Rule 14(18) of CCS (CCA) Rules. The complete record of inquiry proceedings has not been placed on file. Rule 14(18) of CCS (CCA) Rules, 1965 has been formulated for enabling the delinquent official to rebut and explain the circumstances appearing against him in evidence.
The Inquiry Officer, as such, is obligated to put the incriminating evidence to the respondent in order to give him a proper opportunity of explaining the circumstances appearing against him unless he is examined in defence. Reliance may also be placed upon Ministry of Finance v. S.B. Ramesh, (1998) 3 SCC 227 wherein the Hon‟ble Supreme Court held the Rule 14(18) of CCS (CCA) Rules, 1965 to be mandatory.
For the foregoing reasons, we agree with the finding of the Tribunal to the extent of setting aside the inquiry proceedings along with the penalty order with liberty to proceed in the matter in accordance with law".
17. In the case of Union of India and another Vs. D.S. Manchanda reported in LAWS(DLH) 2011 3 587 in para 18 to 21, the Hon'ble Court has held as under:-
MANISH KUMAR SRIVASTAVA 15
"18. The next contention on behalf of the petitioner is about the non- compliance of the Rule 14(18) of CCS(CCA) Rules. According to the petitioners, Rule 14(18) was substantially complied with. Perusal of the record, however, reveals that it is an admitted case that the respondent did not examine himself as a witness. Since the respondent had not examined himself as witness, it was incumbent upon the enquiry officer to put evidence adduced against the respondent during the enquiry to him in compliance of Rule 14(18) of CCS(CCA) Rules. The said rule had been enacted with a view that whatever evidence comes in the enquiry, explanation may be sought to rebut the circumstances, which would be in consonance with the principle of reasonable opportunity and audi alterm partum as inbuilt in the principles of natural justice. On perusal of the record, the order dated 6th April 1998 is categorical in stating that the respondent had neither examined any defense witnesses nor had he offered himself as a witness. Thereafter the respondent was generally examined by the Inquiry Officer, however whether or not the circumstances that came in evidence against the respondent was put to him has not been shown. In similar matters involving the same purchases, the charged officers were only put the charges which were framed against the charged officer. In the circumstances, in absence of any thing it is to be inferred that the evidence which was recorded during the enquiry was not put to the respondent in compliance with rule 14 (18) of CCS (CCA) Rules, 1965.
19. Perusal of Rule 14(18) clearly reveals that it is obligatory upon the enquiry authority to question the delinquent officer on the circumstances appearing against him in the evidence, for the purpose of enabling him to explain any circumstance. As there is no reference to the evidence brought on record or circumstances appearing against the applicant, hence the general examination, a copy of which has also not been produced despite ample opportunity to the petitioner, it is apparent there was not a valid compliance of Rule 14(18) of the CCS(CCA) Rules 1965.
20. Provisions analogous to Rule 14(18) of CCS(CCA) Rule exist in Rule 19 (21) of Railway Servant (Discipline & Appeal) Rules, 1958. In the matter of Moni Shankar V. Union of India, 2008 (1) AJW 479, an enquiry proceeding was conducted in which the following questions were put to the Charged Officer: "please state if you plead guilty?" ; "Do you wish to submit your oral or written arguments? ; "Are you satisfied with the enquiry proceeding" and "Can I conclude the enquiry?", were held to be not in compliance of Rule 9(21) of Railway Servant (Discipline & Appeal) Rules, 1958 as such type of questions did not reveal the evidence adduced in support of charges against the charged officer.
21. In Ministry of Finance v. S.B.Ramesh, (1998) 3 SCC 227 the Supreme Court had held the Rule 14 (18) of CCS (CCA) Rules, 1985 to be mandatory. The Apex Court had upheld the decision of the Tribunal holding that the order of the Disciplinary Authority was based on no evidence and that the findings were MANISH KUMAR SRIVASTAVA 16 perverse, on the reasoning that even if the Enquiry Officer had set the applicant ex parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry thereafter. Or even if the Enquiry Authority did not choose to give the applicant an opportunity to cross- examine the witness examined in support of the charge, he should have been given an opportunity to the applicant to appear and then proceeded to question him under Sub-rule (18) of Rule 14 of the CCS (CCA) Rules. The omission to do this was construed to be a serious error committed by the Enquiry Authority. This also cannot be disputed that if the charged officer has examined himself as a witness then it will not be obligatory to examine the charged officer under Rule 14(18) of CCS(CCA) Rules. However, in the absence of any defense statement by the charged official, it was mandatory on the part of the enquiry officer to examine him under Rule 14(18), and the non- compliance of which will vitiate the enquiry proceedings".
18. Although witness Ms. Safia Parveen has not been examined by the prosecution but on this ground alone prosecution evidence cannot be disbelieved. There may be some other evidence in the form of oral/documentary evidence on which basis opinion could be formed if charges leveled against the delinquent employee are found proved. It is pertinent to mention here that if the particular witness has not been examined his previous statement made during the preliminary enquiry could also not be relied upon unless and until witness concerned is put for cross examination.
19. As far as compliance of the provision of Rule 14 (18) of CCS (CCA) Rules, 1965 is concerned, since applicant has not examined himself as witness, thus, it was incumbent upon the Inquiry Officer to interrogate the delinquent employee under Rule 14 (18) of CCS (CCA) Rules, 1965 to explain the incriminating evidence collected during enquiry. Since aforesaid procedure has not been followed, no opportunity has been given as required under the aforesaid Rule to the applicant, thus, enquiry report on this ground alone has been vitiated. Opinion formed by the Tribunal find support with the law laid down in the case law of Union of India and others Vs. Surendra Kumar - Delhi High Court Writ (Civil) No. 11031 of 2022 decided on 2.6.2023, S.B Ramesh (supra) as well as D.S. Manchanda (supra). It is pertinent to mention here that opportunity MANISH KUMAR SRIVASTAVA 17 to adduce evidence has been given to the applicant as would be clear from the enquiry report itself.
20. On the basis of discussion made hereinabove and considering the observations of the Hon'ble Supreme Court/Hon'ble Delhi High Court in the judgments cited above, we are of the considered opinion that the OA is liable to be allowed. Accordingly, Original Application is allowed. Impugned orders dated 21.04.2022 and 31.01.2023 are hereby quashed. Applicant if not reached at the age of superannuation be reinstated immediately on his post extending all the consequential benefits. If he has crossed the age of superannuation, all the consequential benefit be also extended to him. Respondents will be at liberty, if they advised so, to proceed with the enquiry from the stage of Rule 14 (18) of CCS (CCA) Rules, 1965 after affording opportunity as required under the aforesaid Rule. No order as to costs. All associated MAs stand disposed of.
(Mohan Pyare) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish
MANISH KUMAR
SRIVASTAVA