Central Administrative Tribunal - Delhi
Mr. Irshad Husain vs Union Of India on 23 September, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1888/2014 Reserved On:01.09.2014 Pronounced on:23.09.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Mr. Irshad Husain (Ex.Presididng Officer, DRT Nagpur) S/o Late Shri Irtiza Husain, Group A, Aged about 62 years, R/o 9/82, Judges Colony Vaishali, Ghaziabad, UP. .Applicant By Advocate: Ms. Shobha. Versus 1. Union of India Through its Secretary, Ministry of Finance, Department of Financial Services, Jeevan Deep Building, Parliament Street, New Delhi-110001. 2. Shri V.K. Chopra Director, Ministry of Finance, Department of Financial Services, Jeevan Deep Building, Parliament Street, New Delhi-110001. 3. Shri Anurag Jain, Joint Secretary, Ministry of Finance, Department of Financial Services, Jeevan Deep Building, Parliament Street, New Delhi-110001. 4. Shri S.P. Borekar Senior Pay and Accounts Office, National Savings Organisations, Ministry of Finance, DEA N.S. Building, IInd Floor, West Wing, Civil Lines, Nagpur-440001. 5. The Registrar, DRT Nagpur, IInd Floor, B-Block, CGO Complex, Sewinay Hills Nagpur. Respondents By Advocate: Shri Rajesh Katyal. ORDER
G. Geroge Paracken, Member(J) This Original Application has been filed by Mr. Irshad Hussain, an Ex-Presiding Officer of Debts Recovery Tribunal (DRT for short), Nagpur. His grievance is against Annexure A-1 Order No.8/5/2010-DRT issued to him by Respondent No.1, an hour before the due date of his demitting the office on 11.04.2014 at 16.59 hours. According to the said order, his tenure as Presiding Officer of DRT, Nagpur was up to 14.04.2014 but 12th, 13th and 14th of April, 2014 were being holidays, he was demitting office on 11.04.2014 on completion of his tenure. Further, according to the said order, the Central Government, in exercise of the powers conferred under Section 15(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (1993 Act for short) read with Rule 5 of The Debts Recovery Tribunal (Procedure of Investigation of Misbehaviour or Incapacity of Presiding Officer) Rules, 2010 (2010 Rules for short) has decided to conduct an inquiry into the imputation of misbehaviour or incapacity. Consequently, the Central Government has decided that all pensionary benefits including encashment of leave etc. admissible to him shall be withheld and shall not be disbursed till completion and outcome of such enquiry. The aforesaid Section of the 1993 Act and Rule of 2010 Rules are reproduced as under:-
Section 15(2) (2) [The Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal] shall not be removed from his office except by an order made by the Central Government on the ground of proved misbehaviour or incapacity after inquiry,--
(a) in the case of the Presiding Officer of a Tribunal, made by a Judge of a High Court;
(b) in the case of [the Chairperson of an Appellate Tribunal], made by a Judge of the Supreme Court, in which 2[the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal] has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges.
Rule 5 5. Judge to conduct inquiry-(1) If the President is of the opinion that there are reasonable grounds for making an enquiry into the truth of any imputation or misbehaviour or incapacity of a Presiding Officer, he shall make a reference to the Chief Justice of India, requesting him to nominate Judge of High Court to conduct the enquiry.
(2) The President shall, by order, appoint the Judge of the High Court nominated by the Chief Justice of India for the purpose of conducting the inquiry.
(3) Notice of appointment of a Judge under sub-rule (2) shall be given to the Presiding Officer concerned.
(4) The President shall forward to the Judge a copy of
(a) the articles of charges against the Presiding Officer concerned and the statement of imputation;
(b) the statement of witnesses, if any; and (c ) material documents relevant to the inquiry.
(5) The Jude appointed under sub-rule (2) shall complete the enquiry within such time or further time as may be specified by the President.
(6) The Presiding Officer concerned shall be given a reasonable opportunity of presenting a written statement of defence within such time as may be specified in this behalf by the Judge.
(7) Where it is alleged that the Presiding Officer concerned is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Judge may arrange for the medical examination of the Presiding Officer by such Medical Board as may be appointed for the purpose by the President and the Presiding Officer concerned shall submit himself to such medical examination within the time specified in this behalf by the Judge.
(8) The Medical Board shall undertake such medical examination of the Presiding Officer as may be considered necessary and submit a report to the Judge stating therein whether the incapacity is such as to render the Presiding Officer unfit to continue in office.
(9) If the Presiding Officer refuses to undergo such medical examination as considered necessary by the Medical Board, the Board shall submit a report to the Judge stating therein the examination which the Presiding Officer has refused to undergo, and the Judge may, on receipt of such report, presume that the Presiding Officer suffers from such physical or mental incapacity as is alleged in the complaint.
(10) The Judge may, after considering the written statement of the Presiding Officer and the Medical Report, if any, amend the charges referred to in clause (a) of sub-rule (4) and in such a case, the Presiding Officer shall be given a reasonable opportunity of presenting a fresh written statement of defence.
(11) The Central Government shall appoint an officer of that Government or an advocate to present the case against the Presiding Officer.
(12) Where the Central Government has appointed an advocate to present its case before the Judge, the Presiding Officer concerned shall also be allowed to present his case by an advocate chosen by him.
2. Brief facts: The Applicant was selected and appointed as Presenting Officer of DRT, Nagpur with effect from 08.09.2010. According to the appointment letter issued to him on 11.08.2010, his appointment was for a tenure of 5 years with effect from the date of his assumption of the charge of the post or till he attains the age of 62 years whichever is earlier. The aforesaid appointment letter was also notified in the Official Gazette vide Notification dated 23/24.09.2010. Accordingly, his term was expiring on 14.04.2014.
3. On 11.03.2014, Shri Justice G. Rajasuria, Chairperson of Debts Recovery Appellate Tribunal (DRAT for short), Kolkatta and In-Charge Chairperson of Mumbai, DRAT visited DRT, Nagpur on the direction of the Respondent No.1-Department of Financial Services and conducted its inspection. He has also recorded a statement of the Applicant separately. Thereafter, he submitted his report dated 19.03.2014 to the aforesaid Respondent under intimation to the Applicant on 27.03.2014. The report contains the details of the pendency of cases in DRT, Nagpur as on 28.02.2014, the sanctioned strength and the working strength of the officers and staff of the Tribunal as on date, work allocation in respect of the staff members of the Tribunal, the accounting system followed by the Tribunal, the Stationery Stock Register maintained by it etc. The report contains some remedial measures to be taken by the Presiding Officer but its conclusion was that the overall maintenance of the books of accounts, other registers and records and proceedings in the Tribunal were found satisfactory. The separate statement of the Applicant recorded by Mr. Justice G. Rajasuria on 11.03.2014 contains some of the questions asked by the latter and their answers given by the former. They were mainly regarding allegations of absorption of Shri Modh. Yaqoob, the Recovery Inspector on 09.09.2011 with retrospective effect from 21.09.2004, absorption of Shri M.M. Uike, LDC with effect from 27.01.2012, appointment of Shri P.J. Mehar as Multi Skilled Worker on ad hoc basis with effect from 01.05.2012 etc.
4. Thereafter, the Applicant received Office Memorandum F.No.17/4/2001-DRT dated 28.03.2014 stating that the reply dated 09.01.2014 received from the DRT was not found satisfactory and, therefore, Mr. Justice G. Rajasuria was requested to conduct inspection of DRT, Nagpur and to look into the functioning of the Presiding Officer. It has also been stated in the said Memorandum that he had committed certain irregularities in DRT, Nagpur and a complaint dated 24.01.2013 in that regard was received. It also refers to a report dated 13.03.2014 submitted by Mr. Justice Rajasuria in relation to inspection conducted by him on 11.03.2014. However, the copy of those complaint and report were not supplied to the Applicant. According to the report of Mr. Justice G. Rajasuria dated 13.03.2014, as per the aforesaid Memorandum the following administrative irregularities have been, prima facie, found to be established against the Applicant:-
(i) That Shri Irshad Hussain, PO, DRT, Nagpur passed an order dated 04.02.2011 for absorption of Shri Modh. Yaqoob, Court Master retrospectively w.e.f. 21.09.2004 without any provision in Rules and despite clear instruction issued by this department on 01.10.2008 not to absorb Shri Yaqoob.
(ii) That Shri Irshad Hussain, PO, DRT, Nagpur passed order dated 27.01.2012 absorbing Shri M.M. Uike as UDC w.e.f. 29.01.2008 without any provision in Rules.
(iii) That Shri Irshad Hussain, PO, DRT, Nagpur passed orders and signed the note dated 26.04.2012 absorbing Shri P.J. Mehar as Multi Skilled Worker in DRT w.e.f. 10.05.2012, which is clear violation of Government orders/instructions.
(iv) That Shri Irshad Hussain, PO, DRT, Nagpur compelled the subordinate officer to prepare notes and files in violation of the rules and regulations and the memorandums of the Central Government so as to enable him to pass illegal orders.
Accordingly, the Applicant was asked to show cause as to why disciplinary action should not be initiated against him for the aforesaid administrative lapses. In response to the aforesaid Memorandum dated 28.03.2014, the Applicant submitted his reply on 03/07.04.2014 stating that, if any allegations have been made against him, he should be furnished with a copy of the same. He has also requested the Respondent-Ministry to supply him a copy of the aforesaid enquiry report dated 13.03.2014 along with all the annexures and complaint made against him so that he could give his reply. The Respondents did not respond to the aforesaid letter of the Applicant. According to him, instead of supplying the documents as sought by him in his reply dated 03.04.2014, he, on 07.04.2014 at about 18.55 hrs, i.e., 06.55 PM received a call on his mobile no. no.09326024177 from Mr. V.K. Chopra, Director, Ministry of Finance, Department of Financial Services (Respondent No.2 herein) threatening and pressurizing the Applicant that either he cancels the order of absorption and regularization by admitting his mistake or else he would have to face action against him. On 09.04.2014, the Applicant at about 14.15 hrs, i.e., 02.15 PM he again received a call on his mobile phone No.09326024177 from Shri Anurag Jain, Joint Secretary, Ministry of Finance, Department of Financial Services (Respondent No.3 herein), reiterating the threat given to the Applicant by Mr. Chopra (Respondent No.2 herein). Shri Anurag Jain made a repeat call at 5.00 PM same day. Again, on 11.04.2014 at 09.50 AM, Shri Anurag Jain (Respondent No.3 herein) threatened him that if he wants to close the file against him, then he has time up to 11.00 am else he would have to face action against him. According to the Applicant, as he did not agree to such dictorial demands of both Shri Chopra and Shri Jain there was no mistake on his part.
5. Thereafter, he received the impugned order dated 11.04.2014 referred to above signed by Shri V.K. Chopra, Director, Ministry of Finance, Department of Financial Services. The Applicant send a reply on the same date denying all the allegations made against him. He has also submitted in his reply that Shri Chopra along with Mr. Anurag Jain have been intentionally trying to charge sheet him so as to withhold his leave encashment. He has also stated that their intention was not to allow him to complete his tenure with peaceful mind as he did not agree to his illegal demands. As the Respondent-Department did not take any further action in the matter, the Applicant has filed this Original Application seeking an order quashing the impugned order dated 11.04.2014 as the same is arbitrary, highhanded, illegal and unreasonable. Further, he has alleged that the Respondent No.2 has no competence or authority in law to issue the aforesaid Memorandum. Again, according to him, it was in violation of the mandatory provisions of Section 15(2) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 read with Rule 5 of 2010 Rules, provisions of which have been extracted earlier in this order. Further, he has sought a direction to Respondents No.4 & 5 to release his pensionary benefits including the medical bills and other bills which have been withheld in view of the impugned order. Again, he has sought a direction to be issued to the Respondent No.1 to hold an enquiry against Respondents No.2 and 3 for abusing their official position to pressurize him to cancel the orders passed by him after due application of mind and in course of discharging his duties as the Presiding Officer of the DRT, Nagpur.
6. The learned counsel for the Applicant Ms. Shobha has challenged the aforesaid order dated 11.04.2014 and argued that the Respondent No.2 has no authority of law or competence to issue the said order as, he being the Presiding Officer of DRT enjoys the status equivalent to the Joint Secretary in Government of India and, therefore, the competent authority to issue such order should not have been an officer not below the rank of Secretary. However, according to the said order, the Respondent No.2 has decided to conduct an inquiry into imputation of misbehavior. He has also stated that till date no memorandum of charge or statement of imputation of misbehaviour or incapacity has been issued/served upon him and hence the said order is completely arbitrary, illegal and vitiated and, therefore, unsustainable in the eyes of law.
7. The learned counsel for the Applicant has further submitted that the impugned order has been issued in violation of the sub-rule 4(2), 4(3), 4(4) and 5(1) of 2010 Rules which read as under:-
Sub-rule 4(2) (2) If, on preliminary scrutiny, the Central Government considered it necessary to investigate into the allegation, it shall place the complaint together with other material as may be available, before a Committee consisting of the following officers to investigate the charges of allegations made in the complaint, namely;-
(i) Secretary (Coordination and Public Grievances), Cabinet Secretariat - Chairman;
(ii) Secretary, Ministry of Finance, Department of Financial Services - Member
(iii) Secretary, Department of Legal Affairs, Ministry of Law and Justice - Member.
Sub-rule 4(3) (3) The Committee shall devise its own procedure and method of investigation which may include recording of evidence of the complainant and collection of material relevant to the inquiry which may be conducted by a Judge of the High Court under these rules.
Sub-rule 4(4) (4) The Committee shall submit its findings to the President as early as possible within a period that may be specified by the President in this behalf.
Sub-rule 5(1) (1) If the President is of the opinion that there are reasonable grounds for making an enquiry into the truth of any imputation or misbehaviour or incapacity of a Presiding Officer, he shall make a reference to the Chief Justice of India, requesting him to nominate Judge of High Court to conduct the enquiry.
8. The learned counsel has also submitted that the aforesaid show cause notice dated 28.03.2014 is illegal and wrong, as, according to the aforesaid provisions contained in 2010 Rules, the Respondent could not have initiated any action against him for the alleged administrative irregularities committed by the Applicant. Her further contention is that under the provisions of the aforesaid Rules, nothing less than the penalty of removal from service could have been imposed upon the Applicant. As the Applicant has already demitted his office on completion of his tenure, there is no question of removing him from service from the back date. Hence the proposed proceedings vide the impugned order dated 11.04.2014 is a futile exercise as no purpose is going to be served. She has also stated that the Office Memorandum dated 28.03.2014 asking him to show cause why appropriate disciplinary action should not be initiated against him and the impugned order dated 11.04.2014 by which it has been decided to conduct an inquiry into the imputation of misbehavior or incapacity of the Applicant are not sustainable and liable to be quashed and set aside as they have not been issued by the President who is his Disciplinary Authority as held by the Apex Court U.O.I. & Others Vs. B.V. Gopinath and Others JT 2013 (12) SC 392 decided on 05.09.2013, wherein it has been held as under:-
49. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of law.
9. Further, the learned counsel has relied upon the following three judgments of the Apex Court to show that the enquiry got vitiated. Those cases with their relevant parts are reproduced as under:-
(i) Siemens Ltd. Vs. State of Maharashtra and Others 2006 (12) SCC 33:-
9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause.
10. The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant [2006 (6) SCALE 66], stating:
"48.The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case.
49. In K.I. Shephard & Ors. etc. etc. v. Union of India & Ors. [AIR 1988 SC 686], this Court held :
"It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose."
[See also Shri Shekhar Ghosh v. Union of India & Anr. 2006 (11) SCALE 363 and Rajesh Kumar & Ors. v. D.C.I.T. & Ors. 2006 (11) SCALE 409]
11. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable.
12. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed and the matter is remitted to the High Court for its consideration afresh on its own merits. No costs.
(ii) State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha 2010(2) SCC 772:-
29. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.
30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
31. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
32. The affect of non disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, Fifth Edition, Pg.442 as follows: "If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked." In our opinion the aforesaid maxim is fully applicable in the facts and circumstances of this case.
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the enquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of principles natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge sheet.
34. This Court in the case of Kashinath Dikshita vs. Union of India, (1986) 3 SCC page 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a Government servant. In that case the enquiry proceedings had been challenged on the ground that non supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority.
35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows:
"When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross- examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question:
"What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."
36. On an examination of the facts in that case, the submission on the behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations:
"Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross- examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."
37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of this case. Non-disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant.
38. The aforesaid proposition of law has been reiterated in the case of Trilok Nath vs. Union of India 1967 SLR 759 (SC) wherein it was held that non-supply of the documents amounted to denial of reasonable opportunity. It was held as follows:
"Had he decided to do so, the document would have been useful to the appellant for cross- examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish the appellant with copies of the documents such as the FIR and the statements recorded at Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry."
39. The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statement, documents and other materials to enable him to have a reasonable opportunity to defend himself in the department enquiry against the charges is too well established to need any further reiteration. Nevertheless given the facts of this case we may re-emphasise the law as stated by this Court in the case of State of Punjab vs. Bhagat Ram (1975) 1 SCC 155:
"The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the government servant. Unless the statements are given to the government servant he will not be able to have an effective and useful cross-examination. It is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the government servant. A synopsis does not satisfy the requirements of giving the government servant a reasonable opportunity of showing cause against the action proposed to be taken."
40. We may also notice here that the counsel for the appellant sought to argue that respondent had even failed to give reply to the show cause notice, issued under Rule 9. The removal order, according to him, was therefore justified. We are unable to accept the aforesaid submission. The first enquiry report dated 3.8.2001, is clearly vitiated, for the reasons stated earlier. The second enquiry report can not legally be termed as an enquiry report as it is a reiteration of the earlier, enquiry report. Asking the respondent to give reply to the enquiry report without supply of the documents is to add insult to injury. In our opinion the appellants have deliberately misconstrued the directions issued by the High Court in Writ Petition 937/2003. In terms of the aforesaid order the respondents was required to submit a reply to the charge sheet upon supply of the necessary document by the appellant. It is for this reason that the High Court subsequently while passing an interim order on 7.6.2004 in Writ Petition No. 793/2004 directed the appellant to ensure compliance of the order passed by the Division Bench on 23.7.2003.
(iii) V.C. Banaras Hindu University and Others Vs. Shrikant 2006 (11) SCC 42:-
41. Although, laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of the Constitution of India. If the action taken by the authority is found to be illogical in nature and, therefore, violative of Article 14 of the Constitution, the same cannot be sustained. Statutory authority may pass an order which may otherwise be bona fide, but the same cannot be exercised in an unfair or unreasonable manner. The Respondent has shown before us that his leave had been sanctioned by the Director being the Head of the Department in terms of the leave rules. It was the Director/Head of the Department who could sanction the leave. Even the matter relating to grant of permission for his going abroad had been recommended by the Director. The Respondent states and it had not been controverted that some other doctor was given the charge of his duties. We have indicated sufficiently that the Vice Chancellor posed unto himself a wrong question. A wrong question leads to a wrong answer. When the statutory authority exercises its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into consideration irrelevant or extraneous matters not germane therefor, he misdirects himself in law. In such an event, an order of the statutory authority must he held to be vitiated in law. It suffers from an error of law.
42. Such an error of law is capable of being rectified by judicial review. Reasonableness in the order and/or fairness in the procedure indisputably can also be gone into by the writ Court.
10. The learned counsel has also relied upon the following two judgments of the Apex Court to say that the Inquiry Proceedings post superannuation lapses in the absence of specific provision permitting continuance of the same. Those cases with relevant parts as reproduced as under:-
(i) Civil Appeal Nos. 5848-49 of 2014 - Dev Prakash Tewari Vs. U.P. Cooperative Institutional Service Board, Lucknow and Others decided on 30.06.2014:-
7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95 there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
7. In the subsequent decision of this Court in U.P. Coop. Federation case (supra) on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management.
8. While dealing with the above case, the earlier decision in Bhagirathi Jenas case (supra) was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot help the respondents herein.
9. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.
(ii) Bhagirathi Jena Vs. Board of Directors, OSFC and Others 1999 (3) SCC 666:-
7. In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-95, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.
11. The learned counsel has also relied upon the following judgments of the Supreme Court wherein it has been held that the disciplinary proceedings commences only when a charge sheet is issued to the delinquent employee. Those cases with their relevant parts are reproduced as under:-
(i) UCO Bank and Another Vs. Rajinder Lal Capoor 2007 (6) SCC 694:-
21. The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had clearly been initiated prior to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannua-tion. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show cause notice. It is initiated only when a charge-sheet is issued (See Union of India etc. etc. v. K.V. Jankiraman, etc. etc., reported in AIR 1991SC 2010). This aspect of the matter has also been considered by this Court re-cently in Coal India Limited & others v. Saroj Kumar Mishra (5) SCALE 724] wherein it was held that date of application of mind on the allegations levelled against an officer by the Competent Authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto. Pendency of a prelimi-nary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact-situation but involving a similar question of law in Coal India Ltd. (supra) this Court held :
"12(13). It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had ar-rived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
13(14). The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard." It was fur hermore observed that:
"18(20). A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued."
(See also Union of India v. Sangram Keshari Nayak, 2007 (6) SCALE 348)
22. Respondent, therefore, having been allowed to superannuate, only a pro-ceeding, inter alia, for withholding of his pension under the Pension Regulations could have been initiated against the respondent. Discipline and Appeal Regulations were, thus not attracted. Consequently the charge-sheet, the enquiry report and the orders of punishment passed by the Disciplinary Authority and the Appellate Authority must be held to be illegal and without jurisdiction.
23. An order of dismissal or removal from service can be passed only when an employee is in service. If a person is not in employment, the question of terminating his services ordinarily would not arise unless there exists a specific rule in that be-half. As Regulation 20 is not applicable in the case of the respondent, we have no other option but to hold that the entire proceeding initiated against the respondent became vitiated in law.
XXX XXX XXX
29. In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary authority is the first step for initiation of a disciplinary authority. Unless and until, therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the 1976 Regulations cannot be initiated. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a disciplinary proceedings. We have noticed in paragraph 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceedings despite the officers reaching the age of superannuation must be a statutory rule. A' fortiori it must be a rule applicable to a disciplinary proceedings.
(ii) Union of India and Others Vs. Anil Kumar Sarkar 2013 (4) SCC 161:-
19. In Coal India Limited & Ors. vs. Saroj Kumar Mishra, AIR 2007 SC 1706, this Court, in para 22, has held that:
a departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.
20. In Chairman-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142, this Court held as under:
27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694)
21. We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued.
12. Learned counsel has relied upon the judgment of the Apex Court in the case of Jaswant Singh Gill Vs. Bharat Cooking Coal Limited and Others 2007(1) SCC 663 and submitted that for forfeiting any amount from the gratuity two things are imperative, namely, (i) Termination of services for any of the causes enumerated in Sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972 and (ii) pecuniary loss. The relevant part of the said judgment reads as under:-
19. Reliance has been placed by Mr. Rana Mukherjee, learned counsel appearing on behalf of Respondent No. 1 on Management of Tournamulla Estate v. Workmen [1973 (3) SCR 762]. In that case, this Court was concerned with a scheme of gratuity. The scheme contained a provision which was in pari materia with Section 4(6)(b) of the Act. The said scheme was upheld stating:
"Although the provisions of this statute would not govern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi Cloth Mills case with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature mentioned above, has been incorporated in the statute itself. Even otherwise, such a rule is conducive to industrial harmony and is in consonance with public policy."
20. Reliance has also been placed upon a decision of Karnataka High Court in M/s. Bharath Gold Mines Ltd. v. The Regional Labour Commissioner (Central), Bangalore and others [1986 Lab. I.C. 1976]. In that case it was held that before the amount of gratuity can be directed to be forfeited, an opportunity of hearing must be given. The said decision may not have any application to the fact of the present case as opportunity of hearing was given both to the employer as also the employee by the authority.
21. Reliance placed by Mr. Mukherjee on a decision of this Court in D.V. Kapoor v. Union of India and Others [(1990) 4 SCC 314] is misplaced. Therein having regard to the provisions of the Civil Services and Conduct Rules, it was held that a departmental proceeding can be continued even after allowing the delinquent employee to voluntarily retire. However, therein the rules provided for withholding or withdrawing pension permanently. In that case itself, it was opined:
"...The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction."
13. Lastly the learned counsel has relied on the judgment of the Apex Court in the case of State of Jharkahand and Others Vs. Jitendera Kumar Srivastava and Another 2013(10) SCC 2010 wherein it has been reiterated that gratuity and pension are not bounties. The hard earned benefit which accrues to an employee and is in the nature of property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India. The relevant part of the said judgment reads as under:-
13. A Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending.
12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion:
27. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.
28. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1) (f) and 31(1) of the Constitution.
29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein.
30. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
32. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. MANU/SC/0030/1968: [1968]3SCR489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1) (f) and 31(1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.
14. The Respondents in their reply have submitted that, vide the Debts Recovery Tribunal (Procedure for Investigation of Misbehaviour or incapacity of Presiding Officer) Amendment Rules, 2012, the Central Government has amended the Debts Recovery Tribunal (Procedure for Investigation of Misbehviour or Incapacity of Presiding Officer) Rules, 2010. By the said amendment Rule 4 and 5 have been substituted as under:-
4. Preliminary scrutiny and investigation of complaints:-
(1) If a written complaint, alleging any definite charges of misbehaviour or incapacity to perform the functions of the office in respect of a Presiding Officer is received by the Central Government, it shall make a preliminary scrutiny of such complaint.
(2) If on preliminary scrutiny, the Central Government considers it necessary to investigate into the allegation, it shall refer the complaint together with other material as may be available, to the Chairperson of the Debts Recovery Appellate Tribunal exercising control over the Tribunal against whose Presiding Officer the complaint has been received, to investigate the charges of allegations made in the complaint.
(3) The Chairperson shall conduct the investigation into the complaint which may include recording of evidence of the complainant and other parties as may be necessary, and collecting material relevant to the inquiry and submit his report to the Central Government. Report of the Chairperson of the Debts Recovery Appellate Tribunal may include the following:-
(i) articles of charges against the Presiding Officer concerned alongwith the statement of imputation against each article;
(ii) list of relevant documents relied on along with a copy of such documents placed in the order of their mention in the articles of charges or statement of imputations;
(iii) such relevant material or documents relevant to the inquiry; and
(iv) recommendations of the Chairperson.
(b) in rule 5, the following shall be substituted, namely:-
(i) for the word President wherever it occurs, the words Central Government shall be substituted;
(ii) in such rule (1), for the word he the word it shall be substituted;
(iii) For sub-rule(4), the following shall be substituted:-
(4) The Central Government shall forward to the Judge a copy of
(a) the articles of charges against the Presiding Officer concerned alongwith the statement of imputation against each article;
(b) list of relevant documents relied on alongwith copies of such documents;
(c) list of witnesses proposed to be examined together with statements, if any, of such witnesses;
(d) any other material or document relevant to the inquiry
15. The Respondents have also stated that on receipt of complaints against the Applicant, the Respondent-Ministry Scrutinized them. Thereafter, the Central Government got an enquiry conducted by Justice (Retd.) G. Rajasuria, Judge, High Court of Madras & presently Chairperson, DRAT, Kolkata who was holding the additional charge of DRAT, Mumbai as per Rule 4(2) of the Debts Recovery Tribunal (Procedure for investigation of Misbehavior or incapacity of Presiding officer) Rules, 2010. As per Rule 4(3) thereof, the Chairperson submitted his report to the Central Government on 19.03.2014. A copy of one of the report was sent to DRT Nagpur as stated by the Applicant. The other report was submitted only to the Respondent-Ministry which not only contained the statements of the Applicant but also the staff members of DRT. Justice Rajasuria in his report brought out serious administrative irregularities in the functioning of the Applicant in DRT Nagpur. Based on the said report, a show cause notice was issued to the Applicant vide letter dated 28.03.2014. In reply dated 3.4.2014 the Applicant referred to the report on the judicial side but not on a single point mentioned in show cause notice which shows his attempt to avoid submission of any explanation. However, since the tenure of the Applicant was coming to an end, the matter was placed before the Competent Authority. He was also contacted over telephone by Shri V.K. Chopra, Director (DRT) and Shri Anurag Jain, Joint Secretary in the Department of Financial Services to submit detailed parawise comments to the show cause notice. It was also suggested to him to consider rectifying the irregularities by withdrawing the orders which were not in accordance with the Rules/instructions. But it was in no way to pressurize him to act in a particular manner. It was merely a suggestion so that Competent Authority may be requested to take a lenient view in the matter. However, the Applicant did not agree to the suggestion.
16. In reply to the submission of a learned counsel for the Applicant that after the Applicant has demitted office, no departmental enquiry can be held, the learned counsel for the Respondents relied upon the judgment of the Honble High Court of Delhi in the case of D.C. Majumdar VS. Union of India 1999 (77) DLT 442 wherein it has been held that even after retirement for misconduct, negligence or financial irregularity, enquiry can be initiated as under:-
6. In State of Uttar Pradesh Vs. Brahm Datt Shanna and Another 1987(2) SCC 179, the Supreme Court held that a departmental inquiry can be initiated even after retirement for misconduct, negligence or financial irregularity. In Jamail Singh Vs. Secretary, Ministry of Home Affairs and Others 1993(1) SCC 47, the Supreme Court held that the Government has power to withhold even gratuity by way of punishment. In view of the settled position, the petitioner cannot be heard to contend that no proceedings can be taken against him after his retirement.
17. Learned counsel for the Respondents has also refuted the contention of the learned counsel of the Applicant that the impugned letter could not have been issued on the date of retirement of the Applicant. He has also argued that since proceedings in this case has not been concluded, no interference at the interlocutory stage is warranted. In this regard, he has relied upon the order of this Tribunal in OA No. 4075/2012 Dr. Arun Kumar Vs. Union of India and Another decided on 17.04.2013 wherein it has been held as under:-
The respondents argued that the Apex Court had clearly ruled that when an employee is served with the suspension order on the last day of his retirement, it cannot be said that the proceedings against him have initiated after the employee had retired from service. In view of this, the argument of the applicant that the employer-employee relationship had already ended is not sustainable.
XXX XXX XXX
17. In their arguments, the respondents counsel has emphasized on the fact that disciplinary proceedings in the instant case are at the interlocutory stage and judicial interference at this stage is not warranted. He has relied on the judgment of the Honble Supreme Court in the case of UOI & Ors. Vs. A.N. Saxena, 1992 SCC(L&S) 861 in which the Honble Supreme Court had quashed the order of this Tribunal staying the disciplinary proceedings against the applicant holding that the charges against the applicant were serious and Tribunal had erred in granting injunction in restraining the UOI from taking disciplinary action against the officer. He has also retied on the judgment of Honble High Court of Delhi in the case of Govind Prajapati Vs. UOI & Ors., 150(2008)DLT 435 in which the Honble High Court quoted the Honble Supreme Court guidelines that interference by the Court at the stage of issuance of chargesheet would amount to pre-judging the issue as the correctness of the charges are yet to be looked into by the DA.
18. We have heard the learned counsel for the Applicant Ms. Shobha and the learned counsel for the Respondents Shri Rajesh Katyal. According to the impugned order dated 11.04.2014, the Central Government have decided to conduct an inquiry into the imputation of misbehaviour or incapacity of the Applicant in exercise of powers conferred under Section 15(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rule 5 of The Debts Recovery Tribunal (Procedure of Investigation of Misbehaviour or Incapacity of Presiding Officer) Rules, 2010. First of all, the said order is quite a vague one inasmuch as it is not clear whether the proposed enquiry is against the misbehaviour of the Applicant or for his incapacity. The word misbehaviour, according to the Concise Oxford Dictionary is behave badly. The word behaviour means the way one conduct oneself; manners, treatment of others; moral conduct. The word incapacity means inability, lack of the necessary power or resources. From the pleadings in this case, it is seen that Justice G. Rajasuria, Honble Chairperson, DRAT, Kolkata inspected DRT, Nagpur on 11th and 12th March, 2013 and in his report dated 13.03.2014, he held that the Applicant has committed some administrative irregularities with regard to absorption of three staff members of DRT, Nagpur and compelled his subordinate officer to prepare notes and files in violation of the rules, regulation and the memoranda of the Central Government so as to enable him to pass illegal orders. By the Respondents letter dated 28.03.2014, he was also asked to show cause why appropriate disciplinary action should not be initiated against him for the above lapses. In the reply affidavit in this case, the Respondents have also submitted that the Applicant replied to the aforesaid show cause notice on 03.04.2014 but it was not found satisfactory. In any case, no allegations of misbehaviour or incapacity has been attributed to the Applicant. Even otherwise also, the allegation of administrative irregularities cannot be brought under the ambit of misbehaviour or incapacity. Again, Section 15(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is an enabling provision for removal of the Presiding Officer of the DRT for misbehaviour or incapacity. When there was no allegation against the Applicant that he had badly misbehaved with any one or he was having bad mannerism or he had mistreated others or his moral conduct was bad or he suffers from incapacity amounting to his inability or lack of the necessary power or resources the question of invoking the aforesaid section does not arise. Further, since the aforesaid impugned order itself says that the Applicant was demitting office on 11.04.2004 on completion of his service and he actually demitted his office on that date, under what rules an enquiry can be ordered against him vide said order of the same date for his imputation of misbehaviour or incapacity. The very purpose of Section 15 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is to remove the Presiding Officer of a Tribunal or Appellate Tribunal from service. How can the Respondent remove an officer who has already demitted his office. Further, under what rules, the Respondents have arbitrarily decided to withhold all pensionary benefits including encashment of leave etc. of the Applicant?. The Respondents have not cited any rules which enable them to do so. The Apex Court in its recent judgment in the case of State of Jharkhand and Others (supra) held that right to receive pension was recognized as right to property. In the said judgment, the Apex Court has also reiterated the settled law that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government. Finally, it has been held as under:-
.A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
19. In the above facts and circumstances of the case, we allow this OA and quash and set aside the impugned order dated 11.04.2014 as the same has been issued illegally and arbitrarily. Consequently, with immediate effect, the Respondents shall release all withheld dues payable to Applicant as he had already demitted the office of the Presiding Officer, DRT, Nagpur, on completion of his tenure. In the facts and circumstances of the case, the Applicant is also entitled for 9% interest on the withheld amount from 11.04.2014 till the date of payment. However, there shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh