Central Administrative Tribunal - Delhi
Shailender Kumar vs Union Of India Through on 13 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 2805/2013 Reserved On:01.05.2015 Pronounced on:13.05.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. ASHOK KUMAR, MEMBER (A) Shailender Kumar 1/34, Street No.4, Vishwas Nagar, Delhi-110032. .Applicant (By Advocate: Shri Amit Anand) Versus 1. Union of India through Secretary (Revenue) Ministry of Finance, North Block, New Delhi-11001. 2. Appellate Tribunal for Forfeited Property Through Registrar, 4th Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110003. ..Respondents By Advocate: Shri S.K. Dubey ORDER
G. George Paracken, Member (J) In this Original Application the Applicant has challenged the orders in the disciplinary proceedings initiated against him culminated in the order of his dismissal from service and the rejection of his appeal against the same.
2. The brief facts of the case are that the Applicant was served with a Memorandum dated 16.02.2012 proposing to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965. Along with the same, a statement of imputation of misconduct in support of those charges and the list of documents by which the Articles of Charge to be sustained were enclosed. However, as per the said Memorandum, there were no witnesses to sustain those charges. By the said Memorandum, he was also directed to submit his statement of defence within 10 days. Further, according to the said Memorandum, if he fails to submit his written statement of defence on or before the aforesaid period or does not appear before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule 14 of the CCS (CCA) Rules, 1965, or the orders/directions issued in pursuance of the said rule, the enquiry may be held against him ex-parte. The Article of Charge against him was as under:-
Article-I That the said Shri Shailender Kumar, Stenographer (Grade-II in the office of Appellate Tribunal for Forfeited Property, New Delhi is an habitual and compulsive absenter and highly irregular in attending office. Despite advices and even warning in the past, Shri Shailender Kumar has continued to absent himself from office for days at will, without either advance sanction of leave or even prior intimating to his controlling officer. Lately, his tendency to remain unauthorizedly absent from office has crossed all limits. Thus, in the month of November, 2011, he was absent on November 14 (for which there is even no leave application on record). Similarly, during December 2011, he was absent on December 1, 2,7,8, 13,14,15, 16, 20,21,22, 27,28 and 29 without any prior sanction of leave. For his absence on Dec.20, 21 and 22, there is even no application on record whereas for his absence on other days in Dec.11, he submitted leave applications after he had availed leave at his will. Similarly, in the month of January, 2012, he was absent on January 2,3,5,10,11, 12,16,17,18, 20, 23, 24, 25 and 27 without any prior sanction of leave. In the month of February also, he has so far been unauthorisedly absent from office on Feb. 1,3,7,8,9 and 14. This is despite the fact that earlier also disciplinary proceedings were instituted against Shri Shailender Kumar which had led to imposition of minor penalty on him. Thus, Shri Shailender Kumars above conduct displays total lack of devotion of duty and highly unbecoming of a government servant thus violating Rule 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules.
3. Thereafter, the Respondents issued another Memorandum dated 12.03.2012, treating the period of his absence as unauthorized. The Applicant, vide his letter dated 14.03.2012, informed the Head of the Department of the Respondents that he has been taking CGHS treatment/private treatment for ailment of his depression having being suffered by him from the year 2010. He had also enclosed prescription of the CGHS and the private practitioner. He has also stated that his absence was due to his major depression (psychiatric ailment) and it was totally unintentional. Therefore, he has requested that the period of his absence may not be treated as unauthorized but to treat it for the purpose of granting increments under Rule 27 of the CCS (Pension) Rules, 1972. He has also requested to condone the delay in submitting the leave application, on humanitarian grounds.
4. Thereafter, the Inquiry Officer submitted his report on 11.04.2012 holding that the aforesaid charge stands fully proved. According to the aforesaid report, the Presenting Officer Shri Albert Khakha presented the case citing the aforesaid imputation of misconduct based on the documentary evidence furnished to the Applicant along with the Memorandum of Charges. Further according to the aforesaid report, even though the Applicant denied those charges, he admitted that he was absent on the dates in the months from November, 2011 to February, 2012 shown in the charge sheet without sanction of leave and on some days even without application of leave or even intimation to his Controlling Officer, but his contention was that he has been suffering from psychological depression since 2010 and bronchial asthma for many years. Further, he has stated that because of his illness he became quite forgetful and as a consequence he forget many things, including making application of leave without intimation to the office in time. He has also stated that his absence was never willful but unintended and requested that on humanitarian ground his unauthorized absence may be condoned and to grant leave for the days on which he remained absent from duty. The report further goes to read that he filed copies of the medical prescriptions issued to him by two private doctors, namely, Dr. Anupam Zutshi for his asthma problem and Dr. Brijesh Saran for his psychological problem prescribing medicines on various dates. Then the Inquiry Officer, vide his letter dated 28.03.2012, asked him to produce the bills for purchasing the medicines prescribed to him. The Inquiry Officer has also drawn the attention the Applicant to the provisions contained in Rule 19 of the CCS (Leave) Rules, 1972 according to which application for leave on medical ground by a non-gazetted Government servant shall be accompanied by a medical certificate in Form-4 but he has not comply with it. He did not give any reply with regard to the question regarding provision contained in the Leave Rules. In reply, the Applicant, vide his letter dated 30.03.2012, informed the Enquiry Officer that his wife used to purchase medicines and she never thought of obtaining bills for the same. Again the Inquiry Officer, vide his letter dated 04.04.2012, asked the Applicant to justify his, prima facie, unauthorized absence for which no leave applications were filed by him even after a lapse of more than 2 years. The Inquiry Officer has also directed him to produce reports of any medial tests done on him, but he failed to do so stating that no medical tests were done on him. Then the Inquiry Officer directed him to again produce the originals of the doctors prescription produced by him on the first day of to have a closer examination but he avoided submitting them on the ground that they got misplaced. The Inquiry Officer further asked him as to why, despite being a CGHS card holder, he consulted only private doctors. The Applicant vide his letter dated 09.04.2012 submitted that even prior to 2010, he was suffering from forgetfulness and, therefore, he might have forgotten to apply for leave but along with the reply, he submitted his leave applications for the aforementioned dates. He has also contended that there was no receipt system in the office and the employees papers were not diarized. He has explained that it was not convenient for him to consult the CGHS doctor because CGHS Dispensary was located far away from his house. He ahs also stated that earlier he had consulted a doctor in R.M.L. Hospital but he did not get any relief from him and, therefore, he consulted the private doctor from whom he got relief. He also submitted that no reimbursement of expenditure incurred by him on consulting the doctors and on purchasing the medicines prescribed to him was claimed by him from office and it was borne by him from his pocket. With the said letter he has also submitted a certificate from the chemist near his house certifying that he used to purchase medicines for his various ailments from his shop. However, the Inquiry Officer found his explanations incorrect as all papers received from the employees including him were duly diarized.
5. Further according to the report, the Inquiry Officer assessed both the documentary and circumstantial evidence against the Applicant. According to him, a perusal of the listed documents showed that from time to time in the past 10 years, out of his total service of 18 years, Applicant was proceeded against a number of times for various lapses and misconduct. The first listed document indicated that in June, 2001, after an adverse notice was recorded against him, the then Registrar, ATFP, recorded the following in his personal file:-
Shri Kumar has a general negative attitude about office work and has tendency to avoid office work on one pretext or the other. He had been creating problems even before his promotion but keeping in view his young age we had taken a lenient view at that time and he was promoted. However, despite persuasion and advice a number of times, he has not shown much improvement. Instead he is trying to exploit the situation.
According to the second document, a charge sheet was issued to the Applicant, inter alia, alleging habitual negligence of duties assigned to him. Consequently, vide order dated 13.06.2002, after an enquiry was conducted, the penalty of withholding of his increment for three years was imposed upon him. On appeal, considering that he has still a long way to go in Government service and to give him another chance to come out of lethargy, the punishment was reduced by withholding of one increment for one year. His representation before the Revenue Secretary was also dismissed. By the document No.5 dated 29.12.2006, his explanation was called for remaining absent from duty without prior intimation and sanction of leave on 28.12.2006. By document No.6 dated 19.11.2007, his explanation was called for not attending the home office of the then Chairman, ATFP for taking some urgent dictation. By the document No.8 dated 09.07.2010, Applicant was warned to be more cautious, disciplined and sincere in discharging his duties. He was also directed to come to the office in time and remain there during the office hours. By document No.9 dated 15.11.2010, he was specifically asked to explain about his absence on 39 various dates during the months of June to October, 2010. By document No.10 dated 16.12.2010, he was advised to apply for leave and get it approved in advance before availing the same. However, the Applicants explanation was that his unauthorized absence from office on various dates during the months of November, 2011 to February, 2012, as per the details given in the charge sheet, was not willful and was due to his forgetfulness and other ailments. The Inquiry Officer did not find it convincing firstly for the reason that the doctors prescription, copies of which have been filed by him are only prescriptions prescribing him certain medicines for restlessness, lack of sleep, nervousness and asthma. None of the prescriptions either advises him complete rest or to seek leave from office. They also do not state that he was unfit to attend the office. Therefore, those prescriptions are not to be treated as substitute for the medical certificate in Form-4 as per CCS (CCA) Rules, 1965. Secondly, none of the prescriptions mentions forgetfulness as a problem faced by him. Even the certificate obtained from Dr. Brijesh Saran on 28.02.2012, i.e., after the present charge sheet has been issued to him, it has never stated that he has been under treatment for psychiatric problems and requires long term treatment. Such a certificate or prescription filed by the Applicant cannot be an excuse for remaining an unauthorized absence from office at will. The Inquiry Officer has also found that the Applicant has neither produced any bill for purchasing innumerable medicines nor any medical tests was conducted on him for 2 years. However, despite being a CGHS card holder, he never consulted a CGHS doctor nor obtained medicines from CGHS dispensary though for purchasing those medicines, he would have incurred a substantial amount of expenditure. Therefore, the Inquiry Officer came to the conclusion that the Applicants absence on various dates aggregating to 42 days w.e.f. 14.11.2011 to 14.02.2012 was not only unauthorized but willful, he was a habitual and compulsive absenter from office and despite various actions, advices and warnings, he has not given up his habit of remaining unauthroizedly absenting from duty at will and without justification. Thus the Inquiry Officer held that the charges stood proved against the Applicant. The relevant part of the said report reads as under:-
15. I now turn to assess the evidence, both documentary and circumstantial, for and against Shri Sahilendra Kumar. Firstly, a perusal of the documents listed in Annexure-III of the charge sheet shows that from time to time in the past 10 years (out of his total service of 18 years), Shri Kumar has been proceeded against a number of times for various lapses and misconducts. Firstly, Sl.No.1 of Annexure-III shows that in June, 2001, after an adverse note was recorded against Shri Kumars negative attitude by the then Superintendent, ATFP, the then Registrary, ATFP recorded the following note in his personal file:-
Shri Kumar has a general negative attitude about office work and has tendency to avoid office work on one pretext or the other. He had been creating problems even before his promotion but keeping in view his young age we had taken a lenient view at that time and he was promoted. However, despite persuasion and advice a number of times, he has not shown much improvement. Instead he is trying to exploit the situation.
16. Thereafter, the document at Sl.No.2 of Annexure-III shows that a charge sheet was issued to Shri Shailender Kumar in August, 2001, inter alia, for alleged habitual negligence of duties assigned to him and subsequently, vide order dated 13.06.2002, after an enquiry was conducted, a penalty of withholding his increment for three years was imposed on him by Registrar, ATFP. On appeal, the Chairman, ATFP confirmed (vide Sl.No.3 of Annexure-III) the conclusion arrived at by the Registrar, ATFP, however, considering that he had still a long way to go in Government service and to give him another chance to come out of lethargy and to perform better, he reduced the period of withholding of increment to one year. Shri Kumars review petition before the Revenue Secretary was dismissed (vide Sl.No.4 of Annexure-III) by the then Secretary by a speaking and hard hitting order.
17. Despite such serious action against him consideration of which reached such high levels in the Government, Shri Kumar continued to take his duties as well as attending office quite non-seriously, as is clear from the documents at Sl.Nos. 5 to 10 of the Annexure-III. Sl.No.5 dated 29.12.2006 called for his explanation for remaining absent from duty without prior intimation and sanction of leave on 28.12.2006. Similarly, the document Sl. No.6 dated 19.11.2007 called for his explanation for not attending the home office of the then Chairman, ATFP for taking some urgent dictation. Vide Sl. No.8 dated 09.07.2010, Shri Kumar was warned to be more cautious, disciplined and sincere in discharging his office duties and also come to the office in time and remain there during the office hours, he should remain in office. Despite this, it appears that Shri Kumar showed neither any improvement in his attitude towards his duties nor regarding attending office. This is evident from the document at Sl.No.9 dated 15.11.2010, which specifically asked him to explain his absence of 39 various dates during the months of June to October, 2010 as also the document at Sl. No.10 dated 16.12.2010 which specifically advised him to apply for leave and get it approved in advance before availing the same. Copies of all these documents were supplied to Shri Kumar along with the charge sheet but he could not explain why his tract record of last 10 years has been so bad.
18. Shri Kumars explanation that his unauthorized absence from office on various duties during the months of November, 2011 to February, 2012, as per the details given in the charge sheet was not willful and was caused due to his forgetfulness as a result of his ailments does not carry any conviction. Firstly, the doctors prescriptions copies of which have been filed by him are only prescriptions prescribing him certain medicines for restlessness, lack of sleep, nervousness and asthma. None of the prescriptions either advises him complete rest or to seek leave from office. They also do not state that he was unfit to attend the office. Therefore, these prescriptions cannot be a substitute for the medical certificate in Form-4 as per CCS (CCA) Rules, as mentioned earlier.
19. Secondly, none of the prescriptions mentions forgetfulness as a problem faced by Shri Kumar. Even the certificate obtained by Shri Kumar from Dr. Brijesh Saran on 28.02.2012, i.e., after the present charge sheet was issued to him, it has been only stated that he (i.e. Shri Kumar) has been under treatment for psychiatric problems and requires long term treatment. Such a certificate or prescription filed by Shri Kumar cannot be an excuse for remaining unauthorizedly absent from office at will, regularly and on numerous occasions, and a justification for an employees habitual, repeated and compulsive absence from office whenever he wants.
20. I also find it unusual that Shri Kumar has neither produced any bill for purchasing innumerable medicines nor any medical tests was conducted on him for 2 years. It is also surprising that despite being a CGHS card holder, Shri Kumar never consults a CGHS doctor nor obtains medicines prescribed to him through CGHS dispensary although it is evident from the number of medicines prescribed to him that for purchasing these medicines, a substantial amount of expenditure would have to be incurred.
21. It is also clear from the discussion above that Shri Shailendera Kumars absence on various dates aggregating to 42 days between 14th November, 2011 to 14th February, 2012 as mentioned in the charge sheet was not only unauthorized but was not willful. As has been seen from the record from the year 2009 onwards, Shri Kumar has been a habitual and compulsive absenter from office. Despite various actions, advices and warnings, he has not given up his habit of remaining unauthroizedly absent at will and without justification. The present spell of unauthorized absence is only a continuation of his earlier habit.
22. Therefore, after carefully considering all the evidence, I am of the view that the charge against Shri Shailender Kumar stands fully proved.
23. Submitted for further consideration to Registrar, ATFP.
6. The Disciplinary Authority forwarded a copy of the aforesaid report to the Applicant on 12.04.2012 requesting him to submit his representation, if any by 27.04.2012. However, since he has not submitted any such representation, the Disciplinary Authority proceeded to decide the matter and observed its order dated 04.05.2012 that the inquiring authority has categorically reported that the charge of remaining on unauthorized absence from duty was fully proved against the Applicant and he was satisfied that the enquiry was conducted fairly and objectively and the conclusions arrived at was reasonable. Therefore, he has imposed the major penalty of dismissal from service which shall also be a disqualification for future employment under the Government as per clause (ix) of Rule 11 of the CCS (CCA) Rules, 1965. The relevant part of the said order reads as under:-
15. His repeated unauthorized absences from offices, at least from 2009 onwards as brought by the Inquiring Authority in his report leave no doubt that he is a compulsive and habitual absenter and that he remains unauthorizedly absent from office, willfully. He has been absenting himself from office, regularly and repeatedly, at will, and in complete defiance of the rules and norms subverting office discipline completely. Even his explanation for his repeated unauthorized absences, based on medical prescriptions relied upon by him, is full of inconsistencies. Firstly, leave applications on medical ground are required to be accompanied by a medical certificate and subsequently by a medical fitness certificate at the time of resuming duty. No such certificates were filed by Shri Shailendra Kumar for any of his unauthorized absences. Secondly, despite being a CGHS cardholder, he was always consulting private doctors on the ground that it was inconvenient for him to go to CGHS dispensary and moreover the treatment in RML hospital did not bring him relief. Thirdly, as brought out by the Inquiring Authority, even the private doctors that Shri Shailender Kumar was supposedly consulting did not recommend him leave. He also could not produce any bills for purchasing medicines or any medical test reports conducted on him.
16. In nutshell, Shri Shailender Kumars absence of 42 days as described in the charge-sheet, during the period from November 14, 2011 to February 14, 2012, was unauthorized and willful not only without prior sanction of leave, it was even without prior application of leave and without even intimation to his controlling officer and for some days even no application for leave was made at all till the charge sheet was served on him. He has thus shown little regard for his duties or for office discipline or towards his superiors. His indiscipline has set a very bad example for other staff members in the office. In fact, leniency shown towards him on many occasions in the past has only emboldened him to become more reckless and callous.
17. Therefore, after carefully considering the Inquiry Authoritys report and other relevant material, I am of the firm view that Shri Shailender Kumar is unfit to remain in Government service any further.
18. Accordingly, I, the Disciplinary Authority and the Appointing Authority of Shri Shailder Kumar hereby order imposition of major penalty of dismissal from service which shall also be a disqualification for future employment under the Government as per clause (ix) of Rule 11 of the CCS (CCA) Rules.
19. The order shall take effect immediately, i.e., from the afternoon of 4th May, 2012.
7. The Applicant filed an appeal against the aforesaid order on 08.05.2012 followed by representations dated 17.07.2012 and 13.09.2012 and the Appellate Authority, vide its order dated 21.01.2013 dismissed the same. The operative portion of the said order reads as under:-
50. The departmental inquiry cannot be vitiated on hyper technical approach. It was held that the prejudice cannot be based on apprehension or even a reasonable suspicion. Learned Defense Assistant has not been able to make out the ground of prejudice even on the basis of mere apprehension or reasonable suspicion in the facts and circumstances. The appellant ought to have established the prejudice as a matter of fact. In any case, the entire inquiry proceedings and the punishment awarded to the appellant cannot be set aside merely on the basis of apprehended prejudice. The Supreme Court in para 89 of Alok Kumar vs. Union of India & ors, (2010) 5 SCC 349 had held as under:
89. The well-established canons controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice. Violations of mandatory statutory rules would tantamount to prejudice. But where the rule is merely directory, element of de facto prejudice needs to be pleaded and shown which the appellant has failed to do in the facts and circumstances of the case.
51. The punishment awarded to the appellant also cannot be termed as irrational so as to attract the doctrine of irrationality. No evidence has been led as regards the mitigation of punishment. Considering the past behaviour of the appellant and the nature of duties, the punishment of dismissal of service cannot be termed as disproportionate.
52. These pleas regarding the competence of the Register as the Disciplinary Authority; the appointment of a retired official who had been reemployed as enquiry officer; the appointment of presenting officer who was junior to the appellant and the enquiry officer ignoring all norms had not been agitated before the disciplinary authority. However, even they have been considered and have been found to be without any merit. No other plea or contentions have been raised on behalf of the appellant except which have been considered hereinabove.
53. In the facts and circumstances, the appeal and representations of the appellant against the Order no.9(3)/ATFP/2012/71 dated 4th May, 2012 are without any merit and the appeal is dismissed and the representations are rejected. The appellant is not entitled for reinstatement in the facts and circumstances. Ordered Accordingly. A copy of this order be sent to the Appellant forthwith.
8. The Applicant filed a Review Application dated 21.01.2013 under Rule 29 of the CCS (CCA) Rules, 1965 against the aforesaid order and the same was also dismissed vide order dated 19.06.2013.
9. The Applicant challenged the aforesaid orders in this Original Application mainly on the ground that the Inquiry Officer has not followed the prescribed procedure of enquiry and violated the principles of natural justice. He has also stated that he has not been allowed the benefit of Defence Assistant as he has been under treatment from the psychiatrists from the year 2010 onwards. Further he has stated that during the enquiry, not a single document has been proved by the defence witness. Further, according to him, the orders of the Disciplinary Authority, Appellate Authority and the Reviewing Authority are fraught with malice in law.
10. He has also stated that his absence from duty could not be treated as unauthorized as he was under treatment for his psychiatric problems and the Respondents were well aware of it. He has also submitted that as per the law laid down by the Apex Court on absence from duty, only the absence of willful nature would amount to unauthorized absence. Further, according to the Apex Court, when an employee was absent due to his medical condition, he cannot be treated to be on willful absence. Further, according to him, the Inquiry Officer has not considered any of the medical certificates produced by him. He has also stated that the order of the Disciplinary Authority is without any application of mind. It was issued mechanically following the report of the Enquiry Officer and not considering any of the submissions made by him. The Appellate Authority also dismiss his appeal in an arbitrary and illegal manner. He has specifically pointed out the following extraneous observations in its order:-
Such a person who is allegedly having forgetfulness as is alleged by him, can cause disastrous consequences, if he forgets to take down and type the judicial orders or part of them while taking dictations XXX XXX XXX If the delusional disorder of the Applicant brings about such a situation, the assessment on the same can only be done by a competent professional who specializes in the particular field or a Medical Board which has the support of such a specialist.
11. The Respondents have filed their reply reiterating the contents of the aforesaid orders of the Disciplinary Authority as well as the Appellate Authority. They have also stated that the order dated 14.05.2012 undoubtedly establishes that during his 17= years of service with Respondent No.2, his record has been full of memos calling for explanation for various administrative demeanors like unauthorized absence, refusal to perform duties, advice, warning and even disciplinary proceedings under CCS (CCA) Rules, 1965 leading to imposition of penalty. However, none of them had any effect on him. They have also submitted that the Applicant has not submitted any reply to the statement of article of charge, statement of imputation of misconduct before the Disciplinary Authority. Even during the enquiry, he neither disputed his absence nor even pleaded that he had applied for any advance sanction of leave but he was only stating that he was suffering from bronchitis asthma and psychological depression since 2010 and as a consequence he has been forgetful. He neither produced any certificate nor any witness during the enquiry proceedings. They have also reproduced the findings of the Inquiry Officer in their reply.
12. We have heard the learned counsel for the Applicant Shri Amit Anand and the learned counsel for the Respondents Shri S.K. Dubey. At the outset, we shall say that the slipshod manner in which the Enquiry Officer conducted himself during the course of the enquiry and the way in which the Disciplinary and Appellate Authorities have considered the report submitted by him and passed their respective orders are quite shocking. There is not even a semblance of any departmental enquiry as prescribed under CC (CCA) Rules, 1965, in this case. Even then the Disciplinary Authority, Appellate Authority and Reviewing Authority arbitrarily held that the enquiry was held in accordance with the rules and agreed with the Enquiry Officer that the charges against the Applicant was proved. Interestingly, the Disciplinary Authority is the Registrar of the Appellate Tribunal for Forfeited Property (ATFP for short) and the Appellate Authority is its Chairman. The Reviewing Authority is none other than Revenue Secretary. It cannot be considered that they were ignorant of the procedure for holding the enquiry and their duties and responsibilities as Disciplinary/Appellate/Reviewing Authorities prescribed in the CCS (CCA) Rules, 1965. The Apex Court in its judgment in State of U.P. & Others Vs. Saroj Kumar Sinha 2010 (2) AISLJ 59 has held that the departmental enquiry cannot be treated as a casual exercise. The relevant part of the said judgment reads as under:-
28. 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 Inquiry 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. 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.
13. In the same judgment, the Apex Court has also held that Since no oral evidence has been examined, the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. The sub-rule (i) of the Rule 14 of the CCS (CCA) Rules, 1965 says that no order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 thereof shall be made except after an inquiry held in the manner provided in the said rules. According to sub-rule (3) thereof, where it is proposed to hold an inquiry against a Government servant, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge and the same shall be accompanied by a list of documents and a list of witnesses by whom the articles of charge are proposed to be sustained. However, in this case even though there were 15 Prosecution Witnesses and documents have been listed but there was not a single witness to prove them. The said Rule reads as under:-
(3) where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the Disciplinary Authority shall draw up or cause to be drawn up
(i) the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained. According to the aforesaid rules, charges leveled against a delinquent officer can be sustained only with the support of the documents produced by the prosecution and proved by the concerned witnesses during the hearing before the enquiry officer. The right of the delinquent employee to cross-examine the witnesses and to rebut the allegations against him is fundamental in the enquiry proceedings. The denial of opportunity to cross examine the witnesses is a serious violation of principle of natural justice. But in the present case, there is not even a single prosecution witness to sustain the charges. Even them, the Enquiry Officer, in a perverse manner held that the charges have been proved against the Applicant. Though The Civil Procedure Code, 1908 is not strictly applicable to this Tribunal but the principle contained in the said code cannot be ignored. The Supreme Court in its judgment in the case of L.I.C. of India and Another Vs. Ram Pal Singh Bisen 2010 (3) JT (SC) 54 has held as under:-
26. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
14. The Apex Court in Kuldeep Singh Vs. The Commissioner of Police & Others JT 1998 (8) SC 603 held that there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reasons of the fact that they are not supported by any evidence on record and are wholly perverse. Again, in its judgment in Roop Singh Negi Vs.Punjab National Bank and Others 2009(2) SCC 570 the Apex Court held that mere production of documents is not enough but their contents have to be proved by examining the witnesses. The relevant part of the said judgment is as under:-
14. Indisputably, a departmental proceedings is a quasi judicial proceedings. The Enquiry Officer must be performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a find upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof.
Again the Apex Court in Modula India Vs. Kamakshya Singh Deo (1988) 4 SCC 619 held that in a disciplinary proceedings documents are the tools for the delinquent employee for cross-examining the witnesses who deposed against him. Further, the Apex Court in its judgment in the case of Hardwari Lal Vs. State of U.P.& Others 1999 (8) SCC 582 held that in a departmental enquiry proceedings examination of the material witnesses is a must. The Apex Court in the case of State of U.P. & Ors. Vs. Saroj Kumar Sinha, 2010 (2)SLJ 59 held that the function of the Inquiry Officer is to examine the evidence produced before him by the department but since only oral evidences have been examined, the documents could not have held to be proved. The relevant part of the said order reads as under:-
26..Even such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department even in the absence of the delinquent official to see as to whether the unrebatted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could have been taken into consideration to conclude that the charges have been proved against the respondents.
27. 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.
28. 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/removal from service in the case of Shaughnessy Vs. 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 20 indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.
15. Sub-rules (14) of Rule 14 of the CCS (CCA) Rules, 1965 says that on the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority and the witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The aforesaid rule reads as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
Sub-rule (17) of Rule 14 (ibid) say that after the examination and cross-examination of the Prosecution Witnesses are over, the witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. The said sub-rule reads as under:-
(17) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.
Sub-rule (18) of Rule 14 ibid contains another mandatory provision as under:-
(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.
The Apex Court in the case of Ministry of Finance and Another Vs. S.B. Ramesh 1998 (3) SCC 227 held as under:-
After these proceedings on 18-6-91 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 a 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 that as the inquiry itself was held ex parte 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.
16. However, in the present case, the Inquiry Officer has not followed any of those provisions. Instead, he not only violated all those rules but also adopted altogether a different kind of procedure not prescribed in the CCS (CCA) Rules, 1965. He has been continuously engaged himself in correspondence with the Applicant in the manner of cross examination. His report contains reference to various letters written by him to Applicant during the enquiry and the replies given to them by the Applicant. The conclusion arrived at by the Enquiry Officer in his report is also based on those correspondences between him and the Applicant. The Apex Court in the case of M.V. Bijlani Vs. U.O.I. & Others 2006 (5) SCC 88 has defined, functions, powers and duties of the Enquiry Officer which are as under:-
25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
17. Again the Apex Court in the judgment in the case of State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha 2010 (2) SCC 772 held that an Enquiry Officer acting as a quasi judicial authority is in the position of an independent adjudicator. The relevant part of the said judgment reads as under:-
26. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
27. 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.
18. Further in the judgment in the case of Narinder Mohan Arya Vs. United India Insurance Co. Ltd. 2006 (4) SCC 713 held as under:-
26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam & Anr. V. Mahendra Kumar Das & Ors.[ (1970) 1 SCC 709 : AIR 1970 SC 1255] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand V. Union of India & Ors., AIR 1958 SC 300 and State of Uttar Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi V. State of Bank of India & Ors. [ (1984) 1 SCC 43 : AIR 1984 SC 273]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh V. State of Rajasthan [ AIR 1986 SC 995] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export Inspection Council of India & Ors. Vs. Kalyan Kumar Mitra & Ors. [ 1987 (2) CLJ 344]. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. V. Prakash Chand Jain, AIR 1969 SC 983, Kuldeep Singh v. Commissioner of Police and Others, (1999) 2 SCC 10].
19. We are, therefore, of the considered view, as observed earlier, that the enquiry proceedings held by the Inquiry Officer had no semblance of the procedure prescribed in Rule 14 of the CCS (CCA) Rules, 1965. Consequently, his report that the charge against the Applicant stands proved is perverse inasmuch as that the same is not based on any valid evidence.
20. Further, it is seen that the allegation against in the Charge Memorandum is basically the unauthorized absence of the Applicant. It is a well settled principle that for sustaining such allegation it must be proved that the unauthorized absence was willful. If absence is due to compelling reasons and circumstances under which it was not possible for the delinquent to report for duty or perform duty, such absence cannot be held to be willful and the employee guilty of misconduct. In the charge sheet against the Applicant it has not been mentioned that the absence of Applicant was willful disobedience of the orders of the competent authority. In the instant case, in reply to Charge Memorandum dated 16.02.2012, the Applicant categorically informed the Disciplinary Authority that he has been taking CGHS treatment/private treatment for ailment of his depression having being suffered by him from the year 2010. He had also enclosed prescription of the CGHS and the private practitioner. He has also stated that his absence was due to his major depression (psychiatric ailment) and it was totally unintentional. When the Applicant has stated that his absence from duty was due to his psychiatric ailment, it was the duty of the Respondents to verify it referring him to the Medical Authorities/Board to find out his actual position. In spite of the aforesaid submissions of the Applicant, without verifying the factual position, the Disciplinary Authority proceeded to hold the enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965. Neither in the written statement of Article of Charge nor in the statement of imputation of misconduct in support of the Articles of Charge, the Disciplinary Authority has made any allegation against the Applicant that his absence was willful. However, the Enquiry Officer in his report dated 11.04.2012 held that 42 days of absence of the Applicant from 14.11.2011 to 14.02.2012 was unauthorized and willful. To say so, the Enquiry Officer has not even relied upon the listed documents given to the Applicant along with the Charge Memo dated 16.02.2012. On the other hand, he came to the said conclusion on the basis of the various letters issued to the Applicant by the Enquiry Officer himself on 28.03.2012 and 04.04.2012 and the replies given by the Applicant. As held earlier, even though, there was not even a single prosecution witness to prove the listed documents, the Enquiry Officer held in a perverse manner that the Charge has been proved. In this regard the judgment of the Apex Court in the case of Krushnakant B. Parmar Vs. U.O.I. and Others 2012 (3) SCC 178 is relevant and para 15 to 18 reads as under:-
15. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant.
16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
21. The Disciplinary Authority, Appellate Authority as well as the Reviewing Authority have also rejected the Applicants case based on the enquiry report which is absolutely against the principles of natural justice and the procedure prescribed in the CCS (CCA) Rules, 1965. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
22. We, in the above facts and circumstances of the case, quash and set aside the Charge Memo dated 16.02.2012, the Inquiry Officers report 11.04.2012, the Disciplinary Authoritys order dated 04.05.2012, the Appellate Authoritys order dated 21.01.2013 and the Reviewing Authoritys order dated 19.06.2013. Consequently, we direct the Respondents to reinstate the Applicant in service forthwith with all consequential benefits. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
23. Before we part with this order, we shall observe that according to the Applicant himself, he has been suffering from major depression, a psychiatric illness for quite some time. As a result he forgetting to even sent an application for leave. Desirability of keeping such a official in service is to be looked into. Therefore, the Respondents may take appropriate action other than disciplinary proceedings in the matter, if so advised.
24. There shall be no order as to costs.
(ASHOK KUMAR) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh