Delhi High Court
Hitender vs Union Of India And Ors on 17 November, 2014
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7661/2014, 7604/2014, 7580/2014
Reserved on: 5/10.11.2014
Decided on : 17.11.2014
IN THE MATTERS OF :
HITENDER ..... Petitioner in
WP(C) No.7661/2014
AJAY KUMAR ..... Petitioner in
WP(C) No.7604/2014
VIKRANT ..... Petitioner in
WP(C) No.7580/2014
Through: Mr. Aviral Dhirendra, Advocate
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Anil Soni, CGSC with
Mr.Nagendra Benipal, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
1. By this common judgment, the Court proposes to decide all the three cases as the facts are more or less similar and the grievance of the petitioners are identical. For ready reference, the facts of the case in WP 7661/2014 are being referred to.
2. The present petition has been filed by the petitioner praying inter alia for quashing and setting aside the show cause notice dated 10.06.2013 and the order dated 27.01.2014 issued by the Regional W.P.(C)7661/2014 & connected matters Page 1 of 10 Director (NR) of the respondent No.2/Staff Selection Commission (in short 'SSC'), whereunder he was informed that his candidature in the Combined Recruitment for Assistant Grade III in General, Depot, Technical and Accounts Cadre and Hindi Posts (AG-II) in the Examination, 2012 held for respondent No.3/FCI was cancelled and he was debarred for a period of three years from the Commission's examinations.
3. Briefly stated, the facts of the case are that on 29.10.2011, a Combined Recruitment for Assistant Grade-III in the General Depot, Technical and Accounts Cadres and Hindi Posts (AG-II) in the Examination, 2012 to be held for the respondent No.3/FCI, was notified by the respondents No.1 and 2/SSC in the Employment News. As per the petitioner, he possessed the educational qualifications stipulated in the advertisement and had submitted an application for participating in the examination. Learned counsel for the petitioner had stated that the examination was to be held in three parts, the first stage was of the written examination, then the successful candidates were to participate in the Computer Proficiency Test (CPT) and finally, the shortlisted candidates were to appear for the personal interview.
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4. It is the case of the petitioner that he had qualified in the written examination and was provisionally called by the respondents No.1 and 2/SSC to appear in the CPT that was scheduled for 18.06.2012. The petitioner had duly participated in the said test and was awaiting the results. However, on 10.06.2013, the respondents No.1 and 2 issued a notice to show cause to the petitioner stating inter alia that experts had been engaged to scrutinize and analyze the performance of the candidates in the objective type multiple choice question papers and in the course of the said analysis undertaken in respect of the written examination papers in Paper-II/Paper III, "incontrovertible and reliable evidence" had emerged to the effect that he had resorted to unfair means by indulging in copying, in association with some other candidates who also sat for the examination. The petitioner was called upon to reply to the show cause notice within ten days explaining inter alia as to why his candidature should not be cancelled and why should he not be debarred for five years from appearing in the examinations conducted by the Commission on account of having indulged in unfair means in the aforesaid examination.
5. Upon receipt of the aforesaid notice to show cause, the petitioner had submitted a reply on 21.06.2013, wherein he denied the charges leveled against him.
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6. In the impugned order dated 27.01.2014, the respondents No.1-2/SSC took note of the submissions made by the petitioner and proceeded to cancel his candidature in the said examinations by observing that there was "incontrovertible and reliable evidence"
discovered against him during the post-examination scrutiny and analysis. Further, it was decided to debar the petitioner for a period of three years from participating in the examinations conducted by the respondent No.1/Commission.
7. Aggrieved by the aforesaid decision taken by the respondents No.1-2/SSC, the petitioner had approached the Central Administrative Tribunal, Principal Bench, New Delhi, by filing OA No.1588/2014. However, since the matter related to the respondent No.3/FCI, does not fall in the jurisdiction of the Tribunal, vide order dated 18.09.2014, the petitioner was permitted to withdraw the aforesaid petition and thereafter, he has filed the present petition on 05.11.2014.
8. The main plank of the arguments advanced by learned counsel for the petitioner to assail the impugned notice to show cause dated 10.06.2013 and the order dated 27.01.2014 passed by the respondents No.1 and 2/SSC was that neither the notice to show cause, nor the impugned order mentions the evidence which has been described as "incontrovertible and reliable" that had purportedly W.P.(C)7661/2014 & connected matters Page 4 of 10 emerged during the scrutiny and analysis of the written examination, to enable the petitioner to offer a worthwhile explanation or offer a valid defence. Learned counsel contended that in the absence of any material particulars supplied to him by the respondents, the petitioner was not in a position to file a proper reply to the notice to show cause.
9. Learned counsel for the petitioner informed the court that the issue raised in the present petition came up for consideration before the Division Bench in W.P.(C) 7416/2013 entitled SSC and Ors. vs. Rakesh Kumar Yadav. In the said case, the court had the occasion to examine two notices to show cause issued by the SSC to the respondent therein in respect of a Combined Graduate Level (Tier-II) Examination, 2011. The said notices to show cause had alleged inter alia that the candidates including the respondent therein had indulged in malpractices. The respondent had filed a reply to the two notices issued by the SSC, wherein he stated that it was not disclosed as to what was the nature of the unfair means alleged to have been adopted by him while taking the said examination, without responding to the objections taken by the respondent. Vide order dated 19.06.2012, the SSC had proceeded to cancel his candidature and had debarred him from participating in any examination conducted by the Commission for a period of four years.
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10. Aggrieved by the said decision taken by the SSC, the aforesaid respondent had approached the Central Administrative Tribunal for appropriate relief by filing a petition, which was duly allowed. The petitioner/SSC in the aforecited petition had then filed an appeal against the decision of the Tribunal that came up before the Division Bench of this Court and was dismissed vide order dated 26.11.2013, with an observation that as per the charges leveled against him in the show cause notice, the alleged unfair means used by the respondent therein were never revealed to him and in the absence of the said information, he was not in a position to effectively reply to the notice to show cause.
11. A copy of the aforesaid order dated 26.11.2013, passed by the Division Bench in W.P.(C) 7416/2013 was handed over by learned counsel for the respondent in court who stated that the said order has attained finality. The facts of the present case are identical to those decided by the Division Bench in the aforecited case to the extent that in both the case, the notices to show cause are bereft of any material particulars as to the nature of unfair means allegedly adopted by the candidates.
12. While dealing with a matter relating to the dismissal of a government employee, in Biecco Lawrie Ltd. v. State of W.B., reported as (2009) 10 SCC 32, the Supreme Court had laid W.P.(C)7661/2014 & connected matters Page 6 of 10 emphasis on following principles of natural justice and on the aspect of issuing an effective notice to show cause, the following pertinent observations were made:
"24. It is fundamental to fair procedure that both sides should be heard--audi alteram partem i.e. hear the other side and it is often considered that it is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. One of the essential ingredients of fair hearing is that a person should be served with a proper notice i.e. a person has a right to notice. Notice should be clear and precise so as to give the other party adequate information of the case he has to meet and make an effective defence. Denial of notice and opportunity to respond result in making the administrative decision as vitiated. (emphasis added)
25. The adequacy of notice is a relative term and must be decided with reference to each case. But generally a notice to be adequate must contain the following:
(a) time, place and nature of hearing;
(b) legal authority under which the hearing is to be held;
(c) statement of specific charges which a person has to meet."
13. A perusal of the impugned notice to show cause dated 10.06.2013 bears out the submission made by learned counsel for the petitioner that the same does not disclose the manner in which the petitioner had allegedly resorted to unfair means when sitting in the W.P.(C)7661/2014 & connected matters Page 7 of 10 subject examination. On account of failure on the part of the respondents No.1 and 2/SCC to specify the material available with it, the petitioner would not have been in a position to give a reply in a proper manner and defend himself effectively and respondent No.1 and 2, proceeded to pass the impugned order dated 27.01.2014, cancelling the petitioner's candidature in the subject examination, 2012 and debarring him for a period of three years from participating in the Commission's examinations.
14. Learned counsel for the petitioner is justified in submitting that when the petitioner was never confronted with the relevant material available with the respondents No.1 and 2/SSC to substantiate its stand that it had "incontrovertible and reliable evidence" against him in its possession, which it had gathered on the basis of the analysis and scrutiny of the written examination purportedly conducted with the help of experts, how could the respondents expect the petitioner to have furnished a satisfactory reply to the notice to show cause issued by the Commission. It was incumbent for the respondent No.2/Commission to have first disclosed the material available with it to substantiate the charges leveled against the petitioner and only thereafter, could the petitioner have been in a position to submit a reply to the show cause notice by taking all the defences that may have been available to him.
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15. A perusal of the impugned notice to show cause reveals that no mention has been made therein as to the nature and details of the material that the SSC had come upon for initiating any action against the petitioner for allegedly resorting to malpractices during the examination. When the petitioner was not even confronted with the details of the case made out against him, how could he be expected to respond effectively? Having failed to furnish the explicit material in the power and possession of the respondents for arriving at a conclusion that there was sufficient evidence to indict the petitioner, it has to be held that the principles of natural justice have been grossly violated by them and the entire procedure of affording an adequate opportunity of hearing to him, was reduced to an empty formality.
16. In view of the aforesaid facts and circumstances, this Court is of the opinion that the impugned notice to show cause dated 10.06.2013 and the order dated 27.01.2014 passed by the respondent No.1 and 2/SSC are not sustainable in the eyes of law and resultantly, the same are quashed and set aside. However, if the respondents do have sufficient material available with them to establish that the petitioner had resorted to unfair means in the examination in question, then they shall be at liberty to issue a fresh notice to him along with all the relevant information available with them, to substantiate their allegations and the petitioner shall be entitled to file W.P.(C)7661/2014 & connected matters Page 9 of 10 a reply thereto. The said reply shall be considered and decided by the respondents in accordance with law, under written intimation to the petitioner.
17. All the three petitions are allowed and disposed of on the above lines, while leaving the parties to bear their own costs.
(HIMA KOHLI)
NOVEMBER 17, 2014 JUDGE
rkb/mk
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