Central Administrative Tribunal - Allahabad
Francis Rozario Deceased Represented ... vs Indian Council Medical Research on 25 November, 2024
(Reserved on 11.11.2024.)
Central Administrative Tribunal, Allahabad Bench
Allahabad
Original Application No. 1062 of 2012
Pronounced on 25TH day of November, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Sh. Francis Rozario son of late Shri A.T. Rozario, resident of House No.
345, Chamrauli, Nikhil Garden, Police Station Tajganj, Tehsil and
District Agra (dead)
1/1 Christina Rozaria age about 47 years, W/o late Francis Rozario
House No. 34E, Nikhil Garden, Phase 1 Tajnagar, Agra.
1/2 Stephen Rozaria age about 24 years son of late Francis Rozario
House No. 34E, Nikhil Garden, Phase 1 Tajnagar, Agra.
........... Applicants
By Advocate: Sri Anil Kumar Singh/Shri Y.K. Shukla and Shri
B.N Singh
Versus
1. Union of India through its Secretary, Indian Council of Medical
Research, New Delhi.
2. Director General, Indian Council of Medical Research, V.
MANISH KUMAR Ramalingaswamy Bhawan, Ansari Nagar, New Delhi 100029.
SRIVASTAVA
3. Director, National JALMA, Institute for Leprosy & other
Mycobacterial Diseases, Post Box 1101, Tajganj, Agra 282001.
4. DR. V.M. KATOCH, Director General, Indian Council of Medical
Research, Ramalingaswamy Bhawan, Ansari Nagar, New Delhi
100029.
5. DR. KIRAN KATOCH, Director, National JALMA Institute for
Leprosy & other Mycobactrial Diseases, Post Box 1101, Tajganj,
Agra-282001.
..........Respondents
By Advocate: Shri M.B Singh
2
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) By means of present O.A., the original applicant has sought the following reliefs:-
"(i) quash the orders dated 15.12.2011 i.e., passed by the respondent No. 3 and the order dated 26.07.2012 i.e., passed by the respondent No.2;
(ii) Set aside the order of punishment, dated 15.12.2011 issued by the respondent No.3;
(iii) Restrain the respondent No.2, from further enhancing the order of punishment as proposed by order dated 14.05.2012;
(iv) Any other suitable order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;
(v) Award the cost of the application in favour of the original applicant against the contesting respondent;
2. During the pendency of this OA, the original applicant Sh. Francis Rozario passed away on 03.08.2020 and thereafter his legal representatives have been substituted in his place by way of a substitution application.
3. The brief facts of the case are that original applicant was appointed as LDV/Telephone Operator in the year 1983 in the MANISH KUMAR SRIVASTAVA respondents department. He was promoted as Upper Division Clerk in the year 2007 in the pay scale of Rs. 5200-20200/-. He was further promoted as Office Assistant in the pay scale of Rs. 9300-34800/-. Respondent No.2 suddenly after a period of 28 years of service, served a chargesheet dated 29/30.09.2011 under Rule 14 of CCS (CCA) Rules, 1965 to the applicant leveling the charge of production of fabricated graduation certificate for the purpose of obtaining government job and disobeying the orders of superior officers. Original applicant submitted a reply to the chargesheet. Thereafter the Inquiry Officer was appointed and proved the charges levelled against the original applicant. Inquiry Officer submitted his enquiry report, which was supplied to the original applicant vide letter dated 02.12.2011. In response to the enquiry report, 3 the original applicant submitted his explanation dated 12.12.2011. Based on enquiry report, disciplinary authority (respondent No.3) vide order dated 15.12.2011 accepted the recommendation of Inquiry Officer and passed the following multiple minor/major penalties:-
"Mr. Fracis Rozario, Assistant is downgraded as per CCS (CCA) Rules Rule 11
(vi) from his present post Assistant, pay scale Rs. 9300-34800 grade pay Rs.
4600/- to his post before promotion that is High Class Clerk pay scale Rs. 5200- 20200 grade pay Rs. 2400 to the initial basic pay Rs. 52000+2400 + Rs. 7600 this penalty will be imposed on permanent basis and in future he will not be promoted/appointed on the post of Assistant. Review/Revision of this order will not be done. In addition, Mr. Fracis Rozario will not be granted the annual increment for the period of 5 years. After 5 years, as per other rules and conditions of found worth then generally he would be entitled to the annual incremnet on his post High Class Clerk".
Against the order of the disciplinary authority, the original applicant filed a departmental appeal before the respondent No.2 raising several grounds. When the appeal of the original applicant was not decided within the period of 30 days, the original applicant approached the Tribunal by way of OA No. 816 of 2012. The Tribunal vide order dated 13.03.2012 disposed of the original application of the original applicant directing the respondents to decide the appeal of the original applicant. In compliance with the direction of the Tribunal, respondents decided the appeal and vide appellate order dated 14.05.2012 proposed to enhance the penalty of the original applicant to dismissal from service. In this regard proper opportunity was not given to the original MANISH KUMAR SRIVASTAVA applicant to defend his case against the enhancement of penalties. In response to the aforesaid direction of the respondents for submitting representation, original applicant submitted representation dated 22.05.2012. He also filed OA No. 2050 of 2012 before the CAT, Principal Bench, New Delhi against the order dated 14.05.2012. CAT, Principal Bench vide order dated 12.06.2012 disposed of the aforesaid OA directing the appellate authority to decide the appeal of the original applicant. Finally Appellate Authority vide order dated 26.07.2012 passed the order of dismissal from service and original applicant was disqualified for future employment under the Government which was assailed in this OA.
44. Learned counsel for the respondents sought preliminary objection regarding maintainability of the OA before this Tribunal. In this regard, it was contended that this Tribunal does not have the jurisdiction to hear the present OA as the original applicant has filed his earlier petitions before the CAT, Principal Bench and after finding that he could not get the desired reliefs, he has now approached this Tribunal with the present application. In the earlier petition, original applicant had sought similar reliefs as has been sought in this OA, thus, original applicant be tried for committing a perjury for wilfully submitting wrong information on oath before this Tribunal.
5. In reply to the preliminary objection raised by the respondents, original applicant has filed rejoinder affidavit stating therein that the original applicant approached before the CAT, Principal Bench by way of OA No. 816 of 2012 against the order dated 15.12.2011 without waiting for the decision in appeal. The said OA was disposed of by the order dated 13.03.2012 with direction to decide the pending appeal of the original applicant. In compliance with the aforesaid order, the appeal of the original applicant was decided by order dated 26.07.2012. It is further stated that as per Rule the original applicant has every right to challenge the orders before this Tribunal, hence the present original application is filed before this Tribunal which is maintainable under the law. It is next stated that the Tribunal has jurisdiction to entertain the MANISH KUMAR SRIVASTAVA present application because original applicant was residing at Agra within the territorial jurisdiction of this Bench at that time and he was no more in service on the date of filing of the O.A.
6. In reply to the OA, learned counsel for the respondents has filed counter affidavit wherein it has been stated that the original applicant joined the office of respondent No. 3 in the year 1983 as Telephone Operator. The minimum qualification for the job was Intermediate. Thereafter the post of Telephone Operator was converted to the category of LDC. The original applicant was promoted as UDC on 1.9.1994. The original applicant was further promoted to the post of 5 Office Assistant in the year 2007. It is also submitted that on 5.7.2010, original applicant submitted B.A. certificate before the respondent No. 3 for the purpose of keeping it into the service records. In the year 2010, one post of Accounts Officer was advertised in the department. The essential qualification required was that of a Bachelor's Degree with experience of Accounts etc. The original applicant submitted his application for the post of Accounts Officer on 20.09.2010 which included his bio-data and marksheet of Graduation. After investigation, it was found forged. It is next submitted that original applicant has committed grave misconduct by submitting the forged documents/mark sheet for seeking career advancement. It is further submitted that considering the seriousness of the misconduct, report of Inquiry Committee and other acts of commission and omission, the competent authority has rightly awarded the penalty of dismissal from service.
7. In reply to the counter affidavit, original applicant has filed rejoinder affidavit negating the contentions as made in the counter affidavit while reiterating the averments as already advanced in the OA. It is stated that during the enquiry proceedings, the original applicant demanded copy of complaint, personal file, name of witnesses and one month time to produce the documents but the same was not provided and Inquiry Officer arbitrarily proved the charges. The Disciplinary Authority (Dr. Kiran Katoch) due to malafide intentions made MANISH KUMAR conspiracy against the original applicant. She has falsely implicated SRIVASTAVA making allegations against the original applicant to produce false graduation certificate to obtain the appointment of Accounts Officer because the original applicant had denied to take responsibility for misappropriation of Rs. 50 lacs of Department fund misappropriated by respondent No. 3. It is next submitted that respondent No. 3 with a malafide intention did not take any heed to the requests of the original applicant. Alleged marksheet of the year 1983 has not been submitted by him and it is a conspiracy hetched as the original applicant had completed his intermediate in the year 1982. Allegation leveled against the applicant is impossible act and is based on no evidence.
68. Reply affidavit to rejoinder affidavit has also been filed by the respondents wherein it is submitted that the charges levelled against the original applicant are very serious and the punishment imposed on him is commensurate to the gravity of offence committed by him, therefore, Appellate Authority has come to the conclusion that punishment of dismissal from service is appropriate and fully justifiable considering the gravity of proven charges regarding submission of forged certificates for attempting to gain service benefits, misleading the institute. It is further submitted that the original applicant had attested the marksheet by putting his signatures and claiming it to be a true and authentic document. It is next argued that the enquiry proceedings have been carried out in due compliance of law and the original applicant was given ample opportunity before the authorities concerned to present his case. Original applicant was also granted an opportunity of personal hearing to present his case before the competent authority.
9. We have heard Shri Anil Kumar Singh and Shri Rohit Singh, learned counsel for the original applicant and Shri M.B Singh learned counsel for the respondents and perused the record.
10. Submission of learned counsel for the original applicant is that it MANISH KUMAR is a no evidence case. Prosecution miserably failed to adduce any sort of SRIVASTAVA evidence in support of charges levelled against the original applicant. It is further argued that the charge-sheet was served upon the original applicant on 29/30.09.2011. No opportunity for filing the reply to the charge-sheet was given to the original applicant. Inquiry Officer was appointed on the same date, which is against the law. It was further argued that documents relied upon by the enquiry officer in the enquiry report have not been supplied to the original applicant. It is next argued that procedure prescribed for conducting the departmental proceedings under Rule 14 of CCS (CCA) Rules have not been followed in this matter. Referring to the chargesheet, it was argued that although several documents were mentioned as list of documents in support of the 7 charges but the same have not been put/placed during the enquiry to its denial or admission. Inquiry Officer has also relied upon the investigation report conducted before supply of the charge-sheet but the fact finding enquiry report have not been supplied to the original applicant. It is also argued that straightway original applicant was examined in this matter on the first day of enquiry on the basis of inadmissible evidence. Original applicant was held guilty and was punished. Referring to the punishment imposed by the Disciplinary Authority, it was also argued that for a single charge multiple punishment have been imposed upon the original applicant, which is not permissible under the law. Alleged misconduct does not come under the definition of misconduct. Original applicant has not taken any benefit with the said document to which respondents states a fake and forged document. It was next argued that original copy of the said marksheet had lost and in this regard, an information had been given to the police station concerned. Someone conspiring with the authority concerned had placed the fake and forged documents on the reord which was never supplied to the original applicant during enquiry. It is also argued that original applicant has approached twice before the Tribunal and a specific direction was given to the authority concerned to decide the appeal in accordance with law but the Appellate Authority ignoring the direction given in the OA summarily rejected the plea taken by the original applicant. It was also argued that punishment imposed upon the MANISH KUMAR SRIVASTAVA original applicant is exorbitant and disproportionate, there was no occasion to enhance the punishment imposed upon the original applicant. It is also argued that enquiry was concluded without appointing a presenting officer, which also vitiates the entire departmental proceeding. Provision of Rule 14 (18) of CCS (CCA) Rules have not been followed, which is mandatory. Merely on this basis that original applicant has been convicted in the criminal case, inquiry Officer cannot ignore the procedure prescribed under Rule 14 of the CCS (CCA) Rules for conducting the enquiry. Thus, referring to the finding arrived at by the Inquiry Officer, Disciplinary Authority as well as Appellate Authority, learned counsel for the original applicant states that original applicant was held guilty on the basis of conjecture and 8 surmises, thus, argued to allow the OA and to set aside the orders challenged in this OA. Learned counsel for the original applicant placed reliance on the following case laws:-
"(i) State of Madhya Pradesh Vs. Bani Singh and another reported in AIR 1990 SC 1308;
(ii) Ch. Appala Reddy Vs. Eastern Power Distribution reported in 2005 (3) ALD 525;
(iii) Satish Kumar Badawa Vs. Union of India and others decided in OA No. 907/2013 on 11.12.2023 by CAT, Allahabad Bench;
(iv) Tapesh Chaudhary Vs. Director General CRPF New Delhi decided in WPS No. 3314 of 2011 on 07.03.2024 by Hon'ble High Court of Chhattishgarh, Bilaspur;
(v) Hardwari Lal Vs. State of U.P and others decided on 27.10.1999 by Hon'ble Supreme Court; (complete cituation not given nor found on the Internet)
(vi) State of U.P and others Vs. Saroj Kumar Sinha decided in Civil Appeal No. 254 of 2008 on 2.2.2010 by Hon'ble Supreme Court;
(vii) Roop Singh Negi Vs. Punjab National Bank and others decided in Civil Appeal No. 7431 of 2008 on 19.12.2008 by Hon'ble Supreme Court;
(viii) Dr. M.K. Singh Vs. Union of India and others decided in OA No. 515 of 2010 on 26.05.2023 by CAT, Allahabad Bench;
11. Learned counsel for the respondents argued that original applicant had applied for the post of Accountant against the advertisement made in the matter. He had annexed a graduation marksheet/certificate which was found forged document on the verification from University concerned. On several occasions, original applicant was served with show cause notice but he did not give MANISH KUMAR SRIVASTAVA satisfactory reply thereafter a chargesheet was served upon him and enquiry was concluded in accordance with law. It is also argued that there is sufficient evidence against the original applicant that he had applied for the advertised post i.e. Accountant and he has submitted a forged document. On direction given to him to file original, he did not submit the original copy of the marksheet/certificate. It was also argued that department had verified the said marksheet/certificate from the University concerned but specific report was given by the University authority that said marksheet/certificate had never been issued. An FIR was also lodged on behalf of the University against the original applicant, criminal case was also registered. Original applicant was 9 punished. It was also argued that if enquiry has been concluded without appointing a Presenting Officer, the enquiry report and the other proceedings will not vitiate on this simple ground. It is also argued that during enquiry, CO has been examined, thus, there is no violation of the Rule 14 (18) of CCS (CCA) Rules. Since chargesheet was served upon the original applicant on the basis of documentary evidence, thus, there was no necessity to adduce oral evidence. It was further argued that while issuing the chargesheet, 10 days time had been allowed to the original applicant to submit the reply. CO has also submitted reply and thereafter Inquiry officer was appointed and enquiry was concluded, thus, there is no deviation from the provision provided for conducting the enquiry under the CCS (CCA) Rules. It was next argued that enquiry was started when the fact came to the knowledge regarding submission of forged documents. Argument of learned counsel for the original applicant that enquiry has been started after a gap of 28 years is false as the original applicant had submitted forged documents in the year 2010 thereafter show cause notice and other proceeding have been started. Before supply of the chargesheet to the original applicant, a preliminary enquiry has also been conducted wherein a prima facie case against the original applicant was found. Punishment imposed upon the original applicant is not disproportionate since the Disciplinary Authority has imposed meager punishment, thus, appellate authority has rightly issued notice to impose heavy penalty upon the original MANISH KUMAR SRIVASTAVA applicant. Since the original applicant's reply was not satisfactory, therefore, appellate authority has rightly issued the punishment of dismissal. Authorities have acted in accordance with the law, thus, there is no illegality or perversity in the impugned orders, OA is not liable to be allowed. Learned counsel for the respondents has placed reliance on following case laws:-
(i) Union of India and others Vs. Ram Lakhan Sharma reported in AIR 2018 Supreme Court 4860;
(ii) Bank of India and another Vs. Avinash D. Mandivikar and others reported in AIR 2005 Supreme Court 3395;
(iii) Narendra Kumar Tripathi Vs. State of U.P and others reported in AIRONLINE 2021 ALL 271;10
(iv) H.R. Somappa Vs. Union of India and Ors. reported in 2004 (1) SLJ171 (CAT);
(v) UOI and ors. Vs. Pradeep Kumar Modwill and others decided on 19.08.2013 in WP(C) No. 2850 and 2854 of 2011;
(vi) Sunny Abraham Vs. Union of India and others decided on 30.06.2011 in OA No. 228/2010 by CAT, Ahmedabad Bench;
12. We have considered the rival submission and have gone through the entire records including the written submissions submitted by the parties and also the case laws relied upon by the parties carefully.
13. In this matter as is evident from the record, a chargesheet has been served upon the original applicant on dated 29/30.9.2011 and in the chargesheet itself it has been mentioned that reply be submitted within 10 days. Perusal of record also reveals that reply has been submitted by the original applicant on dated 10.10.2011. Para 2 of the memorandum dated 29/30.09.2011 reads as under:-
"2. Mr. Francis Rozario is hereby directed to produce a written evidence in his defence within a period of 10 days of receipt of this letter and also clarify that whether he wants to say something by making his presence".
14. On serving of the chargesheet, it appears that enquiry was started, no presenting officer has been appointed in this matter. Inquiry Officer MANISH KUMAR SRIVASTAVA himself has acted as Presenting Officer. Perusal of record also reveals that statement of the charged official has been recorded on dated 24.10.2011 itself. No oral evidence on behalf of the prosecution to support the allegation levelled in the matter or to prove the document relied upon by the Inquiry Officer has been adduced. It is also evident from the record that disciplinary proceedings has been started in the year 2011, The allegation levelled against the original applicant detected in the year 2010 itself. Inquiry Officer was of the view that original applicant has submitted forged document for obtaining the post of Accountant. It also appears that on the verification of the document said to have been submitted by the original applicant it was found forged but the said document as well as report submitted by the University 11 concerned have not been produced,proved and exhibited during enquiry. Other documents disclosed in the chargesheet have also not been proved or exhibited during enquiry. Enquiry has been concluded relying upon the evidence collected before starting the disciplinary proceedings or supply of the chargesheet.
15. Before discussing the submissions raised across the bar in the aforesaid factual background, we find it necessary to quote the relevant portion of the case laws relied upon by the parties.
16. In Bani Singh (supra) case, Hon'ble Supreme Court has quashed the disciplinary proceeding as well as chargesheet on the ground of unexplained and inordinate delay. In the present matter from the perusal of record, it reveals that submission of forged marksheet was elicited in the year 2010. Disciplinary proceeding has been started in the year 2011 itself. Thus, in our considered opinion there is no delay in initiating the disciplinary proceeding against the original applicant. No benefit could be extended to the original applicant with the law laid down by the Hon'ble Supreme Court in Bani Singh (supra) case.
17. In Ch. Appala Reddy (supra) case, Hon'ble Andra Pradesh High Court has set aside the orders under challenge on the ground that no opportunity to explain the allegation leveled against the charged official MANISH KUMAR SRIVASTAVA was given to him. If the law laid down in this case is compared with the facts of the present matter, it clearly emerges that in the memorandum itself it has been provided that reply to the chargesheet be given within 10 days. In fact original applicant has availed the said opportunity and has submitted the reply to the chargesheet.
18. In Satish Kumar Badawa (supra) case, subsequent order of punishment imposed upon the charged official was quashed on the ground that during currency of the first punishment, same cannot be enhanced.
1219. In Tapash Choudhary (supra) case in paras 11 to 13 Hon'ble Chhattisgarh High Court has held as under;-
"11. In light of the above decisions, if the facts of the present case are seen, it is clear that here also the Enquiry Officer conducted the whole enquiry and acted as Presenting Officer. From the evidence of witnesses GD Pintu and GD B. Boro it is clear that the Enquiry Officer cross- examined both the witnesses and thus, acted as a prosecutor. cross-exan The appellate authority while deciding the appeals of the petitioners also did not consider this aspect of the matter as also the other grounds raised by the petitioner.
12. Having regard to the facts and circumstances of the case, keeping in mind the principles of laid down in the above-referred decisions and the manner in which the whole departmental enquiry was conducted against the petitioner where major penalty of removal from service was imposed on the petitioner, which necessarily requires a fair and impartial enquiry and proper opportunity of hearing to the delinquent, the impugned orders being not sustainable in law are liable to be set aside.
13. In the result, the impugned orders dated 4.8.2010, 3.3.2011, 27.7.2010 and 14.2.2011 are hereby set aside. The respondent authorities are directed to reinstate the petitioners with all consequential benefits including 30% back-wages. However, liberty is reserved with the respondents to conduct departmental enquiry against the petitioners for the alleged misconduct from the stage of appointment of Presenting Officer, in accordance with law".
MANISH KUMAR SRIVASTAVA
20. In Hardwari Lal (supra) case Hon'ble Supreme Court observing that enquiry was not properly held, quashed the orders passed by the Disciplinary Authority as well as Appellate Authority and directed to reinstate in service the charged official.
21. In Saroj Kumar Sinha (supra) case, in para 34 Hon'ble Supreme Court has held as under:-
"34 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 13 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".
22. In Roop Singh Negi (supra) case in para No. 17 the Court has held as under:-
"17. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The material is brought on record pointing out the guilt are required to be proved. A decision must be arrived att on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence".
23. In Dr. M.K. Singh (supra) case Tribunal quashed the order passed by Disciplinary Authority on the ground that provision given in Rule 14 (18 ) of CCS (CCA) Rules have not been complied with
24. In Ram Lakhan Sharma (supra) case in paras 27, 28, 29, 30, 31 MANISH KUMAR SRIVASTAVA and 32 Hon'ble Supreme Court has held as under:-
"27. When the statutory rule does not contemplate appointment of Presenting Officer whether non-appointment of Presenting Officer ipso facto vitiates the inquiry? We have noticed the statutory provision of Rule 27 which does not indicate that there is any statutory requirement of appointment of Presenting Officer in the disciplinary inquiry. It is thus clear that statutory provision does not mandate appointment of Presenting Officer. When the statutory provision does not require appointment of Presenting Officer whether there can be any circumstances where principles of natural justice can be held to be violated is the broad question which needs to be answered in this case. We have noticed above that the High Court found breach of principles of natural justice in Inquiry Officer acting as the prosecutor against the respondents. The Inquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceed to act in a manner as if he is interested 14 in eliciting evidence to punish an employee, the principle of bias comes into place.
28. Justice M. Rama Jois of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. vs. K. Kasi, ILR 1987 Karnataka
366. In the above case the order of domestic inquiry was challenged before the Labour and Industrial Tribunal. The grounds taken were, that inquiry is vitiated since Presenting Officer was not appointed and further Inquiry Officer played the role of prosecutor. This Court held that there is no legal compulsion that Presenting Officer should be appointed but if the Inquiry Officer plays the role of Presenting Officer, the inquiry would be invalid. Following was held in paragraphs 8 and 9:
"8. One other ground on which the domestic inquiry was held invalid was that Presenting Officer was not appointed. This view of the Tribunal is also patently untenable. There is no legal compulsion that Presenting Officer should be appointed. Therefore, the mere fact that the Presenting Officer was not appointed is no ground to set aside the inquiry See :
Gopalakrishna Reddy v. State of Karnataka (ILR 1980 Kar 575). It is true that in the absence of Presenting Officer if the Inquiring Authority plays the role of the Presenting Officer, the inquiry would be invalid and this aspect arises out of the next point raised for the petitioner, which I shall consider immediately hereafter.
9. The third ground on which the Industrial Tribunal held that the domestic inquiry was invalid was that the Inquiry Officer had played the role of the Presenting Officer.
The relevant part of the findings reads :
"The Learned Counsel for the workman further contended that the questions put MANISH KUMAR SRIVASTAVA by the Enquiry Officer to the Management's witnesses themselves suggest that he was biased and prejudiced against the workman. There has been no explanation as to why no Presenting Officer was appointed and as to why the Enquiry Officer took upon himself the burden of putting questions to the Management witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the Management's witnesses by the defence, the Enquiry Officer has further put certain questions by way of explanation, but from their nature an inference arises that they are directed to fill in the lacuna. The Learned Counsel for the Management contended that the Enquiry Officer has followed the principles of natural justice and that the domestic enquiry is quite valid. I am of the view that the fact that the Enquiry Officer has himself taken up the role of the Presenting Officer for the management goes to the root of the matter and vitiates the enquiry,"15
As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice. But the question for consideration in this case is : Whether the Inquiry Officer did so ? It is also settled law that an Inquiring Authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiring Authority questions the witnesses, the inquiry proceedings cannot be impeached as unfair. See : Munchandani Electric and Radio Industries Ltd. v. Their Workman."
29. This Court had occasion to observe in Workmen of Lambabari Tea Estate vs. Lambabari Tea Estate, 1966 (2) LLJ 315, that if Inquiry Officer did not keep his function as Inquiry Officer but becomes prosecutor, the inquiry is vitiated. Following was observed:
"The inquiry which was held by the management on the first charge was presided over by the manager himself. It was conducted in the presence of the assistant manager and two others. The enquiry was not correct in its procedure. The manager recorded the statements, cross-examined the labourers who were the offenders and made and recorded his own statements on facts and questioned the offending labourers about the truth of his own statements recorded by himself. The manager did not keep his function as the enquiring officer distinct but became witness, prosecutor and manager in turns. The record of the enquiry as a result is staccato and unsatisfactory."
30. A Division Bench of the Madhya Pradesh High Court speaking through Justice R.V. Raveendran, CJ (as he then was) had occasion to consider the question of vitiation of the inquiry when the Inquiry Officer starts himself acting MANISH KUMAR SRIVASTAVA as prosecutor in Union of India and ors. vs. Mohd. Naseem Siddiqui, ILR (2004) MP
821. In the above case the Court considered Rule 9(9)
(c) of the Railway Servants (Discipline & Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated the seven well recognised facets in paragraph 7 of the judgment which is to the following effect:
"7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets:
(i) The adjudicator shall be impartial and free from bias, (ii) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator, 16
(iv) A witness cannot be the Adjudicator,
(v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges, (vi) The Adjudicator shall not decide on the dictates of his Superiors or others, (vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated."
31. The Division Bench further held that where the Inquiry Officer acts as Presenting Officer, bias can be presumed. In paragraph 9 is as follows:
"9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Inquiry Officer is in position of a Judge or Adjudicator. The Presenting Officer is in the position of a Prosecutor. If the Inquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as the prosecutor. When the Inquiry Officer conducts the examination-in- chief of the prosecution witnesses and leads them through the facts so as to present the case of the disciplinary authority against the employee or cross- examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently, the Inquiry Officer cannot be said to have an open mind. The very fact that he presents the case of the employer and supports the case of the employer is sufficient to hold that the Inquiry Officer does not have an open mind."
32. The Division Bench after elaborately considering the issue summarised the MANISH KUMAR SRIVASTAVA principles in paragraph 16 which is to the following effect:
"16. We may summarise the principles thus:
(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter 17 permit the delinquent employee to cross-examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may."
25. First submission on behalf of the original applicant is that no opportunity to deny the fact disclosed in the chargesheet have been given to him. Inquiry officer was appointed on the day of supplying the chargesheet itself. We have perused minutely the memorandum of chargesheet annexed with the OA and we find that chargesheet was supplied on dated 29/30.09.2011 and in this chargesheet, it has specifically been mentioned that within 10 days reply to the chargesheet MANISH KUMAR SRIVASTAVA be submitted. If such is the position, submission raised on behalf of the original applicant is not acceptable. Opportunity to file the reply has been given to him.
26. As far as delay occurred in initiation of the departmental proceeding as has been argued by the learned counsel for the original applicant is concerned, we also find that disciplinary proceeding has not been started after a gap of about 28 years rather submission of forged/fake marksheet was detected in the year 2010 and thereafter respondents have started proceeding by calling explanation as well as supplying of the chargesheet initiating disciplinary proceedings, thus, as 18 has been held herein above, law laid down in Bani Singh (supra) case is not applicable in the present matter.
27. As far as appointment of presenting officer is concerned, enquiry could be concluded without appointment of Presenting Officer, non- appointment of the Presenting Officer in the enquiry proceeding ipso facto does not vitiate the enquiry. Only requirement is that the Inquiry Officer should not act as the Prosecutor nor any leading question must be asked by the Inquiry officer from the witnesses. Thus, it is to be seen whether the Inquiry Officer has acted as Prosecutor thereby vitiating the enquiry. In this matter as is evident from the record that enquiry was initiated after obtaining the reply from the charged official. Enquiry has been concluded without appointing Presenting Officer. No oral evidence has been adduced on behalf of the prosecution in support of the charges levelled against the CO. Delinquent employee has been examined by the Inquiry officer on dated 24.10.2011 (the first day of enquiry) wherein several questions have been put by the Inquiry Officer from the witness concerned but from the perusal of statement of the delinquent employee, it cannot be held that Inquiry officer has acted as Prosecutor asking suggestive questions, thus, mere non-appointment of Presenting Officer is not vitiating the enquiry. No benefit can be extended to the original applicant with the law laid down by the Hon'ble Supreme Court in Ram Lakhan Sharma (supra) case.
MANISH KUMAR SRIVASTAVA
28. Before discussing the other issues raised by the parties, we find it useful to quote the relevant provisions of Rule 14 of CCS (CCA) Rules, 1965:-
"14. Procedure for imposing major penalties (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour 19 against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
Explanation.-- (i) Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the disciplinary authority.
(ii) Where the disciplinary authority appoints a retired Government servant as inquiring authority, any reference in sub-rule (7) to subrule (20) and in sub-rule (22) shall include such authority.
(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 imputations 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. MANISH KUMAR (4) (a) The Disciplinary Authority shall deliver or cause to be delivered to the SRIVASTAVA Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article or charges is proposed to be sustained. (5) (a) On receipt of the articles of charge, the Government servant shall be required to submit his written statement of defence, if he so desires, and also state whether he desires to be heard in person, within a period of fifteen days, which may be further extended for a period not exceeding fifteen days at a time for reasons to be recorded in writing by the Disciplinary Authority or any other Authority authorised by the Disciplinary Authority on his behalf: Provided that under no circumstances, the extension of time for filing written statement of defence shall exceed forty-five days from the date of receipt of articles of charge. 5 (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring 20 authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 15.
(b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under subrule (2), an inquiring authority for the purpose.
(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge.
Explanation- For the purposes of this rule, the expression 'Government servant' includes a person who has ceased to be in Government service. (6) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority-
(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour;
(ii) a copy of the written statement of the defence, if any, submitted by the Government servant;
(iii) a copy of the statements of witnesses, if any, referred to in sub-rule (3);
(iv) evidence proving the delivery of the documents referred to in sub-rule (3) to the Government servant; and
(v) a copy of the order appointing the "Presenting Officer". (7) The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the articles of charge and the statement of the MANISH KUMAR imputations of misconduct or misbehaviour, as the inquiring authority may, by SRIVASTAVA notice in writing, specify, in this behalf, or within such further time, not exceeding ten days, as the inquiring authority may allow.
(8) (a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but Central Civil Services (Classification, Control and Appeal) Rules, 1965 15 may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits; Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits.
21(b) The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf.
(9) If the Government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon. (10) The inquiring authority shall return a finding of guilt in respect of those articles of charge to which the government servant pleads guilty. (11) The inquiring authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence:
(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3);
(ii) submit a list of witnesses to be examined on his behalf;
(iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3). (12) The inquiring authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, MANISH KUMAR with a requisition for the production of the documents by such date as SRIVASTAVA may be specified in such requisition:
Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.
(13) On receipt of the requisition referred to in sub-rule (12), every authority having the custody or possession of the requisitioned documents shall produce the same or issue a non-availability certificate before the Inquiring Authority within one month of the receipt of such requisition:
Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the Inquiring Authority accordingly and the Inquiring Authority shall, on being so informed, communicate the information to the Government 22 servant and withdraw the requisition made by it for the production or discovery of such documents.
(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 reexamine 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. (15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary, in the interests of justice.
(16) When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the MANISH KUMAR record. In either case, a copy of the statement of defence shall be given to SRIVASTAVA the Presenting Officer, if any, appointed.
(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. (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. (19) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the 23 Government servant, or permit them to file written briefs of their respective case, if they so desire.
(20) If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte".
29. Now the question is whether there is legally admissible evidence adduced on behalf of the prosecution. Perusal of the enquiry report reveals that the whole enquiry proceeding was conducted on two occasions; firstly on 24.10.2011, secondly on 18.11.2011. Statement of the charged official was recorded on 24.10.2011. Inquiry report itself reveals that no evidence in support of the charges leveled against charged official have been adduced on behalf of the prosecution. Whichever documents have been relied upon in the enquiry report by the Inquiry Officer have not been produced during the enquiry nor the same were proved as required under law by examining the concerned witnesses. Even the report submitted by the University concerned on the said forged marksheet has also not been proved. Opinion has been formed by the Inquiry Officer on the basis of document collected before initiation of the enquiry. Proper procedure as required under Rule 14 of CCS (CCA) Rules is that all those documents to which enquiry officer intend to rely must have been proved during enquiry, the same could MANISH KUMAR SRIVASTAVA only be done if the said documents are produced during the regular enquiry and the same are admitted or denied by the witnesses.
30. Perusal of inquiry report also reveals that on the very first date of inquiry proceeding i.e. 24.10.2011 the chargd official has been examined by the Inquiry Officer. Several questions have been asked from him. Since in written reply submitted on chargesheet applicant has denied all the charges, therefore, there was no occasion to examine the charged official at this stage before prosecution evidence. It appears that Inquiry Officer taking recourse to the provison of Sub Rule 9 of Rule 14 of CCS (CCA) Rules 1965 has recorded the aforesaid statement. After 24 start of disciplinary proceeding and on submission of reply to the chargesheet prosecution evidence at first shall be adduced. Perusal of record also reveals that no opportunity to the charged official as required under Sub Rule 16 of Rule 14 of CCS (CCA) Rules has been given. Statement of charged official recorded on dated 24.10.2011 can also not be considered as compliance of Sub Rule 18 of Rule 14 of CCS (CCA) Rules 1965 as same is mandatory in view of law laid down by Hon'ble Supreme Court in Ministry of Finance and another Vs. S.B. Ramesh reported in 1998 AIR (SC 853. It appears that Inquiry Officer without following the procedure presecribed under Sub Rule 14, 16 and 18 of Rule 14 of CCS (CCA) Rules 1965 has concluded the enquiry hodling guilty to the charged official relying upon the inadmissible evidence and sole statement of charged official recorded under Sub Rule 9 of Rule 14 of CCS (CCA) Rules 1965. It is also clarified that CO has not admitted his guilt in the statement dated 24.10.2011. A fair procedure for conducting the enquiry have not been followed. Sufficient opportunity to defend the case has not been given to the charged official. Prosecution has not produced the document during enquiry for its denial or admission but same have been relied upon by the Inquiry Officer. Incrementting material relied upon by the Inquiry Officer have also not been put before the charged official to explain. Mere conviction in criminal case started against the applicant is not sufficient to ignore the flaw and latches occurred in dsiciplianry proceeding. Whole enquiry MANISH KUMAR SRIVASTAVA proceedings are vitiated and it goes to the root of the matter. Perusal of the enquiry officer also clearly reveals that no single efforts have been made on behalf of the Inquiry Officer to adduce prosecution evidence rather Inquiry Officer has relied upon those documents which were collected before initiation of the enquiry proceeding. Perusal of enquiry report also reveals that enquiry report is based on only the answer given by the charged official in the statement dated 24.10.2011 recorded during the enquiry. It is a case of no evidence case. Thus, this case is squarely covered with the law laid down by the Hon'ble Supreme Court in Roop Singh Negi (supra) case. Opinion formed by the Inquiry Officer is based on inadmissible evidence and also on the basis of conjectures and surmises, thus, whole enquiry proceeding are vitiated and orders 25 passed by the Disciplinary Authority as well as appellate authority are illegal and are not sustainable.
31. In view of the aforesaid deliberation mentioned herein above and in view of decisions of Hon'ble Supreme Court, we are of the view that OA is liable to be allowed. Accordingly, OA is allowed. Impugned orders dated 15.12.2011 passed by the respondent No. 3, order dated 26.07.2012 passed by the respondent No.2 and order of punishment, dated 15.12.2011 issued by the respondent No.3 are hereby quashed. Respondents are hereby directed to give all consequential benefits to the heirs of original applicant treating the original applicant in service till his death/superannuation. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. No orders as to costs. All associated MAs are disposed of.
(Mohan Pyare) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish
MANISH KUMAR
SRIVASTAVA