Central Administrative Tribunal - Delhi
Satish Kumar vs Union Of India on 29 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO. 462/2010 New Delhi, this the 29th day of July, 2011 HONBLE MR. M.L.CHAUHAN, MEMBER (J) HONBLE MR. A.K. JAIN, MEMBER (A) Satish Kumar R/o M-56, Ramakrishna Vihar, I.P.Extn., Delhi. Applicant (By Advocate: Sh. U.Srivastava) V E R S U S 1. Union of India Through Secretary, Ministry of Human Resource Development, Department of Higher Education, Shastri Bhawan, New Delhi-110001. 2. Union Public Service Commission Through its Chairman, Dholpur House, Shahjahan Road, New Delhi-110069. Respondents (By Advocate: Sh. S.M.Arif) O R D E R
Honble Sh. A.K.Jain:
This OA has been filed by the applicant for quashing and setting aside the orders dated 30.3.2009 (Annexure A/1) and 15.12.2009 (Annexure A/2) issued by the respondents awarding the penalty of removal from service and confirming it while deciding the statutory revision appeal respectively, with all other consequential benefits namely the remaining salary for the intervening period, due seniority, promotion etc. with interest too.
2. The facts of the case in brief are that when the applicant was holding the post of Section Officer in Language Coordinate Cell (LCC, for short), Department of Secondary and Higher Education, Ministry of Human Resource Development, he was suspended vide order dated 24.8.2004 (Annexure A-9 Page 133). Subsequently proceedings under Rule 14 of CCS (CCA) Rules, 1965 were instituted against him and a charge sheet was issued vide Memorandum No.C-14011/7/2004-Vig. dated 14.11.2005 (Annexure A-3) containing following charges:
ARTICLE-I
1. That the said Shri Satish Kumar, Section Officer, while posted and functioning as Section Officer, Language Coordination Cell, Department of Secondary and Higher Education, Ministry of Human Resource Development, New Delhi, during January 2004 to July, 2004, failed to maintain devotion to duty and absolute integrity as he has unauthorisedly issued letters of recognition supplying incorrect and factual information to various Universities/Institutes falling in the category of Private Deemed Universities in respect of Degree/Diplomas/Certificates awarded by them and courses conducted in the academic centres/distance education centres affiliated to those Universities/Institutes.
2. By doing such acts, Shri Satish Kumar failed to maintain absolute integrity and unauthroisedly made communications to persons without any general or special order of the Government and thus he had violated Sub-rule (i) of Rule 3 (1) and Rule 11 of CCS Conduct Rules 1964.
ARTICLE - II
3. That the said Shri Satish Kumar, Section Officer, has tampered with and caused disappearance of official documents like peon books and also attempted to mislead his Department of existence of a fictitious file No.F.3-8/2004-LCC by providing a photocopy of a page of missing peon book.
4. By doing such act Shri Satish Kumar failed to maintain absolute integrity and devotion to duty and acted in a manner which is unbecoming of a Government Servant and thus he had violated Sub-rule (i) (ii) & (iii) Rule 3(1) of CCS Conduct Rules.
ARTICLE III
5. That the said Shri Satish Kumar, Section Officer failed to intimate the department regarding his election as President of a Housing Cooperative Society styled as Anuradha Sahakari Housing Cooperative Society Ltd.
6. By the above acts Shri Satish Kumar had violated Rule 15(2) (e) of CCS Conduct Rule, 1964.
3. Enquiry was conducted by appointing an enquiry officer who concluded the enquiry on 31.7.2007 and submitted his report. The enquiry officer found all the charges against the applicant as proved. A copy of the enquiry report was served on the applicant by the disciplinary authority under Office Memorandum dated 5.9.2007 (Annexure A-4) and the applicant submitted his detailed representation against the enquiry report vide letter dated 26.9.2007 (Annexure A-5). The disciplinary authority i.e. Minister for Human Resource Development, after considering the enquiry report and the applicants representation, tentatively came to the decision to impose penalty of compulsory retirement from service and referred the matter to U.P.S.C. for advice as per rules. U.P.S.C., however, recommended imposition of penalty of removal from service. Agreeing with the advice of U.P.S.C., the disciplinary authority imposed penalty of removal from service not being a disqualification for future employment under the Government, vide order dated 30.03.2009 (Annexure A-1). Aggrieved by the imposition of said penalty, the applicant submitted a revision application (Annexure A-6) with a further request for personal hearing. It appears that a hearing was granted to the applicant and his revision application was finally rejected vide order dated 15.12.2009 (Annexure A-2). Hence, the present OA.
4. Heard the learned counsel for both the sides.
5. The main grounds on which the applicant has challenged the orders passed by the respondents can be summarized as follows:
(i) Charges leveled against the applicant are vague. Article-I of the charges states that the applicant failed to maintain devotion to duty and absolute integrity as he has unauthorisedly issued letters of recognition supplying incorrect and factual information to various Universities/Institutes falling in the category of Private Deemed Universities in respect of Degree / Diplomas / Certificates awarded by them The words incorrect and factual have opposite meaning and can not come together. It is not clear as to what the department wanted to convey. In case information was factual, the SO was authorized to supply the information independently as per Manual of Office Procedure though he took approval of the Joint Secretary. In this connection, the applicant has cited judgment of the Honble Supreme Court of India in the Government of Andhra Pradesh Vs. A.Venkata Rayudu, CA-2302/2005 decided on 31.10.2006.
(ii) It appears from the charges leveled against the applicant that there is no misconduct.
It is a case of no evidence as it appears from records namely enquiry report. With regard to Article I & III of the charges, the enquiry officer has put the burden of proof on the applicant in flagrant violation of established law as brought to the knowledge of I.O. in the defence brief and also stated at paragraph 3 of the submissions on the report of I.O. In departmental proceedings the burden to prove lies on the employer who issues the charges. Further with regard to Article II of the charges, the I.O. has specifically concluded that prosecution has not been able to produce any concrete evidence that applicant has tampered with the register and he is responsible for loss of Peon Book. But I.O. took recourse to surmises, suspicion and pre-conceived notion of guilt of the applicant and held the charge as proved against the applicant. In this connection the judgment dated 05.04.2006 of Honble Supreme Court in CA No.8267 of 2004 in the matter of M.V.Bijlani Vs Union of India has been cited by the applicant.
The disciplinary authority in its order dated 30.03.2009 did not examine nor made a mention of submission made by the applicant that the enquiry officer has breached the mandatory provision as contained in Rule 14 (18) of CCS (CCA) Rules, 1965 by not generally questioning the applicant. In this connection, applicant has relied on the judgment of Honble Supreme Court in the matter of Ministry of Finance Vs. S.B.Ramesh [AIR 1998 SC 852].
(v) Letters at Sl. 1 to 7 of Annexure III of the charge sheet are in fact replies to the letters which have been referred to therein. The same have been denied to the applicant as is clear from sub para 5 of para-1 of the daily order sheet no 5 dated 11.5.2006 of the enquiry annexed at page 19 of the rejoinder filed by the applicant. In this connection, the applicant has cited judgment of Honble Supreme Court in State of Madhya Pradesh Vs. Chintaman Sadashiva Waishampayan [AIR 1961 SC 1623].
(vi) The statement of SW-1 Sh. O.P.Pahuja has been grossly misquoted in the order dated 30.3.2009. Vital part of his statement was not discussed at all in the order to prove Article-II of the charge sheet, as has been explained in detail in the revision application dated 12.5.2009 and which has not been dealt with effectively. Attributing to a witness what he never stated is highly improper, unreasonable, illegal, unjust, arbitrary, malafide, unconstitutional, against the principles of natural justice, violative of Article 14, 16 & 21 of the Constitution and mischievous on the part of the respondents. Evidently this is on account of deep seated prejudice against the applicant.
The very basis of calling the issue of letters as unauthorised was stated to be non-existence of file 3-8/2004-LCC. Once the existence of file is proved, the basis of charge is demolished. The existence and availability of the file is established by document D.2 which is a note issued under the signature of Joint Secretary annexed at page 141 of the OA and also from the statement of SW-1 at page 136 of OA. Thus there is no ground to hold the charge as proved.
From the statement of SW-1, it is clear that there existed entry about file no. 3-8/2004-LCC in file register which was intact even after his suspension and SW-1 specifically directed staff in the section to preserve the register so that in case it becomes documentary evidence, it could be produced. This statement disproved the contents of Article II and paragraph 4 of statement of imputation of misconduct or misbehavior in support of the article of charge which was basis of Article I. In spite of the fact that someone else was custodian of register and was responsible for tampering, no action was taken against him. Again loss of peon book was reported by peon to the office The disciplinary authority has relied upon documents not adduced during enquiry, i.e. Diary Register of the Wing Registry and Dispatch Register of Central Registry. This was raised in appeal also but the appellate authority has not examined/dealt with this aspect in the order dated 15.12.2009. UPSC has also relied on the same documents while tendering advice, though it is doubtful that the same were made available to him.
As regards Article III of the charges, U.P.S.C. in its letter dated 26.11.2009 has observed that the statement of petitioner is acceptable that he had given intimation in 1998 itself (para 4.3.2 of the UPSCs letter at page 32 to 37 of the OA). In view of the observation of the UPSC, this charge fails. Moreover, no evidence has been adduced by department to prove the charge. Again there is an unexplained delay of seven years and four months on the part of the respondents in initiating action against the applicant on this count. If any action was at all to be initiated, it should have been in 1998 itself and not in November 2005. In this connection, the applicant has cited the judgment of Honble Supreme Court in P.V.Mahadevan Vs. M.D.Tamil Nadu Housing Board, CA-4901/2005 decided on 8.8.2005 and CAT, Principal Bench order in OA-2261/2009 dated 30.11.2009 in Shri Ram Vs. Union of India.
(xi) In one of the Cooperative Societies of the Ministry at least 10 persons held the elective post in August 2007. Same number of persons holds elective post in other societies too. Out of them only four persons informed of their holding office in Cooperative Credit and Thrift Society or in other societies as per information provided by Director (Administration) vide letter dated 25.3.2007 (Annexure A-4 of the rejoinder). Despite complaint received against all the officials followed by reminders, action for not informing was taken only against the applicant. This action of the respondents is discriminatory and shows bias of department against applicant. In this connection, the applicant has cited judgment of Honble Supreme Court in the case of Man Singh Vs. State of Haryana, CA No.3186/2008 decided on 1.5.2008.
(xii) The conclusion of the U.P.S.C that the charges against the C.O. were found to be proved is based on preponderance of probability. As per Sub Rule 4 of Rule 15 of CCS (CCA) Rules, penalties specified in clause (v) to (ix) of Rule 11 should be imposed on the basis of evidence adduced during inquiry. The penalty of removal, which is at clause (viii) of Rule 11, can be imposed only on the basis of evidence. The same is also not commensurate with the gravity of misconduct if any.
(xiii) The Commission in its advice dated 12.03.2009 have misquoted the SW1 or misrepresented the facts. The disciplinary authority has relied upon such misquotation /misrepresentation in the advice of the U.P.S.C. The applicant brought the untrue statements etc. in the advice of the U.P.S.C. to the notice of Chairman U.P.S.C. vide letter dated 04.05.2009 (Annexure A-9).
(xiv) The U.P.S.C. in their advice on the revision application and the competent Reviewing authority in its order have not paid any heed to and not dealt with the facts stated by the applicant in his revision application and other letters in right spirit.
(xv) The orders dated 30.3.2009 and 15.12.2009 and advice of U.P.S.C. dated 12.3.2009 and 26.11.2009 are full of bias and malice against the applicant.
(xvi) Initially the disciplinary authority imposed penalty of compulsory retirement but the same was not communicated to the applicant (Reference para 4 of MA-2550/2009 in OA-2019/2009 at Annexure A-8). The penalty imposed by the disciplinary authority was converted into removal from service vide order dated 30.3.2009. As per rules, no order enhancing the penalty imposed can be made unless Government servant concerned has been given a reasonable opportunity. The penalty in this case was enhanced without giving reasonable opportunity to applicant.
6. The respondents have submitted that on 12.08.2004, a complaint against the applicant was received from the then Director of Language Division, Ministry of HRD, inter alia, alleging that applicant had issued letters under his signature to certain Deemed to be Universities without any justification or authority, supplying incorrect information and thus violated CCS (Conduct) Rules. After preliminary enquiry he was placed under suspension and the matter was also referred to Central Bureau of Investigation for detailed enquiry. The CBI in its report dated 18.08.2005 recommended initiation of departmental proceedings against the applicant. Accordingly, disciplinary proceedings for major penalty were initiated against the applicant and charge sheet as contained in Annexure R-1 was served on the applicant. As stated in paragraph 3 above, the proceedings culminated in imposition of penalty of removal from service which would not be a disqualification for future employment in Government. The revision application of the applicant was also rejected in consultation with U.P.S.C.
7. It is further contention of the respondents that the applicant, despite opportunity provided to him, has failed to make any substantive arguments or provide any material evidence that the enquiry proceeding against him was unfair or violative of principles of natural justice. The allegations that the enquiry officer conducted the enquiry in biased, perverse and improper manner and that the orders passed by the disciplinary or reviewing authorities and the advice of U.P.S.C. are full of bias and malice against the applicant have been denied by the respondents. It has been stated that the disciplinary proceedings have been conducted strictly following the procedure prescribed in CCS (CCA) Rules, 1965 and the applicant was accorded fair opportunity. The orders of the disciplinary and reviewing authority have been passed in accordance with the Rules, after taking into account all the relevant facts including submissions made by the applicant. It is, therefore, wrong to suggest that there was denial of natural justice to the applicant. The contentions of the applicant that the case is of no evidence and that there is no misconduct have also been denied by the respondents. As regards not making some documents available, it has been submitted that the enquiry officer exercised the power to agree or disagree with the applicant on supplying additional documents in view of the facts and circumstances in each case. However, the request made by the applicant to disciplinary authority for supply of additional documents, was acceded to during the course of enquiry and the averments made by the applicant are wrong. As regards the penalty of compulsory retirement, it has been submitted that there is no provision to communicate the tentative penalty to the charged officer. Only the penalty finally imposed in consultation with UPSC is communicated to the charged officer. The other grounds as mentioned above have also been contested and/or denied by the respondents.
8. We have perused the records including the reply of the applicant to the inquiry report as well as his revision application and considered the submissions made by the parties and the case law cited.
9. The applicant has stated that the charges are vague and do not disclose any misconduct. We note that these points were not raised by the applicant in the submissions made by him during the inquiry as well as in his reply to the enquiry report or in his revision application. Moreover, on a plain reading of the charges in Annexure I and statement of imputation of charges in Annexure-II annexed with the memorandum of charges, we find that there is no lack of clarity and ambiguity in what the department wants to convey notwithstanding what the applicant has stated in one of the grounds for challenging the orders. In fact, from the reply of the applicant to the enquiry report and the revision application, it is quite clear that he understood the charges clearly. The charges relate to issuing of letters unauthorisedly, tampering with and causing disappearance of official documents and not informing the authorities about holding office in a Cooperative Society as required under the Rules. It cannot be said that these do not constitute misconduct under the Rules. It may be a different matter whether the charges are eventually proved or not proved. Thus we are not in agreement with the applicant that the charges are vague or no misconduct is there in the charges.
10. As to the ground taken by the applicant that this is a case of no evidence, he has cited the judgment in the case of M.V.Bijlani (Supra). The paragraph 25 of the said judgment reads as follows:
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 evidence 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 doubt, 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.
11. We have considered this aspect in the light of the judgment cited. We are not in agreement with the applicant that it is a case of no evidence as the decisions have been taken based on the documents and the statements of the witnesses including documents submitted by the defence. The appreciation of evidence by the applicant vis-`-vis that by the authority is a different issue. What is material is whether due consideration has been given and the decisions have been taken based on relevant facts and as per rules and procedure. The plea of shifting of burden of proof on the applicant is also based on some observations in the enquiry report but such observations can not be read in isolation. The report has to be read in totality. We are therefore not convinced of this plea of the applicant.
12. The averment that the disciplinary authority did not examine or consider submissions made by him is also not convincing. We note from the order passed by the disciplinary authority that he has referred to some submissions made by the applicant. Not recording each and every point in the order does not imply that the order has been passed without giving due consideration. The order passed by the disciplinary authority is a detailed order giving reasons and the same does not merit any interference on this ground.
13. Regarding non-supply of letters referred to in documents listed at Sl. 1 to 7 in Annexure-III of the charge sheet, we note that the applicant has relied on record in the daily order sheet no 5 of the inquiry dated 11.05.2006. In the said order sheet, at subparagraph 5 of paragraph 1 it has been mentioned that:
The department has taken a stand that some of other documents requisioned, listed at Annexure III of the Charge sheet, by the CO includes such letters which are not under custody of the organization under the control of the department and that these are not part of the list of documents by which the articles of charge are proposed to be substantiated. Hence, these may not be made available to the CO.
14. The documents referred to in sub para 5 of para 1 of the daily order sheet apparently relate to the communications received from the institutions. In the case of C. S. Waishampayan (Supra), relied upon by the applicant, the Honble Supreme Court observed as follows:
10. xxx xxx xxx It cannot be denied that when an order of dismissal passed against a public servant is challenged by him by a petition filed in the High Court under Art. 226 it is for the High Court to consider whether the constitutional requirements of Art. 311(2) have been satisfied or not. In such a case it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bona fide but that does not mean that the discretionary order passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Art. 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Courts of Law. As Venkatarama Aiyar, J. has observed in Union of India v. T. R. Varma, 1958 SCR 499 at p. 507 : ((S) AIR 1957 SC 882 at p. 885) "stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them". It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice. That is the view taken by the High Court, and in the present appeal which has been brought to this Court under Art. 136 we see no justification for interfering with it. In this connection it would be relevant to refer to the decision of this Court in Khem Chand v. Union of India, 1958 SCR 1080 at p. 1096 : (AIR 1958 SC 300 at p. 307) where this Court has emphaised the importance of giving an opportunity to the public officer to defend himself by cross-examining the witnesses produced against him.
15. The issue to be examined, therefore, is whether non supply of the said letters amounted to denial of reasonable opportunity to the applicant to defend his case and whether natural justice has been denied. The fact that the applicant issued the letters listed at Sl. 1 to 7 in Annxure III of the charge sheet has not been denied by the applicant. The charge against him is that he issued these letters unauthorisedly. In this background we do not think that the case of the applicant has been prejudiced by not supplying letters requisioned by him as mentioned above.
16. As to misquoting or misrepresenting the SW-1 on the issue whether Language Coordination Cell was dealing with references relating to clarifications regarding the recognition of degrees/ diplomas or certificates awarded by the universities, we note that this aspect has been examined by the U.P.S.C. in their letter dated 21.11.2009 (page 32 of the paper book). On perusal of the statement of SW-1, as filed by the applicant, we note that the applicant is relying on statement in response to his question whereas authorities are relying on statement made in re-examination by the P.O. As such, it clearly emerges that it is the question of appreciation of evidence, given by the SW-1 and the authorities have drawn their own conclusion. Thus it cannot be said that the statement on this count was misquoted. From the reply of the applicant to the enquiry report, it transpires that the applicant himself has stated as follows about the responsibilities of language Division.
As per list following items, inter alia, have been assigned to the language Division.
Recognition of Hindi Examinations References from BPU/CHD regarding Urdu, Sindhi Proposals Scheme of Indian language promotion Sindhi Vikas Board Taraqui-E-Urdu board CIEFL( A deemed University)
17. The letters at Annexure III of the charge sheet were sent to institutions other than in the list and the same do not also relate to the recognition of Hindi examination only. Thus it is clear that the LCC, which is a section under language Division was not assigned the subject matter referred to in the letters. As such the applicant can not be said to be authorized to issue the letters or even open the file. Another plea taken by the applicant is that the very basis of calling the issue of letters as unauthorized was stated to be non-existence of file No.F.3-8/2004-LCC and once the existence of file is proved, the basis of charge is demolished and as such, there is no ground to hold the charge. We are not in agreement with the applicant that Article 1 of the charge is only on this basis. In fact, the basis of the charge is that the applicant was not authorized to issue the letters and that incorrect information was furnished. In this background, the availability of the file or obtaining the approval of the Joint Secretary are not the main issues. In the statement of SW 1 as cited by the applicant regarding existence of the file, the witness has only mentioned about seeing the entry in the file register and not the file. Even the wing diary etc could have only indicated movement of files. In any case when the LCC was not the dealing section as discussed above, the applicant had no reasons to even entertain the letters and he should have sent the same to the concerned section. We note that after considering various aspects, the disciplinary authority has agreed with the I.O. that charge in Article 1 stands proved. In the facts and circumstances of the case, we think that no interference with this finding is called for.
18. As regards Article III of the charge, the applicant has again taken the plea that the disciplinary authority has misquoted him. He has filed copy of a note dated 01.07.1998 (Page 139) from which it clearly transpires that this was submitted when some queries were raised in the cases of GPF withdrawals by the members of the society. In the said note, the applicant clearly recorded that he slipped to send the formal information and regretted the same. Though information was with the authorities in 1998 but the same was not given as per rules and hence, we are of the view that there was violation of laid down rules in the matter of informing the authorities and the finding of the disciplinary authority that the charge stood proved can not be said to be wrong. However, we note that there is some force in the argument of the applicant that there has been long delay in initiating disciplinary proceedings on this charge when it was within the knowledge of the authorities since 1998. There is no evidence that in the intervening period, any action was taken by the authorities and also that in similar cases, many others have not been proceeded against. In this connection the judgments in the cases of P.V.Mahadevan (Supra) and the order of this Tribunal in OA No.2261 of 2009 on the issue of delay are quite relevant. However, the plea that no action was taken against some others who did not intimate is not acceptable in the absence of facts and circumstances of their cases. The facts in the case of Man Singh (Supra) are not similar to this case, as in that case two persons were initially charged for same incident and later punishment in case of one who was main accused was set aside. As such the case of Man Singh (supra) is distinguishable.
19. As regards Article-II of the charge, we note that the inquiry officer has observed in his report as follows:
The prosecution has not been able to produce any concrete evidence that Sh. Satish Kumar tampered the register and is responsible for loss of peon book. However, the question is who had necessary to motive to destroy the file, tampered with file opening register and to destroy the peon book. The circumstantial evidence quoted by the Presenting Officer and the statement of the witnesses SW II and SW III establish that Sh. Satish Kumar was involved in destruction of evidence which could have been used against him. In fact the CBI should have taken the sample handwriting of the Charged Officer and matched it with that in the fourth entry in the peon book, photocopy of which has been produced by the Charged Officer. Matching of handwriting would have conclusively proved the complicity of the charged officer. However, taking into the consideration that the C.O. was in possession of the photocopy of lost peon book (which is quite surprising) and other circumstantial evidence. I tend to agree with the Presenting Officer that the charge against the C.O. stands proved.
20. We also note that the fact that the photocopy of the peon book was produced by the applicant has been categorically denied by him. This aspect, however, does not appear to have been taken note of by the disciplinary or reviewing authority. We further note that the applicant has taken the plea that the diary register of the Wing, diary register of U-3 Section or dispatch register of Central Registry were not made available to the applicant. This article of charge has been taken as proved by the inquiry officer taking into consideration that the Charged Officer was in possession of the photocopy of the lost Peon Book and other circumstantial evidence. The disciplinary authority has also held the charge as proved based on preponderance of probabilities. We are of the view that submissions made by the applicant in respect of this Article of Charge have lot of force.
21. In this background, the point raised by the applicant in his submissions made before the disciplinary authority and in the revision application that the inquiry officer did not follow the mandatory procedure in as much as he did not comply with the provisions contained in Rule 14 (18) of the CCS (CCA) Rules, 1965 by not generally questioning the applicant is important. The Rule 14 (18) reads as follows:
14.(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.
22. There is no record in the inquiry report that the Charged Officer presented himself to be examined. In support of his contention, the applicant has cited the judgment in the case of S.B.Ramesh (Supra) in which the order of the Tribunal in the matter of imposition of penalty of compulsory retirement on the applicant was under challenge. In that case the enquiry was held ex-parte. The Tribunal in its order observed that when the enquiry 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 proceed to question him under sub rule (18) of Rule 14 of CCS (CCA) Rules. The omission to do so is a serious error committed by the enquiry authority. Upholding the order of the Tribunal, Honble Supreme Court observed that the departmental enquiry conducted in this case is totally unsatisfactory and without observing the minimum required procedure for proving the charge. The instant case is not a case of ex-parte enquiry and hence is distinguishable. In this connection, we also note that a similar provision exists in Rule 8 (19) of All India Services Discipline and Appeal Rules, 1969. In the case of Sunil Kumar Banerjee Vs. State of West Bengal and others, 1980 SCC (L&S) 369, the Honble Supreme Court, relying on the judgments in the case of K.C. Mathew Vs. State of Tranvancore-Cochin, (1955) 2 SCR 1057 and Bibhuti Bhusan Das Gupta Vs. State of West Bengal, (1969) 2 SCR 104, observed as follows:
We are similarly of the view that failure to comply with the requirements of rule 8 (19) of the 1969 rules does not vitiate the enquiry unless the delinquent officer is able to establish prejudice.
23. Though this judgment is in respect of Rule 8(19) AIS Discipline and Appeal Rules, 1969 the principle involved is the same. In the case of S.B.Ramesh, the observation that omission of not examining the charged officer under sub rule (18) of Rule 14 of CCS (CCA) Rules was a serious error, was made in the view of ex-parte recording of evidence which is not the case here. Again the observation of the Honble Supreme Court does not imply the such omissions in every case call for interference. What is to be ensured is observing minimum required procedure. The principle laid down in the case of Sunil Kumar Banerjee (Supra) is relevant to decide whether the minimum required procedure has been followed or not. In the light of these observations and discussions in the preceding paragraphs, while we are of the view that in so far as Articles I and III of the charges are concerned such non-examination has not prejudiced the case of the applicant but the same cannot be conclusively said as regards proving the Article II of the charge because the basis proving the charge in this Article is circumstantial evidence and the preponderance of probabilities.
24. It is also important to note that initially the disciplinary authority was of the opinion that the punishment of compulsory retirement be imposed on him. However, a higher penalty of removal from service was imposed on the advice of the U.P.S.C. Considering this and the observation made by us about long and unexplained delay in instituting proceeding on the charge in Article III and the observations on the charge in Article II as well as the fact that the applicant had put in long years of service, we find some force in the argument that the penalty imposed is disproportionate to the misconduct stated in the charge sheet.
25. In view of the facts and circumstances of the case and the discussion in preceding paragraphs, we are of the considered view that this is a fit case to be remanded back to the competent authority to reconsider in respect of quantum of punishment in the light of observations made in this order and to pass a reasoned and speaking order within a period of two months from the receipt of a certified copy of this order. No orders as to costs.
( A.K. Jain ) ( M.L. Chauhan )
Member (A) Member (J)
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