Central Administrative Tribunal - Lucknow
J.P. Mishra vs Union Of India Through The Controller ... on 4 January, 2012
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
LUCKNOW BENCH,
LUCKNOW.
Original Application No. 444 of 2005
This the 4thday of January, 2012
Honble Mr. Justice Alok Kumar Singh, Member-J
Honble Mr. S.P. Singh, Member-A
J.P. Mishra, Aged about 49 years, S/o Sri Gaya Prasad Mishra, Senior Auditor A/c No. 8319410 O/o PAO (Ors). DRC, Faizabad, R/o 2/11/20 Naya Purwa, Faizabad
. Applicant
By Advocate : Sri Praveen Kumar
Versus.
1. Union of India through the Controller General of Defence Accounts, Ministry of Defence, Government of India, West Block-V, New Delhi.
2. Principal Controller of Defence, Accounts Central Command, Lucknow.
.Respondents.
By Advocate : Sri Vishal Choudhary
O R D E R
By S.P. Singh, Member-A This O.A. has been filed by the applicant with the following relief(s):
(i) issue order/direction/command quashing the impugned orders dated 27.10.2004 and 17.5.2005 as contained in Annexure nos. 1 & 2 with all consequential service benefits.
(ii) Any other relief deemed just and proper in the circumstances of the case with cost of O.A. in favour of applicant.
2. The case of the applicant is that he has been working since 16.5.1978 with the respondents and presently is Senior Auditor. He has been served with a chargesheet under Rule 14 of CCS (CCA) Rules 1965 vide memo dated 20.5.2003 on the basis of following charges:
Charge no. 1.
Sri J.P. Mishra S.A/A/c No. 8319410 while serving in the office of PAO (QRS) DRC , Faizabad has entered into second marriage while his first wife is still alive as verified by District Magistrate, Gonda and he has not sought divorce from his Ist wife from any court of law.
Thus, Sri J.P. Mishra S.A/A/c No. 8319410 by this act has acted in a manner unbecoming of a Government servant thereby infringing the provisions of rule 21(2) of CCS (Conduct) Rules, 1964.
Charge no. II.
Sri J.P. Mishra S.A/A/c No. 8319410 while serving in the O/o PAO (QRS), DRC, Faziabad submitted false death certificate of his wife while his wife Smt.Seema Mishra is still alive as verified by the District Magistrate, Gonda. He has also unauthorisedly deleted/altered/over written entries made in the service book under his initials and made revised entries of second marriage with Smt. Shashi Kiran. Thus, Sri J.P. Mishra, S.A/A/c No. 8319410 by this act has acted in a manner unbecoming of Government servant thereby infringing the provisions of rule 3(1)(i) & (iii) of CCS Conduct Rules, 1964.
It is said that Annexure nos. 1 to 6 of the Chargesheet have not been signed by any officer and Annexure nos. 1 to 6 have not been authenticated under signature of Principal Controller of Defence Accounts or any other officer authorized in this behalf by the President of India. Thus, the chargesheet on the basis of which enquiry was held and punishment of compulsory retirement was imposed is illegal and void ab-initio. The copies of the documents listed in Annexure no.3 to the chargesheet were demanded vide letter dated 9.6.2003 which was denied vide letter dated 20.6.2003 (Annexure-4). In respect of penalty, it is said that the Joint Controller of defence, who signed the memorandum dated 10.5.2003 is not empowered to impose the penalty under Rule 11 of CCS (CCA) Rules, 1965. It is said that the show cause notice has not been issued by the disciplinary authority (PCDA) himself and it has been issued illegally by Deputy CDA. The punishment has been imposed on the basis of photocopies of the documents listed in Annexure no.3 to the chargesheet, which were never confirmed by any state witness. The letters of District Magistrate, Gonda dated 13.2.2002 and 20.2.2003, which is item no.1 in Annexure no.3 to the chargesheet were never produced, in original, for inspection, nor filed in original and no state witness was produced to prove the authenticity of photocopy of these letters, therefore, taking cognizance of such documents is illegal. More-over the contents of the letter indicates that the death of Smt. Seema Mishra , Ist wife of the applicant is doubtful since conclusive findings about living of Smt. Seema Mishra were not given in the report of District Magistrate, Gonda, nor Smt. Seema Mishra , if alive was produced before the Enquiry Board to clear the above doubt. In spite of fact that the opportunity to submit written statement of defence was denied, the disciplinary authority hurriedly appointed Enquiry Officer and Presenting Officer. The applicant also submitted before the Enquiry Officer the affidavit of son Sri Arun Prakash, S/o Sri J.P. Mishra/late Seema Mishra and her death certificate issued by the appropriate competent authority (Annexure nos. 9 & 10). This death certificate issued by the competent authority has not been cancelled so far by any higher authority and it is supported by her son and hence it is duly proved. None on behalf of the Inspector LIU/District Magistrate, Gonda appeared before the Enquiry Officer to prove the documents/reports, which were never produced, in original. Similarly, in respect of charge no.2 pertaining to alleged alteration of entries in his service book, it has been said that the applicant has never entered any entry in his service book and it was never produced before the Enquiry Officer. The applicant raised all these points before the Appellate authority and also sought personal hearing alongwith his Defence Assistant. He is hard of hearing and used the hearing aid but services of Defence Assistant were denied. He produced eight documents in defence, genuineness of which was duly verified by the PO/EO. But the Enquiry Officer did not take cognizance of any documents. It is also surprising that the entire proceedings were initiated without any complaint from Smt. Seema Mishra, who had already died on 3.2.1989. The daily order-sheet dated 3.11.2003 does not indicate that the original documents were shown. The Superintendent of Police, Gonda submitted his report on 27.3.2003 enclosing therewith a copy of LIU report dated 24.3.2009 indicating therein that late Smt. Seema Mishra is residing with her son Arun Prakash Mishra in Village Belwa Basundhara, P.S. Kotwali, Dehat, Gonda. But Sri Arun Prakash Mishra has given an affidavit alongwith death certificate (Annexure 9 & 10) stating on oath that Smt. Seema Mishra, her mother died on 3.2.1989. The enquiry report of Superintendent of Police, Gonda submitted enquiry on the complaint dated August, 2002 made by Sri Ajai Kumar Shukla, S/o late Sri Laxmi Narain Shukla, R/o 2/11/11 Naya Purwa, Jamthara Road, Thana Cantt., Faizabad. It has been filed as Annexure no.17 alongwith the report of Superintendent of Police as Annexure no.18.
3. The O.A. has been contested by the respondents by filing Counter Reply denying the averments made in the O.A. It has been said on behalf of the respondents that the chargesheet dated 25.5.2003 (Annexure-3) was duly signed by Joint Controller of Defence (AN) who is competent authority as per SRO no. 43 dated 31.1.2001 (Annexure- CA-1). Its annexures were not required to be signed. However, the applicant was given full opportunity to inspect the documents during course of enquiry as required under CCS (CCA) Rules, 1965. Initially i.e. immediately after issue of chargesheet but before initiation of enquiry proceedings, the delinquent officer need not be shown the documents to enable him to prepare his defence statement in reply to the chargesheet, therefore, his request for providing copies of listed documents was denied. Photocopy of Government instructions no. 25 of Rule 14 of CCS (CCA) Rules, 1965 in this regard has been enclosed as Annexure no. CA-2 (This Annexure also shows that in order to cut down delays in the disposal of disciplinary cases, the Department of Personnel & A.R. had suggested that copies of all documents relied upon and the statements of witnesses cited on behalf of the disciplinary authority be supplied to the Government servant alongwith chargesheet wherever possibleG.I. Central Vigilance Commission letter no. IQ/DSP/3 dated 19th June, 1987 circulated by Home Department, Chandigarh Administration under endorsement dated 25.8.1987). The original listed documents were provided to the applicant for inspection and he has not raised any objection at that time. He signed the daily order-sheet no.2 dated 3.11.2003 (Annexure CA-6) without any protest. Besides, the Photocopies of listed documents were provided to the applicant. The Enquiry Officer found the charges proved on the basis of documentary and oral evidences produced during the enquiry. The reports dated 13.2.2002 and 20.2.2003 proved that the Smt. Seema Mishra is alive and the death certificate dated 9.6.2001 issued by the Village Pradhan is doubtful. Therefore, personal appearance or statement of Smt. Seema Mishra was not required. The applicant submitted his written statement of defence dated 14.7.2003 wherein he denied the charges levelled against him. According to Rule 14(12) of CCS (CCA) Rules, 1965 the Enquiry Officer refused to summon the documents at sl. No.3 of letter dated 7.11.2003 because it was written by the applicant himself and he could not show any relevancy of this document. It is mentioned in the letter of District Magistrate dated 20.2.2003 that the SDM, Gonda had stated that the death certificate was shown to Village Pradhan Bansudhra and his written statement was taken on 30.8.2000 in which he stated that Smt. Seema Mishra is alive and also said that his signature on the death certificate is forged one. The report of SDM, Gonda dated 7.11.2001 has also been changed and forged investigation report has been forwarded. The Enquiry Officer also observed that there are two investigation reports of the same officer and bears the same date, but contrary to each other. This proved that the whole issue has been made out of sheer conspiracy. The report of LIU Gonda dated 23.3.2003 is a defence document also part of enquiry as D-7 which has been duly analyzed by the Enquiry Officer. The applicant confirmed in writing on order-sheet no.2 dated 3.11.2003 (Annexure CA-6) that he had altered the service particulars when the service book was given to him for perusal. If family particulars were required to be changed, he could have submitted fresh family particulars to the office instead of making deletion/alteration over writing of existing entries. He was granted personal hearing alongwith his Defence Assistant on 5.4.2005, which he failed to attend. He was granted another opportunity on 6.5.2005 which he attended alongwith his Defence Assistant. Photocopy of acknowledge dated 21.4.2005 given by the applicant has been enclosed as Annexure no. CA-8. The applicant was also permitted to obtain enquiry report of DG. Police U.P., Lucknow on his request as mentioned in the daily order sheet no.6 dated 5.4.2004 (Annexure CA-9), but he failed to submit the same. Smt. Seema Mishra, the first wife of the applicant, was an interested party as she wanted to save her husband s job, therefore, the complaint from her side was not required. The applicant himself submitted that he did not want to produce remaining defence witnesses and he signed the daily order sheet without any protest on 1.7.2004. Out of three defence witnesses only witness i.e. Pandit Siddnath Pandey appeared on 1.7.2004 and the applicant himself submitted that he does not want to produce remaining defence witnesses. Sri Ram Narain Pandey, Regional Lekhpal, had stated in his report that Smt. Seema Mishra is alive which has been confirmed by the residents of Smt. Seema Mishras native village Manjha Tarhar Mishranpurwa Thana Kotwali Dehat, Gonda and her relatives Sri Prem Nath Mishra (father), Sri Chandra Mani Mishra (Brother), Sri Ishwar Shoran (Brother) in their written statements that Smt. Seema Mishra is alive and residing with her son Arun Prakash Mishra.
4. The applicant filed Rejoinder Reply reiterating all the averments made in the O.A. and further emphasized that the reports dated 13.2.2002 and 20.2.2003 are only photocopies of which original were never produced before the Enquiry Officer or shown to the applicant. More-over none of the state witnesses proved the photocopy to be true and genuine. Neither Pradhan of the Village Bansudhra was examined, nor Ram Narain Pandey, Regional Lekhpal has been produced before the Enquiry Board for proving their version and for cross examination. Photocopies of the documents are not admissible under rules. None of the residents of village Bansudhra were produced to prove their version.
5. A Supplementary Counter Reply has also been filed on 28.3.2009. The respondents have stated therein that the Government of Indias order no. 25 below rule 14 deals with supply of copies of all documents relied upon and statement of witnesses cited on behalf of disciplinary authority alongwith chargesheet. According to the said provision, the delinquent official need not be shown the original documents at the stage of issuing the chargesheet to enable him to prepare his defence statement as the statement of defence to be submitted by Charged official is limited to either admitting or denying the charges. In this connection, the extract from the advice of Ministry of Law therein is reproduced below:
The scheme of Rule 14 of the CCS (CCA) Rules, is somewhat different from the scheme contained in Rule 15 of 1957 Rules. The scheme contemplates that the statement of defence submitted under sub-rule (5) (a) may be limited to admitting or denying the charges communicated to the officer. For such admission of denial, inspection of document is not necessary. However, the applicant was given full opportunity to inspect the original listed documents during enquiry. Thus, there is no contravention of the rules as well as principles of natural justice. The documents at sl. No.3 was not accepted by the Enquiry Officer as in his opinion the document at sl. No.3 was written by the charged official himself/copy of that is already in his possession. The applicant never stated that the copy of the said document has been lost during enquiry. The daily order-sheet no.3 dated 3.12.2003 is enclosed as Annexure no. SCA-3.
In para 9 of Supplementary Counter Reply, the respondents have pleaded that as per SRO no. 43 dated 31.3.2001, the Dy. CDA, ADA and even Senior AO has been empowered to sign the papers relating to disciplinary proceedings.
The contents of Supplementary Counter Reply have not been controverted by the applicant by filing any Supplementary Rejoinder Reply.
7. The relevant paras of Ordersheet nos. 2, 3, 5, 6, 8 and 9 are as under:
Ordersheet no.2
1. xxxxxxxxxx
2. xxxxxxxxxx
3. xxxxxxxxxx
4. The IO read out statement of Article of Charges and statement of imputation of misconduct in support of article of charges framed against Sri J.P. Mishra, SA A/c no. 8319410 to confirm that he has understood the charges and confirm his acceptance or otherwise.
(i) The CO denied the Article of Charge-I in toto
(ii) The CO denied the Article of charge-II.
However, CO had accepted the Article of charge-II to the extent that he has altered the service particulars when the service book was given to him for perusal,with the consent of the then officer who had given the service book for perusal. These confirmations were given by the CO in writing also (copy is enclosed).
5. The IO directed the PO to get the listed documents as mentioned in Annexure-III, inspected by the CO. PO had got the listed documents inspected by the CO and also confirmed to the IO that copies of all the listed documents have also been provided to the CO as requested by him.
6. The IO decided to fix another date for the hearing with a direction to CO to ensure his attendance in the proceedings of the inquiry alongwith his DA, if he so desires, as already directed by the IO. The IO further directed the CO that he should also furnish the following information to the IO by 20.11.2003.
7. xxxxxxxxxxx Order-sheet no.3
1. xxxxxxxxxxxxx
2. CO had failed to clarify the relevance of additional document at Srl. No. (3). More-over document at srl. No.(3) was written by CO himself /copy of that is already in his possession, hence IO rejected the demand for additional document at srl. No.(3).
3. CO pleaded for some time to go through additional documents made available to him by the PO during the proceedings , today to enable him to demand other additional documents if required and also give list of defence witnesses.
4. IO had directed the CO to give the list of additional documents, if any, & list of defence witnesses with full details & their relevancy on or before 24.12.2003.
5. xxxxxxxxxx Order-sheet No. 5
1. xxxxxxxxxxx
2. In compliance of para 3 of DOS No. 4 dt. 15.1.2004 CO furnished the details of additional documents asked for by him vide his letter dated 19.1.04 (copy enclosed). Additional document was admitted by the IO. IO asked the PO to make available the copy of application dt. 8/2002 and investigation report, if any. Copy of application dated 8/2002 handed over to the CO by the PO. PO further started that application dt. 8/2002 is just a reminder to earlier applications and investigation report dt. 24.3.2003 submitted by SP, Gonda, vide their letter dated 27.3.2003 has already been handed over to CO. CO has also confirmed the receipt of the same.
3. xxxxxxxxxx
4. xxxxxxxxxx
5. xxxxxxxxxx Order-sheet no.6:
1. xxxxxxxxx
2. Application dated 15.3.2004 (copy enclosed) submitted by the CO was considered by IO and it has been decided by IO to permit the CO to produce the referred inquiry report, as defence document on or before 20.4.2004.
3. IO and PO kept on waiting for the CO who failed to appear today. CO also did not inform about his inability to appear in the inquiry proceedings.
4. xxxxxxxxx Order-sheet no.8
1. xxxxxxxxxxxxxxx
2. Charged officer submitted an application dated 7.6.2004 (copy enclosed) requesting some more time for producing the inquiry report (referred to in para 2 of DOS no.7 dt. 19.4.2004). The facts brought out in the application were examined by the IO and it was decided by the IO not to allow further time for producing the said inquiry report since CO had failed to produce the said document in time despite sufficient time being allowed to the CO.
3. The list of defence witnesses, as given by the CO vide his application dt. 01.032004 (para 3 of DOS no.5 dated 1.3.2004) have been examined and it has been decided by the IO to admit all the three defence witnesses.
4. xxxxxxxxxxx
5. xxxxxxxxxxx
6. xxxxxxxxx Order-sheet no.9
1. xxxxxxxx
2. Charged Officer submitted an application dated 1.7.2004 enclosing investigation report (referred to in para 2 of DOS 8 dt. 7.6.2004)( copy enclosed.
3. The defence document (referred to in para 2 above) was admitted by the IO and brought on record as exhibit no. D-8.
4. The preliminary hearing stands completed.
5. Since there are no prosecution witnesses, the case stand closed from prosecution side.
6. Pandit Siddhnath Pandey, S/o late Sri Rameshwar Pandey, defence witness appeared today. He was examined/cross examined and statement is marked as exhibit DW-8.
7. The following defence witnesses who were admitted by the IO, failed to appear today. The CO submitted to the IO that he does not want to produce remaining defence witnesses and case may be closed from his side.
(i) Sri Jagdish Prasad Pandey S/o late Sri Ram Sanjivan Pandey
(ii) Sri Hari Dutt Dubey
8. IO asked the CO whether he would like to appear as a witness, CO submitted that he does not want to be examined as witness. CO was examined generally by the IO.
9. The case is closed from the defence side.
10. PO is directed to submit his written brief (in triplicate) to the IO on before 12.7.2004 with a copy of the CO. CO is directed to submit his written brief to the IO within 10 days from the date of receipt of brief from the PO. PO and CO are directed to ensure timely submission of their briefs.
8. From the pleadings above, admittedly disciplinary proceedings for imposition of major penalty were initiated against the applicant for the charges listed in memorandum of charges dated 20.5.2004. Since the charged official denied the charges in his written objection of defence dated 14.7.2004, an inquiry was held. The Inquiry Officer found both the articles of charges as proved. The analysis of evidence of the Inquiry Officer in this regard are reproduced below:
Article-1 (I) During examination, DW-1 has stated that :-
He does not know the first wife of Sri J.P. Mishra. He had heard some Baaratis saying that due to circumstances second marriage is being held. During examination he also stated that he does not know anything about the family of Shri J.P. Mishra.
From the deposition of DW-1 it is clear that he himself is not sure whether Seema Mishra is alive or expired.
(II) As per LIU, Gonda report vide their letter No. LIU/Check/03 dated 24.3.2003, Smt. Mishra is alive and residing with her son Shri Arun Prakash Mishra in Village-Bandhusra Thana-Kotwali, Gonda.
(III) It has been stated by the CO in his defence (D-3/2) that this case was cooked up against him out of sheer conspiracy by Shri Ram Prasad, the then In-Charge of PAO (ORs), DRC, Faizabad, on the plea that outsiders do not know the names of the officers proves that it is a cooked up case against the CO. This argument, however, is not based on logic.
(IV) The plea made by the CO in his written brief that all the documents are photocopies and prosecution could not get these documents confirmed during the inquiry and therefore, taking cognizance of these documents is not judicious is not based on any logic. During the course of inquiry CO was given reasonable opportunity to inspect the documents. CO did not raise any doubts regarding the veracity of documents neither at the time of inspection of documents nor during the course of inquiry proceedings.
(v) The contention of the CO that the death certificate (S1) of Seema Mishra, issued by Pradhan, Gram Panchayat Bandhusra, wherein death of Seema Mishra has been shown to be on 3.2.1989,is not forged & doubtful as stated by the prosecution side without any supporting evidence, does not hold any logic. It may be seen from document S-1(ii)/2, that it has been stated by the SDM, Gonda, that the said death certificate (S-1)was shown to village Pradhan, Bandhusra and his written statement was taken. He has stated in his statement dated 30.8.2000 that Smt. Seema Mishra, W/o Shri Janardhan Prasad Mishra is alive and she is the first wife of Shri J. P. Mishra, and she has only one son. He has also stated that his signature on the death certificate is forged one. However, subsequently, he gave an application saying that his statement was taken under pressure. Thus, statements of village Pradhan are contradictory and unreliable and has no significance. The veracity of death certificate (S-1) is doubtful/questionable due to following facts brought out in the SDM Gonda report [S-1(ii)/2].
Shri Ram Karan Pandey, Regional Lekhpal, has stated in his report that Smt. Seema Mishra W/o Shri J. P. Mishra is alive.
It has been stated by the SDM, Gonda that on the basis of facts which emerged during the course of inquiry, it is clear that Smt. Seema Mishra, W/o Shri J. P. Mishra, is alive and the death certificate of Smt. Seema Mishra is doubtful.
(vi) It may be seen from document D-7, that it has been reported by LIU Gonda, that it has been confirmed by the residents of Village-Belwa Bandhusra, that Smt. Seema Mishra is residing in Village Belwa along with his son Arun Kumar Mishra, however, they refused to give any written statement.
It has also been confirmed by the residents of Smt. Seema Mishras native Village-Manjha Tarhar Mishranpurwa, Thana-Kotwali Dehat, Gonda and her relatives Shri Prem Nath Mishra (Father), Shri Chandra Mani Mishra (Brother), Shri Ishwar Saran (Brother) in their written statements that Smt. Seema Mishra is alive and residing along with her son Arun Prakash Mishra in the Village Belwa Bandhusra.
Shri Shyam Lal Mishra, Shri Raj Bahadur and Shri Shivchandra Mishra, have stated that Smt. Seema Mishra is alive and she had visited the Village- Manjha Tarhar Mishranpurwa, two months ago. It has also been reported by LIU Gonda that Shri J. P. Mishra, is staying with his second wife Smt. Shashi Kiran in Faizabad.
During the Inquiry CO, has, however, failed to disprove the facts brought out in above para.
Article-2 From the facts brought out above, in support of Article-1, it is clear that the death certificate submitted by the CO is false. CO has also failed to prove the veracity of the death certificate during the inquiry.
The CO had accepted the charge to the extent that he has altered the service particulars when the service book was given to him for perusal, with the consent of the officer who had given the service book for perusal. This was confirmed by the CO in writing also. (DOS No. 2 dated 3.11.2003 refers). During the Inquiry CO did not tell the name of the officer who had authorized him to alter the service particulars. Even, if, family particulars were required to be corrected, fresh family particulars should have been given rather than deleting/altering /over writing the existing ones. On basis of examination of all the documents and the witnesses produced during inquiry, I.O. found the charges as proved based on analysis of evidence as stated above.
9. The Disciplinary Authority accepted the Inquiry Report and served one copy of the Inquiry Report to the charged official in terms of Rule-15 of CCS (CCA) Rules 1965 for making representation against the inquiry report, if any. The charged official submitted his representation dated 27.9.2004 as required by the disciplinary officer. The charged official mainly contended before the disciplinary authority as under:-
(i) That inquiry report is not based on proper assessment of evidence adduced during the course of inquiry. There is no evidence adduced during inquiry.
(ii) That original listed documents were never produced by PO in spite of repeated request by him.
(iii) That the genuineness of listed documents was not verified by the concerned relevant prosecution witnesses as no witness was listed in Annexure-IV of the charge sheet. Thus the findings recorded by Inquiry Officer are totally incorrect, baseless, without any ground and evidence and have no leg to stand.
(iv) The Inquiry Officer passed illegal orders against the provisions of Rule 14 of CCS (CCA) Rules, 1965 about supply of all relevant additional documents for which a list was submitted vide application dated 9.6.2003 and 6.11.2003. Refusal and not making documents available to him by Inquiry Officer amounts denial of opportunity and natural justice.
(v) Only photocopies of listed documents were produced. The genuineness of those alleged photocopies of these documents was also not proved/certified by any prosecution witness.
(vi) Inquiry Officer did not take any cognizance of defence documents filed by him.
(vii) There is no complaint from Smt. Seema Mishra and how the case was initiated and completely proved. The entire fabrication was manipulated by Shri Ram Prasad, In-charge PAO (Ors) ORC Faizabad.
(viii) Death certificate dated 20.5.2003 indicating death of Smt. Seema Mishra was prepared by competent authority i.e. Panchayat Secretary. The death certificate submitted by an other incompetent authority is not valid.
(ix) The Inquiry Officer has relied upon the report of LIU while proving the charges against him while no such document was listed in Annexure III to the charge sheet nor any P.W has proved the same.
(x) Neither Seema Mishra was produced before Inquiry Officer nor her statement was recorded.
(xi) Death certificate issued by Panchayat Officer has neither been challenged nor proved fake during inquiry.
(xii) No report about deleting/altering/overwriting entries in the service book was made by any officer-in-charge of service book. Same was not produced and proved by the prosecution witness during inquiry. And whereas the undersigned has considered the above submissions made by Sri J.P. Mishra, SA A/c no. 8319410 in the context of disciplinary proceedings and finds that the statement made by the CO in para 2(i) above is not correct because inquiry report is based on the evidence adduced during inquiry as listed as S-1 to S-3 & D-1 to D-8. COs plea at para 2 (ii) is also not correct as CO has inspected the documents and raised no objection (refer DOS No.2). The plea made by the CO at para 2 (iii) is misconceived hence denied. During the inspection of listed documents, CO has never raised this issue & signed the daily order sheet no.2 without protest. The plea advanced at para 2 (iv) by the CO is also not correct. Agreeable to Rule 14 (12)of the CCS (CC&A) Rules, 1965, IO may refuse to requisition such of documents, as are, in the opinion, not relevant to the case. Besides the document called for by the CO in his letter dated 9.6.2003 which were listed document produced during the inquiry and additional documents called in letter dated 7.11.2003 were allowed except serial no.3 which was a letter written by the CO himself whose relevancy could not be given by the CO. Although the death certificate which was enclosed with the letter has already produced as D-6 during inquiry. The contention of the CO at para 2 (v) is not correct as listed documents were provided in original. Besides photocopies of the listed documents were given to the CO. Also the CO has accepted it during the inquiry. The submission of the CO at para 2 (vi) is not acceptable as IO has taken into consideration all the defence documents as well as listed documents before arriving at the conclusion. The contention of the CO at para 2 (vii) is ill conceived hence denied. The case was initiated on the basis of report of Civil Authorities as well as brother of his second wife. Charges were proved by the IO on the basis of evidence produced during inquiry. It is not necessary that his first wife should make the complaint. It is already established by the Police authorities that she being an illiterate Indian lady, wants to save the service of her husband. Blaming Sri Ram Prasad, the then I/O PAO (Ors) DRC, Faziabad is not correct. The plea of the CO at para 2 (viii) is also not acceptable as the death certificate issued by the Panchayat Secretary was found false as per report of DM and SP, Gonda. The contention of the CO at para 2(ix) is not correct. In the analysis of evidence, IO has taken into consideration of all the documents & charge was proved on the basis of all listed and defence documents. LIU report is also the part of inquiry as D-7. Submission of the CO at para 2(x) is not acceptable. The charge has been proved on the basis of documentary proof. As such personal appearance or statement of Smt. Seema Mishra is not required. Further, she wants to save the service of her husband as reported by the civil authorities because Sri Mishra is giving her expenses for livelihood. The submission of the CO at para 2(xi) is not correct as already proved by the report of DM & SP, Gonda that Smt. Seema Mishra is alive. Thus, death certificate is false. The plea advanced at para 2(xii) is also not acceptable as CO himself accepted that he had altered the entries in the service book (refer listed document no.3). This fact was also again accepted during inquiry (refer Daily Order Sheet No.2). It was the after thought of the CO that he has altered the entries in the service book with the permission of the Incharge of the service books as during general examination by the IO, he failed to give the name of the officer also.
4. AND WHEREAS under these circumstances and after taking into account all the aspects relevant to the case as well as representation of the CO, the undersigned hold Sri J.P. Mishra, SA A/c no. 8319410 guilty of the charge that he has entered into a second marriage while his first wife is still alive & he has not sought divorce from his first wife from any court of Law. He has also submitted false death certificate of his first wife and unauthorisedly deleted/altered/overwritten entries made in the service book under his initials and made revised entries of second marriage with Smt. Shashi Kiran. The undersigned considers that good and sufficient reasons exist for imposing upon the said Sri J.P. Mishra, SA, A/c no. 8319410 the penalty of compulsory retirement under Rule 11 of CCS(CCA) Rules, 1965.
5. NOW, THEREFORE, the undersigned hereby impose upon the said Sri J.P. Mishra, SA, A/Co no. 8319410 the penalty of compulsory retirement with effect from 1.11.2004 (A.N.)
10. The appellate authority i.e. Controller General of Defence Accounts considered the appeal of the applicant dated 10.12.2004 against the order of penalty of compulsory retirement imposed on him by the disciplinary authority viz. Principal Controller of Defence (Accounts) (CC), Lucknow vide his order dated 27.10.2004. The appellate authority considered the delinquency mentioned in memo of charges dated 25.2.2003. Para 3 to 8 which are self explanatory are reproduced below:
3. Whereas the undersigned finds from the appeal that Sri J.P. Mishra ex.SA A/c no. 8319410 besides requesting for a personal hearing, has pleaded to set aside the penalty on the following grounds:
(A) On the issuance of Memorandum of Charge:
(i) The chargesheet signed and issued by Jt. CDA (CC) Lucknow was illegal and without jurisdiction.
(ii) Photocopies of the listed documents as required by him for submission of his defence statement were denied bye the Dy. CDA (AN) who was not the competent disciplinary authority.
(iii) The inquiry authority was appointed by Jt. CDA (Admin) who was not the competent Disciplinary authority.
B. On the inqury Proceedings:
(i) The Inquiry Officer conducted the inquiry on 9 dates beginning from 17.9.2003 and ending on 1.7.2004.
(ii) The listed document at sl. No.3 was denied by the Inquiry Officer as not relevant to the case, which is denial of opportunity.
(iii) The original listed documents were never produced for inspection and photocopies of the listed documents produced were neither authenticated nor verified/proved by any State witnesses/Prosecution witness.
(iv) The inquiry officer has passed illegal orders on his applications dated 9.6.2003 and 7.11.2003 refusing to supply relevant additional documents contrary to the provisions of Government of India decision no. 23 (2) below Rule 14 of CCS (CC&A) Rules 1965. This was denial of opportunity and against the principles of natural justice.
(v) The Inquiry Officer did not take cognizance of either the additional documents filed by him or the Defence witness in his inquiry report. The speaking order issued by the disciplinary authority without considering defence documents was incorrect, wrong and illegal.
(vi) There was no complaint from Smt. Seema Mishra she is not alive. The prosecution also failed to produce Smt. Seema Mishra before inquiry to prove the statement recorded by the District Magistrate/LIU. The defence document D-1 to D-8 produced and exhibited by him during inquiry clearly and conclusively prove that Smt. Seema Misra died on 3.2.1989 as indicated in the death certificate dated 28.5.2003.
(vii) As far as the alleged charge of deletion/alteration/ overwriting of entries in service book he made the correction in the list of family members with the approval of office-incharge which cannot be construed as unauthorized deletion/alteration in the service book without any documentary evidence.
C. Miscellaneous Issue
(i) No complaint was made by Smt. Seema Mishra as she is not alive. The fabricated chargesheet was got issued by Sri Ram Prasad I/C Pay & Accounts Department, Dogra Regiment, Faizabad to defame, harm and harass him due to personal enmity. This was further made clear from the written statement dated 27.2.l2003 of Sri RamCharan, Panchayat Secretary, Block Jhanjhari, Gonda.
4. WHEREAS, the undersigned has carefully considered the pleas advanced by Sri J.P. Mishra, ex-SA in his appeal dated 10.12.2004 in the light of the record of the disciplinary proceedings and evidence on record and finds that :
(i) The Jt. CDA (AN) in a Controllers office is competent to initiate disciplinary proceedings either for major or minor penalty against any employee up to the level of the AAO. He is also competent to appoint Inquiry Officer and Presenting Officer in terms of Rule 13 (2) of CCS (CCA) Rules, 1965 and SRO 43 dated 31.03.2001. Therefore, appellants contentions at 3 (A) (i) and (iii) are not tenable.
(ii) The appellant was informed vide the Pr. CDA (CC), Lucknow letter No. AN/IB/1020-D/JPM dated 20.6.2003 that he would get full opportunity to inspect listed documents during inquiry, which he availed. Hence his contention at 3(A) (ii) is not acceptable.
(iii) He did not attend the preliminary hearing on 17.9.2003 and regular hearing on 5.4.2004. Therefore, it took more than six months for completion of inquiry due to dilatory tactics adopted by him. Therefore, averments at 3(b) (i) of the appellant are not tenable.
(iv) His contention at 3 (b) (ii) and (iv) are not acceptable. As per Daily order sheet No. 3 dated 3.12.2003, he failed to clarify relevance of the additional document at Sl. No. 3 demanded by him in his letter dated 17.11.2003. Moreover, the additional document at Sl. No. 3 was written by him, a copy of which was already in his possession. In any case, it is the prerogative of the IO, in terms of sub Rule 12 to Rule 14 of CCS (CCA) Rules, 1965, to decide relevance of the documents concerning the case. The decision of the I.O. to refuse requisition of the document, which was not relevant to the case is within rules.
(v) As per Daily Order Sheet No. 2 dated 3.11.2003, he himself inspected the original documents. Besides, he accepted photocopies of documents given to him during inquiry without protest. Hence, his contention at 3 (B) (iii) is not tenable.
(vi) The Inquiry Officer, in the analysis of evidence, clearly made reference to the prosecution and defence documents and proved the charge. The Disciplinary Authority also accepted the report and issued speaking order accordingly. Further, the IO admitted all the three defence witnesses submitted by the CO vide his application; dated 1.3.2004 (DOS No. 8 dated 7.6.2004 refers). Only one defence witness viz. Pandit Siddhnath Pandey appeared and was examined/cross-examined and his statement was marked as exhibit DW-8. Other two defence witnesses failed to appear. The appellant also submitted to the IO that he did not want to produce remaining defence witnesses and the case may be closed from his side (Daily order sheet No. 9 dated 1.7.2004 refers). Hence, his contention at 3 (B) (v) is not tenable.
(vii) The charges were proved by the Inquiry Officer on the basis of documentary and oral evidence produced during the course of inquiry. The LIU, Gonda letter dated 24.3.2003 and SDM, Gonda letter dated 13.2.2002 also prove that Smt Seema Mishra is alive and the Death Certificate dated 9.6.2001 issued by the village Pradhan, Bandhushra is doubtful. The personal appearance or statement of Smt. Seema Mishra is, therefore, not required. Hence, his contention at 3 (B) (vi) is not tenable.
(viii) The appellant accepted the charge to the extent that he had altered the service particulars when the service book was given to him for perusal. This was confirmed by him in writing vide Daily Order Sheet No. 2 dated 3.11.2003. If family particulars were required to be changed, he could have submitted fresh family particulars to the office instead of making deletion/alteration/over-writing of existing entries, which amount to falsification of official records. Hence, his averments at 3(b) (vii) are not tenable.
(ix) His contention at 3 (c) (i) is ill-conceived and hence denied. The case was initiated on the basis of reports of the Civil Authorities and complaint from the brother of his second wife. The charges stand established in the inquiry through documentary evidence. It is also established by the police authorities that his first wife Smt. Seema Mishra was an interested party, as she wanted to save her husbands job. Therefore, a complaint from her was not required.
5. WHEREAS, the appellant was granted personal hearing with his Defence Assistant on 5.4.2005 which he failed to attend. In consideration of his subsequent request dated 5.4.2005, he was again granted another personal hearing on 6.5.2005 which he attended alongwith his Defence Assistant. In the course of hearing, Sri Mishra was asked to clarify whether he had informed his office of (a) the death of his first wife and (b) his second marriage immediately on these occurrences. Sri Mishra replied that he failed to do so. He could not offer any explanation for his failure in this regard. Sri Mishra has submitted a representation dated 6.5.2005 in sequel to his appeal dated 10.12.2004 in which he has pointed out certain irregularities reportedly committed by the Disciplinary Authority and the Inquiry Officer. On perusal of the issue raised in the light of the record of disciplinary proceedings, the undersigned is satisfied that charges relating to (i) entering into plural marriage without divorcing his first wife while she is still alive and tampering with the record of family details in the service book, have been proved on the basis of evidence adduced in the inquiry particularly the report submitted by the District Magistrate, Gonda. The undersigned, therefore, consider that the penalty of compulsory retirement imposed by the disciplinary authority is commensurate with the misconduct of the appellant.
6. WHEREAS, besides considering the points in the appeal, the undersigned in terms of Rule 27(2) of the CCS (CC&A) Rules, 1965 also finds that (a) the procedure laid down under the CCS (CC&A) Rules, 1965 has been followed and (b) the findings of the Disciplinary Authority are warranted by the evidences on record.
7. AND WHEREAS, the undersigned after taking into account all facts relevant to the case and the submissions made in the course of personal hearing arrives at the conclusion that Sri Mishra could not bring out any mitigating factors, either in his appeal or in the course of personal hearing, which may call for interference with the orders of the Disciplinary Authority vis. Pr. CDA (CC), Lucknow. Thus, his appeal dated 10.12.2004 is liable for rejection, being devoid of merit.
8. NOW, THEREFORE, the undersigned hereby rejects the appeal dated 10.12.2004 preferred by Sri J.P. Mishra ex.SA A/c no. 8319410.
11. We have heard the learned counsel for the parties and perused the material available on record to assess the rival contentions.
12. Learned counsel for the applicant has given a compilation of case laws which he relies upon to substantiate his contentions: (i) Non-supply of relied upon documents; (ii) documents to be proved by its author and; (iii) perverse findings can be interfered by the Tribunal.
(i) Non-supply of relied upon documents: Learned counsel for the applicant has given the following case laws:
(a) Kumaon Mandal Vikas Nigam Limited Vs. Girja Shanker Pant AIR 2001 SC 24. The facts of the present case are different than the facts of the cited case. In the cited case, however, on plain reading of para 5 thereof the factual matrix as was obtained then is
(i) (a) a show cause notice was sent
(b) since no documentary evidence was available a rough reply was sent as against the show cause notice and the entire enquiry proceedings were based thereon;
(ii) no chargesheet was given;
(iii) no oral explanation was sought for by the Inquiry Officer.
(iv) No oral evidence was taken thus question of any cross examination would not arise.
(v) No date, time and place was fixed by the Inquiry Officer for hearing the matter.
(vi) No Presentation Officer was appointed and it is on the basis of actions as above the enquiry stood complete.
Subsequent factual situation is also interestingly illustrative and runs as below:
(i) Copy of the enquiry report was sent to the respondent on 9th November, 1993 with a request to give a reply thereto positively on 10th November, 1993 at 10.30. A.M.
(ii) The respondent was directed to produce his defence at 11.00 a.m. on the same day without, however, permission to summon his defence witnesses.
(iii) Subsequently personal hearing was offered on 22nd November, 1993 but by reason of the non-availability of the Managing Director, the date for personal hearing was re-scheduled from 22nd to 25th November, 1993, but no hearing could take place on 25th November, 1993 either.
(iv) On 26h November, 1993 the Managing Director informed the respondent to be present before him on 26th November, itself at 4.00 p.m. and on 26th November itself an eighteen pages order was passed dismissing the respondent from service at about 7.30 P.M. The above factual matrix is distinguishable from the facts of the present O.A.
(b) State of U.P. & Others Vs. Saroj Kumar Sinha (2010) 1 SCC (L&S) 675, 2010 2 SCC 772. Here also, the facts of the cited case are different from then the facts as mentioned above in case of the present O.A. In the cited case, copies of relied upon documents were not provided to the delinquent official, which is not the case in the present O.A Therefore, this ruling may not be helpful to the applicant in any manner.
Here, it would be relevant to mention that in compliance of this Tribunals order dated 5.12.2011, the respondents have produced the file of the disciplinary proceedings containing 8 folders as Folder B, Folder C, Folder D, Folder F, Folder G and Folder H. We do not find anything on record t substantiate the contention of the alleged non-supply of relied upon documents. Infact during the course of arguments, the only emphasis laid from the side of the applicant was on the point that neither any witness was cited nor produced to prove any of the three documents contained in Annexure -3 of the chargesheet i.e. report of S.P. Gonda dated 13.2.2003, 20.2.2003, (ii) death certificate of the wife of the charged officer issued by Gram Pradhan and submitted by Sri J.P. Mishra; and (iii) a letter dated 12.6.2001 from Sri J.P. Mishra.
(ii) Documents to be proved by its author: Learned counsel for the applicant has cited the following case laws:
(a) O.A. No. 699/94 Ram Adhar Vs. Union of India & Others decided by Lucknow Bench of this Tribunal on 14th January, 2002. The facts of that case are that a chargesheet was issued and on technical ground it was withdrawn and later-on the applicant served with a chargesheet under SF-5 for major penalty wherein in the list of documents, report of one Lalit Chaubey, Finger Print Expert was cited and the list of witnesses contained the name of the witness Lalit Chaubey. The report of Finger Print expert dated 19.11.1987 was not given to the applicant of the cited case. The Presenting Officer apprised that the report of Finger Print Expert is not available in the Vigilance branch. In the present O.A., there is no prosecution witness listed in the chargesheet.
(b) O.A. No. 103/04 Satyendra Kumar Vs. Union of India & Others decided by Lucknow Bench of this Tribunal on 18th March, 2009. The facts of the cited case are that during the course of enquiry, the material witness of inspection team Sri Chaubey was not examined and Sri Khare as a prosecution witness had not proved the proceedings of the inspection. These documents without being authenticated and verified by the makers of those documents and without giving an opportunity to the applicant to cross examine their testimony, was relied upon to hold the applicant guilty of the charge.
(c) O.A. No. 2234/03 Latoor Singh Vs. Union of India & Others decided by Principal Bench of this Tribunal on 28th July, 2004. The facts of the cited case are that the applicant, therein, had made certain allegations against the Enquiry officer Sri V.P. Sharma saying that he had no good terms with the Enquiry Officer and a criminal case under Section 452/504/506 IPC was pending in the competent Court of law between them and he did not expect impartial enquiry by the Enquiry officer.
(d) 1999 (8) SCC 582 Hardwari Lal Vs. State of U.P. & Others. The facts of the cited case are that the facts are that the appellant was a Constable in Police department and was dismissed from service on a charge that on night between 16-17th January, 1993 he hurled abuses in Police station at Constable under the influence of liquor. Some material witnesses in the cited case were not examined. Neither the complainant nor other employee who accompanied the appellant of the cited case to the hospital for medical examination were examined as witnesses.
(e) In Roop Singh Negi Vs. PNB & Others reported in (2008) 2 SCC 570. The facts of the cited case are that the appellant alleged to have confessed to police that he was involved in stealing of bank draft, it was held that although Evidence Act, 1872 is not applicable to departmental enquiry, principles of natural justice are to be followed in such cases. Further, it is the duty of the disciplinary and appellate authorities to record reasons for their orders as orders passed by these authorities entail civil consequences. Para 14, 15, 17, 20, 21, 23 and 24 of the judgment are reproduced below:
14. Indisputably, a departmental proceeding is a quashi judicial proceeding. The inquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceedings. No witness was examined to prove the said documents. The management witness merely tendered the documents and did not prove the contents thereof. Reliance, inter-alia was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the inquiry officer was the purported confession made by the appellant before the Police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in sealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evident was left.
17. In Moni Shankar V. Union of India this Court held (SCC p.492 para 17 The departmental proceeding is a quashi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive as its own conclusion on the premise that the evidence adduced by the Department even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely preponderance of probability. If one such evidences, the test of the doctrine of proportionately has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality.
20. This Court referred to its earlier decision in Capt. M. Paul Anthony V. Bharat Gold Mines Ltd to opine (Nareinder Mohan Arya case SCC 729, paras 41-42)
41. We may not be understood to have laid down a law that in all such circumstances the decision of civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions poi8nts out that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate V. Akhil Bharaitya Ghah Mazdoor Sangh and RBI Vs. S. Mani. Each case is, therefore, required to be considered on its own facts.
42. It is equally well settled that the power of judicial review would not be refused to be exercise by the High Court, although despite it would be lawful to do so. In RBI this Court observed (SCC p. 116 para 39)
39. The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed into itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out.
In that case also, the learned Single Judge proceeded on the basis that the disadvantage of an employer is that such acts are committed in secrecy and in conspiracy with the person affected by the accident, stating Nainder Mohan Arya case SSC P. 730 paras 44-45
44. No such finding has been arrived at even in the disciplinary proceedings nor was any charge made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence o no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regards the guilt of the delinquent must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence.
45. The findings of the learned Single Judge to the effect that it is established with the conscience (sic) of the Court reasonably formulated by an enquiry officer then in the eventuality may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of the court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error.
21. Yet again in M.V. Bijlani Vs. Union of India, this Court held (SCC p 95 para 25) 25.. 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 analyzing 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.
23. 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 materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at 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 inference drawn by the enquiry officer apparently were not supported by any evidence. Suspicion as is well known, however, high may be, can under no circumstances be held a substitute for legal proof.
24. For the aforementioned reasons, the judgment of the High Court is set-aside. The appeal is allowed with costs and the appellant is directed to be reinstated with full back wages. Counsel fee assessed at Rs. 25000/-
3. Perverse findings can be interfered by the Tribunal:
Ram Bharat Tiwari Vs. Town Area Committee, Koripur, District Sultanpur (2000) 18 LCD 1040: In this case the enquiry report while dealing with the chargesheet, the petitioner was absolved in 10 out of 12 charges framed against him and one of the remaining two charges was found to be partially established. The charge relating to disobedience on the part of the petitioner by not complying with the order of his superiors was dealt with the Enquiry Officer and it was held that there was no evidence on record to substantiate the allegations of disobedience but still it could not be ruled out that Sri Ram Bharat Tiwari did not extend his cooperation to the Chairman for implementing the transfer order of Heera Lal from Musafirkhana to Koripur. The Court held that this was a perverse finding which was recorded merely on the basis of surmises and conjectures and, therefore, the report of Enquiry Officer in this regard could not be made basis of dismissal order as it was absolutely a perverse finding. It was further held that the High Court can interfere with the order of disciplinary authority provided that such findings are utterly perverse in terms of ruling of Honble Supreme Court in the cas of Bhagat Ram Vs. State of Himanchal Pradesh (AIR 1983 SC 454).
13. In the present O.A. the Enquiry Officer has found article II of the chargesheet as proved to the extent that the applicant has altered the service particulars when the service book was given to the applicant for perusal. This was also confirmed by the charged official in writing (daily order-sheet no.2 dated 3.11.2003 refers). During the inquiry, the charged official did not tell the name of the officer who had authorized him to alter the service particulars. Even if, family particulars are required to be corrected, fresh family particulars should have been given rather than deleting/altering/over writing the existing ones. On the basis of examination of all the documents and the evidence produced during enquiry, the Enquiry Officer found the charge above as proved based on analysis of evidence as given in the foregoing paragraphs.
14. This itself is a serious misconduct which is unbecoming of a Government servant official. As a Senior Auditor of Defence Accounts Department, the charged official cannot plead ignorance of procedure for such alteration/deletion contained in relevant Service Rules. Making such unauthorized deletion/alteration/overwriting of existing entries in service book also amounts to falsification of official records. The disciplinary authority has established this fact in his findings and the same has been confirmed by the appellate authority. Therefore, the charged official has been found guilty of misconduct under Rule 3(1) (i) & (iii) of CCS (Conduct) Rules, 1964. We do not wish to interfere with the above findings of disciplinary authority/appellate authority as they have followed strictly the provisions of CCS (CCA) Rules, 1965 in arriving such a decision.
15. The article no.1 of the chargesheet is regarding, entering into second marriage by the charged official while his first wife is still alive. It is on the basis of verification which is said to has been got done by the District Magistrate, Gonda, which has been contested by the applicant. The applicant submitted his written brief of his case and raised the point that although the said documents (S-1, S-2 and S-3) were the documents listed in Annexure to the chargesheet, but no witnesses were produced to prove the same.
16. In the backdrop of the preposition of law laid down in the case of Ram Adhar, Satyendra Kumar, Haridwari Lal, Roop Singh Negi and Ram Bharat Tiwari (supra) we come to the conclusion that the findings of the Enquiry Officer so far it relates to the Article I of the chargesheet, which has merged with the orders of disciplinary authority and appellate authority was not arrived at in accordance with the settled law because neither any witness was cited in the chargesheet to prove any of the three documents mentioned in Annexure i.e. S-1, S-2 and S-3 nor any witnesses or author of the said report was produced to prove the genuineness of these documents. It is true that the departmental proceedings is a quasi judicial proceedings in which provisions of Evidence Act are not applicable. Nevertheless, the principles of natural justice are required to be complied with. The Enquiry Officer cannot shift the burden of proof as has been specifically laid down in the case of M.V. Bijlani Vs. Union of India & others reported in (2006) 5 SCC 88 (para 25) which has been referred by the Honble Apex Court in the case of Roop Singh Negi (supra). In the case of Negi (supra), it has also been held that mere production of documents is not enough. Contents of documentary evidence has to be proved by examining witnesses. Thus The principles laid down in the above mentioned cases of Ram Adhar etc. squarely apply in the present case sofar it relates to Article 1 of the chargesheet. Therefore, this point so far it relates to Article I of the chargesheet deserves to be decided in favour of the applicant in the following manner. It is accordingly decided.
Thus, this O.A. is partly allowed. Both the impugned orders so far they relate to Article I of the chargesheet are hereby set-aside. As regards Article II of the chargesheet is concerned, we are not inclined to interfere in both the impugned orders pertaining to Article II of the chargesheet for the reasons already discussed.
17. In view of the above, in respect of Article I of the chargesheet the matter is remanded back to the disciplinary authority who may take action expeditiously say within four months from the relevant stage onwards, if so advised, in accordance with the relevant rules and procedure and also the preposition of law as discussed in the body of the judgment.
18. O.A. stands disposed of in the aforesaid terms. No order as to costs.
(S.P. Singh) (Justice Alok K Singh)
Member-A Member-J
Girish/-
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