Central Administrative Tribunal - Delhi
Mr. (Dr.) Kedutso Kapfo vs The Union Of India on 28 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1469/2012 Reserved On;10.11.2014 Pronounced on:28.11.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Mr. (Dr.) Kedutso Kapfo, S/o Late Mr. Lhilo Kapfo, Aged 57 years, Reader-cum-Research Officer, Central Institute of Indian Languages, (Ministry of Human Resources Development) Government of India, Department of Higher Education, Language Bureau, Manasagangothri, Hunsur Road, Mysore-570006 Karnataka R/o Type-5, Door No.5, GPRA Quarters, CPWD Complex, Jyothinagar, Mysore-570019, Karnataka State. Applicant By Advocate: Shri Sudhir Kumar C.S. Versus 1. The Union of India Represented by the Secretary, Department of Higher Education, Ministry of Human Resources Development, Government of India, C Wing, Shastri Bhavan, New Delhi-110001. 2. The Under Secretary, Department of Higher Education, Ministry of Human Resources Development, Government of India, C Wing, Shastri Bhavan, New Delhi-110001. 3. The Director and Inquiry Officer (Mr. B. Anand) Department of Higher Education, Ministry of Human Resources Development, Government of India, C Wing, Shastri Bhavan, New Delhi-110001. 4. The Under Secretary & the Presenting Officer (Mr. O.P. Ahuja) Department of Higher Education, Ministry of Human Resources Development, Government of India, C Wing, Shastri Bhavan, New Delhi-110001. 5. The Director Central Institute of Indian Languages, (Ministry of Human Resources Development) Government of India, Department of Higher Education, Language Bureau, Manasagangothri, Hunsur Road, Mysore-570006 Karnataka. 6. The Assistant Accounts Officer (Mr. I.J. Sunny) Central Institute of Indian Languages, (Ministry of Human Resources Development) Government of India, Department of Higher Education, Language Bureau, Manasagangothri, Hunsur Road, Mysore-570006 Karnataka. .Respondents By Advocate: Shri Tanveer Ahmed. ORDER
G. George Paracken, Member(J) The Applicant is aggrieved by the impugned Annexure A-I charge sheet No.C.14011/5/2004-Vig. dated 07.02.2004 and the Annexure A-2 penalty order No.C-14011/5/2004-Vigilance dated 26.02.2009.
2. The brief facts of the case: Vide Memorandum dated 07.12.2004, the Applicant was proceeded under Rule 14 of the CCS (CCA) Rules, 1965. The Statement of Article of Charge framed against him was as under:-
That the said Dr. K. Kapfo while functioning as Reader cum Research Officer in the CIIL, Mysore was sanctioned an advance of Rs.50,000/- (Rupees fifty thousand only) for conducting the academic programme Audio Recording of Intensive Course in Bengali at CIIL, Mysore vide sanction Order No.F.19-22/98/ETU Dt 28th august, 1998. The amount was drawn by Dr. Kapfo in two instalments: (i) Rs.30,000 on 3.9.1998 (ii) Rs.20,000 on 5.10.1998 respectively. The programme was to be conducted from 1.9.1998 to 30.10.98. Dr. Kapfo however conducted the said Program from 1.9.98 to 30.3.98. He finally submitted the detailed accounts for the advance received by him for final settlement along with vouchers on 23.9.99. Dr. Kapfo thus submitted the final accounts after six months of the completion of the academic programme in violation of the conditions stipulated in the sanction order. The vouchers submitted by Dr. Kapfo amounting to Rs.40,000 (Rupees forty thousand and one hundred) were found to be fake after verification. Subsequently, Dr. Kapfo, who had agreed to refund the amount of Rs.40,000 to the Institute as per his letters dt. 8.1.2001 and dt.19.1.2001, failed to comply and did not return the said amount. Dr. Kapfo thus produced false account of the expenditure by producing fake vouchers with a view to get undue monetary gains. By his above acts, Dr. Kapfo exhibited lack of integrity and conducted himself in a manner which is unbecoming of a Government servant thereby violating Rule 3(1)(i) & (iii) of CCS (Conduct) Rules, 1964. Hence the charge. In the statement of imputation of misconduct annexed with the said Memorandum also says as under:-
3. The above accounts were checked by the Internal Audit Section of the Institute as usual and found that expenditure incurred by Dr. Kapfo as detailed above can be accepted to an extent of Rs.9,900 only as there were serious discrepancies in the remaining amount of Rs.40,100/-. A doubt has arisen about the correctness of the payment made to Shri M. Sahadevan for male voice recording of the said academic programme, as indicated in the voucher submitted by Dr. Kapfo. A letter was accordingly sent to Dr. Chandan Hazra, RA who has given his voice for recording for the above programme. Dr. Hazra was sent the letter on June 13, 2000 to get clarifications as to how many lessons were recorded by each voice given during this programme. Dr. Chandan Hazra vide his letter dated June 14, 2000 clarified that he and Ms. Titas Mitra had given their voices in almost all the lessons and Mr. Sahadevan gave voice only in few lessons. Dr. Hazra further clarified that during the recording hours of the lessons, no music was recorded. The letter of Dr. Hazra brought the claims of Dr. Kapfo into contradicton as Dr. Sahadevan was shown to have been paid Rs.9500/- for recording majority of the lessons in the above programme whereas Dr. Hazra admitted to have given his voice in almost all the lessons and according to him, only a few lessons were recorded by Shri Sahadevan. Subsequently Shri M. Sahadevan was also asked to clarify the position as to how much remuneration he received for giving his voice in the recording of the above programme. Shri Sahadevan vide his letter dated 31.07.2000 stated that he recorded only some passages of the lessons and remuneration received by him was Rs.500 (five hundred only) for which no voucher/receipt was taken from him. He further stated that no musical instruments were used in his presence during the course of recording. Thus, Dr. Kapfo submitted false account that Shri Sahadevan has been given 9500/- for recording his voice in the above programme whereas Shri Sahadevan was paid only Rs.500/- for which no receipt was taken from him. Dr. Kapfo thus submitted fake vouchers with forged signatures of Shri Sahadevan.
4. Since a doubt has also arisen about the authenticity of the vouchers related to the payment to various musicians, as detailed in Sl.No.2 to 6 of the table in para 2 above, they were sent letters dated 10th July, 2000 in the addresses given in the vouchers to confirm the remuneration received by them for playing the instruments and their recording stated to be held at CIIL, Mysore. However, the four letters were returned by the postal authorities as the addresses were not correct/non-existant, as detailed in the Table below. Even the one letter (Sl.No.3 of para 2) which was not received back, no confirmation was received from the concerned musician. Thus, it was established that Dr. Kapfo submitted fake and fabricated vouchers to give false account of the expenditure in this regard also, as in the case of recording of male voice. Thus, the vouchers submitted by Dr. Kapfo for Rs.40,100/- were fake as indicated below:-
Sl.
Item Exped as per voucher Whether the voucher genuine or not Observations of the Internal Audit Section after detailed investigation/verification
1.
2.
3.
4. 5
1.
Tea/Snacks bill of Shri Madevappa Rs.
Genuine Expenditure as admitted.
2. Instrumental Music (violin) of Shri T. Lokesh Rs.5,100/-
Not genuine A letter dated 10.07.2000 was sent by this Institute to the addressee seeking clarification and the above letter came back to the Institute with the remarks that address is not sufficient. Therefore, the expenditure is not admitted.
3. Instrumental Music (Flute) Shri M. Shankar Rs.7,500/-
Not genuine A letter dated 10.07.2000 was sent to the party seeking certain clarifications. But no reply was received by the Institute. Therefore, the Expenditure is not admitted.
4. Instrumental music (Tabala) of Shri Badarinarayan Rs.7,400/-
Not genuine A letter dated 10.07.2000 sent to the party seeking certain clarifications. But the letter came back with the remark that no such address is there. Therefore, the expenditure is not admitted.
5. Instrumental music (Guitar) of Shri Mahesh Kumar Rs.4,300/-
Not genuine A letter dated 10.07.2000 sent to the party seeking certain clarifications came back with the remark that no such address is there. Therefore, the expenditure is not admitted.
6. Instrumental music (Mrudanga) of Shri L. Tyagraj Rs.6,300/-
Not genuine A letter dated 10.07.2000 sent to the party seeking certain clarifications came back with the remark that no such address is there. Therefore, the expenditure is not admitted.
7. Male voice of Shri M. Sahadevan Rs.9,500/-
Not genuine As per letter dated 31.07.2000 by Shri Sahadevan he was only given Rs.500 and no receipt was taken from him. Therefore, expenditure is not admitted.
8. Female voice of Ms. Titas Mitra Rs.8,900/-
Genuine She admitted receiving the full amount. Therefore, this expenditure was admitted.
5. Thus, the vouchers submitted by Dr. Kapfo in support of the expenditure of Rs.40,100/- were fake vouchers. When the above discrepancies/submission of fake vouchers came to the notice, Dr. Kapfo vide his letter dated 08.01.2001 to the Director, CIIL, Mysore agreed to refund the amount of Rs.40,100/-. In his another letter dated 19.01.2001 Dr. Kapfo also requested that the recovery of the amount may be spread over a period of three years on installment basis which was not found admissible under the rules. Thus Dr. Kapfo admitted in writing to refund Rs.40,100/- for which he had submitted fake vouchers. However, despite his admission to refund the amount Dr. Kapfo failed to refund the amount.
6. Dr. K. Kapfo thus violated the terms and conditions stipulated in the sanction letter and submitted the account of expenditure after six months of the completion of the programme for which he had been sanctioned Rs.50,000/-. The vouchers submitted by him were later found to be fake on verification. He, thus, submitted false account of the expenditure, fabricated vouchers and did not return the amount of Rs.40,100/- despite admitting in writing to return the same.
7. By his above acts, Dr. K. Kapfo, Reader-cum-Research Officer of CIIL, Mysore exhibited lack of integrity and conducted himself in a manner which is unbecoming of a Government servant thereby violating Rule 3(10(i) & (iii) of CCS (Conduct) Rules, 1964.
3. The aforesaid charges were proposed to be sustained by the following list of documents and witnesses:-
List of Documents 1. Sanction order No.19-22/98/ETU dated 28.08.1998 of the CIIL, Mysore for Rs.50,000 along with two office copies of the bill dated 31.08.1998 and 23.09.1998.
2. Accounts for Rs.50,000/- submitted by Dr. K. Kapfo on 23.09.1999 along with eight vouchers.
3. Letter No.F.19-22/98-99 (Bengali) dated 13.06.2000 to Dr. Chandan Hazra, RA.
4. Letter dated 14.06.2002 received from Dr. Chandan Hazra.
5. Six identical letters written to the signatories to the Vouchers admitted by Dr. Kapfo (No.3-9/OC/2000-2001/Accts. Dated 10.07.2000).
6. Letter of Shri S.M. Sahadevan dated 31.07.2000.
7. Five closed envelope addressed to the musicians returned undelivered by the postal authorities with their remarks.
8. Letter dated 08.01.2001 submitted by Dr. K. Kapfo agreeing to refund the amount of Rs.40,100/-.
9. Letter dated 19.01.2001 submitted by Dr. K. Kapfo to the Director, CIIL, Mysore requesting to recover the amount in installments.
List of Witnesses
1. Dr. A.K. Basu Reader-cum-Research Officer, CIIL, Mysore.
2. Dr. Chandan Hazra Research Assistant, CIIL, Mysore.
3. Dr. B.K. Prabhakar Language Lab Technician, CIIL, Mysore.
4. Dr. Kale Gowda Research Assistant, CIIL, Mysore.
5. Sri M. SAhadevan No.30, Vinayaka Nagar, Mysore (RIE Laboratory, Mysore).
6. Sri T. Lokesh No.36, Gokulam 2nd Stage, Mysore.
7. Sri M. Shakar No.1027, Vani Vilas Road, Mysore.
8. Sri Badarinarayan No.638, 2nd Main Road, 6th Cross, V.V. Puram, Mysore.
9. Sri Mahesh Kumar No.1045, 10th Main Road, Bodagi 2nd Stage, Mysore.
10. Sri L. Tyagaraj No.899, 2nd Main Road, Lakshmi Puram, Mysore.
11. Ms. Titas Mitra 179, JHBCS, Bangalore-78.
4. Vide his letter dated 17.12.2004, the Applicant denied the aforesaid Article of Charge. According to him, the allegations against him was made by Shri I.J. Sunny, Assistant Accounts Officer and on the basis of those allegations, his controlling officer had already ordered an enquiry in the matter and the Enquiry Officer reported that the irregularities whatsoever alleged against him were baseless. Thereafter, Shri Sunny in an unauthorized manner conduced a personal enquiry in the matter by writing letters to different private persons and the new Director, at his instance, constituted again a three member Committee to enquire into the matter and said committee straightaway asked him to refund Rs.40,100/- to the office and insisted that he had no other option but to refund the amount. They also grilled all the staff who were the witnesses. Dr. Baruah, a committee member, got agitated and articulated reviling utterances threatening to put them behind the bar when they refused to change their statements. Therefore, he was forced to give a written assurance with the wording as per the discussion with the members of Inquiry Committee on 05.01.2001 pertaining to Audio Recording of Intensive Course in Bengali, I am agreeable to refund the amount of Rs.40,100/-. Thereafter, Dr. Baruah acknowledged to have taken away the cassette on paper. He also returned the cassette with cover on 15th January, 2001. But, the committee neither produced the documents for his inspection nor submitted its report till 6th February, 2001. Therefore, he had no other option, but to withdraw his assurance. He has, therefore, submitted that the allegations were motivated, malicious, baseless, far from truth and they were designed for a character assassination, hence unsustainable. He has, however, stated that there was some inadvertent delay in submission of accounts but it was unintentional. But after six years, he was not in a position to remember the circumstances. He has also stated that Shri Sunny had written letters to the private parties with vested interest and he cannot be relied upon. Further, he has stated that Shri Sunny had removed the original vouchers submitted by him amounting to Rs.40,100/- and other documents from the file. Since those original vouchers were not traced, he made a representation to the Secretary, Ministry of HRD. However, Dr. Baruah again got agitated and clandestinely took away the relevant Master Cassette from Audio Studio without issuing receipt and it created the matter more serious.
5. However, an enquiry was conducted in the matter and the Enquiry Officer, vide his report dated 15.03.2007, held that the charge has been proved. The concluding part of the said report reads as under:-
18. Conclusion:-
(i) As admitted by Dr. Kapfo in his explanation dated 17th December 2004, he had indeed delayed the submission of the final accounts by more than six months. As stipulated in the sanction order, Dr. Kapfo was to conduct the programme from 1-9-98 to 30-10-98 and render the complete accounts within a fortnight from the date of completion of the programme. However, Dr. Kapfo conducted the programme from 1-9-98 to 30-3-99 and submitted the detailed accounts only on 23rd September 99. Therefore the charge that Dr. Kapfo had failed to submit the accounts within the stipulated dates as prescribed by the Institute and violated the conditions stipulated in the sanction order dated 28-8-98 is held proved.
(ii) The voucher claiming to have paid Rs.9500/= (Nine Thousand and Five Hundred only) to Mr. S.M. Sahadevan is undoubtedly not a genuine voucher.
(iii) The five voucher as indicated in the following table are also not genuine vouchers, based on the principle of preponderance of probability:-
S.No. Item Expenditure incurred as per voucher submitted by Dr. Kapfo 1 Violin of Shri T. Lokesh 5100 2 Flute of Shri M. Shankar 7,500 3 Tabla of Shri. Badari Narayan 7,400 4 Guitar of Shri Mahesh Kumar 4,300 5 Mrudang of Shri L.Tyagaraj 6,300 TOTAL 30,600 Therefore I hold that the charge that Dr. Kapfo had produced false account of the expenditure by producing fake vouchers is held proved.
6. The Applicant made a representation against the aforesaid enquiry report. However, the Disciplinary Authority accepted the aforesaid enquiry report and, vide its order dated 26.02.2009, imposed upon him the major penalty of reduction of pay by five stages in the time scale of pay (Rs.12000-420-18300) till his retirement with the stipulation that he will not earn increments of pay during the period of reduction, viz. three stages in the time scale of pay plus two stagnation increments.
7. The Applicant has challenged the aforesaid order in this Original Application on the ground that the fact finding enquiry report was not supplied to him before initiating the proceedings against him under Rule 14 of the CCS (CCA) Rules, 1965 and, therefore, an enquiry held against him was against the principles of natural justice. Further, he has stated that the charge relating to fake vouchers was based on documents 5 and 7 included in the list of documents. The 5th document was six identical letters written by Shri I.J. Sunny to the signatories of the vouchers submitted by the Applicant. The 7th document was five closed envelope addressed to the musicians returned undelivered by the postal authorities with their remarks. But both executants of the documents were not included in the list of Prosecution Witnesses thereby the Applicant was denied the opportunity to cross-examine them. Documents 8 and 9 were the copies of the letters submitted by the Applicant before the 5th Respondent-Director regarding refund of Rs.40,100/- in installments. But the said Respondent was not a witness thereby compelling the Applicant to testify the documents executed by himself and to act as a witness against himself thereby infringing his right against self incriminations to his right to silence enshrined in Article 20(3) of the Constitution. Further, he has submitted that the Annexure-IV to the OM dated 07.12.2004 containing the list of witnesses have not been served on him with charge sheet thereby compelling him to submit an ineffective written statement. Further, the charge sheet was issued to him after six years delay that too without its full annexures and it has greatly prejudiced him in giving his defence statement.
8. Further, according to the Applicant the reason for delayed submission of the final accounts related to the academic programme Audio Recording of Intensive Course in Bengali, was because all the payments were made by Dr. Kale Gowda and vouchers were accordingly collected and handed over to him in a delayed manner and the said Mr. Kale Gowde admitted those facts in his written statement in June, 2000 to the Ist IO Mr. J.C. Sharma but he turned hostile on 24.01.2007 during the final hearing of the inquiry conducted by the 3rd Respondent IO. He has also stated that the vouchers submitted by him to the tune of Rs.40,100/- were not fake as alleged but he agreed to refund the said sum on condition of furnishing him of any evidence against the alleged fakeness of the vouchers produced by him. The Respondent CIIL, could not furnish him any evidence supporting the false allegation of fake vouchers against him and hence, he did not refund the said amount. He denied that he had ever produced false account of the expenditure, or produced the fake vouchers with a view to get undue monetary gains as falsely alleged against him, without any concrete evidence against him.
9. The other ground taken by the Applicant is that the first inquiry conducted against him found him innocent of the charges and the file relating to the allegation against him was closed by the then Director of the CIIL Mr. (Prof.) O.N. Koul. The reason for re-opening the closed file against him and conducting a re-enquiry against him on charges in which he was already exonerated by Mr. J.C. Sharma then IO, was the mala fide and vindictive attitude of the new Director, Nr. Udaya Narayana Singh, whose appointment to the coveted post of the Director in CIIL, was delayed due to the proceedings in the Central Administrative Tribunal, Bangalore Bench following OA No.19/2000 filed by the Applicant on the question of filling up of the vacancy of the Director of the CIIL. The Respondents have also, therefore, mala fidely replaced the former IO Mr. Hulas Singh with the 3rd Respondent IO, as Mr. Hulas Singh was found to be acting in an impartial and unbiased manner. The direction given by Mr. Hulas Singh to the 4th Respondent PO on 10.06.2005 during the PH of the inquiry, to furnish the Applicant 5 documents in view of his request, was seriously viewed as a fatal blow to their wicked plans and this resulted in the replacing of the said Mr. Singh as the IO on a false pretext.
10. Further, the Applicant has submitted that the Enquiry Officer conducted the enquiry in total violation of the principles of natural justice inasmuch as he adopted the unfair and illegal practices during the enquiry inasmuch as he was not at all allowed to take part in the Examination-in-Chief of the two Prosecution Witnesses viz. Mr. (Dr.) A.K. Basu and Mr. Prabhakar of CIIL and he was not afforded the opportunity to cross-examine them, thereby denying a reasonable opportunity to him to prove his innocence. Moreover, the Enquiry Officer was not at all interested to bring out the truth but to him, the inquiry was only a formality. In this regard, he has produced the daily order sheets dated 19.10.2005 and 18.10.2006. According to the daily order sheet dated 19.10.2005, the Enquiry Officer, Presenting Officer and the Applicant were shown to be present. On that date, the Applicants statement made before the Enquiry Officer as well as the Presenting Officer was recorded. He informed them that he was not given the annexures to the Memorandum dated 07.12.2004. The Enquiry Officer, therefore, directed the Presenting Officer to arrange the same in consultation with the Disciplinary Authority. The Applicant has also denied the charges levelled against him and he requested for a copy of the preliminary enquiry report conducted by Dr. J.C. Sharma in his case. Thereafter, the Enquiry Officer numbered the documents mentioned in the Annexure-III attached to the Memorandum dated 07.12.2004 as SC-I to SC-10. On the next date of hearing which was fixed for 18.10.2006 and in the order sheet of that date, it was shown that the Enquiry Officer, the Presenting Officer and the Applicant were present. Thereafter, the Enquiry Officer recorded the statement of Dr. A.K. Basu, Retd. Professor-cum-Deputy Director, CIIL, Mysore. He stated that he was the author of the Intensive Course in Bengali at that time and he was looking after the Computer Application Unit also. However, he could not get much time to supervise the Audio Project and Applicant was supervising the same. He has also stated that there were 95 lessons and he has given his voice only for 5 lessons and Dr. Chandan Hazra and Ms. Tital Mitra gave the maximum voice. To question as to how many lessons did Mr. Sahadevan gave his voice, his answer was that he was not aware of the same. Again, for the question whether there was any instrumental music recorded with his voice, his answer was in the negative. To the next question whether any payment was made to him, his answer was that the entire amount was given to Ms. Titas Mitra (who has recorded 85-90 lessons). Thereafter, according to the report, an opportunity was given to the Applicant to cross-examine the aforesaid witness but the Applicant has stated that there were no questions for him in cross examination. Thereafter, Mr. B.K. Prabhakar, Language Lab. Technician, CIIL, Mysore was examined. The question was whether he had paid Rs.500/- to Sr. S.M. Sahadevan. The answer was he did not know the exact amount paid. Further, he has stated that he had handed over the envelope to him but somebody has given the cover to him. The next question was who asked him to hand over the envelope and the answer was the Applicant asked him to do so. He has also stated that the Applicant was his immediate boss so the question as to how many people were involved in recording the lessons? The answer was he was not remembering the actual number of people there. Dr. Chandan Hazra, Mr. Sahadevan and one more lady were there. Thereafter, the statement of Mr. Prabhakar was recorded. He has stated that for recording Intensive Course lessons, he required nearly 45 minutes and so many exercises were also there. Further, he has stated that the Applicant told him to record different lessons in different voices and the number of days when Mr. Sahadevan came was not known to him but it could have been for 5-10 days. He has also stated that the voices of Dr. Chandan Hazra and Ms. Titas Mitras were recorded for a long time and Mr. Sahadevan came only for 5 days for a few lessons. He has also stated that from the voucher, it was seen that the musical instruments used were Guitar, Violin, Flute, Tabla and Mrudangam. He has also stated that all the musicians used to bring electronic synthesizer, key board etc. for recording. Further, he has stated that the recording was done separately and voice recording was done by Dr. Chandan Hazra during office hours or whenever he was free. He stated he could not identify the musicians present there but he said he could recognize Mr. Sahadevan because he used to come for recording frequently. He has also stated that no payment was made by him except to Mr. Sahadevan. Further, he has stated that when the envelope was given, he did not mention whether it was given by the Applicant or not. The Enquiry Officer also recorded the statement of the Applicant that the musicians did not come individually but they come in group and the money was paid to the leader of the group and not to individuals and he has produced the receipts of payments made. However, in the aforesaid proceedings only the signature of the Enquiry Officer and the witnesses were there. Neither the Applicant nor the Presenting Officer put their signatures.
11. The respondents have filed their reply stating that a proposal was received from Language Bureau of the Ministry of HRD for initiation of disciplinary proceedings against Dr. Kedutso Kapfo, Reader-cum-Research Officer, CIIL, Mysore for allegedly submitting fake bill by him for adjustment of the advance of Rs.50000/- sanctioned to him for recording of the academic programme Audio Recording of Intensive Course in Bengali and accordingly with the approval of Honble Human Resource Development Minister disciplinary proceedings for Major Penalty vide Memorandum No. C.14011/5/2004-Vig dated 07.12.2004 were initiated against Dr. Kedusto Kapfo under Rule 14 of CCS (CCA) Rules, 1965. They have further stated that since the explanation furnished by the Applicant was not found satisfactory, the competent authority decided to appoint an I.O. to inquire into allegations leveled against him. Accordingly, Shri B. Anand, Director in the Department of Higher Education was appointed as Inquiry Officer vide order dated 16.08.2005. The Inquiry Officer, vide his report dated 15.03.2007, held the charges levelled against him stands proved. After the conclusion of the inquiry, Honble HRM on behalf of the President who is the disciplinary authority tentatively proposed to impose the major penalty of compulsory retirement. Thereafter, the case was sent to UPSC for their advice. The UPSC advised that the ends of the justice would be met by imposing the penalty of reduction by five stages in the time scale of pay (Rs.12000-420-18300, pre-revised) till his retirement with the stipulation that he will not earn increments of pay during the period reduction, viz. three stages in the time scale of pay plus two stagnation increments drawn by the charged officer. Thereafter, the file was referred to Central Vigilance Commission for their second stage advice in the matter. The Commission, vide their O.M. dated 21.01.2009, has stated that they have already advised imposition of major penalty on the Applicant and since the penalty advised by the UPSC is also major penalty, the Commissions advice was not in variance with the UPSC advice and reiterated its earlier advice. Accordingly, the Disciplinary Authority imposed upon the Applicant, the penalty of reduction by five stages in the time scale of pay (Rs. 12000-420-18300, pre-revised) till his retirement with the stipulation that he will not earn increments of pay plus two stagnation increments drawn by him, vide order dated 26th February, 2009. Thereafter, the Applicant, vide his letter dated 17.12.2011, represented against the imposition of the penalty inter-alia stating that the punishment was most unwarranted and was highly disproportionate to the allegedly proved guilt. The said representation was examined but found that it was made after considerable delay whereas, as per the rules, representation/revision petition against the imposition of the penalty was to be preferred before six months of the date of the order sought to be revised which is 26.02.2009. The disciplinary authority has, therefore, rejected the representation vide order dated 10.02.2012.
12. As regards the grounds are concerned, the Respondents have not given any answer.
13. We have heard the learned counsel for the Applicant Shri Sudhir Kumar C.S. and the learned counsel for the Respondents Shri Tanveer Ahmed. The Applicant has challenged the Memorandum dated 07.12.2004 proposing to hold an enquiry against him under Rule 14 of the CCS(CCA) Rules, 1965 and the order of the Disciplinary Authority dated 26.02.2009 imposing upon him the major penalty of reduction of pay by five stages in the time scale of pay (Rs.12000-420-18300) till his retirement with the stipulation that he will not earn increments of pay during the period of reduction, viz. three stages in the time scale of pay plus two stagnation increments upon him, after the enquiry was held in terms of the aforesaid Memorandum. Even though the Applicant has taken various grounds to challenge those impugned Memorandum and the order of the Disciplinary Authority, the Respondents did not reply to any of them stating that they are repetition of the facts of the case stated by him. We have, therefore, carefully perused the departmental file made available to us. It reveals that there is truth in the contentions of the Applicant and they merit consideration. First of all, we observe that the alleged incidents mentioned in the Memorandum of Charges dated 07.12.2004 occurred from 01.09.1998 to 30.09.1999. There is no explanation for the delay of more than 5 years for initiating the proceedings against the Applicant. Further, we find that the Respondent-Central Institute of Indian Languages (CIIL for short) and the Department of Higher Education had already taken the decision to initiate major penalty proceedings against the Applicant in consultation with the Central Vigilance Commission (CVC for short) much prior to the Disciplinary Authority has even seen his case. Thereafter, the CIIL prepared the draft-sheet based on their Preliminary Enquiry report and placed it before the Disciplinary Authority (Human Resource Minister on behalf of the President) for his approval and the Disciplinary Authority simply signed the note prepared by the Department of Education. As held by the Apex Court in the case of Union of India & Others vs. B.V. Gopinath 2014(1) SCC 35, Rule 14 of CCS (CCA) Rules, 1965 requires that it is the Disciplinary Authority which has to take the decision to initiate enquiry against the Government servant and then to draw up or cause to be drawn up the charge sheet. In other words, it is not just sufficient that the post-decisional approval is taken from Disciplinary Authority to initiate disciplinary proceedings against the Government servant and the Disciplinary Authority simply approves the charge already drawn against the Government servant. However, in this case both official Respondents, namely, the CIIL and the U.O.I., Department of Higher Education had already taken the decision to initiate the disciplinary proceedings against the Applicant in consultation with the CVC and had also drawn the charge. The Disciplinary Authority has only simply appended its signature as token of his approval. In fact the Disciplinary Authority has not applied its mind in the matter at all.
14. Further, it is seen that even though it has been stated in the Memorandum dated 07.12.2004 that a list of witnesses by whom the Article of Charge was proposed to be proved was enclosed, the Respondents have withheld the same from the Applicant in an arbitrary manner but insisted that he shall submit his defence statement within 10 days. Even when the Enquiry Officer held the proceedings on 19.10.2005, the said list was not made available to the Applicant. The Disciplinary Authority had also not supplied the copy of the Preliminary Enquiry Report as well as the copies of the statements of the witnesses made during the Preliminary Enquiry but they have been relied upon by the prosecution. Finally, it was only at the intervention of the Presenting Officer, these documents except the copy of the Preliminary Enquiry Report was supplied to the Applicant in January, 2006. In our considered view, the opportunity provided to a delinquent official to furnish his defence statement cannot be treated as an empty formality by the Disciplinary Authority. To furnish such defence statement, the delinquent official should have the accessibility to all the relevant documents including the statements relied upon by the Disciplinary Authority and the list of witnesses. Denial of such documents and the list of witnesses is nothing but denial of reasonable opportunity. Under Rule 14(4) of the CCS (CCA) Rules, 1965, it is mandatory that the list of documents and list of witnesses shall be delivered to the delinquent Government servant to submit his written statement of defence. The said rule reads as under:-
(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
15. Further, it is seen that he Applicant has submitted a detailed defence statement on 17.12.2004 denying the charge and requesting to drop them. However, the Disciplinary Authority has not even seen or considered the same. On the other hand, it is mandatory for the Disciplinary Authority to consider the defence statement of the delinquent Government servant. It is only after considering the defence statement, the Disciplinary Authority or the Inquiring Authority, as the case may be, enquire into the Article of Charges. In other words, it is only after receipt of the statement of defence, the Disciplinary Authority has to take the decision to inquire into the Articles of Charges. If the Disciplinary Authority decides to hold the enquiry, it may itself hold the enquiry or appoint an Enquiry Officer and Presenting Officer to hold the enquiry. Therefore, the submission and receipt of the defence statement are also cannot be treated as empty formalities but it has to be duly considered by the Disciplinary Authority. In this regard, sub-rule (5) of Rule 14 ibid is relevant and it reads as under:-
(5)(a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 15.
(b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authority for the purpose.
(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge.
16. We may also have a look at the list of documents. As argued by the learned counsel for the Applicant, the authors of the documents were not made witnesses in the enquiry. The third document, namely, the letter No.F.19-22/98-99 (Bengali) dated 13.06.2000 to Dr. Chandan Hazra, RA was written by Shri S.C. Sharma, Deputy Director. The 5th documents, namely, six identical letters written to the signatories to the Vouchers admitted by Dr. Kapfo (No.3-9/OC/2000-2001/Accts. dated 10.07.2000) were written by Shri I.J. Sunny, Assistant Accounts Officer. The 8th and 9th documents were written by the Applicant himself to the Director, CIIL. As pointed out earlier, the Respondents have initially not furnished the list of witnesses along with the Memorandum dated 07.02.2004. Further, the Respondents have not disclosed the names of the authors of the listed documents. It is also seen that the Respondents did not include Shri S.C. Sharma, the Deputy Director, CIIL, the Director, CIIL and Shri I.J. Sunny, the Assistant Accounts Officer, thereby they have denied the reasonable opportunity to the Applicant to cross-examine those officers. In fact, before the list of witnesses was furnished to the Applicant itself, in his defence statement, he has clearly stated that the allegations against him was made by Shri I.J. Sunny, Assistant Accounts Officer and it was on the basis of those allegations, his Controlling Officer Mr. J.C. Sharma had already ordered an enquiry in the matter and he had reported that the irregularities whatsoever alleged against him were baseless. Thereafter, Shri Sunny, without any authorization, conducted an enquiry in the matter by writing letters to different private persons and the new Director, at his instance, constituted again a three member Committee. The Applicant in his representation against the Enquiry Report has also stated that the reason for re-opening the closed file against him and conducting a re-enquiry against him on charges in which he was already exonerated by Mr. J.C. Sharma, was due to the mala fide and vindictive attitude of the new Director, Mr. Udaya Narayana Singh. It is a well settled law and one of the basic principles of natural justice is that the delinquent employee should have the reasonable opportunity to cross examine the persons who have made allegations against him. It is only after due cross examination of such persons, the Enquiry Officer himself can come to the conclusion whether the charges have been proved or not. Therefore, in the absence of any witnesses, if the Enquiry Officer comes to the conclusion that the charges have been proved, such findings can only be termed as perverse report and the same cannot be accepted. In this regard, judgment of the Apex Court in the case of Roop Singh Negi Vs. Punjab National Bank & Others 2009 (2) SCC 570 is relevant. It has been held by the Apex Court that documentary evidence are required to be proved not by mere production of the documents before the Inquiry Officer but it has to be proved by examining the concerned witnesses. The relevant part of the said judgment reads as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a 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 proceeding. No witness was examined to prove the said documents. The management witnesses 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.
17. Further, it is seen that the Enquiry Officer has conducted himself in a manner inconsistent with the principles of natural justice. He did not allow the Applicant to be present during the enquiry proceedings on 18.10.2006 on which date the Language Laboratory Technician Mr. B.K. Prabhakar was examined. In the order sheet there were the signatures of only the Enquiry Officer and the witness Shri Prabhakar. At the end of the proceedings, the Enquiry Officer and the witnesses jointly recorded that the Applicant told that the musicians did not come individually but in group and money was paid to the leader of the group. Same was the position on that date when Dr. A.K. Basu and Shri S.M. Sahadevan were examined. Even though in the order sheet it has been shown that the Applicant was present, his signature was not obtained on the order sheet. The Enquiry Officer simply stated that the opportunity was given to the Applicant but he said that he did not have any question. Such a statement of the Enquiry Officer is not trustworthy so long as the signature of the Applicant was not obtained on the order sheet, particularly when the signature of the witness was obtained. The denial of opportunity to cross-examine those witnesses has vitiated the entire enquiry proceedings and those documents remained not proved.
18. The Enquiry Officers report also lacks fairness. Not a single witness has proved any of the listed documents. The UPSC, when the case of the Applicant was referred to it by the Disciplinary Authority, itself has observed that the Enquiry Officer while conducting the enquiry proceedings has committed the following procedural irregularities:-
(i) The IO has not asked the CO to submit his statement of defence either orally or in writing after the case for the DA is closed, as is required under Rule 14 (16) of the CCS (CCA) Rules, 1965.
(ii) The General Examination of the CO by the IO has not been done before concluding oral inquiry, as is required under Rule 14 (18) of the Rules ibid.
The aforesaid Rules provide as under:-
Rule 14 (16) (16) When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. Rule 14 (18) (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.
But the Disciplinary Authority did not rectify those defects. Thus the Enquiry Officer has violated the mandatory sub-rules (16) and (18) of Rule 14 of the CCS (CCA) Rules, 1965.
19. Further, the Disciplinary Authority has imposed the major penalty upon the Applicant in violation of the principles of natural justice. After the Enquiry Officer has submitted its report, the case was referred to CVC for its advice and the CVC advised for imposition of suitable major penalty upon the Applicant. A copy of the aforesaid advice was never furnished to the Applicant. The Disciplinary Authority has also referred the case to the UPSC for its advice. The UPSC has called for the preliminary enquiry report dated 02.03.2001 and the Applicants CR dossier along with other documents in the enquiry proceedings. The Disciplinary Authority, thereafter, vide its letter dated 18.03.2008 supplied the authenticated copy of the aforesaid preliminary enquiry and CR dossier. The UPSC thereafter considered the various documents including the Preliminary Enquiry Report dated 02.03.2001 and the upto date CR dossier of the Applicant and tendered its advice on 03.09.2008. In the said advice, UPSC held that the charge against the Applicant was established and constitute very grave misconduct. The Commission further advised the Disciplinary that the ends of justice would be met in this case if the penalty of reduction of COs pay by five stages in the time scale of pay (Rs.12000-420-18300) till his retirement with the stipulation that he will not earn increments of pay during the period of reduction, viz. three stages in the time scale of pay plus two stagnation increments drawn by the CO is imposed upon him. Thereafter, the Disciplinary Authority issued the impugned order dated 26.02.2009 imposing the major penalty of reduction of pay by five stages in the time scale of pay (Rs.12000-420-18300) till his retirement with the stipulation that he will not earn increments of pay during the period of reduction, viz. three stages in the time scale of pay plus two stagnation increments drawn by Dr. Kapfo. Since the Disciplinary Authority did not follow the mandatory provision of Rule 32 of the CCS (CCA) Rules, 1965, the Commission vide its letter dated 12.03.2009 directed the former to confirm whether a copy of its advice was furnished to the Applicant or not. The said rule is reproduced as under:-
32. Whenever the Commission is consulted as provided in these rules, a copy of the advice by the Commission and where such advice has not been accepted, also a brief statement of the reasons for such non-acceptance, shall be furnished to the Government servant concerned along with a copy of the order passed in the case, by the authority making the order. It was only thereafter, the Disciplinary Authority, vide its letter dated 18.03.2009, forwarded a copy of the aforesaid advice of the Commission to the Applicant. In the case of Union of India and Others Vs. S.K. Kapoor 2011 (4) SCC 589 the Apex Court has held as under:-
4. We have perused the impugned order and find no infirmity in the same.
5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
9. It may be noted that the decision in S.N. Narula's case (supra) was prior to the decision in T.V. Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narula's case (supra) was not noticed in T.V. Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
10. For the aforesaid reasons, this appeal is dismissed. Parties shall bear their own costs.
20. In the above facts and circumstances of the case, we have no option but to hold the advice of the UPSC illegal. It is based on extraneous documents such as the preliminary enquiry report, the copy of which was never been supplied to the Applicant in spite of the repeated request made by the Applicant. Secondly, the UPSC has relied upon the CR dossier of the Applicant which is also an extraneous document, before tendering its advice and the same has also been done in violation of the principles of natural justice. Therefore, the order of the Disciplinary Authority following the aforesaid illegal advice of the UPSC is also untenable. We also observe that the penalty imposed upon the Applicant is outside the scope of Rule 11 of CCS (CCA) Rules in which the minor and major penalties are prescribed. The penalty imposed upon the Applicant is more close to the (v)th penalty mentioned in Rule 11 which reads as under:-
(v) save as provided for in clause (iii) (a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay.
While the aforesaid rule prescribes the duration of penalty shall be for a specified period it cannot be ordered that it shall be till the retirement. Again, the further stipulation that he will not be entitled for the two stagnation increment is also outside the scope of punishment.
21. We, in the above facts and circumstances of the case, quash and set aside the impugned advice of the UPSC and the order of the Disciplinary Authority based on the said advice. Resultantly, the Respondents shall restore the pay of the Applicant and release all the increments denied to him by passing appropriate orders within a period of two months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh