Central Administrative Tribunal - Ahmedabad
R.P. Jadeja vs Union Of India (Uoi) And Ors. on 7 February, 2003
Equivalent citations: 2004(1)SLJ138(CAT)
JUDGMENT A.S. Sanghvi, Member (J)
1. The applicant who was working as an Inspector of the Central Excise and Customs under the respondent No. 3 was served with a charge sheet on 5.12.94 under Rule 14 of the Central Civil Services (CCA) Rules, 1965 levelling imputations of misconduct as well as failure to maintain absolute integrity and devotion to duty and attempted to influence the DRI Officer etc., and on the applicant denying the charges levelled against him the departmental inquiry in the charges was held against him. The inquiry officer submitted his report on 23.5.97 and the same was communicated to the applicant on 23.7.97. The inquiry officer had held that out of the three charges leveled against the applicant two were proved and the third one was not proved. The applicant submitted his representation against the inquiry officer's report to the disciplinary authority on dated 5.9.97. The disciplinary authority thereupon imposed the punishment of dismissal from service on the applicant vide his order dated 7.10.97. The disciplinary authority while passing the said order disagreed with the findings of the inquiry officer on the third charge and held that all the three charges including the charge of Article No. 3 were proved. The applicant thereupon preferred appeal before the appellate officer on 7.10.97 elaborately pointing out that there was no evidence against him and that the disciplinary authority as well as the inquiry officer had erred in holding him guilty of the misconduct. It was also pointed out that the disciplinary authority had consulted the CVC before imposing the punishment on him and the recommendations obtained from the CVC though accepted and relied on and acted upon by the disciplinary authority were never made known to the applicant. It was also pointed out that though the disciplinary authority disagreed with the finding of the inquiry officer with regard to the third charge, no opportunity of being heard in this regard was given to the applicant prior to the holding the charge as proved by the disciplinary authority. The appeal was decided by the appellate officer vide his order dated 24.8.98 setting aside the finding of the disciplinary authority regarding Article 3 of the charge and agreeing with the finding of the inquiry officer in that regard. The appellate authority also reduced the quantum of penalty by setting aside the penalty imposed by the disciplinary authority and reinstating the applicant in service and imposing the penalty of reduction of pay for two stages for a period of 4 years with effect from 8.10.97. According to the applicant he had not challenged the order of the appellate authority any further and had accepted the penalty imposed on him. However to his great shock and surprise he received a notice on dated 7.5.99 telling him that the respondent No. 1 in exercise of his power under Rule 29(i)(1) of the CCS (CCA) Rules proposed to review the said order dated 24.8.98 of the appellate authority and to impose a suitable penalty and asked him to show cause why the said order of the appellate authority be not reviewed and set aside and suitable penalty imposed. The applicant made his written representation in reply to this show cause notice on dated 14.6.99 and for a long time there was no response from the respondents. He was therefore shocked and surprised to receive the communication dated 9.1.2002 along with the order dated 24.12.2001 saying that the respondent No. 1 had accepted the advise of the UPSC and the orders of the authorities below were set aside and the proceedings are directed to be restarted from the stage of communicating the reason of disagreement of disciplinary authority with the findings of the inquiry officer and the CO should be given the opportunity to make an effective representation in relation to Article 3 of the charge and thereafter the disciplinary authority should pass a fresh order. According to the applicant such an order is illegal and unlawful and cannot be sustained in the eye of law. According to the applicant once he had accepted the penalty and undergone the punishment prescribed, it was not open for the respondent No. 1 to either revise or review the appellate officer's order. According to him, under Rule 29, powers of revision are to be exercised within 6 months from the date of passing the order under revision. The order of the appellate authority was passed on 24.8.98 and the notice of revision was not even issued within 6 months. The notice of the proposed revision was issued on 1.5.99 i.e., long after 6 months were over and therefore the impugned exercise of power was not within limitation. The applicant has also taken exception to the advise given by the UPSC and has contended that the UPSC had exceeded its jurisdiction in giving such advise. It is also contended that under Rule 29(1)(vi)(c) the case could be remitted to the lower authority for making such further inquiries as it may consider proper, but such powers 9annot be exercised for correcting the mistake or for plugging the loopholes left in conducting the inquiry. The respondent No. 1 in fact remitted the matter to the disciplinary authority for supplying copy of disagreement and to start de novo inquiry from that stage which would amount to correcting the mistakes by the appellate officer and hence the whole order is erroneous. It is also contended that illegality of relying on the statement of two witnesses without offering them for cross-examination to the applicant and CVC's advise having been obtained by disciplinary authority and his relying thereon and without supplying the copy thereon to the applicant was completely overlooked by the respondent No. 1. They go to the root of the matter and while considering the revision the same had been completely ignored by the revisional authority. The applicant has therefore prayed for setting aside the order of the revisional authority.
2. The respondents in their reply have contended inter alia that the application is misconceived and requires to be rejected. They have not disputed the factual aspect of the case and have observed that after the appeal was preferred against the order of the disciplinary authority, the appellate authority had given the applicant personal hearing and the appellate authority, being of the view that there has been no statutory provision to give notice to the delinquent by the disciplinary authority, about disagreement with the findings of the inquiry officer, the appellate authority did not consider the same as violative of the principles of natural justice. The appellate authority thereafter modified the order passed by the disciplinary authority and directed that the applicant should be taken on duty and thus reduced the penalty. It is also contended by the respondents that the President of India is a reviewing authority under Rule 29 of the CCS (CCA) Rules. He has all powers to review or revise any order made under CCS (CCA) Rules at any time either on his own or his opinion or call for the records of any inquiry. Accordingly the President of India has reviewed the order passed by the appellate authority on dated 24.8.98 reducing penalty of dismissal imposed by the disciplinary authority. Hence, the show cause notice was issued to the applicant and he was called upon to make his submissions vide show cause notice dated 7.5.99. It is also contended by the respondents that since it was obligatory to obtain the advise of UPSC, whenever the President of India has to pass some order, the advise of the UPSC was sought. The UPSC was of the view that the order passed by the disciplinary authority as well as the order passed by the appellate authority were bad in law and hence they should be set aside and the proceedings should be restarted from the stage of communicating the reason for disagreement of the disciplinary authority in relation to Article 3 of the charge and to pass the order accordingly. Since the advise of the UPSC was found to be fair, just and reasonable on over all considerations, the reviewing authority had accepted the same and issued the impugned order. The respondents have maintained that the order of fresh inquiry during the stage of supplying of the reasons of disagreement by the disciplinary authority is a proper and fair order which does not prejudice the applicant and hence there is no reason to challenge the same. They have maintained that Rule 29 clearly empowers the President to review the matter at any time and it is not necessary that the powers arc to be exercised only within 6 months from the date of the passing of the order under revision. They have prayed that the O.A. be dismissed with costs.
3. We have heard the learned Advocate of both the parties and with their consent we are disposing of this O.A. at the admission stage.
4. So far the factual aspects of the case are concerned, it is undisputed position that the applicant was served with a charge sheet and ultimately the disciplinary authority had imposed punishment of removal from service on him. It is also not in dispute that in appeal the punishment had been reduced by the appellate authority to that of lowering to the two stages of withholding of the increments for 4 years. The say of the applicant is that he had accepted the order of the appellate authority and had preferred to undergo the penalty imposed by the appellate authority on him. The respondent No. 1 had however served him with a show cause notice on 7th May, 1999 exercising the powers under Rule 29(1) (i) of CCS (CCA) Rules deeming it expedient to review the said order dated 24.8.98 of the appellate authority and to impose a suitable penalty directing the applicant to show cause as to why the order of the appellate authority be not reviewed and set aside and suitable penalty be imposed. The first contention of the applicant is that once he had already undergone the penalty and the limitation period of 6 months for revising the order of the appellate authority had expired, the respondent No. 1 could not have served him with such show cause notice and could not have issued the impugned order of directing the fresh inquiry from the stage of the supplying of the reasons of disagreement by the disciplinary authority. Mr. Kureshi, learned Advocate appearing for the applicant has drawn our attention to the word 'review' used in the show cause notice as well as the impugned order to contend that the President could not have reviewed the appellate authority's order when any new material or evidence was not available or not brought to his notice. He has pointed out that the power of review is to be exercised only under Rule 29A of the CCS (CCA) Rules and not under Rule 29. According to him, it was not expected of such a responsible person to use the word 'review' when in fact no review was undertaken. There is lot of substance in the submission made by Mr. Kureshi. When the rules make a clear distinction between the revision and review, if the president was exercising powers under Rule 29 (1) (i) of the CCS (CCA) Rules, he ought to have mention that he was entertaining a revision and not the review. In any case it clearly appears from the show cause notice as well as from the impugned order and the UPSC's report that whatever contemplated was the revision of the order of the appellate authority and not the review.
5. The next question raised was regarding the limitation of entertaining the revision against the order of the appellate authority. It is vehemently contended by Mr. Kureshi for the applicant that under Rule 29(1) the limitation prescribed is of 6 months from the date of the order proposed to be revised and since the order is sought to be revised much after the expiry of the period of 6 months the revision order is bad in law. Ms. Sheth learned Advocate for the respondents on the other hand has pointed out that the period of 6 months prescribed is only with regard to the appellate authority and so far the President and other revisional authority mentioned in the Rule 29 is concerned, no limitation is prescribed. She has pointed out that it is clearly mentioned in the Rule itself that the President or the other revisional authorities specified in the rules may at any time on their own or on its own opinion or otherwise call for the record of the inquiry and revise any order made. According to her, the President could revise the orders of the appellate authority at any time and there is no embargo placed on his powers to revise the same. After carefully considering of the Rule 29, we find ourselves in agreement with the submission of Ms. Sheth that the revisional powers could be exercised by the President under Rule 29 at any point of time and there is no limitation prescribed for considering the revision by the President.
6. The next contention of Mr. Kureshi was that the applicant had already accepted the verdict of the appellate officer and had undergone the penalty imposed on him. According to him, once he had already underwent the penalty he cannot again be treat for the same offence or the same charges and hence the order of the President directing the de novo inquiry in the same charges cannot be sustained. It is pertinent to note that the respondents in the reply have not denied that the applicant has already undergone the penalty imposed by the appellate authority. It is not the case of the respondents that once the President had considered to revise the orders of the appellate authority, the disciplinary authority or the appellate authority were given directions not to implement the orders of the appellate authority. The 'maxim Nemo debit bis vexari' i.e., no man should be twice vexed, is clearly attracted in the facts of the case. It was always open to the President acting as a revisional authority to enhance the penalty or reduce the penalty imposed by the appellate authority or the disciplinary authority. But it is not open to the President also, to direct a fresh inquiry in the same charges for which the delinquent has been found guilty and punished and all the more when he has already underwent the punishment. The applicant has in no uncertain terms averred in his O.A. that he had accepted the penalty imposed on him by the appellate authority and has also undergone the penalty. The respondents in their reply have nowhere stated that the penalty imposed by the appellate authority was stayed or that the appellate authority was directed not to implement the penalty. Consequently the result is that applicant has already undergone penalty and therefore now he cannot be asked to fact the same charges for which he has already been found guilty and has already undergone the punishment.
7. If the applicant is allowed to fact the fresh inquiry in the charges already held to have been proved and hence having been punished and underogne the punishment, and subsequent to the fresh inquiry, if he is exonerated of the charges in the fresh inquiry a complex situation will arise. Even if he is not exonerated and found guilty and imposed with some punishment it will be the second punishment that he would be undergoing as no orders with regard to the first punishment have been passed by the President. The President as a competent authority has set aside the order dated 7.10.97 of the disciplinary authority as well as the order dated 24.8.98 of the appellate authority and directed that the proceedings will be started in the manner as mentioned in para 8 of the order but has nowhere directed that along with the setting aside of the order of the appellate authority the applicant will be restored in the position he was prior to the imposition of the penalty on him. No order is shown to us by the respondents suggesting that the applicant has been restored the position prior to the imposition of the penalty by the appellate authority on him. We therefore find that the order of restarting the proceedings cannot be sustained and applicant cannot be made to face the same inquiry proceedings again.
8. Furthermore, the ground on which the appellate authority's order is quashed and set aside also does not stand the scrutiny of the judicial review. The revisional powers are not to be exercised for filling up the gaps in the evidence or to plug the loopholes in the inquiry. The President has exercised the revisional powers to set aside the orders of the appellate authority as well as disciplinary authority and directing the inquiry to be restarted from the stage of communicating the reason of disagreeing of disciplinary authority with the findings of the inquiry officer, on the advise of the UPSC. The UPSC has also clearly not considered the fact that the grievance about the non-supply of the reasons of disagreement of disciplinary authority with the findings of the inquiry officer was raised by the applicant and ultimately when the appellate officer rejected the said grievance he had accepted the verdict of the appellate officer. It is to be seen that appellate officer had not set aside the order of the disciplinary authority on this ground but had interfered with the punishment imposed on the applicant by the disciplinary authority on some other grounds. It was therefore not open to the UPSC also to conclude that this was a ground which had vitiated the inquiry proceedings and had let the appellate officer to reduce the penalty. The revisional powers were exercised by the President to modify the penalty as can be seen from the show cause notice given by the President and not for rectifying the lacuna in the proceedings. The show cause notice reveals that the President was of the opinion that the appellate authority had not properly appreciated the facts of the case. He has not drawn the conclusion that the appellate authority had committed mistake in holding that the inquiry was vitiated on account of the non-supply of the reasons of disagreement of the disciplinary authority with the findings of the inquiry officer and therefore the whole inquiry required to be restarted. It is therefore quite obvious that the reason on which the impugned order of the President is passed is not in consonance with the allegation which were asked to be replied to by the applicant in the show cause notice. The UPSC has concluded that by non-supplying of the reasons of disagreement on the part of the disciplinary authority had denied the reasonable opportunity to the applicant to defend himself and the order of the appellate authority is also bad in law as the contention of the delinquent was overruled without assigning any basis. If that had been so, the inquiry ought to have been held to have been vitiated and quashed on that ground but there was no reason for the revisipnal authority to direct a fresh inquiry into the charges, all the more when the applicant had already undergone the punishment. We therefore find that the impugned order dated 24.12.2001 cannot be sustained and the same deserves to be quashed and set aside. In the conclusion therefore we allow this O.A. and quash and set aside the impugned order dated 24th December, 2001 directing the start of the fresh inquiry in the charges levelled against the applicant from the stage of communicating the reasons of disagreement of the disciplinary authority with the findings of the inquiry officer. The O.A. stands disposed of. No order is passed as to costs.