Central Administrative Tribunal - Allahabad
Rajni Kant Pandey vs Union Of India Through General Manager on 7 October, 2010
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 07 DAY OF 10, 2010) Honble Dr.K.B.S. Rajan, Member (J) Honble Mrs. Manjulika Gautam Member (A) Original Application No.1004 of 2007 (U/S 19, Administrative Tribunal Act, 1985) Rajni Kant Pandey, aged about 38 years, S/o Late Shri B.N. Pandey, R/o Gate No.5, Kotwa Road, Gangapuri Colony, Phoolwaria, Varanasi. Applicant Present for Applicant : Shri K. K. Mishra, Advocate Versus 1. Union of India through General Manager, North Eastern Railway, Gorakhpur. 2. Divisional Railway Manager, North Eastern Railway, Varanasi. 3. Senior Divisional Personnel Officer, North Eastern Railway, Varanasi. 4. Senior Divisional Commercial Manager, North Eastern Railway, Varanasi. 5. Dr. V.K. Singh, Divisional Commercial Manager, North Eastern Railway, Varanasi. Respondents Present for Applicant : Shri P.N. Rai, Advocate O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) An inadvertent error emanating from non-adherence to rules of procedure prolongs the life of litigation and gives rise to avoidable complexities. The present one is a typical example wherein a stitch in time would have saved nine.
Apex Court in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan,(2003) 1 SCC 197
2. The applicant, a compassionate appointee entered the service as a commercial clerk in 1994 and at the material point of time was posted at Varanasi City, as Head Commercial Clerk. He was served with annexure A-3 S.F. 5 memorandum of charges in June 2006 containing the following charges:-
Repeat charge 1 and 2 as in page 36 of the O.A. vkjksi l0 1 %& Jh jtuhdkUr ik.Ms; us fnukad 04-12-05 dks viuh M~;wVh ds nkSjku fMDok; dks Nijk ls yqf/k;kuk f}rh; Js.kh esy @ ,Dl0 ds ,d fVdV dk fdjk;k :I; 204@& ds LFkku ij :i;k 214@ crk;k rFkk iWkp fVdVksa dk fdjk;k :i;k 1020@ ds LFkku ij :i;k 1070@ crk;k ekaxk ,oa fy;k cnys esa iWkp ;wVh,l fVdV la0 , 74878095 ls , 74878099 rd fn;k A bl izdkj bUgksaus izfr fVdV :i;k 10@ dh nj ls 5 fVdVksa dk dqy :i;k 50@ vf/kd fy;k A vkjksi l0 2 %& buds ljdkjh /ku dh tWkp dh x;h tWkp ds le; budk ljdkjh /ku :i;k 62265@ ik;k x;k tcfd Mh0Vh0lh0 la0 , 7487100 ds vuqlkj budk ljdkjh /ku :I;k 62215@ gksuk pkfg;s Fkk bl izdkj budk ljdkjh /ku :I;k 50@ vf/kd ik;k x;k A Jh jtuhdkUr ik.Ms; ds mijksDr dnkpkj ds d`R;ksa ls budh lR;fu"Bk ,oa drZO;fu"Bk lafnX/k ik;h x;h rFkk lkFk gh budk ;g vkpj.k jsy deZpkjh ls visf{kr lkekU; O;ogkj ds izfrdwy gS A budk mijksDr d`R; jsy lsok <vkpj.k= fu;e 1966 ds 3-4 ds mifu;e <I=<II= ,oa <III= ds izfrdwy gS A
3. The charges having been denied vide Annexure A-4, the respondents proceeded with the inquiry by appointing an inquiry officer who happened to be a Retired Railway officer. The applicant having found the inquiry officer to be biased, prayed for change of inquiry officer, vide Annexure A-6, which, however, stood turned down vide Annexure A-7. The applicant participated in the inquiry and the I.O. had rendered his finding to the effect that charge 1 stood proved and charge 2 not proved. Opportunity to represent against the inquiry report had been given to the applicant, vide annexure A-8 and the applicant made his representation, vide Annexure A-10.
4. The disciplinary authority, on receipt of the representation of the applicant, thereafter, disagreed with the findings of the I.O. in respect of charge II and held that the same too stood proved and imposed the major penalty of compulsory retirement of the applicant, vide Annexure A-11 order dated 26th April, 2007.
5. The Applicant had preferred an appeal, vide Annexure A=Annexure A-12, which was rejected vide Annexure A-13 order dated 25th July 2007.
Hence, the applicant had filed this OA on the following grounds:-
(a) The third respondent who had imposed the penalty of compulsory retirement is not competent to impose such a penalty as the said authority was not the appointing authority of the Applicant, who is in the grade of Rs. 5000 8000/-.
(b) The appellate Authoritys order is not a speaking order as required vide Ram Chander vs Union of India (1986) 3 SCC 103 and in addition it lacks application of mind of the appellate authority.
(c) Charge No. 2 is an integral part of charge I though split into two and when the said second charge has not been found proved, the first charge also should have been held so. The I.O. has erred in this regard.
(d) While disagreeing with the report of the Inquiry Officer, the disciplinary authority had failed to give notice to the applicant to rebut the same. This is against the decision by the High Court (Lucknow Bench) in the case of Jagdish Prasad Yadav vs State of U.P. (UP Local Bodies and Educational Cases 2001 page 1039).
(e) Inquiry by the retired officer is not permissible as per the decision of the Apex Court in the case of Ravi Malik Respondents have contested the O.A. They have contended that there is no legal lacuna in conducting the inquiry and the disciplinary authority has the competence to award the punishment to the applicant and the appellate authority had considered the appeal in accordance with law. Thus, the decision making process being in accordance with law, the OA is liable to be dismissed.
6. The applicant filed his rejoinder, rebutting all the contentions of the respondents and reiterating the contentions and grounds raised in the O.A. He has also relied upon various decisions including the following:-
(a) Union of India vs Hasmukhbhai Hirabhai Rana (2006) 12 SCC 373 (relating to who could be the disciplinary authority/appointing authority)
(b) Moni Shankar vs Union of India (2008) 3 SCC 484
7. Counsel for the applicant, after succinctly bringing out the facts of the case, straightway invited the attention to the decision in the Hasmukhbhai Hirabhai Rana to contend that as per the said decision, while an authority subordinate or lower than the Appointing authority could initiate the disciplinary proceedings, when it comes to the question of awarding of major penalties, it is the appointing authority who is competent to pass final order. The Counsel argued that in the case of the applicant, his appointment being on compassionate basis, the authority competent to make appointment under compassionate grounds is only the General Manager and hence, the order of penalty passed by any authority lower than the status of General Manager is illegal. In so far as the contention against the appointment of the retired officer as inquiry authority, the counsel fairly stated that he does not press that point, as the law has undergone a change in this regard.
8. Maximum stress has been laid down by the applicants counsel in respect of conducting the inquiry which is a trap case and the counsel argued that the provisions of rule 704 and 705 of the Manual have been given a complete go bye inasmuch as there is no proper independent witness, much less a gazetted officer and hence, the entire proceedings get vitiated. In this regard, heavy reliance had been placed upon the decision by the Apex Court in the case of Moni Shankar (supra).
9. The Senior Standing Counsel for the respondent refuted the argument relating to the competence of the disciplinary authority and argued that disciplinary Authority is for a particular post and not for a particular individual. May be that the applicant was appointed as a commercial clerk under compassionate ground, but the appointment made was only by that authority who is the authority for appointing commercial clerk. What is obtained from the General Manager is only the approval for such appointment. As regards the character of the case as one of Trap case, the Counsel endorsed the same. As regards witnesses, the counsel contended that all are serving officials and there is no flaw or deviation from the provisions of Rules relating to trap cases.
10. Arguments were heard and documents perused. Argument that the disciplinary authority in the case of compassionate appointees is the General Manager is thoroughly misconceived. For, though in certain cases, such as compassionate appointment, appointment under Sports Quota etc., the appointment authority may be a superior authority like the General Manager, once on the approval of the higher authority such an appointment has been made, the individual joins the main stream with others appointed in the same post (in the instant case, commercial clerk) and thereafter, they are treated at par with every other one for all purposes. As such, whoever is the disciplinary authority for that post, would be the disciplinary authority for such persons who have been appointed under a special quota. In this regard, reference is invited to the decision by the High Court of Kerala in the case of Union of India vs R. Harindrakumar (:WP) No. 28090 of 2006 (S) decided on 18th January, 2008, wherein the High Court has held as under
The explanation offered by the Railways for their pleadings in the reply taking that sanction alone is given by the General Manager and appointment made by the Chief Personnel Officer has to be accepted. Further we notice that Annexure 22 relied to relied on by the applicant will clinch the issue. The appointment authority for the purpose of imposing penalty as per Annexure A-22 is the authority competent to make appointment to the post held by the delinquent at the time of imposition of penalty. It is the common case that the Chief Personnel Officer is the competent authority for the present post held by him when the penalty was imposed. So, the said officer is competent to impose the penalty of compulsory retirement. In view of the above position we hold that the Chief Personnel Officer is competent the penalty of compulsory retirement from service on the respondent. He does not dispute that the persons in his cadre who came through other channel can be dismissed or removed or imposed a penalty of compulsory retirement by the chief Personnel Officer. The applicant cannot claim any special privilege on the ground that he was appointed in the Sports quota.
11. Admittedly this is a trap case. The rules governing the same have been explained in the case of Moni Shankar (supra). In fact, in an earlier case, the Apex court held that such rules are only guidelines and deviation from such cases would not be fatal to the inquiry. That point has also been discussed in Moni Shankar and it has been held that notwithstanding the fact that these are guidelines, substantial portion of the same is to be complied with and if not the inquiry is vitiated. The Apex Court in the case of Moni Shankar (supra) has held as under:-
10. We may at the outset notice that with a view to protect innocent employees from such traps, appropriate safeguards have been provided in the Railway Manual. Paras 704 and 705 thereof read thus:
704. Traps.(i)-(iv) * * *
(v) When laying a trap, the following important points have to be kept in view:
(a) Two or more independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence that the money was actually received as a loan or something else, if put up by the accused.
(b) The transaction should be within the sight and hearing of two independent witnesses.
(c) There should be an opportunity to catch the culprit red-handed immediately after passing of the illegal gratification so that the accused may not be able to dispose it of.
(d) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the Department or the police and are men of status, considering the status of the accused. It is safer to take witnesses who are government employees and of other departments.
(e) After satisfying the above conditions, the investigating officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of the SP, SPE, is not nearby and immediate action is required for laying the trap, the help of the local police may be obtained. It may be noted that the trap can be laid only by an officer not below the rank of Deputy Superintendent of Local Police. After the SPE or local police official have been entrusted with the work, all arrangements for laying the trap and execution of the same should be done by them. All necessary help required by them should be rendered.
(vi)-(vii) * * *
705. Departmental traps.For departmental traps, the following instructions in addition to those contained under Para 704 are to be followed:
(a) The investigating officer/Inspector should arrange two gazetted officers from Railways to act as independent witnesses as far as possible. However, in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff can be utilised.
All employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or branch. The Head of Branch should detail a suitable person or persons to be present at the scene of trap. Refusal to assist or witness a trap without a just cause/without sufficient reason may be regarded as a breach of duty, making him liable to disciplinary action.
(b) The decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the investigating officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the GC notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the investigating officer/Inspector. Another memo, for returning the GD notes to the decoy will be prepared for making over the GC notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and investigating officer/Inspector. The independent witnesses will take up position at such a place wherefrom they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the investigating officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money including private, and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called as a witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope.
(c)-(d) * * *
11. The trap was laid by the members of the Railway Protection Force (RPF). It was a pre-arranged trap. It was, therefore, not a case which can be said to be an exceptional one where two gazetted officers as independent witnesses were not available.
12. Indisputably the decoy passenger was a constable of RPF. Only one Head Constable from the said organisation was deputed to witness the operation. The number of witnesses was, thus, not only one, in place of two but also was a non-gazetted officer. It was a pre-planned trap and thus even independent witnesses could have also been made available.
13. When the decoy passenger purchased the ticket, the Head Constable was at a distance of 30 metres. The booking counter was a busy one. It normally remains crowded. Before the enquiry officer, the said decoy passenger accepted that he had not counted the balance amount received from the appellant after buying the ticket. It was only half an hour later that the vigilance team arrived and searched the appellant.
14. While we say so we must place on record that this Court in Chief Commercial Manager, South Central Railway v. G. Ratnam1 opined that non-adherence to the instructions laid down in Paras 704 and 705 of the Vigilance Manual would not invalidate a departmental proceeding, stating:
17. We shall now examine whether on the facts and the material available on record, non-adherence of the instructions as laid down in Paras 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order. It is not in dispute that the departmental traps were conducted by the investigating officers when the respondents were on official duty undertaking journey on trains going from one destination to another destination. The Tribunal in its order noticed that the decoy passengers deployed by the investigating officers were RPF constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation, etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory instructions contained in Paras 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries were held by the enquiry officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the inquiry reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are not sustainable under law. The High Court has observed that in the present cases the service of some RPF constables and railway staff attached to the Vigilance Wing were utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF constables, in no terms, can be said to be independent witnesses and non-association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the enquiry officers.
18. We are not inclined to agree that the non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained.
15. It has been noticed in that judgment that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the Department has been able to prove the charges against the delinquent official.
17. The departmental proceeding is a quasi-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 therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at 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 on such evidences, the test of the doctrine of proportionality 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. (See State of U.P. v. Sheo Shanker Lal Srivastavaand Coimbatore District Central Coop. Bank v. Employees Assn.) In the above case, that there was no gazetted officer to function as an independent witness had been considered enough to hold that the entire proceedings got vitiated. In the case of the applicant also, admittedly, there is no gazetted officer as independent witness. As such, the law laid down in Moni Shankar squarely applies to this case. Thus, the entire proceedings get vitiated.
Independent of the same, the decision by the disciplinary authority disagreeing with the findings of the inquiry authority is against principles of natural justice. In a very recent case of civil Appeal No. 7416/2010 (Punjab National Bank & Ors. Versus K.K. Verma) decided on 07th September, 2010, occasion arose of the very same issue and the Apex Court has held as under:-
21. Counsel for the appellant submitted that appellant's action was protected since the impugned order of removal was passed during this interregnum. On the other hand, the counsel for the respondent pointed out that though the observations in Karunakar (extracted above) explained the prospective application of the propositions in Mohd. Ramzan Khan, it also made it clear that where the service rules themselves made it obligatory, it was necessary to furnish a copy of the inquiry report to the employee. In this connection, counsel for the respondent pressed into service regulation 7 (2) and regulation 9 of the above referred service regulations under which the inquiry was held. (Regulation 8 is about minor penalties with which we are not concerned in this matter). These two regulations read as follows:-
7. Action on the Inquiry Report:
(1) The Disciplinary Authority, if it is not itself the Inquiry Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for fresh or further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 6 as far as may be.
(2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
(3) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in the regulation 4 should be imposed on the officer employee it shall, notwithstanding anything contained in regulation 8, make an order imposing such penalty.
(4) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned.
9. Communication of orders Orders made by the Disciplinary Authority under Regulation 7 or Regulation 8 shall be communicated to the officer employee concerned, who shall also be supplied with a copy of the report of inquiry, if any."
22. Regulation 7 thus, speaks of four kinds of orders to be passed by the Disciplinary Authority after receiving the report of the inquiry. (1) Order once again remitting the case to the inquiry officer, (2) Order recording disagreement with the inquiry officer, (3) Order imposing a penalty and (4) an order exonerating the employee. Regulation 7 (2) makes it clear that where the disciplinary authority disagrees with the findings of the inquiry officer on any article of charge, it must record its reasons for such disagreement. Regulation 9 provides that the orders made by the disciplinary authority under article 7 have to be communicated to the officer / employee concerned. He is also to be supplied with a copy of the report of the inquiry, if any. The counsel for the respondent submitted with much force that both these regulations when read together provide that when the disciplinary authority was differing with the inquiry officer, the report of the inquiry officer must be furnished to the employee before the decision on penalty was arrived at.
23. Regulation 7 (2) requires the Disciplinary Authority to record its reasons for disagreement wherever it disagrees with the findings of the inquiry officer. Regulation 9 provides for communicating to the employee concerned, the orders passed under Regulation 7, apart from providing him with a copy of the inquiry report. These regulations will have to be read as laid down only with a view to provide an opportunity to the employee to represent against the findings to the extent they are adverse to him. Then only they will become meaningful. The service regulations of the appellant are concerning the discipline and conduct in a nationalized bank which is an instrumentality of the state. The instrumentalities of the state have always been expected to act in fairness, and following the principles of natural justice has always been considered as a minimum expectation in that behalf. The above regulations will, therefore, have to be read as containing the requirement to furnish a copy of the inquiry report and the order of the Disciplinary Authority recording its disagreement therewith to the employee prior to any decision on the penalty being arrived at. That will secure to the delinquent employee an opportunity to make his submissions on the adverse findings and to prove his innocence.
24. The interpretation of regulation 7 (2) of the appellant bank is no longer res integra. In Punjab National Bank v. Kunj Behari Misra [1998 (7) SCC 84] this very question came up before this Court. Two Assistant Managers at the Lucknow Branch of the appellant bank viz. Kunj Behari Misra and S.P. Goel were charged for misconduct, when shortage of Rs. 1 lakh was detected in the branch on 10.11.1981. The inquiry officer held Mr. Misra guilty of only one out of the six charges viz. that he had not signed the concerned register at the relevant time. He exonerated Mr. Goel of all the charges. The disciplinary authority reversed the findings of the inquiry officer and held that the charges were proved. By his orders dated 12.12.83 and 15.12.83 he directed proportionate recovery of Rs. 1 lakh from both the officers.
25. In that case also the appellant bank canvassed the same submission viz. that since the inquiry was during the period prior to the judgment in Mohd. Ramzan Khan (supra) the appellant was not required to give the inquiry report or the report of the disciplinary authority differing with the inquiry officer. The very regulation 7 (2) came up for consideration. A bench of three judges of this Court held that the requirement to give these reports to the employee will have to be read into regulation 7 (2). The Court referred to and relied upon an earlier judgment of the constitution bench in State of Assam vs. Vimal Kumar Pandit [AIR 1963 SC 1612] and para 26 of Karunakar (supra) and specifically ruled in para 19 as follows:-
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
26. Apart from this, as seen from the legal position enunciated in para 33 of Karunakar (supra), earlier extracted, it is clear that where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employees, it would act as an exception. The direction that the judgment in Mohd. Ramzan Khan will not apply retrospectively, will not cover such service regulations and the concerned employers will have to continue to give a copy of the inquiry report to the delinquent employees, as provided in their service regulations.
27. The counsel for the appellant relied upon the judgment of this Court in National Fertilizers Ltd. and Anr. v. P.K. Khanna [AIR 2005 SC 3742] where the disciplinary rules were pari-materia to the rules in the present case as can be seen from para 10 of that judgment. Counsel relied on para 13 of the judgment which reads as follows:-
"As far as the second question is concerned, neither the decision in Karunakar nor Rule 33 quoted earlier postulate that the delinquent employee should be given an opportunity to show cause after the finding of guilt as to the quantum of the punishment. The Rules envisage the passing of an order by the Disciplinary Authority not only finding the delinquent guilty, but also imposing punishment after the delinquent has been given a copy of the Enquiry report and had an opportunity of challenging the same." (emphasis supplied) This paragraph make it clear that there is no second opportunity available to the delinquent employee after the finding of guilt on the quantum of punishment. At the same time, the second sentence of this para clearly states that a copy of the inquiry report is to be given to the delinquent employee prior to the decision of the disciplinary authority for providing him with an opportunity to challenge the report. It is also material to note from this judgment that since the employee had contended in that case, that the Disciplinary Authority had not considered his objections correctly, this Court directed the Appellate Authority (and not the Disciplinary Authority) to reconsider the objections of the respondent.
28. This being the position, in the instant case it is clear that the appellant had not followed their own regulations which clearly require the disciplinary authority to record the reasons where it differed from the inquiry officer. The regulations also clearly lay down that a copy of the inquiry report and the order of disagreement are to be provided to the employee. In the present case, we are concerned with the stage where the Disciplinary Authority differs with the inquiry officer on his findings. This is prior to arriving at the guilt of the employee. His right to receive the report and defend at that stage before the guilt is established is very much recognized as seen above. Counsel for the appellant submitted that Constitution Bench has held in Union of India & Anr. v. Tulsiram Patel [1985 (3) SCC 398] that after the 42nd Amendment, the employees are not entitled in law to be heard in the matter of penalty. In Karunakar's case (supra), another Constitution Bench has referred to Tulsiram Patel in paragraph 4 and then explained the legal position in this behalf in paragraph 7 as follows:-
"While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment."
Thus, the right to represent against the findings in the inquiry report to prove one's innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way. In fact, any denial thereof will make the final order vulnerable.
29. Counsel for the respondent relied upon the judgment in State of Maharashtra v. B.K. Takkamore & Ors. [AIR 1967 SC 1353] to submit that if the impugned order can be sustained excluding the disputed charge, this Court should not interfere. In our view, it is not possible for us to pre-judge the issue in the present case. As seen from the order of Disciplinary Authority quoted above, the appellant has considered it to be a serious charge and therefore the respondent ought to have been given the opportunity to challenge the adverse finding of the Disciplinary Authority where it differed from the inquiry officer to establish his innocence.
30. It was then submitted that non supply of inquiry report is inconsequential if the employee does not show as to how he is prejudiced thereby. Karunakar (supra), S.K. Singh v. Central Bank of India and Ors. [1996 (6) SCC 415] and Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja [2008 (9) SCC 31] were relied upon in support. There cannot be any grievance with respect to the proposition. In the present case however, we are concerned with a situation where the finding of the inquiry officer on a charge has been reversed by the Disciplinary Authority, which was not the case in any of the three cases. Besides, by not giving the inquiry report and the adverse order of the disciplinary authority, the respondent was denied the opportunity to represent before the finding of guilt was arrived at and thereby he was certainly prejudiced. (Emphasis supplied) The rule applicable to the case of the applicant is in pari material with that cited above and hence, is fully applicable in this case.
12. Admittedly, when the disciplinary authority disagreed with the findings in the second charge, the applicant had not been informed of the same. It is only in the penalty order that the disciplinary authoritys disagreement had been surfaced. Hence, a valuable right to the applicant has been lost. This also vitiates the case of the respondents.
13. Thus, both on the basis of the law laid down in Moni Shankars case (supra) and failure to provide an opportunity to represent against the disagreement arrived at by the Disciplinary authority (K.K. Vermas case ) the order of the disciplinary authority becomes thoroughly illegal and is liable to be quashed and set aside. Once the basic order of the disciplinary authority collapses, further orders of the appellate authority and revisional authority do not have any legs to stand. As such they too crumble to the ground.
14. In view of the above, the OA fully succeeds. The impugned orders dated 26th April, 2007 (Annexure A-11) and 25th July 2007 (Annexure A-13) are hereby quashed and set aside.
15. The applicant is entitled to be reinstated in service forthwith and is also entitled to all other consequential benefits, such as arrears of pay and allowances, (without interest) seniority position, etc., as if there was no charge sheet framed against him.
16. While the reinstatement shall take place within two weeks from the date of receipt of a certified copy of this order, other benefits as stated above would be made available to the applicant within a period of three months from the date of reinstatement.
17. Under the above circumstances, there shall be no orders as to cost.
Member-A Member-J /Shashi/