Central Administrative Tribunal - Bangalore
M.A. Krishnan vs Union Of India (Uoi) And Ors. on 27 June, 2003
Equivalent citations: 2004(3)SLJ113(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. Shri M.A. Krishnan, Ex-Accounts Officer ALTTC Ghaziabad has filed present application under Section 19 of Administrative Tribunal's Act, 1985 challenging order dated 27.10.1999 (Annexure A4) imposing the punishment of dismissal from service as well as order dated 2.8.2001 (Annexure A7) whereby his appeal was rejected by the President based on UPSC advise dated 13.7.2001 (Annexure A8), besides seeking direction to reinstate him with its consequential benefits, regularisation to the period of suspension from 11.2.1992 till the date of passing the impugned orders.
2. The facts which led to the filing of the present application are as under:
The applicant was working as Accounts Officer (Cash) in the office of the Advanced Level Telecom Training Centre, (hereinafter referred as ALTTC) Ghaziabad. At about 11-45 hours on 7.2.1992 it was reported by the Internal Finance Advisor (GM (TX)/CGM) that as per the information received from Shri Bhagmal Singh, AAO (Cash) two cancelled cheques of RBI, New Delhi were cleared for heavy amounts in Jan. 1992. Apprehending fraud/misappropriate of huge sum, (which was later on revealed to the tune of Rs. 2.07 crores) the Vigilance Officer was directed to conduct preliminary investigation and seize the relevant documents. While investigation was in progress, Shri M.A. Krishnan, AO (Cash), applicant herein, orally approached the GM (TX)/CGM for permission to leave the Headquarters on the pretext of going to his village for performing the last rites of his father as he had been informed about the death of his father. Pending preliminary investigation, the permission sought for was refused and explanation was sought from him. He, however, arranged Air tickets for himself and his whole family members through one of his colleague Shri Khusoo, AAO (officiating AO) and left the headquarters without permission on 7.2.1992. A charge memo dated 10.10.1996 (Annexure A3) under the Rule 14 of CCA (CCS) Rules, 1965 was issued, which contained only one Article of charge. It will be relevant at this stage to reproduce the said Article of charge besides the statement of imputations of misconduct and misbehaviour, which read thus:--
ANNEXURE--I "Article of Charges against Shri M.A. Krishnan, AO, ALTTC Article I Shri M.A. Krishnan, while working as AO (Cash), in ALTTC, Ghaziabad during from 1.7.1988 to 7.2.1992, deserted his duty on 7.2.1992, without closing the Cash Book and left the Headquarters and unauthorisedly absented from duty without prior permission from the Competent Authority till his suspension vide Order No. 9-17/92-Vig.I dated 11.2.92. A letter was sent to him on 19.2.92 on his leave address and this letter was received back undelivered.
Shri M.A. Krishnan was placed under Suspension w.e.f. 11.2.92 vide Order No. 9-17/92-Vig. I dated 11.2.92. While placing him under suspension, the Disciplinary Authority in his Suspension Orders ordered that during the period of suspension, Shri Krishnan shall not leave the Headquarter without obtaining the prior permission of the Competent Authority. Shri Krishnan remained away from Headquarters with effect from 11.2.92, without permission of the competent Authority. His absence from Headquarters is also considered unauthorised absence.
Shri M.A. Krishnan, by his above act has failed to maintain devotion to duty and acted in a manner unbecoming of a Government Servant, thereby violated the Rule 3.1 (ii) and (iii) of CCS (Conduct) Rules, 1964.
Sd/-
(G.C. Iyer) Member (Finance) Telecom Commission.
ANNEXURE--II Statement of Imputations of Misconduct and Misbehaviour in Support of Article of Charges Against Shri M.A. Krishnan, AO, ALTTC, Ghaziabad (Under Suspension) Article I The Accounts Officer is the primary drawing and disbursing Officer. He maintains a Cash Book in which all transactions are recorded (Rule 11 of FHB Vol. III). The AO is responsible for the correctness in all respects of the original records of Cash and Stores, receipts and expenditure and ensuring that complete vouchers are obtained. He is responsible for posting of day-to-day accounts (FHB Vol. III 14).
On 7.2.92 at 11.45 hrs, it was reported by IFA to the GM(TX)/CGM that as per information received from Shri Bhagmal Singh, AAO (Cash), two cancelled cheques of RBI, New Delhi have been cleared for heavy amounts in January, 1992. Apprehending fraud/mis-appropriation of huge sum the Vigilance Officer was directed to conduct preliminary investigation and seize the related documents. While investigation was in progress, Shri M.A. Krishnan, AO (Cash), orally approached the GM (TX)/CGM for permission to leave the Headquarter and going to his village for performing the last rites of his father. He was refused permission pending preliminary investigation and suitable explanation from him. He however arrange Air Tickets for himself and his whole family through Shri Kushoo, AAO (Offg. AO), deserted his duty and left the Headquarter. Thereafter his whereabouts could not be traced.
On the preliminary inquiry, fraud of huge amount came to light and hence the suspension order was issued by the Competent Authority on 11.2.92, vide Memo No. 9-17/92-Vig. II and the same was sent to his village address, obtained from his service book on 13.2.92 through Registered Post. The Suspension Order was received back undelivered.
On 18.2.92, a leave letter dated 12.2.92 was received in the office of GM (TX) in which Shri Krishnan, prayed for grant of leave on the ground that he was hospitalised in a Nursing Home at Lake Side Medical Centre and Hospital, Bangalore. In the said letter the leave address was also indicated as under:--
C/o. Shri A. Thamrai, No. 3/2, 1st A. Cross, Nanjappa Lay out, Andugodi, Bangalore-20.
A registered letter was sent by DGM (Admn) of ALTTC, Ghaziabad on 19.2.92, which was also received undelivered.
Shri M.A. Krishnan was placed under suspension w.e.f. 11.2.1992 vide Order No. 9-17/92-Vig. II dated 11.2.92. While placing him under suspension, the Disciplinary Authority in his suspension orders ordered that during the period of suspension, Shri Krishnan shall not leave the Headquarter without obtaining the prior permission of the Competent Authority, Shri Krishnan remained away from Headquarter w.e.f. 11.2.92, without permission of the Competent Authority. His absence from Headquarter is also considered unauthorised absence.
Shri M.A. Krishnan by his above act has failed to maintain devotion to duty and acted as an unbecoming of a Government servant and thereby violated Rule 3.1(ii) and (iii) of CCS (Conduct) Rules, 1964." (Emphasis supplied).
3. Before issuance of the said charge sheet, the applicant was placed under suspension vide order dated 11.2.92 and his Headquarters was fixed at ALTTC, Ghaziabad. It was further ordered that during the period of suspension the applicant shall not leave the Headquarters without obtaining prior permission of the Competent Authority. The applicant's case is that the said suspension order was not served upon him and he came to know about the said order only in the year 1994.
4. Despite acknowledgement of the Memorandum of charge dated 10.10.1996, vide letter dated 11.11.1996, the applicant did not participate in the Departmental proceedings held against him. Certain documents asked for by the applicant were supplied to him vide letter dated 7.3.1997, which he acknowledged on 21.3.1997. A request was made for extension of time for filing reply up to 15.4.1997. The Inquiry Officer as well as Presenting Officer were appointed vide order dated 22.7.1997. The applicant did not submit his defence statement even beyond the extended period and therefore, the Departmental proceedings were held ex parte. With reference to order dated 27.7.1997, the applicant submitted a representation dated 1.12.1997 addressed to Vigilance Officer, ALTTC, Ghaziabad drawing attention of Disciplinary Authority, to Government of India's instructions under Rule 14 of CCA (CCS) Rules, 1965 that: "the Prosecution should proceed the departmental action," which representation was considered by the authorities and the applicant was intimated vide memo dated 6.1.1998 that the criminal cases in which the applicant was being prosecuted in the Courts of law were different cases and had nothing to do with the present departmental proceedings, which related to unauthorised absence and remaining away from the Headquarters stipulated during the suspension period, without the permission of the Competent Authority. The applicant was advised to cooperate in the said departmental proceedings. The copies of daily order sheets sent to the applicant were returned back undelivered. It would be relevant at this stage to note that the applicant challenged his suspension order dated 11.2.1992 before Principal Bench of this Tribunal vide O.A. No. 1374/1996 as well as O.A. No. 708/1997 which were disposed of vide orders dated 16.10.1996 and 24.11.1998 respectively.
5. At no stage the applicant participated in the said departmental proceedings. The Inquiry Officer submitted his report dated 12.2.1999 holding the charge proved against the applicant. It was also observed in the said report that the applicant left the Headquarters in the evening of 7.2.1992 without obtaining/securing leave and station leave permission from the Competent Authority which he had tried on the pretext of performing last rites of his father at his village which was a false ground, as the applicant's father had not expired. Thus, the applicant befooled the administration on false grounds. Despite the persuasion of Shri G.D. Gaiha (SW-2) DGM (Admn.), at IGI Airport, Delhi the applicant failed to return to the Headquarters for tendering his explanation. It was also observed in the said inquiry report that though the applicant's leave request dated 12.2.1992 from Bangalore for granting 10 days leave on medical grounds was received wherein he had pleaded that he would submit the necessary application for the same on his return to Headquarters, but the charged officer failed to return and submit any leave application. Despite photograph published and the message conveyed through Indian Express dated 23.3.1992, published from Madras, the applicant failed to return to the Headquarters. The said enquiry report dated 12.2.1999 was despatched by registered post vide acknowledgment due envelope dated 11.3.1999 at Bangalore address, with a direction to submit his reply to the said inquiry report but the same returned undelivered. Later vide another letter dated 28.5.1999, it was again sent to his address at Tamil Nadu, which also returned back with Postal Authority's remark left without instructions". Ultimately the said IO's report was delivered to the applicant and acknowledgment received on 10.6.1999 when he visited ALTTC, Ghaziabad for obtaining subsistence allowance.
6. The applicant through his letter dated 19.6.1999 stated that he was under medical check up and requested the authorities for extension of 30 days more time for submission of reply. His request was accepted and the applicant was granted extension of time up to 31.8.1999, which fact was conveyed vide letter dated 2.8.1999 to the Postal address at Bangalore, indicated by the applicant in his letter dated 19.6.1999, but the said envelope was returned back with the Postal Authority's remark "addressee left without instructions." Applicant made further request vide his representation dated 16.8.1999. Despite the expiry of 30 days time sought by him, since no reply was forth coining from the applicant, the Disciplinary Authority in agreement with the Inquiry Officer's finding and on the assessment of facts and circumstances of the case, imposed the penalty of dismissal from service vide order dated 27.10.1999.
7. The applicant submitted a detailed statutory appeal on 11.12.1999 wherein it was averred that at around 11-30 am on 7.2.1992 the Vigilance Officer came to his chamber and asked for Cash Book and Counter foils of Cheque Books without specifying the dates and months. At around 12-00 noon his wife received a phone call from applicant's Brother-in-law Vellore. North Arcot District, Tamil Nadu that his father expired at Government hospital, Vellore. It is further averred therein that his father had a paralystic stroke on 7.2.1992 morning and as a result brain damage took place and he fell into coma. The said incident panicked the applicant's relative and applicant's sister's husband informed his wife over phone that his father was dead, while admitting him at Government hospital, Vellore. His wife, hearing the said news, contacted the applicant and informed about the said incident. On getting the said news, the applicant arranged for tickets and after getting the air tickets which were wait-listed he "approached the CAO/IFA for sanctioning one week casual leave," which was not sanctioned. Thereafter, the applicant approached C.A.O. once again, who in turn, took him to GM (TX), who in turn sent them to CGM. The CGM put certain question as to how two cheques amounting to Rs. 18 lakhs were encashed since the applicant was the cheque signing authority and after certain queries he was allowed to proceed to his native place alone leaving his family at Ghaziabad, which was not accepted by him and ultimately he proceeded to Delhi Airport around 6.00 p.m. The said appeal further mentioned that on reaching Vellore Government Hospital, where his father was admitted for treatment, he found that his father's condition was very pathetic. After a day's stay he went to Bangalore to leave his wife and children. When the applicant spoke to Shri Gaiha on telephone he was informed that a police complaint against the applicant indicating the fraud of encashment of two cheques had been lodged with the police on 8.2.1992, and hearing the said news the applicant's health condition worsened and was hospitalised at Bangalore from where he submitted his leave application dated 11.12.1992 and he remained under treatment of the said hospital at Bangalore till 19.2.1992. It is the contention of the applicant that the respondents raised the wall at the entrance of his official accommodation at Ghaziabad and for its removal he filed a petition before the Civil Court, Ghaziabad, which petition was failed on the plea that the house was scaled for administrative reasons and the matter was left to the ALTTC authorities. The suspension order dated 11.2.1992 was served upon him only in June, 1994 contends the applicant.
8. Since the aforementioned appeal had not been decided by the respondents, the applicant filed O.A. No. 278/2001 impugning the penalty order dated 27.10.1999; which O.A. was disposed of at admission stage vide order dated 23.1.2001 with a direction to respondents to "dispose of the appeal of the applicant as per law within 60 days".
9. Pursuant to the aforesaid order, the applicant's appeal was considered by the respondents and vide order dated 24.8.201, the same was rejected. Hence the present O.A.
10. The respondents have filed detailed reply opposing the claim laid by the applicant. They have also tried to justify their orders and disciplinary proceedings. The original records relating to the said proceedings have also been made available to us, which we have carefully produced. It is contended that the applicant committed grave misconduct by defrauding the huge amount of Government funds for which CBI registered two cases against him vide Case No. RC1 (A) 93ACU(VI) for cheating an amount of about 2 crores and second CBI Case No. R/C 16(A) 92 SHG Under Section 120B, 409 420, 468, 471A, 477A IPC and Section 13(2) read with Section 13(1)(c) and (d) of Prevention of Corruption Act, where about payment of Rs. 30 lakhs was involved. That the applicant left headquarters in the evening of 7.2.1992 without obtaining/securing leave and without obtaining station leave permission for which he tried to cover up on the pretext of performing last rites of his father, which was a false ground. The applicant was well aware of his suspension order. The entrance of the house had been locked with a brick wall to prevent theft in his absence and letters had been sent by ALTTC administration to the applicant who had indicated some date for coming and vacating the said quarter, but the applicant failed to appear inspite of several reminders. The applicant did not participate in the enquiry inspite of notices and did not raise any objection or protest at any stage. The applicant did not inform the Competent Authority about his movements. There is no explanation as to why he did not see it fit, suo moto or otherwise to report back to duty or inquire about his leave application dated 12.2.1992. The Disciplinary Authority agreed with the findings of Inquiry Officer and imposed the penalty of dismissal,
11. The applicant filed his rejoinder and disputed the respondents contentions, reiterated the contentions raised in O.A. The learned Counsel for the applicant has contended that 8th and 9th February, 1992 being Saturday and Sunday respectively and the order of suspension being passed on 11th February, 1992, he was thus absent only for one day i.e. 10th February, 1992 and as such the allegations contained in the charge sheet dated 10th October, 1996 that he was unauthorisedly absent from duty is therefore baseless and he ought not to have been charged for the said allegation. The second contention raised by the applicant is that the allegation of desertion of duty on 7.2.1992 and leaving the Headquarters is misplaced and untenable in as much as Sri Premnath, PW-2 in his deposition before the Inquiry Officer stated that GM (TX)/CGM asked the applicant "to go alone and leave his family at Ghaziabad." Therefore, the allegation of desertion of duty as well as leaving the Headquarters without permission from the Competent Authority is vague and unfounded. The further contention raised by the applicant is that the allegations contained in the charge memo dated 10.10.1996 that he remained away from the Headquarters with effect from 12.2.1992 without permission of the Competent Authority is also unjustified and baseless. It is contended that then the applicant returned to the Headquarters, it was learnt that his official residence was seized by putting up the concrete wall before placing him under suspension and as such respondents made his stay at Ghaziabad impossible. As such the allegations were not justified. It is also contended that his request to defer the inquiry till the conclusion of Criminal trial pending, was not considered. Even the inquiry was conducted by an official holding almost equal rank as that of the applicant.
12. The next contention raised by the learned Counsel for the applicant is that the applicant had not been paid the subsistence allowance till 10th June, 1999 and as such in the absence of the payment of subsistence allowance, the applicant was denied the reasonable opportunity of placing his defence and participating in the disciplinary proceedings. The next contention raised by the applicant is that he was not aware of the order of suspension till the year 1994 as the said suspension order dated 11.2.1992 was not served upon him. The authorities have strongly relied upon the allegations of fraud, which was neither a charge contained vide charge memo dated 10.10.1996 nor a subject matter of the inquiry. The findings of the Inquiry Officer are perverse, baseless and based on surmises. All the authorities, including the Union Public Service Commission had been greatly influenced by the allegations of fraud, despite the fact that the allegation of fraud was not even the subject matter of the charge sheet. The next contention raised by the applicant is that in terms of para 123 of Financial Handbook, the applicant was not required to maintain cash book on day-to-day basis. Cash book which was produced before the Inquiry Officer was maintained only upto 4th February, 1992. The penalty imposed had to be commensurate with the gravity of the offence.
13. In support of the above contentions the applicant has relied upon large number of citations which we propose to notice and deal after noticing the contentions raised by the respondents as well.
14. On the other hand, the Counsel for the respondents has strongly denied the contentions raised by the applicant and tried to justify the impugned orders. It is contended that the charge levelled vide memo dated 10.10.1996 was specific, unambiguous and clear and should be bifurcated into four sub-parts i.e., (i) desertion from duty; (ii) leaving the Headquarters; (iii) unauthorisedly absent without prior permission and (iv) remaining away from Headquarters with effect from 11.2.1992 without permission of the Competent Authority, which amounts to unauthorised absence. It is further contended that the applicant did not submit any leave application except one communication dated 12.2.1992 sent from Bangalore for granting 10 days leave on medical grounds, with a further request that he would submit the necessary form in this regard on his return to Headquarters and thereafter neither he returned to the Headquarters not submitted any leave application. The applicant failed to report for duty and did not seek any permission to remain away from the Headquarters despite the fact that his photograph was published in the Indian Express dated 23rd March, 1992 published from Madras. The question of legality of the suspension order as well as grant of subsistence allowance had been the subject matter of O.A. No. 1394/96 as well as O.A. No. 708/97, which were filed by the applicant before the Principal Bench of the Tribunal. In the said O.As. the applicant had challenged the validity of suspension order dated 11.2.1992 as well as sought a direction to reinstate him with all consequential benefits including direction to release arrears of subsistence allowance along with penal interest. The subsistence allowance could not be paid to the applicant as he never submitted the required certificate under the Rules. It is further argued that the conduct of the applicant throughout the proceedings right from the date when the fraud was detected, is such that he does not deserve any further sympathy and he being a Group-B Gazetted Officer ought to have acted reasonably and diligently. Since the applicant failed to participate in the departmental inquiry, he is estopped from challenging the departmental proceedings, contended the learned Counsel for the respondents. It is further argued that the applicant is guilty of wilful suppression of material facts about filing of aforementioned cases before Principal Bench of this Tribunal, challenging the order of suspension etc. It is further contended that the allegations of bias etc. now raised are baseless, misconceived and afterthought. It has been strenuously urged that the Inquiry Officer's report is based on evidence and material on record. The factum of fraud noticed by the authorities including the UPSC is not the sole basis for imposing the penalty of dismissal upon the applicant. The respondents have also contended that the applicant is facing two criminal trials one at Shillong and another at Dehradun. The applicant was granted all reasonable opportunity from the beginning, which he did not avail, and as such he is precluded from challenging the said disciplinary proceedings at this late stage, which too is without any basis. The respondents had made all efforts to serve various documents upon the applicant, from time to time but all the envelopes were received back with the postal authorities remarks "addressee left without instructions" etc. The respondents have also contended that the applicant fled away from the Headquarters on the false pretext of his father's death on 7.2.1992, in order to avoid action from the Government in a case of misappropriation of Government money and fraud detected by the vigilance branch on 7.2.1992. There is no credible explanation as to why the applicant did not deem it fit either suo moto or otherwise to report back to duty/Headquarter or to enquire about his leave application for so many years, particularly when he came to know on reaching Madras that his father had not died, but was only hospitalised.
15. We shall deal with the aforementioned contentions in seriatim as follows:
Charges are Misplaced/Baseless Mr. K. Subba Rao, learned Senior Counsel appearing for the applicant strenuously urged that the charge levelled vide memorandum dated 10.10.1996 was vague and not specific. It is contended that admitted facts are that the applicant left the Headquarters on 7.2.1992 after office hours, 8th and 9th February, 1992 were holidays being Saturday and Sunday. The order of suspension was issued on 11.2.1992. As such the applicant was absent from duty only for one day i.e., 10th February, 1992. It is contended, in this context, that the charge of unauthorisedly absent from duty without prior permission till 11.2.1992 is misplaced and baseless. Even if it is accepted that the applicant was unauthorisedly absent on 10.2.1992, the absence of one day along could not be a ground and justification for imposing punishment of dismissal from service. It is further contended that once the applicant was placed under suspension on 11.2.1992 and a concrete wall had been put up before the entrance of the official residence, the authorities are precluded from contending that the applicant remained away from the Headquarters without any justification. It is the respondents who made it impossible for the applicant to stay it has official residence even after passing of suspension order dated 11.2.1992. The allegations of leaving the Headquarters unauthorisedly without prior permission of the Competent Authority is contrary to facts and record. Our attention was drawn to the statement made by Sri Premnath, PW-2. According to Sri Premnath, the applicant came to his chamber for grant of leave, which was refused by him stating that since the applicant had been working under the DGM, he was not competent to grant the leave. Sri Premnath further submitted that on the request of the applicant, he accompanied to the room of GM(TX)/CGM as the DGM (Administration) had gone out of the office. It has further been stated that GM/CGM refused to grant the permission to the applicant and pressed him for explaining about the fraud. It is stated that the applicant did not said anything about the fraud and kept on requesting that he be allowed to go for performing the last rites of his father who reported to have died on that day. Both GM(TX)/CGM asked the applicant "to go alone and leave his family at Ghaziabad." Initially the applicant agreed to leave his family at Ghaziabad but managed to get 5 air tickets through Sri Kushoo and went to airport. We find from the records that the GM/CGM had directed Shri G.D. Gaiha, DGM (Admn) to proceed to airport and persuade the applicant to return to the Headquarters for submitting his examination regarding fraud, but the applicant did not respond favourably. This goes to show that no leave was granted to the applicant. It is contended by the learned Counsel that no officer, irrespective of rank, could issue such a direction to an official as to how his family should act as the GM/CGM asked the applicant to go alone and leave his family at Ghaziabad. It is contended that it beyond the jurisdiction of the officials to issue such kind of directions to the family members of the Government official. It is not disputed that the Government servant alone is subject to certain rules and Regulations and not his family members.
16. The learned Counsel for the applicant has cited AIR 1967 Supreme Court 1182 - Management of Northern Railway Co-operative Credit Society Limited, Jodhpur v. Industrial Tribunal, Rajasthan, Jaipur and Anr., particularly the para-13 of the said judgment, to contend that the charges levelled against the applicant are misplaced. We have carefully perused the said judgment and find that the observations made in the said judgment are clearly distinguishable and as such the same is of no assistance to the applicant. In the said case of Northern Railway Cooperative Society (supra), the charge sheet was issued against one Shri Kanraj containing 5 articles of charge, including instigating and conspiring to paralyse Society's work, disobedience of orders in not attending for Medical Examination taking active part in the issue and distribution of certain leaflets, carrying vilifying propaganda in connection with elections of the Society. In the facts and circumstances, it was found that the said charge sheet did not contain any details about the rules of the Society under which Shri Kanraj was required to obey the orders given by the Secretary. It was also not explained whom he had instigated or with whom he had conspired in order to indicate how conspiracy was being inferred. Similarly the issue of distribution certain leaflets did not at all indicated, what those leaflets were and what part Shri Kanraj had taken in the issue and distribution of those leaflets. Similarly there was no mention as to which depositors had been instigated and when they were instigated. In those circumstances it was held that the charges were vague.
17. The next judgment referred by the learned Counsel is AIR 1971 SC 752 Surath Chandra Chakravarty v. State of West Bengal, to content that: "If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.... The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. "We have perused the said judgment carefully and find that the allegations made in the said case "was not capable of being intelligently understood and was not sufficiently definite to furnish materials to appellant to defend himself." Which is not the situation and position in the present case and as such the said judgment is clearly distinguishable. At no stage either the applicant participated in the departmental proceedings initiated vide memorandum dated 10.10.1996, nor did he even prefer any representation against the Inquiry Report and as such by his conduct, in our considered view, the applicant is precluded and estopped to contend that the charge levelled vide memorandum dated 10.10.1996 was vague in nature.
18. To similar effect, the learned Counsel cited 1990(5) SLR 229=1990(2) SLJ 20 (All.). Dina Nath Pandey v. State of Uttar Pradesh; 1989(6) SLR 18, S.R. Farishta v. Union of India and AIR 1964 SC 364, Union of India v. H.C. Goel. We have carefully perused the said judgments. In the case of Dina Nath Pandey, a charge sheet was issued containing five articles of charge and in the first article of charge it was alleged that the petitioner therein had used improper words during conversation with the Kenungo. Neither the words which alleged to had been used by the petitioner, were spelt out nor did the charge sheet contain any description or detail as to in what manner the said incident took place. In such circumstances, the High Court had held that the charge was vague as the petitioner could not have met the charge or pleaded his defence to the said charge. In the case of S.R. Farishta, the petitioner, who was working in CRPF as Sub-Inspector, was issued the charge sheet containing two articles of charge. The first article of charge alleged that the petitioner had committed remissness in the discharge of his duty. The facts and circumstances on the basis of which the said charge was based had not been spelt out in clear terms. The Delhi High Court after noticing the judgment as reported in 1957(1) LLJ 494, Choudhry A.R.S. v. Union of India and Surath Chandra Chakravarty (supra) and other cases came to the conclusion that the said charge of remissness suffered from vagueness and the petitioner therein could not be held guilty of the said vague charge. In Para 6 of the said judgment the High Court considered as to what is meant by 'vague'. It was observed therein that the : "vague can be considered as antonym of definite. If the ground is incapable of being understood or defined with sufficient certainty, it can be called vague. It is not possible to state affirmatively more on the question of vague. It must vary according to the facts and circumstances of each case. There can not be a hard and fast rule to determine vagueness."
(Emphasis supplied)
19. In the H.C. Goel's case. The basic issue considered by the Hon'ble Supreme Court was as to whether the Government was competent to differ from the findings of facts as recorded by the Inquiry Officer as well as whether the High Court in dealing with a writ petition filed by a Government Officer who had been dismissed from Government service, is entitled to hold that the conclusion reached by the Government in regard to his misconduct was not supported by any evidence at all. In the facts and circumstances of the said case, both the question as noted above, were answered in the affirmative. It was held that the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Govt. on which the impugned order of dismissal rests is not supported by any evidence at all. We have carefully perused the said judgments and are of considered view that none of the aforesaid judgments are applicable to the facts and circumstances of the present case. The applicant has not been able to establish as to how and in what manner the allegations made in the said charge memo dated 10.10.1996 are either vague or fall short of particulars.
20. On the other hand, the learned Counsel for respondents refuted the said contentions and stated that the charge levelled was specific, clear and certain and not misplaced/baseless and contrary to records, as alleged. There was no ambiguity and contradiction in the charge memo dated 10.10.1996.
21. We have carefully perused the Charge Memo and do not find that the charge levelled is misplaced/baseless as well as contrary to records, as contended. It is the specific case of the respondents that the applicant left the headquarters and unauthorisedly absented from duty without prior permission from the Competent Authority. The applicant was placed under suspension and was directed not to leave the headquarters without obtaining prior permission of the Competent Authority and his continued absence from headquarters from 11.2.1992 was considered to be unauthorised absence. These attributes of the charge are specific in nature and there is no vagueness of any nature, as contended by the learned Counsel for the applicant. The case law cited by the learned Counsel relate to vagueness of charge and not regarding charge being misplaced, baseless and contrary to records. We find that none of the judgment so cited are applicable in the facts and circumstances of the present case,
22. Therefore, the contention raised by the applicant that the said charge memo dated 10.10.1996 was vague and lacks particular is untenable and misplaced in law and is accordingly rejected.
Charge Based on Suspicion:
23. The second contention raised is that the charge sheet dated 10.10.1996 is based on suspicion, and, in support thereof a reliance is placed on 1979(1) SLR 44 (Calcutta) Paresh Chandra Datta v. Collector of Calcutta and Ors., particularly para-7, wherein it has been observed that certain charges alleged in the said charge sheet were based merely on suspicion, which could not be made a ground for charging a person with guilt.
24. We have perused the said judgment and find that the said observation is based on the law so laid down by the Hon'ble Supreme Court in various judgments including Union of India v. H.C. Goel (supra) wherein it was held that mere suspicion should not be allowed to take the place of proof even in domestic enquiries. We have read and reread the charge levelled and find that the present contention is devoid of any merits. We have not been able to comprehend as to how the allegations made in the said charge memo could be said to be based on suspicion. It is an admitted fact that there was no permission from the Competent Authority to leave the Headquarters. It is also an admitted fact that the applicant was placed under suspension on 11.2.1992 with a specific condition that he shall not leave the headquarters without obtaining prior permission of the Competent Authority. It is also an admitted fact that the applicant never reported for duty on or after 11.2.1992 and neither applied nor obtained any permission to be away from the Headquarters. Though the applicant had submitted a letter dated 12.2.1992 praying for grant of leave on the ground that since he was hospitalised in a Nursing Home, Lakeside Medical Centre and Hospital, Bangalore and would submit the necessary leave application thereafter, but he neither reported to Headquarter nor submitted any leave application any time thereafter. The applicant's contention that he was not served with the suspension order dated 11.2.1992 till June, 1994 is also unsubstantiated. Even if it is presumed that the said suspension order was not served upon him till the year 1994, it is the applicant's own case that in May 1992 he had filed a petition before the Civil Court, Ghaziabad for removal of the wall raised at the entrance of his residential accommodation. Neither the copy of the said petition filed before the Civil Court, Ghaziabad nor the order passed thereon was produced before us. As stated by the applicant in his letter dated 12.2.1992 that he would submit the leave application thereafter, what prevented the applicant from approaching the respondents to obtain permission for leaving the Headquarters in April-May, 1992 especially when he had gone to Ghaziabad to file the said petition, has not been explained at all. The allegations contained in the memo, in our considered view; thus, is not based on suspicion but on hard facts of the case and therefore the judgment of Paresh Chandra so relied is not applicable in the facts and circumstances of the present case. Accordingly the said contention is misplaced and rejected.
Who could be an Inquiry Officer
25. The next contention raised by the learned Counsel is that the enquiry officer should be sufficiently higher in rank than the witness and the charged official. It is contended that the witness examined in the disciplinary proceedings was holding the rank of General Manager and the Inquiry Officer was much in lower rank than the witness so examined. Similarly the Inquiry Officer was almost of equal rank to that of the applicant. As such the inquiry proceedings are vitiated. A reliance has been placed on Single Bench judgment of Karnataka High Court, reported in 1978(2) Karnataka Law Journal 66=1978 SLJ 632 (Karnt.), UOI v. Srinath. In the said case, the respondent was a M.T. Driver in the Military Farm and was charge sheeted for certain misconduct. The Major and Captain who were members of the Court of Enquiry and the Station Commander who ordered the Court of Enquiry were ranked above the Lieutenant who conducted the departmental enquiry. In that context, it was held that when the higher authorities like Colonel, Major and Captain had held that the respondent was guilty, it would not have been reasonable to imagine that there was no likelihood of bias against the respondent in the mind of the Lieutenant who held the Departmental enquiry. Lieutenant being a Junior rank Officer, could not have gone against the opinion of guilt expressed by his superiors in the Army notwithstanding the evidence adduced before him.
26. Per contra, the Ld. Counsel for the respondents contended that since the Inquiry Officer was holding higher grade than the applicant, it did not constitute either any material irregularity or illegality in conducting the departmental proceedings. It is further contended that no injustice has been done to the applicant. In this context a reliance has been placed on 1997(7) SCC 68=1998(1) SLJ 145 (SC), Pankajesh v. Tulsi Gramin Bank and Ors. No rule has been brought to our notice which requires that the inquiry authority should be two/three stage higher/senior to the officer enquired against. 'As per the administrative instructions issued vide Govt. of India C.S. Deptt. of Personnel O.M. dated 7.12.70-Exts (A) Dated 6th Jan, 1971 published and printed under GOI decision No. 10 under Rule 14 of CCS (CCA) Rules, published in Swamys' 1993 edition at page 47, the only requirement is that the "inquiries should be conducted by an officer who is sufficiently senior to the officer whose conduct is being inquired into, as inquiry by a junior officer cannot command confidence which it deserves." In the said case of Tulsi Gramin Bank (supra), the relevant Staff Service Regulation only required that the inquiry officer should be "in a grade higher than such officer." The Hon'ble Supreme Court in the said context held that: "By mere delegating the enquiry whether the enquiry officer is of the same cadre or of higher grade than that of the petitioner, it did not cause any material irregularity nor resulted in any injustice to the petitioner."
27. In the present case, it is not disputed that the Inquiry Officer was Divisional Engineer, while the applicant was only Accounts Officer and as such was higher in rank grade and pay-scale as well to the applicant.
28. In the present case it is an "admitted fact that the Inquiry Officer was one rank higher to the applicant and as such we are of the considered opinion that the above mentioned law laid down by the Hon'ble Supreme Court would be squarely applicable in the facts and circumstances of the present case and the judgment of High Court of Karnataka in Srinath's (supra) case would be inapplicable.
29. As such, keeping in view the above judgment as well as the instructions noted above, we are of the considered view, that this contention of the applicant is misplaced and liable to be rejected.
Condition of Suspension Order is Illegal
30. The learned Counsel has further contended that the condition imposed vide suspension order dated 11.2.1992 asking the applicant not to leave the headquarters without permission is bad in law and accordingly the same is liable to be declared illegal. It was further contended that such a condition was not tenable in law and consequently the alleged violation of the same was not a misconduct. Reliance is placed on 1996(1) SLR 179 (Punjab and Haryana High Court) Bhim Singh v. State of Haryana as well as 1980(3) SLR 136=1980 SLJ 681 (Calcutta High Court), West Bengal Khadi and Village Board v. D.B. Bhattacharya. In the case of Bhim Singh, it was held that a suspended Constable cannot be asked to attend daily Parades as it would amount to taking duty which is not permissible during suspension period. It is settled law that no work or duty can be taken from a person who is placed under suspension. In the case of D.B. Bhattacharya, the learned single Judge of the Calcutta High Court had quashed the suspension order on various ground including the part of said suspension order by which D.B. Bhattacharya was restrained from leaving the Headquarters without obtaining permission of the Competent Authority. The said judgment passed by learned Single Judge to that extent was upheld by the Division Bench of Calcutta High Court though other part of the order was set aside in an Appeal. There is no discussion in the said judgment as to how that passing of suspension order which restrained the delinquent official from leaving the headquarters without permission of the authority, was found to be illegal.
31. It is undisputed fact in the present case that the suspension order dated 11.2.1992 had been challenged before the Principal Bench of this Tribunal in O.A. No. 1374/96 as well as O.A. No. 708/97. This fact though had not been pleaded or pointed out in the pleadings by the applicant but the judgments/orders passed in the said cases were placed on record by the applicant vide MA No. 446/2002. From the perusal of the order dated 16.10.1996 passed in O.A. No. 1394/1996 (Annexure 11). It is clear that the specific challenge to the said suspension order dated 11.2.1992 was made and it was disposed of with a direction that in the event the applicant file a clear, detailed and self-contained representation to the authorities concerned, the respondents should examine and dispose of the same within the time specified therein. However, liberty was reserved to the applicant to agitate the same if any grievances still survives. Pursuant to the said directions dated 16.10.1996, he made a detailed representation on 18.11.1996, which had been disposed of vide memorandum dated 11/24.7.1997 (Annexure A15). The applicant had also filed O.A. No. 709/97 seeking quashing of the suspension order dated 11.2.1992 with consequential reliefs like reinstatement with interest @ 18%. Vide memorandum dated 11/24.7.1997 applicant's request for revoking the suspension was not agreed to. Similarly his request to enhance the subsistence allowance was not acceded to. His further contention that others similarly situated alongwith him had been reinstated long back and he alone had been singled out was also not agreed to. We have carefully perused the contents of the O.A. No. 708/1997 and the complete pleadings made therein and find that there had been no averment either in the said O.A. or the rejoinder dated 19.11.1997 filed in the said case regarding applicant's inability to participate in the departmental enquiry due to non-payment of the subsistence allowance. The O.A. No. 708/1997 was disposed of vide order dated 24.11.1998. It appears from the aforesaid order that respondents in their reply statement had indicated that the arrears of subsistance allowance would be disbursed to the applicant on his furnishing a non-employment certificate as required under the rules. It is explicitly clear that the condition of not leaving the Headquarters without permission from the Competent Authority was not challenged either specifically or otherwise in the said O.As. It is settled law that what cannot be achieved directly cannot be achieved indirectly. In the said proceedings the suspension order dated 11.2.1992, despite the fact that it was impugned, was neither set aside or commented upon. As such the contention raised by the learned Counsel that the condition imposed by the said suspension order is bad in law, is not tenable. On the basis of the principles of constructive res judicata also, the applicant is precluded to challenge the said conditions laid down in the suspension order dated 11.2.1992, in the present proceedings. The judgment relied upon in this context, therefore, is inapplicable in the facts and circumstances of the present case. It is also noted that there is no such pleadings made in the present O.A. Inquiry Officer Acted as Presenting Officer
32. The learned Counsel for the applicant has raised further contention that the Inquiry Officer acted as a Presenting Officer too and had put a leading question to the witnesses, which vitiated the enquiry. It is urged that the burden of proving the charge was on the Management/Department and not upon the delinquent official. Shri Subba Rao, learned Senior Counsel drew our attention to the deposition made by the witnesses as well as Inquiry report and strenuously urged that the Inquiry Officer had cross examined the witnesses, which conduct of the Inquiry Officer vitiated the Disciplinary Enquiry. The learned Counsel has drawn our attention to AIR 1963 SC 1719, Meenglas Tea Estate v. The Workmen, particularly para 4, wherein it was observed that:
"It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him."
The said para further stated that:
"There was no opportunity to the persons charged to cross-examine them and indeed they drew upon their own knowledge of the incident and instead cross-examined the persons charged. This was such a travesty of principles of natural justice that the Tribunal was justified in rejecting the findings and asking the Company to prove the allegations against each workman de novo before it."
(Emphasis supplied)
33. The learned Counsel has also relied upon ILR 1998 Kar. 897, Sri Radhakrishna Shetty v. Deputy General Manager, 1992 Labour & Industrial Cases 1832 (Madras) T.N. Govindaraju v. Indian Overseas and the order passed by this Tribunal dated 10.12.2002 in O.A. No. 1478/2001 K. Nandagopal v. Provest Marshal and Anr. In the case of K. Nandagopal's case, in para-16 it was held in the facts and circumstances of the said case that the enquiry officer himself had questioned the applicant which was treated as Examination in Chief as well as the Cross-examination of the applicant by the Inquiry Officer, which was held to be in not confirmity with the law i.e., the Inquiry Officer cannot assume the role of Presenting Officer as well as a prosecutor. In the case of Shri T.N. Govindarajan, the Inquiry Officer had found the petitioner therein guilty of charge No. 9 without considering the entire evidence adduced by the witnesses. In that context the Madras High Court had held that it was the duty of the Inquiry Officer to consider the evidence as a whole and then come to a conclusion. Since the Inquiry Authority had not considered the entire evidence on record before recording his findings, the penalty order of compulsory retirement was held to be not sustainable. In the case of Radhakrishna Shetty, on examination of the facts of the said case, it was found that the management did not appoint a Presenting Officer and the Inquiry Officer had put questions to the witnesses and got marked the documents from the management witnesses. In that context, it was held that while revealing the truth the Inquiry Officer cannot go beyond his limit and play the role of prosecutor given an indication that he was not fair and that he was biased. It was also found in the said case that while cross-examination, the Inquiry Officer told the witnesses that their statement were not only unbelievable but also tried to impute motives to them. Under such circumstances, the High Court had held that the conducting enquiry in the absence of the Presenting Officer by the Inquiry Office as if he was the Presenting Officer was clearly opposed to the principle of fairness and also violated the principles of natural justice.
34. We have carefully gone through the voluminous inquiry report as well as the witnesses deposition and find such a contention is neither acceptable nor justified. There is no substance in the said contention that the Inquiry Officer acted as a Presenting Officer and cross examined the witnesses, as contended.
Inquiry Officers Findings Perverse
35. The next submission made by the learned Counsel for the applicant is that the findings of the Inquiry Officer are based upon extraneous considerations and as such the enquiry is vitiated. It is urged that the Inquiry Officer was influenced by the pendency of the criminal cases and as well as due to non-participation of the applicant in the Departmental enquiry. It is further contended that Inquiry Officer should have ensured the payment of subsistence allowance before proceeding with the enquiry and he failed to ensure that the justice is done to him by the Department. In this context reliance has been placed on AIR 1972 SC 2535, State of Assam v. Mohan Chandra Kalita, wherein it has been held that the Inquiry Officer based his conclusions on conjectures and there was no evidence to show that any amount as alleged was realised by the delinquent himself or at his instance or even by his connivance. In the said case the respondent who had been the Sub Deputy Collector was charged sheeted by alleging that "he realised" from those to whom he was paying compensation amounts certain % of compensation money due to them. It was noticed that none of the witnesses testified that the respondent collected any amount as alleged against him. There was no charge against the respondent therein that he had not paid full amounts to those entitled to compensation or that he had authorised anyone to collect any fee. The evidence produced did not establish that the delinquent official had either collected the amount or that the amount was collected at his instance or that he even connived at it.
36. Further reliance has been placed on AIR 1957 SC 70, Laxmi Devi Sugar Mills Ltd. v. Nand Kishore Singh, particularly para 18. It was held in that case that the charge sheet which was furnished by the appellant to the respondent formed the basis of the enquiry which was held by the General Manager and the appellant could not be allowed to justify its action on any other grounds than those contained in the charge sheet. It was held that: "the respondent not having been charged with acts of insubordination which would have really justified the appellant and dismissing him from its employment (sic) the appellant could not take advantage of the same even though these acts could be brought home to him."
37. The next citation used by the learned Counsel is AIR 1993 SC 2155, Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Ors. In the said case, the appellant was placed under suspension and charge sheeted for 12 charges. The appellant therein had raised an objection for inclusion of one official Shri Maru Ram in the Enquiry Committee, which was overruled by the Enquiry Committee and the said person ultimately appeared as the witness against the appellant, although he was one of the members of the Enquiry Committee. A learned single Judge of Punjab and Haryana High Court allowed the petition filed by appellant holding that the departmental proceedings were vitiated for violating the principles of natural justice. Against the said judgment, the Division Bench allowed the appeals and dismissed the petition holding that it had not been brought on record as to what objection was taken and in what form against Shri Maru Ram, who was a member of the Enquiry Committee. It was also held by the Division Bench that the bias could be waived and if the appellant felt that the enquiry proceeding was vitiated for the reasons of bias because of including of the said official as a member of enquiry committee, he could have raised specific plea of bias before the concerned officials i.e., Disciplinary Authority and Appellant Authority. When the matter reached Hon'ble Supreme Court, it was held that in the facts and circumstances of that case that:
"there was not only a reasonable apprehension in the mind of the appellant about the bias of the one of the members of the enquiry committee namely, the said Shri Maru Ram but such apprehension became real when the said Shri Maru Ram appeared as a witness against the appellant to prove the said charge and thereafter proceeded with the enquiry proceeding as a member of the enquiry committee to uphold the correctness of his deposition as a Judge."
It was further observed in para 12 of the said judgment that:
"the learned single Judge..... has rightly held that the bias of Shri Maru Ram, one of the members of the enquiry committee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind. The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner."
(Emphasis supplied)
38. The next judgment cited by the learned Counsel for the applicant is 1988(1) SLR 15=1987(3) SLJ 703 (CAT- Jabalpur), Y.K. Verma v. Union of India, wherein it has been held that the findings on a charge other than those included in the charge sheet could not be sustained. In the said case of Y.K. Verma, Junior Engineer Telegraph's at Bilaspur was proceeded with the disciplinary proceedings for three articles of charge. After the discussion on merits it was held that charges-1 & 3 were not established against the petitioner therein. In charge-I carrying of two telephone instruments was not proved, as alleged in original charge, and cannot be committed later and it involves no misconduct and misbehaviours. It was further observed that therein that there remained only Article No. 2, which was gross negligence in the matter of overwriting in the accounts register. In that context it was held that it was not desirable to take any serious notice of the said instance.
39. Refuting the contentions of bias and role of Ld. Counsel for respondents also stated that at no stage, applicant made any allegations of bias etc. Any contentions not raised before the authorities can't be allowed to be raised later, before the Court/Tribunal. Reference is made to Deokinandan Sharma v. Union of India, 2001(5) SCC 340, para 6. In the said case, it was contended that the conducting officer "did not afford reasonable opportunity of hearing to the appellant to adduce defence evidence." After perusal of the appeal, it was found that "there was no whisper of the aforesaid ground therein." Therefore it was observed by the Hon'ble Supreme Court that "it is not possible to allow the appellant to raise this point....".
40. Further reference was made to High Court of Judicature at Bombay v. Shirish Kumar Rangarao Patil, 1997(6) SCC 339=1997(3) SLJ 260 (SC), particularly para 18, wherein it has been observed that:
"Allegations of bias also is not warranted on the facts. When we asked the Counsel whether any allegations of bias was made at the inception of the enquiry against the enquiry officer, he candidly admitted that no such allegations were made. The allegations came to be made for the first time in the reply to the show-cause notice issued by the High Court. It would, therefore, be obvious that it is an afterthought to get over the report of the enquiry officer."
(Emphasis supplied)
41. In the present case also, there was no allegations of bias etc., made at the inception of the enquiry, and the same came to be made for the first time during the course of arguments in as much as no reply was submitted to the show cause notice after the submissions of the enquiry report. We have also perused the witnesses statements recorded during the departmental proceedings, which were produced before us by the respondents and find that no leading question was put to the witnesses by the Inquiry Officer, Moreover under the provisions of Rule 14(14) of CCS (CCA) Rules, 1965 empowers Inquiry Officer to put such questions to the witnesses as it think fit.
42. We have carefully perused the above mentioned judgments and are of the opinion that the applicants contention that the findings of the Inquiry Officer is based on extraneous consideration, other than the charges levelled, which vitiated the entire enquiry, is misplaced and untenable as we have already held that the charge levelled against the applicant were neither vague nor based on suspicion, and the findings of the enquiry officer is based upon the documents on record besides the testimony of witnesses. It cannot be held that the said findings of the Inquiry Officer suffers from either bias or based on extraneous consideration.
43. In view of the facts of the present case which is similarly circumstanced with the judgments cited above, we are of the considered opinion that the allegations of bias etc. made against the enquiry officer and raised before us for the first time, are after thought and baseless.
Findings Based on No Evidence
44. The learned Senior Counsel for the applicant has taken pains to point out that the findings recorded by the Inquiry Officer were based on no evidence. The learned Senior Counsel has taken us to the said inquiry report which we have perused in its entirely to find out as to whether the findings recorded therein are based on "no evidence" or "some evidence." In this context a reliance has been placed on 2001(1) SCC 182, Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. as well as 2002(7) SCC 142, Sher Bahadur v. Union of India and Ors.
45. In the aforesaid case of Shri Sher Bahadur a casual labourer was charge sheeted alleging that he had fraudulently secured the appointment letter duly signed by the official without having worked prior as well as without specific and personal approval of the General Manager. An enquiry was held and a punishment of dismissal from service was imposed, Challenge made before the Tribunal as well as High Court did not yield any result and as such the matter reached before the Hon'ble Supreme Court. It was submitted on behalf of the appellant that the enquiry report was based on the no evidence and as such there was no valid case for his dismissal. On merits, after examination of the evidence oral as well as documentary it was found that though the Disciplinary Authority cited on witness but he was not examined. The Inquiry Officer examined the charged officer but nothing was elicited connected with the charge. The statement of the appellant recorded by the Inquiry Officer showed nothing more than his engagement in different phases, which statement was not relied upon by the Inquiry Officer. In the said circumstances it was held that mere fact that the Inquiry Officer had noted in his report that "In view of the oral, documentary and circumstantial evidence as adduced in the enquiry," the charge against the appellant for securing the fraudulent appointment letter could not be proved and findings recorded by Inquiry Officer was held to be "erroneous". In such circumstances it was held that the said findings of the Inquiry Officer holding the appellant guilty was without having any links with the appellant with the alleged misconduct. In the aforesaid case of Shri Sher Bahadur, the Hon'ble Supreme Court held as follows:
7. It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer is no evidence in law. There mere fact that the enquiry officer has noted in his report, "In view of oral, documentary and circumstantial evidence as adduced in the enquiry," would not in principle satisfy the rule of sufficiency of evidence. Though, the Disciplinary Authority cited one witness Shri. R.A. Vashist, Ex. CVI/Northern Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P-1, referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant which is a neutral fact. The enquiry officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no more than his working earlier to his re-engagement during the period between May 1978 and November 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is, in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High Court and the order of the Disciplinary Authority, under challenge, cannot be sustained, they are accordingly set aside."
(Emphasis supplied)
46. In the Girja Shankar Pant case, (supra) the respondent was charged sheeted for 13 different charges, his request for supply of documents went unheeded despite an order for inspection of records was passed by the Inquiry Officer, he was not allowed to cross examine any of the officers despite specific request. In the said context, the High Court set aside the order of dismissal imposed upon the respondent therein on the ground that it was prejudicial and passed in contravention of principles of natural justice, which resulted in miscarriage of justice. The said findings of High Court were ultimately upheld by the Hon'ble Supreme Court by dismissing the appeal on the ground that the Managing Director of the appellant was not well disposed towards the respondent and the proceedings suffered because of bias, malice and violation of principles of natural justice.
47. On the other hand, Mr. M. Vasudeva Rao, Ld. Counsel for the respondents also submitted that it is not within the realm of the Court/Tribunal to examine sufficiency of evidence and correctness of conclusions drawn in departmental enquiry, It is further submitted that the scope of Judicial review does not extend to reappreciating the evidence and it is beyond the jurisdiction of the Court/Tribunal to sit in appeal over the findings of the Disciplinary Authority. Concurrent findings by the Disciplinary Authority and the Appellate Authority cannot be interfered with although another view was possible. It is further settled law that if there is "some evidence" to reasonably support the findings of the Inquiry Officer, the Court/Tribunal in exercise of judicial review would not reverse the findings on the ground of "insufficiency of evidence." The adequacy of reliability of the evidence is not a matter which could be permitted to be canvassed. The jurisdiction of Court/Tribunal is limited i.e., only when the findings are either perverse or there is no evidence, the said findings can alone be interfered. It is strenuously urged that the present case is neither relate to "no evidence" or "perverse findings," as alleged by the applicant.
48. In R.S. Saini v. State of Punjab, 1999(8) SCC 90, at para 16, the Hon'ble Supreme Court held that:
"The Court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some the inquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the findings and the adequacy or reliability of the evidence is not the matter which can be permitted to be canvassed before the Court in writ proceedings." (Emphasis supplied) In Dr. Anil Kapoor v. Union of India and Ors., 1998(9) SCC 47 it has been held that:
"After perusing the order of the Tribunal, we are of the view that though it is possible to take another view in this matter, that will not be a ground for interfering with the orders passed in the disciplinary proceedings."
(Emphasis supplied) In H.B. Gandhi, Excise and Taxation Officer cum Assessing Authority Karnal and Ors. v. Gopi Nath and Sons and Ors., 1992 Suppl. 2 SCC 312, at para 8, it has been held that:
"Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.
It will be erroneous to think that the Courts sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself." (Emphasis supplied)
49. We have carefully analysed the enquiry report and find that it cannot be said that the findings recorded by the Inquiry Officer are cither perverse, baseless and based on no evidence. As could be seen from the aforementioned judgments the Court/Tribunal cannot reverse findings so recorded on the basis of adequacy or reliability of evidence. Similarly the Court/Tribunal cannot appreciate the evidence unless the findings are perverse or based no evidence. As we have already noted that due procedure was followed by the Inquiry Officer and the applicant was afforded reasonable opportunity to place has defence, which opportunity was not availed of by him. No objection was raised to the said proceedings except the one so raised on 1.12.1997, where also only it was stressed that "the prosecution should proceed the departmental action." As such it is the applicant who is to blame himself and not the authorities for the findings recorded against him. Therefore the contention raised by the applicant is unfounded and deserves to be rejected.
Non-payment of Subsistence Allowance:
50. The learned Senior Counsel Mr. K. Subba Rao has vociferously contended that non-payment of subsistence allowance to the applicant has vitiated the entire disciplinary proceedings in the present case. The subsistence allowance was paid only on 10.6.1999 though he was placed under suspension vide order dated 11.2.1992, despite the fact that the certificate of non-employment was produced by the applicant on numerous occasion. The learned Counsel contended that right to life as prescribed under Article 21 is the signature tune of the Constitution and the said fundamental right cannot be breached by the respondents by not making payment of subsistence allowance despite numerous representation made on the said subject. It is contended that vide representation dated 18.11.1996, made pursuant to the orders passed by the Principal Bench of this Tribunal in O.A. No. 1374/1996 on 16.10.1996, a specific request to release the subsistence allowance was made to the respondents. The respondents rejected the said representation vide memorandum dated 11/24.7.1997 (Annexure A15) but they did not discuss anything about the said request for payment of subsistence allowance. An application bearing O.A. No. 788/1997 was filed on 19.3.1997 before the Principal Bench of this Tribunal challenging the suspension order dated 11.2.1992. We have carefully perused the pleadings filed in the said O.A. and find that there is no averment either in the O.A. or in the rejoinder expressing his inability to participate in the departmental proceedings due to non-payment of subsistence allowance. We further find that the said O.A. contained a representation dated 28.9.94, which was addressed to the Minister of Communication, Government of India, by the applicant's wife wherein in sub-para-4 it is averred that the applicant's father was bedridden for last three years as on that date as well as the meagre subsistence allowance paid to the applicant was quite insufficient to meet the medical expenses. It would be relevant to extract the concern para from the said representation, which reads thus:
"(iv) apart from the above the parents of my husband are entirely depending upon us. My father-in-law as mentioned earlier had suffered brain dehmurrage and he is bed ridden for the last three years for whom we are to spend a lot of money for medical treatment.
Sir, the above are few of the family problems I have mentioned although there are quite a lots of untold problems.
Sir, it is needless to mention the difficulties that a moderate family to face in these hard days without proper income. The meagre suspension allowance being paid by the Department is even quite in-sufficient to meet the medical expenses not to talk of the other family expense." (Emphasis supplied)
51. The said O.A. also contained one representation filed by the applicant as early as on 25.11.1994 wherein he stated that he had not been paid the required subsistence allowance (Annexure AV to the said O.A.). The said O.A. was disposed of vide order dated 24.11.1998 as the respondents had justified the said suspension order and stated that the arrears of subsistence allowance would be disbursed to the applicant on furnishing a non-employment certificate as required by rules. As such it is clear that the applicant could not be paid the subsistence allowance because of want of action on his part i.e., non-furnishing of non-employment certificate. No details has been furnished by the applicant as to when he furnished the said certificates for claiming subsistence allowance except in the year 1994.
52. Reliance has been placed on AIR 1973 SC 1182=1973 SLJ 356 (SC), Ganshyam Das v. State of Madhya Pradesh; AIR 1983 SC 803=1983(2) SLJ 227, State of Maharashtra v. Chandra B; AIR 1999 SC 1416=1999(3) SLJ 152 (SC), Captain M. Paul Anthony v. Bharat Gold Mines Limited; AIR 1986 SC 1168=1986(2) SLJ 150 (SC), Fakir Bhai Solanki v. Presiding Officer and Anr.; 2000(7) SCC 90, Jagdamba Prasad Shukla v. State of Uttar Pradesh and Ors.; 2002 SCC (L and S) 961 Anwarun Nisha Khatoon v. State of Bihar.
53. In the aforesaid case of Anwarun Nisha Khatoon, the payment of subsistence allowance was denied to the deceased, appellant's husband, on the ground that the" suspended employee had not marked his attendance as well as he had not submitted certificate of being not engaged elsewhere, Reliance was placed upon Rule 96 of Bihar Service Code and it was held by the Hon'ble Supreme Court that there was no rule which required a suspended employee to mark attendance. It was further held that the respondents could at the most ask for a certificate that the appellant's husband was not engaged in any other employment, business, profession or vocation. Since the appellant's husband had died it was directed that the appellant's wife would furnish a certificate on an affidavit stating that her husband was not engaged in any other employment. It was also observed by the Hon'ble Supreme Court that at no stage the respondent had asked the appellant to give such a certificate. In such circumstances it was held that grant of subsistence allowance cannot be denied on the ground that the said certificate was not given.
54. In the case of Jagdamba Prasad Shukla (supra), the appellant was placed under suspension by an order dated 1.6.1977 and was transferred vide order dated 4.8.77 in order to face disciplinary proceedings. The appellant did not participate in the said proceedings allegedly on the ground of illness and being confined for medical treatment at Kanpur and also on account of financial crunch for non-payment of subsistence allowance. Ultimately a punishment of removal from service was imposed upon him. Departmental appeal was rejected and his petition before the U.P. Public Service Tribunal was also dismissed. The said proceedings were challenged before the High Court and the only contention raised before the High Court was that on account of nonpayment of subsistence allowance right from the date of suspension till his removal he could not participate in the departmental enquiry and therefore the said enquiry proceedings stood vitiated for denial of reasonable opportunity to him. He lost before the High Court too for the reasons that the appellant was required to furnish a certificate about his non-engagement as well as he had not taken a ground either in the main petition or in the writ petition that he could not participate in the said departmental enquiry because of financial crunch. As such the matter reached before the Hon'ble Supreme Court. After perusal of the record, it was found that in reply to the show cause notice the appellant had specifically stated that he had not been paid the subsistence allowance, which could not be withheld and as such how could he be expected to reach Gorakpur i.e. place of enquiry or elsewhere due to shortage of funds. It was also noticed by the Court that he had made a request a number of times for drawing his pay and subsistence allowance, which was a serious handicap to appear/participate anywhere even if he would have so preferred during illness and even, against the medical advice. In such circumstances the Hon'ble Supreme Court observed in para-8 that: "the payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of subsistence allowance All through the period of suspension i.e., from suspension till removal. One of the reasons for not appearing in inquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance and the other was the illness of the appellant. The appellant in reply the show-cause notice staled that even if he was to appear in inquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed."
(Emphasis supplied)
55. The judgment rendered in Ganshyam Das, Chandrabhan as well as Fakirbai Fulabai Solanki had been noticed by the Hon'ble Supreme Court in Captain M. Paul Anthony's case, The learned Senior Advocate emphatically contended that the applicant had not mortgaged or barter away his basic rights as a human being, including his fundamental right in favour of Government. The officials of the respondents cannot dictate term to the applicant that he alone should proceed to his native place, leaving the family behind at Ghaziabad. The fundamental rights, including the right to life under Article 21 of the Constitution is the basic human rights, are not surrendered by the employees. The provision for payment of subsistence allowance in the Rules ensures non-violation of the right to life of the employee. It is further contended that where employee was not provided any subsistence allowance during the period of suspension and the departmental proceedings are held ex parte against him, the applicant has been punished in total violation of principles of natural justice and he was literally not afforded an opportunity of hearing. Non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. It is settled law that the act of non-payment of subsistence allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of nonpayment of subsistence allowance, would gradually starve himself to death. In this context, a reference was made to (supra) - Captain M. Paul Anthony v. Bharath Gold Mines Limited. Specific reliance has been placed on paras 30-32. It would be relevant to extract the said paras which reads as under:
"30. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of subsistence can be likened to slow-poising as the employee. If not permitted to sustain himself on account of non-payment of subsistence allowance, would gradually starve himself to death.
31. On joining Govt. service, a person does not mortgage or barter away his basis rights as a human being, including his fundamental rights, in favour of the Govt. The Govt. only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like instrumentalities of the Govt. or Statutory or Authonomous corporations etc... is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory rules including Certified Standing Orders. The Fundamental Rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra v. Chandrabhan, (1983) 3 SCR 337 : (1983) 3 SCC 387 : AIR 1983 SC 803=1983(2) SLJ 227 (SC), struck down a Service Rule which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer, (1968) 3 SCC 131 : (1986) 2 SCR 1059 : AIR 1986 SC 1168= 1986(2) SLJ 150 (SC), and it was held in that case that if an employee could not attend the departmental proceedings on Account of financial stringencies caused by non-payment of Subsistence Allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated, for this purpose reliance was also placed on an earlier decision in Ghanshyam Dass Shrivastava v. State of Madhya Pradesh (1973) 1 SCC 656=AIR 1973 SC 1183=1973 SLJ 356 (SC).
32. The question whether the appellant was unable to go to Kolar Gold Fields to participate in the inquiry proceedings on account of non payment of Subsistence Allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income." (Emphasis supplied)
56. A perusal of the aforesaid mentioned judgment would show that the Hon'ble Supreme Court had relied upon its earlier judgments rendered in case of Chandra Bhan, Fakirbhai Fulabhai Solanki as well as Ghanshyam Dass Shrivastava in the aforementioned paras. There cannot be two opinion on the settled proposition that during suspension a Government servant continues to be a member of service and is not permitted to work anywhere else and he is entitled to subsistence allowance. In the case of Chandrabhan, the rule which provided for payment of nominal of Re. 1/- as subsistence allowance to an employee placed under suspension was quashed by holding that: "if a civil servant under suspension pending a departmental enquiry or a criminal trial started against him, is entitled to subsistence allowance at the normal rate which is a bare minimum required for the maintenance of the civil servant and his family, he should undoubtedly get it even pending his appeal filed against his conviction by the trial Court, and his right to get the normal subsistence allowance pending consideration of his appeal against his conviction should not depend upon the chance of his being released on bail and not being lodged in prison on conviction by the trial Court." Relying upon the observation of the Hon'ble Supreme Court in Madhava Hayawandarao Hoskot v. State of Maharashtra, AIR 1978 SC 1548 (para-12) wherein it was stated that: Every step that make the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and, ergo, unconstitutional." it was held that the second proviso to Rules 151(i)(ii)(b) of the Bombay Civil Service Rules, 1959 is unconstitutional. The said judgment in Chandrabhan case was followed in Fakirbhai Fulabhai Solanki case and it was held that if an employee could not attend departmental proceedings on account of financial exigencies followed by non-payment of subsistence allowance and thereby could not undertake a journey away from his home to attend departmental proceedings, the order of punishment including the whole proceedings would stand vitiated.
57. If the aforementioned law, so noticed, is applied to the facts of the present case, it could be seen that the suspension order dated 11.2.1992 had been the subject matter before the Principal Bench of the Tribunal in O.A. No. 708/1997 and O.A. No. 1394/1996, which were disposed of without quashing the said suspension order. As we have already noticed that in O.A. No. 708/1997. There was neither a pleading nor a contention raised during the arguments that the applicant could not participate in the departmental proceedings initiated vide charge memo dated 10.10.1996 for want of payment of subsistence allowance. It needs reiteration at this stage that the O.A. No. 708/1997 was filed on 19.3.1997 and had been finally disposed of on 24.11.1998 i.e., much after the initiation of departmental proceedings. From the perusal of the reply para-4 (vi), in O.A. No. 708/1997, it is clear that the applicant did not collect the payment on account of subsistence allowance and a categorical statement was made therein that the subsistence allowance could be collected by the applicant during office hours. Despite this categorical stand taken in the reply, applicant choose not to collect the said subsistence allowance. It would be relevant to reproduce the said reply para, which reads thus:
"The subsistence allowance w.e.f. 11.2.1992 till date has also been drawn and kept ready for payment. But the suspended officer whose headquarters has never been changed from Ghaziabad has neither furnished non employment certificate (mandatory as per Rule 29 of CCS (CC A) Rules, 1965) nor collected the payment from this office. The payment can be collected from this office on any payment day in person during office hours as is done by other suspended officers/other officials. (Emphasis supplied)
58. We have carefully perused the records made available to us by the learned Counsel for the respondents and from perusal of file No. 93-24/97-LTP, we find that a bill of Rs. 51030/- towards subsistence allowance payable to the applicant for the period from 11.2.1992 to 31.8.1996 received from the Senior Accounts Officer (P&A) was lying in cash section for payment but the applicant did not collect the same. Similarly note dated 19.8.1997, in the same file, reveals that the subsistence allowance w.e.f. 11.2.1992 till the said date was also drawn and kept ready for payment but the applicant neither collected the same nor furnished non-employment certificate as required under the Rules.
59. A conduct of the applicant would show that neither he participated in the departmental proceedings initiated against him nor did he make any representation against the findings recorded by the Inquiry Officer. If the non-payment of the subsistence allowance was the cause for non-participating the applicant in the said department enquiry, he ought to have pointed out the same either to the Inquiry Officer or to the Disciplinary Authority during the pendency of the said proceedings. Merely because such a point is raised in an appeal, it would not, in our considered opinion, be sufficient to set aside and quash the departmental proceedings on the said plea, particularly in view of the facts and circumstances of the present case. It is further seen from the facts that the applicant had filed a O.A. No. 278/2001 wherein the penalty order dated 27.10.1999 had been impugned. The said O.A. No. 278/2001 was disposed of vide order dated 23.1.2001 (Annexure A6) with a direction to the respondents to dispose of the applicant's appeal which has since then been pending. We have perused the pleadings made in the said O.A. No. 708/2001 and find that neither there was pleadings nor such a contention raised regarding any prejudice being caused to the applicant due to non payment of subsistence allowance. On the other hand, the sole ground/contention raised was to the following effect:
"Under these circumstances, the applicant made representation requesting the authorities to defer the enquiry in view of the reason that the Criminal case has been filed against him and the same is pending. Under these circumstances, without considering his request the respondents proceeded against the applicant resulting in holding that the charges are proved. This enquiry is an exparte enquiry and the applicant could not participate in the said enquiry due to his ill-health. Under these circumstances, by concluding with the enquiry report, the applicant has been dismissed from service by issuing an order dated 27.10.1999" (Paragraph-4(II). (Emphasis supplied)
60. From the records we found that the applicant made no such plea i.e. ill-health at any stage of the disciplinary proceedings. In any case it was never the plea of the applicant that he could not participate in the departmental proceedings due to nonpayment of subsistence allowance. As such the ratio laid down in the aforementioned judgments is inapplicable in the facts and circumstance of the present case.
Parallel Proceedings:
61. It is settled law that the Criminal trial as well as the departmental proceedings could continue simultaneously as the nature and scope of a criminal case is different from those of departmental proceedings. It is neither possible nor advisable to evolve a hard and fast, straight jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. It was observed by the Hon'ble Supreme Court in State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417=1997(1) SLJ 86 (SC), that "interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is inquire into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings."
62. In Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Miyan, (1997) 2 SCC 699=1997(1) SLJ 241 (SC), it was held once again that there is no bar to proceed simultaneously with the departmental enquiry and trail of a Criminal case unless the charge in the Criminal case is of grave nature involving complicated questions of fact and law. If the departmental proceedings and the Criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact. It would be desirable to stay the departmental proceedings till the conclusion of the criminal case. At no stage the applicant filed any proceedings seeking stay of the departmental proceedings before any Court of law. Moreover, from the facts of the present case it could be seen that the departmental proceedings and the criminal case pending against the applicant were not based on identical and similar set of facts. The sole contention raised before the authorities during the pendency of criminal trial such disciplinary proceedings should be stayed did not find favour from the concerned authorities. The said stand of the respondents was not challenged before any Judicial forum. On the other hand, the request made by the authorities to cooperate with the departmental proceedings went unheeded by the applicant. As such the plea raised now that due to non-payment of subsistence allowance the applicant could not participate in departmental proceedings, in our considered view is an after thought and is not available to the applicant.
Penalty - Disproportionate
63. Next contention raised by the learned Counsel for the applicant is that the penalty imposed upon the applicant is disproportionate and quite excessive in nature. It is further contended that there is no misconduct committed by the applicant besides there had been procedural irregularities and due process of law not been followed by the authorities. For this contention, reliance has been placed on AIR 1988 SC 948, Colour Can Limited v. EAL; AIR 1999 SC 3367, Syed Jagir Hussain v. UOI; AIR 2000 SC 1151, U.P. State Road Transportation Corporation v. Mahesh Kumar Mishra; para-78, AIR 2000 SC 1163, U.P. State Road Transport Corporation v. Subash Chandran Sharma; AIR 1994 SC 215, Union of India v. Giriraj Sharma; 1996 Volume 4 SLR 170, GM PB Roadways v. Dharam Singh and AIR 1983 SC 454, Bhagatram v. State of Himachal Pradesh.
64. This contention has been seriously disputed by the respondents.
In Secretary to Government, Home Deptt. and Ors. v. Srivaikundathan, 1998(9) SCC 553, at para 3, it has been held that:
"The Tribunal was not sitting in appeal over the findings of the Inquiry Officer, nor was the Tribunal required to examine the nature of the evidence which was led as if it were a criminal, trial. Unless the findings were perverse, or unless it was found that there was no evidence whatsoever before the Inquiry Officer, the Tribunal could not have set aside the findings of the Inquiry Officer merely by expressing dissatisfaction with the evidence which was led."
Similarly, at para 4 it was held that:
"The Tribunal was also not justified in interfering with the punishment which was imposed on the respondent. It is for the Disciplinary Authority to consider the punishment which should be imposed." (Emphasis supplied) It is well settled law as laid down in Union of India v. Parmanand, 1989(2) SCC 177 that:
"It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the Competent Authority either by an Act of legislature or rules made under proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the Competent Authority. If the penalty can be lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority."
(Emphasis supplied) Recently, the Hon'ble Supreme Court in 2003(3) SCC 605, Regional Manager, UP SRTC Etawah v. Hoti Lal and Anr., has held that:
"It needs to be emphasised that the Court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever has been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice (See Alexander Machinery (Dudley) Ltd. v. Crabtree, 1974 LCR 120 NIRC). A mere statement that it is disproportionate would not suffice." (Emphasis supplied)
65. In view of the aforementioned judgments and the ratio said down therein, the applicant's contention and reliance placed that the penalty imposed is excessive, arbitrary and disproportionate cannot be interfered by this Tribunal. Accordingly, this contention too has no merits and is rejected.
Fairness
66. The learned Counsel for the applicant contended that no fairness in procedure has been followed by the respondents in conducting the present disciplinary proceedings. No doubt it is settled law that there should be fairness in procedure adopted by the administrative authorities. A mention of fair play does not come very well from the applicant, who himself was grossly guilty of breach of fair play in as much as instead of cooperating with the authorities in determining and investigating the fraud, fled from the office on a false pretext of performing last rites of his father. The sequence of incidence in itself shows that applicant at no stage acted fairly or reasonably and as such he is precluded from contending that the respondents action is not fair. Fairness has to be followed by all sides and not simply by the respondents.
Appellate Order
67. The learned Senior Counsel has taken pains to point out that the appellate order is based on the UPSC advise and the Appellate Authority was influenced by the UPSC recommendations, which in turn was influenced and carried by the pendency of criminal cases against the applicant. Accordingly, it is contended that the appellate order is bad in law. This contention of the applicant has been contested by the respondents' Counsel. We have perused the said appellate order dated 2.8.2001 and find that the same is based on not only on the advise rendered by the UPSC but the Appellate Authority examined and considered the submissions of the applicant raised in his appeal dated 31.1.2000 too. Pendency of criminal cases was one amongst many factors which were taken into consideration by the UPSC, We further find that in the said appellate order all technical objections raised by the applicant have been duly noticed and no substance was found by the Appellate Authority to interfere with the penalty order. Even the question of quantum of punishment was considered by the UPSC but not agreed to. The appellate order is a reasoned and speaking order and we do not find any infirmity in the said order. Accordingly, this contention of the applicant is also rejected.
68. Much emphasis was laid by the learned Counsel for the applicant that the applicant could not have been accused of not maintaining of cash book in. February, 1992. No doubt that this aspect of allegation made in charge memo dated 10.10.1996 has been considered and commented upon by the Inquiry Officer in his report, but we do not find that the same was the basic reason for imposing the impugned penalty.
69. In view of the findings recorded herein above, we do not find any justification to interfere with the penalty order dated 27.10.1999 as well as the appellate order dated 2.8.2001. We also do not find any illegality or arbitrariness etc., in the UPSC recommendations dated 13.7.2001, as alleged. Accordingly, the application being bereft of any merits, is dismissed. However, there will be no order as to costs.