Gujarat High Court
Jay Prakash Pradhan vs Central University Of Gujarat on 23 October, 2019
Equivalent citations: AIRONLINE 2019 GUJ 451, 2020 LAB IC 70
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/9842/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9842 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 9842 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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JAY PRAKASH PRADHAN
Versus
CENTRAL UNIVERSITY OF GUJARAT & 1 other(s)
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Appearance:
MR SHALIN MEHTA, SR ADVOCATE WITH MR DIPEN DESAI(2481) for the
Petitioner(s) No. 1
MR MITUL K SHELAT(2419) for the Respondent(s) No. 1
MR PAWAN A BAROT(6455) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 23/10/2019
CAV JUDGMENT
Both the sides having merrily distanced themselves from the discipline of pleadings, the record of the petition is replete with unnecessary details. Notwithstanding, the core controversy could be noticed.
Page 1 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT1.1 Whether in the facts of the case and with reference to the provisions of Central Civil Services (Classification, Control & Appeal) Rules, 1965, is it a permissible course to be adopted to straightway appoint an inquiry officer without serving the petitioner - delinquent the statement of imputation of charges, is the moot question.
1.2 Heard learned senior advocate Mr.Shalin Mehta assisted by learned advocate Mr.Dipen Desai for the petitioner, learned advocate Mr.Mitul Shelat for respondent No.1 University and learned advocate Pawan Barot for respondent No.2, at length.
2. What is prayed is to set aside order dated 22nd April, 2017 of respondent No.1 - Central University, Gujarat, whereby the inquiry officer came to be appointed. It is further prayed to set aside the communication dated 06th May, 2017 of the inquiry officer.
3. Shorn off the irrelevants, the facts to be noticed are that the petitioner was appointed as Associate Professor in the Center for Studies in Economics & Planning under the respondent university. The petitioner joined on 06th September, 2012. At the end of the probation period, came to be confirmed on 09th September, 2014 with effect from 06th September, 2013. The petitioner held various posts in different committees. In the year 2014-15, petitioner was Member of the Admission Committee and Chairperson of the Question Paper Committee. Similarly in the year Page 2 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT 2016-17, the petitioner was Member of the Admission Committee and also a Member of the Question Paper Setting Committee.
3.1 It is the case of the petitioner that sister of the petitioner got admission in the Uuniversity to pursue M.A. course. After completing two years in the said course, she was admitted to M.Phil.-Ph.D. It appears that sister of the petitioner filed Special Civil Application No.12822 of 2016 before this Court challenging the Rules for admission of the University. According to petitioner, this irked the University Authorities. The petitioner and her sister were pressurised to withdraw the proceedings. It was stated that inquiry was also started against the petitioner. It further appears that in November, 2015, one Satish Sonwane who was student of Scheduled Caste Category doing his M.Phil-Ph.D. course under the petitioner, filed a complaint against the petitioner stating that he was discriminated against in the matter of evaluation due to his caste.
3.2 On 09th August, 2016 the university addressed a letter to the petitioner seeking explanation from the petitioner as to why the petitioner did not discloses that sister of the petitioner was a student. According to university, petitioner violated the code of conduct by not disclosing the said fact though he was a Member in the Admission Committee and Question Paper Committee as above. It was alleged that the petitioner may have helped the sister to get through the examination. The Page 3 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT petitioner stated that the said explanation was called for from him immediately after the sister filed the aforementioned petition.
3.3 It was stated that inquiry was undertaken without supplying any document to the petitioner, and a report came to be submitted to the University on 06th January, 2017. On 10th January, 2017 and 11th January, 2017 order and corrigendum respectively were issued whereby the petitioner was barred from doing examination related work and discharging administrative responsibilities. Petitioner replied to state that committee's report was biased. It was stated by the petitioner that he had not played any role in the admission of the sister.
3.4 Thereafter on 18th January, 2017 petitioner came to be suspended by the university for the charges of alleged discrimination and harassment to a student who had filed a complaint as mentioned above. It was further stated that preliminary inquiry was undertaken against the petitioner behind his back by one officer named Mr.Fulekar. It was averred that the said Committee, in violation of the Central Civil Services Rules, treated the petitioner guilty without holding any departmental inquiry. It also appears that as the departmental inquiry was not initiated against the petitioner. Suspension of the petitioner came to be revoked on 17th April, 2017 and the petitioner was taken back on duty.
3.5 Thereafter on 22nd April, 2017 as per the Page 4 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT impugned order, the University appointed a Retired Judge of the High Court as inquiry officer to conduct the inquiry against the petitioner. The precise case of the petitioner is that the inquiry officer could be appointed only after issuance of statement of imputations of misconduct, no such procedure was undertaken, yet the inquiry officer came to be appointed. The inquiry officer addressed a letter dated 06th May, 2017 calling the petitioner to remain present for the purpose of inquiry. As regards this letter dated 06th May, 2017 from the inquiry officer, it was contended that the same was wholly biased and exhibited a prejudiced mind of the inquiry officer.
3.6 The petition was contested by respondent No.1 university by filing affidavit-in-reply in which it was sought to be asserted that the proceedings were initiated against the petitioner to conduct departmental proceedings in compliance of Rule 14 of the Central Civil Service (Classification, Control & Appeal) Rules, 1965. It was stated that Executive Council in its meeting dated 29th March, 2016 kept the promotion of the petitioner under Career Advancement Scheme in abeyance in view of the allegations of caste discrimination leveled against the petitioner. In the affidavit-in-reply, act of filing of petition by the sister of the petitioner was referred to and it was stated that it came to the knowledge of the University that petitioner had acted unethically and had failed to disclose to the competent authority that his sister was appearing in the examination in the academic year in which the petitioner was Member Page 5 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT of Admission Committee as well as Question Paper Committee.
3.7 It was further stated in the affidavit that inquiry committee was constituted on 11th November, 2016 under the directions of the Executive Council of the university to look into the complaints of lapses in conducting the admission and entrance examination against the petitioner. The said preliminary committee submitted report on 06th January, 2017. It was stated that, "the committee after going through the record and based on the statements made by the petitioner, concluded that the petitioner with mala fide intention of helping her sister through unfair means, intentionally opted to serve as a Chairperson of the Question Paper Committee". It was further mentioned in the affidavit that, "again with mala fide intention, opted to serve as university representative to conduct CUG Entrance Examination in 2014-15 as well as 2016-17 to provide the petitioner's sister access to the question paper ....". The affidavit stated that upon recommendation of the committee, the petitioner was divested of the examination work and the administrative responsibilities of confidential nature for three years.
3.8 It was stated in the affidavit-in-reply that the Executive Council in its meeting dated 17th March, 2017 passed a Resolution to prima facie accept the findings of the report submitted by the committees constituted to look into the allegations of Page 6 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT discrimination, harassment and biased based on the caste made against the petitioner by a scheduled caste student as well as the charges regarding mal practice as above. It was resolved to appoint a Retired Judge of the High Court as inquiry officer. The appointment of inquiry officer was sought to be justified on the ground of the above cause and on the basis of holding of abovesaid inquiries against the petitioner.
4. Learned senior advocate for the petitioner submitted that the whole procedure adopted in starting the departmental proceedings against the petitioner was flowed and in breach of Central Civil Services Rules. He invited attention of th Court to Rule 14 which lays down the detailed procedure for conducting the inquiry and imposing penalty against an employee. He further submitted that not only the proceedings of the inquiry were started against the petitioner in complete breach of natural justice as no chargesheet or show-cause notice was issued and inquiry officer straightway came to be appointed, the biased approach on part of the inquiry officer was reflected from conduct of proceedings and from the contents of the impugned communication dated 06th May, 2017 sent by the inquiry officer. It was submitted that the petitioner was not offered opportunity in terms of informing him about the charges, the entire proceedings sought to be initiated by the inquiry officer were vitiated.
4.1 Learned senior advocate for the petitioner Page 7 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT relied on the contents of the rejoinder affidavit as well. Learned senior advocate for the petitioner relied on decision in State of Punjab v. V.K. Khanna [AIR 2001 SC 343] in support of his plea of bias.
4.2 On the other hand, learned advocate for the respondent university submitted that two inquiries were held against the petitioner earlier and the petitioner was aware about the nature of allegations he was facing. It was submitted that even the inquiry officer informed him about the nature of allegations. It was therefore submitted that the petitioner was not right in submitting that there was a breach of natural justice. It was submitted that in any case, no prejudice could be said to have been occasioned to the petitioner since the knowledge of the allegations in respect of which the inquiry officer was appointed was attributable to him.
4.3 It was next submitted by him that even under Rule 14 of the Rules when the competent authority had decided to initiate inquiry and the inquiry officer was appointed, it was not the irregular course. It was submitted that the inquiry officer addressed impugned letter to the petitioner only to solicit his presence and reply. According to learned advocate for the respondent university, provisions of Rule 14 permitted such course of action.
4.4 Learned advocate for the respondent university relied on decision in Uttarakhand Transport Corporation (earlier known as UPSRTC) v.
Page 8 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENTSukhveer Singh [(2018) 1 SCC 231] to submit that in that case, it was held that mere non-supply of inquiry report prior to furnishing show-cause notice did not result into any serious prejudice to the delinquent in absence of pleading or proof regarding prejudice caused to him due to non-supply of the inquiry report. The delinquent would not be automatically entitled to reinstatement, it was held. Another decision in State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti [(2018) 9 SCC 472] was pressed into service to rely on paragraphs 6 and 19 from that judgment. The principles applied in the said judgment were with reference to Section 34 and Section 29A of the Arbitration and Conciliation Act, 1996, which could not be applied in the facts of the case. The Apex Court held that Section 34(5) was procedural and that such provision was required to be construed directory.
5. Now, the impugned order of the University whereby the inquiry officer was straightway appointed inter alia reads as under.
"The Executive Council of Central University of Gujarat, vide Resolution 23 of its meeting held on 05/01/2017, had suspended Dr. Jaya Prakash Pradhan, Associate Professor, Center for Studies and Research in Economics and Planning CUG, from service on having found him guilty on the charges of discrimination, bias and harassment of a Scheduled Caste student working under his guidance, by the Inquiry Committee constituted by the Execution Council under the Chairmanship of Liaison Officer in Respect of Matters Relating to Representations of Scs/STs and also on having found him guilty Page 9 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT of examination malpractice and violation of academic Code of Conduct on the grounds of moral turpitude as well as breach of code of office conduct and procedure by making false allegations against the University Authorities and Officials. Further, the Executive Council, as the Appointing and Disciplinary authority of the University, vide Resolution-14 of its meeting held on 17/03/2017 has decided to have a detailed inquiry conducted by appointing an Inquiry Officer of the rank of a retired Judge of High Court to inquire into the charges framed against Dr. Jaya Prakash Pradhan and submit a report based on which suitable action could be initiated against him as per Govt. of India Rules."
5.1 After the aforesaid order passed by the university, the inquiry officer addressed a letter dated 06th May, 2017 to the Registrar of the University as well as to the petitioner. The inquiry officer - respondent No.2 herein in his letter stated thus, extracting the relevant part.
"1. To Implement the above decision of the Executive Council, the Registrar, CUG, has passed the office order no. 15/2017-2018 dated 22-04-2017, after obtaining the necessary approval of vice chancellor, CUG, as well as after following other formalities, appointing the undersigned as an inquiring authority under Rule 14 of the Rules. It appears from the order dated 22-04-2017 that the scope and admit of the proposed inquiry is in respect of three different charges or accusations which are as under.
(i) Charges of discrimination, bias, and harassment of a schedule cast student working under the guidance of the delinquent
(ii) Charges of examination malpractice and violation of economic code of conduct on the ground of moral turpitude as well as the Page 10 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT breach of code of office conduct and procedure.
(iii) Charges of making false allegations against the Central University of Gujarat authorities and officials."
5.2 The inquiry officer mentioned about the inquiry committee appointed by the Executive Council of the university by Notification dated 13th April, 2016 to conduct the inquiry into the allegations of discrimination and caste bias in view of the complaint of the above-named scheduled caste student. It also referred to the second inquiry committee appointed on 11th November, 2016 to look into the complaints of lapses leveled against the petitioner - delinquent in conducting the examination from the Academic Year 2014-15 to 2016-17. In this letter, the inquiry officer inter alia required the disciplinary authority to deliver to the delinquent the copy of Article of Charges and imputations of misconducts and the list of documents.
5.3 Thus, the position emerged that the University straightway without serving a formal chargesheet appointed inquiry officer and the departmental proceedings were initiated. The inquiry officer took note of the findings of the inquiry committees earlier appointed by the university and on that basis, started departmental proceedings of the inquiry against the allegations against the petitioner. There is no gainsaying that though the inquiry officer came to be appointed, petitioner was not served with any show-cause notice and imputation Page 11 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT of charges but he was straightway called by the inquiry officer to appear in the inquiry proceedings.
5.4 Since the Central Civil Services (Classification, Control & Appeal) Rules, 1965 would apply, whether the above course was in accordance with the Rules is required to be examined, as without issuance of show-cause notice or chargesheet, the inquiry officer initiated the inquiry.
5.5 Under the aforementioned Rules, Part VI deals with the procedure for imposing penalties. Rule 14 sets out the procedure for imposing major penalties. It is useful to extract the whole text of Rule 14 from the Rules.
"14. Procedure for imposing major penalties (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these Page 12 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT rules.
Explanation.--
(i) Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the disciplinary authority.
(ii) Where the disciplinary authority appoints a retired Government servant as inquiring authority, any reference in sub-rule (7) to sub-rule (20) and in sub-
rule (22) shall include such authority.
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up- (I) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain- (a) a statement of all relevant facts including any admission or confession made by the Government servant; (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(4)(a) The Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article or charges is proposed to be sustained.
(b) On receipt of the articles of charge, the Government servant shall be required to submit his written statement of defence, if he so desires, and also state whether he desires to be heard in person, within a period of fifteen days, which may be further extended for a period not exceeding fifteen days at a time for reasons to be recorded in writing by the Disciplinary Authority or any other Authority authorised by the Disciplinary Authority on his behalf: Provided that under no circumstances, the extension of time for filing written statement of defence shall exceed forty-five days from the date of receipt of articles of charge.
5(a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written Page 13 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 15.
(b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authority for the purpose.
(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge. Explanation- For the purposes of this rule, the expression 'Government servant' includes a person who has ceased to be in Government service.
(6) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority- (I) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour; (ii) a copy of the written statement of the defence, if any, submitted by the Government servant; (iii) a copy of the statements of witnesses, if any, referred to in sub-rule (3); (iv) evidence proving the delivery of the documents referred to in sub-rule (3) to the Government servant; and (v) a copy of the order appointing the "Presenting Officer".
(7) The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by notice in writing, specify, in this behalf, or within such further time, not exceeding ten days, as the inquiring authority may allow.
(8) ... ... ...
(9) If the Government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon.
Page 14 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT(10) The inquiring authority shall return a finding of guilt in respect of those articles of charge to which the government servant pleads guilty.
(11) ... ... ...
NOTE- If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub- rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.
(iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3).
NOTE.- The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government.
(12) ... ... ...
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be ... ... ...
(15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given ... ... ...
(16) When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence ... ... ...
(17) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf ... ... ...
(18) The inquiring authority may, after the Government servant closes his case, and shall ... ... ...
(19) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed ... ... ...
(20) If the Government servant to whom a copy of the articles of charge has been delivered ... ... ...
Page 15 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT(21)(a) Where a disciplinary authority competent to impose any of the penalties ... ... ...
(b) ... ... ...
(22) Whenever any inquiring authority, after ... ... ...
(23)(I) After the conclusion of the inquiry, a report shall be prepared and it shall contain- (a) the articles of charge and the statement of the imputations of misconduct or misbehaviour; (b) the defence of the Government servant in respect of each article of charge; (c) an assessment of the evidence in respect of each article of charge; (d) the findings on each article of charge and the reasons therefor. ... ... ...
(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include :- (a) the report prepared by it under clause (I); (b) the written statement of defence, if any, submitted by the Government servant; (c) the oral and documentary evidence produced in the course of the inquiry; (d) written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry; and (e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.
24(a) The Inquiring Authority should conclude the inquiry and submit his report within a period of six months from the date of receipt ... ... ...
(b) ... ... ...
(c) ... ... ... "
5.5.1 A bare reading of the aforesaid Rule 14 and the providence thereof show that as per Rule 14(1) for imposing any penalty specified in Rule 11, inquiry into the manner provided in Rule 14 and Rule
15 have to be conducted. Sub-rule (2) provides that inquiry may be held in relation to any imputation of misconduct or misbehaviour against a government servant either by disciplinary authority himself who may inquire into the allegations or by other authority who may inquire into the truth of the Page 16 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT allegations. This inquiring authority is the inquiry officer. Sub-rule (3) of Rule 14 is clear to provide that where it is proposed to hold an inquiry against a government servant under this Rule and Rule 15, the disciplinary authority shall draw substance of misconduct or misbehaviour into definite and distinct article of charge.
5.5.2 It contemplates that a statement of imputation of misconducts shall be prepared in support of each article of charge which shall contain inter alia all relevant facts including any admission made by the government servant. It would also contain a list of documents and list of witnesses by which the articles of charge are supposed to be sustained. Thus, drawing up of substance of imputations of misconduct is provided for. Also incumbent on the authority concerned to prepare a statement and the list of documents and witnesses in support of the article of charge.
5.5.3 Sub-rule (4) states that the disciplinary authority shall deliver to the delinquent government servant a copy of articles of charge, statement of imputations of misconduct, list of documents and witnesses by which the articles of charge are supposed to be sustained and to be inquired into. Under sub-rule (6), it is provided that disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority (i) a copy of article of charge and statement of imputations of misconducts, (ii) a copy of written Page 17 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT statement of defence, (iii) a copy of statement of witnesses and (iv) evidence proving the delivery of documents. Thereafter the government servant shall appear in person before the inquiring authority on such date and time as may be required. The rest of the Rules provide for further procedure including that the inquiry officer shall reach a finding of guilt in respect to those article of charge to which the government servant pleads guilty.
5.6 The provisions of Rule are specific and explicit. Whether the inquiry against a government servant is to be conducted by the disciplinary authority or any other authority appointed as inquiry officer. It is provided in Rules that the substance of imputations of misconduct into a definite and distinct articles of charge shall have to be drawn. Such statement of imputations and misconducts alleged against the delinquent government servant shall have to be forwarded to. Furthermore, it has to be accompanied the list of documents and the list of witnesses to be relied on in support of the charge.
5.6.1 The inquiry officer is appointed under sub- rule (2) of Rule 14. From reading of the whole scheme of procedure arising from sub-rules (2), (3), (4), (5) and (6) of Rule 14, whether the inquiry is conducted by the disciplinary authority or any other authority appointed as inquiry officer by the disciplinary authority, drawing up of substance of imputations of misconduct into a definite and distinct articles of charge is mandatory. It is to be Page 18 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT done beforehand. Such statements of imputations of misconducts shall be sent to the delinquent government servant together with the statement of relevant facts, list of documents and list of witnesses. This requirement emerges with certainty from the total operation of the Rules.
5.6.2 It is not possible to read the Rules in any other manner except above. The observance of fundamentals of natural justice in an inquiry would commence from issuance of show-cause notice and furnishing the delinquent with the precise charges in form of statement of imputations which he will have to be met with in the proposed inquiry. This stage is a stage where the government servant would have an opportunity to file reply to convince the employer that the allegations made against him and imputations of charges raised against him are false. At this stage, the delinquent could convince the employer that no inquiry is required to be initiated and that he is innocent.
5.6.3 The stage is crucial stage for the delinquent where he would be availed an opportunity to prove his innocence to persuade the employer to drop the proposal to hold the inquiry at the threshold. The explanation which the delinquent government servant may give in response to the show- cause notice or in relation to the imputation of charges levelled against him has a material bearing on the rights of the delinquent. In the total concept of natural justice required to be applied in the Page 19 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT disciplinary inquiry, this stage cannot be permitted to be skipped. If the show-cause notice is not issued and the chargesheet is not served, the delinquent would be seriously prejudiced. Initiating the departmental inquiry without giving the chargesheet or imputation of charges would vitiate the inquiry at the threshold.
5.7 The Supreme Court in Gorkha Security Services v. Government (NCT of Delhi) [(2014) 9 SCC 105], in the context of action of blacklisting the contractor, underlined the importance of serving show-cause notice and the purpose thereof, in the following words.
"The fundamental purpose behind the serving of show- cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/ breaches complained of are not satisfactorily explained." (Para 28) 5.8 In light of the aforesaid legal position emerging from the Rules, when the chargesheet is not issued to the petitioner and his explanation is not sought for, yet the inquiry officer is readily appointed, submission on behalf of the learned advocate for the respondent University that charges were broadly shown to the petitioner and he was aware about the nature of the allegations, would be of no consequence. Nor it could be countenanced that the Page 20 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT prejudice did not occur to the petitioner.
5.9 When the issuance of chargesheet and specific imputations of charges are considered sine qua non in the process of compliance of natural justice in the departmental action, as it would arm the delinquent to seek his exoneration by filing reply at that stage itself, the non-service of imputations of charges, by itself results into a prejudice. Unless the charges are indicated in the specific terms with specific details and in precise manner with supply of documents with which they are sought to be supported, the delinquent government servant would not be able to raise his defence against the allegations properly. He would be prejudiced to unable to effectively defend himself in the inquiry proceedings. In the departmental inquiry, a delinquent can be said to have a right to know the allegations and charges for which he is proceeded against.
6. Looking to the importance of issuance of chargesheet and informing the delinquent about the specific nature of allegations which he has to face, even otherwise, the requirement of serving chargesheet at the very initiation of inquiry before embarking upon any other stage in the inquiry proceedings, is required to be read into the Central Civil Services Rules, 1965, as an inseparable part of natural justice. When non-issuance of chargesheet is to cause prejudice to the delinquent and since it is also a kind of civil consequence entailing upon the Page 21 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT delinquent as would be deprived of opportunity to plead his innocence, the specific compliance of this requirement must be read into must be treated as integral part for meaningfully operation of the Rules for the purpose of conducting the departmental inquiry.
6.1 In Sahara India (Firm), Lucknow v.
Commissioner of Income-tax, Central-I [(2008) 14 SCC 151] the Apex Court observed that the Rules are natural justice are not embodied Rules. The underline principles of natural justice, evolved under the Common Law, is to check arbitrary exercise of power by the State. The principle implies a duty to act fairly.
6.2 In S.L. Kapoor Vs Jagmohan [(1980) 4 SCC 379] the Supreme Court dealt with the aspect of extent of natural justice and the rule of audi alteram partem, observing that it is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, the opportunity is to be considered as excluded from that another provision. It was observed that it may be a weighty consideration to be taken into account, but the weightier consideration is whether the action has entailed civil consequences. The Apex Court was considering whether notice to member of Municipal Committee concerned, was necessary before the lieutenant governor exercised powers under Section 238(1) of Punjab Municipal Act superseding the New Delhi Municipal Committee before Page 22 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT expiry of the term.
6.2.1 The Supreme Court read into the provision of Section 238(1) the requirement of reading the natural justice. It was held that the fact that with regard to question of disqualification of an individual member, Section 16 of the Act expressly provided for an opportunity to the member concerned, whereas Section 28(1) did not provide for such an opportunity, would not lead to a necessary inference that action under Section 238 did not require observation of rule of natural justice. The Apex Court made the following observations, "The requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. This does not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met."(para 16) 6.3 The issuance of chargesheet at the threshold of the inquiry is not procedural requirement but a substantive aspect of natural justice to be complied with. It is the principle that issuance of show-cause notice or chargesheet marks initiation of the inquiry. Therefore the requirement is of substantial nature could not have been avoided or disregarded. In State of U.P. v. Harendra Arora [(2001) 6 SCC 392], the Supreme Court observed that there may be certain substantive provisions which must be strictly Page 23 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019 C/SCA/9842/2017 CAV JUDGMENT complied with. It was stated that even amongst the procedure provision, there may be some requirements which are of fundamental nature, where the theory of substantial compliance would not apply. The substantive requirement of fundamental nature has to be complied with in its full width and breadth.
6.4 Issuance of chargesheet with specific imputations of charges is such requirement of fundamental nature in the departmental proceedings. The action on part of the respondent University to straightway proceed to appoint the inquiryh officer without preceded by issuance of imputations of charges would not be approved in law, either in terms of the Central Civil Services Rules, 1965 or on independent consideration of principles of law enumerated and highlighted above.
7. For all the aforesaid reasons and discussion, the petition deserves to be allowed in terms of the prayer made. Consequently, order dated 22nd April, 2017 of respondent No.1 University appointing the inquiry officer is set aside. Also set aside is the communication dated 06th May, 2017 sent by respondent No.2 inquiry officer. Petition stands allowed. Rule is made absolute accordingly.
This judgment shall not preclude the respondent University from proceeding against the
petitioner in accordance with law and the Rules.
(N.V.ANJARIA, J) Anup Page 24 of 24 Downloaded on : Fri Oct 25 21:32:06 IST 2019