Central Administrative Tribunal - Jaipur
Mahendra Singh Gurjar vs D/O Post on 23 August, 2022
1
OA No. 494/2020 with MA No. 290/2022
CENTRAL ADMINISTRATION TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 494/2020
with
MISC. APPLICATION NO. 290/2022
Order reserved on: 29.07.2022
Date of Order: 23.08.2022
CORAM:
Hon'ble Mr. Dinesh Sharma, Administrative Member
Hon'ble Mrs. Hina P. Shah, Judicial Member
Mahendra Singh Gurjar S/o Shri Moola Ram aged about
43 years, R/o Village & Post Umrend, Tehsil Weir, District
Bharatur-321408 (Raj.), presently working as Postal
Assistant, Post Office Bayana, Bharatpur, Dholpur
Division, Mob. 9024640464 (Group 'C' post).
....Applicant
Shri Amit Mathur, counsel for applicant.
VERSUS
1. Union of India through its Secretary, Department of
Posts, Ministry of Communications, Dak Bhawan,
Sansad Marg, New Delhi-110001.
2. Superintendent of Post Office, Dholpur Division,
Dholpur-328001.
.... Respondents
Shri Anand Sharma, counsel for respondents
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs: - 2
OA No. 494/2020 with MA No. 290/2022 "It is, therefore, prayed that the present original application made by the applicant may kindly be allowed. The impugned Memorandum dated 04.10.2019 (Annex-A/1) may kindly be quashed and set aside or in alternate the respondents may be directed to proceed in the enquiry in pursuance to Memorandum dated 04.10.2019 only after allowing the applicant perusal of original documents as sought by him and approved by the Inquiry Officer.
Any other relief or direction which this Hon'ble tribunal deems fit in the facts and circumstances of the case may also be passed in favour of applicant. Cost of the original application may kindly be granted in favour of the applicant."
2(a). Brief facts of the case, as stated by the applicant, is that while he was working as Postal Assistant, he was served with a charge Memorandum dated 04.10.2019 (Annexure A/1) by the respondents alleging that while he applied for appointment as Gramin Dak Sevak Branch Post Master (EDBPM) in the year 2001 at Umrend, Weir, Dholpur, he got appointment by forging the mark sheet of 10th Standard. It is further alleged that he had secured 268 marks out of 550 in the Board Examination held in the year 1994 but in the marks-sheet, he forged marks and showed as 328 instead of 268. Thus, he got appointment on the basis of forged marks-sheet. The said charge sheet was based on a complaint filed by one of his relative Shri Satto Kumar. He has denied the charges categorically stating that he secured only 268 marks and not 328.
3OA No. 494/2020 with MA No. 290/2022 2(b). It is further stated by the applicant that he demanded several vital documents with regard to his appointment. He requested the respondents to provide him copy of original application form submitted by him at the time of appointment. He also demanded copy of original marks-sheet of 10th standard supplied by him at the time of appointment. He also demanded copy of original documents verification report as the said qualification was verified from the Board Office. He also demanded copies of original records/proceedings relating to his appointment. He also demanded original appointment order and original attestation form. The Inquiry Officer (IO) opined that these are necessary documents and asked the Presenting Officer (PO) to provide these documents or allow the applicant to peruse these original documents, but the Presenting Officer has denied availability of documents. The above denial was incorporated by the Inquiry Officer in the order-sheet. Thereafter, on the next date of hearing in the disciplinary proceedings, on the request of Presenting Officer, the Inquiry Officer had modified the order-sheet and incorporated the fact that the original documents are not available but photocopies are available. 4 OA No. 494/2020 with MA No. 290/2022 2(c). Applicant further states that at the time of his initial appointment, respondents vide letter dated 19.10.2001 (Annexure A/5) has asked the applicant to provide original documents and the same were provided by the applicant vide letter dated 22.10.2001 (Annexure A/6). In the present matter, a criminal complaint was also filed by Shri Satto Kumar and Police had seized photo-copies of the documents from the Department and had filed challan against the applicant. The criminal court has not framed the charges yet since original documents are not part of the challan. Original documents are neither with the Court nor with the Police. However, police has enclosed a document which provides that documents were sent for verification to the Board of Secondary Education and the same are verified (Annexure A/7). Thus, it is clear that there was no forgery in marks-sheet of the applicant. Subsequently, department has granted promotion to the applicant on the basis of his qualification i.e. now he is graduate. It is clear that even during his promotion, documents must have been verified by the department.
2(d.) It is clear that the respondents cannot issue a charge sheet nor frame charges against him without having original documents. When it is alleged by the 5 OA No. 494/2020 with MA No. 290/2022 respondents that applicant has obtained appointment by forging marks-sheet, it is necessary for the respondents to provide original documents submitted by him at the time of his initial appointment. The validity of the charges levelled against the applicant can only be ascertained from the original documents, which must be in their possession. Despite repeated requests, respondents have not supplied original documents to the applicant and now informed that the same are not available. Thus, the charge sheet deserves to be quashed and set aside as the same is in violation of DOPT UO Note. This UO Note enforces responsibility over the Disciplinary Authority to peruse the original and only thereafter proceed further. The charge sheet has been prepared and served on the basis of photocopies of the alleged forged documents. Without perusal of the original documents, charge sheet has been prepared and issued, which is not sustainable. The allegation upon the applicant is that he has obtained appointment by committing forgery. Whether applicant has committed forgery or not in the marks-sheet can only be ascertained from perusal of original documents submitted by the applicant at the time of appointment and document verification. The respondents, however, are not allowing the perusal of original documents to the 6 OA No. 494/2020 with MA No. 290/2022 applicant. The respondents have informed the Inquiry Officer that documents are not available with them. In these circumstances, charge sheet is not maintainable and deserves to be quashed and set aside. The Hon'ble Apex Court in catena of judgments has held that if the original documents are necessary to establish the charge or to establish defence, they must be provided to the incumbent employee or to the Inquiry Officer. Also the charge sheet has been issued after 19 years of appointment and delay is sufficient ground to set aside the charge memo. Thus, being aggrieved by the action of the respondents, applicant has approached this Tribunal for redressal of his grievances. 2(e). The applicant has also filed M.A. No. 290/2022 on 19th July, 2022 praying for interim relief to the extent that direction may be issued to respondents not to conduct enquiry on the basis of photocopies without showing the applicant original documents as prayed by him. Further enquiry proceeding may be stayed till the outcome of original application.
3(a). After issue of notices in O.A., respondents have filed their reply stating that the charge memorandum dated 04.10.2019 has been issued against the applicant 7 OA No. 494/2020 with MA No. 290/2022 under Rule 14 of the CCS (CCA) Rules 1965. The applicant was initially engaged as GDSBPM in Umrend BO in the year 2001 on the basis of 10th standard marks produced by applicant. He scored 328/500 marks and stood at first position and, thus, he was appointed. He thereafter got promotion in postman cadre by way of passing Limited Departmental Competitive Examination (LDCE) and was posted as Postman in Basai Nabab Sub Post Office vide Memo dated 17.02.2010 (Annexure R/3). He was then promoted as Mail Overseer and thereafter as Postal Assistant and was posted at Bayana MDG vide memo dated 01.09.2016 (Annexure R/4). 3(b). It is further stated by the respondents that Shri Satto Kumar made a complaint to the department as well as to the Police against the applicant that the applicant was engaged in the year 2001 as GDSBPM in Umrend BO with Weir Sub Office under Dholpur Division on the basis of forged marks-sheet of 10th standard. Shri Satto Kumar alleged that as per 10th standard marks-sheet issued by Rajasthan Education Board, Ajmer, in fact, applicant has only scored 268/500 marks but he was engaged with forged marks-sheet of 10th standard showing 328/500 marks. The Inspector Post (PG) Dholpur Dn. submitted his report that the marks-sheet 8 OA No. 494/2020 with MA No. 290/2022 should be verified from Board of Secondary Education, Rajasthan, Ajmer. Accordingly, a letter was written to the said Board for verification of marks-sheet of the applicant. As per report submitted by the said Board, applicant has scored only 268/500 marks in 10th standard. Then applicant was arrested on 18.04.2019 by Police, Thana Kotwali, Dholpur and, therefore, he was kept on deemed suspension by department w.e.f. 18.04.2019 vide memo dated 13.05.2020. He was then released on bail. As prima facie applicant was found to be guilty, therefore, he was issued a said charge sheet. Applicant then requested for open hearing and then Inquiry Officer & Presenting Officer were nominated by the department vide Memo dated 18.10.2019. Departmental inquiry is under progress. In the midst of the enquiry, applicant has approached this Tribunal when the open hearing is under process. Due to COVID- 19, time limit for completion of open hearing was extended by further six months. The respondents state that the documents mentioned in annexure of charge sheet issued to the applicant has been supplied to the Inquiry Officer and the applicant demanded through Presenting Officer, original documents which were not available, hence, not supplied to Presenting Officer. 9 OA No. 494/2020 with MA No. 290/2022 Thus, it is nothing but abuse of the process of law and, therefore, O.A. deserves to be dismissed. 3(c). The respondents have also filed reply to the said M.A. No. 290/2022, besides reiterating the submissions made in reply to the O.A., stating that enquiry is being conducting on the basis of documents mentioned in Annexure-III in Memorandum dated 04.10.2019 as per Rule 14 of CCS (CCA) Rules, 1965 and prayed that said M.A. filed by the applicant for interim relief deserves to be dismissed.
4. The applicant has not filed any rejoinder denying the submissions of the respondents.
5. We have heard learned counsels for the parties at length and examined the pleadings minutely including the judgments/orders cited by the parties.
6. The applicant besides reiterating his submissions further added that in the departmental proceedings, it is essential that the applicant should be given an adequate opportunity to defend his case. Denial of the same is against principles of natural justice. Applicant can effectively defend his case only if the relied upon 10 OA No. 494/2020 with MA No. 290/2022 documents are supplied to him in original and he is allowed to verify those documents as to whether those documents are genuine. Charge sheet has been issued to the applicant after about 19 years since his appointment. Complaint is made by a relative of the applicant, who was biased and had a mala-fide intent because of his hard work and due to his performance, he got three promotions. Therefore, the impugned charge memorandum is arbitrary and illegal and requires to be set aside. In support of his contention, applicant has relied upon several judgments/orders and few of them are as under:-
"a). C.A.T., Principal Bench order dated 15th July 2015 passed in the case of Shri Paramjit Singh Saini vs. UOI & Anr., (OA No. 1873/2014).
b) Hon'ble Apex Court judgment passed in the case of State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772.
c) Hon'ble Apex Court judgment passed in the case of P.V. Mahadevan vs. MD, T.N. Housing Board, reported in (2005) 6 SCC 636.
(d) Hon'ble Apex Court judgment passed in the case of Roop Singh Negi vs. Punjab National Bank & Ors., reported in (2009) 2 SCC 570.
(e) Hon'ble Apex Court judgment passed in the case of State of A.P. vs. N. Radhakishan, reported in (1998) 4 SCC 154.
(f) CAT, Principal Bench order dated 14.02.2017 passed in the case of Ms. Meenu S. Kumar vs. UOI & Anr. (OA No. 4222/2014) as well as order dated 10.12.2019 passed by Hon'ble Delhi High Court in W.P.(C) 8540/2017 and C.M. Appl. 35127/2017 (UOI & Anr. vs. Ms. 11 OA No. 494/2020 with MA No. 290/2022 Meenu S. Kumar) upholding the said order of the Tribunal.
7. The respondents have also repeated their contentions raised earlier and have further stated that the charge sheet has been issued to the applicant under Rule 14 of CCS (CCA) Rules, 1965 on the basis of the available record. It is stated that after successful verification of documents provided by the applicant on the recruitment due to be returned to the applicant but applicant himself has not provided the original documents. The applicant has falsely mentioned 59% instead of 49% in 10th Class in his application form submitted during recruitment. The copy of communication dated 22.10.2001, as stated by the applicant, is false and fabricated. Documents were never demanded from the respondents as mentioned in Annexure A/3 but were demanded from Inquiry Officer. Applicant has filed present O.A. without getting the report of the Inquiry Officer. As the departmental inquiry is under process, the charge sheet cannot be interfered and present O.A. is premature and deserves to be dismissed. In support of their contentions, respondents have relied upon the following judgments / orders:-
"(i). Hon'ble Apex Court judgment in the case of The Deputy Registrar, Co-operative Societies, Faizabad vs. Sachindra Nath Pandey & Ors., reported in 1995 SCC (3) 134 : JT 1995 (2) S.C. 407.12
OA No. 494/2020 with MA No. 290/2022
(ii). Hon'ble Apex Court judgment in the case of Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and Ors., reported in 1991 (1) SCALE 187.
(iii). CAT, Jodhpur Bench order dated 16.01.2020 in the case of Vikram Kumar Munjal vs. Union of India & Ors. (OA No. 290/00121/2018).
(iv). Hon'ble Apex Court judgment dated 25.10.1996 in the case of State Bank of Bikaner & Jaipur vs. Srinath Gupta & Anr., reported in 1996 (L&S) 1464.
(v). Hon'ble Apex Court judgment in the case of Union of India vs. Upendra Singh, reported in (1994) 3 SCC 357."
Further, in support of their contentions, respondents have relied upon Office Memorandum No. 11012/09/2016-Estt.A-III dated 30th March, 2020 issued by the Govt. of India, Department of Personnel and Training (Establishment A-III Desk), New Delhi.
8. The sole question which requires to be considered is whether the charge memorandum served upon the applicant is in violation of principles of natural justice and whether there was a gross delay in issuing charge sheet and whether the same was issued without proper application of mind.
9. The factual matrix of the case is that while working as Postal Assistant, the applicant was served with a charge sheet/memorandum dated 04.10.2019 (Annexure A/1) 13 OA No. 494/2020 with MA No. 290/2022 under Rule 14 of the CCS (CCA) Rules, 1965. The charges levelled against the applicant is that he has got appointment on the post of GDSBPM in the year 2001 at Umrend, Account Office Weir (Dholpur) by forging the marks-sheet of 10th standard. It is further alleged that he has secured only 268 marks out of 550 in the examination held in the year 1994 by the Board of Secondary Education, Rajasthan but in the marks-sheet, he has forged marks and has shown as 328 instead of 268 and, thus, his appointment is on the basis of forged marks-sheet. On the basis of 328 marks in 10th standard, he stood on first position and so he was given appointment on the post of GDSBPM. Charges are levelled on the basis of a complaint made by Shri Satto Kumar, a relative of the applicant, who has also lodged a complaint to the Police against the applicant. Therefore, the applicant has violated guidelines of DOPT OM No. 11012/7/91-Estt. (A) dated 19.05.1993 and violation of Rule 3 (1)(i) and (ii) of Central Civil Services (Conduct) Rules, 1964. Inquiry Officer as well as Presenting Officer were nominated by the department vide Memo dated 18.10.2019 for conducting disciplinary proceedings. The applicant has demanded several vital documents with regard to his appointment, etc. but the 14 OA No. 494/2020 with MA No. 290/2022 same were denied by the respondents / Presenting Officer.
10. We have observed that the applicant has denied the charges and demanded necessary five additional documents in original during the enquiry before the Inquiry Officer on 02.03.2020. Annexure A/3 is the order sheet No. 6, dated 02.03.2020, prepared during the course of enquiry, relevant part of which with regard to provide/supply of documents, which are as under:-
Sl. Particulars of Relevance Custodian Decision of No. additional shown of Inquiry documents document Officer sought to be permitted
1. Original The mark sheet SPOs Permitted marksheet of X will indicate that Dholpur class how much marks were in sheet and what percentage filled in application form
2. Original Will indicate --do-- Permitted application percentage of form for the marks in post of EDBPM application Umrend (Weir)
3. Original Will show the --do-- Permitted Application name of the form officer who (Annexure-I) verified of EDBPM containing all Umrend (Weir) particulars
4. Original All essential --do-- Permitted appointment documents orders issued including by SPOs educational etc. Dholpur for the were verified post of EDBPM that will reveal Umrend who verified it
5. Approval Will reveal that --do-- Permitted.
memo showing appointment that all orders were 15 OA No. 494/2020 with MA No. 290/2022 essential issued by documents for verifying all the documents appointment of EDBPM Umrend (Weir) have been got verified and if approved orders should be issued
11. We have also observed that the said documents were permitted by the Inquiry Officer and the Inquiry Officer directed the Presenting Officer to provide the said documents or allow perusal of the said documents. But the Presenting Officer has denied availability of said three documents in original and the said denial was taken note by the Inquiry Officer, which can be perused from Annexure A/3, order sheet No. 6, dated 02.03.2020 and further it is seen that Inquiry Officer has taken note in Annexure A/2, Order Sheet No. 7, dated 30.09.2020, that Disciplinary Authority has shown unavailability of additional documents. It is also seen from order-sheet dated 02.03.2020 that the applicant has raised his objection stating that he has been allowed to inspect only photocopies of the documents, which are mentioned in annexure with the Charge Memo but he was not allowed to inspect original documents. From order sheet No. 5, dated 24.02.2020, it is seen that the Inquiry Officer, in the interest of natural justice, directed the 16 OA No. 494/2020 with MA No. 290/2022 Presenting Officer to allow the applicant to inspect the original documents and if the original documents are not available, a certificate may be provided to this effect. From order-sheet No. 8, dated 13.10.2020, it is clear that Inquiry Officer has observed that in the enquiry proceeding dated 30.09.2020, Disciplinary Authority has shown unavailability of additional documents, which were demanded by the charged officer (applicant) but it is modified that the Disciplinary Authority has shown unavailability of original documents. Further, it is seen that the applicant has participated in the enquiry before the Inquiry Officer but without supply/inspection of necessary original documents, proceeding further in the enquiry will be futile if the original documents, as demanded, are not provided to the applicant or are not allowed to inspect by the applicant to prove his innocence.
12. We find that in departmental proceeding, the applicant can defend his case effectively only if the relied upon documents in original are supplied to him and he is allowed to verify/inspect those documents as to whether those documents are genuine. The applicant should be given an adequate opportunity to defend his case. Denial of the original documents or to inspect the same 17 OA No. 494/2020 with MA No. 290/2022 is against the principles of natural justice. Thus, we find that relevant original documents cannot be denied to the delinquent officer which he may require even to cross examine the witness and prove his innocence. Failure to supply these original documents would tantamount to denial of reasonable opportunity to defend himself and vitiates the entire proceedings.
13. Coming to the delay in issuing charge sheet, we do not find any satisfactory explanation on the part of the respondents for issuing charge sheet against the applicant on the basis of alleged forged documents produced by him i.e. his 10th class marks-sheet at the time of his initial appointment in the year 2001 for which charge sheet has been issued in the year 2019. The applicant has thereafter received several promotions and his records might have been regularly checked by the concerned officers and, thus, merely issuing a charge sheet on the basis of a complaint from Shri Satto Kumar, one of his relative, who is biased against the applicant, as stated by him, for whatsoever reasons cannot be a ground for taking such an action.
14. We are in agreement with the grounds raised by the applicant and find the same to be sustainable as the 18 OA No. 494/2020 with MA No. 290/2022 respondents have violated principles of natural justice and find non-application of mind by the authority in issuance of charge sheet as we find the enquiry being conducted without giving a fair and reasonable opportunity to the applicant for leading evidence in defence as necessary original documents are not provided to the applicant or are not allowed to inspect the same. We also do not find any convincing explanation given by the respondents to explain the inordinate delay in initiating disciplinary proceedings against the applicant when he was appointed in the year 2001 and charge-sheeted in the year 2019.
15. We are in agreement with the judgment of the Hon'ble Apex Court passed in the case of P.V. Mahadevan (supra), relied upon by the applicant, relevant para 11 of the judgment reads as under:
"11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already 19 OA No. 494/2020 with MA No. 290/2022 suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
It is seen that the said matter before the Hon'ble Apex Court was related to the charge memo, which has been issued in the year 2000 for irregularity in issuing a sale deed in 1990. Though the record was very much available with the respondent, no action was taken against the appellant since 1990 for about 10 years and no explanation whatsoever was offered by the Housing Board for the inordinate delay in initiating the disciplinary action against the appellant. The Hon'ble Apex Court further observed that they have no hesitation to quash the charge memo issued against the applicant.
We are also in agreement with the judgment of the Hon'ble Apex Court passed in the case of State of A.P. vs. N. Radhakishan (supra), relied upon by the applicant, relevant para 19 of the judgment, reads as under: -
"19. It is not possible to lay down any pre- determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and 20 OA No. 494/2020 with MA No. 290/2022 circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."
In the present case also, there is an inordinate delay of about 19 years in initiating disciplinary proceedings against the applicant and there is no explanation whatsoever been offered by the respondents. We also observe that the delay in initiating disciplinary proceedings is abnormal and there is no explanation for the same.
21OA No. 494/2020 with MA No. 290/2022
16. We also agree with the order/judgment of CAT, Principal Bench passed in the case of Shri Paramjit Singh Saini (supra), relied upon by the applicant, relevant Para 12 of the order reads as under:
"12. In view of the above position, we are of the considered view that it is only a futile attempt on the part of the Enquiry Officer to proceed with the enquiry against the Applicant any further. The Enquiry Officer himself quite fairly and candidly submitted that in the absence of the originals/certified copies of listed documents being produced by the Presenting Officer and without giving an opportunity to the Applicant to inspect them and to make his submissions, the enquiry cannot be proceeded further. We, therefore, find merit in the contention of the Applicant and allow this OA. Consequently, we quash and set aside the impugned Memorandum of charge sheet dated 24.08.2012 with all consequential benefits. The Respondents shall also pass appropriate orders in compliance of the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order."
We also agree with the order of CAT, Principal Bench passed in the case of Ms. Meenu S. Kumar (supra), relied upon by the applicant, relevant paras 16 to 18, read as under:
"16. In the present case, the only document on which the entire charge is dependent, is the Identity Card, but even without producing the original of the said Identity Card in the inquiry, the charge against the applicant was held proved both by the inquiry and disciplinary authorities, which amounts to no evidence and is a clear perversity and violation of the Principles of Natural Justice, and accordingly, the Inquiry Report and the 22 OA No. 494/2020 with MA No. 290/2022 disciplinary order are liable to be quashed and set aside.
17. In normal circumstances, whenever it is found that the inquiry is deficient either procedurally or otherwise, the course being adopted is to remand the matter back to the concerned authority to redo the same afresh. However, in the present case, there is no allegation or proof that the alleged Identity Card was used or misused by any person. Further, there is no allegation of any financial loss or damage to the Government or to any other person. In these peculiar circumstances, we do not propose to remand the matter for fresh inquiry.
18. In a recent decision of the Hon'ble Apex Court in Allahabad Bank & Others v. Krishna Narayan Tewari, decided on 02.01.2017, (2017) SCC online SC 2, it was held, as under:
"8. ............. ...... ....... ..... Any remand either to the Enquiry Officer for a fresh enquiry or to the Disciplinary Authority for a fresh order or even to the Appellate Authority would thus be very harsh and would practically deny to the respondent any relief whatsoever. Superadded to all this is the fact that the High Court has found, that there was no allegation nor any evidence to show the extent of loss, if any, suffered by the bank on account of the alleged misconduct of the respondent. The discretion vested in the High Court in not remanding the matter back was, therefore, properly exercised."
We are also in agreement with the judgment of the Hon'ble Apex Court passed in the case of State of Uttar Pradesh and Ors. vs. Saroj Kumar Sinha (supra), relied upon by the applicant, relevant paras 34 to 37 of the judgment read as under: -
23
OA No. 494/2020 with MA No. 290/2022 "34. This Court in Kashinath Dikshita v. Union of India, (1986) 3 SCC page 229, had clearly stated the rationale for the rule requiring supply of copies of the documents, sought to be relied upon by the authorities to prove the charges levelled against a government servant. In that case the enquiry proceedings had been challenged on the ground that non-supply of the statements of the witnesses and copies of the documents had resulted in the breach of rules of natural justice. The appellant therein had requested for supply of the copies of the documents as well as the statements of the witnesses at a preliminary enquiry. The request made by the appellant was in terms turned down by the disciplinary authority.
35. In considering the importance of access to documents in statements of witnesses to meet the charges in an effective manner this Court observed as follows: (Kashinath Dikshita case (1986) 3 SCC page 229, pp 234-35, para 10) "10. .......When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner.
And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to 24 OA No. 494/2020 with MA No. 290/2022 supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."
36. On an examination of the facts in that case, the submission on the behalf of the authority that no prejudice had been caused to the appellant, was rejected, with the following observations:
(Kashinath Dikshita case (1986) 3 SCC page 229, p. 236, para 12) "12. ......Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."
37. We are of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of this case. Non- disclosure of documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant."
In the instant case, we have seen that the documents as sought by the applicant, as relied upon by 25 OA No. 494/2020 with MA No. 290/2022 the respondents in the charge-memo, were permitted by the Inquiry Officer to be given/provided and directed the Presenting Officer to provide/supply the original documents or allow perusal of the original documents to the applicant. But the Presenting Officer has denied availability of original documents and the said denial was taken note by the Inquiry Officer. Therefore, we are also of the considered opinion that the aforesaid observations are fully applicable in the facts and circumstances of the instant case. Non-disclosure of original documents having a potential to cause prejudice to a government servant in the enquiry proceedings would clearly be denial of a reasonable opportunity to submit a plausible and effective rebuttal to the charges being enquired into against the government servant.
17. We have also gone through the judgments / orders / Memorandum relied upon by the respondents but we find that the facts and circumstances of the cases relied upon by the respondents are totally different and are not applicable to the facts and circumstances of the present case.
18. So far as the judgment of the Hon'ble Apex Court passed in the case of The Deputy Registrar, Co- 26 OA No. 494/2020 with MA No. 290/2022 operative Societies, Faizabad vs. Sachindra Nath Pandey & Ors. (supra), relied upon by the respondents, is concerned, we have seen that the Hon'ble Apex Court was not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly, when the appellant alone cannot be held responsible for this delay. In that case, though the proceedings against the first respondent were initiated as far back as 1978, proceeding in that behalf are still continuing even after the expiry of about 16 years. It is very clear that in the present case, the facts are completely different. In the present case, we are not on the issue of delay in the conclusion of disciplinary proceedings since the date of its commencement till the date of its conclusion and not also on the issue of non- cooperation on the part of the charged officer. But in the present case, there is a delay of about 19 years in issuing the charge memo itself in the year 2019, i.e. delay in commencement of the disciplinary proceedings on the basis of alleged forged documents produced by him at the time of his initial appointment in the year 2001. There is no question of delay in concluding the disciplinary proceedings. There is no fault on the part of the applicant in issuing delayed charge sheet but there 27 OA No. 494/2020 with MA No. 290/2022 is a delay in issuing the charge sheet on the part of the respondents. Besides, in the present case, principles of natural justice are not followed as the original documents, which are necessary and connected with the charges levelled against the applicant are not supplied to him and, thus, we cannot say that there is a delay in conclusion of the disciplinary proceedings on the part of the applicant but, here it is the case where there is a delay in issuing the charge sheet on the part of the respondents itself as appointment was given to the applicant in 2001 and charge sheet is issued in 2019.
So far as the Office Memorandum dated 30th March, 2020 (supra), relied upon by the respondents, which relates to counting of the limitation period for the diverse purposes under CCS (CCA) Rules, 1965, CCS (Pension) Rules, 1972 is concerned, wherein it has been decided not to count the period of the Lockdown for the purposes of adherence to the prescribed timelines, including the review of order of suspension before its expiry date, submission of written statement of defence on the charge-sheet, issuance of charge sheet once a decision is taken by the Disciplinary Authority to initiate disciplinary proceedings, completion of inquiry and submission of report by the Inquiry Officer, etc. In the 28 OA No. 494/2020 with MA No. 290/2022 Memorandum itself, it is made clear that these instructions are applicable only in such cases where there is an intervening Lockdown period and it will not be applicable otherwise, therefore, the provisions of the said Memorandum is not applicable to the facts and circumstances of the present case. There is no question of delay in issuance of charge-sheet to be issued during the Lockdown period, but the same ought to have been issued much before Lockdown period i.e. in the year 2001 itself.
19. As far as the judgment of the Hon'ble Apex Court passed in the case of Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and Ors. (supra), relied upon by the respondents, is concerned, we have noticed that the said case relates to tampering of marks in the moderator's mark-sheets of the candidates. Declaration of their results was withheld pending enquiry. The Board appointed seven enquiry officers to conduct the enquiry. Show cause notices were issued to the students informing them of the nature of tampering, the subjects in which the marks were found tampered with, the marks initially obtained and marks increased due to tampering and also indicated the proposed punishment, if in the 29 OA No. 494/2020 with MA No. 290/2022 enquiry it would be found that marks were tampered with the knowledge or connivance or at the instance of the candidates or parents or guardian. In that case, it is clear that respondents/candidates were at liberty to inspect the documents at the Divisional Board at Bombay; they were entitled to adduce documentary and oral evidence at the hearing; they were permitted to cross-examine the witnesses of the Board, if any. But in the present case, it is clear that Inquiry Officer has permitted to supply and inspect the additional original documents to the applicant but it is very clear that Presenting Officer has not supplied the original documents nor allowed inspection of the same and, thus, it is clear that principles of natural justice are violated. Therefore, the facts and circumstances of the said case cannot be applicable to the facts and circumstances of the present case.
20. So far as the order/judgment of Jodhpur Bench of this Tribunal in the case of Vikram Kumar Munjal vs. Union of India & Ors. (supra), relied upon by the respondents, is concerned, it is very clear in the said case that there is no mention about non-supply of the documents sought for by the applicant and the same being not provided to him. Here, we are not on the issue 30 OA No. 494/2020 with MA No. 290/2022 as to whether on the basis of false/bogus certificate/marks-sheet or by playing fraud, a person should be continued in appointment. In the present case, we are concerned as to whether principles of natural justice are violated and we find that in the inquiry, applicant had participated and demanded for certain additional original documents, which were related to the charge-sheet, but the same were not provided to the applicant or that he was not allowed to inspect the same, therefore, if the inquiry is to be proceeded, applicant should be given enough opportunity to defend himself, otherwise the entire exercise of conducting disciplinary proceedings would be futile. The facts and circumstances of the said case are completely different from the facts and circumstances of the present case and, therefore, the said judgment is not applicable to the present case.
21. As far as the judgment of the Hon'ble Apex Court passed in the case of State Bank of Bikaner & Jaipur vs. Srinath Gupta & Anr. (supra), relied upon by the respondents, is concerned, it is clear from the facts and circumstances of the said case that copies of statements having already been given to the delinquent officer well in advance and the delinquent officer was granted full 31 OA No. 494/2020 with MA No. 290/2022 opportunity to cross-examine the witness and such procedure was held not vitiative of the disciplinary proceedings as the principles of natural justice were complied with in that case. In that case, the respondent / workman had nowhere demanded for documents or its inspection and there is no case of its denial but in the present case, the applicant demanded for certain additional original documents, which were denied by the respondents and which were relevant and connected to the charges levelled against the applicant. Therefore, in the present case, principles of natural justice are not complied with. The facts and circumstances of the said case are, therefore, different from the present one and, thus, the same are not applicable to the present case.
22. As far as the judgment of the Hon'ble Apex Court passed in the case of Union of India vs. Upendra Singh (supra), relied upon by the respondents, is concerned, wherein the Hon'ble Supreme Court has held that the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter 32 OA No. 494/2020 with MA No. 290/2022 comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.
The Hon'ble Apex Court in the case of B.C. Chaturvedi vs. Union of India & Ors., reported in JT 1995 (8) S.C. 65, has observed that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. The Court/Tribunal on its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of 33 OA No. 494/2020 with MA No. 290/2022 inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
In the present case, we have noticed that rules of natural justice are not complied with by the respondents as the applicant has not been provided additional original documents as demanded by him, which are related to the charge-memo. The denial of access to records/documents in such cases may handicap the delinquent officer and request for providing necessary documents / request for its inspection in such cases has to be considered by the Disciplinary Authority / respondents on priority. But Presenting Officer / Disciplinary Authority has denied availability of the original documents, as demanded by the applicant, and the said denial was taken note by the Inquiry Officer during the enquiry proceedings. Further, we have seen that the respondents have issued charge memo in the year 2019 for the incident occurred in the year 2001, when he was appointed, i.e. after a delay of about 19 34 OA No. 494/2020 with MA No. 290/2022 years. We are not going into the correctness or truth of the charges but in this case, we are dealing with the issue whether the charge memorandum issued to the applicant is in violation of principles of natural justice and whether there was a gross delay in issuing charge sheet and whether the same was issued without proper application of mind. Therefore, the ratio decided by the Hon'ble Apex Court in the Union of India vs. Upendra Singh (supra) is not applicable to the facts and circumstances of the present case.
23. The Hon'ble Apex Court in the case of Kashinath Dikshita vs. Union of India & Ors., reported in 1986 SCC (L&S) 502, while relying upon the case of Trilok Nath vs. Union of India & Ors., reported in 1967 SLR 759 (SC), has observed that if a public servant facing an inquiry is not supplied copies of documents, it would amount to denial of reasonable opportunity. The Hon'ble Apex Court has opined that the impugned order of dismissal rendered by the disciplinary authority is violative of Article 311 (2) of the Constitution of India inasmuch as the appellant has been denied reasonable opportunity of defending himself and is on that account null and void.
35OA No. 494/2020 with MA No. 290/2022
24. The sum and substance of the judgments / orders relied upon by the respondents is that Court/Tribunal cannot enter into the correctness or truth of the charges and, thus, the role of judicial review is to be considered while quashing the charge-sheet. We would like to point out that we are not entering into the correctness or truth of the charges nor taking over the functions of the disciplinary authority as we are aware that jurisdiction of the court/tribunal in judicial review is limited. In the present case, the respondents have violated the principles of natural justice by not supplying the relied original documents / related documents to the charge- sheet and decided to proceed further in the inquiry and it is a fact that Presenting Officer has stated that additional documents, as demanded by the applicant, are not available in original. In none of the judgments relied upon by the respondents, we have not seen that original documents sought for by the delinquent officer were not provided to him/her and thereafter enquiry was conducted, which goes to show that principles of natural justice were not violated in that case. But in the present case, we find that for fair enquiry to be conducted, it would be futile exercise on the part of the respondents to go further in the enquiry proceedings and waste precious time even of the department, if relied / related 36 OA No. 494/2020 with MA No. 290/2022 original documents to the charge-sheet are not provided to the applicant or the applicant is not allowed to inspect the same and which are stated to be not available with the respondents.
Further, the issue of delay in disciplinary proceedings after initiating / commencing of the disciplinary proceedings were dealt with in the case(s) law cited by the respondents wherein some fault was also attributed to the delinquent officer. But in the present case, there is a delay of about 19 years in commencing / issuing of charge sheet itself, which are not attributed to the applicant and it is also not the case of delay after commencing of the disciplinary proceedings. We find that the delay has been caused by the department itself in issuing the charge sheet/memo and also proceeding in the enquiry without supply of original documents, which are necessary to the applicant to prove his innocence. Thus, the present matter is on different footing as it is not pertaining to the delay in disciplinary proceedings after commencement of the same because, in the present case, it is very clear that charge-sheet itself has been issued to the applicant after 19 years of his appointment and that too now the respondents want to proceed with the departmental 37 OA No. 494/2020 with MA No. 290/2022 proceedings even without following the principles of natural justice and without providing / supplying the necessary additional documents in original though permitted by the Inquiry Officer to be supplied / inspected by the applicant. It is also seen that additional original documents sought for by the applicant are very necessary for the applicant to prove his innocence, which are stated to be not available with the respondent- department.
25. Therefore, we find that without availability of the necessary original documents with the respondent- department, more particularly, there being a delay of about 19 years in issuance of charge sheet itself and commencement of disciplinary proceedings, there is no question to proceed further in the disciplinary proceeding. In these circumstances, as observed and discussed herein-above, it is justified for this Tribunal to take a decision about intervention in quashing and setting aside the charge sheet.
26. Thus, we have no hesitation to quash and set aside the charge memo dated 04.10.2019 (Annexure A/1) issued by the respondents as the action of the 38 OA No. 494/2020 with MA No. 290/2022 respondents is wholly illegal and in complete violation of principles of natural justice as original documents demanded by the applicant and not provided to him, which are related to the charge memo, are clearly stated to be not available with the respondents and further there is an inordinate/abnormal delay of about 19 years in issuance of the charge memorandum itself and thereafter in commencement of the disciplinary proceedings against the applicant. Therefore, the present Original Application deserves to be allowed.
27. In view of the discussions and observations made herein-above, charge memo dated 04.10.2019 (Annexure A/1) is hereby quashed and set aside. The present Original Application is allowed accordingly. No order as to costs.
28. In view of the order passed in the Original Application, Misc. Application No. 290/2022 stands disposed of.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/