Central Administrative Tribunal - Delhi
Sh. Tosh Kumar Nichani vs Govt. Of Nct Of Delhi on 20 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2863/2011 ORDER RESERVED ON: 12.10.2012 ORDER PRONOUNCED ON: 20 .11.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. JAYATI CHANDRA, MEMBER (A) Sh. Tosh Kumar Nichani, S/o late Shri Dharni Dhar Nichani, R/o Block No. 1, House No. 2, 2nd Floor, Subhash Nagar, New Delhi-110027. Applicant. (By Advocate Shri T.D. Yadav) Versus 1. Govt. of NCT of Delhi Through Chief Secretary, Directorate of Education, I.P. Estate, New Delhi. 2. Director of Education, Directorate of Education, Old Secretariat, New Delhi. 3. The Secretary, Directorate of Education, Old Secretariat, Govt. of NCT of Delhi, New Delhi. Respondents. (By Advocate Shri Amit Anand) O R D E R
Shri G. George Paracken:
This Original Application has been made against the order dated 20.08.2010 by which the disciplinary authority has imposed the penalty of reduction to a lower stage in the time scale of pay for a period of only one year with cumulative effect upon the applicant and the order of the appellate authority dated 11.03.2011 rejecting his appeal. He is also aggrieved by the decision of the respondents to treat the period of suspension from 09.07.1999 to 24.03.2005 as period `not spent on duty for all purposes.
2. The brief facts of the case are that the applicant while functioning as TGT (Science), there were some complaints against him and his wife alleging certain financial irregularities against them and the Anti Corruption Branch of the respondent-department conduced an inquiry but stated that, despite their sincere efforts, they could not locate any kind of financial institutions as has been allegedly running by them. However, they have stated in their report that the applicant being a Government servant, he should not have carried out any business without seeking permission from the competent authority and he failed to intimate his department regarding acquiring of some immoveable properties, thereby violating the provisions of the CCS (Conduct) Rules. They have, therefore, recommended that the departmental action should be taken against him. The relevant part of the aforesaid report reads as under:
Although Shri Tosh Kumar Nichani has denied about the floating of any financial institution like Dharni Dharma and Associated Investment & Financial Consultant at 97, Jawala Heri Market. Despite sincere efforts, we could not locate any kind of financial institution as has been allegedly running by Shri Nichani. The complainant has also given some photocopies of a small project diary purported to have been written by Shri Nichani but Shri Nichani has stated he had done just calculations for Teacher of Maths and Science. Hence, his angle of corruption is involved in the matter but Shri Nichani being a government servant, should not carry out any business without seeking permission from the Competent Authority. Besides this, he also had failed to intimate his department regarding the acquiring of some immoveable properties like (i) BG-6/235A, Paschim Vihar (Janta Flat): (ii) MIG Flat E-1, Pocket 8, Sector 15, Rohini A plot measuring 150 sq. yards in Shershah Enclave, Village Karale, Delhi and hence by doing so he has thus violated CCS Conduct Rules.
Submitted please.
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Shri SANJAY CHILLAR Inter Corp. Branch ACP/Eng.
From audit with the report of Shri Sanjay Chillar. The complainant has alleged that Mr. & Mrs. Nichani, both teacher in Govt. School, used to run a financial investment company in Jawala Heri Market and this acitained (sic.) Money from several teachers and others. They allegedly never issued acknowledgement etc. It is further alleged that Shri Tosh Nichani has projects disproportionate to his known source of income. There is one MIG flat in the name of Shri Tosh Kumar Nichani for which he obtained loan from LIC and Rs.64000/- from his mother.
There are documents proofs to prove these facts. Other properties mentioned in the complaint could not be located. He purchased one plot in 1987 in Shershah Enclave, Village Karale, Delhi and sold it in 1997 in Rs.70,000/-. However, he did not intimate this transaction to the department. He did not intimate the purchase of flat neither to his department.
He also purchased a Janta Flat in 1993 in Rs.40,000/- and sold the same in 1996 in Rs.50,000/-. This transaction also was not intimated to the department. At present, no office of finance company exists at the given address. Some teachers have sent some support to the complaint but could not furnish any written proof.
In the given circumstances, the net result of the enquiries is that the allegations with regard to the Finance Company could not be substantiated due to lack of identification proof. If so even, he is guilty of not informing the dept. regarding purchase of immoveable property in his name. He made investments and received money out of sale of plot and flat but never intimated to the Department. Departmental action is, therefore, recommended against him.
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4/8/98 DCP/ACB May kindly recommended departmental action for not intimating the department regarding property transactions.
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Director (Vigilance).
3. Thereafter, a departmental inquiry was initiated against him and he was served with the following articles of charges, vide Annexure `B Notification dated 15.07.1999:
Article-I That the said Shri Tosh Kumar Nichani while functioning as T.G.T. (Sc-A) since August, 1994 had been running Money Committees (Finance Company in the name & style of Dharni Dharma & Associates Investment and Finance consultant Registered 1997 Jwala Hari, Sunder Complex, Paschim Vihar, Phone No. 5577920). He collected lakhs of rupees in monthly instalments in different schemes from people and staff members i.e. teachers of S.V., K-1 Mangolpuri, Delhi.
Article-II That during the aforesaid period and while functioning in the aforesaid school the said Shri Tosh Kumar Nichani, TGT (Sc-A) has purchased the flat No. BG-6/235-A, Paschim Vihar, one MIG Flat, Sector-15, Rohini, 2 shops in Sunder Complex in Paschim Vihar, a plot of 150 square yards in Sher Singh Enclave, Karala, Delhi, one commercial plot in Transport Nagar, Sanjay Gandhi, one 200 square yards in Sector-II, Noida, Ghaziabad. Thus he earned crores of rupees.
Article-III That during the aforesaid period and while functioning in the aforesaid school, the said Shri Tosh Kumar Nichani, TGT (Sc-A) has suddenly closed down the Money Committees (Finance Company/Dharni Dharma Company) and did not return the money to the subscribers/members of Staff i.e. Teachers of S.V. K-1, Mangol Puri.
Thus by doing so Shri Tosh Kumar Nichani, TGT (Sc-A), (Retd.) has violated the provisions of Rule 3, 15 & Rule 18 of CCS (Conduct) Rules, 1964.
4. After a detailed enquiry was conducted in accordance with the rules, the Inquiry Officer submitted his report on 31.01.2005. According to the said report, none of the aforesaid charges have been proved. The operative part of the said report of the Inquiry Officer reads as under:
After verification of Annexures and list of documents and discussions during the course of inquiry it was not established that Shri Tosh Kumar Nichani, while functioning as TGT (Sc-), since August, 1994 had been running Money Committees (Finance company in the name & style of Dharni Dharma & Associates Investment and Finance consultant Registered 1997 Jwala Hari Sunder Complex, Paschim Vihar, Phone No. 5577920. collected lakhs of rupees in monthly instalments in different schemes from people & staff members i.e. teachers of S.V., K-1, Mangolpuri, Delhi, as alleged in the article-I of the charge sheet. Hence the charges alleged as per the article-I of the charge sheet is not established against the C.O. and so disproved.
Shri Tosh Kumar Nichani, C.O., has admitted the transaction of properties namely a Janata Flat No.BG6/235A, Paschim Vihar by way of Power of Attorney in the year 1993. One MiG Flat in Sector-15, Rohini in his name by way of Draw of Lots from D.D.A in the year, 1990, after taking loan from the LIC. CO has also admitted regarding a plot of 150 sq. yards at Shershah Enclave, Village Karala, in the year 1987 for all these transactions the C.O. has informed the concerned Principal/H.M./H.O.O. It is necessary to mention here that Shri Tosh Kumar Nichani (C.O.) is the owner of only one MIG flat in Sector 15, Rohini. P.O. failed to produce the relevant legal documents pertaining to other alleged properties during the course of inquiry. Hence, the charge as per Article-II of the Charge sheet not established against the C.O. and so disproved.
From the facts and documents P.O. failed to prove the charge as Article-III for the closing down of the alleged money committees/Finance Company (Dharni Dharma Company) alleged to be owned by C.O. Hence return of money to the subscribers/members does not arise.
Further it is added that the request dated 10-6-1997 made by the GSTA was with regard to Transfer of Tosh Kumar Nichani T.G.T. (Sc-A) (C.O) and is not connected to the charges of the Charge Sheet. A complaint addressed to Director of Education Old Sectt. Delhi dated 28-07-1997 in Hindi was not signed by any of the complainants, at the end of the complaint (i.e. after `bhavdeey (Hindi word)). Another complaint made by Smt. Raj Bala r/o House No. 1090 Pooth Kala (Gram Sabha), Delhi, dated 28-01-1998 is also not signed by her only her name is written within brackets. Hence authenticity of these complaints seems not to be genuine and so not maintainable.
Hence the charges levelled against Shri Tosh Kumar Nichani (C.O.) GBMS, `P Block, Mangolpuri, Delhi in Aricle-I, Article-IIand Article-III of the charge sheet disproved and the violation of provisions of rule-3, 15 & rule-18 of the CCS (Conduct) Rules, 1964 are also disproved.
5. However, the disciplinary authority disagreed with the findings of the Inquiry Officer and issued him a disagreement note dated 27.12.2005 which reads as under:
Whereas, I have carefully gone through the Inquiry Report and other documents/records of the case made available to me. It is evident that the Inquiry Authority has not examined the case properly. Now, I, Vijay Kumar, Disciplinary Authority, disagree with the findings of the Inquiry Authority on the following grounds:-
1. That the Inquiry Officer has erred in concluding that in the absence of any documentary proof like Registration of the Company or Memorandum of Association etc., the charge of running Money Committees/Fin. Co. is not proved. The Inquiry Officer seems to have assumed that no system can be set up to amass funds informally, i.e. without completing statutory provisions.
2. That the Inquiry Officer has totally ignored a lot of statements by ten of teachers giving in writing that they have been cheated by Mr. Nichani.
3. That the Inquiry Officer has erred in giving much importance to the demand of those documents by Charged Official which are not even listed. Whereas, the telephone bill (No.5577920) in the name of the Charged Officials fails even to find a single mention in the entire Inquiry Report. So does the photocopy of Receipt of Rs.41000/- signed by Sh. Tosh Kumar Nichani on a revenue stamp.
4. That the Inquiry Officer has totally ignored the facts that the Charged Official has himself admitted having bought/sold a plot (150 sq. yards) in Sher Singh Encl. (Karala), an MIG Flat in Sector 15, Rohini, a Janta Flat (No. BG/235A) in Paschim Vihar, so on and so forth. Whereas, the Inquiry Officer has concluded that the Presenting Officer has failed to produce the relevant legal documents pertaining to other alleged properties.
Now, therefore, the said Sh. Tosh Kumar Nichani, TGT (Sc.) is hereby directed to submit his written representation, if any, within 15 days of the receipt of the Disagreement Note, failing which, the matter will be proceeded further, without any further notice/information to him in this matter. The copy of the inquiry report is also enclosed herewith.
6. The applicant made a representation against the said disagreement note on 01.03.2006. He has stated that the Inquiry Officer has concluded in his report that there was no registered Finance Co. being run by him. Moreover, the complainant and PO could not produce any evidence to prove the allegation that he was running a registered Finance Co. It was on a false and baseless complaint that the department decided to charge sheet him and to conduct an inquiry under Rule 14 of the CCS (CCA) Rules, 1965 against him. When the Inquiry Officer appointed by the Disciplinary Authority has not proved the charges on the basis of the depositions of the witnesses, the charged officer should not be condemned or punished on the assumptions made in the disagreement note.
7. However, the disciplinary authority, vide its order dated 22.08.2006, imposed upon him the major penalty of reduction of two increments with cumulative effect. Consequently, vide another order dated 09.12.2006 the period of his suspension w.e.f. 09.07.1999 to 24.03.2005 was also treated as dies non. The applicant made a representation dated 04.01.2007 against the aforesaid orders. Meanwhile, the applicant retired from service on 31.12.2006. Thereafter, he made further representations on 21.05.2007, 05.07.2007 and 09.07.2007 to release his retirement benefits. As no action was taken, he approached this Tribunal vide OA No. 2251/2007 but the same was disposed of vide order dated 28.07.2008. Thereafter, the appellate authority issued the impugned orders dated 17.12.2008 and 16.01.2009 upholding those orders of the disciplinary authority. The applicant challenged the aforesaid orders before this Tribunal vide OA 3736/2009 and it was decided vide order dated 26.03.2010. Its relevant part is as under:
8. We have carefully considered the rival contentions of the parties and perused the material on record. Leaving other grounds open, as we find that an elaborate discussion has been arrived at by the DA to which applicant has preferred a detailed representation, yet none of his contentions has been discussed by the DA. No finding has been recorded, except reiterating the contentions of applicant before the EO, which has deprived applicant a reasonable opportunity to defend in the enquiry. A quasi-judicial authority when functions, reasons are essentially to be recorded in support of the order, as ruled by the Apex Court in Roop Singh Negi v. Punjab National Bank, (2009) 1 SCC (L&S) 398. We do not find under the CCS (CCA) Rules, 1965 any provision which dispenses with the requirement of recording reasons. As far as appellate order is concerned, the order is non-speaking, without dealing with the proportionality of punishment. Moreover, the punishment imposed of two years reduction, hardly four months before the retirement, is not in consonance with law. It is also pertinent to note that the period of suspension has been treated as dies non, causing civil consequences upon applicant, without putting him on notice, through an addendum issued by the respondents, which is also contrary to the principles of natural justice.
9. In the above view of the matter, the OA is partly allowed. Impugned orders are quashed and set aside. The matter is remitted back to the DA to pass fresh order, dealing with the contentions of the applicant by recording reasons, within a period of two months from the date of receipt of a copy of this order. In such an event, law shall take its own course.
8. Pursuant to the aforesaid directions, the disciplinary authority passed the impugned order dated 20.08.2010 and the relevant part of the said order reads as under:
And Whereas, in the light of the above sequence of events and analysis, it can be safely concluded that all the 3 articles of charge stand convincingly proved against the CO as there are sufficient proofs to conclude that Sh. Tosh Kumar Nichani was operating some informal system of money collection (known locally as `Committees) which provided him sufficient extra money to raise some valuable immoveable properties. In the process, he failed to return money to quite a number of his colleagues, who were ultimately forced to lodge complaints against him within the Department and outside. This conduct on the part of the CO is not only unbecoming of a Govt. servant, especially being a teacher, it also amounts to violation of provisions of Rule 3, Rule 15 & Rule 18 of the CCS (Conduct) Rules, 1964. Above all, if teachers turn cheaters, the society will hardly remain with any other role models to look to. Thus the C.O. is also guilty of eroding the faith, the society has placed in the teaching community for ages. The order of penalty of reduction of two increments with cumulative effect passed by my predecessor on 22.08.2006 appears to be proportionate only in material terms as there can be no compensation for the damage caused to the image of teacher by the C.O. However, at the same time, one cannot look away from the fact that from 22.08.2006 to 09.08.2010, the C.O. has grown older by four more years. During these four years, apart from his old age, the C.O. has been suffering some kind of agony in raising his case at different fora like the offices of the Director of Education, Secretary Education and then Honble CAT. This in itself is quite a task, seeing the juncture of age, the C.O. is at. I, therefore, am disposed to take a sympathetic view in this case despite having arrived at the definite conclusion that the C.O. did indulge himself in objectionable financial misconduct as elaborated in the Charge Sheet.
And Whereas, on the question of suspension, in his representation dated 04.06.2010, the C.O. has alleged that treating suspension period (09-07-1999 to 24-03-2005) as Not Spent on Duty for all purposes is highly excessive and disproportionate. The C.O. has further complained that the D/A issued these orders without issuing any Show Cause Notice to the C.O. The C.O. has also claimed that he has been exonerated of al the charges (which is not true) and, therefore, this action by the D/A is ` heavy handed.
And Whereas, a careful perusal of these assertions made by the C.O. reveals that there is hardly any merit in them. Firstly, neither the Disciplinary Authority nor the Appellate Authority ever exonerated him of any charge. Secondly, the treatment of suspension period as `Not spent on Duty does not amount to `Penalty, as such. It is a consequence of a major penalty which has been imposed upon the C.O. after having been found guilty of financial irregularities. It can also not be denied that the C.O. himself caused delay in the proceedings, as stated above. Moreover, the order dated 09.12.2006 is in consonance with Fundamental Rule 5B read with sub rule (3) & (4). Accordingly, the period of suspension (09-07-1999 to 24-03-2005) will be treated as `Not spent on duty for all purposes.
This disposes of the directions issued by the Principal Bench of the Central Administrative Tribunal on 01-04-2010 in the matter of Tosh Kumar Nichani Vs. GNCTD & Ors. in O.A. no. 3736/09.
9. The applicant preferred an appeal against the aforesaid order of the disciplinary authority but the same was rejected by the appellate authority vide its order dated 11.03.2011 and the concluding para of the said order read as under:
After going through the records, I find that the defence taken by the appellant in the appeal is on the same lines that he had made in the representation made to the Disciplinary Authority. I have gone through the order of the Disciplinary Authority and I find that the allegations and the Enquiry Report have been examined in detail. The defence taken by the appellant ahs also been considered on merit; which includes allegations of collection of money from teachers through finance schemes/money committees. There is also a mention of one of the properties, which the appellant had admitted to having been sold but which he had failed to mention in his earlier submissions. I find that the concern of the appellant, with regard to a fair opportunity of presenting his case, has been duly addressed by the number of opportunities that he was given of making representations and by way of hearings. With regard to the quantum of penalty, the Disciplinary Authority has taken a sympathetic view keeping in view the circumstances of the appellant, as well as after giving due consideration to his submissions. I therefore do not find any merit in the appeal which warrant interference to the extent of exoneration from the charges. Despite an opportunity, the appellant has also not placed on record any document to support his contention that enquiries by two separate agencies, into the same matter and on the same allegations, had exonerated him.
In the light of the above, the appeal stands dismissed.
10. The applicant challenged the aforesaid impugned orders in this Original Application on the ground that they are illegal, arbitrary, discriminatory and in violation of Articles 14 and 16 of the Constitution of India. The applicant has also alleged that the disciplinary authority and the appellate authority have passed the orders without application of mind. Further, according to him, the complainants could not produce any documentary evidence to prove the charge as alleged by them and as such the disciplinary authority could not have proceeded further in the case and disagreed with the findings. He has also stated that the disagreement note furnished by the disciplinary authority was absolutely arbitrary and based on no evidence on record.
11. The applicant has also stated that he was not given reasonable opportunity to defend his case properly during the inquiry. He has also stated that the disciplinary authority should not have passed the impugned order dated 20.08.2010 imposing upon him the penalty of reduction to a lower stage in the time scale of pay for a period of only one year with cumulative effect without any evidence against him and consequently, the suspension period from 09.07.1999 to 24.03.2005 also should not have been treated as period not spent on duty without any show cause notice. He has also stated that the main witness Smt. Raj Bala who filed the complaint against him was never examined during inquiry proceedings nor she was cited as witness. Therefore, the whole inquiry proceedings have been vitiated and, therefore, they are liable to be quashed and set aside. He has also relied upon the judgment of the Apex Court in Prakash Chandra Sher Vs. State of Orissa (1091 (3) SCR 323) wherein it has been held that Where there was no evidence to suggest the charges, the penalty imposed was quashed.
12. The respondents have filed their reply. In reply to the various averments made by the applicant in this Original Application, their only answer was No comments as being the matter of record. However, they have stated that the applicant has concealed some of the material facts and the Inquiry Officer has stated in his report as under:
Hence his angle of corruption is involved in this matter but SH. Nichani being government Servant should not carry out any business without seeking permission from the Competent Authority. Besides this, he also had failed to intimate his department regarding the acquiring some immoveable properties like:
(i) BG/235-A, Paschim Vihar (Janta Flat)
(ii) MIG Flat E-1 Pocket 8, Sector 15 Rohini
(iii) A plot measuring 150sq yards in Shershah Enclave, Village Karala, Delhi.
13. The learned counsel for the respondents has also relied upon the judgment of the Apex Court in Union of India & Ors. Vs. Alok Kumar (2010 (5) SCC 349) wherein it has been held as under:
Whether de facto prejudice was a condition precedent for grant of relief and if so, whether the respondents had discharged their onus.
82. In the submission of the appellants, there is no violation of any statutory rule or provision of the Act. The departmental inquiry has been conducted in accordance with the Rules and in consonance with the principles of natural justice. The respondents have not suffered any prejudice, much less prejudice de facto, either on account of retired employees of the railway department being appointed as inquiry officers in terms of the Rule 9(2) of the Rules or in the case of Alok Kumar, because of alleged non furnishing of CVC report. The contention is that the prejudice is a sine qua non for vitiation of any disciplinary order. However, according to the respondents, they have suffered prejudice ipso facto on both these accounts as there are violation of statutory rules as well as the principles of natural justice. In such cases, by virtue of operation of law, prejudice should be presumed and judgment of the Tribunal and the High Court call for no interference.
83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other 'de facto' prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the Rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these Rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental inquiry where the Department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice, and he has been put to a disadvantage as a result thereof.
14. We have heard the learned counsel for the applicant Shri T.D. Yadav and the learned counsel for the respondents Shri Amit Anand. It is seen that the Anti-Corruption Branch has earlier conducted an inquiry against the applicant on the same allegations made against him in the departmental proceedings. They did not find any incriminating documents or any other proofs to substantiate the allegations against him. Still they have observed that he should not have engaged in any financial transaction and, therefore, his conduct could be inquired into under the provisions of the CCS (CCA) Rules, 1965. We do not understand the logic of the aforesaid observations of the Anti-Corruption Branch. When they did not find any prima facie proofs to substantiate allegations against the applicant, why another enquiry should have been imposed upon the applicant. However, the Disciplinary Authority in a very mechanical manner and without application of mind issued the charges against the applicant and initiated major penalty proceedings were initiated against him under Rule 14 of the aforesaid Rules and an Inquiry Officer was appointed. The Inquiry Officer, in his report, categorically stated that no evidence was found against him and, therefore, the charges have not been proved. But the disciplinary authority did not agree with the aforesaid report and stated in his disagreement note that he did not agree with the report submitted by the Inquiry Officer. The applicant made his representation dated 01.03.2006 against the aforesaid disagreement note. However, the disciplinary authority, vide order dated 22.08.2006, rejected his contentions without any valid reasons and imposed upon him the penalty of reduction of two increments with cumulative effect. Vide order dated 09.12.2006, the period of his suspension was also treated as not spent on duty. Meanwhile, the applicant superannuated on 31.12.2006. As the appellate authority did not consider his appeal and disposed of it, he had to approach this Tribunal earlier vide OA 2251/2007 (supra) and it was disposed of by this Tribunal on 28.07.2008 directing the Appellate Authority to consider and dispose of his appeal. It was only thereafter that the appellate authority passed its orders on 17.12.2008 and 16.01.2009.
15. The applicant challenged those orders again vide OA 3736/2009 (supra). This Tribunal found that the disciplinary authority have passed its orders, simply reiterating the contentions of the applicant himself and not giving any reasons in support of his order imposing the penalty. Therefore, this Tribunal remitted the case back to the disciplinary authority to pass a fresh order dealing with the contentions raised by the applicant in his representation. The impugned order of the disciplinary authority in this OA has been passed in pursuance of the aforesaid directions. The appeal against the aforesaid order has also been rejected. Thus, this O.A is the 3rd in the series.
16. It is seen that the respondents are not only casual in their approach in filing reply to this OA but they are also quite irresponsible. For all the averments made by the Applicant, their standard reply is that they are matters of record. Further, they have quoted a portion of the preliminary enquiry report stating that the applicant failed to intimate his department regarding acquiring of some immovable properties and submitted that the Applicant tried to conceal these findings. The concerned officer who signed the reply affidavit is totally ignorant of the fact that once a regular departmental enquiry was held and the applicant was found not guilty, the said report will prevail and not the preliminary enquiry report. In any case, the department should not have misquoted from the preliminary enquiry giving the impression that the same was from the report of the Inquiry Officer in the regular departmental enquiry.
17. In our considered view, the departmental proceedings against the Applicant has been totally got vitiated from the stage the Disciplinary Authority recorded his disagreement note. What has been stated in the disagreement note is that the Disciplinary Authority disagree with the findings of the Inquiring Authority. The said assertion was a very categorical and emphatic finding of the Disciplinary Authority which reveals its approach towards the applicants case. Thus Disciplinary Authority was quite predetermined in the matter and the note of disagreement issued to the Applicant inviting his representation was just an empty formality as proved from its subsequent orders. As held by the Apex Court in K.I. Shephard Vs. Union of India and Ors. (AIR 1988 SC 686), it is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose.
18. Moreover, the Apex Court in Punjab National Bank Vs. Kunj Behari Mishra 1998 (7) SCC 84 has clearly held that if the Disciplinary Authority does not agree with the findings of the Inquiry Officer, only a tentative opinion can be formed. The relevant part of the said judgment is as under:-
The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.
19. Again the Apex Court in Yoginath D. Bagde Vs. State of Maharashtra (JT 1990 (6) SC 62) has held as under:-
8. In view of the provisions contained in the statutory Rule extracted above, it is open to the Disciplinary Authority either to agree with the findings recorded by the Inquiring Authority or disagree with those findings. If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Inquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Inquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the Rules made under Article 309 of the Constitution or the Disciplinary Authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent, and the Disciplinary Authority also does not give an opportunity of hearing to the delinquent officer and records findings, different from those of the Inquiring Authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the Inquiring Authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be 'not guilty' by the Inquiring Authority, is found 'guilty' without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.
29. We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.
x x x x x x x
33. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away in any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution.
20. In Union of India and others Vs. Dr. V.T Prabhakaran (W.P.(C) No. 559/2010) the High Court of Delhi has also made the following observations on this issue:
23. With the two viewpoints noted above, it assumes importance to note that evidenced by the decision of the Supreme Court reported as 1999 (7) SCC 739 Yoginath D. Bagde vs. State of Maharashtra & Ors., the jurisprudence in service law is that the disciplinary authority should not prejudge the gravamen of the allegations or for that matter even the charge, and should not use language which shows that the disciplinary authority has already made up its mind. It is only after the inquiry is over and the delinquent is heard with respect to the report of the inquiry officer; and when exonerated at the inquiry but the disciplinary authority not agreeing with the report, upon hearing him qua the note of disagreement, the final opinion has to be rendered. It is important to highlight that in Yoginath D. Bagdes case (supra) conclusive determination of the guilt by the disciplinary authority before giving an opportunity to the delinquent to respond to the note of disagreement was held to be a case of a closed mind qua the response of the delinquent, resulting in the disciplinary authority denuding himself the jurisdiction to decide with reference to the response of the delinquent to the note of disagreement.
7. Although in P.N. Bhat (supra), the view was taken that a note of disagreement would not cease to be tentative even if the view is expressed that the charges stand proved as long as opportunity is given to the charged officer to represent against the note of disagreement and as long as penalty is not proposed in the note of disagreement, yet the trend as seen from the recent judgements of the Honourable Delhi High Court in Baljit Singh Sondhi (supra) and Dr. V.T. Prabhakaran (supra) as relied upon by the Applicant, is that an expression of opinion about the charges being proved would amount to an expression of final opinion, as a consequence of which the note of disagreement would not be considered tentative, which is the requirement of Rule 15 ibid. We respectfully agree with this view.
8. The Honourable Supreme Court, in Yoginath D Bagde (supra), had held the decision of the disciplinary committee of the High Court to be wrong, not because it had proposed penalty in the note of disagreement but because a final view about the guilt of the charged officer had been taken. It is clear from the observation of the Supreme Court that findings were final: what was tentative was the punishment. In our view this could only be interpreted as saying that the findings should be tentative. The observation of the Supreme Court in K L Shepherd (supra) is significant that once a decision is taken, it is more likely than not to be upheld and not changed merely on consideration of the representation. During the course of arguments the learned counsel for the Government of NCT of Delhi wondered as to what the disciplinary authority should record, if it cannot record that the charges stand proved by the reasoning given by the disciplinary authority. The correct procedure in our view is for the disciplinary authority to record that the disciplinary authority does not agree with the conclusions of the inquiry authority on the grounds, which may then be stated. The grounds can thereafter be mentioned, without concluding that the charge(s) is/are proved. The charged officer will then have an opportunity to repel the reasoning of the disciplinary authority. Only after going through the representation of the charged officer against his reasoning in the note of disagreement, the disciplinary authority may come to any conclusion about the charges being proved or not proved. If the disciplinary authority comes to the conclusion about the guilt of the charged officer without hearing him, it would show an inbuilt bias and the cause of the charged officer will suffer. In essence, inferring of guilt without giving an opportunity to the charged officer to be heard would be in gross violation of the principles of natural justice that an employee should be given full opportunity to defend himself before being held to be guilty. The Article 311 of the Constitution also mandates that no employee would be dismissed, removed or reduced in rank without being given a reasonable opportunity of being heard. The CCS (CCA) Rules have been framed under the proviso to the Article 309 of the Constitution and these are thus statutory rules and cannot be trifled with lightly. The rules have to be followed in letter and spirit. Therefore, if the rules provide that the disciplinary authority has to give tentative reasons for disagreeing with the inquiry authority, it is definitely precluded from expressing definite and positive finding of guilt in the note of disagreement and thereby giving only a post- decisional hearing to the charged officer.
9. In the light of the above we hold that a note of disagreement would not be tentative if it states that the charges against the charged officer stand proved. Mere expression of such view would make the note of disagreement bad in law and liable to be quashed and set aside. The reference is thus answered. The OA is remanded to the DB.
21. The aforesaid judgments of the Apex Court and the High Court are quite applicable in the case of Applicant also.
22. Moreover, the incidents based on which the charge sheet was issued to the Applicant allegedly to have happened way back in the year 1997 and earlier years. Mainly, they relate to the allegation that the Applicant was unlawfully running a Finance Company and collected lakhs of rupees from people and his fellow teachers and he had acquired properties without intimation to his department. The Anti Corruption Branch of the Department conducted a thorough enquiry in the matter but they admitted that they failed to get any evidence to support the aforesaid allegations against the applicant. Thereafter, on their advice, a detailed departmental enquiry was held in accordance with the rules. The Inquiry Officer also failed to establish the charge and reported that they have not been proved. But it is only the Disciplinary Authority in his Disagreement Note held, in an arbitrary manner, totally in violation to the principles of natural justice, unilaterally and in categorical terms, that those charges have been proved. A perusal of the said Disagreement Note would show that it did not contain a single reason justifying its stand taken therein that the charges have been proved. However, Disciplinary Authority, in an arbitrary manner imposed a major penalty upon the Applicant. The appeal against the said order remained unattended even after the Applicant has already attained superannuation. Finally, it was on the intervention of this Tribunal that the Appellate Authority disposed of the Applicants appeal. However, the Appellate Authority while rejecting the Applicants appeal failed to consider submissions made by him and upheld the order of the Disciplinary Authority. Therefore, the Applicant had to approach this Tribunal once again seeking direction to quash and set aside those orders. This Tribunal, finding merit in the contentions of the Applicant set aside both the orders of the Disciplinary and Appellate Authority and remitted the case back to the Disciplinary Authority to pass an order giving reasons. Even though in the impugned order of the Disciplinary Authority, it has been stated that it could be safely concluded that all the three charges against the applicant stood proved, it has not relied upon any evidence tendered during the enquiry proceedings or on any issue which the Inquiry Officer has not considered in his report. The Disciplinary Authority once again failed to understand that in the absence of evidence on record, no charge can be held to be proved. In our considered view the Disciplinary Authority and the Appellate Authority were only trying to stubbornly stick to their earlier stand that the Applicant was guilty and they are not prepared to be persuaded even though no evidence against the Applicant was adduced during the departmental proceedings. Thereafter, it is futile exercise to again remit the case to the disciplinary authority to give its tentative reasons as to why it disagreed with the findings of the Enquiry Officer, particularly in view of the fact that this is the 3rd round of litigation by the applicant and he has already superannuated from service way back on 31.12.2006.
23. We, therefore, allow this OA and quash and set aside the orders of the Disciplinary Authority and the Appellate Authority dated 20.8.2010 and 11.3.2011 respectively. We, in the above facts and circumstances of the case, direct the Respondents to treat the period of suspension of the Applicant from 09.07.1999 to 31.12.2006 as period spent on duty for all purposes except for back wages. Applicant shall also be granted all consequential benefits including the revised pensionary benefits within 2 months till date of receipt of a copy of this order. No costs.
(MRS. JAYATI CHANDRA) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD