Central Administrative Tribunal - Delhi
Shri Ravindra Nath vs Union Of India & Ors on 12 August, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.1218/2012
Order reserved on: 05.08.2014
Order pronounced on:12:08.2014
Honble Mr. G.George Paracken, Member (J)
Honble Mr. Ashok Kumar, Member (A)
Shri Ravindra Nath
S/o Shri Shambhu Nath Shesh,
R/o C-6/23, Lawrence Road,
Delhi-110035. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors.
Through
1. The Chairman, KVS,
Shastri Bhawan
New Delhi.
2. The Commissioner
Kendriya Vidyalaya Sangathan Headquarter
18, Institutional Area
Shaheed Jeet Singh Marg,
New Delhi-16. -Respondents
(By Advocate: Shri S. Rajappa)
O R D E R
Mr. G. George Paracken, Member (J):
In this Original Application the applicant has challenged the impugned Annexure A-1A order dated 08.01.2008 by which the Disciplinary Authority has imposed the penalty of 50% (fifty percent) cut in pension for a period of 10 years with immediate effect by the aforesaid order and the Annexure A-1 order dated 11.10.2011 of the Reviewing Authority which has reduced the duration of the punishment from 10 years to 4 years.
2. The brief facts of the case are that while the applicant was in service he was served with the Annexure A-2 Memorandum No.F.4-5/2004-KVS(Vig.) dated 28.12.2005 proposing to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules 1965. The Statement of Articles of Charge framed against him was as under:-
ARTICLE-I Shri Ravindra Nath, while functioning as Officer On Special Duty (Acad.) during the year 2003-04 committed gross misconduct and failed to maintain devotion to duty while dealing with the agreement for construction of Swimming Pool and Gymnasium at Kendriya Vidyalaya, Gole Market, New Delhi on build, operate and transfer (BOT) basis with M/s Omkam Developers Private Limited, 308, Pratap Chambers, Karol Bagh, New Delhi-05 in as much as he made wrong assertions to said M/s Omkam Developers, New Delhi, about the power of KVS to allow the use of vidyalaya land/facilities on commercial basis vide his letter No.F.13-13/2002-KVS(Acad.) dated 23.12.2003 without approval of competent authorities. The said act of Shri Ravindra Nath, OSD has led to unnecessary litigation and considerable financial loss to the KVS.
The said Shri Ravindra Nath, OSD has, thus, failed to exercise reasonable care in the discharge of his official duties and thereby contravened rule 3(1)(ii) of the CCS (Conduct) Rules, 1964. He has, therefore, rendered himself liable to disciplinary action under the CCS (CCA) Rules, 1965.
3. The aforesaid charges were proposed to be proved by the following List of Documents and List of Witnesses.
LIST OF DOCUMENTS
1. Copy of the agreement with M/s Omkam Developers dated 26.07.2003.
2. Letter from M/s Omkam Developers Private Limited, Karolbagh, New Delhi dated 27.06.2003.
3. Letter No.F.13-13/2002-KVS(Acad) dated 22.09.2003.
4. Letter from M/s Omkam Developers Private Limited, Karolbagh, New Delhi dated 01.10.2003.
5. Letter No.F.13-13/2002-KVS(Acad) dated 16.12.2003.
6. Letter from M/s Omkam Developers Private Limited, Karolbagh, New Delhi dated 17.12.2003.
7. Letter No.F.13-13/2002-KVS(Acad) dated 23.12.2003.
8. A copy of DDA Lease deed.
9. Letter from Shri S. Rajappa, Advocate dated 01.06.2004.
10. Note-sheet dated 22.12.2003 put-up by Shri Ravindra Nath, OSD LIST OF WITNESSES
1. An authorized representative of M/s. OmKam Developers, Karol Bagh, New Delhi.
4. As the applicant has denied the aforesaid charges, an enquiry was held in the matter. The Enquiry Officer submitted his report dated Nil and a copy of the same was furnished to the applicant vide Annexure A-5 Memorandum No.F.4-5/2004-KVS (Vig.) dated 14.09.2007. According to the said report, both the Articles of Charges levelled against him were proved. The analysis and reasoning given by the Enquiry Officer in his report is reproduced as under:-
A N A L Y S I S ARTICLE-I As per Article-I of the Charge Sheet, the allegation against the CO was specific that he made wrong assertions to said M/s Omkam Developers, New Delhi, about the power of KVS to allow the use of Vidyalaya land/facilities on commercial basis vide his letter No.F.13-13/2002-KVS (Acad) dated 23.12.2003 without approval of competent authorities. The said act of Shri Ravindra Nath, OSD as led to unnecessary litigation and considerable financial loss to the KVS. REASONING The agreement between the Joint Commissioner (Admn) and the concessionaire was communicated by said Shri Ravindra Nath vide letter dated 22.9.2003 (D-RN III). The said concessionaire vide letter dated 17.12.2003 (D-RN VI) inter-alia brought to the notice of said Shri Ravindra Nath that as per the discussion held with the NDMC, commercial activities are not permissible on educational premises. Further, the concessionaire stated that since the Kendriya Vidyalaya is an educational institution, and project is suppose to use the land for commercial purpose and sought advice on the issue. The concessionaire also sought advice on place for parking of vehicles. On receipt of the information, prudence demands that Shri Ravindra Nath should have either contacted the NDMC or should have consulted the Works Branch (KVS) whether commercial use of the land was permitted. However, Shri Raivndra Nath brought the above facts on the Note Sheet dated 22.12.2003 (D-RN-X) but instead of seeking advice/approval of the senior officers of the Sangathan on the proposed commercial use of the Vidyalaya land, he proposed only to settle the issue of parking of vehicles and stated that since KVS had not allowed parking of vehicles inside the premises, to any other concessionaire, the said concessionaire would also not be allowed to park vehicles inside the campus.
The CO did not seek orders of he competent authority on the issue of Commercial Use of he land. As per Noting submitted as documentary evidence during the course of enquiry.
Therefore, the Article-I of the charge is Proved.
ARTICLE-II Article-II of the charge sheet deals with cancellation of Agreement for construction of Swimming Pool and Gymnasium at Kendriya Vidyalaya, Gole Market, New Delhi on Build, Operate and Transfer (BOT) basis with M/s Omkam Developers Private Limited, 308, Pratap Chambers, Karol Bagh, New Delhi-05 in as much as he quoted wrong clause/ Article of Agreement as reason for termination of said Agreement vide his letter No.F 13-13/2002-KVS (Acad) 16.12.2003 and letter No.F.13-13/2002-KVS (Acad) dated 23.12.2003 and letter No.F.13-13/2002-KVS (Acad) dated 23.12.2003 addressed to said M/s Omkam Developers Private Limited, Karol Bagh, New Delhi.
REASONING :
Shri Ravindra Nath, vide his letter dated 16.12.2003 (D-RN-C) issued a Termination Notice to M/s Omkam Developers giving reference to clause 7.2 (c) read with clause 12.1 and the Clause 12.2 of the agreement. The cause for cancellation as cited by Shri Ravindra Nath, in the said letter dated 16.12.2003 (D-RN-V) was wrongly referred to (Clause 7.2 (c) stating that construction was to be completed within 180 days of the signing the Agreement. It is seen that the said Clause 7.2 (c) of the Agreement stipulates as under :-
IF the COD does not occur within 180 days from the Schedules Project Completion Date, KVS shall subject to the provisions of this Agreement relating to excuse from performance of the Concessionaires obligation hereunder, be entitled to terminate this agreement in accordance with the provisions of Article 12.2.
The COD in the agreement has been defined as Commercial Operation Date of the Project, which shall be the date on which KVS has issued a completion certificate or the provisional certificate upon competition of construction of the project and which shall, subject to the provision of this agreement, be not later than twelve months.
From the above stipulation, it is evident that Shri Ravindra Nath communicated the reasons for cancellation of agreement in the Notice for termination stating Clause 7.2 (c) which has a different content and interpretation. There is no clause in the Agreement vide which the concessionaire was to complete the construction work within 180 days of the signing of the agreement. The clause so created by said Shri Ravindra Nath is imaginary without any basis. As per Article 7.2 (b) the project was to be completed within 12 months from the commencement date. The commencement date under article 1.1 means the date on which the physical possession of the project sites is delivered by the KVS to the concessionaire. While communicating reasons for determination the said Shri Ravindra Nath did not use diligence and accuracy of the facts which led the litigation by the concessionaire in the Honble High Court.
Therefore, Article-II of the charge is also Proved.
5. During the pendency of the aforesaid enquiry, the Applicant has retired from service on 1.1.2006. However, he made the Annexure A-6 representation dated 05.10.2007 against the aforesaid report. His submission was that the Presenting Officer appointed by the Disciplinary Authority was a legally qualified person and the said facts were never disclosed to him. As a result, he was denied the opportunity from commissioning the services of a legal expert as his Defence Assistant thereby denying proper hearing in the matter. He has also stated that the purpose of issuing the aforesaid charge Memo against him was to deprive him the retiral benefits admissible for him for his unblemished service rendered with the Respondent-KVS. He has also stated that the Enquiry Officer, in his analysis, has not considered his submissions vis-`-vis the assertions made by the Presenting Officer. He has also stated that when the agreement in question in the charge sheet had the seal of approval of the executive authority of the KVS, any further clarification on the agreement was considered not necessary. The Enquiry Officer has also not taken cognizance of the meaning of the expression Commercial use explained to him. Further, the Scheme of BOT (Build, Operate & Transfer) was only the solution of acquiring facilities without investing any amount from the Govt./KVS exchequer. In such a situation the concessionaire, construction Agency has to be allowed to operate after building the facility and later on transfer. Otherwise no one will come forward to invest such a huge capital. He has, therefore, submitted that the Article-I has not been proved at all. He has also stated that the Enquiry Officer has wrongly established that the Article-II was proved. According to him, it was an administrative decision taken at the level of the Commissioner and, therefore, the same was to be tackled administratively at the relevant time without finding fault with the applicant. He has, therefore, reiterated that the findings of the Enquiry Officer that the charges proved are wrong and unfounded.
6. However, the Disciplinary Authority, vide its impugned Annexure A-1A order dated 08.01.2008, rejected his representation and agreed with the report of the Enquiry Officer and imposed upon him the penalty of 50% cut in pension for a period of ten years with immediate effect. The relevant part of the said order reads as under:-
In his said representation, Shri Ravindra Nath has submitted the following grounds:-
a) That w.e.f. 1-1-06, he ceased to be a serving officer of KVS and therefore, as per extant rules and orders, he was not amenable to departmental proceedings launched under Rule 14 of the CCS(CC&A) Rules, 1965 and thus the entire proceeding is vitiated for the reason above.
b) The Presenting Officer with legal qualification was appointed without disclosing the fact to him thereby denying natural justice preventing him from commissioning the services of a legal expert as his Defence Assistant.
c) He was never given a copy of the 1st stage advice tendered by the CVC.
d) It is amply clear that with the change of guard at the helm the authorities of the KVS were bent upon framing him before his retirement thus depriving him of the retirement benefit after rendering unblemished service to the KVS. Therefore the evident haste.
e) The Inquiry Officer has unfortunately not analyzed the submissions of the C.O. viz-a-viz the assertions made by the P.O. Though the report carries the heading Analysis when he could not make proper analysis, the reasoning makes no sense. Rather he followed the line of argument of P.O.
f) When the argument, a document which has the seal of approval of the executive authority of the KVS, was signed by the Joint Commissioner (Admn.) and M/s Omkam Developers, any further clarification on para 17 of Annexure C is not considered necessary in the system which authored the agreement.
g) The tenet of commercial use has been amply clarified, but the I.O. did not take any cognizance of that argument nor refuted the same while establishing the charge. It cannot be lost sight of that the scheme of BOT is the only solution of acquiring facilities without investing any amount from the Govt/KVS exchequer. In such a scenario the concessionaire/construction agency has to be allowed to operate, after building the facility and later on transfer- otherwise who will come forward to invest such a huge capital. Now-a-days BOT has been the in-thing and it is functioning well. The lurking threat of NDMC can be neutralized by taking up the matter with the required clarification.
h) The I.O. similarly erred in his judgment in establishing Article-II. Here again he followed the assertion made by P.O. without analyzing/refuting or otherwise the grounds submitting by the CO. It was amply clear that M/s Omkam played thick with the KVS after falling to start the project which was awarded to them through signing of the instant agreement. That M/s Omkam went for litigation and succeeded in the litigation does not put the OSD (Acad) at fault. The CO has acted on the approved parameter of the instant agreement. Unfortunately I.O. has followed the line taken by the P.O. The P.O. continued on harping on the point of litigation. In its more than four decades of existence the KVS had fought a number of litigation where the KVS had to obey the Courts order by paying compensation to the litigant parties but never ever the officer involved in the system of the impugned action/programme was called to question. It was an administrative decision taken at the level of the Commissioner and therefore the same should have to be tackled administratively without finding fault with the OSD (Acad). The notice for cancellation was required to be issued as submitted before the I.O. with cogent reasons.
Based on the facts of the case, the inquiry report and submission of the Charged Officer on the articles of charge, the Honble Chairman, KVS, has observed that:-
(i) Shri Ravindra Nath while dealing with the agreement for construction of Swimming Pool and Gymnasium at K.V. Gole Market, N. Delhi on BOT basis with M/s. Omkam Developers Pvt. Ltd., made wrong assertions and allowed the Vidyalaya land/facilities for commercial use through a letter dated 23.12.2003 without approval of the competent authority before sending such a letter to the private party. However, in his reply to the inquiry report, he has reiterated the point by stating that:- It cannot be lost sight of that the scheme of BOT is the only solution for acquiring facilities without investing any amount from the Govt./KVS exchequer. In such a scenario the concessionaire/construction agency has to be allowed to operate after building the facility and later on transfer- otherwise who will come forward to invest such a huge capital. He has further mentioned, lurking threat of NDMC can be neutralized by taking up the matter with the required clarification.
(ii) Thus, he tried to justify his action of giving the Govt., land for commercial use by a private party of his own. He did not find it proper to place the entire issue before the Competent Authority for necessary guidance and approval.
(iii) Similarly the Article-II also stands proved as he has quoted a wrong clause of agreement as reason for termination of the agreement. In his letter of cancellation dated 16.12.2003, he has wrongly referred to clause 7.2 (c) stating that the construction was to be completed within 180 days of signing of the agreement. However, as per the said clause the project was to be completed within 12 months from the date of commencing of construction work. The commencement date under Article 1.1 means the date on which the physical possession of the project site is delivered by the K.V.S. to concessionaire. Such a wrong assertion has led to litigation and financial loss to KVS. The concessionaire on account of that got the opportunity to move the court of law and finally the Arbitrator awarded Rs.17.50 lakh to be paid by the Sangathan to the concessionaire. As per settlement K.V.S had to pay the said penalty to the concessionaire.
Considering the gravity of the misconduct, the Honble Chairman, K.V.S. being the competent Disciplinary Authority is satisfied that it will meet the ends of justice if a penalty of 50% cut in pension for a period of ten years with immediate effect upon Shri Ravindra nath, OSD (Retd). K.V.S. accordingly.
7. The applicant made a Review Application dated 01.09.2008 against the aforesaid order of the Disciplinary Authority denying both the charges. The Reviewing Authority, vide its impugned Annexure A-1 order dated 11.10.2011, rejected his contentions but reduced the duration of punishment from 10 years to 4 years. The relevant part of the Reviewing Authority is as under:-
I have gone through the petition filed by Shri Ravindra Nath and the facts on record. Shri Ravindra Nath accepts that he had quoted the wrong clause of the contract agreement in the notice issued, though he states that the agreement was terminated by his successor. He further mentions that his successor, Ms. P. Devasena, was initially punished with removal from services but was reinstated in service on appeal and penalty reduced to reduction of increments by two stages for a period of two years whereas he has been punished by imposition of a cut in pension of 50% for a period of 10 years, which is far disproportionate to his guilt.
I have gone through the facts of the matter. Clearly the quoting of the wrong clause for termination of the agreement has been the principal cause of the problem leading to litigation and financial burden being imposed on KVS. Shri Ravindra Nath cannot escape the blame for this financial loss. However, considering the fact that Shri Ravindra Nath has retired on superannuation from the service of KVS in December 2005, I am inclined to take a sympathetic view and reduce the period for the cut in pension from 10 years to 4 years, which I believe is sufficient to meet the ends of justice.
8. The applicant challenged the aforesaid order in this Original Application on the ground that the charge sheet itself was misconceived, illegal and unwarranted as none of the charges were supported by any documentary or any other evidence. He has also stated that the allegations made by the Articles of Charges are factually incorrect. He has also asserted that he has acted strictly as per the approval of the Commissioner and he did not commit any misconduct as alleged by the respondents. He has also stated that the Enquiry Officer has acted in violation of Sub Rule 11 of Rule-14 of the CCS (CCA) Rules, which reads as under:-
11) The Inquiring Authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence :
(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3);
(ii) submit a list of witnesses to be examined on his behalf;
NOTE- If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.
(iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3).
However, in the enquiry conducted against the applicant, not a single witnesses was produced by the respondents even though there were 10 documents to be proved as per the Memorandum dated 28.12.2005. In the list of witnesses furnished to the Applicant, the only prosecution witness indicated therein was an unknown entity, namely, the authorized M/s. Omkam Developers, Karol Bagh, New Delhi. Even the said witness has also not attended the enquiry proceedings. His further contention is that since no witnesses have been considered in the present case to prove the listed documents, the Enquiry Officer ought to have dropped the proceedings then and there without wasting further time. Instead, the Enquiry officer went on to recording the proceedings of the enquiry and that too without any cogent reasons. Therefore, the enquiry proceedings held by the Enquiry Officer in this case is legally unsustainable in the eyes of law and are liable to be quashed. Further, he has stated that as per sub-rule-11 of Rule-14 (ibid) even if the Presenting Officer produced his evidence on behalf of the Disciplinary Authority in support of the Article of Charges proposed to be proved, the Enquiry Officer was bound to adjourn the case directing the Charged Officer to produce his defence at least 5 days to inspect the documents. The said period can also be extendable by another five days. However, in the present case, the Enquiry Officer did not give even a single days time to submit the list of Defence Witnesses/documents in spite of his repeated request. As a result, the entire disciplinary proceedings were vitiated. The Enquiry Officer also did not allow his request to direct the concerned concessionaire to appear in the enquiry.
9. Further, according to the applicant the charge against him cannot be construed as misconduct. Once there was no ill-motive, the action of the employee cannot be construed as misconduct. The Honble Apex Court has defined misconduct in the case of Union of India vs. J. Ahmed (AIR 1979 SC 1022). The relevant part of the said judgment reads as under:-
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct".
10. He has also relied upon the judgment of the Honble Apex Court in the case of Inspector Prem Chand vs. Govt. of NCT of Delhi JT 2007 (5) SC 294 wherein it has been held as under:-
9. Before adverting to the question involved in the matter, we may see what the term 'misconduct' means.
10. In State of Punjab and Ors. vs. Ram Singh Ex. Constable [1992 (4) SCC 54], it was stated:
"5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under:
"The term 'misconduct' implies, a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."
11. Respondents in the reply has submitted that the applicant had made wrong assertion to M/s Omkam Developers Pvt. Ltd., Karol Bagh, New Delhi about the powers of the KVS to allow the use of Vidyalaya land/facilities on commercial basis vide his letter dated 23.12.2003 without approval of the Competent Authorities. The aforesaid act of the applicant has led to unnecessary litigation and considerable financial loss to the KVS. Further according to them the charges levelled against the applicant have been fully proved in the enquiry. The Chairman, KVS in his capacity as the Revisional Authority also vide order dated 11.10.2011 confirmed the wrong assertion made by the applicant. As far as the procedural aspect of the case is concerned, they have stated that the applicant has given ample opportunity to defend his case before the Enquiry Officer during the departmental proceedings. They have also stated that the entire disciplinary proceedings was conducted as per Rules and no illegality, arbitrariness or malafide can be alleged against them, as done by the applicant.
12. We have heard the learned counsel for the applicant Shri M.K. Bhardwaj and learned counsel for the respondents Shri S. Rajappa. In our considered view, the enquiry conducted by the Enquiry Officer was mere farce and the report of the Enquiry Officer is absolutely perverse. In fact the Enquiry Officer has arbitrarily held that the charges have been proved. An enquiry conducted in violation of the procedure prescribed in the CCS (CCA) Rules, 1965 cannot be held to be valid enquiry. It is well settled principle that in a departmental enquiry the alleged misconduct against the delinquent officer can be proved only on the basis of the documents proved by the concerned prosecution witness. However, in this case it is seen that there was no specific prosecution witness to prove the charge. What the Disciplinary Authority stated in the impugned Memorandum dated 28.12.2005 was that the Article of Charges framed against the applicant was to be proved by an authorized representative of M/s. Omkam Developers, Karol Bagh, New Delhi. A witness in a disciplinary case shall be a person who has got the knowledge or information about the misconduct alleged against the delinquent officer. An authorized representative of a firm cannot be considered as a witness in the matter. Even otherwise, it is an admitted fact that the so called authorized representative himself has not appeared in the enquiry proceedings and deposed against the applicant. 13. This Tribunal has considered this issue in detail in OA No.1767/2013 Shri R.R. Dhavle vs. Union of India and Ors. decided on 16.04.2014. The relevant part of the said order reads as under:-
11. The Apex Court in its judgment in State of U.P. & Others Vs. Saroj Kumar Sinha 2010 (2) AISLJ 59 has held that the departmental enquiry cannot be treated as a casual exercise. The relevant part of the said judgment reads as under:-
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Inquiry Officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.
In the same judgment, the Apex Court has held that Since no oral evidence has been examined, the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
12. The Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others 2009 (2) SCC 570 held that departmental proceedings are quasi-judicial proceedings and mere production of documents is not enough but its contents have to be proved by examining witnesses. The relevant part of the said judgment is as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
14. In the above facts and circumstances of the case, we quash and set aside the enquiry report. Consequently, the orders of the Disciplinary Authority as well as the Revisional Authority based on the aforesaid enquiry report are not sustainable. Accordingly they are quashed and set aside. Resultantly, the OA is allowed with the direction to the respondents to restore the 50% pension withheld from the applicant and release the same with 10% interest within a period of two months from the date of receipt of a copy of this order. Aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Ashok Kumar) (G. George Paracken) Member (A) Member (J) cc.