Delhi High Court
Nishant & Ors vs Fci And Ors on 5 December, 2014
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7168/2014
Decided on 05.12.2014
IN THE MATTER OF :
NISHANT & ORS ..... Petitioners
Through: J.S. Bhasin with
Ms. Rashmi Priya, Advocates
versus
FCI AND ORS ..... Respondents
Through: Mr. Mohan Sharma, Advocate
for FCI.
Mr. Vikas Mahajan, Advocate for UOI.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. The present petition has been filed by the petitioners praying inter alia for quashing and setting aside the show cause notices dated 10.06.2013 issued by the Regional Director (NR) of the respondent No.2/Staff Selection Commission (in short 'SSC'), whereunder they were informed that on failure to show cause, their candidature in the Combined Recruitment for Assistant Grade III in General, Depot, Technical and Accounts Cadre and Hindi Posts (AG-II) in the Examination, 2012 held for respondent No.1/FCI, would be cancelled and they would be debarred for a period of five years from the Commission's examinations.
W.P.(C) 7168/2014 Page 1 of 9
2. With the consent of the parties, the matter is taken up at the stage of admission for final disposal.
3. Briefly stated, the facts of the case are that on 29.10.2011, a Combined Recruitment for Assistant Grade-III in the General Depot, Technical and Accounts Cadres and Hindi Posts (AG-II) in the Examination, 2012 to be held for the respondent No.1/FCI, was notified by the respondent No.2/SSC in the Employment News. As per the petitioners, they possessed the educational qualifications stipulated in the advertisement and had submitted an application for participating in the examination. Learned counsel for the petitioners states that the examination was to be held in three parts, the first stage was of the written examination, then the successful candidates were to participate in the Computer Proficiency Test (CPT) and finally, the shortlisted candidates were to appear for the personal interview.
4. It is the case of the petitioners that they had qualified in the written examination and were provisionally called by the respondent No.2/SSC to appear in the CPT that was scheduled for 26.06.2012. The petitioners had duly participated in the said test and were awaiting the results. However, on 10.06.2013, the respondent No.2 issued a notice to show cause to the petitioners stating inter alia that experts had been engaged to scrutinize and analyze the performance W.P.(C) 7168/2014 Page 2 of 9 of the candidates in the objective type multiple choice question papers and in the course of the said analysis undertaken in respect of the written examination papers in Paper-II/Paper III, "incontrovertible and reliable evidence" had emerged to the effect that they had resorted to unfair means by indulging in copying, in association with some other candidates who also sat for the examination. The petitioners were called upon to reply to the show cause notice within ten days explaining inter alia as to why their candidature should not be cancelled and why should they not be debarred for five years from appearing in the examinations conducted by the Commission on account of having indulged in unfair means in the aforesaid examination.
5. Upon receipt of the aforesaid notice to show cause, the petitioners had submitted replies on 17.06.2013/18.06.2013, wherein they had denied the charges leveled against them.
6. Aggrieved by the aforesaid notice to show cause issued by the respondent No.2/SSC, the petitioners had approached the Central Administrative Tribunal, Principal Bench, New Delhi, by filing OA No.923/2013. However, since the matter related to the respondent No.1/FCI, which does not fall in the jurisdiction of the Tribunal, vide order dated 22.9.2014, the aforesaid petition was dismissed and W.P.(C) 7168/2014 Page 3 of 9 thereafter, the petitioners have filed the present petition on 15.10.2014.
7. The main plank of the arguments advanced by learned counsel for the petitioners to assail the impugned notice to show cause dated 10.06.2013 issued by the respondent No.2/SSC is that it does not mention the evidence which has been described as "incontrovertible and reliable" that had purportedly emerged during the scrutiny and analysis of the written examination, to enable the petitioners to offer a worthwhile explanation or offer a valid defence. Learned counsel contends that in the absence of any material particulars supplied to them by the respondents, the petitioners were not in a position to file a proper reply to the notice to show cause.
8. Learned counsel for the petitioners informs the court that the issue raised in the present petition came up for consideration before the Division Bench in W.P.(C) 7416/2013 entitled SSC and Ors. vs. Rakesh Kumar Yadav. In the said case, the court had the occasion to examine two notices to show cause issued by the SSC to the respondent therein in respect of a Combined Graduate Level (Tier-II) Examination, 2011. The said notices to show cause had alleged inter alia that the candidates including the respondent therein had indulged in malpractices. The respondent had filed a reply to the two notices W.P.(C) 7168/2014 Page 4 of 9 issued by the SSC, wherein he stated that it was not disclosed as to what was the nature of the unfair means alleged to have been adopted by him while taking the said examination, without responding to the objections taken by the respondent. Vide order dated 19.06.2012, the SSC had proceeded to cancel his candidature and had debarred him from participating in any examination conducted by the Commission for a period of four years.
9. Aggrieved by the said decision taken by the SSC, the aforesaid respondent had approached the Central Administrative Tribunal for appropriate relief by filing a petition, which was duly allowed. The petitioner/SSC in the aforecited petition had then filed an appeal against the decision of the Tribunal that came up before the Division Bench of this Court and was dismissed vide order dated 26.11.2013, with an observation that as per the charges leveled against him in the show cause notice, the alleged unfair means used by the respondent therein were never revealed to him and in the absence of the said information, he was not in a position to effectively reply to the notice to show cause.
10. The Court is informed that the aforesaid order dated 26.11.2013, passed by the Division Bench in W.P.(C) 7416/2013 has attained finality. The facts of the present case are almost identical to W.P.(C) 7168/2014 Page 5 of 9 those decided by the Division Bench in the aforecited case to the extent that in both the case, the notices to show cause are bereft of any material particulars as to the nature of unfair means allegedly adopted by the candidates. It may also be relevant to note that prior hereto, some other similarly placed candidates had filed petitions before this Court assailing the notices to show cause and the subsequent orders passed by the respondents [WP(C) No.7552/2014, 7661/2014, 7604/2014 and 7580/2014], which were allowed in their favour on the ground of failure on the part of the respondents to reveal the material information gathered against them.
11. While dealing with a matter relating to the dismissal of a government employee, in Biecco Lawrie Ltd. and Anr. vs. State of W.B. and Anr., reported as (2009) 10 SCC 32, the Supreme Court had laid emphasis on following principles of natural justice and on the aspect of issuing an effective notice to show cause, the following pertinent observations were made:
"24. It is fundamental to fair procedure that both sides should be heard--audi alteram partem i.e. hear the other side and it is often considered that it is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. One of the essential ingredients of fair hearing is that a person should be served with a proper notice i.e. a person has a right to notice. Notice should be clear and precise so as to give the other party adequate information of the case he has to meet and make an effective defence. Denial of notice and opportunity to respond result in making the W.P.(C) 7168/2014 Page 6 of 9 administrative decision as vitiated. (emphasis added)
25. The adequacy of notice is a relative term and must be decided with reference to each case. But generally a notice to be adequate must contain the following:
(a) time, place and nature of hearing;
(b) legal authority under which the hearing is to be held;
(c) statement of specific charges which a person has to meet."
12. A perusal of the impugned notices to show cause dated 10.06.2013 bears out the submission made by learned counsel for the petitioners that the same do not disclose the manner in which the petitioners had allegedly resorted to unfair means when sitting in the subject examination. Quite apparently, on account of failure on the part of the respondent No.2/SSC to specify the material available with it, the petitioners would not have been in a position to give a reply in a proper manner and defend himself effectively.
13. Learned counsel for the petitioners is justified in submitting that when the petitioners were never confronted with the relevant material available with the respondent No.2/SSC to substantiate its stand that it had "incontrovertible and reliable evidence" against W.P.(C) 7168/2014 Page 7 of 9 them in its possession, which it had gathered on the basis of the analysis and scrutiny of the written examination purportedly conducted with the help of experts, how could the respondents expect the petitioners to have furnished satisfactory replies to the notices to show cause issued by the Commission. It was incumbent for the respondent No.2/Commission to have first disclosed the material available with it to substantiate the charges leveled against the petitioners and only thereafter, could the petitioners have been in a position to submit replies to the show cause notice by taking all the defences that may have been available to them.
14. A perusal of the impugned notices to show cause reveals that no mention has been made therein as to the nature and details of the material that the SSC had come upon for initiating any action against the petitioners for allegedly resorting to malpractices during the examination. Having failed to furnish the explicit material in the power and possession of the respondents for arriving at a conclusion that there was sufficient evidence to indict the petitioners, it has to be held that the principles of natural justice have been grossly violated by them and the entire procedure of affording an adequate opportunity of hearing to them, was reduced to an empty formality. W.P.(C) 7168/2014 Page 8 of 9
15. In view of the aforesaid facts and circumstances, this Court is of the opinion that the impugned notices to show cause dated 10.06.2013 issued by the respondent No.2/SSC are not sustainable in the eyes of law and resultantly, the same are quashed and set aside. However, if the respondents do have sufficient material available with them to establish that the petitioners had resorted to unfair means in the examination in question, then they shall be at liberty to issue fresh notices to them along with all the relevant information available with them, to substantiate their allegations and the petitioners shall be entitled to file replies thereto. The said replies shall be considered and decided by the respondents in accordance with law, under written intimation to the petitioners. As much time has lapsed after issuance of the impugned notices to show cause, if the respondents propose to issue fresh notices to show cause to the petitioners as per the liberty granted, then expeditious steps shall be taken by them and the same shall be issued within six weeks and the entire process shall be concluded within three months from today.
16. The petition is allowed and disposed of on the above lines, while leaving the parties to bear their own costs.
(HIMA KOHLI)
DECEMBER 05, 2014 JUDGE
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