Bombay High Court
Madhukar G. Wagh vs Union Of India on 13 August, 2010
Author: P.B.Majmudar
Bench: P.B.Majmudar, R.M.Savant
1 WP 8949 of 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8949 of 2004
Madhukar G. Wagh, )
Age 71 years, lastly working as )
Scientific Officer/Engineering (SG) )
as Additional Chief Engineer in BARC, )
Department of Atomic Energy )
Anushakti Bhavan, Appollo Bunder, )
Mumbai - 400 001, And )
residing at Pushkaraj, 10, Sarasbaug,
ig )
Deonar, Mumbai - 400 088. )..... Petitioner
V/s.
1. Union of India, )
through the Secretary, )
Dept. of Atomic Energy, )
Govt. of India, Anushakti )
Bhavan, C.S.M.Marg, )
Appollo Bunder, )
Mumbai - 400 039. )
2. Union Public Service Commission, )
Dholpur House, Shahajahan Road, )
New Delhi - 110 001. ).... Respondents
Mr.Ramesh Ramamurthy, for the petitioner.
Ms. Rajani Iyer, Senior Advocate, i/by Mr. Jaydeep Deo, for the
respondents.
CORAM : P.B.MAJMUDAR &
R.M.SAVANT, JJ.
JUDGMENT RESERVED ON : 29TH JULY, 2010.
JUDGMENT PRONOUNCED ON : 13TH AUGUST, 2010.
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JUDGMENT :(PER P.B.MAJMUDAR, J.) :
1. This petition is directed against the judgment and order passed by the Central Administrative Tribunal, dated 22-06-2004 in Original Application No.995 of 2004. By the aforesaid order, the Tribunal dismissed the Original Application filed by the petitioner and confirmed the order passed by the Disciplinary Authority, imposing the punishment of dismissal from service against him.
2.
The petitioner was initially appointed in May 1958 as Senior Scientific Assistant in the Bhabha Atomic Research Centre, Government of India. Later on, the petitioner was promoted from time to time and in August 1986, he was promoted as Additional Chief Engineer (SO/SG). The petitioner was placed under suspension in August 1987, as he was subjected to a departmental inquiry and was served with the chargesheet on 03-08-1988 containing four articles of charges. At the time when the petitioner was working in Nuclear Power Board, he was placed under suspension by an order dated 24/26th June, 1987. The first charge levelled against the petitioner was that while working as Scientific Officer, he was delegated the powers of Executive Engineer during the period between 1984-85, 1985-86 and 1986-87, the petitioner, in connivance with the subordinate officers Shri K.N.Sabhnani, Shri R.P.Sahni and a Private Contractor Shri B.G.Mistry, cheated the Government to the tune of ::: Downloaded on - 09/06/2013 16:17:27 ::: 3 WP 8949 of 2004 Rs.1,58,801.40/- by technically sanctioning non-existent works and thereby committed fraud. It is alleged against the petitioner that he issued tender notice calling upon sealed tenders for the said non-existent works and got comparative statements based on the quotations received in respect of the said non-existent works and issued work orders for the said non-existent works. It is also alleged against the petitioner that the first and final bills were sanctioned by him in respect of the said non-existent works in favour of Shri B.G.Mistry, Contractor. It is also alleged that the aforesaid eight works were not actually carried out and were not in existence at site.
3. The second article of charge which was levelled against the petitioner, was that while functioning as Scientific Officer during the period between 1984-85, 1985-86 and 1986-87, he grossly misused the powers delegated to him and in connivance with Shri B.G.Mistry, Contractor and his subordinate officers, cheated the Government to the tune of Rs.2,60,667/- by technically sanctioning the estimates of non-
existent works and by issuing tender notices, calling for the sealed tenders for the said works. It is also alleged against the petitioner that false inspection and completion certificates were recorded in respect of the said non-existent works and first and final bills were also passed in favour of Shri Mistry, Contractor, in respect of the 13 works which were non-
::: Downloaded on - 09/06/2013 16:17:27 :::4 WP 8949 of 2004 existent.
4. Article/charge No.3 was in connection with the misusing of financial powers delegated to the petitioner during the period 1986-87, by cheating the Government to the tune of Rs.34,114/- by fraudulently passing the final bill of Shri Mistry regarding providing and fixing 167 Godrej Make Mortice Locks on the basis of the false measurements which were got recorded in connivance with the aforesaid two Engineers and that false certificates were also prepared regarding the completion of the said work and that is how the petitioner has shown lack of integrity.
5. The forth charge levelled against the petitioner was in respect of issuing gate passes in favour of Shri Mistry, during the period between 29-03-1984 to 07-02-1987 and allowed the Contractor to remove 80.965 empty scrap out of the BARC on the basis of the gate passes issued by the petitioner.
6. The petitioner denied the aforesaid charges levelled against him vide his reply dated 22-08-1988. The Inquiry Officer after considering the evidence on record, reached the conclusion that the Articles/charges No.1, 2 and 3 are proved against the petitioner. The Inquiry Officer held that charge No.4 is not proved. The Inquiry Officer thereafter submitted his report to the Disciplinary Authority. A copy of the Inquiry Officer's report finds place at Page 218 in the compilation. The petitioner ::: Downloaded on - 09/06/2013 16:17:27 ::: 5 WP 8949 of 2004 thereafter, gave his reply to the Inquiry Officer's report, which is at page 269 in the compilation. The Disciplinary authority thereafter, taking into consideration the report of the Inquiry Officer and the explanation submitted by the petitioner, agreed with the Inquiry Officer's report and passed an order of dismissal dated 31-05-1993 against the petitioner. The Union Public Service Commission (respondent No.2) was also consulted as required by the provisions of Civil Services Rule and Article 320 of the Constitution of India and thereafter, an order of imposing the aforesaid penalty was passed by the Disciplinary Authority. The petitioner thereafter, preferred a revision application against the order of punishment, which was also dismissed. Against the said order, the petitioner filed Original Application No.995 of 2004 before the Central Administrative Tribunal. The Tribunal by its order dated 22-06-2004 dismissed the said Original Application filed by the petitioner.
7. Previously, in the present Writ Petition, the Division Bench of this Court has passed an order dated 03-04-2008 and allowed the writ petition by setting aside the order of dismissal on the ground that the Disciplinary Authority while obtaining advise from the Union Public Service Commission, sent six documents to the UPSC which were not part of the record of the departmental inquiry. The copies of the same were not furnished to the petitioner. The six documents/files which were not ::: Downloaded on - 09/06/2013 16:17:27 ::: 6 WP 8949 of 2004 part of the record of the departmental inquiry, were forwarded to the UPSC and the UPSC has, while giving its opinion, considered the record of the departmental inquiry. The Division Bench held that the Disciplinary authority is required to seek fresh opinion of the UPSC, excluding the six files or if the Disciplinary authority wants to rely on those documents, it will have to follow the law by taking the said documents on record and thereafter, forward the same to the UPSC for the purpose of seeking its opinion. The Division Bench accordingly set aside the order of the Disciplinary Authority as well as the order passed by the Tribunal and the Disciplinary authority was permitted to pass fresh order in accordance with law. Accordingly, the petitioner was ordered to be reinstated in service and it was held that he shall be entitled to receive subsistence allowance till his retirement and on his retirement, till a fresh order is passed, he shall be entitled for provisional pension in accordance with law.
The said order was passed as in the meanwhile the petitioner had already attained the age of superannuation.
8. The respondent No.1 challenged the aforesaid order before the Supreme Court of India by way of Civil Appeal No.854 of 2010 arising out of SLP(C) No.22430 of 2008. The Supreme Court by an order dated 22-01-2010 set aside the order of the Division Bench of this Court and remitted the matter back to the High Court for de novo consideration in ::: Downloaded on - 09/06/2013 16:17:27 ::: 7 WP 8949 of 2004 accordance with law. It has been observed in the said order that the High Court was required to examine whether the delinquent was prejudiced by non-supply of six files? It was also observed that the High Court ought to have given a finding as to whether the files supplied to the UPSC for obtaining its advise under Article 320 of the Constitution of India, had any relevancy to the charges levelled against the delinquent. The Supreme Court in the aforesaid order also observed that there is no finding as to how non-supply of the administrative files has caused prejudice to the delinquent. That is how the matter has been placed before us for deciding the above petition de novo, in the light of the directions given by the Supreme Court in its order.
9. So far as the point regarding non-supply of six documents/files which were sent by the Disciplinary Authority to the UPSC for seeking its opinion is concerned, the learned counsel for the petitioner, has not pressed this point seriously. However, in view of the directions of the Supreme Court, at the time of remanding the matter back to the High Court, we have heard the learned counsel for the petitioner as well as the learned Senior Counsel for the respondents, on this point.
10. In this connection, it is pertinent to note that the aforesaid six documents/files are also made available for the perusal of the Court and the same were also shown to the learned counsel for the petitioner. It ::: Downloaded on - 09/06/2013 16:17:27 ::: 8 WP 8949 of 2004 is also required to be noted that the departmental inquiry was initiated against the petitioner in connection with the four articles of charges. The charge No.4 was not proved against the petitioner and rest of the charges were held to be proved. The charges levelled against the petitioner were in connection with inviting tenders and giving civil engineering works to a contractor, and on physical inspection of the same, it was found that the such work was not in existence. The Inquiry Officer after considering the evidence on record found that the three charges were proved against the petitioner, which finding was accepted by the Disciplinary Authority and passed the impugned order of dismissal. It is no doubt true that while seeking the advise of UPSC, the Disciplinary authority had sent service record of the petitioner in the form of the aforesaid six files. So far as these documents are concerned, the same are in connection with the past service record of the petitioner. The Inquiry Officer's report is not based on such past record of the petitioner, which was sent to the UPSC at the time of seeking its advise. It is required to be noted that if any documents on which reliance has been placed before the Inquiry Officer by the department, the same are required to be given to the delinquent. If any documents which are not forming part of the inquiry proceedings, naturally they are not required to be given to the delinquent, as the material on which reliance has been placed in an inquiry, such documents ::: Downloaded on - 09/06/2013 16:17:27 ::: 9 WP 8949 of 2004 are required to be given to the delinquent. It is required to be noted that the finding of the Inquiry Officer is neither based on any past service record of the petitioner, nor penalty order is passed by considering the past service record of the petitioner. After the conclusion of the inquiry, the Inquiry Officer submitted his report as per the evidence led before him and the Disciplinary Authority accepted the said report. While seeking the opinion of the UPSC, certain documents were sent only in connection with the past service record of the petitioner, which has no bearing with the disciplinary proceedings in any manner. It is required to be noted that the Disciplinary Authority recommended the penalty of dismissal on the basis of the charges levelled and proved against the petitioner. It is not the case where the UPSC recommended any enhanced punishment on the basis of the service record of the petitioner placed before it. In such an eventuality, perhaps a different consideration may arise. But when the UPSC agreed with the punishment suggested by the Disciplinary Authority on the basis of the evidence led before the Inquiry Officer, in our view, simply because the service record of the petitioner was sent to the UPSC, which has no connection with the department inquiry in any case, cannot vitiate the order of disciplinary authority in any manner. Since the so-called six documents/files have no relevancy in the departmental proceedings in any manner, nor the punishment order is passed on the basis of the said ::: Downloaded on - 09/06/2013 16:17:27 ::: 10 WP 8949 of 2004 documents, in our view, simply because at the time of taking opinion, six documents/files were sent to the UPSC, is no ground for coming to the conclusion that the non-supply of such documents/files to the petitioner, vitiates the order passed by the disciplinary authority. At the time of seeking opinion, service record of the petitioner was sent in the form of six files to the UPSC and the UPSC has agreed with the suggested punishment. It is not the case where any additional penalty suggested by the disciplinary authority, is recommended by the UPSC on the basis of the said documents. In our view, it cannot be said that simply because additional documents were sent to the UPSC and since the same were not brought to the notice of the petitioner, the order of the disciplinary authority is vitiated in any manner. Even otherwise, in our view, by not furnishing copies of such documents, it can never be said that any prejudice is caused to the petitioner, as the said documents were not part of the departmental proceedings and the order is passed on the basis of the documents and evidence on record produced before the Inquiry Officer. It cannot be said that the advise of the UPSC is based on any new material and in fact, it had agreed with the penalty of dismissal for which its opinion was sought for by the disciplinary authority. The learned counsel for the petitioner is not in a position to point out as to how any prejudice is caused to the petitioner in any manner by non-supply of the ::: Downloaded on - 09/06/2013 16:17:27 ::: 11 WP 8949 of 2004 aforesaid six documents. As pointed out earlier, the learned counsel for the petitioner has not seriously pressed this point, still we have referred the same, in view of the directions of the Supreme Court to consider the said aspect at the time of deciding this petition.
11. The learned counsel for the petitioner has mainly assailed the order of disciplinary authority, which was confirmed by the Central Administrative Tribunal, on the following grounds :
(i) It is a case of no evidence and from the evidence on record, it can never be said that the petitioner had committed misconduct as alleged against him in connection with the charge Nos.1 to 3.
(ii) The Inquiry Officer could not have conducted a joint inquiry and by holding a joint inquiry, the petitioner was denied opportunity to effectively cross-examine the witnesses. No joint inquiry could have been held as there is no provision under Rule 18 for holding a common inquiry. The disciplinary authority did not allow the petitioner to produce certain documents in order to substantiate his case.
(iii) The order of the dismissal passed by the disciplinary authority is not a speaking order.
(iv) The petitioner was not afforded fair opportunity to defend his case during the inquiry.::: Downloaded on - 09/06/2013 16:17:27 :::
12 WP 8949 of 2004
(v) The penalty is in any case disproportionate to the charges levelled against the petitioner.
(vi) The finding of the Inquiry Officer is based on hearsay evidence.
12. On the other hand, Ms.Rajani Iyer, the learned Senior Counsel appearing for the respondents, has supported the findings of the disciplinary authority as well as the order passed by the Central Administrative Tribunal. It is submitted by her that by conducting a simultaneous inquiry, no prejudice can be said to have been caused to the petitioner, nor the petitioner had raised any objection/grievance in this behalf and infact, he participated in the inquiry and now at this stage, such ground is not available to the petitioner. It is submitted by the learned counsel for the respondents that it cannot be said that it is the case of no evidence. According to her, there is ample evidence on record and even during the personal verification, it is noticed that the work in question was not in existence at all. It is submitted by her that in its limited jurisdiction under Articles 226 and 227 of the Constitution of India, this Court cannot reappreciate the evidence on record and even if there is some evidence on record, this Court cannot interfere with the decision of the disciplinary authority, though, in her submission, there is ample evidence against the petitioner in connection with the misconduct alleged and proved against ::: Downloaded on - 09/06/2013 16:17:27 ::: 13 WP 8949 of 2004 him. It is submitted by the learned counsel for the respondents that the point regarding holding of joint inquiry was not taken before the Inquiry Officer and the petitioner submitted to the jurisdiction of the Inquiry Officer and therefore, it can never be said that any prejudice is caused to the petitioner in any manner in this behalf. The petitioner was adopting dilatory tactics, he was allowed to inspect necessary documents and the Inquiry Officer's conclusion is based on the available material on record.
The learned counsel for the respondents has relied upon the documentary evidence in the form of letter written by Chief Security Officer. It is submitted by the learned counsel for the respondents that at the time of commencing inquiry, the petitioner had requested for giving him voluntary retirement, but later on, he was transferred at some other place. The learned counsel for the respondents submitted that even if the letter/report of the Chief Security Officer is to be ignored on the ground that the same was not forming part of the inquiry proceedings, still there is ample evidence on record by which the guilt of the petitioner can be said to have been proved. It is submitted by her that the petitioner wanted to rely upon irrelevant documents which were not form part of the inquiry proceedings and he was only interested in delaying the proceedings. It is submitted by the learned counsel that no prejudice is caused to the petitioner and he was given full opportunity to defend his case and the ::: Downloaded on - 09/06/2013 16:17:27 ::: 14 WP 8949 of 2004 Tribunal has considered this aspect in great detail, this Court may not interfere with the findings of the disciplinary authority in its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. The learned counsel for the respondents has rightly pointed out that the report of the Inquiry Officer is not based on documents which were sent to the UPSC. She submitted that since the petitioner is involved in financial irregularities and is found to be guilty of serious misconduct, the penalty imposed by the disciplinary authority is not required to be interfered with by this Court.
13. We have heard the learned counsel for the petitioner and the learned Senior Counsel for the respondents at great length and have gone through the report of the inquiry officer and the order passed by the disciplinary authority as well as the order passed by the Central Administrative Tribunal. We have also gone through the evidence forming part of the inquiry proceedings.
14. Insofar as the submission of the learned counsel for the petitioner that this is a case of no evidence, is concerned, it is required to be noted that during the inquiry, the inspection report was placed on record by which it was found that the work in question was not in existence. On behalf of the Department, 20 witnesses were examined and on behalf of the petitioner, two witnesses were examined as defence ::: Downloaded on - 09/06/2013 16:17:27 ::: 15 WP 8949 of 2004 witnesses. The Inquiry Officer has assessed the evidence in detail in Para No.4 of its report. The Inquiry Officer has considered the documents in the form of measurement book (Ex.S-32) and has also considered the fact about passing of the bills by the petitioner while submitting inspection certificate at (Ex.S-25). It was found that laying the cast iron pipe were recorded without even caring to compare the lengths of the trenches and the laid pipes and ultimately, bill was passed by the petitioner while submitting the inspection certificate. Regarding some of the work, the observations of the Inquiry Officer reads as under : -
5.7 For work order Ex.S-39, the Shri R.P.Sahni, entered the measurements on 18-09-1985, also signed the abstract and the certificates for the items of excavation and fixing RCC pipe sleeves on 18-09-1985 on page 63 and 64 of MB NO.
698 (Exh.S-40), but the date of completion has been recorded as 03-10-1985 on page No.63 before starting the entry of measurements on 18-09-1985. How can the date of completion of a work be certified 15 days in advance?
The quantities of items in the MB (Exh.S-40) for this work order again tally with the estimated quantities (Exh.S-35).
The Co. signed the inspection report (Ex.S-41) and passed this bill on 24-10-1985.
15. The Inquiry Officer considered the evidence of Shri T.J.Asnani, Head Personnel Division, who was examined as Witness No.1.
In his evidence, he has clearly stated that by clear physical inspection as well as checking with the staff posted at Vashi Complex, that no such ::: Downloaded on - 09/06/2013 16:17:27 ::: 16 WP 8949 of 2004 works were in existence. The Inquiry Officer also considered the evidence of Mr.K.G.R.Nair, then Head Accountant, who has stated that during their visit along with Shri T.J.Asnani and Shri S.Chellappa, it was found that none of the works for which work orders were carried out and the payments have been made for non existing works and this aspect was also verified on questioning the site staff as well as physical inspection.
Another witness Shri G.S.Rao (Witness No.4) also confirmed the said aspect. The Inquiry Officer has considered this aspect in para No.5.8 of the inquiry report. It has also been observed by the Inquiry Officer in para No.5.9 of its report, as under : -
5.9 As per the letter dated 10-06-1987 (Ex.S-71) from Shri M.M.Ganu, Chief Security Officer, BARC, Shri B.G.Mistry, Civil Engg. Contractor, does not appear to have worked in the Vashi site during the period from December 1986 to March 1987 on the examination of the record held by the Security Section Vashi Complex, BARC. Shri M.N.Kasbekar, then Head, CED (SW-7) has also stated during his cross-
examination that there is a Security Post at Vashi Complex and it was checked from the security that none of the labourers and materials of Shri B.G.Mistry, contractor, had entered the Vashi Complex. Against the two work orders for public health works and miscellaneous works, Shri R.P.Sahni entered the measurements in the MB on 29-01-1987 and 26-02-1987 giving the date of start of work as 08-01-1987 and 02-02-1987 respectively (Ex.S-56 and Ex.S-65). Co. gave the inspection reports certifying completion of works and passed the bills also. In both these work orders, the site of the work has not been written in the MB as well as the estimates as per the statements of the prosecution witnesses and the letter from the Chief Security Officer (Ex.S-71) Shri Mistry, contractor, did not carry out ::: Downloaded on - 09/06/2013 16:17:27 ::: 17 WP 8949 of 2004 any work at Vashi site during the said period.
16. On the basis of the evidence on record, a conclusion was drawn by the Inquiry Officer that it is proved that the petitioner had sanctioned the estimates, issued tender notices, signed the work orders, recorded false inspection reports and had passed the first and final bills for the 8 non-existing works. Accordingly, charge No.1 was held to be proved against the petitioner.
17. The charge No.2 is in connection with the 13 work orders, in respect of which a detailed finding has been given in Para No.6.2 and onwards in the report. Reference is made to the measurement book as well as statements of Shri K.G.Nair, Supervisor, and other witnesses. It was found that certain works were actually carried out through the department and not through the contractor Shri Mistry. The evidence of Mr.T.J.Asnani (SW-1) was also considered in this aspect, wherein he has stated that Shri Mistry, Contractor, had not carried out any work against the said work order in the training hostel. In the cross-examination, the said witness stated that new and old wash basins as well as new and old glass panes could be distinguished by a common sense. The Inquiry officer considered the evidence on record in great detail and it is found that the charge No.2 is also proved against the petitioner. The Inquiry ::: Downloaded on - 09/06/2013 16:17:27 ::: 18 WP 8949 of 2004 Officer found that the petitioner had taken exhaustive cross-examination of the witnesses and could not bring out any contradictions in the same.
The aforesaid observation has been made in concluding para No.6.2.6 of the report.
18. Insofar as the charge No.3 levelled against the petitioner is concerned, the evidence has been discussed in detail and the measurment books have also taken into consideration. The Inquiry Officer also considered the submission of the delinquent that the department has not examined the so called Contractor Shri Mistry. It has been rightly found by the Inquiry Officer that no useful purpose could be served by examining the contractor to whom the payments were made for the non-existing works. It is required to be noted that the name of the said Contractor figured in the list of witnesses submitted by the petitioner. But, he did not examine the said witness for the reasons best known to him. In our view, the petitioner infact was not willing to take chance by examining the contractor. Be that as it may, in our view, this can never be said to be a case of 'no evidence'. It is pertinent to note that this Court is not required to go through the evidence like an appellate Court, yet in view of the submissions of the learned counsel for the petitioner, we have gone through the evidence produced before the Inquiry Officer. In our view, it can never be said that there was no evidence before the Inquiry Officer in ::: Downloaded on - 09/06/2013 16:17:27 ::: 19 WP 8949 of 2004 any manner for arriving at the conclusion about the guilt of the petitioner.
19. The learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court in the case of Kuldeep Singh V/s.
Commissioner of Police and Ors 1 wherein it has been held that "after considering the evidence on record, the enquiry officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of "reasonable opportunity", contemplated by Article 311(2) of the Constitution. It has also been held that the power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well as it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority.
20. However, in the instant case, the petitioner was given reasonable opportunity to defend his case and on the basis of material on record, a detailed report has been submitted by the Enquiry Officer, by which out of four charges, three charges are held to be proved. Whether in a particular case, an opportunity to defend the case is given or not, 1 1999 SCC (L&S) 429 ::: Downloaded on - 09/06/2013 16:17:27 ::: 20 WP 8949 of 2004 depends upon the facts and circumstances of each case. In a case where there is absolutely no evidence worth the name, the Court can interfere with the order of the Disciplinary authority. However, in the instant case, it can never be said that it is a case of no evidence. There is sufficient evidence on record and the Inquiry Officer rightly found that the charges levelled against the petitioner are adequately proved in the departmental proceedings. We accordingly negative the said contention of Mr.Ramamurthy.
21. So far as the challenge regarding joint inquiry is concerned, The learned counsel for the petitioner has placed reliance in the case of Tripura Charan Chatterjee V/s. State of West Bengal and Ors. 1 , wherein it was held that "if the joint inquiry is conducted against the delinquent without the sanction of competent authority, such inquiry is illegal and does not confer jurisdiction on the Enquiry Officer to hold such inquiry".
However, in view of what is stated above, it can never be said to be a joint inquiry as such. A separate chargesheet were served upon each of the delinquents and separate enquiry report was given. The enquiry was conducted simultaneously only with a view to save time, as the charges against the delinquent officers were common in nature.
22. It is required to be noted that since the incident was 1 1979 (1) SLR 878 ::: Downloaded on - 09/06/2013 16:17:27 ::: 21 WP 8949 of 2004 common, the department held a simultaneous inquiry with a view to see that the inquiry is not required to be prolonged indefinitely. The learned counsel for the respondents submitted that it is not a case of joint inquiry, but as a matter of fact, simultaneous inquiry was carried out and the petitioner had infact appeared before the Inquiry Officer and participated in the Inquiry. He cross-examined the witnesses also. There is nothing on record to show that any prejudice is caused to the petitioner in any manner. It is required to be noted that separate chargesheet were served upon the delinquents. The charges levelled against the petitioner are independent and separate. It is not in dispute that the charges levelled against the petitioner and other delinquents, were of similar in nature and in order to see that there may not be any multiplicity of recording the evidence, that the inquiry was conducted simultaneously, so that the inquiry is not required to be delayed and if separate evidence is to be recorded in case of each of the delinquents, it may result into unnecessary delay in completing the inquiry proceedings. It is also not in dispute that the petitioner was permitted to cross-examine the witnesses and the learned counsel for the petitioner is not in a position to point out as to in which manner such simultaneous inquiry has caused any prejudice to the petitioner, especially when he was allowed to examine his own defence witnesses independently and was allowed to cross-examine the witnesses ::: Downloaded on - 09/06/2013 16:17:27 ::: 22 WP 8949 of 2004 examined by the respondents. It is required to be noted that separate inquiry report was submitted by the Inquiry Officer against each of the delinquents. Simply because common evidence is recorded, itself is no ground for coming to the conclusion that the petitioner was denied opportunity to defend his case. The question as to whether the delinquent is given fair opportunity to defend his case, is required to be seen.
Departmental inquiry is not a criminal trial. In the instant case, it can never be said that such opportunity was denied to the petitioner and by holding inquiry simultaneously, no prejudice is caused to the petitioner in any manner. The Inquiry Officer has submitted independent and separate inquiry report so far as the petitioner is concerned. The Tribunal has considered this aspect in Para No.23 of its judgment and we do not find any illegality in the reasoning given by the Tribunal in this behalf.
23. Insofar as the submission of the learned counsel for the petitioner that the petitioner was not given fair opportunity to defend his case is concerned, it is required to be noted that the petitioner had submitted a list of 67 documents, out of which Inquiry Officer allowed 13 documents to be produced on record. In this connection, the learned counsel for the respondents, has pointed out that only those documents which are relevant in connection with the charges, were allowed to be produced on record. The Inquiry Officer found that some of the ::: Downloaded on - 09/06/2013 16:17:27 ::: 23 WP 8949 of 2004 documents were not at all relevant and were absolutely irrelevant so far as the charges levelled against the petitioner are concerned. In our view, the documents which are relevant in connection with the charges levelled against the delinquent, are required to be given to the delinquents and if any other documents, which have no relevancy with the charges levelled against the delinquents, are not required to be supplied and by non-supply of such documents, it can never be said that the delinquent is denied fair opportunity to defend his case. In our view, it cannot be said that any prejudice is caused to the petitioner in any manner in this behalf. The Tribunal has found in Para No.25 of its judgment that the rejected documents to be produced on record by the Inquiry Officer, do not pertain to the work undertaken. It is also required to be noted that the question as to whether the documents are material or not, depends upon the facts and circumstances of each case. The Tribunal has also found that no material has been brought out by the petitioner to enable the Tribunal to determine as to whether the demand of such documents in any way is relevant in the present proceedings. It is also found that the petitioner had infact cross-examined the witness and had never made any grievance on the ground of non-production of documents at the time of cross-
examination, to justify his case that he could not effectively cross-examine the witnesses for want of such documents.
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24. In order to substantiate his contention, the learned counsel for the petitioner has relied upon a decision of the Supreme Court in the case of State of Madhya Pradesh V/s. Chintaman Sadashiva Waishampayan 1 . The Supreme Court has held in Para No.10 that "it is hardly necessary to emphasis that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the Inquiry Officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the inquiry had not been held in accordance with rules of natural justice".
25. In this connection, the learned counsel for the respondents has placed reliance on the decision of the Supreme Court in the case of Syed Rahimuddin V/s. Director General, CSIR and Ors 2 It has been held by .
the Supreme Court, thus :
3. We have considered each of the contentions raised by the learned counsel for the appellant, but we do not find any substance in any one of them. It is no doubt true that the delinquent had made an application for production of certain documents and the Enquiring officer did pass an order for production of those documents. It also transpires that some of those documents were produced any yet some of them had not been produced. When a grievance was made on this score before the Enquiring officer by filing a representation of 3rd of August, 1989, the said Enquiring Officer considered the said grievance and came to the 1 AIR 1961 SC 1623 2 AIR 2001 SC 2418 ::: Downloaded on - 09/06/2013 16:17:27 ::: 25 WP 8949 of 2004 conclusion that the very fact that though the inquiry continued from 3-7-1989 to 6-7-1989 and the delinquent had been cross-examining the departmental witnesses, yet no grievance had been made on the score of non-
production of any of those vital documents which according to the delinquent could have established the defence case. The Enquiring Officer came to the conclusion that the so- called representation dated 3-8-1989 making a grievance is a dilly dally tactics on the part of the charged officer and the sole intention was to stall the inquiry by any means, in view of the aforesaid conclusion of the Enquiring Officer in its order disposing of the grievance made on 3-8-1989 we do not find any substance in the argument of the learned counsel that in fact the delinquent was really prejudiced by non supply of some of the so-called vital documents though for production of the same the Enquiring Officer had ordered. The Tribunal therefore, rightly came to the conclusion that such alleged non production cannot be held to be a denial of reasonable opportunity to the delinquent in making his defence.
5. The further grievance that the findings of the Enquiring Officer are findings on no evidence is belied by the very report of the Enquiring Officer. The Enquiring Officer has dealt with the Articles of charge chronologically and the relevant materials on the basis of which the ultimate conclusion is arrived at, it is well settled that a conclusion or a finding of fact arrived at in a disciplinary inquiry can be interfered with by the Court only when there is no materials for the said conclusion; or that on the materials, the conclusion cannot be that of a reasonable man. Having examined the report of the Enquiring Officer, we are unable to accept the contention of the learned counsel for the appellant that the findings of the Enquiring Officer cannot be held to be findings based on no evidence.
6. The only other contention that survives for consideration is the allegations of bias. Though, no specific allegation of bias had been made out the contention is based upon the very reasonings of the Enquiring Officer and the conclusion arrived at. According to the counsel for the appellant, a reference to the order of the Enquiring Officer would indicate that the said officer was actuated ::: Downloaded on - 09/06/2013 16:17:27 ::: 26 WP 8949 of 2004 with bias and proceeded to deal with the materials with that bias in the mind which resulted in the ultimate conclusion of finding of guilt of the charges levelled against the delinquent. We were taken through paragraph 4.2 which is at page 290 Volume II of the paper books that is produced before us and before the Tribunal paragraph 4.11 which is at page 296 of the same volume had been placed. On going through the aforesaid two paragraphs, we are unable to accept the contention that the assertions made in those paragraphs indicate or establish any bias of the Enquiring Officer towards the delinquent. Bias undoubtedly, would have to be established either by evidence or on the materials on record which are relied upon by the Enquiring Officer in coming to his conclusion as to the guilt of the delinquent. In the case in hand, after applying our mind to the relevant materials, we do not find any substance on the allegation of bias made by the delinquent as against the Enquiring Officer.
26. Ms.Iyer, the learned Senior Counsel for the respondents, has also relied upon a judgment of the Supreme Court in the case of K.L.Tripathi V/s. State Bank of India and Ors. 1 wherein the Supreme Court has summarized the aspect about reasonable opportunity, as under : -
"The reasonable opportunity envisaged by the provision under consideration includes : -
(a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told, what the charges levelled against him are and the allegations on which such charges are based.
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence, and finally,
(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him 1 AIR 1984 SC 273 ::: Downloaded on - 09/06/2013 16:17:27 :::
27 WP 8949 of 2004 which he can only do it the competent authority, after the inquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant"
27. So far as the reasonable opportunity afforded to the petitioner is concerned, as discussed earlier by us, it can never be said that the petitioner was denied reasonable opportunity to defend his case. He wanted to examine a contractor, but he ultimately did not examine him. It is required to be noted that the petitioner had examined two witnesses, but he has not examined himself. It cannot be said that he was denied the reasonable opportunity to defend his case in any manner.
28. It was argued by the learned counsel for the petitioner that the statements given by the labourers were as per the diktats of the Officer. However, it is required to be noted that the labourers have given evidence before the Inquiry Officer and the petitioner was given opportunity to cross-examine the witnesses. We therefore, do not find any substance in the arguments advanced by the learned counsel for the petitioner on this count. Whether the charges against the petitioner can be said to have been proved or not, is to be determined from the available evidence on record. It cannot be said that it is the case of no evidence worth the name. Even if the contention of the learned counsel for the ::: Downloaded on - 09/06/2013 16:17:27 :::
28 WP 8949 of 2004 petitioner is to be accepted that the report of the Chief Security Officer was not forming part of the chargesheet, though of course, the same was made available to the petitioner later on, yet there is ample evidence on record by which it can be said that the guilt against the petitioner has been proved satisfactorily.
29. It is required to be noted that regarding inspection of the documents, the Inquiry Officer has passed an order on 20-06-1989, wherein it was pointed out that during brief hearing the C.O.s were directed to complete inspection of the prosecution documents by 15-05-1989 and they were to submit their request for additional documents latest by 15-06-1989. But no progress seems to have been made. It was specifically ordered that if the charged officers fail to complete inspection of prosecution documents by 20th July, 1989 and to submit their lists of defence documents and defence witnesses by 01-08-1989, no further opportunity in this respect will be given to them.
Due to their non-cooperation and delay tactics, enquiry proceedings shall have to be set up as ex-parte.
30. The learned counsel for the respondents, in this behalf, submitted that the petitioner was adopting delaying tactics and often taking inspection of various documents. The Inquiry Officer has given detailed reasons and the disciplinary authority has upheld the same. The ::: Downloaded on - 09/06/2013 16:17:27 ::: 29 WP 8949 of 2004 contention of the learned counsel for the petitioner that the order passed by the disciplinary authority is not a speaking order and a cryptic one, is not at all sustainable, as the disciplinary authority has given cogent reasons and agreed with the report of the Inquiry Officer and on going through the same, it cannot be said that it is not a speaking order.
31. So far as the submission of the learned counsel for the petitioner about the disproportionate penalty is concerned, in our view, no other penalty than the one imposed upon by the disciplinary authority can be said to be justifiable, considering the nature of the misconduct attributed to and proved against the petitioner. The disciplinary authority in its wisdom has rightly passed an order of dismissal and even no such ground was taken before the Central Administrative Tribunal. The learned counsel for the petitioner has relied upon a decision of the 1 , Supreme Court in the case of B.C.Chaturvedi V/s. Union of India and Ors.
wherein it has been held by the Supreme Court that in case the punishment is shocking conscience of the High Court, it can direct the authority to reconsider the punishment or it may itself to shorten litigation impose appropriate punishment with cogent reasons in support thereof.
32. In the instant case, it can never be said that the penalty imposed on the petitioner is shockingly disproportionate. The petitioner 1 AIR 1996 SC 484 ::: Downloaded on - 09/06/2013 16:17:27 ::: 30 WP 8949 of 2004 was holding a responsible post. The petitioner, as per the charges proved against him, has committed financial irregularities and false documents were created in connection with giving of civil construction work, which work was not at all in existence. The charges levelled against the petitioner are of very serious nature, which are proved by the Department.
In our view, it can never be said that the penalty imposed is disproportionate in any manner. As a matter of fact, considering the serious charges levelled against the petitioner, the department was justified in imposing the penalty of dismissal against the petitioner.
33. We accordingly do not find any substance in the arguments canvassed by the learned counsel for the petitioner. In our view, the petitioner was given reasonable opportunity to defend his case before the Inquiry Officer and it was found that the petitioner was adopting dilatory tactics with a view to delay the inquiry proceedings, yet appropriate opportunity was given to the petitioner to defend his case and to examine his witnesses. In our view, it cannot be said that the petitioner was denied opportunity to defend his case in the inquiry proceedings in any manner. The Inquiry Officer has given detailed reasons and on the basis of material on record, three charges were held to be proved against the petitioner. The Tribunal has also considered the Original Application of the petitioner and has given cogent reasons for rejecting the same. In our ::: Downloaded on - 09/06/2013 16:17:27 ::: 31 WP 8949 of 2004 view, this is not a case in which the order passed by the disciplinary authority as well as the Tribunal are required to be interfered with by this Court in its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. The above writ petition is accordingly dismissed with no order as to costs. Rule discharged.
( R.M.SAVANT, J. ) ( P.B.MAJMUDAR, J. )
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