Central Administrative Tribunal - Mumbai
Sambhaji Vishnu Gadekar vs M/O Finance on 30 June, 2023
1 OA No.268/2011
Central Administrative Tribunal
Mumbai Bench, Mumbai.
ORIGINAL APPLICATION NO. 268/2011
Dated this Friday the 30th Day of June, 2023.
Coram:- Hon'ble Shri Justice M.G. Sewlikar, Member (J)
Hon'ble Dr. Bhagwan Sahai, Member (A)
Shri Sambhaji Vishnu Gadekar
Age 52 Years, Residing at
Sukhada Apartment, Manik Chowk,
Manakeshwar Lane, Flat No.10,
Ahmednagar - 414 001 ... Applicant
( In person )
Versus
1. Union of India,
Through the Secretary,
Ministry of Finance,
Department of Revenue,
C.B.D.T., North Block,
New Delhi - 400 011.
2. The Chief Commissioner of
Income-tax-I, Income-tax Office,
Sadhu Waswani Chowk,
Pune - 411 001.
3. Commissioner of Income Tax-I,
PMT Building, Shankar Seth Road,
Income-tax Office, Swargate,
Pune - 411 037. ... Respondents
(By Advocate Dr. V.S. Masurkar alongwith Shri P. Khosla)
2 OA No.268/2011
Order reserved on: 23rd February, 2023
Order pronounced on: ________________
ORDER
Per: Justice M.G. Sewlikar, Member (J).
By this OA, the applicant is seeking quashing of order dated 19 th June, 2009 retiring him compulsorily which was confirmed by the Appellate Authority by its order dated 10th November, 2010.
1. Facts leading to this application can be adumbrated thus:
The applicant states that he joined Income Tax Department as Stenographer, Grade III on 19th October, 1981. He was promoted as Stenographer Grade II in 1995 and as Inspector of Income Tax in 2001..
2. On 11th February, 2002, a Memorandum of charge sheet was served on the applicant levelling eight charges against him. They are as under:-
(i) The applicant had been continuously and consistently making unsubstantiated, wild and reckless allegations against his colleagues and superiors without proof or evidence.
(ii) The applicant had indulged in abusing and threatening behaviour towards Miss H.B. Parkhe and Mrs. S.B. Bhalerao in the year 1996.
(iii) The applicant had made representations to higher authority, without adhering to norms and procedures prescribed for it.
(iv) The applicant is in the habit of making representations on 3 OA No.268/2011 matters not related to his official duties.
(v) The applicant had made representations making irresponsible and reckless allegations against his colleagues and superior officers.
(vi) The applicant made specific allegations against the superior officers for which he was asked to furnish evidence vide letter dated 24th January, 2001 which he failed to do.
(vii) The applicant had reacted adversely to the posting order made on 20th August, 2001 and made unsubstantiated allegations against his colleagues and superiors; and
(viii) The applicant did not discharge his duty as Income Tax Inspector in a satisfactory manner.
3. The applicant further alleges that inquiry was completed, Inquiry Officer submitted his report holding that charge No.1 was not proved, but he held the applicant guilty of using intemperate language. Charge Nos.2, 3 & 4 were held to be proved. The Inquiry Officer (IO) held that charge No.5 was not proved. However, the applicant was held guilty for showing disrespect to his superiors. Charge Nos.6 & 7 were also held to be proved. Charge No.7 was held as not proved.
4. Disciplinary Authority (DA) passed the order on 19 th June, 2009 imposing penalty of compulsory retirement on the applicant.
5. The applicant challenged this order by preferring departmental appeal to Respondent No.2-The Appellate Authority (AA). The AA 4 OA No.268/2011 rejected the appeal by his order dated 10 th November, 2010 holding that charges 1 and 5 as proved although the same were held by IO as not proved. The applicant has challenged both these orders of 19 th June, 2009 and order dated 10th November, 2010 in this OA.
6. The applicant contended that he has been victimized by the department as he strictly adhered to the oath taken by him. On noticing that his colleagues and officers were openly indulging in corrupt practices, he made complaints against such elements under a genuine belief that department would take action on such complaints. He, therefore, became an eye sore for his colleagues and superior officers. On account of this, he was transferred out of Ahmednagar. Almost entire staff had conspired against him for his transfer. Prior to the filing complaints by Miss H.B. Parakhe and Miss S.B. Bhalerao, the applicant had made complaints against these two ladies on 12th December, 1995, 26th December, 1995, 18th September, 1996, 16th December, 1996, 11th October, 1996. After the alleged quarrel, the applicant had made complaints on 1 st November, 1996, 20th November, 1996, 24th February, 1997 and 20th January, 2001 regarding misbehaviour and corrupt practices against these two ladies. He had made 58 complaints from 1995 to 2001. However, no investigation was made. Despite all these complaints, the applicant was promoted in August, 2001.
7. The applicant has further contended that the Disciplinary Authority disagreed with the finding of the Inquiry Officer. He neither put up a 5 OA No.268/2011 disagreement note nor did he issue a show cause notice to the applicant. This is in complete violation of the principles of natural justice. He was not provided with the copies of the complaints made by him against Smt. Parkhe and Smt. Bhalerao, the norms and procedures which he had violated. He was charged with making representations on matters not related to his duties. He had demanded instances of this nature but was not provided with such instances. For proof of charge No.VI, the applicant had given list of individuals who were working unauthorizedly. The Inquiry Officer did not call those persons as defence witnesses. His request was rejected. Similarly, request of the applicant to call Shri C.R. Kadbhane as defence witness was rejected. Affidavit of Shri Kadbhane has been considered without giving opportunity of cross examination. In respect of charge No.1, the Disciplinary Authority has not pointed out which statements were discourteous. In the imputation of misconduct also, there is no mention of discourteous statements, original record is lost and duplicate record is created. This is confirmed by witness Mr. Salim Shaikh. The Disciplinary Authority has informed that original record is not available but carbon copies are there on record.
8. It is further contended that the main charge against the applicant is the use of abusive and derogatory language used by the applicant against these above named ladies. He had produced the affidavit of Shri S.L. Bhingardive who was present at the time of the alleged incident to show that no such incident had ever taken place.
6 OA No.268/2011
9. It is further contended that these two ladies were ready to take their complaint back. But the Inquiry Officer has completely ignored this point. These two ladies did not speak anything about the instance of the year 1996. The Inquiry Officer did not record their statements. It was only recorded mentioning that they confirmed their statements. If their examination-in-chief had been recorded, they would not have deposed against the applicant. The Inquiry was held in respect of stale incident of the year 1996. Charge sheet was issued on 11 th February, 2002. No incident of this nature occurred thereafter. It was not a serious incident but was merely a skirmish between the applicant and these two ladies. Despite these allegations, the applicant was also promoted. The Charge sheet was issued after a delay of 6 years. The delay is fatal to the enquiry proceedings. The Disciplinary proceedings are vitiated for not following the provisions of Rule 14(18) of CCS(CCA) Rules, 1965. The applicant was not asked generally by the Inquiry Officer on the evidence appearing against him (the applicant).
10. The applicant further contended that the Appellate Authority placed reliance on the observations of the Mumbai Bench of this Tribunal. Those observations were made pertaining to the incident of the year 1994 which was not the subject matter of the charge. The Appellate Authority has considered extraneous material. The Disciplinary Authority has collected forged documents from one clerk and four inspectors for the purpose of issuing charge sheet. Charges were framed without preliminary enquiry. 7 OA No.268/2011 No advice from CVC (Central Vigilance Commission) was taken before issuing the charge sheet nor permission was sought from CVC in view of para 2.3.1 and 5.1.2 of the vigilance chapter. The Disciplinary Authority has not considered all the submissions made by the applicant in view of the directions of Bombay High Court. He contended that the penalty of compulsory retirement is grossly disproportionate to the charge. According to him, vide order dated 19th September, 2008 this bench of this Tribunal has observed that the charges are minor. He has been punished only because of exposing things that were happening around him. He has contended that at the most punishment of admonition could have been awarded to him.
11. He further contended that the Disciplinary Authority has not given findings on seven out of 8 charges. The Disciplinary Authority has given the finding that there was sexual harassment though there was no such charge. The Appellate Authority has substituted the view of the Disciplinary Authority without giving opportunity to the applicant. The Disciplinary Authority did not permit the applicant to lead defence evidence though he had made several representations. The Disciplinary Authority ought to have directed the Inquiry Officer to consider defence evidence (page 14 -A-6). No brief from the Presenting Officer was obtained by the Inquiry Officer and thus he violated Rule 14(16) to (19) of CCS (CCA) Rules.
8 OA No.268/2011
12. The respondents have filed their reply. They contended that the applicant had filed OA No.188/2002 and 81/2006 primarily seeking relief that the inquiry initiated by Charge Memorandum dated 11 th February, 2002 be conducted by an Officer from the Central Vigilance Commission. The Central Vigilance Commission has been constituted in pursuance of the Act passed by the Parliament in the year 2003. In terms of Section 8 of the said Act, functions and powers of the Commission shall be to enquire or investigate into any complaint against any official belonging to such category of officials specified in sub-section 2 wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988. In terms of the said section, the specification of officials given in sub- section (2) mentions members of All India Services in connection with the affairs of the Union and Group 'A' Officers of the Central Government. Since the applicant belongs to Group 'C' of the Central Government, he has absolutely no legal right to insist that the inquiry initiated by the Memo dated 11th February, 2002 be conducted by an Officer by the CVC. It is further contended that mere alleging that while conducting inquiry, principles of natural justice were not followed is not enough. The charged officer has to prove that defacto prejudice has been caused because of non-observance of principles of natural justice. The applicant was given fullest opportunity to defend himself in the inquiry. The proceedings of inquiry were conducted strictly in accordance with the rules of principles of natural justice. The Inquiry Officer and Disciplinary Authority passed a 9 OA No.268/2011 reasoned order after giving personal hearing to the applicant. It is further contended that Shri Bhingardive was not examined by the Inquiry Officer as he was not willing to appear before the Inquiry Officer. Therefore, the affidavit of Shri Bhingardive could not have been considered. The respondents contended that the record of inquiry shows that the applicant had taken an inspection of all documents except document in connection with Article VIII of the Charge on 19th May, 2003 and 17th September, 2003. The Inquiry Officer and Disciplinary Authority have held that the Article VIII of the charge had not been proved.
13. The Inquiry Officer has held that the charges listed at (i) to (v) of Article of Charge No.V of the Annexure II to the charge sheet are not fully proved. However, the charge relating to showing disrespect towards Superior Authorities is proved. In respect of Article of charge No.I the Inquiry Officer has observed that the charge No.I of the prosecution relating to levelling of unsubstantiated allegations against colleagues and superiors by the charged officer is not proved beyond doubt but the charge of prosecution of violation of Rule 3-A(a) of CCS(Conduct) Rules is proved. The standard of proof in the departmental proceedings is not beyond doubt but the standard of proof is of preponderance of probability.
14. In the proceedings of the OA Nos.188/2002 and 81/2006, the applicant had stated that he would withdraw the complaints and allegations, provided the chargesheet issued against him is dropped and the inquiry is ordered to be closed. The said offer being conditional was 10 OA No.268/2011 not acceptable by the respondents in view of the seriousness of the matter and the same having been made belatedly. The applicant was given ample opportunities to adduce evidence in support of his allegations but he failed to do so. Both the ladies Smt. S.B. Bhalerao and Miss H.B. Parkhe have been examined and cross examined by the applicant at length. The statements of the ladies which were recorded earlier have been taken on record in the inquiry proceedings by the Inquiry Officer in accordance with the instructions contained in sub para 2 of the Government of India's decisions No.23 at page 67 of page 34th Edition 2011 of the Swamy's Compilation of CCS(CCA) Rules. Merely because after 1996 no further complaint was lodged by the two ladies, it cannot be said that the charge has become infructuous and the department has treated the matter as closed in the year 1996 itself. The respondents further contended that consideration for promotion is totally a different matter and merely, promotion is granted does not mean that the applicant cannot be prosecuted for the misconduct. Past conduct can be considered in case of misconduct of grave nature for adding weight to the decision of imposition of penalty/punishment. In terms of Supreme Court judgment in the case of National Fertilizers Limited and Others Vs. P.K. Khanna, 2005 (7) SCC 597, question of recording reasons by the Appellate Authority, if there is concurrence with the findings recorded by the Inquiry Officer does not arise. The penalty is not shockingly disproportionate to the charges proved against the applicant. They, 11 OA No.268/2011 therefore, have prayed for dismissal of the application.
15. The applicant filed rejoinder contending that the relevance of the documents was pointed out. Therefore, he should have been permitted to adduce the defence evidence. Since he was not permitted to adduce the defence evidence, prejudice has been caused to him. He further contended that examination-in-chief was not conducted. Had the examination-in- chief been conducted, especially of Miss H.B. Parkhe and Smt S.B. Bhalerao, certainly there would have been deviations. The applicant was not provided with the complaints. He was not provided the inspection of these complaints by the Inquiry Officer. He contended that by non-supply of the said documents, a presumption can be raised that the contents of the complaints were unfavourable to the department or that no complaint alleging misconduct was ever made by Smt S.B. Bhalerao and Miss H.B. Parkhe and still the applicant is punished. This is the prejudice caused to the applicant for non-supply of copy of complaint. Except this, he has not made out any new points. He has filed additional rejoinder raising the same points. The respondents have also filed additional affidavit in reply raising the same contentions.
16. The Inquiry Officer held that charge of Article No.1 has not been proved beyond reasonable doubt. He held that language and tenor of the letter dated 07th February, 2001 of the applicant shows that he acted in a discourteous manner in performance of his official duties in violation of Rule 3(A)(a) of the CCS (Conduct) Rules. It has held that the prosecution 12 OA No.268/2011 has relied upon the inquiry report dated 15th September, 1995 of the Additional Commissioner of Income Tax, Range III, Aurangabad and another Inquiry report dated 03rd November, 2000 of the ITO, Ahmednagar. About the said reports dated 15th September, 1995 and 03rd November, 2000, the Inquiry Officer observed that only few of the representations/allegations of the CO were examined and even they are not part of the documents relied upon by the prosecution for framing of the charges. Therefore, it is not possible to have an idea of the exact nature of the allegations made by the applicant in those representations which were examined. Therefore, the Inquiry Officer held that the charges are not proved beyond reasonable doubt but charge of using intemperate language is proved. So far as charge No.II is concerned, the Inquiry Officer has held that the applicant used abusive language such as "Dandha Zaala Ka" against Smt. S.B. Bhalerao and "Konachya Potaat Konacha Garbh" which is a parody of a popular Marathi song. The Inquiry Officer also held that the applicant used the 'words' "Bolav Tuzya Kontya Mardala Bolawate", "Kontya Yarala Bolawate" against Ms. H.B. Parkhe. He, therefore, held that these words were abusive and unbecoming of a Government servant. He also held that Ms. Parkhe had sought police protection against the applicant. In respect of charge No.III, the Inquiry Officer has held that the applicant is in the habit of making representations to the Higher Authorities without routing the same through proper channel. The applicant was given specific instructions by Additional 13 OA No.268/2011 Commissioner of Income Tax, Range 3, Aurangabad vide his letter dated 12th October, 2000 to refrain from such activities but he continued with his behaviour. The Inquiry Officer, therefore, held that this charge was also proved. In respect of charge IV, Inquiry Officer held that the applicant despite having been given specific instructions continued to send representations on matters not related to his official duties. The Inquiry Officer further held that charge No.V is not fully proved but the charge relating to showing disrespect to superior officers is proved. In respect of charge No.VI, the Inquiry Officer held that the applicant had levelled serious allegations of bribery against the senior officers for recruitment of persons under 1/6 scheme without any evidence against UDC Shri B.M. Salgare. The Inquiry Officer held that charge No.VII was proved. The Inquiry Officer has held that charge No.VIII was not proved.
17. The Disciplinary Authority disagreed with the findings of the Inquiry Officer as regards Article Charge No.1. According to the Disciplinary Authority (DA), the Inquiry Officer held that the prosecution could not prove the charge beyond reasonable doubt. According to the Disciplinary Authority, the standard of proof is not beyond reasonable doubt but it is the preponderance of probability. According to the Disciplinary Authority, this is not a criminal trial and law of evidence does not apply in the departmental proceedings. No charge is proved beyond doubt in departmental enquiry. With respect to other charges, the Disciplinary Authority agreed with the report of the Inquiry Officer. 14 OA No.268/2011 Considering the contents of his application before Central Administrative Tribunal that if the inquiry proceedings are dropped, the applicant would withdraw all the allegations, the Disciplinary Authority imposed the major penalty of compulsory retirement under Rule 11(vii) of the CCS(CCA) Rules, 1965.
18. The applicant preferred appeal against the order of the Disciplinary Authority. The Appellate Authority (AA) dismissed the appeal. According to the Appellate Authority, Charge No.I has been proved. So far as Charge No.II is concerned, the Appellate Authority agreed with the findings of the Inquiry Officer. The Appellate Authority also agreed with the findings of the Inquiry Officer with respect to Article of Charge Nos.III, IV, V, VI, VII & VIII.
19. The applicant has challenged all these three orders before this Tribunal. The applicant has filed written submissions. He has also orally argued for sometime. We have heard learned counsel Shri V.S. Masurkar for the respondents.
20. Party in person contended that the CCS(CCA) Rules are not followed by the Inquiry Officer, Disciplinary Authority and Appellate Authority. All the three authorities have considered extraneous material. Principles of natural justice have not been followed. There was no fair play in the inquiry and passing penalty order. The applicant was not permitted to adduce defence evidence. He submitted that the complaints made by him ought to have been investigated through vigilance 15 OA No.268/2011 department of the CCIT with the help of CBI and CVC authorities as per the procedure laid down. Those complaints have been closed without any action in terms of the Vigilance Manual. He made eight complaints against ladies regarding corruption and nefarious activities but they have not been investigated. The applicant pointed out that the complaints of the ladies relied upon by the Disciplinary Authority and Inquiry Officer dated 11th October, 1996 have been lost. No preliminary inquiry was held with respect to charges Nos.III, IV, VI & VII. Charge Nos.I, V & VIII are already treated as disproved for want of preliminary inquiry. The applicant contended that systematic plan was being hatched to implicate him in a serious case by asking him to violate Supreme Court's stay order in Sugar Factory cases and collect recovery from the Sugar Factories. The applicant, therefore, had filed complaint to the CBDT, New Delhi stating therein that he was being pressurized to collect recoveries from the Sugar Factories. This was the cause for the Disciplinary Authority to issue chargesheet to the applicant. He contended that this Tribunal had observed that the charges are minor. Chargesheet has been rectified without any authority of law. He contended that he did not abuse any of those two ladies but these two ladies themselves abused him. Shri S.L. Bhingardive is a witness to all these incidents. However, the Inquiry Officer has not permitted the applicant to lead defence evidence. The applicant had filed application for examining Shri Bhingardive as a defence witness but his application was rejected. If Shri Bhingardive had been examined, the 16 OA No.268/2011 applicant would have had the opportunity to disprove the charge against him of abusive conduct in respect of these two ladies. Smt Parkhe and Ms. Bhalerao wanted to withdraw the complaint but the Presenting Officer shouted loudly and stated that he would not allow them to do so. The applicant pointed out that the Presenting Officer and Inquiry Officer replied on behalf of the witnesses and added their own words. The Presenting Officer raised objections on many occasions and the Inquiry Officer allowed the same without cogent reasons. All these facts were informed by the applicant vide representations dated 22nd May, 2006. The Inquiry Officer did not question the applicant generally on the circumstances appearing against him in the evidence. He has thus violated Rule 14 (18) of CCS(CCA) Rules. The Inquiry Officer has not given the decision as per Articles of charge. The Inquiry Officer has ommitted certain facts from the charge and added certain facts in the charge. The Inquiry Officer himself framed sub charges in respect of charge Nos.I & V and himself quoted discourteous sentences in the said charges which were not treated by the Disciplinary Authority as discourteous . The applicant further contended that the Inquiry Officer has followed an unusual procedure. Before witnesses were examined, the Presenting Officer has put in his brief. He submitted that this Tribunal and the High Court had directed the Inquiry Officer to consider all his submissions but the Inquiry Officer has not considered 26 submissions made by the applicants. The Disciplinary Authority has not given decision on 7 charges out of 8 17 OA No.268/2011 charges and thus violated CCS(CCA) Rules 15(2A), 17 and 15(4). He submitted that the Disciplinary Authority has disagreed with the report of the Inquiry Officer without issuing show cause notice to the applicant and held that charges are proved. The Inquiry Officer has observed in his report that there is substance in the complaint of the applicant. Even then, the applicant has been held guilty by the Disciplinary Authority and Appellate Authority ignoring this finding of the Inquiry Officer. He submitted that when defence side is not opened, the defecto prejudice need not be shown. For this purpose, he has placed reliance on the case of State Bank of Patiala and Others Vs. S.K. Sharma, 1996 SCC (L&S)
717. Since applicant was not permitted to lead defence evidence, prejudice has been caused to him. If relied upon documents are not given, prejudice is caused to the applicant. He placed reliance on the case of Government of A.P. Vs. A. Venkata Raidu, (2007) 1 SCC (L&S) 254. None of the abusive words are proved by any witnesses. Even then, the respondents have alleged that the applicant has caused sexual harassment to these two ladies. He submitted that the complaints he made were not investigated by the department. The defence documents and defence witnesses cannot be rejected unless those are dangerous to security of the nation. His application has been rejected arbitrarily. The Presenting Officer and the Inquiry Officer virtually pressurized the ladies to depose against the applicant. The Presenting Officer and the Inquiry Officer replied on behalf of these two ladies. The Inquiry Officer even added his 18 OA No.268/2011 own words while translating their statements. He contended that he has signed those statements but the signature is under protest. He submitted that the incidents quoted by these two ladies are the only instances. Nothing happened thereafter. His relation with them are very cordial. Ms H.B. Parkhe had even invited him for the marriage of her brother in the year 1998. In the meanwhile, the applicant was promoted. Once the promotion is given, the applicant should not have been compulsorily retired. Witness Shri C.R. Kadbhane was not summoned for the cross-examination but his affidavit has been considered by the Inquiry Officer. He further submitted that the examination-in-chief of these two ladies were not conducted. Therefore, the principles of natural justice have been violated. He submitted that there is an inordinate delay in issuing chargesheet. This incident related to Smt Bhalerao and Ms H.B. Parkhe happened in the year 1996 and the chargesheet has been submitted in the year 2002. No explanation is forthcoming from the respondents as to why inordinate delay was committed in submitting the chargesheet. Chargesheet was rectified after four years of issuing it. Why there was delay in rectifying the chargesheet is not explained by the respondents. The applicant has placed reliance on the case of P.V. Mahadevan Vs. M.D. Tamil Nadu and in the case of Union of India Vs. V.K. Sareen, Writ Petition No.4757 of 2007 for the proposition that the delayed disciplinary proceedings need to be quashed. The Disciplinary Authority has not relied upon documents enclosed with 19 OA No.268/2011 chargsheet. Charge No.II deserves to be set aside and quashed. The respondents stated that charge No.II is not based on the complaints of the ladies dated 11th October, 1996 but it is based on preliminary inquiry conducted. The prosecution brief is must as per decision in the case of Mohammad Habibul, 1973 (1) SLR 321 Calcutta. The Appellate Authority has considered all extraneous materials. The original inquiry record is lost and duplicate record is created. In the absence of the original record inquiry should not have been conducted. Permission from CVC or from CCIT was not taken before issuing chargesheet. The chargesheet, therefore, needs to be quashed. The Inquiry has been completed by producing duplicate record. The Inquiry Officer, Disciplinary Authority and Appellate Authority are responsible for forgery. Preliminary inquiry report regarding Charge Nos.I & V was prepared by immediate superior which is not permissible as per Supreme Court decision in the case of A.K. Kripak Vs. Union of India, AIR 1970 Supreme Court 150. On all these counts, the applicant prayed for allowing the OA and setting aside the orders of all the three authorities.
21. The applicant placed reliance on the following cases:-
(i) Narayan Dutt & Ors. Vs. State of Punjab, Civil Appeal No.2058/2011 and State of Punjab Vs. Rajinder Pal Singh, Civil Appeal No.2059/2011 decided on 24th February, 2011.
(ii) State of West Bengal & Ors. Vs. Biswambhar Basu , APOT No.162 of 2010, W.P. No.1543 of 2008.
(iii) State of Haryana And Anr. vs. Rattan Singh, AIR 1977 Supreme Court 1512.
(iv) U.P. State Road Transport Corp. Vs. Suresh Chand Sharma , Civil 20 OA No.268/2011 Appeal No.3086 of 2007 dated 26th May, 2010 Supreme Court.
(v) State Bank of India Vs. Bidyut Kumar Mitra & Ors, Civil Appeal No.....of 2011 arising out of SLP (C) No.11590/2009.
(vi) L.K. Verma Vs. H.M.T. Ltd. & Anr, Appeal (Civil) No.881 of 2006 Supreme Court.
(vii) Usha Breco Mazdoor Sangh Vs. Management of M/s. Usha Breco Ltd., Appeal (Civil) 3051-3052 of 2008.
(viii) Chairman-cum-M.D., T.N.C.S. Vs. K. Meerabai, Appeal (Civil) No.623 of 2005 Supreme Court.
(ix) Sushil Kumar Singhal Vs. Regional Manager, Punjab National Bank, Civil Appeal No.6423 of 2010, Supreme Court.
(x) Punjab National Bank & Ors. Vs Kunj Behari Misra & Anr., Civil Appeal No.7433 of 1995 Suprme Court.
(xi) State Bank of India & Ors. Vs. K.P. Narayanan Kutty, AIR 2003 SC 1100.
(xii) State Bank of India & Ors. Vs. D.C. Aggarwal & Another, AIR 1993 Supreme Court 1197.
(xiii) Collector of Customs Vs. Mohd. Habibul Haque, 1973(1) SLR CAL 321
(xiv) Union of India, through the General Manager, Central Railway & Others Vs. Shri Nasim Ali Abid Ali, Bombay High Court.
(xv) P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board, 2005(2) SC Services Law Judgments 186.
(xvi) Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Orthers, 2005(7) Supreme Court Cases 605 (xvii) Apparel Export Promotion Council Vs. A.K. Chopra, decided on 20 January, 1999 Supreme Court.
(xviii) National Fertilizers Ltd. Vs. P.K. Khanna, AIR 2005 SC 3742. (xix) Commissioner and Secretary Vs. C. Shanmugam, (1998) 2 SCC
394. (xx) Purushottam Kumar Jha Vs. State of Jharkhand & Ors, Appeal (Civil) 2234 of 2006 Supreme Court.
(xxi) Divisional Controller, KSRTC Vs. M.G. Vittal Rao, 2011 STPL (Web) 1000 SC.
(xxii) The State of Karnataka & Anr. Vs. T. Venkatramanappa, Supreme Court (xxiii) R.L. Rathore Vs. Delhi Power Supply Co. Ltd, 2004(2) Service Law Journal.
(xxiv) Union of India Vs. Shri V.K. Sareen, W.P.(C) No.4757 of 2007 Delhi High Court.
21 OA No.268/2011
22. Learned counsel Shri Masurkar for the respondents submitted that the scope of judicial review is very limited. It is not permissible for the Tribunal to appreciate the evidence. It can only see whether principles of natural justice are followed, whether findings are perverse and whether the punishment imposed is disproportionate to the charges proved.
23. Shri Masurkar further submitted that the Inquiry Officer and the Disciplinary Authority have given cogent reasons for arriving at the conclusion that the applicant had made unsubstantiated allegations against superior officers. Some of the complaints were investigated and they were found to be false. He submitted that the applicant used abusive words against these two ladies. He submitted that the charge of complaints and representations sent to all authorities are proved. He submitted that the applicant had tried his level best to delay the inquiry proceedings. The Disciplinary Authority has recorded disagreement and held that the charge of reckless allegation against superior officers has been proved. He placed reliance on the following cases:
(i) Praveen Kumar Vs. Union of India, (2020) 9 Supreme Court Cases 471;
(ii) Deputy General Manager (Appellate Authority) and Others Vs. Ajai Kumar Srivastava, (2021) 2 Supreme Court Cases 612.
24. We have considered the submissions made by applicant party in person. The charges against the applicant have been detailed above. The charge against the applicant is that he had been continuously and consistently making unsubstantiated, wild and reckless allegations against 22 OA No.268/2011 his colleagues and superiors without proof or evidence. The Inquiry Officer has held as under:-
" (i) In respect of this Article of charge, the Prosecution has relied upon inquiry report dated 15/09/1995 of the Addl.CIT, Range 3, Aurangabad and another inquiry report dated 03/11/2000 of the ITO, Wd.1(5), Ahmednagar. From the report dated 15/09/1995 and 03/11/2000, it is observed that only few of the representations/allegations of the CO were examined and even they are not part of the documents relied upon by the prosectuion for framing of charges. Therefore, it is not possible to have an idea of the exact nature of allegations made by the CO in the said representations which were examined. Moreover, the yeardstick/basis adopted by the prosecution for only selecting the said representations/allegations for examination is also not clear.
(ii) The report dated 15/09/1995 is of an officer against whom the CO has filed a number of representations/allegations. Therefore, there is some merit the contention of the CO that a person cannot be a judge in his own case.
(iii) In the report dated 15/09/1995 of Addl. CIT, Range-3, Aurangabad, it has been indicated that there may be some truth in the allegations made by the CO in his representation dated 17/04/1995 that although disposal was shown in the MPR, the acutal disposal were at a later date. Similarly, it has been indicated in this report that there may be some truth in the allegations made by the CO in his representation dated 06/09/1995 that in isolated cases refunds were not being issued strictly as per the norms.
(iv) In the report dated 03/11/2000 of ITO, Ward 1(5), Ahmednagar, it has been indicated that there may be some truth in the allegations made by the CO in his representation dated 14/07/2000 with regard to non-maintenance of Inward Register in respect of Tapal in the O/o. the DCIT (Admn.), Ahmednagar, Wards, etc. And also with regard to the preparation of Blue Book, Arrear DCRs etc. from outside agencies, not being under the supervision and control of the Assessing Officers.
(v) On perusal of the aforesaid two reports dated 15/09/1995 and 3/11/2000, it is observed that in respect of number of allegations made by the CO, the preliminary inuiry officers rather than examining the veracity of various allegations, have only stated that the CO has no locus standi to comment on issues which do not pertain to his area of work.
(vi) In the submission filed by the PO, a reference has been 23 OA No.268/2011 made to certain extracts of the CO's letter dated 03/02/2001 to show that the CO responded with further allegations when he was aksed to give his say on the said report dated 03/11/2000 of ITO, Ward 1(5), Ahmednagar. However, the said letter dated 03/02/2001 of CO has not been relied upon by the prosecution while framing this Article of Charge."
25. These observations of the Inquiry Officer clearly indicate that only few of the representations/allegations of the CO (Charged Officer) were examined and even they are not part of the documents relied upon by the prosecution for framing of the charges. Therefore, it was not possible for the Inquiry Officer to have an idea of the exact nature of the allegations made by CO in the said representation. In the report dated 15 th September, 1995, it has been indicated that there may be some truth in the allegations made by the applicant/CO in the representation dated 17 th April, 1995 that although disposal was shown in the MPR, the actual disposal were at a later date. So also in the report dated 03 rd November, 2000 of the ITO, Wd.1(5), Ahmednagar, it has been indicated that there may be some truth in the allegations made by CO in his representation dated 14th July, 2000 with regard to non-maintenance of Inward Register in respect of Tapal. On this basis, the Inquiry Officer concluded that the prosecution could not prove the charge No.1 beyond reasonable doubt. In criminal trial, the charge has to be proved beyond reasonable doubt. In departmental inquiry, standard of proof is not beyond reasonable doubt but of preponderance of probability. The Inquiry Officer has to only see whether there is some evidence or there is no evidence at all. On the basis of the observations 24 OA No.268/2011 made by the Inquiry Officer, it can be said that there was no evidence to show that the applicant was making unsubstantiated, wild and reckless allegations against the superiors. On the contrary, the report discussed above clearly indicate that there was some truth in the allegations made by the applicant.
26. The Disciplinary Authority disagreed with the conclusion of the Inquiry Officer. The Disciplinary Authority proceeded only on the ground that the Inquiry officer applied the standard of proof beyond reasonable doubt while answering the charge No.I. The other observations of the Inquiry Officer have not been considered by the Disciplinary Authority. The Inquiry Officer has elaborately discussed the deficiencies in the evidence led by the prosecution. He has observed from the report dated 15 th September, 1995 that only few of the representations were examined and even they are not part of the documents relied upon by the prosecution for framing of the charges.
27. When the Disciplinary Authority records disagreement note, it has to serve it on the CO and hear the CO on it. This procedure has been delineated in the case of Deputy General Manager (Appellate Authority) and Others Vs. Ajai Kumar Srivastava (supra) relied on by learned counsel for the respondents, Shri V.S. Masurkar. In para 26 Supreme Court has made following observations:-
"26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings 25 OA No.268/2011 recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry."
This procedure has not been followed by the Disciplinary Authority. The record does not show that the Disciplinary Authority has recorded the reasons for disagreement. Therefore, we find substance in the contention of the applicant that the charge of making unsubstantiated, wild and reckless allegations against colleagues and superiors is not proved.
28. In the case of Ajai Kumar Srivastava (supra), Supreme Court has discussed the scope of judicial review. In paras 24 & 25, the following observations have been made by the Supreme Court.
"24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some 26 OA No.268/2011 evidence and authority has power and jurisdiction to reach finding of fact or conclusion."
29. On this principle, the evidence will have to be examined.
30. Charge No.II against the applicant is that he had indulged in abusive and threatening behaviour towards Ms. H.B. Parkhe and Ms. S.B. Bhalerao in the year 1996. For this purpose, the prosecution examined Ms. H.B. Parkhe, Ms. S.B. Bhalerao and examined Shri R.B. Pande, ITI. Ms. S.B. Bhalerao had filed a complaint on 11th October, 1996 with ACIT, Circle- 1(2), Ahmednagar and which was subsequently confirmed in course of her statement recorded by DCIT, Range-3, Aurangabad on 19th November, 1996. As per the said statement dated 19th November, 1996, at around 4:30 pm on 10th October, 1996, the applicant without any provocation used abusive and objectionable language related to her private life on the 1 st floor of the IT Office at Ahmednagar. She further stated in the said statement dated 19th November, 1996 that the applicant was harassing her for quite some time but she decided not to lodge a formal complaint. When it crossed all possible tolerable limits, she took the decision to make a formal complaint dated 11th October, 1996 with ACIT, Circle-1(2), Ahmednagar.
31. On 11th October, 1996, the applicant used threatening, abusive and foul language against lady colleague Ms. H.B. Parkhe, in the presence of a number of office staff and outsiders. In respect of the incident, Ms. H.B. Parkhe filed a complaint on 11 th October, 1996 with ACIT, Circle-1(2), Ahmednagar and which was subsequently confirmed in the course of her statement recorded by DCIT, Range-3, Aurangabad on 19th November, 27 OA No.268/2011 1996. As per the statement dated 19th November, 1996, on 11th October, 1996 the applicant without any provocation started using abusive and foul language against her while she was trying to contact her father over telephone. It was further stated in her statement that the applicant would have physically assaulted her but for the timely intervention of Shri Salim Shaikh, a Group D employee then working at Ahmednagar Office. It was also stated in her statement that the applicant was harassing her for quite some time. But she preferred to remain silent. She decided to make a formal complaint, when it crossed all possible tolerable limits. Ms. S.B. Bhalerao was examined on oath on 11th May, 2006 and she confirmed the contents of her statement dated 19th November, 1996 to ACIT/DCIT, Range-3, Aurangabad.
32. In the cross-examination, Smt S.B. Bhalerao stated that she had come to the first floor to take her colleague Ms. H.B. Parkhe for having tea. Another colleague Mr. Pande was around and three of them were chatting when the applicant commented in Marathi "Dhandha Zaala Ka". Shri Pande and she objected to this indecent comment. The applicant had also used extremely objectionable language when she was pregnant for the second time in the year, 1995. It was her indirect character assassination by the applicant by singing "Konachya Potaat Konache Oze" (The witness explained that it was a parody of a popular Marathi song). She stated in cross-examination that at that time at Ahmednagar office, there were only two ladies and only she was pregnant at that time. Her cross-examination 28 OA No.268/2011 shows that the applicant put a question to Smt. Bhalerao about filing of false complaint against him. Her reply was that she did not file any complaint with any authority till her tolerance level could take it. The letter dated 11 th October, 1996 addressed to CCIT, Pune and circulated to the officers as well as staff of Ahmednagar by the applicant proved to be the straw on the camel's back.
33. Shri R.D. Pande who was a witness to the incident has corroborated the testimony of Smt S.B. Bhalerao. He stated that on 10 th October, 1996 at about 5.00 to 5.15 pm, the applicant abused Smt. Bhalerao who was sitting with Ms. Parkhe. The applicant had used unparliamentary words. He found it difficult to reproduce those words because her statement was being recorded by a lady. Thereafter, Smt. Bhalerao started crying. Shri R.D. Pande had requested the applicant not to use such words to lady colleague.
34. He has further stated in the cross-examination that at 4.30 to 4.45 pm on 10th October, 1996, he, Ms. S.B. Parkhe and Smt. Bhalerao were talking. That was a day of her joining the duty. Smt Bhalerao asked Shri Pande to order tea for her. Shri Pande said that Smt Bhalerao should offer tea and thereafter she started laughing. The applicant asked as to why she was laughing and said "Áaj Dhanda Jast Jhala Disto" and then Smt. Bhalerao got annoyed.
35. The applicant submitted that "Dhanda Jast Jhala Disto" was misinterpreted as the attack on the modesty of Smt Bhalerao. He tried to down play the intensity of the statement by contending that it was related to 29 OA No.268/2011 corruption. He argued that he did not utter any such words. But even if it is assumed for the sake of the argument that these words were uttered, it will be a far fetched inference that these words were uttered for violating the modesty of Smt. Bhalerao. We do not find any substance in this submission. Even if it is interpreted the way, the applicant is interpreting, it is an attack on the integrity of Smt Bhalerao. His subsequent conduct shows that these words were uttered to violate her modesty. The applicant addressed a letter dated 27th September, 2006 to the Commissioner of Income Tax-I, Pune mentioning therein a list of defence documents and defence witness with relevance. In this letter, he has made scurrilous allegations against Smt Bhalerao. In the said communication, he has stated that he had filed a complaint against Smt Bhalerao and stated about her illicit relations with officials and outsiders. Smt Bhalerao is his classmate. She had love affair with Shri Arun Lahamge. These statements show that the applicant was making allegation on the chastity of Smt Bhalerao. Therefore, his subsequent conduct shows that he had used words "Dhanda Zala Ka"with intent to violate her modesty.
36. The contention of the applicant is that Smt Bhalerao did not mention in her complaint the specific words used by the applicant against her. Therefore, this charge is not proved against the applicant. We do not find any substance in this argument. The words "Dhanda Zala Ka" have been stated by Smt Bhalerao in the cross-examination conducted by the applicant. Once these statements are brought on record, the enquiry officer 30 OA No.268/2011 was within his rights to consider those statements against the applicant.
37. Ms. H.B. Parkhe has stated in the cross-examination that after reading the contents of the applicant's letter dated 10 th October, 1996 addressed to CCIT, Pune, she was mentally and emotionally very upset. She wanted to speak to her father who was at that point of time in Karjat. She had booked a trunk call. At that time, the applicant came near her table where she was trying to book a trunk call and said in Marathi "Bolav Bolav Tuzya Konya Mardla Bolavte". She replied that she was not talking with the applicant. The applicant again said "Baloav Tuze Konte Yaar Ahet Tyana Bolav" At that time, 8 to 10 staff members and outsiders were present.
38. This incident has been confirmed by witness Shri Salim Shaikh. He has stated in the cross-examination that he was very much present at the time of the incident. He also stated that the applicant said "Kon Mard Asel to Bolwa". He also confirmed that the applicant used to sing obscene of Marathi song when Ms. Bhalerao was pregnant. From the statement of Smt H.B. Parkhe and Shri Salim Shaikh, it is clear that the applicant had used the aforestated words.
39. The applicant submitted that he had made an application for calling Shri S.L. Bhingardive as a witness. According to the applicant, the said Bhingardive had filed an affidavit stating therein that he was present when the alleged incident took place. The applicant submitted that instead of he abusing the witnesses Smt Bhalerao and Ms. Parkhe, the applicant was abused by these two ladies. But the applicant was not permitted to examine the said Shri 31 OA No.268/2011 Bhingardive. Therefore, the principles of natural justice have not been followed. The Inquiry Officer, Disciplinary Authority and Appellate Authority have rejected the contentions of the applicant on the ground that Shri Bhingardive in his affidavit mentioned that he will give his evidence only when the inquiry is conducted through CVC. The Inquiry Officer has observed that Shri Bhingardive has put a condition of giving evidence before CVC, summons was not issued to him. The said affidavit is placed on record. Shri Bhingardive has stated in his affidavit that he is ready to give evidence only if inquiry is conducted by CVC. We, therefore, do not find any thing wrong in not issuing summons by the Inquiry Officer to said Shri Bhingardive.
40. Moreover, what is important is to find out whether the incident had really taken place. From the evidence of these two witnesses i.e. Smt Bhalerao and Ms. Parkhe, it is clear that the incident did take place. The applicant had used abusive words against these two ladies. Therefore, even if Shri Bhingardive had been examined, we do not think that the fate of this inquiry would have changed. Therefore, non-examination of Shri Bhingardive will not have any adverse effect on the conduct of the inquiry by the Inquiry Officer.
41. The applicant submitted that examination in chief of Smt Bhalerao, Ms. Parkhe, Shri Salim Shaikh and Shri Suresh Munot was not recorded and directly he was asked to cross-examine the witnesses. The record shows that the applicant had confirmed the contents of her statement in the letter dated 19th November, 1996 addressed to ACIT/DCIT, Range 3, Aurangabad. The applicant submitted that the procedure followed by the Inquiry Officer was 32 OA No.268/2011 unknown to law. Therefore, no reliance can be placed on such a statement.
42. Learned counsel Shri Masurkar invited attention of this Tribunal to OM No.134/7/75-AVD.I, dated 11th June, 1976 at page 67 of Swamy's compilation of CCS(CCA) Rules, Edition 34.
"2. On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accord with the principles of natural justice to take on records the statements made by witnesses during the preliminary inquiry/investigation at oral inquiries, if the statement is admitted by the witness on its being read out to him. It is felt that by adopting this procedure, it should be possible to reduce the time taken in conducting departmental inquiries. It has, therefore, been decided that in future, instead of recording the evidence of the prosecution witnesses de novo, wherever, it is possible, the statement of a witness already recorded at the preliminary inquiry/investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance, i.e., at least three days before the date on which it is to come up at the inquiry."
Thus the statements made by the witnesses during the preliminary inquiry/investigation at oral inquiries may be relied upon, if the contents are admitted by the witnesses. Therefore, no fault can be found with the procedure adopted by the Inquiry Officer.
43. The applicant further submitted that both Smt Bhalerao and Ms. Parkhe were ready to withdraw the complaint but the Inquiry Officer prevented them from doing so. He submitted that it shows that the Inquiry Officer was interested in holding the applicant guilty. The Inquiry Officer has dealt with this aspect of the matter by giving cogent reasons. He has observed that the applicant did not raise this objection when cross- examination of Smt Parkhe and Smt Bhalerao was completed. He raised 33 OA No.268/2011 this objection after 10 days, after the cross-examination was over. Therefore, in our considered opinion, if the Inquiry Officer had not allowed the request to withdraw the complaints of the two ladies, the applicant should have raised the objection then and there only. He signed the statements of both these witnesses without raising any protest. Therefore, his objection does not have any substance.
44. The Inquiry Officer has further observed that both these witnesses when the question of taking back the complaints was asked to them, they replied that in any circumstances, they would not withdraw the complaints. Even if it is assumed for the sake of argument that these two ladies had shown their willingness to take back the complaint still the applicant doesn't stand to gain because what has to be seen is whether the incident had happened or not. The incident did happen as is evident from the statement of these two ladies and the statement of Shri Salim Shaikh.
45. The applicant further argued that Shri Salim Shaikh was not present at the spot of incident as he was not present in the office on that date which is evident from the attendance register. He submitted that attendance register was tampered and it was subsequently shown that Shri Salim Shaikh was present. Even if statement of Shri Salim Shaikh is excluded from consideration, what transpires is that these two ladies have proved the incident. All the statements were extracted by the applicant from their cross- examination. Therefore, their solitary statement is enough to prove the guilt of the applicant.
34 OA No.268/2011
46. He further submitted that the Disciplinary Authority has mechanically passed the order and accepted the report of the Inquiry Officer. He submitted that the Disciplinary Authority has not given any finding on charge No.II. We do not find any substance in his argument. In para 27, he has given finding regarding this charge. Therefore, this argument also needs to be rejected.
47. He further submitted that the original statements of Ms. Bhalerao and Ms. Parkhe were not produced. On perusal of the record, it is seen that those are the carbon copies. In terms of Section 64 of the Evidence Act, carbon copies have the status of original as they are prepared by one process. Therefore, this contention of the applicant also is without any substance. He further submitted that the incident took place in the year 1996 and the inquiry was started in the year 2001 i.e. 18 th October, 2001. He submitted that this delay is fatal. He further submitted that in the meantime he was promoted as Inspector. His promotion and delay in initiating inquiry are fatal to the prosecution. We do not approve of this submission. Simply because he was promoted in the meantime, it does not mean that inquiry cannot be started subsequently. It only shows that at the time of his promotion, no inquiry was pending against him. The department is at liberty to initiate inquiry after the promotion of the employee. Supreme Court in the case of State of Madhya Pradesh Vs. Akhilesh Jha and Another, Civil Appeal No.5153/2021 arising out of SLP (C) No.4655 of 2020 has observed thus:
"Every delay in conducting a disciplinary enquiry does not, ipso facto, 35 OA No.268/2011 lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise.
48. In the case at hand, what prejudice is caused to the applicant has not been explained by him. He has to explain that de-facto prejudice has been caused to him. Nothing has been brought on record to show that because of the delayed inquiry, any prejudice has been caused to him. Therefore, this submission of the applicant also is of no significance.
49. He further submitted that he was not provided with the copies of complaints dated 11th October, 1996 allegedly made by Smt Bhalerao and Ms. Parkhe to the Assistant CIT, Ahmednagar. Even it is accepted for the sake of argument that he was not provided with the copies of complaints dated 11th October, 1996, the applicant has not shown as to how de-facto prejudice has been caused to him. Both these ladies have been cross- examined by him at length.
50. Learned counsel Shri Masurkar placed reliance on the case of Union of India and Others Vs. Alok Kumar, 2010 (2) SCC (L&S) 22.
"85. The Doctrine of de facto prejudice has been applied both in English as well as in Indian Law. To frustrate departmental inquiries on a hypertechnical approach have not found favour with the Courts in the recent times. In S.L. Kapoor v. Jagmohan [1980 (4) SCC 379], a three-Judge Bench of this Court while following the principle in Ridge v. Baldwin stated that if upon admitted or indisputable facts only one conclusion was possible, then in such a case that principle of natural justice was in itself prejudice would not apply. Thus, every case would have to be examined on its own merits and keeping in view the statutory rules applying to such departmental proceedings. The Court in S.L. Kapoor (supra) held as under:36 OA No.268/2011
"18. In Ridge v. Baldwin [1964 AC 40, 68 : 1963 2 All ER 66, 73] One of the arguments was that even if the appellant have been heard by the Watch Committee nothing that he could have said could have made any difference. The House of Lords observed at (p. 68):
"It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the watch committee would, in my view, fail on the facts. It may well be that no reasonably body of men could have reinstated the appellant. But at between the other two courses open to the watch committee the case is not so clear. Certainly, on the facts, as we know them the watch committee could reasonably have decided to forfeit the appellant's pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course."
86. Expanding this principle further, this Court in K.L. Tripathi v. State Bank of India[(1984) 1 SCC 43] held as under:
"31....it is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."
87. In ECIL v. B. Karunakar [(1993) 4 SCC 727], this Court noticed the existing law and said that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are neither incantations to be invoked nor rites to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or not on account of denial of report to him, has to be considered on the facts and circumstances of each case. The Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons.
88. It will be useful to refer to the judgment of this Court in the case of Haryana Financial Corporation v. Kailash Chandra Ahuja [2008 (9) SCC 37 OA No.268/2011 31] at page 38 where the Court held as under:
"21. From the ratio laid down in B. Karunakar, it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."(emphasis in original)
89. The well-established canons controlling the field of bias in service jurisprudence can reasonably extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates statutory violations. It will not be permissible to set aside the departmental inquiries in any of these classes merely on the basis of apprehended prejudice.
51. The applicant has cross-examined the witnesses at length. He has not explained as to how defacto prejudice has been caused to him. Merely alleging that prejudice has been caused is not enough. Apprehended prejudice is not a ground for vitiating the inquiry. The applicant must plead and show that the defacto prejudice was caused to him because of the violation of the rules by the Inquiry Officer. No such defacto prejudice is shown to have been caused. Prejudice as a matter of fact has to be shown to have been caused. Since this is lacking in the matter at hand, submission of the applicant cannot be considered.
38 OA No.268/2011
52. From the above discussion, it is crystal clear that the applicant had used the abusive words against Smt. S.B. Bhalerao and Ms. H.B. Parkhe. It is worthy of being noted that during the cross-examination of these two witnesses, the abusive words used by the applicant have been stated by the witnesses Smt S.B. Bhalerao and Ms. S.B. Parkhe. To sing a parody 'Konachya Potat Konacha Garbh' with reference to a pregnant woman and accusing her of illicit relationship and using objectionable and indecent words. 'Bolav Tuzya Mardla Bolav' 'Bolav Tuzya Yarala Bolav'' against his lady colleague Smt Parkhe are the acts of extreme insensitivity. This is not only an insensitive act on his part but it also amounts to violation of their modesty. The applicant placed reliance on the case of L.K. Verma Vs. H.M.T. Ltd. & Anr, Appeal (Civil) No.881 of 2006 Supreme Court decided on 31st January, 2006. The decision of the Supreme Court instead of helping him goes against him. In this judgment, it is held that 'verbal abuse has been held to be sufficient for inflicting a punishment of dismissal'.
53. In the case at hand, the evidence of Ms. Parkhe and Smt Bhalerao unmistakably shows that the applicant had used the above stated words which are not only abusive but also violate the modesty of a woman.
54. It was the contention of the applicant before the Appellate Authority 'the words - Dhanda Jhaala Ka' means whether they received bribes which cannot be termed abusive. The Appellate Authority has properly dealt with this argument of the applicant in para 6.2 (viii). The meaning which the 39 OA No.268/2011 applicant wanted to draw, if it is accepted, goes to show that these are the abuses on the integrity of an employee. Therefore, this is a verbal abuse. However, the meaning which the applicant wants to ascribe to his words 'Dhanda Jhaala Ka' cannot be accepted for the reason that the applicant in the past had alleged that Smt Balerao had illicit relationship. If these words are considered on this background of allegation of illicit relationship, one can easily make out that the applicant had uttered these words with reference to her chastity. Therefore, in our considered opinion, the Disciplinary Authority, the Appellate Authority and the Inquiry Officer did not commit any error in holding that the charge of using abusive language against his lady colleagues is proved.
55. Another charge against the applicant was that he had made representation to higher authorities without adhering to the norms and procedures prescribed for the same.
56. The contention of the applicant is that most of the times, he followed the office procedures and forwarded the correspondence by following office procedures. In some cases, he had directly made correspondence to the higher authorities without adhering to the norms and procedures. The applicant does not dispute that he had made correspondence directly to higher authorities because the authorities to whom he had addressed the letters, did not take cognizance of those letters. The Inquiry Officer has made following observations in this regard:
"....(iii) As regards the CO's contention that representations relating 40 OA No.268/2011 to public interest and national interest can be submitted to any authority, the same may be acceptable depending on the genuineness and gravity of the information. However, as rightly pointed out by the PO, the CO has not been in a position to make any case of exceptional circumstance which warranted him to regularly bypass the prescribed channel for making representations. In any case, when specific and written instructions are given to a government servant, they have to be followed and any deviation from the given instruction is nothing but insubordination."
His observations make it clear that the applicant made correspondence to higher officers despite having been given specific instructions. The Inquiry Officer has rightly observed that this act is an act of insubordination. Therefore, Inquiry Officer has rightly concluded that this charge is proved.
57. As per charge No.IV, the applicant is in the habit of making representations on matters not related to his official duties. The Inquiry Officer has held as under :
"(i) As per the guidelines issued by CVC, the CO can definitely make representations relating to bribery and corruption but the same should contain factual details which are verifiable and the same should not be vague, absurd and baseless. However, in the case of the CO, the representations are frivolous and unsubstantiated which were made with an intention of disrupting the smooth running of office and none of them were substantiated with supporting evidences.
(ii) The CO vide letter dated 24/01/2001 of Addl. CIT, Range 3, Aurangabad was asked to show cause and explain his action of making representations not related to his official duties and he was also asked to provide evidences/factual details known to him on the basis of which he has alleged that a bribe of Rs.3 lakhs is to be paid to certain officers for recruitment under 1/6 scheme. In response, the CO submitted a letter dated 30/01/2001 containing inappropriate language and in a threatening tone. He also failed to furnish any evidence to support his allegation. With regard to the evidences to support his allegation, the CO commented that the same would be gathered by CVC and CBI. The CO has thus violated rule 3(1) (iii) of CCS(Conduct) Rules by acting in a manner unbecoming of a government servant.41 OA No.268/2011
(iii) The letter dated 12/10/2000 of Addl. CIT, Range 3, Aurangabad finds a mention in letter dated 24/01/2001 of Addl. CIT, Range 3, Aurangabad. In the letter dated 24/01/2001, it has been stated that vide letter dated 12/10/2000, the CO was given a specific instruction not to send representations directly to higher authorities. The PO therefore submitted that though the said letter dated 12/01/2000 of Addl.CIT, Range 3, Aurangabad is not a part of documents relied upon by the Prosecution, the contents of the same are relevant and which have been conveyed in the letter dated 24/01/2001, which is a part of the documents relied upon by the Prosecution."
58. On one hand, the Inquiry Officer says that the applicant is entitled to make representations relating to bribe and corruption as per CVC guidelines. We have gone through the record. From the record, it appears that the applicant has given representations giving the factual details. Therefore, it cannot be said that he had made representations not connected with the official duties. Therefore, this charge cannot said to be proved. The Inquiry Officer has held that the charge of making irresponsible and reckless allegations against his superiors and colleagues is not proved but charge relating to showing disrespect to the superior authorities is proved by the content, tone and tenor of the Appellant's reply dated 03 rd February, 2001. The Inquiry Officer has held that there is some merit in the contention of the applicant that inquiry against him should not have been conducted by the same officer against whom the applicant had made allegations. The Appellate Authority has also held that the inquiry is made by the officer against whom the applicant had made allegations of corruption. However, the Inquiry Officer has held that the charge of showing disrespect to higher authorities is proved. For this purpose, the 42 OA No.268/2011 Inquiry Officer has reproduced the contents of the reply of the applicant dated 03rd February, 2001:
"(i) All the officers and higher authorities are found biased, prejudiced minded, dishonest and corrupt and also found protecting each other in corruption matters;
(ii) As such all close relatives of officers and officials have been deputed for sweeping and cleaning that too after accepting bribe of Rs.1 lakh by Mr. P.K. Gaikwad and Mr. B.D. Mane.
(iii) This shows that whatever Mr. Mane, DCIT informed that Shri Mohanlal, CIT was to be given a bribe of Rs.3 lakh by Mr. Dasre for transferring the six scrutiny cases all of a sudden.....
(iv) I would further like to add that I am not a slave and you are not a dictator.....
(v) Since almost all officials are accepting bribe particularly Shri P.S. Patan,Notice server, A.K. Shiakh, UDC, Miss H.P. Barke, Smt H.B. Bhalekar, Shri S.Y. Chavan, Shri U.C. Ghumrae, Shri J.K. Parnar, Shri P.C. Amle, Shri C.G. Dandavate, Shri B.D. Mane, Shri C.R. Tadbhane, Shri S.P. Tasare, Shri S.B. Darekar, Shri Naresh Kumar, Addl.CIT, and Shri Mohanlal, CIT, Nasik....
(vi) Mr. Mohanlal, CIT, Nasik is also a corrupt man and having anti-social thinking in his mind. The above two representations are sufficient to sent the Addl. CIT, Range 3, Aurangabad - Shri Naresh Kumar and the CIT, Nasik - Shri Mohanlal, in jail as early as possible for every."
These allegations clearly show disrespect towards higher authorities. Not only this, he has made allegations against these officers without giving factual details. Therefore, the Inquiry Officer was right in holding that the charge showing disrespect to the higher authorities is proved.
59. So far as charge VI is concerned, the charge is that the applicant vide his letter dated 20th January, 2001 alleged that bribe of Rs.3 lakhs to be paid 43 OA No.268/2011 to certain officers for recruitment of persons under 1/6 scheme. He has further alleged that out of the said amount of Rs.3 lakhs, an amount of Rs.1 lakh had already been paid.
60. In view of the seriousness of the allegations made by the applicant, the Additional CIT, Range 3, Aurangabad vide letter dated 24th January, 2001 called upon the applicant to produce the evidence in his possession for making a proper inquiry. The applicant addressed a letter dated 30 th January, 2001 wherein he made allegations against superior officers but failed to produce any evidence to substantiate his allegations that bribe of Rs.3 lakhs was to be paid for recruitment of persons under 1/6 scheme. One Shri B.M. Salgare, UDC, who according to applicant, had informed the applicant about the bribe in 1/6 scheme denied vide his letter dated 29 th November, 2001 having furnished any such information to the CO. The applicant, instead of producing the evidence to substantiate his allegation of acceptance of bribe, replied that if the statement of Government officials is recorded, the truth will be out. It shows that without having any evidence in his possession, he addressed a letter making reckless and unsubstantiated allegations against his superior officers. Therefore, this charge is proved.
61. The charge No.VII shows that the applicant had adversely reacted to the posting order made on 20th August, 2001 and made unsubstantiated allegations against his superiors and colleagues. The report of the Inquiry Officer shows that in the letter dated 20 th August, 2001, the applicant made 44 OA No.268/2011 allegations of corrupt practices for getting the posting of their choice through Shri Kadbhane, then ITO. The said posting order was made by JCIT, AR, Ahmednagar. In support of this charge, the prosecution examined Shri J.K. Parnaik, Shri R.L. Bodhale, Shri P.H. Parmar and Shri P.C. Amale. All of them have stated that they did not pay any bribe for their posting in Ahmednagar Circle. The Inquiry Officer has observed that posting order of the applicant to the charge of TRO, Ahmednagar and also his representation wherein he has levelled allegations against Inspector colleagues and Shri C.R. Kadbhane, then ITO, are not part of the documents relied upon by the prosecution in the charge sheet framed. When these documents are not part of the documents relied upon by the prosecution, the question of considering the same does not arise. The Inquiry Officer has made following observations:
"(i) It has been pointed out by the CO that his said posting order to the charge of TRO, Ahmednagar and also his representations wherein he has levelled allegations against Inspector colleagues and Shri C.R. Kadbhane, then ITO, are not part of the documents relied upon by the prosecution in the Charge Sheet framed.
However, the CO has neither denied of not having made allegations against his inspector colleagues and Shri C.R. Kadbhane."
When these documents are not part of the charge sheet, it cannot be said that the charge is proved.
62. The Inquiry Officer and the Appellate Authority have held that charge No.VIII is not proved for want of original documents.
63. The applicant further contended that he was not permitted to examine 45 OA No.268/2011 himself. He was not permitted to adduce defence evidence and, therefore, principles of natural justice have been violated while conducting inquiry. He submitted that provisions of Rule 14(18) of CCS(CCA) Rules have not been followed.
64. Rule 14(18) of CCS(CCA) Rules states that the Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. The applicant submitted that the Inquiry Officer did not question him generally on the circumstances appearing against him in the evidence. He submitted that he was neither allowed to examine himself, nor was he allowed to lead defence evidence nor he was questioned generally on the circumstances appearing against him in the evidence.
65. It is true that the applicant was not permitted to examine himself nor the Inquiry Officer has questioned him generally on the circumstances appearing against him in the evidence. The question had fallen for consideration before Supreme Court in the case of Sunil Kumar Banerjee Vs. State of West Bengal and others, AIR 1980 SC 1170. In this decision of Supreme Court, it was contended that the appellant was not questioned with reference to the circumstances appearing against him as provided in Rule 8(19) of All India Services (Discipline & Appeal) Rules, 46 OA No.268/2011 1969. The Supreme Court made following observations:-
" We are similarly of the view that failure to comply with the requirements of rule 8(19) of the 1969 rules does not vitiate the enquiry unless the delinquent officer is able to establish prejudice. In this case the learned single Judge of the High Court as well as the learned Judges of the Division Bench found that the appellant was in no way prejudiced by the failure to observe the requirement of Rule 8(19). The appellant cross-examined the witnesses himself, submitted his defence in writing in great detail and argued the case himself at all stages. The appellant was fully alive to the allegations against him and dealt with all aspects of the allegation in his written defence. We do not think that he was in the least prejudiced by the failure of the Enquiry Officer to question him in accordance with rule 8(19)."
66. In the case at hand also, the applicant has cross-examined the witnesses at length. He has put up his defence and has argued the case himself. The applicant has not shown what defacto prejudice has been caused to him. In these circumstances, without showing defacto prejudice, this submission cannot be accepted. Everywhere the applicant has mentioned that his 26 submissions have not been considered by the Inquiry Officer. Nowhere in the application or in the written submission furnished by him, the applicant has given the details of these submissions. He has vaguely mentioned that 26 submissions have not been considered.
67. We Shall now deal with the authorities cited by the applicant. In the case of Narayan Dutt Vs. State of Punjab (Supra), the question involved is not germane to the facts involved in the case at hand. In that case accused was prosecuted under section 307, 148, 149 & 120-B of IPC and other sections of 302 of IPC. Applicant was summoned by the Sessions Court following an application moved under section 319 of Cr. P.C. Prosecution 47 OA No.268/2011 filed application under section 321 of Cr. P.C., seeking to withdraw the case against the applicant and two others which was rejected by the Trial Court and the accused were convicted including the applicant. Applicant thereafter filed petition under article 161 of the Constitution of India before the Governor of Punjab. Governor of Punjab granted pardon to the applicant and two others and were directed to be released immediately. This order was challenged. This is not the fact situation in the case at hand.
68. In the case of Biswambhar Basu Vs. State of West Bengal (supra), it is held that if any letter or document if not supplied to the delinquent and for such non-supply of the document if the delinquent does not prejudice then proceeding would not vitiate and on that ground proceedings cannot be quashed. In the case at hand on account of non-supply of copies of some of the witnesses no prejudice is shown to have been caused. The applicant was given full opportunity to cross-examine the witnesses.
69. In the case of State of Haryana And Anr. Vs. Rattan Singh (supra), it is held that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is further held that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment 48 OA No.268/2011 vitiate the conclusion reached, such findings, even though of a domestic tribunal, cannot be held good.
70. In the case of U.P. State Road Transport Corp. Vs. Suresh Chand Sharma (supra), the employee, who was a Conductor was found carrying 13 passengers without ticket from whom he had already recovered the fare. He was served with the chargesheet. Charge was proved against him. In this case it is held that reasons are the links between the material, the foundation for these erection and the actual conclusions. It is further held that court is under obligation to record reasons, however, brief the same may be as it is the requirement of principles of natural justice. Non-observance of the said principle would vitiate the judicial order. In the case at hand all the authorities have given reasons for their conclusions.
71. In the case of Bidyut Kumar Mitra & Ors (supra), it is held that in case of non-supply of document it is necessary to show prejudice. Pleading and proof of prejudice is necessary. In the case at hand no prejudice is shown to have been caused to the applicant on account of alleged non-supply of copies.
72. In the case of Usha Breco Mazdoor Sung Vs. Management of M/S. Usha Breco Ltd. (supra), It is held that before a departmental proceeding, the standard of proof is not that the misconduct must be proved beyond all reasonable doubt but the standard of proof is as to whether the test of pre- ponderance of probability has been met. The approach of the Labour Court appeared to be that the standard of proof on the Management was very high. When both the parties had adduced evidence, the Labour Court should have 49 OA No.268/2011 borne in mind that the onus of proof loses all its significance for all practical purpose.
73. In the case of K. Meerabai (supra) the facts were that K. Meerabai was suspended on account of charges of mis-appropriation of the Corporation's stock and money in the sum of Rs. 9,86,980.56. A criminal complaint was also lodged against K. Meerabi and others. The question was whether criminal case and the departmental inquiry were based on identical facts and charges. This is not the issue in the case at hand. No criminal case is filed against the applicant. It is held in this case by Supreme Court that the scope of disciplinary proceedings and the scope of criminal proceedings in a Court of Criminal law are quite distinct, exclusive and independent of each other.
74. In the case of Sushil Kumar Singhal (supra), the employee was convicted by the criminal court under section 409 of IPC. Bank issued a Show Cause Notice to the employee proposing dismissal from service. Accordingly, employee was dismissed from service. It was held in this decision of the Supreme Court that the accused, in appeal was given the benefit of probation under The Probation of Offenders Act. In para 27, Supreme Court held thus:
"In view of the above, we reach the conclusion that once a Criminal Court grants a delinquent employee the benefit of Act, 1958, it s order does not have any bearing so far as the service of such employee is concerned. The word "disqualification"e; in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act,1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal."50 OA No.268/2011
75. This is not the fact involved in the case at hand. Therefore, this case has no application to the case in hand.
76. In the case of Kunj Behari Misra (supra), the facts were that on physical verification of the currency chest a shortage of Rs. 1 Lakh was found. FIR was lodged and disciplinary proceedings were initiated by the bank against both Mr. Kunj Behari Misra and Mr. Shanti Prasad Goel. Six charges were framed against them. Inquiry Officer exonerated him of two charges out of six. Mr. Shanti Prasad Goel was not found guilty of any of the charges and was exonerated. It was held that when the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. In the case at hand we have already held that in so far as charge no. 1 is concerned, the disciplinary authority had not recorded the reasons for its disagreement. However, disciplinary authority had granted him opportunity of being heard.
77. The case of K.P. Narayanan Kutty (supra), is on the same point.
78. In the case of D.C. Aggarwal (supra), the issue was whether disciplinary authority while imposing punishment, major or minor, act on material which is neither supplied nor shown to the delinquent. It is held that the order is vitiated not because of mechanical exercise of power or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. In the case at hand it is not brought to our notice, for proving charge no. 2, any irrelevant material was considered by the 51 OA No.268/2011 Inquiry Officer.
79. In the case of Nasim Ali Abid Ali (supra), the employee was a Head Ticket Collector and in pre-arranged decoy operation was nabbed for accepting Rs. 100/- from the dummy passengers. On search of his belongings, shortage of Rs. 40/- in railway cash and Rs. 10/- in his personal cash was found. It was held that the Ticket Collector was supposed to account for or deposit the amount on reaching to the final destination. If verification of the cash is carried out before the train reached to the destination, the charge of misappropriation because of shortage of cash cannot be sustained. This is not the fact situation in the case at hand.
80. In the case of Collector of Customs Vs. Mohd. Habibul Haque (surpa), It was held that failure to furnish copy of written brief of Presenting Officer to charged Government servant constitutes denial of reasonable opportunity and renders proceedings invalid. The objection of the applicant is that the written brief was submitted before the Inquiry had started. Even otherwise what prejudice was caused to the applicant for non-suppliance of brief is not spelled out.
81. In the case of P.V. Mahadevan (supra), there was delay of 10 years in initiating inquiry against Mr. P.V. Mahadevan. In this judgement of the Supreme Court the charge memorandum has been issued in the year 2000 for irregularity in issuing sale deed in the year 1990. In para 12 it is held thus:
"12. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceeding vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer of quashing the proceedings as made in the writ petition."52 OA No.268/2011
82. In the case at hand the incident of abusing the lady colleagues had occurred in the year 1996 and the inquiry was initiated in the year 2002. The Inquiry Officer has held that delay is not inordinate and has given appropriate reasons for the same. Moreover, what prejudice is caused to the applicant for the delay is not explained.
83. In the case of A.K. Kraipak Vs. Union of India & Ors, AIR 1970, Supreme Court 150 (V 57 C 35), it is held that the real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. Mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bais we have to take into consideration human probabilities and ordinary course of human conduct have to be taken into consideration. In the case at hand, the applicant has alleged bias by the Inquiry Officer. Three Inquiry Officers were changed. The applicant contended that the Inquiry Officer was biased as the Inquiry Officer did not permit him to examine defense witnesses, did not permit him to examine himself. The Inquiry Officer shouted at the witnesses viz. Mrs. H.B. Parkhe & Mrs. Bhalerao when they had said that they were ready to withdraw the complaint against him.
84. So far as denial of opportunity to examine the witnesses and documents are concerned, the applicant had given a long list of witnesses and documents. Some of the documents are his old representations as held by the Inquiry Officer. He wanted to examine some of the witnesses to prove illicit relations 53 OA No.268/2011 of Mrs. H.B. Parkhe & Mrs. Bhalerao The applicant has alleged in the application for summoning defence witnesses that these two ladies had illicit relations prior to the joining of the service. Even if these witnesses had been examined, the conclusion would not have been different. He has no business to sing a parody "Konachya Potat Konacha Garbh" in public place, meaning thereby she was pregnant from someone else. To allege a woman that too in a public place that she was pregnant from someone else is not only a misconduct but also it violates the modesty of a woman. Therefore, non-examination of witnesses will have no effect on the merits of the matter.
85. In the case of Government of Andhra Pradesh & Ors. Vs. A. Venkata Raidu, (2007) 1 Supreme Court Cases ( L&S) 254, it is held that if any material is sought to be used in an inquiry, copy thereof should be provided to the party against whom the inquiry is being held.
86. In the case of Bhaurao Dagdu Paralkar (supra), it is held that fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. Suppression of a material document would also amount to a fraud on the court. It is further held that the colour of fraud in public law or administrative law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. Nothing has been brought on record to show that incorrect facts were presented before the Inquiry Officer. 54 OA No.268/2011
87. In the case of State Bank of Patiala & Ors. Vs. S.K. Sharma, 1996 Supreme Court Cases (L&S) 717 it has been held thus:
"We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this:
procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision g expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it mays the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.55 OA No.268/2011
(b) In the case of violation of a procedural provisional which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived its then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could no be waived by him, then the Court or Tribunal should make appropriate directions [include the setting aside of the order of punishment], keeping in mind the approach adopted by the Constitution Bench in B. Karunkar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice
- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice [rule of audi alteram] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" "no fair hearing".
(a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem ]. (b) But in the latter case, the effect of violation [of a facet of the rule of audi alteram] has to be examined from the standpoint of prejudice; in other word in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/ Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. . In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
88. Nothing has been brought on record to show that there was violation of mandatory procedural provisions.
56 OA No.268/2011
89. In the case of Apparel Export Promotion Council Vs. A.K. Chopra (supra), the question was does an action against the female employee which is against moral sanctions and does not withstand test of decency and modesty not amount to sexual harassment? Is Physical contact with the female employee an essential ingredient of such a charge? Does the allegation that the superior tried to molest a female employee at the place of work, not constitute an act unbecoming of good conduct and behaviour expected from the superior?
90. In this case inquiry was initiated against Mr. A.K. Chopra for violating the modesty of a female employee. It was proved that Mr. A.K. Chopra had tried to touch her with ulterior motives despite reprimandes by her. The Supreme Court held that the act of the respondent was unbecoming of good conduct and behaviour expected from a superior officer undoubtedly amounted to sexual harassment.
91. In the case of C. Shanmugam (supra), Supreme Court held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would come to its own conclusions on the proof of the charge. The only consideration of the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on no evidence. In the 57 OA No.268/2011 case at hand there is nothing on record to show that the findings of the Inquiry Officer are based on no evidence.
92. In the case of Divisional Controller, KSRTC Vs. M.G. Vittal Rao ( supra), chargesheet was filed against the employee. The allegations against the employee were that the employee stayed away beyond his duty hours at his place of work and opened the door of the blacksmith Section with the aid of a duplicate key and pulled the gas cylinder trolley and equipment from blacksmith section to the cash room alongwith four other employees of the corporation and opened the inner door of the cash room by cutting the padlock and used the gas cylinder equipment for committing the theft from cash chest. In the inquiry the employee was found guilty. Criminal case was also registered against the employee in which he was convicted. Appellate Court also confirmed his conviction. In revision in High Court, the employee was acquitted. The Supreme Court held as under:
"8. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal Court arises only and only if the dismissal from services was based on conviction by the criminal Court in view of the provisions of Article 311(2)(b) of the Constitution of India, 1950, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal Court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal Court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied."
93. The applicant contended that he had made complaint against Mrs. H.B. Parkhe & Mrs. Bhalerao, despite making allegations against superior officer, he was promoted. He submitted that this clearly goes to show that the incidents 58 OA No.268/2011 were of minor nature and they were not worthy of taking congnizance. For this purpose, he placed reliance on the case of R.L. Rathod Vs. Delhi Power Supply (supra).In this case it is held that when a person is promoted without any demur whatsoever, unless it is shown that his promotion was subject to the order of disciplinary proceedings either contemplated or pending, it would be presumed that the same has been condoned. This decision has no application to the case at hand. In the case of R.L. Rathod (supra), enquiry was pending against the delinquent. Promotion was given to the delinquent without mentioning that promotion would be subject to the outcome of the enquiry. In the case at hand, the factual position is different. Nothing has been brought on record to show DPC was aware of the complaint being filed against the applicant. Despite being aware of the complaint, DPC had promoted the applicant, then it could be said that the misconduct has been condoned. In the absence of this, it cannot be said that the misconduct has been condoned.
94. In the case of Union of India Vs. V.K. Sareen (supra), the enquiry pertained to the irregularities committed during the period from 12th June, 1990 to 12th April, 1993 and came to the notice of the petitioner on 19 th March, 1996. Delay was of almost seven years.
95. It was contended that delay had caused prejudice to the employee. It was held that had the petitioner (Union of India) been vigilant and had the disciplinary proceedings been instituted promptly and expeditiously, these documents would have been available and the respondent would not have been prejudiced in making his defence.
59 OA No.268/2011
96. In the case at hand though there is delay of six years in issuing chargesheet to the applicant but what prejudice is caused to the applicant is not explained. There is nothing to show that the applicant was unable to make defence because of delay in initiating the enquiry. He has cross-examined the witnesses at length. He was given opportunity to present his arguments. Therefore, this issue has no application to the facts of the instant case.
97. In view of the above reasons, charge of abusing his lady colleagues Mrs. H.B. Parkhe & Mrs. Bhalerao by the applicant has been proved. Other charges have already been proved. The Inquiry Officer did not commit any error in holding the applicant guilty and the Disciplinary Authority and the Appellate Authority did not commit any error in confirming the report of the Inquiry Officer.
98. We, therefore, do not find any merit in this OA. Therefore, Original Application No. 268/2011 is dismissed. Pending MAs, if any, stand closed. No order as to costs. Record of Inquiry Proceedings be sent back to the Department.
(Dr. Bhagwan Sahai) (Justice M.G. Sewlikar)
Member (A) Member (J)
ma/ac.