JUDGMENT
Lakshmi Swaminathan, Member (J)
1. In this application, the applicant has challenged the validity of the order passed by the respondents dated 30.6.1994 removing him
from service and the order dated 16.1.1995 passed by the appellate authority rejecting his appeal.
2. The above impugned orders have been passed by the respondents after holding a disciplinary proceeding against the applicant based on the charge-sheet issued to him dated 5.12.1987. Mr. S.L. Hans, learned Counsel for the applicant, has challenged the validity of the charge-sheet on a number of grounds. One of the grounds taken by the learned Counsel is that it is not only vague but it is a second charge-sheet or rather a third charge-sheet issued to the applicant after cancelling the earlier two charge-sheets issued to him by order dated 26.11.1979 and 21.2.1983. According to the learned Counsel for the applicant, the article of charge as well as the statement of imputations of misconduct for both the charged memorandum are identical and there was no justification to issue the second charge-sheet. He has, therefore, submitted that the second charge-sheet is not maintainable. He has also very vehemently submitted that the article of charge does not specifically state what the allegations of misconduct are against the applicant nor does it specify with whom he had colluded in his actions which formed the basis of the charge. He has also submitted that the punishment of removal from service has been passed without application of mind because earlier the punishment of reduction of pay by three stages for two years was imposed by the disciplinary authority for the same alleged misconduct.
3. The other main ground taken by Mr. S.L. Hans, learned Counsel, is that the disciplinary proceedings have been conducted in violation of the provisions of Section 14 of the CCS (CCA) Rules, 1965 (hereinafter referred to as the Rules) and the principles of natural justice. He has also submitted that there has been considerable delay in completing the disciplinary proceedings which is also bad. He has, in particular, emphasised that in the proceedings held in pursuance of the charge-sheet issued on 5.12.1987, a number of irregularities and contravention of Rule 14 of the Rules, have been committed by the respondents as given in the list placed on record. He has also given a list of the cases relied upon, which is also placed on record. In particular, on the alleged procedural irregularities committed by the respondents for holding the disciplinary proceedings, the learned Counsel has submitted that the applicant was not given reasonable opportunity to cross-examine the hand writing expert Shri S.K. Gupta. He submits that since neither the applicant nor his defence assistant was in a position to cross-examine the hand writing expert, he should have been afforded opportunity to bring some hand writing expert to cross-examine the prosecution witness, Shri S.K. Gupta. He submits that the respondents have thereby violated the principles of natural justice. The learned Counsel has submitted that on 22.1.1992 when the inquiry proceedings were conducted, Shri S.K. Gupta Assistant Director was examined. On that date, the applicant had requested that he should be given an opportunity to bring some hand writing expert in the Court to cross-examine Shri S.K. Gupta as the report submitted by him is of a technical nature and he would not be able to cross-examine the expert. It is recorded that the Presenting Officer objected to this stating that the defence assistant as well as the applicant were very much aware of the production of witness, namely, Shri S.K. Gupta at the inquiry. On that date it has also been recorded that since Shri S.K. Gupta belongs to Calcutta and after his retirement he has settled down there, it would involve exhorbitant cost to produce the witness again. He has also recorded that this would cause unnecessary delay in completion of the inquiry. On that date, it was further recorded that the applicant did not want to further cross-examine Shri S.K. Gupta. Thereafter, the applicant has submitted that the next hearing
was fixed on 7.2.1992. On this date, the Inquiry Officer has recorded that the point raised on 22.1.1992 regarding cross-examining the hand writing expert by the defence assistant by another hand writing expert has been examined and a decision was given that no other hand writing expert from the defence side can appear before the Court to cross-examine Shri S.K. Gupta. It was further recorded that full opportunity had been afforded to the applicant and defence assistant to cross-examine Shri S .K. Gupta on 22.1.1992 when he appeared before the Court to give his evidence Mr. S.L. Hans, learned Counsel, has pointed out that in this document, the next date after 7.2.1992 for continuing the hearing has not been indicated, but the inquiry reassembled on 21.2.1992 when they proceeded with the inquiry ex pane, as it is stated that neither the delinquent official nor his defence Counsel Mr. M.G. Sharma were present. The learned Counsel has very forcefully submitted that through out the dates when the inquiry was held upto 7.2.1992, the applicant had been attending the inquiry regularly. He did not attend the hearing only on 22.2.1992 as he submits that the applicant was not intimated that date when the inquiry was concluded on 7.2.1992. He, therefore, questions the legality of the actions of the respondents in taking a decision on 21.2.1992 i.e, on the very first date when the applicant was absent to continue with the proceedings ex parte. He claims that this procedure is against Sub-rules (16), (17), (20) and (23) of Rule 14 and Instruction 8 below Rule 15 of the Rules. Learned Counsel has further submitted that applicant was not even called to give his defence, which the respondents were required to do under these Rules, before the Inquiry Officer closed the case and submitted his report which is, therefore, illegal and arbitrary and against the Rules.
4. Another ground taken by the learned Counsel is that in the case of other similarly placed officials in whose collusion applicant is alleged to have acted, the respondents did not either take any action or passed less severe punishments. According to him, the applicant has been singled out for a most severe punishment which is not called for the circumstances of the case. He has also taken other grounds in the O.A. and has submitted that for these reasons the impugned order dated 30.6.1994 removing the applicant from service together with the appellate authority’s order rejecting his appeal may be quashed and set aside. He has also prayed for a direction to the respondents to reinstate the applicant with consequential benefits, including backwages and increments, and promotion to the next higher post of Senior Storekeeper from the due date.
5. The respondents in their reply have controverted the above facts and grounds. According to them, since they have conducted the departmental inquiry in accordance with the rules, the O.A. may be dismissed. They have submitted that the memorandum of charges dated 5.12.1987, that is the third charge-sheet, was challenged by the applicant in an earlier OA, 2088/91 which has been dismissed by the Tribunal by its judgment dated 21.1.1992. They have also submitted that this judgment has become final and binding as no SLP was filed to the Supreme Court. Under the powers of judicial review they have also submitted that the Tribunal should not look at the correctness of the findings of the disciplinary authority and the appellate authority so long as there is same evidence. They have also submitted that the hand writing expert Shri S.K. Gupta, was examined in the presence of the delinquent official and his defence assistant, and the applicant has been given reasonable opportunity to defend his case.
6. Regarding the conduct of the enquiry, according to the respondents on 7.2.1992, the proceeding was postponed to 21.2.1992 and this fact was communicated to all
concerned, including the applicant, to be present on that date by the Administrative officer, COD Delhi Cantt. They have also stated that the applicant was also working in the same Depot i.e. COD Delhi Cantt where the proceedings were recorded and all other witnesses came on 21.2.1992 but he was deliberately absent from the proceedings. As all the witnesses had come from far off places, their statements were recorded. In the circumstances, they have submitted that the applicant himself has not availed of the opportunity to be present and hence there has been no violation of the rules as alleged by the applicant. Mr. R.V. Sinha, learned Counsel, has also submitted that since some of the other persons who were allegedly involved in the case, were from various units, Respondents might have taken action against them for misconduct, and so they have denied that the punishment order passed against the applicant is in violation of the equality clause under Article 14 of the Constitution.
7. Since the question whether information was given to the applicant about the date of hearing on 21.2.1992 has been specifically raised by Mr. Hans, learned Counsel, we had called upon Mr. R.V. Sinha, learned Counsel, to produce the DE records to show that the 10 had informed the applicant that after 7.2.1992, the date of inquiry was fixed on 21.2.92. Mr. R.V. Sinha, learned Counsel, has submitted at the Bar on 7.8.1998 that the respondents are not in a position to produce any record in writing that they informed the applicant of the next date, but he submits that the applicant was duly informed orally on 7.2.1992 that the next hearing will be held on 21.2.1992, on which date he chose not to be present.
8. We have carefully considered the pleadings and the submissions made by the learned Counsel for the parties.
9. Regarding the impugned charge-sheet dated 5.12.1987 which is the third charge-sheet issued to the applicant, the Tribunal in order dated 21.2.1992 in OA 2088/91 has already considered this Memorandum of charges. After considering the pleadings and the submissions made by the learned Counsel for the parties. The Tribunal has held:
“…. If the applicant rushes into get it quashed merely because it is the third charge-sheet, then we have to consider whether any malafide intention was present on the part of the respondents in persecuting the applicant by filing the third charge-sheet. As is stated by the respondents, it was the order in review that the matter was remanded and then a fresh enquiry on the directions of the reviewing authority was undertaken. The contention of the applicant cannot be accepted that the charge-sheet has been filed in malafide manner to persecute him for the offence committed by others. This Tribunal cannot undertake the functions of either the disciplinary authority or that of the appellate authority. The applicant shall get an opportunity in the departmental enquiry itself of putting up his case of defence and proving himself innocent…..”
It was further held:
“We are, therefore, of the view that the charge-sheet is filed by the orders of the appellate authority and the third charge-sheet is being proceeded against the applicant in accordance with law.”
This decision of the Tribunal in that OA has become final. Accordingly, we are unable to agree with the contentions of the learned Counsel for the applicant that the charge-sheet
cannot be proceeded with against the applicant on the grounds he has submitted. We also reject the contention that this charge-sheet is vague on the ground of res judicata as this plea could have been raised earlier but has not been done before the Tribunal in the earlier O.A. In the circumstances, the judgment in State of AP v. M. Radhakishan (JT 1998 (3) SC 123) would not be relevant as the department has concluded the disciplinary proceedings by passing the impugned order dated 30.6.1994.
10. Mr. Hans, learned Counsel, had taken us in detail through the proceedings in the departmental inquiry and, in particular, with regard to the examination and cross-examination of the hand writing expert, Shri S.K. Gupta. However, from a careful perusal of the record, we are satisfied that the applicant and his defence assistant have been given reasonable opportunity to cross-examine the witnesses including the hand writing expert. His contention that as the witness is a hand writing expert the applicant should also have been allowed to produce his own hand writing expert to cross-examine him is not based on any rules and does appear justified in the circumstances of the case. As the applicant had been afforded reasonable opportunity to cross-examine the witness personally or through his defence assistant, we do not think that the principles of natural justice have been violated so as to vitiate the inquiry on this account, upto this stage. In Managing Director, ECU, Hyderabad and Ors. v. B. Karunakar and Ors. (1993 SCC (L and S) 1184), the Supreme Court has held as follows:
“….. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. 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 not 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 the denial to him of the report has to be considered on the facts and circumstances of each case…. ”
(Emphasis Added)
11. However, we cannot say the same thing that after 7.2.1992 the respondents have conducted the inquiry proceedings either in accordance with the Rules or the principles of natural justice. On 21.2.1992 it is stated that the inquiry reassembled and was proceeded ex parte as neither the applicant nor his defence assistant, were present. After examination of further prosecution witnesses 4-7, the Inquiry Officer has recorded that as there were no further witnesses, they have decided to conclude the inquiry based on the available witnesses and material (documents). Thereafter, the Inquiry Officer has recorded his conclusion that the Court is of the opinion that the applicant is guilty of the charges framed against him. He has also given a certificate that he has acquainted himself with the provisions of Rule 14 of the Rules and the same has been complied wi,th in conducting the oral inquiry.
12. As mentioned in Para 7 above, admittedly, the respondents did not give any intimation in writing to the applicant or his defence assistant about the next date of appearing after 7.2.1992. The learned Counsel for the applicant has very vehemently
submitted that it was only on one date, that is 21.2.1992, when the applicant and his defence assistant were absent from the disciplinary/inquiry proceedings. The applicant’s contention is that as he did not receive any intimation of the date of hearing fixed for 21.2.1992, that is why he was not present and the respondents have failed to disprove the contention by any reliable evidence. In the facts of the case, we see merit in this contention as also the submissions made by Mr. Hans, learned Counsel, that the respondents have not complied with the provisions of Sub-rules (16) (17) and (20) of Rule 14 of the Rules. Merely because the applicant or his defence assistant were not present on one date of the hearing, the respondents ought not to have closed the prosecution evidence without giving at least one more opportunity to the applicant, to be present and submit his written statement of defence or produce any other evidence in his defence before the Inquiry officer could have closed the inquiry. It is also relevant to note that on 21.2.1992 when PWs have been examined. The applicant has also been deprived of his right to cross-examine them. In the facts and circumstances of the case, we are of the view that there has been violation of the provisions of the rules which is not justified. Besides, what has happened on 21.2.1992 is also in clear violation of the principles of natural justice which we have no doubt would cause prejudice to the applicant. (See observations of the Supreme Court in S. K. Sharma v. State Bank of Patiala (JT 1996 Vol. 3 SC 722 and those quoted above from Karunakaran’s case (supra). In the facts and circumstances of the case, this application has to be allowed and the impugned orders have to be quashed and set aside.
13. The learned Counsel for the applicant has also submitted that the punishment awarded to the applicant is too harsh, as according to him the other persons with whom it is alleged in the charge-sheet he has acted in collusion have either not been punished or have been given much lighter punishments. The respondents have not produced any records regarding these other persons stating that they belong to other units. However, the respondents shall keep in view the punishments awarded to the other persons with whom the applicant is alleged to have acted in collusion in the impugned memorandum of charge dated 5.12.1987 in case as mentioned below, they recommence the disciplinary proceedings.
14. In the result, this application succeeds and is allowed with the following order:
(a) The disciplinary authority's order dated 30.6.1994 and the appellate authority's order dated 16.1.1995 are quashed and set aside. (b) Respondents are directed to reinstate the applicant as Storekeeper within two months from the date of receipt of a copy of this order, He shall be entitled to consequential benefits, including promotion as Senior Storekeeper in accordance with law/Rules. (c) However, in the circumstances of the case, liberty is granted to the respondents to recommence the disciplinary proceedings from 21.2.1992 after giving a reasonable opportunity to the applicant to be heard in his defence and pass a final order in accordance with the Rules and the principles of natural justice. If they do so, they shall also pass appropriate orders regarding the intervening period. No order as to costs.