ORDER
Shanker Raju, Member (J)
1. Applicant, an IPS Probationer, by virtue of this OA, has impugned respondents’ order dated 5.9.2006, whereby under Rule 10 of All India Services (Discipline & Appeal) Rules, 1969, a minor penalty of withholding of one increment of pay for a period of three years without cumulative effect in consultation with the Union Public Service Commission (UPSC) has been imposed upon him. Quashing of the aforesaid order with consequential benefits has been sought.
2. Applicant, who belongs to 2004 batch of IPS, while undergoing probationer training in Police Academy at Hyderabad, was served with a memorandum dated 10.8.2005 under Rule 10 of the All India Services (Discipline & Appeal) Rules, 1969, on the ground that he abused and pounced upon the Constable, which is unbecoming of a member of the Service. Applicant submitted his representation and thereafter without holding any inquiry and in consultation with the UPSC a minor penalty was imposed upon applicant, in agreement with the advice, which is now being assailed.
3. Learned Counsel of applicant states that no inquiry has been held prior to the impugned order, which contravenes Rule 10 of the Rules ibid.
4. Learned Counsel also states that the advice of the UPSC, which has considered adverse material against applicant, was not served upon before penalty was imposed.
5. Learned Counsel would also state that the disciplinary authority (DA) has mechanically accepted the advice of the UPSC, wherein statements of fellow probationers had been mentioned and relied upon, has been heavily relied upon by the Commission without furnishing to the applicant, along with copy of the memo these documents, which has greatly prejudiced applicant and is in contravention of principles of natural justice.
6. Lastly, it is contended that under Rule 10 of the Rules, it is incumbent upon DA to apply its mind as to holding of inquiry and thereafter to record reasons on the imputation. As no reasons have been recorded, the order is liable to be set aside.
7. On the other hand, Learned Counsel of respondents has vehemently opposed the contentions and stated that in the wake of the decision of the Apex Court in Union of India v. T.V. Patel 2007 (2) SCC (L&S) 98, copy of the UPSC advice is not obligatory to be served upon before imposition of punishment and as per Rule 10 of the Rules inquiry is not mandatory when withholding of increment is for a period not exceeding three years. Reliance has been placed on a decision of the Apex Court in F.C.I. v. A.P. Rao 2000 (2) SC SLJ 407.
8. Shri Bhardwaj contends that the incident was proved on record and the penalty was inflicted after submission of defence statement and its consideration and the PE report.
9. I have carefully considered the rival contentions of the parties and perused the material on record.
10. Rule 6 of All India Rules ibid provided that minor penalty of withholding of increment may, for good and sufficient reasons, be imposed on a member of the service. Rule 10 prescribes the procedure as follows:
10. Procedure for imposing minor penalties.-
(1) Subject to the provision of Sub-rule (3) of Rule 9, no order imposing on a member of the Service any of the penalties specified in Clauses (i) to (v) of Rule 6 shall be made except after- informing the member of the Service in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal; holding an inquiry, in the manner laid down in Sub-rules (4) to (23) of Rule 8, [in every case, in which it is proposed to withhold increments of pay for a period exceeding three years, or with cumulative effect for any period or so as to adversely affect the amount of pension payable to him or in which the disciplinary is of the opinion that such inquiry is necessary].taking the representation, if any submitted by the member of the Service under Clause (a), and the record of inquiry, if any, held under Clause (b) into considerations: recording a finding on each imputation of misconduct or misbehaviour; and consulting the Commission.
(2) The record of proceedings in such cases shall include- a copy of the intimation to the members of the Service of the proposal to take action against him;a copy of the statement of imputations of misconduct or misbehaviour delivered to him; his representation, if any;the evidence produced during the inquiry;the advice of the Commission;the findings on each imputation of misconduct or misbehavioru; and the orders on the case together with the reasons therefor.
11. In the above backdrop, the issue for my consideration is whether holding of inquiry as laid down in the manner in sub rules (4) to (24) of Rule 8 of the All India Rules ibid the decision has to be made by the DA. When it is proposed to withhold increment of pay for a period exceeding three years or the penalty is with cumulative effect, affecting the pension, or where DA is of the opinion that such inquiry is necessary, only then an inquiry is to be held. In this regard, a proposal of punishment by the DA is a subsequent event. As per the procedure laid down a memorandum of imputation is served upon an All India Service incumbent with misconduct and misbehavior and proposal thereof. In the instant case the aforesaid proposal was issued to applicant vide memorandum dated 10.8.2005, where the only statement of imputation, i.e., allegations levelled have been reflected, with an opportunity to applicant to make a representation but nowhere a minor penalty has been proposed.
12. In the above backdrop till the issue of the memorandum and even in the memorandum when no penalty is envisaged and a representation is called for and thereafter a tentative conclusion of minor penalty is made by the DA, it is not known as to in what minor penalty would be inflicted upon applicant. In such an event, preempting dispensation of holding of inquiry would be highly illogical and irrational.
13. Insofar as the penalty with cumulative effect, i.e., withholding of increment not being in existence and its effect on pension, as till the memorandum is issued and a reply is received, no tentative proposal could be formed by the DA, the only option for holding an inquiry, as reflected in Rule 10 (1) (b) of the Rules, is formation of opinion by the DA as to an inquiry is necessary or not, has to be a positive act in every action taken against an All India Service Member for infliction of a minor penalty. The contention put-forth by the respondents’ counsel that as the penalty imposed does not exceed a limit of three years in withholding of increment and penalty does not affect the pension of applicant, inquiry is not required, cannot be countenanced, as till the time proposal is given when there is no proposal as to withholding of increment, effect on pension and cumulativeness of penalty the only obligation, which is left with the DA in the matter of holding of inquiry is formation of an opinion. From the perusal of the record by implication of the aforesaid opinion cannot be formed, for want of any express opinion formed, as reflected in the UPSC advice or in the order passed. Having failed to form an opinion as to holding of inquiry, the penalty imposed is in contravention of Rule 10 (1) (b), as a condition precedent was not satisfied is not sustainable.
14. Moreover, the principles of natural justice, even if not provided, are implicit in the rules. It is trite that a quasi judicial authority being a public functionary has to act, being a creature of statute, within the four corners of it and if a thing is to be done in a particular manner, no other manner could be adopted by the statutory authority, as ruled by the Apex Court in Bhavnagar University v. Palitana Sugar Mills .
15. Rule 10 obligates the DA to record a finding on each imputation of misconduct and the record would be consisted of finding on each imputation of misconduct and orders with reasons therefor.
16. From the discerned reading of the rules what is apparent is that the DA is obligated to record a finding on each imputation and thereafter to record reasons in the orders passed. Recording of reasons by a quasi-judicial authority, unless dispensed with under the rules, is not only mandatory but also in consonance with the principles of natural justice. As Rule 10 (2) (vii) provides for recording of reasons by the DA, it cannot be dispensed with. The Apex Court in Narpat Singh v. Rajasthan Financial Corporation 2007 (11) SCALE 458 ruled that non recording of reasons by the DA is an illegality and also a Constitution Bench of the Apex Court in S.N. Mukherjee v. Union of India , made the following observations:
35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory. authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions-making. ‘The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such art order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.
36. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasi-judicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donoughmore Committee observed that it, may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The Committee expressed the opinion that “there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise” and that “where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity.” (p. 80) Prof. H. W. R. Wade has also expressed the view that “natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man’s sense of justice.” (see Wade, Administrative Law, 6th Edn. p. 548). In Siemens Engineering Co. case (AIR 1976 SC 1785) (supra) this Court has taken the same view when it observed that “the rule requiring reasons to be given in support of an order is, like the principles of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process.” This decision proceeds on the basis that the two well-known principles of natural justice, namely (i) that no man should be a Judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive’ and that in addition to these two principles there may be .rules which seek to ensure fairness in the process of decision-making and can be regarded as part of the principles of natural justice. This view is in consonance with the law laid down by this Court in A. K. Kraipak v. Union of India , wherein it has been held:
The concept of natural justice has undergone a great deal of change in recent years. In the past it Was thought that it included just two rules, namely (i) no one shall be a Judge in his own cause (nemo debetesse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in-good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. (pp. 468-69) (of SCR) : (at pp. 156-57 Of AIR).
37. A similar trend is discernible in the decisions of English Courts wherein it has been held that natural justice demands that the decision should be based on so me evidence of probative value. (See R. v. Deputy Industrial Injuries Commissioner ex P. Moore (1965) 1 QB 456; Mohan v. Air New Zealand Ltd. 1984 AC 808).
38. The object underlying the rules of natural justice “is to prevent miscarriage of justice” and secure “fair play in action.” As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U. S. A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.
39. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.
40. We may now come to the second part of the question, namely, whether the confirming authority is required to record its reasons for confirming the finding and sentence of the court-martial and the Central Government or the competent authority entitled to deal with the post-confirmation petition is required to record its reasons for the order passed by it on such petition. For that purpose it will be necessary to determine whether the Act or the Army Rules, 1954 (hereinafter referred to as ‘the Rules) expressly or by necessary implication dispense with the requirement of recording reasons. We propose to consider this aspect in a broader perspective to include the findings and sentence of the court-martial and examine whether reasons are required to be recorded at the stage of (i) recording of findings and sentence by the court-martial; (ii) confirmation of the findings and sentence of the court-martial; and (iii) consideration of post-confirmation petition.
17. Having regard to the above, it is no more res integra that reasons are to be recorded by the DA when not dispensed with under the Rules.
18. From the perusal of the orders passed by the DA, the following observations have been made:
4. WHEREAS, in the case of Shri Irshad Wali, the Union Public Service Commission have observed that as far as Shri Wali’s abusing and pouncing upon the police constable is concerned, the action of Shri Wali cannot be justified by any means and he should have acted in a mature and responsible manner by lodging a complaint against the said constable for his inaction to stop the brawl with his superior authorities, but instead he chose to take law in his own hands. The Commission has, therefore, come to the conclusion that the charges made against Shri Wali are proved and call for a minor penalty of withholding of one increment in the time scale of pay for three years without cumulative effect.
5. WHEREAS, the competent authority, after a careful examination of the records pertaining to the disciplinary proceedings against Shri Irshad Wali, IPS Probationer and keeping in view the advice of the Union Public Service Commission, has come to the conclusion that the charges against him are proved and the ends of justice would be met if the penalty as advised by the Commission is imposed upon Shri Wali;
6. WHEREAS, it has been decided to impose the penalty of withholding of one increment of pay in the time scale of pay for a period of three years without cumulative effect on Shri Irshad Wali, IPS Probationer under Rule 10 of A.I.S (D&A) Rules, 1969;
7. NOW, THEREFORE, the Central Government in exercise of the powers conferred under Rule 6 of A.I.S (Discipline & Appeal) Rules, 1969 considers that a penalty of withholding of one increment of pay in the time scale of pay for a period of three years without cumulative effect be imposed on Shri Irshad Wali, IPS Probationer, under Rule 10 ibid with immediate effect, and orders accordingly.
19. Except reiterating the chronology of events, none of the contentions raised by applicant in his representation as figured, have been considered and reasons have not been recorded. On this count alone, orders of the DA cannot be countenanced.
20. The punishment is also vitiated on violation of principles of natural justice, as except to agree with the findings to the advice tendered, it transpires that not only the preliminary inquiry report but also the statements recorded therein of fellow probationers have been relied upon to come to the conclusion of guilt on a proposal by the UPSC, but these statements have not been served upon applicant. The extraneous material recorded behind the back once relied upon is a legal infirmity and non-furnishing of the documents relied upon to arrive at a punishment is held to be illegal by the Apex Court in Pepsu Road Transport Corporation v. Lachhman Dass Gupta and Anr. 2002 SCC (L&S) 61.
21. Insofar as prejudice is concerned, it lies writ large on the face, as the documents when not put in any form in the proposal of minor penalty and once taken into consideration amounts to consideration of additional material relied upon and has certainly affected the right of applicant to reasonably defend the charges against him.
22. Insofar non-supply of UPSC advice is concerned, the Apex Court in T.V. Patel’s case (supra) in its applicability, the grounds raised would not be apt in law.
23. In the result, for the foregoing reasons, OA is allowed. Impugned order is set aside. Consequences in law to follow. No costs.