ORDER
K.N.K. Karthiayani, Member (A)
1. Facts of the case as in the OA are:
While the applicant was working as Executive Engineer (Civil), Shimoga Telecom District, one Shri H.M. Ramesh, Engineering Contractor had developed some animosity to the applicant as the latter had been hauled up for work of sub-standard quality. The said H.M. Ramesh filed a complaint dated 20-2-2002 against the applicant alleging that the applicant had demanded some bribe from him. The CBI arranged a trap on 8-3-2002 in which one Shri M.B. Sheshanna, said to be an employee of Shri H.M. Ramesh was deployed as decoy. A case was made out against the applicant that an amount of Rs. 10,000/- was paid by Shri Sheshanna as illegal gratification to the applicant on behalf of Shri H.M. Ramesh. The applicant had not demanded any such gratification and had refused to take the money firmly saying that for doing his official work no bribe need to be paid. An Audio recording of the conversation that took place between the applicant and the said Shri Sheshanna at the time of the trap was also made by the CBI. The CBI had recovered an amount of Rs. 10,000/- from the drawer of the office table of the applicant. The Police Officer who conducted the trap did not seek the applicant’s explanation for the money that was recovered from the applicant. Had he sought such an explanation, the matter would have been cleared then and there. On 11-3-2002 the applicant submitted an explanation for the money that was found during the trap pointing out that he had neither sought for nor obtained any illegal gratification. However, departmental proceedings were initiated against him and also a criminal case was filed by the CBI.
2. A charge memo dated 16-10-2003 has been served on him, a copy of which is produced at Annexure A4. The article of charge framed against the applicant (Annexure I to the charge sheet) is reproduced below:
Article
That the said Shri G.S. Gangaiah, while functioning as Executive Engineer (Civil), Telecom Civil Division, Shimoga, during the period from 27.7.2000 to 3.5.2002, demanded illegal gratification from Shri H.M. Ramesh, contractor, for clearance of pending bills; and accepted Rs. 10,000/- (Rupees Ten thousand only) as illegal gratification, on 8.3.2002, from Shri M.B. Sheshanna, Site Engineer of the said contractor.
2. Thus, by his above acts, the said Shri G.S.Gangaiah committed grave misconduct, failed to maintain absolute integrity, and acted in a manner unbecoming of a Government Servant, thereby contravening Rule 3(1(i) & (iii) of the CCS (Conduct) Rules, 1964.
There is an Annexure to the charge sheet (Annexure II) containing the statement of imputations of misconduct, list of documents and list of witnesses by which the charge is proposed to be proved. There are 21 documents and 15 witnesses enlisted in the said Annexure II. As the applicant had denied the charges, an inquiry was conducted under Rule 14 of CCS (CCA) rules by appointing one Shri A.K. Bansal, Superintending Engineer, Telecom Civil Circle-II, Bangalore Telecom District as the Inquiry Officer. Shri P. Gopalan, Executive Engineer, Headquarters, Office of the C.E. (Civil), KTZ, Bangalore was the Presenting Officer. While the inquiry was on, the applicant retired on superannuation. The Inquiry Officer has submitted his inquiry report dated 30-5-2005 to the disciplinary authority, a copy of which is produced at Annexure A14. A copy of the inquiry report (Annexure A14) alongwith the CVC’s advice was given to the applicant to furnish his submissions on the same (Annexure A16). The advice of the CVC was obtained even before obtaining the applicant’s submission on the inquiry report. The CVC had advised stiff major penalty vide Annexure A15. The applicant had submitted his detailed reply, a copy of which is available at Annexure A17. The first respondent obtained the views of the UPSC vide letter dated 25-9-2006 (Annexure A18). Thereafter the first respondent vide memorandum dated 26-6-2006 (Annexure A19) the impugned order, imposed the penalty of withdrawing entire monthly pension and gratuity admissible to the applicant permanently.
3. The applicant has given detailed grounds for seeking the relief of quashing the impugned order at Annexure A19. Some of the important grounds are:
In the reply to the charge sheet submitted on 10-11-2003 the applicant had pointed out that issues raised in the departmental charge sheet are under adjudication before the Special Judge for CBI cases at Mysore and had sought for stay of the inquiry. Though he had requested for permission to defend his case through an advocate no order was passed on the said request. Crucial documents sought by the applicant were denied as not relevant. The detailed reasons for holding them as not relevant were not given. The transcript of the tape containing Audio recording of the conversation between the applicant and the alleged bribe giver was not made available. Even the statement made by the applicant himself was denied by the Inquiry Officer. The Investigating Officer has been listed as Witness No. 15 and the Chemical Examiner, Government of Karnataka has been listed as Witness No. 14, from the prosecution side, but the Inquiry Officer had not even issued witness notice to the above two witnesses. Even before the case of the disciplinary authority was concluded, the applicant was forced to examine his defence witnesses. A perusal of the questions asked by the Inquiry Officer to the applicant goes to show that the Inquiry Officer did not question the applicant on any circumstance appearing against him in the evidence, but, on the other hand the Inquiry Officer closely cross examined the applicant with a view to collect evidence in support of the charges. Withholding material witnesses after having the witnesses in support of charges, entitles the applicant for adverse inference against the charges. Inquiry is vitiated by bringing on record impermissible material such as statements of several persons who were never examined as witnesses as also marking of several documents none of which is proved through any competent witness. Such statements could not have been relied on by the Inquiry Officer as the persons who have made the statement were not included in the inquiry. A reading of the Inquiry Officer’s report goes to show that there is no application of mind whatsoever to the defence of the applicant and to the evidence that has come on record as a whole. The Inquiry Officer has given findings even beyond the scope of charge; such findings are based on no evidence and they are clearly contrary to the evidence on record and are based on surmises, suspicions and conjectures. Hence the findings are perverse. The disciplinary authority came to conclude that the applicant is guilty without hearing him on the Inquiry Officer’s report. He also concluded that stiff penalty is required to be imposed on the applicant. After coming to such a conclusion, the applicant was heard on the findings of the Inquiry Officer and the advice of the CVC. Even at that stage advice of the UPSC was withheld. It is thus clear that the applicant has been condemned to a post decisional farce of a notice as against pre-decisional substantive right of hearing which he was entitled to.
4. The first respondent has filed a reply statement. The counsel for Respondent-2&3 submitted that the said respondents would accept the reply filed by the first respondent. The factual submissions made by the applicant have been confirmed in the reply. The respondents contend that there is no legal bar for institution of the judicial as well as departmental proceedings simultaneously on the same set of facts. The assistance of a legal practitioner as defence assistant was not permitted as the Presenting Officer was not a legal practitioner and also because the charge framed against the applicant did not involve any complicated questions of law. “The inquiry was held generally in conformity to the procedure prescribed in the statutory rules. There was no denial of reasonable opportunity to the Applicant as the Charged Officer, nor violation of the principles of natural justice, at any stage of the proceedings, as is evident from the records of the inquiry. After discussing the evidence on record, threadbare, the Inquiring Authority recorded cogent and well reasoned findings on each element of the charge.”
5. The respondents contend that the procedure laid down in the rules were followed while seeking advice of CVC and UPSC. There was no infirmity in the procedure followed in imposition of the penalty on the applicant. The charge of demand and acceptance of illegal gratification has been held as proved and on the gravity of the offence held as proved, the penalty was imposed. It is further submitted that this Tribunal has no jurisdiction to sit on judgment over the decision of the competent disciplinary authority to impose penalty on the applicant on the basis of valid evidence on record. There was no denial of reasonable opportunity nor violation of the principles of natural justice and there was no infirmity whatsoever in the procedure followed. Further, quoting the Hon’ble Supreme Court in State of Andhra Pradesh v. Sree Rama Rao the respondents submit that it is not the function of this Tribunal to review the evidence and to arrive at an independent finding on the evidence. Judicial interference is permissible when departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some consideration extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion on similar grounds. But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of the fact and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed.
6. We have heard the counsel on both sides and gone through the pleadings carefully. When the case came up for hearing the counsel for the applicant submitted that the applicant has been acquitted of criminal charges on 21-11-2006. The impugned order was passed before the acquittal, i.e., on 26-6-2006. The counsel then, invited our attention to the findings of the Inquiry Officer in the inquiry report at Annexure A14. The last paragraph under the title, “Assessment of Evidence” reads: “In this way, though enough opportunities in absence of certain documents has not been extended to Charged Officer, on reasonable opportunities of some of the documents in violation of natural justice. But simultaneously as Engineer-in-charge, (Charged Officer) also failed to perform effectively as per provisions of contract to safeguard the interest of department by accepting work of poor quality and by not deducting the prescribed amount in lieu of not keeping Site Engineer of appropriate qualification as per provision of agreement etc. & Shri G.S. Gangaiah failed to defend himself by not taking any action against Shri M.B. Sheshanna, Site Engineer, who was inside about 20 minutes when he was alone and who was forcing / thrusting the money within his hands (as per his version) owing to which water turned pink when the fingers dipped in and not action against the person forcing for bribe is also indirect acceptance of bribe.” After assessing the evidence as above, the Inquiry Officer has come to the following conclusion: “In the light of above facts, I am convinced that Shri G.S. Gangaiah has failed to maintain integrity as enjoined in Rule 3(1(i) of CCS Conduct Rules, 1964, I hold the article of charge is proved.” Honestly stated, the sentence “In this way…in violation of natural justice” is incoherent to us. However, according to the counsel for the applicant and learned Senior Central Government Standing Counsel, by rearranging the juggled words and phrases, the sentence can be discerned as: “In this way, in the absence of certain documents, though reasonable opportunities “has” (sic) not been extended to the charged officer, in violation of natural justice…”(sentence remains incomplete and hence the next sentence has to be linked to it) but, simultaneously as…is also direct acceptance of bribe”.
7(a). While the Inquiry Officer has admitted that reasonable opportunity has not been extended to the charged officer, in violation of natural justice, in the absence of certain documents, he has arrived at the conclusion that the charged officer had failed to perform effectively as per the provisions of contract to safeguard the interest of the department by accepting work of poor quality and by not deducting prescribed amount in view of not keeping Site Engineer of proper qualification as per the provisions of the agreement. The next conclusion is that the charged officer has also not taken any action against Shri M.B. Sheshanna, Site Engineer who was with him for 20 minutes when he was alone and who was forcing and thrusting the money within his hands (as per his version) “owing to which water turned pink when the fingers dipped in and not action against the person forcing for bribe is also indirect acceptance of bribe”. This shows that the charge of demanding and acceptance of bribe has no where been proved but the Inquiry Officer has come to a conclusion that a different charge (framed by the Inquiry Officer at the stage of preparing the inquiry report), of not performing the duty effectively has been proved. He also concludes that there was “indirect acceptance of bribe”, which again is not a charge. Such an allegation is not there in the articles of charge or imputations of misconduct.
(b) Two key witnesses viz., the witness who complained regarding demand of bribe and the witness who was supposed to have paid the bribe did not participate in the inquiry; two other important witnesses listed at Sl. No. 14 and 15 of the list of witnesses, the Chemical Examiner and the Investigating Officer were also not summoned. The Inquiry report itself shows that only 6 of the 15 witnesses listed by the prosecution attended the inquiry. An important document sought by the defence the transcription of the tape in which the conversation between the charged officer and the Site Engineer is stated to have been recorded, was denied to him without giving any valid reason. The reply filed by the respondents is silent on the submissions in the OA about the failure to provide the documents sought by the charged officer, without assigning any reason whatsoever; the reply also draws a blank on the absence of four key witnesses during the inquiry. Thus a serious lacuna in the procedure of conducting the inquiry stands admitted by the respondents. During the hearing the learned Counsel for the applicant cited the decision of the Hon’ble High Court of Karnataka in G.V. Aswathanaryana v. Central Bank of India and Ors. , wherein the Hon’ble High Court held that refusal of Disciplinary Authority/inquiry officer to furnish documents requested and sought by the delinquent, results in prejudice. It was further held that the delinquent in a departmental or domestic inquiry is entitled to demand and receive 2 sets of documents, namely (i) all those documents on the basis of which the disciplinary authority has framed the charges and the documents on which the disciplinary authority places reliance to prove those charges and (ii) other documents which may not be the basis for framing the charge nor those on which the disciplinary authority places reliance to prove the charges against the delinquent, but, which are required by the delinquent to effectively defend himself in the inquiry and to effectively cross-examine the witnesses of the disciplinary authority. It is the burden of the disciplinary authority and not of the delinquent to show that non supply of documents required by the delinquent did not cause any prejudice. Relying on the above decision/observation of the Hon’ble High Court of Karnataka, we hold that in the present case there was a serious flaw in the process of conducting the inquiry causing prejudice to the charged officer (which has also been admitted by the inquiry officer in the inquiry report).
8. As already discussed in the previous para, the Inquiry Officer, while drawing his conclusion on assessment of evidence has held a new charge as proved ” that of not performing effectively as per provisions of contract and “indirect acceptance of bribe”. In conducting an inquiry under Rule 14 of CCS (CCS) Rules, no material from the personal knowledge of the Inquiry Officer which has not appeared either in the articles of charge or in the statement of allegations and against which the accused Government servant has had an opportunity to defend himself should be imported into the case. Be that as it may, the report of the Inquiry authority is only an enabling document which helps disciplinary authority in framing his own opinion. It is intended to assist the disciplinary authority in coming to a conclusion about the case against the Government servant. The Inquiry authority’s findings are not binding on the disciplinary authority who can disagree with them and come to his own conclusions on the basis of its own assessment of the evidence forming part of the record of the inquiry. In the present case, if the disciplinary authority wanted to disagree with the Inquiry officer and hold that the charge of demanding and accepting bribe has been proved with reference to the evidence which formed part of the inquiry, he could have done so after recording reasons for such disagreement. He should then have forwarded the Inquiry report alongwith such reasons for disagreement to the charged officer for his submissions on the same. In the present case the disciplinary authority has agreed with the Inquiry Officer (as no disagreement was recorded) which means that he agreed with the fact that the charge of demand and acceptance of bribe has not been proved, but a charge, (which was not in the charge sheet) of not performing effectively has been proved. Shri V.N. Holla, counsel for the Respondents-2&3 argued that as the Inquiry officer has categorically stated that charges are proved after discussing evidence, the disciplinary authority has agreed with the said inquiry report and there was no question of disagreeing with the findings of the inquiry officer. Proving a charge is not just making a ‘categorical statement’, it has to be done logically, taking into account the evidence that has come up through documents and witnesses; otherwise the conclusion is perverse. Counsel further points out that the UPSC has also given further advice after appreciating the findings. The submissions of the counsel only go to prove that disciplinary authority, CVC and UPSC had decided on the newly framed charge (at the stage of submission of Inquiry report) of “failure to perform affectively” and “indirect acceptance of bribe”.
9. Shri K.N. Chandrashekar, learned Senior Central Government Standing Counsel took us to the Inquiry proceedings containing the deposition made by one Shri B.S. Vasudeva Rao, Officer, Canara Bank, Head Office who was listed as SW3 in the proceedings. But as it is not for the Tribunal to reassess the evidence (as rightly submitted by the respondents in the reply statement), we dissuaded the learned senior counsel from reading the statements of witnesses recorded during the Inquiry. The senior counsel further stated that the Inquiry Officer had discussed in detail the findings by the Presenting Officer, gist of the defence brief and had then evaluated the evidence. The Inquiry Officer had reached his conclusion after taking into account all the materials as above. This submission does not in any way help us to draw an inference that the Inquiry Officer had held that the charges framed in the charge memo have been proved. There is no doubt in our minds that the disciplinary authority, by simply forwarding the inquiry report to the charged official, without any comments of disagreement on the same, (which action is as good as accepting the findings of the Inquiry Officer, which are prejudicial and perverse) has failed in his duty to act as per Rule 15 of CCS (CCA) Rules.
10. It is also the grievance of the applicant that the procedure for obtaining CVC’s advice was not followed and the advice was taken at his back. If a copy of the Inquiry report alongwith the applicant’s reply for the same was forwarded to CVC, the CVC would have examined what the applicant had to say regarding the findings of the Inquiry Officer. Counsel submits that Vigilance manual requires that while referring the matter for second stage advice of the Central Vigilance Commission, “cause shown by the employee against the adverse findings recorded against him by the Inquiry Officer as also his report should be sent to the Central Vigilance Commission along with the report of the Inquiry Officer and views of the Disciplinary Authority.” Even before seeking submissions of the applicant against the report and findings of the Inquiry officer, the matter was referred by the 1st respondent to the Central Vigilance Commission by its letter dated 20-06-2005 and on the basis of such one sided reference without having the benefit of the say of the applicant, the Central Vigilance Commission by its advice advised imposition of stiff major penalty on the applicant. It was only thereafter, by a memorandum dated 13th July 2005, copy of which is produced as ANNEXURE-A16, that the applicant was asked to make his representation against the findings of the Inquiry Officer as also second stage advice of the Central Vigilance Commission”. The counsel further contends that even while obtaining the views of UPSC, the submissions of the applicant against the inquiry held against him and the findings recorded against him have not at all been made available to the UPSC also.
11. We find it difficult to agree with the contention of the applicant’s counsel that the impugned order is bad in the eyes of law for the reasons stated in the above para. Obtaining CVC’s and UPSC’s advice at certain stages is only to help the disciplinary authority to arrive at a conclusion regarding the quantum of penalty. The advice of either body is not binding on the disciplinary authority. It has also been held by the Hon’ble Apex Court in UOI and Anr. v. T.V. Patel in Civil Appeal No. 2067 of 2007 (Arising out of S.L.P.) (C) No. 11651 of 2005 (date of decision 19-4-2007) that “the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law”. Thus any technical irregularity in the consultation process with CVC or UPSC cannot be taken as a ground to set aside the action taken by the disciplinary authority.
12. During the hearing the counsel for the applicant also relied on the judgment of Hon’ble Supreme Court in G.M. Tank v. State of Gujarat and Anr. 2006 AIR SCW 2709 Date of judgment 10-5-2006 wherein it was held that in cases where departmental inquiry and criminal proceedings are based on identical and similar set of facts and evidence and same witnesses, if the employee is honourably acquitted by the criminal court, the findings to the contrary recorded in departmental proceedings are unfair and oppressive. In the present case the departmental case was concluded on 26-6-2006 with the issue of the impugned order. The proceedings in the criminal court were over only on 21-11-2006 and the applicant has been acquitted in the trial Court. As the departmental proceedings were over before the acquittal, the above case is not directly applicable to this OA. The ratio of Shri G.M. Tank’s decision will be applicable only if the disciplinary authority takes a decision contrary to the findings of the criminal court based on the same facts and witnesses after the conclusion of such criminal proceedings.
13. Judicial review of administrative action is permissible when the process required to be followed is not followed or when the laws of natural justice are violated in the disciplinary proceedings. In the present case, the process of departmental inquiry was defective for reasons of non supply of documents to the charged official and non examination of key prosecution witnesses. Secondly holding the applicant guilty of a new charge of failure to perform effectively, and indirect acceptance of bribe without giving the applicant any opportunity to defend his case against the said charges is against the principle of audi alteram partem. We therefore quash and set aside the impugned order. OA is allowed. In the circumstances, there will be no order as to costs.