JUDGMENT
S.K. Kar, J.
1. The casual background of this petition, filed under Article 226/227 of the Constitution of India praying for an appropriate writ or a direction, is the impugned judgment and order dated 4.2,2003 passed by the Central Administrative Tribunal, Guwahati Bench (in short, ‘the CAT’) in O.A. No. 384/2002 (Annexure-K to the Writ Petition).
2. The facts leading to the repeated litigations are as follows, shorn of unnecessary details.
The respondent herein (Shri Radhey Shyam Mauyra, henceforth to be referred only as ‘Mauyra’) was the application in O.A. No. 384/2002 aforesaid. The respondent Mauyra was initially appointed as primary teacher in K.V.S., (Kendriya Vidyalaya Sangathan) and subsequently selected as trained graduate teacher in 1993 and then as post graduate teacher in Chemistry from 1995 in K.V.S. Khanapara, Guwahati. He was placed under suspension on 1.6.1999 (vide office order No. 14-5/99-KVS (GR)/2001-93 dated 1.6.1999). Disciplinary proceeding (DP) under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short, CCS(CCA) Rules) was drawn up against him on 9.8.1999 and the articles of charges numbering five were framed, (As per the writ petitioners) statements of the allegations of mis-conduct and mis-behaviour on which articles of charges were framed, together with a list of documents proposed to be proved were furnished to him also. But the respondent failed to present his written statement against the aforesaid charges within a stipulated time. The Inquiring Officer (I.O.) and the Presenting Officer (P.O.) were appointed and Inquiry report was accordingly submitted stating therein that most of the charges have been established. Copy of the Inquiry report was forwarded to the respondent on 20.4.2000 asking him to make representation, if any, but respondent kept silent. On consideration of the Inquiry report and other accompanying circumstances the Disciplinary Authority (DA), who is petitioner No. 3 in the writ petition, found respondent guilty of misconduct as per Rule 3(1) – (i) and (iii) of the Central Civil Services (Conduct Rules, 1964 (in short CCS (Conduct) Rules) and an order of removal of respondent from service was passed and served upon him on 29.5.2000 before receiving any representation from him within the stipulated time-limit of 5th of May, 2000 (It is stated that representation was received in the afternoon of 29.5.2000 but the decision to impose penalty of removal was taken in the forenoon of 29.5.2000.) The order of removal dated 29.5.2000 was challenged in appeal by the respondent subsequently on 9.6.2000 and it was considered by the competent authority and the appeal was rejected by order dated 5.2.2001.
3. The respondent thereafter approached the CAT by presenting an application, O.A. No. 20/2002. Learned Tribunal by order dated. 28.6.2001 set aside the D.P. and the order of penalty was quashed with a direction to go for de novo Inquiry by appointing another Inquiry Officer. The direction of the CAT was complied with by the D.A. and fresh inquiry proceedings were taken up on 19.10.2001, 29.11.2001, 19.12.2001, 18.1.2002, 19.1.2002 and 22.2.2002 by appointing Mr. N.D. Joshi as the new Inquiry Officer. Written statement from the respondent was received in this context on 19.9.2001 and on completion of the inquiry, the Inquiry report was submitted on 9.3.2002 holding that except article of charge No. V all other article of charges have been proved. On receipt of the Inquiry report the respondent submitted his representation dated 11.4.2002 to the D.A. challenging the validity and legality of the Inquiry report and the D.A. after careful consideration of the Inquiry report and the representation of the delinquent officer (i.e. the respondent) imposed penalty of removal from service by order dated 1.5.2002 (memo No. F.14-5/01-KVS(GR)/6692-94 dated. 1.5.2002). An appeal was preferred thereafter by the respondent before the petitioner No. 2 on 8.5.2002 but without awaiting for the result of the same another application before the CAT was filed which was registered as O.A. No. 219 of 2002. Vide order dated 17.7.2002 the learned CAT declined to admit the application with a direction for disposal of the pending appeal expeditiously.
4. The appellate authority (petitioner No. 2 herein) after giving personal hearing to the appellant (respondent herein) and taking into consideration relevant facts confirmed the penalty of removal from service rejecting the appeal. Thereafter, the order of the appellate authority was challenged by an application before the CAT in O.A. No. 384/2002, contending therein that Inquiry proceeding was vitiated and the finding of the Inquiry Officer was perverse and praying for quashing the order of removal dated 1.5.2002 as well as the order of appellate authority dated 15.11.2002. The petitioners herein duly contested the said application by presenting written statement and producing all the relevant documents by learned CAT by the impugned judgment and order set aside the order of removal as well as the order of the appellate authority with a further direction for re-instatement of the respondent within one month with full back wages etc. Hence this present writ petition pleading perversity, impropriety and illegality, etc. in the impugned order.
5. It was further contended in the petition filed by the writ petitioners that there is manifest errors in the impugned judgment, and the order of re-instatement with all consequential benefits is entirely unfounded. That the learned CAT over-looked the fact that the respondent herein had himself in his connected written statement dated 19.9.2001 admitted most of the charges. That the CAT completely failed to appreciate the documentary evidence. That it was entirely wrong on the part of the learned CAT in holding that the Principle of Natural Justice had not been followed during the course of the Inquiry. That a bare look into the minutes of the sittings of the Inquiry Proceedings will reveal that the respondent was afforded all reasonable opportunities to present his case and was supplied with all papers as were asked by him and all accommodations sought were conceded to by the Inquiry Officer. That the impugned order could not reflect any procedural impropriety but would be demonstrative of non-application of judicial mind. That if allowed to stand it will result in gross mis-carriage of justice. That it was consistently held by the Hon’ble Apex Court that disobedience, misconduct and dissatisfaction of the master, etc. are the grounds to justify dismissal from service. That power of judicial review to be exercised by CAT is similar to that usually exercised by the High Court under Article 226 of the Constitution. That whether it is the Tribunal or Court, it can interfere only, if the charges that were framed in the disciplinary proceeding on the basis of imputation are improper, or particulars of charges do not bring out any case of misconduct, or the charge is contrary to the law. That the tribunal cannot take over the function of the disciplinary or appellate authority and has no jurisdiction to look into the truth of the charges or correctness of the findings recorded by the DA or the appellate authority, as the case may be.
6. The sole respondent Shri Mauyra presented his affidavit-in-opposition in this case on 28th May, 2003 contending, inter alia, that the Inquiry Officer neither followed the procedure as prescribed under Rule 14 of the CCS(CCA) Rules, 1965 nor adhered to the principles of natural justice while conducting the inquiry on 19.10.2001, 29.11.2001, 19.12.2001, 18.1.2002, 19.1.2002 and 22.2.2002. That the Inquiry Officer did not allow him (the delinquent/charged officer and respondent herein) to examine himself in order to disprove the charges and he was not even permitted to call witnesses for cross-examinations who were connected with the documents relied upon by the DA. That the Inquiry Officer only interrogated the respondent/charged officer (C.O.). That the detailed written statement was submitted by the respondent on 19.9.2001 with regard to the article of charges formulated against him. That the pleas taken by the respondent was not discussed by the Inquiry Officer while presenting the inquiry report and presented his one-sided report. That the Inquiry report submitted by the second Inquiry Officer, Shri N.I). Joshi on 22.3.2003 (wrongly given in place of 09.03.2002) is similar to the Inquiry report submitted by the earlier Inquiry Officer, Mr. R.K. Gautam in the ex-parte inquiry report on 20.4.2000 (wrongly mentioned instead of 25.03:2000). That the respondent is being victimised and harassed for raising his voice against sub-standard/ inferior quality of chemicals supplied by the authorities and such of his contentions may be substantiated from the audit report dated 4/ 22.5.2000 enclosed with the application No. 384/2002 and the respondent has been put under great difficulty. That his family is suffering since 1.6.1999 when he was put initially under suspension and litigations started one after another. That any stay of order dated 4.2.2003 will bring untold miseries to his family.
7. It is seen that in his affidavit-in-opposition the respondent has also reproduced, in brief, what he had stated earlier in written statement dated 19.9.2001 and repeated in his representation dated 11.04.2002 before the Disciplinary Authority with respect to the article of charge sand Inquiry Report.
7A. By order dated 5.12.2003 this court refused to stay the impugned judgment and order dated 4.2.2003.
8. We have heard Mr. K.N. Choudhury, learned senior counsel for the writ petitioners, as well Mr. D.K. Mishra, learned senior counsel appearing for the sole respondent; perused the materials on record and the documents produced before the Court and considered the submissions made.
9. Following citations were referred to us, only by the counsel appearing for the petitioners –
(a) AIR 1957 SC 882 (885)(paras 9/10); Union of India v. T.R. Verma,
(b) 2002 (3) SCC 443, State of UP and Ors. v. Ramesh, Chandra Manglik (paras 10/11) at pages 447-9.
(c) 2002 (8) SCC 68 (paras 4/5 and 6) Debotosh Pal Choudry v. Punjab National Bank and Ors..
10. Before we enter into the discussions of law of propriety and tenability of the impugned order, let us have a introductory look into the material facts of the case. The material and relevant part of the articles of charges framed against respondent are reproduced as below for the sake of easy reference and convenience, etc.-
“ARTICLE-I
That the said Shri R.S. Maurya, while functioning as PGT (Chemistry) Kendriya Vidyalaya, Khanapara, Guwahati during the academic year 1998-99 went to Kendriya Vidyalaya, Dinjan, to conduct practical examination of CBSE, Chemistry for Class-XII (Science) on 15.2.1999 without permission/relieving by the competent authority.
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ARTICLE-II
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………………………….. all students were awarded 30/30 marks in Practical examination of Chemistry.
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ARTICLE-III
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asked the students to bring chemicals for Practical ………………………. refused to take CBSE (AISSCE)’ 99 Chemistry Practical examination for Private students.
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ARTICLE-IV
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…………………………….had not submitted session ending question papers in the stipulated date as notified by the Principal.
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ARTICLE-V
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……………………..never attended assemblies, staff meetings called by the Principal ……………………………..
ARTICLE-VI
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During the academic year 1998-99 had tampered the official documents.
…………”
11. It is the admitted position that there were as many as 6 sittings before the Inquiry Officer spreading over a period of more than 4 months. It is also another fact which is not in dispute that the article of charge No. I took most of the time and inquiry was abruptly closed with regard to article of charges No. II to VI within 2/3 days and that charge No. V was not established.
12. It will be significant and appropriate to look into the written statement (Annexure-F) dated 19.9.2001 presented by the respondent before the Disciplinary Authority in connection with the Departmental Proceeding. The necessary and significant part of the written statement which may be argued as admission may be cited in the following excerpts from the written statement. We quote –
ARTICLE-I
“…………………………………………………………………………………………….
2. That the Principal, K.V., Khanapara vide order No. F. 58/KVG/97-98/685-686-687 dated 4.2.1999 relieved me for conducting Chemistry Practical Examination in K.V., Narangi on 5th and 6th February, 1999. However, no formal ‘Relieving Order’ was issued in respect of K.V., C.R.P.F., Amerigog, Gauhati and K.V., Dinjan respectively. Thereafter, by seeing the plight of the Class-XII students, I submitted an application to the Principal, K.V., Khanapara on 10.2.1999 for relieving me to conduct the Chemistry Practical Examination at K.V., C.R.P.F., as well as K.V., Dinjan. However, there was no response from the Principal, K.V. Khanapara. I met her personally and requested her to relieve me. But she refused to respond. I was in affixed as what should I do so that I am not put in difficulty. Since, I was appointed as External Examiner to conduct the Chemistry Practical Examination of Class-XII at K.V., C.R.P.F. and K.V., Dinjan by the C.B.S.E. and by the Principal respectively, I felt duty bound to conduct the Chemistry Practical Examination at both the places on or before 15.2.1999. I am astonished as to why no mention has been made of my conducting Chemistry Practical Examination in K.V., C.R.P.F., Amerigog, Gauhati. Be it stated that I again submitted an application dated 15.2.1999 to the Principal and accordingly informed her my action/departure to K.V, Dinjan for conducting Chemistry Practical Examination in respect of Class-XII students. Further, it is also stated that neither I was given any “phone call message” by Mr. K.K. Choudhury, Regional Officer, C.B.S.E., nor I was asked not to go to K.V, Dinjan for the same. It is also to be worth mentioning herein that there is no closed nexus between myself and Mr. Achhar Singh, Principal, K.V, Dinjan. Mr. A. Singh is well known to me being the former and neighbouring Principal of K.V, C.R.P.F. wherein the present Principal, K.V, Khanapara tried for her posting in the year 1995 by replacing him.”
ARTICLE-II
SECOND PART
“3(B)………………………………………………………………………………..
Since the Chemistry Practical Classes could not be conducted due to shortage as well as non-availability of chemicals arising due to reasons stated above, for which students could not be made to suffer. After completion of the Class XII Projects and Practicals, I wrote a letter to the then Principal namely, Shri N.D. Bhuyanon 13.12.1998 seeking his guidance into the matter. The aforesaid letter was hand-written letter and the same was handed over to the then Principal, K.V., Khanapara. It was felt that since the Chemistry Practical Examination cannot be taken, and therefore, uniform marks should be given to the students without making any discrimination and therefore each students were given 30 marks …………………………………………………………………………
……………………………………………………………………………………………”
ARTICLE-III
FIRST PART
“4(A)……………………………………………………………………………………………
After conducting the Chemistry Practical classes of XI and XII, both these items namely Methylated Spirit and Distilled water were almost exhausted. And in the interest of Class XI, I asked them to bring these two chemicals so that the Chemistry Practical Examination may be conducted in a fair and efficient manner. (Please refer Annexure-6.) I have no otherwise personal interest in the matter.
The Notice dated 20.3.1999 as sent to me to the Principal, K.V., Khanapara for her counter – Signature and when she refused to sign, it was pasted on the Notice-Board as well as displaced on the door of the Chemistry Laboratory and the same was informed to the students also 23.3.1999, was fixed for Chemistry Examination for girl-students, however, none of them reported to the laboratory, rather they were found in the Principal’s chamber.”
ARTICLE-IV
“5………………………………………………………………………………. I requested her to permit me to use cyclostyled question paper by cutting stencils one day prior to the Examination. However, she did not say anything. I took silence, as per permission. Moreover, under similar situation I prepared the cyclostyled question paper one day before the Cumulative Test by seeking the verbal permission of the then Principal.
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………………………………….. Therefore, it is crystal clear that the Principal was averse to the method adapted by me. The fact, that on being ordered by the Principal on 26.2.1999, I immediately handed over the Question Paper to the seniormost P.G.T., namely, Mrs. B.P. Goswami. Therefore, it, itself would establish that I did not violate her order and thus there was no insubordination leading to unbecoming behaviour etc. as alleged.”
For the sake of brevity further the contentions of the respondent put in his written statement may not be reproduced. But if one goes by the contentions of the entire written statement it will be seen that it is in the type of admissions of the facts alleged with explanations appended to plead innocence. It is already observed that the respondent actually reproduced part of his written statement dated 19.9.2001 before Disciplinary Authority in his present affidavit-in-opposition here before us.
13. In the context of the nature/type of evidence to be adduced by the Presenting Officer in inquiry proceedings in order to prove charges framed against delinquent officer, Mr. Choudhury while leading us through AIR 1957 SC 882, wanted to impress upon us the following observations of the Constitutional Bench of the Hon’ble Apex Court made therein. It goes as below :
“Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which contains in a Court of Law.
Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.
If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.”
Learned counsel has categorically submitted that in a disciplinary proceeding the standard of proof is ‘preponderance of probability’ and not ‘proof beyond reasonable doubt’, and burden is equally on both sides to establish the respective cases pleaded by them. He opposed vehemently the contention of the learned counsel of the opponent side that niceties of the Evidence Act is to be taken care of by the Inquiring Authority,
14. Giving our anxious considerations to the submissions made, and the factual aspects reflected in this writ petition vis-a-vis the contentions of the delinquent officer (C.O.) in his written statement before the disciplinary authority and the affidavit-in-opposition presented here, we find, at the risk of repetition, that most of the facts are undisputed, or in other words, there is a case of admission of material facts, leading to the imputations, by the respondent. Principle of Evidence Act provides that things admitted need not be formally proved.
15. Learned counsel for the respondent tried to impress upon us strenuously about the reasons why respondent is being proceeded against the Disciplinary Authority and submitted that the harassment to the respondent started only when respondent No. 4 joined in the post of Principal in the concerned K.V.S., Khanapara on 29.5.2002. The authority had not been in favour of the respondent thereafter and matter of purchases of articles was personalised because respondent was against the proposal of purchase of sub-standard chemicals for the Chemistry Laboratory. However, we find that these facts are beyond the scope of scrutiny in this writ petition. What is required to be seen in this writ petition is whether the impugned judgment and order is legal and justified in the background of the factual propositions, either, admitted or proved. It is also another requirement to see whether natural justice was followed in the Departmental Proceeding and the delinquent was given a reasonable opportunity of being heard in respect of the charges against him as per the dictates of Sub-clause (2) of Article 311 of the Constitution of India.
16. In (2002) 3 SCC 443 (supra) it was held that non-supply of documents, by itself, is not fatal unless it is shown that prejudice was caused to the delinquent thereby. Vide para 11 of the judgment cited, it was held :
“…………… The submission is that the delinquent will also have to show as to in what manner any particular document was relevant in connection with the inquiry and what prejudice was caused to him by non-furnishing of a copy of the document.”
It was also observed in the same para that ‘obligation to supply copies of documents is confined only to material and relevant documents which have been relied upon in support of the charges and nothing more’. The other case-law cited, i.e., (2002} 8 SCC 68, also speaks on the same subject and we find there is nothing more to discuss on this topic.
17. Inquiry Proceeding: Coming to the facts during the inquiry proceedings (a photocopy of which has been placed before us) it will be seen that the delinquent took active part in the proceedings all through out and had presented his exhaustive replies vide the connected written statement dated 19.9.2001 (Annexure ‘F’ and ‘I’ to the writ petition and counter respectively). During the initial stage of the proceeding it is recorded by the Inquiry Officer that the charged officer desired to examine documents and it was confirmed that the charged officer was supplied with all the documents on 9.7.2001 and 18.7.2001. On 29th November, 2001, the Inquiry Officer noted as below :
” The P.O. once again showed all the listed documents numbering serial Nos. 1 to 27 in original / Xerox copy in some of the cases (specified on the list) and satisfied the queries of the C.O.).”
During initial part of the proceedings on 29.11.2001 the Inquiry Officer made following noting in the proceedings :
“The C.O. expressed satisfaction in respect of the documents requisitioned by him and agreed to extend full co-operation in the future course of action.”
It is also clear from the facts recorded in the written statement that the charged officer made extensive replies which can be done only when all the documents were made available to him. It will be worthwhile to note here that the disciplinary authority mentioned only few documents as evidence and no name of the witnesses was cited in the list of witnesses. Therefore, aforesaid objection regarding non-supply of documents has no force, if not misconceived; and accordingly stands rejected.
18. Coming to the question of article of charge No. 1, contention of the charged officer before the Inquiry Officer was that in identical cases other teachers were granted permission to conduct the examination whereas it was refused in his case. We fail to understand what is, or may be, the relevancy of such objection. However, C.O. admitted he left the station without relieving order to conduct practicals at K.V., C.R.P.F. and K.V., Dinjan, for welfare of the students. Annexures-L/1 and L/2 are the relevant documents. Annexure-L/1 is addressed to the Principal, Kendriya Vidyalaya, Khanapara, Guwahati by one A. Singh, Principal, Kendriya Vidyalaya, Dinjan, appointing respondent Mauyra as external examiner for Chemistry practical at Kendriya Vidyalaya, Dinjan (Army). It contains on endorsement from the Principal concerned that he cannot be relieved as there was no communication from C.B.S.E. Annexures-L/1 and L/2 of writ petition are copies of same documents marked as Annexures 2 and 4 of the counter. Therefore, it is a clear admission on the part of the respondent that he went to K.V., Dinjan to conduct Chemistry practical examination on 15.2.1999 without getting necessary permission from his Principal. It will be significant to refer to his counter affidavit in this context. In para 3(a) of the counter affidavit, it is stated that the Principal did not pass any order in respect of Kendriya Vidyalaya, C.R.P.F, Amerigog and K.V., Dinjan but he conducted the practical examination there as he was duty bound to do so without formal relieving order. The respondent submitted that although he conducted practical examinations both at K.V., CRPF, Amerigog, Gauhati as well as K.V., Dinjan, he was charged only with the allegation of taking practical examination at Dinjan and not that at K.V., CRPF etc. without being formally relieved. We find no substance in such type of submissions as there is no law that department is to include in the charge each and every short-comings or acts of misconduct and cannot proceed with one or more of them in exclusion of others.
19. Although it cannot be disputed that the enquiry was conducted in the form of questions and replies with respect to documents there is nothing to show that it is not permissible. If we go by the proceedings recorded by the Inquiry Officer it will reflect that the charged officer was given all opportunities to defend his case. It is clearly mentioned that Dr. C.B. Dwivedi and Mr. A. Narzary were produced as defence witnesses by the charged officer and learned Inquiry Officer had held that their evidence is not at all relevant so far the article of charges against the delinquent (charged officer) are concerned. So, the comment of CAT that it is not shown who brought these witnesses is unwarranted and misconceived. During the proceedings of 22.2.2002 the charged officer was behaving like authority directing the Inquiry Officer what the Inquiry Officer should do and what he should not. Although this annoyed the Inquiry Officer but it appears that the Inquiry Officer did not do anything to impute prejudice or impropriety on his part in conducting subsequent part of the inquiry. In their reply to the counter affidavit, the writ petitioners have clearly stated in para 3 as follows :
“He was not only provided with all the relevant documents (to which he had duly expressed his satisfaction and the same was recorded during the proceeding of 29.11.2001) but also two witnesses produced by the respondent were duly examined by the Inquiry Officer on 18.1.2002 as will be revealed from records and therefore, the statements made contrary thereto are categorically denied.”
Therefore, it is not appropriate to say that the charged officer was not given opportunity to examine the documents and it is not certain on whose behalf these witnesses were examined as opined by the learned CAT.
20. Coming to the inquiry report, Annexure-G/2 we find that the Inquiry Officer had recorded in his report that Disciplinary Authority provided all opportunities to the charged officer to inspect the original and additional documents numbering about 61. A plain reading of the inquiry report will disclose that there is no scope of imputing prejudice. Moreover, no document was disputed as such by the charged officer as has been observed earlier in this judgment. We find substance in the submission of Mr. Choudhury that the delinquent officer only made evasive denials of the charges against him.
21. In our humble opinion the law in AIR 1972 SC 330 (339) has been misquoted in this case by the learned CAT. It was given in the context of a case where a document was produced in court but its contents were challenged by the opponent. It is in that connection the Apex Court opined as follows –
“………. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes At, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced…………………………..”
There is nothing to dispute the law but the question is whether its ratio is applicable in the present factual assertions. We confidently say ‘No’. The authenticity of none of the document was in challenge in the connected departmental inquiry. It is also not correct to say that the Inquiry Officer ‘nowhere took into consideration the explanation of the applicant cited in the written statement’ as observed by learned CAT. We have already noted that it was only ‘explanation’ that was forwarded by the Charged Officer as defence and nothing more. But fact remains that explanations so forwarded were never satisfactory to prove innocence.
22. Along with a copy of his representation dated 11.04.2002 against the inquiry report the Respondent (charged officer) annexed copies of several documents, e.g., (i) written statement dated 19.9.2001, (ii) appointment letters as examiner by Asst. Secy, CBSE & Principal, Dinjan K.V., (iii) his letters of request to Principal, K.V., Khanapara for ‘Relieving orders’ dated 10.2.1999, 15.2.1999, (iv) minutes of meeting of parents of Students of K.V., Khanapara on 1.8.1998, 23.8.1998, (v) order by Principal, Shri N.D. Bhuyan, Principal, K.V. empowering him and other to purchase chemicals, (vii) appreciation letter from Secretary to Govt. of Assam for purchasing chemicals and “managing laboratory well, (viii) copies of question papers in chemistry, Biology, (ix) attendance sheets of students in practical examination in groups, (x) letter addressed to him by student explaining why they could not attend class, (xi) letter to Principal by him for sanctioning of Rs. 1,000/- for purchase of chemicals etc., (xii) bills for chemicals, (xiii) explanation for not entering in stock register, (xiv) several letters addressed to Inquiry Officer by him requesting what steps to be taken by Inquiry Officer in conducting the inquiry, (xv) receipt of telegraph sent to I.O. for furnishing him with Rules etc. from Disciplinary Authority and (xvi) letter by Inquiry Officer to him in connection with appointment of Defence Assistant etc. etc.
23. The reply by the Inquiry Officer to his request for appointment of Defence Assistant goes as follows (relevant portion of letter only) –
“…. … … you are permitted to recommend the name of a serving/retired employee of the KVS alongwith his consent and other details viz. Qualification, Full official and residential address etc. to the undersigned latest by 31.12.2001.
It is clarified that a person, other than the KVS, will not be permitted to assist you in defending your case as per the KVS rules.”
Therefore, it will not be correct to say that the D.A./I.O. had even not allowed to appoint Defence Assistant, as contended by the respondent in his counter-affidavit.
24. We are constrained to observe that the respondent (charged officer) went far beyond his limit in most audacious way in the pretext to defend himself from the charges. The volumes of documents submitted along with the affidavit-in-opposition; the contents of the written statement dated 19.9.2001 and the representation dated 11.04.2002 against the Inquiry report, would clearly demonstrate that these are full of unwarranted accusation against the Inquiry Officer and Disciplinary Authority in a most pedant and insane manner, which by themselves, again may be termed as unbecoming of an honest and sincere civil servant.
25. Be that as it may, let us now examine adverting to the main topic whether ‘reasonable opportunities’ were denied to the respondent. What is ‘reasonable opportunity’ has not been defined in the Constitution or the General Clauses Act, but by now, due to several judicial interpretations, it has acquired a legal meaning as opposed to vagaries and the word ‘reasonable’ now means according to rules of Natural Justice, which are rules of law. A reasonable opportunity in legal significance includes opportunity given to the employee to cross-examine the witnesses examined against him and to lead evidence in support of his version where the department submitted a charge-sheet against him. It is a question fact. It is only when an opportunity denied is of such a nature that the denial contravenes a mandatory provision of law or rules of natural justice that it could vitiate the whole departmental proceeding / trial. Moreover, prejudice to the Government servant resulting from such denial must be proved (AIR 1976 SC 2037; R.C. Sharma v. Union of India). It was held by Court that Rules of Natural Justice are not embodied rules nor they can be elevated to the position of fundamental rights. The aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriages of justice. They can operate in areas not covered by any law validly made, that is to say, they do not supplant the law but supplement it. It cannot be disputed that whenever a complaint is made before a Court that some principles of natural justice had been contravened what Court has to do is to decide whether the observance of that rule was necessary for a just decision on the facts of the case. It was also held that rules of natural justice are not rigid but flexible and their applications depend much upon the setting and background of statutory provisions. If we examine the facts of the case in hand, as discussed before-hand against the light of the principles of law of natural justice we find no contravention of the principles here. The charged officer actively participated and was given all fairness, fair plays and reasonable opportunities in the inquiry in question. It will be worth noting here in this context what he stated in para 2(v) of his written representation dated 11.4.2002 on the Inquiry report. We quote –
“……. The law requires that an adjudicating authority should first deal with the charges, the evidence in support of the charges and the defence against the said charges and discuss them in his report before reaching the findings which could be based only on the discussions made in the manner as stated above but, that has not been done in the instant case and the defence has been deal with first in total isolation and thereafter the prosecution case has been dealt with. This has caused a great prejudice and the Inquiry Report is accordingly vitiated.”
26. To summarise, a simple reading of the more than needed exhaustive representations dated 11.4.2002 aforesaid against the inquiry report will demonstrate that the respondent had categorically admitted the facts giving rise to the charges trying to justify, in his own way, his actions claiming exoneration; but then, there were no denials of the most of the charges. Respondent has referred to specific documents relied upon by the Disciplinary Authority to give his explanations; and in his own conception of the proceedings and the laws, took part all along in the latest Department Proceeding. We find no clear-cut case of violation of the principles of natural justice in this case. Rather in our considered view the matter has been made unnecessarily complicated by the respondent without following any norms and on no valid reasons. There is a clear case of insubordination, aggressive mannerism and defiance of authority of superiors on the basis of the undisputed factual matrix. Here is a well-established case of defying the authority of the superior acting in a manner unbecoming of a civil servant. Thus, misconduct and misbehaviour have been proved by the inquiry in question and respondent is liable for punishment.
27. It is stated that the respondent has been in service for about 18 years now. He is re-instated by order of the learned CAT and this Court has not granted any stay of the impugned order passed by CAT. Hence let us now consider the question whether the punishment of removal of the respondent from service is disproportionate to the nature of misconduct in question. We are aware of the law that once there is a finding regarding proof of misconduct, what should be the nature of punishment to be imposed is for the Disciplinary Authority to consider; quod vide, 1996 (10) SCC 371; N. Rajarathinam v. State of Tamil Nadu and Anr. It is the settled principle of law that penalty must be commensurate with misconduct. In the instant case the respondent had also expressed the conflict of his mind and confusion as to what should have been his appropriate action vis-a-vis the refusal of the authority to grant the requisite ‘relieving order’ for going out of station in order to hold practical examination when he mentioned in the written representation dated 11.04.2002 as follows :
“Sir, with all humility at my command I state that had I not gone to K.V. Dinjan for conducting Chemistry Practical Examination I would have still been charge for the dereliction of my duty. I made a request to the I.O. to call the appointment orders of teachers of K.V., Khanapara who were appointed as External Examiners in 1998-99 etc. and then to see whether all the appointments were issued by the C.B.S.E., Gauhati or some were also issued by the Principal of the respective Vidyalaya. This request was denied unjustly.”
He is suffering for more than four years since 1.6.1999 and perhaps is repentant now.
28. In our view the overall impact of the defence version and the plea of explanations against the charges brought, will justify a penalty other than removal or dismissal from service. In a recent case Hon’ble Apex Court, reported as 2003 (10) Scale 459; State of Rajasthan and Ors. v. Sujata Malhotra, held in the context of delinquent remaining absent from duty for five years as follows :
“5. .. .. … High Court possibly would not be within its power to interfere with an order of punishment inflicted in a departmental proceeding until and unless any lacuna in the DP is noticed or found. But having regard to the fact that the order of reinstatement has already deem implemented and the respondent is continuing in service subsequent to the order of the High Court, we are not inclined to interfere with that part of the order of the High Court, even though, we find considerable force in the arguments of the counsel for the State of Rajasthan.”
29. In the results, it is hereby ordered as follows. The findings and the views of learned CAT in so far they are inconsistent with the findings and the views expressed in this judgment of ours are reversed and varied save the question of re-instatement of the respondent into service. The order of reinstatement will remain undisturbed. The petitioners will re-hear the respondent/charged officer only on the question of penalty/punishments including back-wages etc. and pass appropriate order of punishment other than that of either removal or dismissal from service.
30. Under facts and circumstances, parties are left to bear their own costs.