ORDER
Shanker Raju, Member (J)
1. Applicant impugns respondents’ order dated 24.1.2001, imposing upon him a penalty of removal from service and also an order dated 27.8.2001 passed in appeal, upholding the punishment. Re-instatement with all benefits has been sought.
2. Before adverting to the legal contentions and their adjudication a brief factual matrix leading to the filing of the O.A. is relevant to be highlighted.
3. Applicant is a Physical Education Teacher (PET) and is General Secretary of the Rastriya Kendriya Vidyalaya Adhyapak Sangh (Jagat Singh) (hereinafter referred to as RKVAS (J)).
4. The aforesaid association voices the demands and other ancillary problems faced by the teachers before the respondents. By letter dated 10.3.1998 Central Executive Committee of the RKVAS(J) which has met on 22.2.1998 raised demands pertaining to amendment in the pay scale of Primary Teachers, revision of the pay scale of PET of KVS at par with NDSI, grant of same pay scale to the Music Teachers as of TGT scale and grant of TGT scale to Yoga Teachers as well as residency period for ACP Scheme. On 6.1.1999 RKVAS wrote to the Deputy Commissioner (P) agenda for 9th Joint Consultative Machinery (JCM). The meeting was held on 12.1.98 under the Chairmanship of Commissioner, KVS. Accordingly, agitation proposed to be recommended by the Central Executive Committee has been postponed. Earlier a JCM was held on 12.3.97 as well.
5. A JCM held on 19.2.99 under the Chairmanship of Sh. D.K. Srivastava, Joint Commissioner (Admn.) has discussed the demands of applicant.
6. The Central Executive Committee of the RKVAS (J) by a letter dated 23.7.1999 when after the meeting held with the Executive Meeting on 19.2.1999 had not brought any fruitful results, again requested the authorities to look into the matter and take a decision, failing which Dharna and effigy burning of Sh. D.K. Srivastava, Joint Commissioner (Admn.) KVS who is responsible for the worsening condition of KVS at all regional offices of KVS on 18.8.99 by regional and unit office bearers of RKVAS; treating the Teachers Day (5th September) 1999 as a Black Day by the Teachers by putting on black badges; and Dharna, All India Rally & effigy burning of Sh. D.K. Srivastava, Joint Commissioner will be organised at and in front of KVS Headquarters/Jantar Mantar on 5.11.99 were proposed. A permission has been sought to adopt additional agitational path with proper security arrangements.
7. Shri G.D. Sharma, Assistant Commissioner in a notification published in the Newspaper in the wake of proposed agitation by the RKVAS directed issuance of necessary instructions with a warning that any Teacher/employee indulging in the activities shall be proceeded under the CCS (Conduct) Rules, 1964 and advised Principles not to grant leave to the employees except on medical or emergency grounds, decided to deal with the proposal of RKVAS firmly.
8. On 18.8.99 a rally was organised at the premises, of KVS preceded by pasting of posters calling upon the Teachers and employees to assemble at the Regional Office to burn the effigy of Additional Commissioner. Preparations have been make and rally was held with the speeches of various office bearers. In one of the speeches by applicant Sh. Jagat Singh, Commissioner is addressed as ‘Moorakh’ (fool) and Sh. G.D. Sharma, Additional Commissioner was equated with ‘ Ass'(donkey). The effigy of Sh. D.K. Srivastava bears the words in Hindi ‘Gaddar Hai’ (traitor). The effigy was placed outside the premises and was burnt at KVS headquarters, which was followed by crackers. The Principles have been directed to prepare a report and on the basis of which a memorandum under Rule 14 of the CCS (CCA) Rules, 1965 for a major penalty has been issued to applicant with the following statement of articles:
“ARTICLE-I
That the said Sh. Jagat Singh while functioning as PET at Kendriya Vidyalaya, No. 1 Delhi Cantt. and General Secretary RKVAS (J) during the period/year 1999, got some posters pasted on the walls of the Regional Office, Delhi a few days before the organisation of Teachers’ Rally on 28.8.99 without any permission of the Assistant Commissioner, Delhi Region, intimating, exhorting and instigating the teachers Members RKVAS (J) to assemble for a rally on 18.5.99 to protest against the policies and individual officers of KVS and also to burn the effigy of the Joint Commissioner (Admn.) Sh. D.K. Srivastava. Sh. Jagat Singh prior to the pasting of posters and giving a call for the Rally had not served any charter of demands to the Assistant Commissioner nor had he sought any appointment with the Assistant Commissioner Delhi Region for discussing the charter of demands. Thus this act of Sh. Jagat Singh General Secretary, RKVAS (J) for giving a call for the Rally without exhausting the channel of discussion amounted to misconduct in defiance to O.M. No. 18/21/60-I-R.I date 9th May, 1961 from the department of labour & employment reproduced in Swamy’s Publication under Rule 6(B) (V)(D) and Rule 3(i)(ii) of CCS Conduct Rules, 1961.
ARTICLE-II
That the said Sh. Jagat Singh while functioning as PET at Kendriya Vidyalaya No. 1 Delhi Cantt and General Secretary RKVAS(J) during the period/year 1999, staged a Rally in the premises at the Regional Office, Delhi and Kendriya Vidyalaya, New Mehrauli Road, deliberately and intentionally in full view of the students which not only vitiated disturbed the teaching learning programme of the school but also created a very unhealthy and demeaning effect/impact on the minds of young students who watched the activities of Sh. Jagat Singh and other teachers who were busy in preparing the stage, putting up the banner and pasting the posters by the railing and at the school gate from 10’O’ clock in the morning. The acts of Sh. Jagat Singh and his accomplices were watched by the students with excitement, astonishment, disdain and derision and amounted to misconduct in contravention to Rule 7(4) and also O.M. from G.I. Ministry of WW & HAV No. 366 dated 10th June, 1969 and Rule 3(i) (ii) of CCS (Conduct) Rules, 1964 and Articles 55(22) of the Education Code of Kendriya Vidyalaya Sangathan.
ARTICLE-III
That the said Sh. Jagat Singh while functioning as PET at Kendriya Vidyalaya, No. 1 Delhi Cantt and General Secretary RKVAS(J) during the period/year 1999, got some posters pasted on the walls of the Regional Office, Delhi a few days , before the organisation of Teachers’ Rally on 28.8.99 without any permission of the Assistant Commissioner, Delhi Region, intimating, exhorting and instigating the teachers Members RKVAS (J) to assemble for a Rally on 18.8.99 to protest against the policies and individual officers of KVS and also to burn the effigy of the Joint Commissioner (Admn) Sh. D.K. Srivastava. Sh. Jagat Singh prior to the pasting of posters and giving a call for the Rally had not served any charter of demands to the Assistant Commissioner nor had he sought any appointment with the Assistant Commissioner, Delhi Region for discussing the charter of demands. Thus this act of Sh. Jagat Singh, General Secretary, RKVAS(J) for giving a call for the Rally without exhausting the channel of discussion amounted to misconduct in defiance to O.M. No. 18/21/60-L.R.I. dated 9th May, 1961 from the department of labour & employment reproduced in Swamy’s Publication under Rule 6(B) (V)(D) and Rule 3(i)(iii) of CCS Conduct Rules, 1961.”
9. Applicant, at an interlocutory stage of the enquiry approached this Court in O.A.-73/2000, which by an order dated 20.1.2000 was dismissed, as pre-mature and not interfered with at an interlocutory stage.
10. Applicant filed another O.A. No. 976/2000 before the Vacation Bench alleging denial of additional documents relevant for the defence. By an interim order dated 3.6.2000 respondents have been restrained from passing a final order. By an order dated 8.7.2000 O.A. No. 976/2000 was finally adjudicated with an observation that it is open for the applicant to cross-examine prosecution witnesses and also to produce and examine defence witnesses. Inquiry Officer (I.O.) has been directed to conclude the inquiry and pass appropriate orders.
11. During the course of inquiry several witnesses had been examined. The Presenting Officer (P.O.) furnished his brief to the I.O. which had been served upon applicant. Two pages of P.O. brief were illegible, which led to filing of O.A. No. 2498/2000. By an order dated 13.12.2000 O.A. No. 2498/2000 was disposed of with the following directions :
“3. Proceedings of the Enquiry Officer indicate that the Enquiry Officer has not taken note of the written brief of the Presenting Officer either. He has submitted his report based on the evidence on record. In the circumstances, we find that ends of justice would be met by disposing of the present O.A. by issuing a direction to the Disciplinary Authority to first serve legible copies of the paras appearing at Annexure A-6. Applicant should thereafter be given adequate opportunity to make his submissions in regard to the report of the Enquiry Officer. Disciplinary Authority will thereafter proceed to pass appropriate orders in accordance with law.”
12. The I.O. before the order passed by the Tribunal, without taking into consideration either the P.O.’s brief or defence brief, issued his report on the basis of evidence and documents led during the course of inquiry. Applicant has been held guilty of all the charges.
13. In pursuance of the directions of this Tribunal in O.A. 2498/2000 applicant filed a detailed defence brief as well as his reply to the inquiry report.
14. The Disciplinary Authority by a non-speaking order dated 24.1.2001 agreeing with the findings of the I.O. with regard to the articles of charge imposed upon applicant a penalty of removal from service.
15. The aforesaid penalty was challenged by applicant by way of a detailed appeal preferred on 16.2.2001. The Appellate Authority by an order dated 27.8.2001 upholding the punishment rejected the appeal, giving rise to the present O.A.
16. Learned Senior Counsel Mr. G.D. Gupta appearing with Mr. A.K. Behera and Mr. Bharat Bhushan, raised the following contentions in support of the applicant’s case :
(i) As one of the allegations is pouring sufficient venom and calumniating officers including Shri G.D. Sharma, Assistant Commissioner by using unparliamentary language and equating him with an ass, the order passed by Shri G.D. Sharma, ordering departmental inquiry against applicant and issuing memorandum under Rule 14 of the CCS (CCA) Rules vitiates the proceedings. On real likelihood of bias, being an interested person he should not have associated himself in any manner whatsoever with the disciplinary proceedings.
(ii) Article-I of the charge as asine qua non mandates recording of the activities as prejudicial by the head of the department, i.e. Commissioner of KVS. Non-compliance of the same vitiates the inquiry. (iii) As regards Article-II of the charge, as the rally had been organised outside the premises of the KVS, Rule 7 of the CCS (Conduct) Rules is not attracted. (iv) Insofar as Article-Ill is concerned, it is defied on the ground of no misconduct with further assertion that the effigy was not burnt by applicant. (v) The order passed by the Disciplinary Authority is non-speaking, depriving a reasonable opportunity of effective appeal causing prejudice to the applicant. (vi) The appellate order too is non-speaking, without dealing with the contentions of applicant. Perversity of the findings of the I.O. and the fundamental right of applicant to hold demonstration and voice legitimate demands. 17. The learned Counsel of applicant has cited a plethora of decisions which would be discussed later on. 18. On the other hand, the learned Counsel appearing for the respondents, Mr. M.K. Joshi, vehemently opposed the contentions and defended the orders passed by respondents.
19. The learned Counsel states that in order to establish a case of bias it is important that it should be real apprehension and not a likelihood. According to him, assuming that though charge-III of the memorandum does not apparently refer to using unparliamentary words against Shri G.D. Sharma, yet, in a given circumstance the same action would have been followed by any other authority, Moreover, as applicant has failed to establish any prejudice caused to him, referring to the decision of the Apex Court in Workmen Motor Association v. Motor Industries, AIR 1969 SC 1280, it is contended that the prime mover, i.e., applicant, who is general secretary of RKVAS(J), man in command has been chargesheeted. It is further stated that the gravemen of the charge is not hurling abuses towards any particular person but is the immoral and unethical conduct of applicant being a role model and holding the status of a teacher.
20. As regards violation of Rule 6 of the Conduct Rules ibid it is stated that what has been a misconduct is joining of an association being a member whose activities and objectsare prejudicial to the interest and sovereignty, public order and morality. O.M. of 9.5.1961issued by the Ministry of Labour and Employment which provides facility of display on notice as a fundamental right to voice legitimate demands precludes any criticism and activities subversive of discipline and use of objectionable and offensive language directed towards an individual. It is contended that once on the face of it established allegations constitute one of the prohibitive action, the head of the department has no role to play. It is only when the head of the department observes the activity as subversive of discipline O.M. dated 7.6.1978 has application.
21. As regards charge-Ill it is contended that Rule 7 forbids demonstration within the office premises without permission. Staging of rally and burning of effigy tied with the wall of the KVS is splitting the hair and accordingly notification dated 10.6.1969 shall have application.
22. Learned Counsel by referring to the misconduct contends that no prejudice has been caused to applicant as neither P.O.’s brief nor defence brief was taken into consideration and the findings arrived at by the I.O. rest upon credible, unshaken and unrebutted evidence of the prosecution witnesses conclusively establishing the charges against the applicant. No procedural illegality has been pointed out. The conclusions of the I.O. rest upon available evidence and are not perverse even applying the test of a common reasonable prudent man.
23. The learned Counsel further contends that mere intimation of the proposed rally does not ipso facto construe permission. As the posters have been affixed, preparations were made within the sight of the students, applicant being a teacher and as a guru rather proving to be a role model has put the institution on a low pedestal. The activities of the applicant are not only against the spirit of Code of Conduct of KVS but is unbecoming of a teacher. As the demands have been put in the JCM and are being considered in the right perspective, the action of applicant to hold Dharna and burning of effigy with personal interest and to achieve ulterior goals is certainly prejudicial to the interest of the KVS.
24. As regards orders passed by the Disciplinary Authority, it is fairly conceded that the same are not speaking, but relying on the doctrine of merger, referring to the appellate order, it is contended that the same is a reasoned order dealing with all the contentions of applicant. All the requirements laid down under Rule 27 of CCS (CCA) Rules have been meted out as the report of the I.O. rests upon admissible evidence pointing out towards the guilt of applicant has been relied upon to uphold the punishment.
25. Learned Counsel contends that it is for the applicant to show that if any of the grounds taken in the appeal has not been discussed and considered what prejudice has been caused to him. In this conspectus it is stated that in the peculiar facts of the case being an extraordinary situation, right of applicant has not been taken away. He further states that what is being tested by the authorities is the findings of the I.O. If the same is rested on evidence, applying the test of a common reasonable prudent man there has been an application of mind. Learned Counsel refers to the decision of the Apex Court in State of T.N. & Anr. v. S. Subramaniam, (1996) 7 SCC 509 to contend that when the conclusions reached by the authority are based on evidence, this Tribunal is precluded from reappreciating the evidence.
26. Learned Counsel further relies upon the decision in State of T.N. v. Thiru K.V. Perumal and Ors., (1996) 5 SCC 474=1996(3) SLJ 43 (SC) to contend that in case of non-supply of each and every document relevance of each document is to be established by the delinquent to establish prejudice on account of non-supply of the same.
27. As regards the contention that action taken by RKVAS (J) is by Central Executive Committee and a letter written by the RKVAS(J) on 27.10.1999, keeping in abeyance the programme of 5.11.1999, it is contended that the letter does not show a common decision of the Central Executive Committee but it is a single-handed response of applicant.
28. The learned Counsel further states that calumniating referred to in charge-Ill does not refer to Shri G.D. Sharma as an ass. In fact it is the accusation of Shri D.K. Srivastava as traitor (Gaddar). Learned Counsel states that sufficient evidence has come on record that applicant instigated the teachers to assemble in the rally on 18.8.1999 in full view of the students and burnt the effigy without prior permission of the Competent Authority. According to the respondents, all reasonable opportunities had been afforded to applicant during the course of inquiry.
29. In so far as punishment is concerned, it is stated that the same is proportionate to the charge in the given circumstances and in an extraordinary situation the proportionality of punishment has been gone into by the Appellate Authority. In such a case unless the conscience of the Court is shocked Tribunal is precluded from interfering with the punishment.
30. In the rejoinder applicant has reiterated his pleas taken in the O.A. and annexed several documents and additional pleas to substantiate his case.
31. During the course of hearing both the parties have been directed to furnish to the Court the Video CD of the incident, which reflects the activities of RKVAS(J) and role of applicant. In compliance thereof, Mr. G.D. Gupta, learned Sr. Counsel appearing for applicant, furnished to us copy of the Video CD. However, the respondents have failed to furnish us their version of the Video CD.
32. We have carefully considered the rival contentions of the parties and viewed the Video CD to prevent miscarriage of justice and to facilitate proper adjudication of the case.
33. As regards the first contention raised by the applicant as to right of demonstration, Article 19(1)(a) & (b) of the Constitution provides not only to the private persons but to a Government servant right of demonstration to express manifestly the feelings of group or individual in for form of speech and expression with certain restriction. The Apex Court in a Constitutional Bench decision in Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 observed as under :
“(13) The first question that falls to be considered is whether the right to make a “demonstration” is covered by either or both of the two freedoms guaranteed by Articles 19(1)(a) and 19(1)(b). A “demonstration” is defined in the Concise Oxford Dictionary as “an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession”. In Webster it is defined as “a…….as by a parade or mass-meeting”. Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one’s ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since sings made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Article 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Articles 19(1)(a) and 19(1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Article 19(1)(a) or (b). It can equally be peaceful and orderly such an happens when the members of the group merely wear some badge drawing attention to their grievances”.
34. The Apex Court in another Constitutional Bench decision in O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 insofar as validity of Rule 4(a) of the CCS (Conduct) Rules prohibiting demonstration observed as under:
“(10) This argument raises the problem of construction of Clause (4). Can it be said that the rule imposes a reasonable restriction in the interests of public order? There can be no doubt that Government servants can be subjected to rules which are intended to maintain discipline amongst their ranks and to lead to an efficient discharge of their duties. Discipline amongst Government employees and their efficiency may in a sense, be said to be related to public order. But in considering the scope of Clause (4) it has to be borne in mind that the rule must be in the interests of public order and must amount to a reasonable restriction. The words “public order” occur even in Clause (2), which refers, inter alia, to security of the State and public order. There can be no doubt that the said words must have the same meaning in Clauses (2) and (4). So far as Clause (2) is concerned, security of the State having been expressly and specifically provided for public order cannot include the security of State, though in its widest sense it may be capable of including the said concept. Therefore, in Clause (2), public order is virtually synonymous with public peace, safety and tranquillity. The denotation of the said words cannot be any wider in Clause (4). That is one consideration which it is necessary to bear in mind. When Clause (4) refers to the restriction imposed in the interests of public order, it is necessary to enquire as to what is the effect of the words “in the interest of. This clause again cannot be interpreted to mean that even if the connection between the restriction and the public order is remote and indirect the restriction can be said to be in the interests of public order. A restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct. Indirect or far-fetched or unreal connection between the restriction and public order would not fall within the purview of the expression “in the interests of public order”. This interpretation is strengthened by the other requirement of Clause (4) that, by itself, the restriction ought to be reasonable. It would be difficult to hold that a restriction which does not directly relate to public order can be said to be reasonable on the ground that its connection with public order is remote or far-fetched. That is another consideration which is relevant. Therefore, reading the two requirements of Clause (4) it follows that the impugned restriction can be said to satisfy the test of Clause (4) only if its connection with public order is shown to be rationally proximate and direct. That is the view taken by this Court in Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633. In the words of Patanjali Sastri J in Rex v. Basudev, 1949 FCR 657 at p.661: (AIR 1950 FC 67 at p. 69) “the connection contemplated between the restriction and public order must be real and proximate, nor farfetched or problematical”. It is in the light of this legal position that the validity of the impugned rule must be determined”.
35. Delhi High Court in S.D. Sharma v. Trade Fair Authority of India, 1985(1) SLR 670=1985(1) SLJ 160 (Delhi) held as follows:
“(19) Now there is no dispute that a meeting was held. Petitioner spoke and participated in the meeting, Mr. Chopra accepts all this and says that the petitioner had a fundamental right under Article 19 to attend meeting and hold demonstration and if Conduct Rules are interpreted to make such participation per se actionable the said action would be plainly not only illegal but unconstitutional. We find force in this contention.
(20) In Kameshwar Prasad v. State of Bihar and Anr. (11), first part of Rule 4-A to the effect that no Government servant shall participate in any demonstration or resort to any form of strike in connection with any manner pertaining to his conditions of service, was held to be violative of Article 19 of the Constitution as infringing the protection guaranteed by Articles 19(1)(a) and (6) of the Constitution. The Court specifically held that right to make a demonstration is covered by Articles 19(1)(a) and 19(1)(b) as it is in effect a form of speech or of expression. It was also recognised that demonstration may take various forms and that a peaceful and ordinary demonstration to draw attention to their grievance would fall within the freedoms guaranteed under these clauses. The Court struck down the rule because the vice of the rule consists in this that it lays a ban on every type of demonstration be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result. The Court also rejected the contention that person in service of Government are outside the protection of Part III of the Constitution.
21. That departmental proceedings taken against an employee for participating actively in demonstrations organised in connection with strike were quashed as being violative of the fundamental right guaranteed under Article 19(1)(b) of the Constitution and the principle laid down in Kameshwar Prasad’s case (supra) were reiterated (See. O.K. Ghosh and Anr. v. E.X. Joseph (12). In that view even on the assumption that a meeting was held and demonstration made without the permission of the Chairman could not be found a valid charge. The mere fact that Clause 5(21) so provides, it is of no consequence because if it so applied the prohibiting a peaceful demonstration which has been recognised as constitutionally protected in Kameshwar’s case (supra). Clause 5(21) would have to be declared as invalid”.
36. Hyderabad Bench of this Tribunal in A.V. Reddy v. State of A.P., ATR 1988(1) CAT 271 (Hyd.) observed as under:
“9. Thus, while it is the case of the applicant’s Counsel that the Conduct Rules are subject to the provisions of the Constitution and Rule 7(1) of the Conduct Rules cannot be read as placing a restriction on the freedom of speech and expression of a Civil Servant in the interest of public order as postulated in Article 19(2), the case Of the Ist respondent as contained in the Counter and as enunpiated by the Advocate-General on the basis of the decision of the Bench of the A.P. High Court in M.V.S. Prasadarao’s case, is that the rights of the applicant to ventilate his grievances are subject to the limitations prescribed in the Conduct Rules. The decision of the A.P. High Court Has in Para 25 upheld the validity of Rule 7(i) of the Conduct Rules on the ground that the Government Servant (the applicant) before the Court was responsible for framing the policy of the Government; that he is also responsible for execution of such a policy; that rules could be framed requiring absolute integrity, devotion to duties and raticence; that Rule 7(i) has a direct relationship to this object sought to be achieved and that it comes within the ambit of public order and is saved by Article 19(2) of the Constitution. With great respect to the learned Judges of the A.P. High Courts, we are unable to agree with this reasoning as contained in Paragraphs 25 and 32 of the judgment rendered in Prasadarao’s case. The philosophy as contained in American decisions in regard to restrictions on the freedom of speech and expression based upon the police power of the State has been rejected in Kameshwar Prasad’s case. Again in regard to the freedom of speech and expression guaranteed under Article 19(1)(a), can restrictions placed thereupon be justified on the ground that the restrictions are reasonable and imposed in the interest of public order. The Supreme Court, following Kameshwar Prasad’s case, held in O.K. Ghosh’s case that public order is synonymous with public peace, safety and tranquility and that an impugned restriction can be held to satisfy the test of, “in the interest of public order” only if the connection with public order is rationally proximate and direct. While holding so the Supreme Court, both in Kameshwar Prasad’s case and O. K. Ghosh’s case, had rejected that discipline among Government Servant cannot be related to public order. In the light of these decisions, it is not open to this Tribunal to take a contrary view and hold that restrictions can be imposed on grounds of discipline or maintenance of efficiency in the interests of public order. There is no decision of the Supreme Court contra to the dictum as laid down in Kameshwar Prasad’s case or O.K. Ghosh’s case. Following these decisions and the decision of the Mysore High Court in AIR 1967 Mysore 261 we hold that in the absence of direct and proximate connection between the restrictions in Rule 7(i) of the All India Services (Conduct) Rules and “public order” namely public peace, safety and tranquility no restriction can be placed on a Civil/Government Servant’s freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution”.
37. A Division Bench of Punjab and Haryana High Court in R.S. Bhatti v. State of Haryana, 2002(2) SLR 474 observed as under :
“10. It is an admitted fact that the petitioner as General Secretary of the Engineers Association with Sh O.P. Verma, President of the Association had sent fax message dated 11.2.1997 to the Chairman, Annexure P-5, which has been reproduced above. The words incites and instigates’ have been defined by the Law Lexicon as under :
“Incites and instigates. The words ‘instigates’ and ‘incites’ should be read to signify something deeper than a mere asking of a person to do a particular act. There must be something in the nature of solicitation to constitute instigation or incitement under Section 27 of the Industrial Dispute Act. The words seem to convey the meaning ‘to goad or urge forward or to provoke or encourage the doing of an act’. It is, sometimes, difficult to bring out the exact meaning of words which, by themselves, are so expressive and precise, and, not unoften, in trying to interpret such words, which, on closer scrutiny, may not carry the same sense.
What acts would amount to instigation or incitement will depend also upon the particular facts of each case. In some circumstances a throw of a finger or a me returning of the eye may give rise to an inference of either incitement or instigation. In others, even strong words, expressly used, may not mean that the person using them was stimulating or suggesting to any one to do a particular act. The words ‘instigates’ and ‘incites’ appear to be synonymous and there must be something tangible in evidence to show that the person responsible for such action were deliberately trying to stir up other persons to bring about a certain object”.
11. In the present case there is no evidence that the petitioner has goaded/provided and encouraged any person to do any act. There is also no evidence that by the act of instigation of the petitioner, any person had gone on strike or had done anything prejudicial to the interest of the Board. There was also no evidence before the Enquiry Officer that the petitioner had made any press statement on 12.2.1997 to any representative of the newspaper in which he had criticised the policy of the Board and thereby had violated Regulations 19 and 20 (1) of the H.S.E.B. Employees (Conduct) Regulations, 1984. Sh. R.S Bhatti, petitioner, in his statement dated 23.1.1988 attached with Annexure P-6 made before the Enquiry Officer in departmental proceedings, had categorically stated that he had sent fax message to the Chairman of the Board highlighting the general feelings of the HSEB Engineers but he had not issued such fax message to the press and it might have been leaked at its level or at any intervening stage. He has further stated that he has not criticised any policy of the Board and had only highlighted the feelings of the Engineers that in operating the costly equipment by unacquainted personal might not cause danger to their lives as well as life of sensitive equipments and said message was give in bonafide discharge of his official duties. He next stated that he had highlighted that HSEB Association was not opposed to one day strike call given by the HSEB Employes Union and the said statement pertained to the whole body of the Association and was not in any way made with the intention of instigating the other employees to participate in the strike which had been declared illegal on account of notification dated 9.1.1997 under the Employees Essential Services Act, 1974. He further stated that he did not take part in the strike and was present on his duty at Thermal Power Station, Faridabad, right from 1 A.M. in the night of 13.2.1997 upto 6 P.M. alongwith other engineers in the plant to do everything possible to safeguard the costly equipments and to operate them the meagre staff available. He next stated that he did not do anything to aggravate the power situation in Haryana, resulting in the closure of Thermal Power Station, Faridabad, disrupting power supply to different parts of Haryana, rather brought back on bar two Units of TPS Faridabad along with all other engineers. He also highlighted that he never encouraged the other employees to wilfully disobey the lawful orders of Competent Authority. As the cost of repetition, it may be again stated that no evidence has been led to prove that by his statement any official was instigated and that he had disobeyed the lawful orders of the Board or had done anything to cause damage to the costly equipment of the Board of as a result of his instigation anybody had gone on strike. He, as a General Secretary of the Engineers Association, had only conveyed to the Chairman of the Board the feelings of the engineers that they would only perform their normal duties on 13.2.1997 onwards any would not handle the costly equipments for which they had no prior training but if they were forced to handle the costly equipments, then they were forced to handle the costly equipments, then they would not refuse to do the job but if any mis-happening takes place, then the Board’s management would be responsible for the same. Certainly from the fax message, it cannot be inferred that he had instigated the other employees to participate in the strike or had aggravated power situation in the State of Haryana resulting in the shut down of the Faridabad Thermal Power Project and disruption of power supply to various parts of Haryana or he wilfully discouraged other employees to disobey the lawful order of the Competent Authority.”
38. If one has regard to the above, mere holding demonstration (Dharna) to voice legitimate demand by a Government servant individually or in group is guaranteed as a Fundamental Right. Any restriction imposed on such a demonstration is invalid. However, such demonstrations like other Fundamental Rights are subject to reasonable restrictions. One of the restrictions which makes the conduct of holding demonstration a misconduct is enumerated under Rule 6 of the CCS (Conduct) Rules which is reproduced as under :
“No Government servant shall join, or continue to be a member of an association the objects or activities or which are prejudicial to the interests of the sovereignty and integrity of India, or public order or morality.”
39. Ministry of Labour and Employment vide its O.M. dated 9.5.1961 insofar as display of notices by the association provide as under :
“(b) Display of notices by the recognised trade unions/associations in the office premises–The facility for display of notices of anon-controversial nature in office premises had been granted to recognised associations/trade unions by some of the Ministries and Departments, in some cases subject to prior approval of notices other than these of specified types. It has been decided that in other Departments/Establishments where such facilities have not been granted hitherto, the associations/unions may be allowed to display notices relating to the following matters:
(i) The date, time place purpose of a meeting. (ii) Statements of accounts of income and expenditure of the Union/Associations. (iii) Announcements regarding holding of elections excluding canvassing therefor and result thereof. (iv) Reminders to the membership of the Associations/Unions in a general way about the dues outstanding against them. (v) Announcements relating to matters of general interest to the members of Association/Union provided: (a) they are not in the nature of criticism; (b) they are not subversive of discipline; (c) they do not contain objectionable or offensive language; and (d) they do not contain attacks on individuals, directly or indirectly." 40. Sine qua non to announce that the activities of an association whether prejudicial to the interest of the sovereignty or offends public order or morality is a decision to be taken by the head of the department as prescribed by the Ministry of Home Affairs in its O.M. dated 7.6.1978, which is reproduced as below :
“(2) Authority competent to decide whether the objects or activities of an Association attract the provisions of Rule 6. In the meeting of the Committee of the National Council (JCM) held on 28lh January, 1977, the Staff Side referred to their request that it should be clearly laid down as to how it should be decided whether the objects or activities of an Association attract the provisions of Rule 6 of the CCS (Conduct) Rules, 1964, as, without such clarification, it was possible for any Competent Authority at any level to proceed against an employee for violation of the aforesaid rule, without proper justification. The views of the Staff Side, have been considered carefully by Government. As a comprehensive and exhaustive enumeration of various objects or activities which would attract Rule 6 of the CCS (Conduct) Rules, 1964, is not practicable and as the apprehension of the Staff Side was mainly in regard to the possibility of arbitrary action at lower levels, it has been decided that action for alleged violation of Rule 6 of CCS (Conduct) Rules, 1964, can be taken by a Disciplinary Authority only when an authority not below the level of a Head of Department has decided that the objects or activities of the Association concerned are such as would attract Rule 6 ibid. Where the Head of Department is himself in doubt, he shall seek the advice of the Administrative Ministry/Department concerned before action for the alleged violation of Rule 6 of CCS (Conduct) Rules, 1964, is initiated.
Ministry of Finance, etc., are requested to bring the above decision to the notice of all concerned serving under their control”.
41. If one has regard to the above, in an event notices are displayed by the association in the office premises informing the members of the proposed demonstration would have to be certified by the head of department as offending public order or morality.
42. In Article-I of the charge applicant is alleged to have violated O.M. dated 9.5.1961 in so far as pasting of posters on the walls of regional office, intimidating, exhorting and instigating the teachers/members of RKVAS(J) to assemble at Regional Office to hold a rally on 19.8.99 and also to burn the effigy of the Joint Commissioner Shri D.K. Srivastava. We have seen the posters as alleged to have been affixed on the walls allegedly intimidating the Teachers. We find that this has been a call to all the regional officers from the Central Executive Committee for the phased/agitation to members for the demands which have been raised in JCM and on which no action has been taken. The phases of agitation have been enumerated and not only RKVAS (J) but this request has come from all the CEC members. We do not find any instigation or intimidation or exhortation to the Teachers/members of the RKVAS (J). This is a call. No evidence has come-forth in the inquiry to establish that in pursuance of pasting of posters the members/teachers who had assembled on 18.8.99 had been forced to assemble under intimidation or exhortation.
43. Moreover, Article-I alleges defiance of O.M. dated 9.5.1961. Display of notices to voice legitimate demands by recognized association which undisputedly RKVAS (J) is, is not a misconduct. What has been a misconduct is that criticism, personal attack and individual use of offensive language but the question is who has to decide the aforesaid activities before any action is taken under Rule 6 and the concerned is alleged for its violation? The answer is simple. Nothing precludes the authorities to take a disciplinary action for violation of Rule 6 of the CCS (Conduct) Rules, 1964 but this has to be decided by the head of the department that the objects and activities of an association had attracted Rule 6. In case of doubt advice of administrative ministry can be sought. –
44. The contention put-forth by the learned Counsel for respondents that if on contextual and literal interpretation if the activities are against the public order or morality, as reflected from the charges against applicant O.M. dated 7.6.78 cannot be adhered to and an action taken for violation is independent. According to the learned Counsel for respondents any interpretation keeping in view the object and purpose of the provision, which has to dissuade association from acting against public order or morality should not be in such a manner to make the provision otiose and redundant.
45. In so far as interpretation of statute is concerned, there are several ways and means and principles to follow. It is settled principle of law that the Court should not function in a way to legislate. It is only to expound the law, as held by the Apex Court in Dadi Jagannadham v. Jammulu Ramulu, (2001) 7 SCC 71, settled principles of interpretation are as follows:
The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly, if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature’s defective phrasing of an Act, or add and mend, and by construction, make up deficiencies which are there, (Para 13), Dadi Jagannadham v. Jammulu Ramulu, (2001) 7 SCC 71″.
46. The Ministry of Labour and Employment stipulated through O.M. dated 9.5.61 the need of prior approval of notices for pasting the posters etc. On a comprehensive and exhaustive study and with an object with the members individually or in group participating in demonstration to voice their legitimate demands may not be victimised as a retaliation by the authority a safeguard has been created vide O.M. dated 7.6.78, providing certification of object and activities of the association as prejudicial immoral by the head of the department. This ensures fairness in the procedure and removing any possibility of false implication. The aforesaid instruction is in no manner supplants the rules. In fact it supplements the rules when the rules are silent as to the procedure adopted. This can be added to by way of executive instructions. These instructions are in no way conflict with the provisions of Rule 6. While determining the intent of the legislature though much importance is to be given to an unambiguous provision to its plain and ordinary meaning but once the provision is ambiguous other principles are to be applied, one of which is external, aids. The O.M. of 1978 is an aid by which a harmonious interpretation is to be rendered to the provision of Rule 6 of the Conduct Rules.
47. Applicant has taken this plea of non-certification of object and activities of association by the head of department who is admittedly Chairman of KVS. The Appellate Authority rejected this contention on the ground that head of department is required to pass an order only when an authority not below the level of head of department has decided that the object or activities of the association concerned are as such would attract Rule 6 of the Rules ibid. As head of department has not recorded any such order the chargesheet is valid. In our considered view this conclusion is misconceived, illogical and irrational as well. The condition precedent for alleging an individual of violation of Rule 6 is certification of his activities by the head of department without which mere demonstration, object and activities would not amount to unethical, immoral, prejudicial or against public order.
48. As the respondents admittedly failed to produce before us any certification prior to issue of the chargesheet to applicant for alleged violation of Rule 6 ibid by the head of department as to the activities this charge is nullity in law and no misconduct can be attributed to applicant on this count.
49. Moreover, misconduct is a generic term any conduct, which is violative of any code of conduct and in violation of the rules, as such act and omissions which reflect loss of integrity, devotion to duty constitute misconduct. The Apex Court in Union of India v. J. Ahmed, 1979(2) SCC 286=1979 SLJ 308 (SC), in so far as misconduct is concerned, observed as under:
“(11) Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. London Chronicle Indicator Newspapers). This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under:
Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Ulkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, in the absence of standing orders governing the employee’s undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, the manner in which a member of the service discharged his quasi-judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive or more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a Railway cabinman signals in a train on the same track where there is a stationery train causing head on collision; a nurse giving inntravenous injection which ought to be given intramuscular causing instantaneous death’ a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd.). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty”.
50. The Apex Court in three-Judges Bench decision in A.L. Kalra v. Project and Equipment Corporation of India, AIR 1984 SC 1361=1984(2) SLJ 82 (SC), held as under:
“(26) Now i f what is alleged as misconduct does not constitute misconduct not by analysis or appraisal of evidence, but per se under 1975 Rules the respondent had neither the authority not the jurisdiction not the power to impose any penalty for the alleged misconduct. An Administrative Authority who purports to act by its regulation must be held bound by the regulation. ‘Even if these regulations have no force of law the employment under these corporations is public employment and therefore, an employee would get a status which would enable him to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulations’. (Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 3 SCR 619 at p.655: (AIR 1975 SC 1331 at p. 1357)”.
51. If one has regard to the above, in our considered view when the act complained of and the violation of which constitutes misconduct under the CCS (Conduct) Rules, 1964, non-fulfilment of condition precedent would not constitute a misconduct.
52. On perusal of the Video CD we find that at the time the preparations were going on the venue was outside the grilled boundary of Regional Office. Though a small stage was erected and a hand loud-speaker was used, we do not find any evidence that the students had assembled or showed curiosity in the action carried on. Even if so, voicing legitimate demands as a fundamental right may require preparation would not per se leave an impression in the mind of the students as to the immorality of a teacher. Keeping in view the record of applicant as a PET and having regard to numerous certificates issued to him he has proven himself during his tenure as an excellent teacher and a role model. A single act of applicant jointly with the decision of the Central Executive Committee to voice legitimate demands, which even in JCM had not been paid any heed but cannot divest away his identity as a guru. The decision of the Apex Court relied upon by the Appellate Authority was in the context of a teacher, who attempted to outrage the modesty of a student. In that conspectus the Apex Court in Avinash Nagra’s case observed the teaching profession as a noble one with dedication. The conduct, character and ability of a teacher was in that conspectus. These qualities are still in tact in applicant and his associates as a group while raising their legitimate demands. Merely because they were calling attention of the authorities when the proper channel had failed with a congregation has not intimidated or exhorted and the teachers and other employees assembled on their own volition clearly show that as a group in pursuance of decision of CEC have unified themselves to propagate the common object. It was not personal vandata of applicant with the authorities. He was acting as a representative of the association voicing their demands. Their document on record shows that the decision has been taken in consultation with all the regional offices in CEC.
53. Even if the preparation has been viewed with curiosity by the students this would have not depraved their mind but rather made them concerned about the apathy of their teachers who have been forced when the legitimate demands have not been paid any heed to voice in public. The prevention of this incident is solely rested upon respondents themselves. The documents clearly show that after February, 1999 when under the chairmanship of Joint Director Shri D.K. Srivastava demands have been acknowledged, yet for six months sitting inert would reflect their bent of mind and indecisiveness. This has compelled the association to adopt the alternate mode of demonstration as a fundamental right.
54. The Tribunal cannot sit as an Appellate Authority over the findings recorded by the department. It is equally settled that reappraisal of evidence is prohibited, yet this does not preclude the Tribunal in a judicial review to ascertain whether the conduct alleged really amounts to misconduct.
55. In J. Ahmed’s case (supra) the test of misconduct is that mere lapse in performance of duty or an error of judgment in evaluating the developing situation may be negligence but would not constitute misconduct unless the consequences directly attributable to negligence would be as such to be irreparable or resultant damage makes the degree of culpability very high. Raising the legitimate demands would not have sustained a lasting effect over the mind of students. Their is no allegation that applicant was in any manner a lacking or inefficient teacher. His work and conduct has proven himself to be an ideal role model teacher. The association’s activities have not at all taken toll of his prime duty as a teacher.
56. In this view of the matter, we do not find any misconduct insofar as article of charge-I is concerned. Pasting of posters without any certification by the head of the department insofar as requirement of Rule 6 of Conduct Rules is concerned, would not constitute misconduct.
57. As regards article of charge-II, the applicant has been alleged to have staged a rally in the premises which was watched with curiosity by the students has been shown to be violative of Rule 7(4) of the Conduct Rules as also O.M. dated 10.6.1961.
58. Rule 7 of the Conduct Rules dissuades a Government servant in engaging in a demonstration which is against public order or morality. What has been alleged against applicant is holding of demonstration within the office premises. From the Video CD as well as evidence brought on record we find that the demonstration has taken place outside the office premises. If the basic requirements of the rule is not satisfied, applicant cannot be held guilty of the charge. The I.O. in his report discussed this aspect and admitted that the rally was organised outside the gate of regional office but the charge has been proved stating that an attempt has been made to split hair which shows that the rally was just outside the gate and not inside the premises. He has held applicant guilty of the charge of holding rally in the close proximity of regional office. It is trite law. that one cannot be punished on a charge which has not been levelled against him. What has been alleged against applicant is holding a rally in the premises of regional office . On the face of it and on the basis of the evidence, it has come on record that the rally was held outside the premises of the regional office. If it is so, the allegations do not constitute violation of Rule 7 ibid. Accordingly, the conclusion of the I.O. is not rested on evidence and is rather based on surmises, suspension and conjectures which cannot be countenanced.
59. The I.O. has not to travel beyond the charge to establish it. What has been alleged, if not established, is not conclusively proved against applicant.
60. However, in view of the decision of the Apex Court in Kuldip Singh v. Commissioner of Police, JT 1998(8) SC 603=1999(3) SLJ 111 (SC), to ascertain whether the finding on a charge is perverse the test is of a reasonable common prudent man. Even taking the view point of a reasonable common prudent man by no stretch of imagination, the rally which has been held on footpath on roadside outside the grilled boundary of regional office cannot be said to be a rally organised inside the premises. Accordingly the findings arrived at by the I.O. on this article of charge is perverse and cannot be sustained.
61. Article-III of the charge shows a caption written on the effigy of Shri D.K. Srivastava observing him as a traitor. The allegations against the applicant are that he poured sufficient venom and calumny on the officers of KVS also burnt the effigy of Shri D.K. Srivastava, Joint Commissioner. The word ‘calumniation’ as defined in various dictionaries including Webester’s Oxford and Black’s Law Dictionary, means as ‘false accusation’ and ‘defamation’. Any damaging statement involving unparliamentary language is a calumniation. The contention of respondents that calumniation refers to the word ‘traitor’ as reflected on the effigy cannot be countenanced. As reflected from the chargesheet apart from alleging caption of ‘traitor’ on the effigy, what has been stated in addition is calumniating the officers which includes the word ‘donkey (ass)’ to which Shri G.D. Sharma was equated with a ‘fool’ referred to the Commissioner. From the perusal of the report submitted by the principal as to the rally and demonstration, it is clear that this report which has formed the basis of the disciplinary action against the applicant incorporates the word ‘ass’ used for Shri G.D. Sharma, Assistant Commissioner. Accordingly, we have no hesitation to hold that Article-III of the charge also alleges the applicant for calling Shri G.D. Sharma as an ‘ass’ during the demonstration.
62. In view of the above, so far as the issue raised by the learned Senior Counsel as to legality of the disciplinary proceedings from inception and action taken by Shri G.D. Sharma as Disciplinary Authority actuated with bias is concerned, bias in the administrative action is forbidden on the principle of ‘nemo debet esse judex in causa propria sua” precludes an interested party in the subject matter from acting as a Judge. This would amount to judging its own cause. The Apex Court in Manak Lal v. Dr. Prem Chand Singhvi, AIR 1957 SC 425 held as follows :
“In dealing with cases of bias attributed to members constituting Tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniary interest, however small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a Judge. But where pecuniary interest is not attributed but instead a bis is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. “The principle”, says Halsbury, “nemo debet esse judex in causa propria sua precludes a justice, who is interested in the subject-matter of a dispute, from acting as a justice therein”. (Halsbury’s Laws of England, Vol. XXI, p.535, Para 952). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applied not only to the justices as mentioned by Halsbury but to all Tribunals and bodies which are given jurisdiction to determine judicially the rights of parties”.
63. In A.K. Kriapak v. Union of India, (1969) 2 SCC 262 the Constitution Bench of the Apex Court insofar bias is concerned, observed as under :
“16) The members of the selection board other than Neqishbund, each one of them separately, have filed affidavits in this Court swearing that Neqishbund in no manner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner. It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like computers. At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naqishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore, there was no occasion for them to distrust the opinion expressed by Naqishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Neqishbund.”
64. The Apex Court in S. Parthasarathi v. State of A.P. (1974) 3 SCC 459=1974 SLJ 286 (SC) laid down the test of bias as under :
“(16) The tests of “real likelihood” and “reasonable suspicion” are really inconsistent with each other. We think that the Reviewing Authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an Inquiring Officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the Inquiring Officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (see per Lord Denning H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Ors., etc.). We should not, however, be understood to deny that the Court might with greater propriety apply the “reasonable suspicion” test in criminal or in proceedings analogous to criminal proceedings.
(17) As there was real likelihood of bias in the sense explained above, we think that the inquiry and the orders based on the inquiry were bad. The decision of this Court in the State of Uttar Pradesh v. Mohammand Nooh, makes it clear that if an Inquiring Officer adopts a procedure which is contrary to the rules of natural justice, the ultimate decision based on his report of inquiry is liable to be quashed. We see no reason for not applying the same principle here as we find that the Inquiring Officer was biased”.
65. In a decision by the Apex Court in State of Punjab v. V.K. Khanna, (2001) 2 SCC 330=2001(3) SLJ 402 (SC) laid down the test of bias as follows :
“(8) The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor, would not arise”.
66. In G.M. Naik v. Goa University, (2002) 2 SCC 712=2002(2) SLJ 308 (SC) the Apex Court held as follows :
“(33) Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi-judicial matter must act impartially.
“If however, ‘bias’ and ‘partially’ be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal create attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices”.
(34) It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self-interest-whether pecuniary or personal. Because of this element of personal interest, bias is also seen as an extension of the principles of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the Courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred”.
67. In the above conspectus and the test laid down by the Apex Court, Shri G.D. Sharma, Assistant Commissioner who ordered a disciplinary proceeding against applicant and issued the chargesheet having regard to the preceding circumstances and his interest involved where on staging demonstration the principal cumulatively submitted a report to Shri Sharma concluding allegation of misconduct which formed the basis of the disciplinary proceeding as well as memorandum issued by Shri G.D. Sharma not only incorporates other allegations of pasting posters and burning of effigy but also using unparliamentary language equating Shri G.D. Sharma with an ass in the reference that while holding the post of principal in the past all the 65 students in his class had failed. The test is real likelihood of bias applying the test of common reasonable prudent man and in these circumstances violation of Rules 6 and 7 of the Conduct Rules has been found unwarranted without following the pre-requisite qualification, the decision taken by Shri G.D. Sharma cannot be isolated from the point of view of an interested party insofar as bias is concerned. The contention put forth by respondents that assuming Shri G.D. Sharma acted as a Disciplinary Authority while issuing the chargesheet, the same would have been a natural outcome keeping in view the misconduct by any other authority. This cannot be countenanced. Ordering of disciplinary proceedings on the basis of conduct of a Government servant is an important decision. If a conduct is not reflected as a misconduct and does not violate any of the rules of codified or otherwise, there may be a different decision arrived at by a person who is not interested in the proceeding acting with an independent application of mind. The allegations levelled against Shri G.D. Sharma were in his knowledge before he ordered an inquiry against the applicant. He should not have associated himself after knowing all the facts on use of alleged unparliamentary language against him by applicant. This has created a real apprehension in the mind of applicant as to holding of an inquiry and ultimate punishment to settle the score and to see that for the allegations applicant is suitably punished. We do not see any unreasonable apprehension of applicant while contending bias against Shri G.D. Sharma. A quasi-judicial authority is bound by the principles of natural justice of which bias is an important ingredient. One who has to judge should not be associated in the subject matter. He cannot be judge of his own cause for an allegation of using unparliamentary against him which makes him a tacit complainant in the memorandum though not cited and examined but the fact remains that there is an allegation on the basis of which applicant has been held guilty incorporates his role. Accordingly charge-Ill of the allegations involves calling of Shri G.D. Sharma as an ass.
68. The action taken by Shri. G.D. Sharma assuming the role of Disciplinary Authority, ordering a departmental inquiry against applicant and serving a memorandum under Rule 14 of the CCA Rules is certainly actuated with bias and this leaves the inception of the disciplinary proceedings as nullity. The Apex Court in Central Bank of India v. C. Bernad, (1991) 1 SCC 319 held as follows:
“(6) In our view, the submission of Shri Shetye based on the de facto doctrine is clearly misconceived. Shri U.B. Menon can hardly be described as a person occupying or being in possession of an office to which certain duties affecting the members of the general public can be said to be attached. The de facto doctrine, as explained earlier, envisages that acts performed de facto by officers within the scope of their assumed official authority are to be regarded as binding as if they were performed by officers de jure. While the de facto doctrine saves official acts done by an officer whose appointment is found to be defective the private parties to a litigation are precluded from challenging the appointment in any collateral proceedings. But the doctrine does not come to the rescue of an intruder or usurper or a total stranger to the office. Obviously the doctrine can have no application to the case of a person who is not the holder of an office but is merely a Bank employee, for that matter an ex-employee. We, therefore, see no merit in this contention”.
69. In this view of the matter issuance of the chargesheet by a person interested is a nullity in law and the consequent orders passed cannot be sustained.
70. The next contention raised by the learned senior Counsel is non-speaking order passed by the Disciplinary Authority. This has to be viewed in the conspectus of the orders passed by the Tribunal in several O.As. filed by applicant.
71. Lastly applicant has come before the Tribunal in O. A. 2498/2000 at a situation when his written brief was not taken into consideration for want of legible copies of prosecution brief. By the time the proceedings were over and the inquiry report was submitted to the Disciplinary Authority., Keeping in view denial of an effective defence to balance the situation instead of quashing the inquiry report the Disciplinary Authority had been directed to serve legible pages of the brief to applicant to make submission on the inquiry report and the Disciplinary Authority was further directed to pass appropriate orders in accordance with law. Rule 15 of the CCA Rules, 1965 provides action on inquiry report. On receipt of the report of the inquiry and after consideration of the representation, the Disciplinary Authority has to pass an order as per Government of India Ministry of Home Affairs O.M. dated 13.7.1981 as well as O.M. dated 5.11.1985 which are reproduced below:
(1) Self contained, speaking and reasoned order to be passed and to issue over signature of prescribed Disciplinary/Appellate/Reviewing Authority. As is well known and settled by Courts, disciplinary proceedings, against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature and as such, it is necessary that orders in such proceedings are issued only by the Competent Authorities who have been specified as Disciplinary/Appellate/Reviewing Authorities under the relevant rules and the orders issued by such authorities should have the attribute of a judicial order. The Supreme Court, in the case of Mahavir Prasad v. State of U.P., AIR 1970 SC 1302, observed that recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal.
(2) However, instances have come to the notice of this Department where the final orders passed by the Competent/Disciplinary/Appellate Authorities do not contain the reasons on the basis whereof the decisions communicated by that order were reached. Since such orders may not conform to legal requirements they may be liable to be held invalid, if challenged in a Court of Law. It is, therefore, impressed upon all concerned that the authorities exercising disciplinary powers should issue self-contained, speaking and reasoned orders conforming to the aforesaid legal requirements.
(3) Instances have also come to notice where, though the decisions in Disciplinary/Appellate cases were taken by the Competent/Disciplinary/Appellate Authorities in the files, the final orders were not issued by that authority but only by a lower authority. As mentioned above, the Disciplinary/Appellate/Reviewing Authorities exercise quasi-judicial powers and as such, they cannot delegate their powers to their subordinates. It is, therefore, essential that the decision taken by such authorities are communicated by the Competent Authority under their own signatures, and the order as issued should comply with the legal requirements as indicated in the preceding paragraphs. It is only in those cases where the President is the prescribed Disciplinary/Appellate/Reviewing Authority and where the Minister concerned has considered the case and given his orders that an order may be authenticated by an officer, who has been authorized to authenticate orders in the name of the President.
(G.I. M.H.A.D.P.& A.R.O.M. No. 134/181 AVD 1 dated 13th July, 1981)
Inspite of the above instructions it has come to notice that speaking orders are not issued while passing final orders in disciplinary cases. It has been essential legal requirement that, in the case of decisions by quasi-judicial authorities, the reasons should be recorded in support thereof. As orders passed by the Disciplinary Authorities are in exercise of quasi-judicial powers, it is necessary that self-contained, speaking and reasoned orders should be issued while passed final orders in disciplinary case.”
72.The Disciplinary Authority is obligated to pass reasoned order dealing with the contentions put forth by the delinquent. This is important as the orders are appealable and subject to scrutiny of law before the Court. The aforesaid Govt. of India instructions are supplementary not in conflict with the rules and are binding. The Apex Court in Mahavir Prasad v. State of U.P., AIR 1970 SC 1302 held as follows:
“7. Opportunity to a party interested in the dispute to present his case on questions of law as well as fact, ascertainment of facts from materials before the Tribunal after disclosing the materials to the party against whom it is intended to use them and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi-judicial determination. It must appear not merely that the authority entrusted with quasi-judicial authority has reached a conclusion on the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and it is not the result of camprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the Appellate Authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just”.
73. In a Constitutional Bench decision by the Apex Court in S.N. Mukherjee v. Union of India, (1990) 4 SCC 594=1991(1)SLJ 1 (SC) laying down a proposition in administrative law as to the natural justice on recording of reasons by quasi-judicial authority the following has been laid down:
“(39) 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”.
74. On the cumulative reading of the above what is discernible in the decisions is that recording of reasons by a quasi-judicial authority is to prevent of miscarriage of justice and to secure fair play in action. The need for recording reason by the Disciplinary Authority gains more importance when the order is appealable. Without a reasoned order, the bent of mind of the Disciplinary Authority is not reflected. This prejudices the delinquent official to exercise his right of appeal for want of reasons effectively.
75. From the perusal of the order passed by the Disciplinary Authority which has been directed by the Tribunal to pass appropriate orders in accordance with law implied not only consideration of the contentions raised by the applicant in response to the findings but also dealing those contentions and recording reasons. The order passed by the Disciplinary Authority is reproduced as under :
“WHEREAS Sh. Jagat Singh, Physical Education Teacher, KV No. 1, Delhi Cantt and General Secretary, RKVAS(J) was charge-sheeted under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 as extended to the employees of the Kendriya Vidyalaya Sangathan vide Memorandum No. F.21-49/99-KVS(BR)/178440-42 dt. 29.10.99.
WHEREAS Dr. (Sh.) Shachi Kant, Education Officer, KVS Regional Office, Delhi was appointed as Inquiry Officer to inquire into the charges framed against Sh. Jagat Singh, Physical Education Teacher, KV No. 1, Delhi Cantt and General Secretary, RKVAS(J) vide order No. F.21-49/99-KVS(DR)/18238-43 dt/15.11.99. WHEREAS pursuant to the order dt. 8.7.2000 passed by the Central Administrative Tribunal, Principal Bench in O.A. No. 976 of 2000 filed by the Charged Officer, the Inquiry Officer submitted his report dated 14.11.2000 to the undersigned being the Disciplinary Authority on 14.11.2000.
WHEREAS the Charged Officer submitted his written brief/briefs to the Inquiry Officer’s Report on 12.1.2001 and 13.1.2001 and whereas the undersigned received the written brief/briefs of the Charged Officer after giving the Charged Officer adequate opportunity to make his submissions in regard to the report of the Inquiry Officer pursuant to the directions issued by the CAT, New Delhi vide its order dt. 13.12.2000 in O.A. No. 2498 of 2000 preferred by the Charged Officer.
WHEREAS the undersigned has considered all the materials on record and examined all the records included in the report of the Inquiry Officer and has also considered the submissions of the Charged Officer made by him by way of correspondences, written briefs etc; the undersigned is fully satisfied and agree with the findings arrived at by the I.O. with regard to the articles of charge made against the Charged Officer.
Now therefore the undersigned in his capacity as Disciplinary Authority having agreed with the findings of the Inquiry Officer hereby imposes the penalty of ‘Removal’ from service upon Sh. Jagat Singh, Physical Education Teacher, Kendriya Vidyalaya No. 1, Delhi Cantt with immediate effect.”
76. If one has regard to the above, we have no hesitation to hold that the order passed is bald, mechanical, non-speaking and does not fulfil the requirement of law and rules, and is not in accordance with rules. It is also trite law that when the Inquiry Officer records a detailed finding there is no need for recording detailed reasons by the Disciplinary Authority. However, this is not of uniform application. In a situation where the findings of the Inquiry Officer is abrupt, inconclusive, need to record reasons, cannot be dispensed with.
77. In the present case, admittedly, the findings arrived at by the Inquiry Officer is oblivious of defence brief of applicant. He has been deprived of an opportunity at the inquiry report stage to rebut the evidence brought on record and to establish his version on the defence. This is not disputed. Accordingly, a detailed defence brief and also a detailed reply to the findings of the Inquiry Officer was before the Disciplinary Authority. By not considering the same and passing a reasoned order, he has acted as a ‘rubber stamp’ to the finding of the Inquiry Officer. He has not played his role as a Disciplinary Authority. Nowhere Rule 15 of the CCS (CCA) Rules dispenses with requirement of recording reasons. In such a situation where the defence of applicant has not been considered by the Inquiry Officer a reasoned order showing application of mind by dealing with the contentions of applicant in defence was required of not only under Rules but law as well. For non-compliance of the mandatory provision which has certainly prejudiced the applicant as the extreme penalty of removal on conclusion of the disciplinary proceedings mechanically agreeing with the Inquiry Officer is without defence. The order is vitiated.
78. The opposition made by learned Counsel of the respondents to this issue is that on the doctrine of merger, once the Appellate Authority has passed a detailed order, the only thing which has to be ascertained and confirmed is the finding of the Inquiry Officer which has not been proved to the perverse and on proof of the charge, the Appellate Authority cured the earlier defect of the Disciplinary Authority cannot be countenanced. Unless the bent of mind of the Disciplinary Authority is known to the delinquent, he cannot effectively raise the grounds by way of appeal. From the perusal of the appeal filed by the applicant, we see plethora of legal and factual grounds raised. Only selective issues have been dealt with and that too not in right perspective.
79. Once the Tribunal is precluded from re-apprising the evidence or sitting as an Appellate Authority over the departmental orders, the task is to be undertaken more onerously by the Disciplinary as well as the Appellate Authorities. Failure to discharge this obligation is not only prejudicial to the interest of the delinquent but also not in consonance with the doctrine of fair play and is also in derogation of principles of natural justice.
80. Though from the perusal of the Appellate Authority, we find that the issues raised in article of charges I & II have been dealt with but erroneously, it is stated that no procedural illegality has taken place in the inquiry yet it is far from truth. If the Inquiry Officer does not apply his mind to the violation of the rules and mechanically upholds, the finding is perverse as erroneous in law. The same cannot be sustained. Moreover, the factual contention raised to rebut the evidence has not been whispered. There is no discussion to this effect in the appellate order. Merely because few of the contentions of applicant have been taken care of would not make this order a reasoned one, complying with the direction and discharging the requirement of rules and law. The defect cropped-up in the Disciplinary Authority order cannot be rectified at the appellate stage. We do not find relevant contentions of applicant mentioned, discussed or adjudicated upon by the Appellate Authority in its order. Even accepting the doctrine of merger, the order does not conform to the rules and law.
81. As regards misconduct, on perusal of the charges, evidence brought on record as well as viewing the VCD of the incident, we do not find any substantial role of applicant in the episode voicing his legitimate demands in the demonstration by way of his speech. Applicant remained as a mute spectator. There is no evidence to show that he was instrumental or in any manner involved in burning of effigy of Sh. D.K. Srivastava.
82. From the point of view of equitable consideration and human approach the bent of mind of a common prudent man who acting on a collective responsibility as a designatory of the association once on an all India basis the legitimate demands persistently raised are not paid any heed to by respondents who form as a part of welfare State being model employer a degree of dissatisfaction, frustration is bound to emerge. The word ‘fool’ addressed to the Commissioner cannot be viewed as a mark of disrespect or unparliamentary language. The word ‘Murkh’ in common parlance is a friendly word which does not show any disrespect or goes against the morality or public order. This word is used in the context of being ignorant to the legitimate demands of the members/teachers of KVS.
83. The only other word which has come forth as a calumniation equation of Shri G.D. Sharma with an ass. Whether this word is unparliamentary or not is to be viewed with the preceding circumstances and the context in which it has been used. While making a speech it is stated that Assistant Commissioner who has been issuing memos to the members of the association/teachers while working as principal and attached to the school has not performed well with the result all the 65 students of his class had failed. Drawing analogy, it has been pointed out that even if an ass was there, the result would have been different. The first part of the alleged insinuation is a fact on record. The other part is not with a view to defame but to criticise to the effect that he could not perform well. In our considered view, this word has been used in a wrong context and does not amount to unparliamentary language and disrespect to Shri G.D. Sharma.
84. Assuming these two unparliamentary words were addressed by the applicant, yet by any logic and rationale the punishment imposed upon the applicant is not warranted in the circumstances.
85. Insofar as the contention that finding is not perverse and based on evidence is concerned, the Apex Court in Anil Kumar v. Presiding Officer, 1985 SCC (L&S) 513 held that a finding which does not weigh the defence and does not rest upon conclusion as to why the prosecution has outweighed the findings would be inconclusive and not sustainable in law. Though finding is rested on evidence adduced during the course of inquiry but it is without rebuttal from applicant although a balancing act has been devised by the Tribunal yet the finding does not conform to law. Moreover, the finding does not conclusively point out that applicant was instrumental in burning the effigy.
86. Yet another angle which is to be probed into is that although several persons had participated in the demonstration and were rather in command, they have not been proceeded against. Picking up in isolation applicant because he was general secretary of the association whereas the call for demonstration and other activities taken place was by the Central Executive Committee, yet meeting out a differential treatment to them is without any intelligible differentia which violates the mandate of Article 14 of the Constitution and the action of respondents is arbitrary which smacks of victimisation.
87. For the foregoing reasons orders passed by the respondents cannot be sustained in law and are liable to be set aside.
88. Insofar as the back wages are concerned, the Apex Court in A.L. Kalra’s case (supra) made the following observations :
“(33) When removal from service is held to be illegal and invalid, the next question is whether the victim of such action is entitled to backwages. Ordinarily it is well settled that if termination of service is held to be bad, no other punishment in the guise of denial of backwages can be imposed and therefore, it must as a necessary corollary follow that he will be entitled to all the back wages on the footing that he has continued to be in service uninterruptedly. But it was pointed out in this case that the appellant was employed as Factory Manager by M/s KDR Woolen Mills, A-90, Wazirpur Industrial Area, Delhi from where he resigned with effect from August 8, 1983. It was also submitted that he was drawing a salary of Rs. 2500/- per month. Now if the appellant had procured an alternative employment, he would not be entitled to wages and salary from the respondent. But it is equally true that an employee depending on salary for his survival when he is exposed to the vagaries of the Court litigation cannot hold on to a slender distant hope of judicial process coming to his rescue and not try to survive by accepting an alternative employment, a hope which may turn out to be mirage. Therefore, the appellant was perfectly justified in procuring an alternative employment in order to keep his body and soul together as also to bear the expenses of litigation to vindicate his honour, integrity and character”.
89. Recently the Apex Court in Union of India v. Madhusudan Prasad, 2004 SCC (L&S) 29=2004(1) SLJ 232 (SC), held as follows :
“5. It is true that when a reinstatement is ordered in appeal or review, the authorities can pass specific order regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement, as the case may be. This is an enabling provision and the authorities can consider the relevant facts as to whether the employee should be denied the salary for the period he was kept under suspension preceding the removal, dismissal or compulsory retirement. The Counsel for the appellant has placed reliance on the decision of the Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar where this Court held that the question whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceeding and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any, and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the enquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh enquiry from the stage of furnishing the report and no more, where such fresh inquiry is held.
6. The above case was concerning an employee, who was found guilty in an enquiry but the report was not furnished to the employee and the show cause notice was not served on him. In view of the facts and circumstances of the case, the Court directed that should be passed regarding the backwages. In the instant case, the Appellate Authority directed reinstatement of the respondent and held that he was not entitled to get backwages for the period he was out of service. It may be noticed that the respondent was removed from service without any enquiry and he was not even given a show cause notice prior to his dismissal from service. There was fault on the part of the employer in not following the principle of natural justice. These relevant facts were considered and the learned Single Judge and also the Division Bench ordered the payment of backwages. We do not think this is a fit case where Fundamental Rule 54 could have been invoked by the authorities. We find no merit in the appeal. The appeal is accordingly dismissed”.
90. If one has regard to these decisions, the inquiry having been found a nullity and the orders passed in violation of principles of natural justice, applicant on reinstatement shall be entitled to not only continuity in service for the purpose of seniority and qualifying service, but also for full backwages as well.
91. In the result for the foregoing reasons, O.A. is allowed. Impugned orders are quashed and set aside. Respondents are directed to reinstate applicant in service forthwith with grant of consequential benefits including full backwages within a period of three months. No costs.
92. Before parting with, certainly we would be failing in our duty if we do not appreciate the valuable assistance rendered to us by the learned Counsel of parties especially by Mr. M.K. Joshi.