ORDER
Shanker Raju, Member (J)
1. Applicant impugns respondents’ order dated 28.8.2002, imposing upon him a punishment of withholding of two increments for a period of two years with cumulative effect a$ well as order on review dated 29.1.2004, upholding the punishment.
2. Applicant who was working as an Executive Engineer (Electrical) Group ‘A’ Service on regular basis, on the basis of a preliminary enquiry (PE, for short) was served with a memorandum of articles of charge under Rule 14 of the CCS (CCA) Rules, 1965, whereby on 16.9.96 alleging that applicant has manipulated the figures in the supply order with the result of financial gain to the agency and also his negligence which resulted in overpayment of Rs. 1.03 lakhs to the agency while releasing the payment on ‘part rate’ after accepting the supply of L.T. panels. Lastly applicant was alleged for acceptance of the lesser frame size of alternator without obtaining prior approval of the Competent Authority regarding its technical acceptability and without getting approval of reduction in rates.
3. Applicant through his application has sought for supply of the PE repot. The Enquiry Officer (EO) after examination of the witnesses proved Article-I of the charge and proved Article-II and Article-III was also partly proved. The Central Vigilance Commission (CVC) was consulted and the Disciplinary Authority (DA) has sought opinion of the Union Public Service Commission (UPSC) whereby Article-I is partly proved and Article-II of the charge is proved but not finding was recorded on Article-III of the charge. A penalty of stoppage of increments for two years with cumulative effect was recommended. The DA, accepting the advice of the UPSC, imposed the aforesaid punishment, which on review was upheld, giving rise to the present O.A.
4. Learned Counsel for applicant Mr. B.S. Mainee, assails the enquiry on following grounds:
(i) Mandatory compliance of Rule 14(18) of the CCS (CCA) Rules has not been effected by the EO;
(ii) Copy of the advice of the CVC was not served upon applicant as well as the advice of the UPSC.
(iii) It is also stated that the enquiry is vitiated on account of delay, as for the charges pertaining to the year 1978 a charge sheet was issued only in 1996 and the punishment imposed in 2002 for which delay is unexplained and inordinate.
5. On merits it is stated that the case is of ‘no misconduct’ and applicant has been held guilty on no evidence and merely suspicion and surmises.
6. On the other hand, learned Counsel for respondents vehemently opposed the contentions and stated that Rule 14(18) was complied with. On 5.5.98 applicant’s general examination has taken place. Learned Counsel states that in the light of Rules 17 and 32 of the CCS (CCA) Rules, 1965, vires of which has not been challenged it is not mandatory to serve a copy of the advice of the UPSC as well as CVC. Referring to Article 320 of the Constitution of India V: is stated that the recommendations of the UPSC are mandatory. A reliance has been placed on the decision of the Mumbai Bench of this Tribunal in D.S. Karant v. Union of India 2005(1) SLJ 104 to contend that no illegality is committed by not supplying the copy of the advice of the UPSC. It is also stated that PE report was not relied upon and as such it is not provided.
7. Lastly, it is contended that the delay is not material as there were financial irregularities and for want of any prejudice caused to applicant, the punishment imposed is proportionate and is in according with procedure laid down under the Rules.
8. We have carefully considered the rival contentions of the parties and perused the material on record.
9. Rule 14(18) of the CCS (CCA) Rules, 1965, which is a substantive procedure rule, provides as under:
(18) The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
10. If one has regard to the import of the rule, it is obligatory upon the Enquiring Authority to generally question applicant on the circumstances appearing in the evidence brought against him. This has been enacted with a view that whatever evidence has come in the enquiry apart from a written statement, an explanation is also sought to rebut the circumstances which would be in consonance with the principle of reasonable opportunity and audi alterant pattern as inbuilt of the principles of natural justice, of which sine qua non is fair play. Applicant has stated that whereas three Articles of charge have been levelled against him, the EO has not put to him the circumstances as come-forth in the course of the disciplinary proceedings whereas it is denied by the respondents and the following examination has been referred to as a valid compliance of Rule 14(18):
General Examination of Shri Lalit Kumar, EE (E) AIR.
Q.I The charge-sheet says that you tried to manipulate the figures in the rest report to cover-up your acceptance of alternator of lesser from size. What do you have to say about it?
A. I have not tried to manipulate the figures in test report. It was a human error. This has been verified by SE (E) in 1990.
Q. 2 Do you have anything else to say?
A. I have performed my duty with devotion keeping in view interest of work as well as terms and conditions of agreement. I deny all the charges.
11. The Apex Court Ministry of Finance v. S.B. Ramesh upheld the conclusions of the Tribunal whereby the enquiry has been held to be illegal for want of compliance of Rule 14(18) ibid.
12. The Principal Bench of this Tribunal in O.A. 1826/98, Charanjit Singh Khurana v. Union of India, decided on 14.9.2000, regarding compliance of Rule 14(18) observed as under:
As regards the contention of the applicant by taking resort to Rule 14(18) is concerned, where it is mandated upon the Enquiry Officer to question the applicant as to the circumstanced against him in the evidence to enable him to explain the same, the learned Counsel of the applicant states that being a substantive provision of the procedure its non-compliance, which is not denied in the present case has vitiated the enquiry as he has been greatly prejudiced in the matter of his defence. The applicant stated that on the perusal of the evidence of Sh. R. Parmeshwar and his cross-examination a non-committal reply has come on record. As the previous O.A. was allowed due to non-examination and cross-examination of R. Parmeshwar answers to the question of the witnesses clearly demonstrate that the earlier stand has been negated. In this background it is stated that it was essential for the Enquiry Officer to accord an opportunity to the applicant to explain the aforesaid evidence which required his explanation as to contradiction by a witness to his own question. The learned Counsel of the applicant has further placed reliance on a decision of the Apex Court in Ministry of Finances. S.B. Ramesh, , wherein appeal had been preferred against the order of compulsory retirement to the Tribunal and was allowed as there has not been any attempt on the part of the inquiry as there has not been any attempt on the part of the Inquiry Officer to question the delinquent’s reply as under Rule 14(18) on the evidence appearing against him despite an ex-parte proceedings the Apex Court affirmed the decision of the law laid down by the Tribunal as to the violation of Rule 14(18). The learned Counsel of the applicant has further placed reliance on a decision of this Court in Ghanshyam Kahat v. Union of India 1989 (10) ATC 774 where infirmity by not following the provisions of Rule 14(18) has been held to have vitiated the enquiry. The learned Counsel has also placed reliance on a decision of this Court in S. Gopalan v. Directorate General of Works, C.P.W.D. 1991 (16) ATC 691, wherein it has been held that having failed to question the delinquent under Rule 14(18) the inquiry is vitiated and amounts to denial of an opportunity.
13. The aforesaid decision was carried before the High Court in CWP No. 69/2002 and ultimately in SLP No. 9816/2002 this finding of the Tribunal was upheld by a reasoned order. Accordingly the aforesaid dicta is no more res integra and is a binding precedent on us.
14. Now it has to be examined whether Rule 14(18) is complied with or not? The only question as put to applicant is that as a referral to the charge-sheet where applicant has been alleged to have manipulated the figures in the test report, but this is not the true import of Rule 14(18). It appears that the contents of the charge sheet have been put to applicant without any reference to the evidence and circumstances appearing against applicant during the course of disciplinary proceedings.
15. Rule 14(18) clearly provides that it is obligatory upon the Enquiring Authority to question the delinquent official on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances as there is no reference to the evidence brought on record or circumstances appearing against applicant the general examination which has taken place on 5.5.98 is not the valid compliance of Rule 14(18) ibid and the stand taken by the respondents is misconceived.
16. In the light of the Apex Court decision in S.B. Ramesh (supra) and decision of the Tribunal upheld by the Delhi High Court as well as the Apex Court in Charanjit Singh Khurana (supra) by not putting the circumstances against applicant in the form of evidence brought against him by the EO a prejudice has been caused to him as he has been deprived of an opportunity to explain the circumstances and as a mandatory substantive provision of procedure non-compliance vitiates the enquiry and we are of the considered view that even the test of prejudice would not be applicable in the light of the decision of the Apex Court in State Bank of Patiala v. S.K. Sharma, .
17. As regards non-supply of the advice of the UPSC, the resort to D.S. Karant (supra) and their reference to Rules 17 and 32 of the Rules the Principal Bench of the Tribunal in O.A.-l 154/2002 set aside the order for non-supply of the UPSC advice prior to imposition of the punishment which was interfered by the High Court by remanding back the case. On challenge of this in C.A.-642/2004 – S.N. Narula v. Union of India, decided on 30.1.2004, the following observations have been made.
Leave granted.
The appellant was initially appointed as Station Master in Northern Railways in 1955 and during the relevant time when he was Senior Commercial Manager, and a charge-sheet was issued to the appellant and disciplinary proceedings were initiated against him, and Enquiry Officer filed report holding that the charge No. 5 partly proved and the charge No. 7 proved. As regards other charges he was exonerated. After considering the report of the Enquiry Officer, Disciplinary Authority proposed a punishment suggesting a suitable cut in the pension and the appellant was not heard on this proposal. Thereafter, the proceedings were sent for opinion of the Union Public Service Commission and the Union Public Service Commission gave an opinion to the effect that his pension shall be reduced to minimum and he shall not be granted any gratuity. The Disciplinary Authority accepted the proposal of the Union Public Service Commission and imposed the said punishment. It is to be noticed that the advisory opinion of the Union Public Service Commission was not communicated to the appellant before he was heard by the Disciplinary Authority. The same was communicated to the appellant along with final order passed in the matter by the Disciplinary Authority.
The appellant filed O.A. No. 1154/2002 before the Central Administrative Tribunal, New Delhi and the Tribunal held that there was violation of principles of natural justice and the following direction was issued:
We are of the considered opinion that this order is a non-speaking one and as such we are of the view that the same cannot be sustained and is liable to be quashed. Accordingly, we quash the impugned order and remand the case back to the Disciplinary Authority to pass a detailed reasoned and speaking order within a period of 3 months from the date of receipt of a copy of this order in accordance with instructions and law on the subject.
This order was challenged by the Union of India by way of writ before the High Court of Delhi and by the impugned judgment the High Court interfered with that order. The writ petition was partly allowed and it was directed that the matter be again considered by the Tribunal. Against that order the appellant has come up in appeal by way of a Special Leave Petition.
We heard the learned Counsel for the appellant and the learned Counsel for the respondent. It is submitted by the Counsel for the appellant that the report of the Union Public Service Commission was not communicated to the appellant before the final order was passed. Therefore, the appellant was unable to make an effective representation before the Disciplinary Authority as regards the punishment imposed. We find that the stand taken by the Central Administrative Tribunal was correct and the High Court was not justified in interfering with the order. Therefore, we set aside the judgment of the Division Bench of the High Court and direct that the disciplinary proceedings against the appellant be finally disposed of in accordance with the direction given by the Tribunal in Paragraph 6 of the order. The appellant may submit a representation within two weeks to the Disciplinary Authority and we make it clear that the matter shall be finally disposed of by the Disciplinary Authority within a period of 3 months thereafter.
The appeal is disposed of.
18. In the light of the above, we are of the considered view that being a precedent under Article 141 of the Constitution of India, as admittedly the advice of the UPSC was not tendered to applicant, it has greatly prejudiced him.
19. Moreover, the aforesaid issue also came in scrutiny before the High Court in CWP No. 69/2002 and was confirmed as well as laid at rest by the Apex Court in SLP No. 9816/ 2002 in Charanjit Singh Khurana (supra).
20. The Principal Bench of this Tribunal in O.A.- 103/98 Raj Kamal v. Union of India decided on 12.1.2000 mandated supply of the advice of the UPSC prior to imposition of punishment, which has been upheld by the High Court of Delhi in CWP No. 2372/2000 by an order dated 22.5.2000.
21. In the above view of the matter, even without challenging the vires of Rules 17 and 32 of the Rules ibid as principles of natural justice are unbuilt and are to be read as part and parcel of any rule and are implicit, non-supply of the advice of the UPSC is in violation of the principles of natural justice and vitiates the enquiry as well.
22. As we are satisfied that on these two counts alone the punishment is not sustainable, the rest of the grounds are not adjudicated.
23. In the result, for the foregoing reasons, O.A. is allowed. Impugned order are quashed and set aside. Respondents are directed to accord all consequential benefits to applicant, including refund of the amount already recovered, within two months from the date of receipt of a copy of this order. No costs.