ORDER
P. Shanmugam, J. (Vice-Chairman)
1. The applicant challenges the order imposing penalty of compulsory retirement on him by the 1 st respondent/Director, Prasara Bharathi as confirmed by the 2nd respondent/Director General, Doordarshan in appeal.
2. Facts of the case are as follows:- The applicant was appointed as Lower Division Clerk with effect from 22.5.1965 in the All India Radio and was promoted as Upper Division Clerk during 1984. He was transferred to Doordarshan Kendra, Bangalore (hereinafter referred to as ‘Kendra’). Consequent on the enactment of Prasara Bharathi Act, he was treated as a person on deputation until he was finally absorbed as employee of Prasara Bharathi. The applicant was working in the legal cell of the Prasara Bharathi Broadcasting Corporation of India, Doordarshan Kendra until 1.9.1999. Again during the period of absence of the dealing assistant between 3.5.2000 and 12.5.2000, he was taking care of the legal matters. Writ Petition Nos. 2664/-53/1998 were filed by Casual Lighting Assistants for regularisation and the same were ordered in favour of those persons by order dated 7.3.2000. On the basis of complaint filed by Casual Lighting Assistants viz., Sri B. Vasudeva Murthy and Sri K. Vasudeva, the 1st respondent initiated disciplinary proceedings against the applicant by placing him under suspension by order dated 22.5.2000 and framed charges by memorandum dated 31.10.2000. The main charge against the applicant was that he wilfully entered into negotiations with the Casual Lighting Assistants for assisting in their Court cases and their job regularisation with mala fide intention to collect illegal gratification from them. Further, the applicant with mala fide intention to collect illegal gratification negotiated with Sri B. Vasudeva Murthy and Sri K. Vasudeva, directed them to meet him at a star hotel for further negotiation and during the negotiation on 9.5.2000 demanded a sum of Rs. 90,000/- from Sri B. Vasudeva Murthy and Sri K. Vasudeva and subsequently demanded Rs. 45,000/- as advance. The applicant finally demanded them to pay at least Rs. 25,000/- as advance for commencing the work. This according to articles of charge is a grave misconduct, dereliction in duty and not maintaining absolute integrity contravening Rule 3(1)(i)(ii) and (iii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the CCA Rules). The memorandum of charge listed documents and material object besides list of witnesses. The applicant submitted his written statement of defence on 10.11.2000. An Inquiry Officer and a Presenting Officer were appointed and the applicant was directed to appear before the Inquiry Officer in April, 2001. The applicant appeared before the Inquiry Officer on 25.4.2001 only to question the competence of the inquiry and the Inquiry Officer. The applicant’s question regarding his status was answered by making available letter of the Director of the Kendra dated 9.8.2001 and in the inquiry held on 17.10.2001 the stand of the applicant was that the inquiry proceedings are not maintainable besides questioning the competence of the Inquiry Officer. The inquiry was adjourned to 29.10.2001 giving opportunity to the applicant to cross-examine the complainants. As the applicant did not respond, the inquiry was concluded based on the available material. The Inquiry Officer by report dated 22.11.2001 found that the charge against the applicant was established and there was substantial material to prove that the applicant had taken steps to secure monetary benefits by demanding bribe from Casual Lighting Assistants for doing undue favours to them and the articles of charge stood proved. The applicant submitted his objections dated 6.12.2001 against the Inquiry Officer’s report. The 1st respondent after considering the material had come to the conclusion that gravity of charges were such that it warranted imposition of major penalty and the applicant was not a fit person to be retained in service. Accordingly, he imposed the major penalty of compulsory retirement from service with immediate effect, by order dated 21.12.2001. The applicant preferred an appeal dated 21.1.2002 before the Director General. The appeal was disposed of by an order dated 13.5.2003 confirming the order of the Disciplinary Authority holding that the charges framed against the applicant have been proved and the Disciplinary Authority acted leniently by imposing the penalty of compulsory retirement from service which ensured that he would get all the retiral benefits and accordingly he rejected the appeal. The O.A. is against these orders.
3. learned Counsel appearing for the applicant made detailed submissions on the maintainability of the proceedings against the applicant as well as on merits. According to him the applicant continues to be a Government servant and the Director of the Kendra has no power to impose any penalty much less the impugned penalty. On merits, it is submitted that Casual Lighting Assistants have not filed any complaint and that the CBI before whom the complaint was made has not proceeded with the said complaint by commencing criminal prosecution. It is his contention that initiation of disciplinary proceedings and imposition of suspension pending inquiry are not independent decisions taken by the Disciplinary Authority and, therefore, they are illegal. According to the learned Counsel, the applicant was not dealing with the matters relating to Court cases of Casual Lighting Assistant during the relevant time. He further contends that the inquiry was conducted beyond the period of six months of suspension and the punishment was imposed after a lapse of one year from the date of suspension and, therefore, the whole procedure followed by the respondents is illegal. According to the learned Counsel the applicant had been denied sufficient opportunity of participating in the inquiry since the witnesses were examined in his absence and the Inquiry Officer has chosen only certain witnesses and did not mark the documents as required under law before accepting and proceeding to consider the same. The applicant was not given an opportunity to lead any evidence and the Inquiry Officer did not give opportunity either to examine witnesses on the side of the applicant or to examine himself. The learned Counsel submits that the statement of witnesses are accepted straightaway as gospel truth without further examination of the persons who prepared those statements and without giving the applicant permission to cross-examine them. According to the applicant he attended the inquiry on two occasions and for the 3rd sitting of the inquiry, no notice was given to the applicant and, therefore, the inquiry proceedings should be treated as ex-parte. According to the learned Counsel the Inquiry Officer has proceeded on presumptions on many things against the applicant and has drawn inferences on his own without any material. After going through the Inquiry Officer’s report, the applicant had submitted his reply dated 6.12.2001 whereas the Disciplinary Authority in one line order without application of mind imposed on him the order of penalty of compulsory retirement. Even though before the Appellate Authority he has raised several contentions on legal issues, the Appellate Authority without considering procedural lapses of illegality of jurisdiction and violation of principles of natural justice confirmed the punishment order and therefore, he prays that the orders are liable to be set aside.
4. The learned standing Counsel appearing on behalf of the respondents submits that the applicant is still a Central Government employee governed by the CCA Rules and the Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as Conduct Rules) etc. The applicant is on deemed deputation to Prasara Bharathi and the administrative control of Prasara Bharathi is with the respondents and they are therefore, competent to take decisions including the disciplinary actions against the employees of Prasara Bharathi and the Director of the Kendra is empowered to initiate and impose any penalty prescribed under the CCA Rules. He also relied on the judgment of the Full Bench in Prit Pal Singh and Others v. Union of India and Ors., (199/-2001) A.T.F.B.J. 323. The applicant was given copy of the Full Bench judgment and was requested to cooperate with the inquiry whereas the applicant with hostile and negative attitude against the inquiry and Inquiry Officer was attacking the inquiry and the Inquiry Officer and refused to co-operate with the inquiry. A reading of the inquiry report and the applicant’s written submissions dated 6.12.2001 makes the position very clear that the applicant had sufficient opportunity to participate in the inquiry and defend his case which he has miserably failed to avail. Consequently, the inquiry was conducted with the available material and the finding of the Inquiry Officer holding that the charge alleged was proved was communicated to the Disciplinary Authority who by the order dated 21.12.2001 awarded on the applicant, the penalty of compulsory retirement. The Appellate Authority had considered each and every point urged by the applicant and disposed of the appeal by a well considered and speaking order dated 13.5.2003. According to the learned Counsel for the respondents each and every point raised by the applicant was given due consideration including severity of the punishment imposed and ultimately the penalty of compulsory retirement was confirmed. According to the learned standing Counsel none of the points raised by the applicant both on law and on merits are sustainable.
5. We have heard the learned Counsel for the parties and perused the pleadings.
6. On the competence of the inquiry held against the applicant it has to be stated that the applicant is admittedly on deemed deputation to Prasara Bharathi. After the promulgation of the Ordinances dated 26.12.1997 and 29.8.1998 the applicant along with other employees of All India Radio and Doordarshan were placed at the disposal of Prasara Bharathi and he was treated on deemed deputation to Prasara Bharathi. Th£ applicant was brought under the administrative control of the Director as Head of Office. The applicant admittedly is a Group-C official and the Competent Authority to initiate disciplinary proceedings and impose penalty is the Director. It is not in dispute that the Director and the Director General of Doordarshan Kendra were also on deputation and they were given delegation of powers. As per Prasara Bharathi Board meeting held on 10/11.12.1997 the decision was that till the Board frames its own rules and regulations it was resolved that the Director General, All India Radio and Director General, Doordarshan will continue to exercise such powers as delegated to them and the same may apply to other subordinate officers. The Chief Executive Officer may exercise the power of Secretary, Ministry of Information and Broadcasting. A decision was also taken that all employees of Doordarshan be given option as to whether they want to continue as Government employees or become employees of Prasara Bharathi. In the interim period, matters like cadre review, promotion, confirmation, disciplinary action etc., would be governed by the existing Government rules. Two questions were referred to the Full Bench in Prit Pal Singh’s case (supra) and they are:
(i) Whether Government servants who have been sent to Prasara Bharathi Corporation on deputation or otherwise can be transferred by that Corporation in terms of the provisions of the Act; or
(ii) The Government employees even if working with the Prasara Bharathi continue to be Government employees governed under the relevant rules and instructions issued by Government of India.”
The answers to the questions were given in Paragraph 12 of the order which reads as follows:
” 12. In the result, in the light of the aforesaid order dated 17.1.2001 of the Madras High Court the reference is answered as under:
(i) Government servants who have been sent to Prasar Bharati Corporation on deputation or otherwise can be transferred by the Corporation in terms of the provisions of the Act.
(ii) As the second paragraph of the reference has been posed only as an alternative to the first paragraph, and the first paragraph has been answered in the affirmative as above, the second paragraph does not require a separate answer.”
The main submission of the learned Counsel for the applicant is that Article 311 of the Constitution contemplates that no person who is a member of the civil service of the Union or a civil servant who holds a civil post under the Union shall be dismissed or removed by an authority subordinate by which he is appointed. According to him Rule 5 of the CCA Rules indicates constitution of the service and the authority specified for appointment as well as imposition of penalties is the Head of Office which means the parent department only and not of the foreign employer. As per the statutory rules framed under Article 309 of the Constitution a foreign authority is not recognised as the Head of Office. Therefore, the Disciplinary Authority and the Appellate Authority have no jurisdiction to impose the punishment. We have examined the legal position. In so far as the legal authority of power vested with the Disciplinary Authority to impose major penalties on the officials who are on deemed deputation to Prasara Bharathi is concerned it is seen that Part III of Schedule to the Central Civil Services Rules, 1965 under Sl. No. 4 (ii), Head Office is the Competent Authority to impose penalties for posts in non-Secretariat Office other than posts in respect of which specific provision has been made by a general or special order of the President. The Director is the Head of Office of the Kcndra as per Doordarshan Manual Volume I Parts I and II Chapters 1 to 9 published by the Director of Publication, Ministry of Information and Broadcasting, New Delhi on behalf of Doordarshan. Under Section 2 under the heading duties and responsibilities of officers and staff of Doordarshan Kendras, Paragraph 4.2.2 deals with the Director. As per this provision the Director is the Head of the Kendra. He is responsible for the efficient working of the Kendra and in all its Branches. Under sub-clause (c) overall control of administration and accounts, it is stated that he is the Appointing Authority and the Disciplinary Authority in respect of Groups-C and D staff. It is further seen that the Prasara Bharathi Board in its meeting held on 10/11th December, 1997 has resolved that till Prasara Bharathi Board framed its rules and regulations the Director General of All India Radio and Director General, Doordarshan may continue to exercise powers as delegated to them by the Government. In accordance with the Prasara Bharathi Board’s decision the Director General, Doordarshan will continue to exercise the powers which are delegated to him through the statutory rules like Central Civil Services (Classification, Control and Appeal) Rules, 1965 and other executive orders of Central Government till such time Prasara Bharathi frames its Rules and Regulations. Prasara Bharathi is yet to frame its own Rules and Regulations and therefore, the employees of Prasara Bharathi are still governed by the Rules like the CCS (CCA) Rules. As such the Director of the Kendra is fully competent to impose the penalties prescribed under Rule 11 of the CCS (CCA) Rules on Group-C officials working in the Kendra. We have gone through the certified copies of agenda for the minutes and the resolution thereof. Item No. 12 of the Agenda refers to delegation of powers and item No. 13 refers to action under the Recruitment Rules. Both were approved in the meeting. As per the minutes, the Director General, Doordarshan may continue to exercise the powers as delegated to him by the Government and in reference to the Recruitment Rules it is stated that at present all employees of Doordarshan are employees of Government. They are required to give their options as to whether they want to continue as Government employees or become employees of Prasara Bharathi. In the interim period, service matters like cadre review, promotion, confirmation, disciplinary action etc., would be governed by the existing Government rules. As per the order of Government dated 1.12.1999 issued in the name of the President, it is seen that in place of Director General, Doordarshan the Additional Secretary, Ministry of Information and Broadcasting, New Delhi shall act as the Disciplinary Authority till such time the posts of Director General of All India Radio and Doordarshan are filled up on regular basis or concerned Government servants are absorbed in Prasara Bharathi whichever is earlier. As pointed out above, the employees now at the disposal of the Prasara Bharathi are treated as on deemed deputation and there is no dispute of the fact that the applicant is still a Central Government employee. So also the Director as well as the Director General continue to be the Government servants. The Director of Doordarshan Kendra is the Head of Office and as such he is the Disciplinary Authority in respect of Groups-C and D officials working in the Kendra. He is therefore, competent to initiate disciplinary proceedings and impose punishment prescribed under the CCA Rules. It is seen from the records furnished by the respondents that the Director General, All India Radio and Director General, Doordarshan may continue to exercise such powers as delegated to them by the Government and the same may apply to other subordinate officers. The Chief Executive Officer may exercise the power of Secretary, Ministry of Information and Broadcasting. Therefore, it is clear that the Director, Doordarshan is the Head of Office since he continues to exercise the powers as delegated to him by the Government. The employees are given option either to continue as Government servants or to become employees of Prasara Bharathi. In the interim period they will be governed by the existing Government Rules. Therefore, it is undeniable fact that the Director, Doordarshan Kendra continues to be the Appointing Authority as well as the Disciplinary Authority as the Head of Office. The applicant does not question this fact that he is a Government employee. But, he only questions the competence of the Disciplinary Authority. The applicant was sufficiently informed of this position by letter dated 25.9.2001 / 27.9.2001 (Annexure-A6) and the copy of the judgment of the Full Bench was also furnished to him. Though the applicant had questioned the legality of inquiry proceedings which according to him had been conducted beyond the period of six months, he did not question the jurisdiction of the Disciplinary Authority to initiate disciplinary proceedings or the Appellate Authority to pass the order in appeal, as he now makes out in this O.A. In other words the applicant did not question the jurisdiction of the Disciplinary Authority and the Appellate Authority at the initial stage and he has accepted the jurisdiction of both the authorities. The submission that the Full Bench judgment relates only to transfer and therefore, it will have no application to this case cannot be sustained. The Government servants who have been sent to the Corporation on deputation are subject to the exercise of power by the Corporation, including transfer. That was held to be in terms of the provisions of the Act and was upheld. It is not open to the applicant now at this stage to raise the question of competence of the Disciplinary Authority to initiate disciplinary proceedings. On this ground also we find that the objection cannot be sustained. Therefore, we hold that the Director and the Director General are Competent Authorities to initiate, to hold and to conduct disciplinary proceedings, pass order of penalty and hear and dispose of the appeal. There is no merit in the objection raised by the applicant on the question of jurisdiction and competence.
7. On the question of delegation of power on the competency of disciplinary proceedings, the Hon’ble Supreme Court in State of U.P. v. Ram Naresh Lal, , held that assuming that the officer had not been permanently transferred and further assuming that the officer was still on deputation in the Planning Department, even then the Development Commissioner was entitled to dismiss the respondents by virtue of earlier orders. The Competent Authority had the control over the entire staff on deputation and the word “control” is wide word and includes disciplinary jurisdiction. The Hon’ble Supreme Court held that there is nothing in the constitution which debars the Government from conferring power on an officer other than the Appointing Authority to dismiss a Government provided he is not subordinate in rank to the officer or Appointing Authority.
8. On merits, we find that the applicant was served with memorandum of charges dated 31.10.2000 and the applicant submitted his written objections to the charges by his letter dated 10.11.2000. Inquiry Officer was appointed to conduct inquiry into the charges who commenced the inquiry on 25.4.2001 and completed it by submitting a report dated 22.11.2001. The applicant submitted his objections to the report dated 6.12.2001. The order of penalty was passed on 21.12.2001. The applicant submitted his appeal dated 21.1.2002 and the appeal was disposed of on 13.5.2003. From the above it could be seen that the applicant had the opportunity of submitting his objections to the charges as well as to the report and he had participated in the inquiry proceedings and also filed a detailed appeal as against the order of penalty.
9. Now the main submission of the learned Counsel for the applicant is that there is violation of principles of natural justice. According to him the applicant was denied a fair opportunity of participating in the inquiry proceedings and that witnesses were examined in his absence and that he was not given opportunity to lead evidence and cross-examine the witnesses. After going through the records, we find in so far as examination of witnesses is concerned it has been done in the absence of the applicant. It is fairly conceded by the learned standing Counsel that this had occurred only because of the non-cooperative attitude of the applicant and the department cannot be faulted on this ground. From areading of inquiry proceedings (Annexure-A4), copy furnished by the applicant himself, shows that the inquiry proceedings commenced on 25.4.2001. In those proceedings it is seen that the applicant had given statement as to his work particulars. He has stated that he was a dealing assistant in legal matters from 1996. On the query as to his position on 22.5.2000 he in turn posed a question whether he is a regular Government servant or an employee of Prasara Bharathi Corporation. He has further stated that he is willing to proceed further after getting reply from the Competent Authority on these points. Thereafter the applicant himself had written a letter dated 27.8.2001 to the Director of the Kendra with reference to departmental inquiry to intimate him the latest position of the said inquiry. By a letter dated 25.9.2001/ 27.9.2001 the Inquiry Officer sent a communication enclosing judgment copy of the Central Administrative Tribunal, Principal Bench and informing the applicant that it clarifies the points raised by him and requested his willingness to be intimated for further hearing. The applicant was also intimated of the inquiry to be commenced again from 17.10.2001 (Annexure-A8). He was informed that he is expected to further participate in the inquiry proceedings and assist the Inquiry Officer for early completion of the job assigned as per Rules. However, the proceeding copy of 17.10.2001 which is annexed as Annexure-A8 clearly shows applicant’s total non-cooperation for the inquiry. On the other hand, the applicant has questioned continuance of the inquiry on the ground that the time frame fixed has expired and, therefore, the Inquiry Officer has no locus standi to continue and conduct the inquiry. On the specific question by the Inquiry Officer whether he is willing to answer and cross-examine on the case points presented by the Presenting Officer, though he has answered in the affirmative for the question whether he had met Casual Lighting Assistants in the hotel at Shivajinagar around lunch time, his reply was that the said question was already replied vide his defence statement dated 10.11.2000 and he asserts that the defence statement is part and parcel of the inquiry proceedings and also stated that nobody is having locus standi to deviate the statutory rules. The Inquiry Officer has noted that the applicant is not replying to the cross-examination relevant to the case points raised by the Presenting Officer and he is only saying that nobody has locus standi to deviate. This does not satisfy the Inquiry Officer as efforts to find out the truth and conduct the proceedings in a cordial/ smooth atmosphere, non co-operation is in the sight from the accused officer. In the opinion of the Inquiry Officer the further examination of the case with cooperation of the accused officer is very important to exactly find out the truth as to whether the points raised by the Presenting Officer are of important nature affecting integrity of a public servant of Doordarshan Kendra. It is further noted as follows:
“As Mr. Sirajuddin further refuses to answer any question relevant to the case, he is being informed that further proceedings will be treated as closed after 29.10.2001 where he should directly reply to the questions of I.O. and also Accused Officer if willing may be permitted to cross-examine the main complaints, here the Lighting Assistants Mr. Vasudeva Murthy, Mr. Vasudeva and Mr. Appaji Rao.”
The reply of the applicant is as follows:
“The above mentioned remarks passed by the I.O. are nothing but his mere imagination and does not carry any water. Since I am extending co-operation to the fullest possible extent that too within the frame of relevant rules and it is not my concerned to satisfy the Enquiry Officer.”
The applicant did not respond to the specific offer given to him on 17.10.2001. The receipt of 17.10.2001 proceedings and the necessity of the applicant to express his willingness are admitted by the applicant in his appeal memorandum. He has enclosed 17.10.2001 proceedings asking his willingness to appear before the Inquiry Officer as Annexure-A15. From the above, the fact remains that the applicant was given an opportunity to attend the inquiry on 25.4.2001,17.10.2001 and 29.10.2001 and on the first day of inquiry proceedings, the applicant expressed his willingness to proceed further only after getting reply from the Competent Authority on the points raised by him and after getting the letter clarifying the position, the applicant again appeared on 17.10.2001 and once again raised competence of the authority. It is on record that the applicant has refused to answer the questions relevant to the case and, therefore, he was informed that he was given one more opportunity on 29.10.2001 in which he must reply his willingness failing which inquiry proceedings will be closed. The proceedings dated 17.10.2001 which is marked by the applicant as Annexure-A8 to his O.A. and Annexure-A15 before the Appellate Authority clearly show that the applicant will be permitted to cross-examine the main complainants. Therefore, it is clear in our mind that there is no violation of principles of natural justice in that the applicant had sufficient opportunity before the Inquiry Officer to cross-examine the complainants and furnish witnesses on his side if he wanted. As stated earlier, in spite of these opportunities, the applicant had shown a clear non-cooperative attitude. He has also shown a hostile and antagonistic attitude towards the Inquiry Officer by questioning his authority and refusing his jurisdiction. This will be revealing if we go through the objections furnished by the applicant to the inquiry report. In the objections dated 6.12.2001 the remarks made by the applicant as against the Inquiry Officer are per se defamatory and unbecoming of a Government servant. He had addressed the Inquiry Officer in his 12 page objections only as “the so called Inquiry Officer. He has characterised the Inquiry Officer in the following words:
“It is not known why our able Inquiry Officer and Presenting Officer failed to bring this fact to surface (relating to information of suspension). Perhaps this may be due to the reason that it requires little bit of intelligence, knowledge, qualification, experience, training etc., awfully they lack all these qualities and aspects.”
He further says in Para 13 as follows:
“It is not known what he means by cordial/smooth atmosphere and what cooperation he expects? Whatever he says whether right or wrong if I accept it will become cordial/smooth atmosphere and leads to co-operation otherwise if I talk about rules and facts, his atmosphere will be polluted and he will not be in a position to find out the truth. With this mind set he proceeds further with wonderful feeling only to cause satisfaction to his instinct of false prestige.”
He has characterised the report of the Inquiry Officer as misleading and misrepresentation with fraudulent intention and that he had not taken cognizance of the written statement of defence on “silly ground” and that he simply waits comfortably for the retirement of the Presenting Officer and then cozily waits for the appointment of another Presenting Officer and joyfully proceeds on a training to S.T.I. (T), New Delhi and finally thinks of conducting inquiry and very cleverly tries to transfer the inordinated delay caused by him due to his apathy and ignorance on the delinquent official. He has characterised the report of the Inquiry Officer as illegal activity and has tried to hush up the matter and he has unnecessarily started playing to the tune of need of co-operation etc., which he is not supposed to do and that he has joined hands with mala fide and ulterior motives and “our learned Inquiry Officer has not at all bothered to verify the correctness of the facts or look into the records about the authenticity.” The objections submitted by the applicant are full of such kind of insinuations, out right condemnation, use of expressions which are totally unsupportable against high official of the department. It is surprising to us to note as to how the respondents have not thought it fit to proceed against the applicant for such kind of insinuations made in his objections to the inquiry report. Whatever may be the grievance as to his suspension or prolonged inquiry etc., they have no place in so far as the inquiry report is concerned. The applicant has absolutely no justification to characterize the Inquiry Officer as an inefficient person lacking in qualities, knowledge, experience, training etc. From the materials placed before us we find that the Inquiry Officer had before him the statement of Lighting Assistants viz., Sri Vasudeva, Sri A. Appaji Rao, Sri V.P. Prabhakara, Sri B.P. Parthasarathi and Sri S. Diwakar, UDC. He has also taken statement of Sri M.V. Mallikarjuna, Cleaning Assistant of the DDK, Bangalore and the statement of Sri M.N. Ramanathan, the then AO, DDK, Bangalore. The Inquiry Officer had also taken into account the statement of the applicant on 17.10.2001. These statements were considered and that the Inquiry Officer on the basis of analyzing all these statements and the records found that the articles of charge stand proved.
10. Though the order of the Disciplinary Authority did not set out in detail about the conclusions, the appellate order which has merged with the Disciplinary Authority’s order has considered each and every one of the grounds raised by the applicant and is a speaking order. The Disciplinary Authority had gone through the inquiry report which contained a statement given by the witnesses during the course of inquiry and the written submissions as a matter of fact did not deal much on the point of law or question of fact found in the Inquiry Officer’s report except throwing mud on the face of the Inquiry Officer. Therefore, we do not find any illegality in the order of the Disciplinary Authority in accepting the inquiry report on the establishment of the charge and the finding and agreed with the same to hold that considering the gravity of the charges it warrants imposition of major penalty.
11. The Appellate Authority in our view has given cogent reasons and convincing findings. Referring to the various grounds raised by the applicant in his memorandum of appeal, the Appellate Authority chose to consider each and every ground raised by the applicant. The Appellate Authority found that there is no time frame for completing the inquiry and so also on the fact that after expiry of six months period of suspension there is no provision which imply that the disciplinary proceedings will automatically become invalid. Sub-rules (5) and (6) of Rule 10 of the CCA Rules says that an order of suspension shall continue to remain in force until it is modified or revoked by the authority competent to do so and that he shall continue to be under suspension until the termination of all or any of such proceedings. In any event, the suspension or its continuance has no direct bearing on the inquiry proceedings. If really the applicant is aggrieved by the continuance of suspension, he could have worked out his remedy in a manner known to law. The contention of the applicant that the CBI did not register a case against him under the Prevention of Corruption Act and, therefore, the departmental proceedings are initiated cannot be accepted. As pointed out, it is for the CBI to take a decision as to the prosecution under the Prevention of Corruption Act. It is also open to them to recommend only departmental inquiry or simultaneous prosecution as well as departmental action. The applicant was framed of the charges by the department and it is his duty to face the same in accordance with law. It is not open to him to question the motive of CBI to recommend a departmental inquiry. According to the department, they have got authority to place the applicant under suspension if the disciplinary proceedings are contemplated and the continued presence of the applicant in the office would be prejudicial to the smooth conduct of the inquiry. Therefore, placing of the applicant under suspension is empowered under Rule 10 of the CCA Rules. Coming to the merits of the evidence it has to be stated that this Tribunal has limited role to go into the question of availability of evidence against the applicant. Nothing is shown to demonstrate that there is no material at all available against the applicant and the evidence available is perversely read by the Inquiry Officer to establish the case against the applicant. The background of the case against the applicant is that Casual Lighting Assistants viz., Sri B. Vasudeva Murthy and others filed Writ Petition No. 2664/-653/98 before the High Court of Karnataka for their regularisation. They have obtained a favourable order directing the respondents to consider the cases of those Casual Lighting Assistants for regularisation. The applicant was in the legal cell as dealing assistant during that period. Though he had been shifted from the legal cell with effect from 1.9.1999 the regular dealing assistant was on leave from 3.5.2000 to 12.5.2000 and the applicant was asked to look after legal matters. It is during this period that is on 8.5.2000 and 9.5.2000 the applicant is said to have demanded a bribe for them for getting the job regularisation of the Casual Lighting Assistants. In other words, the applicant has committed a gross official misconduct, dereliction of duty and failed to maintain absolute integrity by wilfully entering into negotiations with Casual Lighting Assistants for getting the High Court order implemented. From the statement of imputations it is seen that he was working in the legal cell attending to Court cases, briefing Counsel, co-ordinating the legal matters with the Head Quarters, Kendras and Law Ministry from April 1996 to August 1999. While serving in the legal cell he was attending to the cases filed by Sri K. Vasudeva and others vide O.A. No. 39/96 and 94 to 98 of 1996 before this Bench. He was also attending to the writ petitions filed before the High Court of Karnataka by Sri B. Vasudeva Murthy and others vide Writ Petition No. 2664/-653/98 on behalf of Doordarshan Kendra. Taking advantage of his position, the statement of imputations proceeds that he went to Hotel Star’s Regency and fraudulently negotiated with them and thereafter he directed them to meet him at Hotel Taj for further negotiations at 1.30 p.m on 9.5.2000. On 8.5.2000 a joint complaint was lodged by Sri B. Vasudeva Murthy, Sri K. Vasudeva, Sri A. Appaji Rao, Sri V. Prabhakara and Sri B.P. Parthasarathy, Casual Lighting Assistants, DDK, Bangalore with the Superintendent of Police, CBI, ACB, Bangalore alleging that the applicant asked Sri B. Vasudeva Murthy and Sri K. Vasudeva Rao to meet him at Hotel Taj, Shivajinagar at about 1.30 p.m. on 5.9.2000 for certain negotiations for their job regularisation in DDK. Based on the complaint, a surprise check was arranged by a team of officers consisting of Inspectors of Police and others and in the immediate presence of two independent witnesses and during the surprise check proceedings it was found that the applicant came to Hotel Taj, Shivajinagar on 9.5.2000 at about 1.25 p.m. and entered into negotiations with Sri B. Vasudeva Murthy and Sri K. Vasudeva in the matter of their job regularisation. A miniature cassette was entrusted to Sri B. Vasudeva Murthy to record the conversation between them and the applicant and the conversation took place between them was recorded. During the negotiations the applicant demanded an amount of Rs. 90,000/- from them for assisting them in the matter of job regularisation. When they expressed their inability to pay huge amount the applicant had agreed to receive the said amount in two installments and asked them to pay Rs. 45,000/- as initial payment after consulting with their colleagues. Finally, he demanded Rs 25,000/- as advance for commencing the work. During negotiations he also insisted that Rs. 10,000/ is required to be paid to the Government Advocate. When questioned he denied having visited Hotel Taj and told a lie that he went to Hotel Padma, J.C. Nagar whereas he had without any authority or permission from the Competent Authority with mala fide intention to collect illegal gratification from them entered into negotiations for assisting in their Court cases for job regularisation and thereby he had committed misconduct, dereliction in duty and failed to maintain absolute integrity contravening Rule 3(1)(i)(ii) and (iii)(of the Conduct Rules. The applicant in his defence statement dated 10.11.2000 has stated that he would like to produce witnesses and some more evidence in support of the statement of defence and he has also questioned the statement made before the Investigating Officer as not maintainable in law and will not amount to conclusive proof. The applicant has not disputed of his meeting the Casual Lighting Assistants and the discussion he had with them as to the matter of their job regularisation. What he stated in his defence statement is as follows:
“In fact, I never called or directed any of the complainants for any negotiations as stated in the said communications. But, on the contrary some of the complainants approached me with the copy of the judgment and they wanted to consult me and get certain legal suggestions as they were afraid that the department may go for an appeal in Supreme Court and if an appeal is filed again their case may prolonged for decades together, they wanted to know the legal remedies available to them. I suggested purely on humanitarian consideration that they can file a review petition caveat or they can also file an appeal before the Division Bench, or Chief Justice or Supreme Court sometimes it so happens that the higher Court may reverse the verdict given by the Lower Court and quashing the same etc. In support of this suggestion I am enclosing a xerox copy of paper cutting taken from Deccan Herald dated 4.11.2000 vide D.O. Annx-‘A’. Then they asked how about advocates fee, approximately how much they may have to pay in case they engage a senior Advocate to defend their case. I told them only after meeting the advocate and briefing the entire facts he will tell you about the fee aspect. Then again they insisted me Sir at least let us know approximately though not accurately, how much the Advocate is going to charge. Then I told them each member may have to pay towards Advocate’s fee and other expenses Rupees ten thousand to fifteen thousand because the Advocate may even has to go to Delhi etc., in connection with the case.
In this connection I would to state in clear terms going to any restaurant or any hotel is nothing to do whatsoever with this consultation, as most of our colleagues very often go to the hotels including our office canteen, and some times they will pay and sometimes I will pay the bill.
Further when Shri R. Lakshminarayana Rao, Superintendent Engineer, asked where I had been at around 1.30 p.m. in his chamber on 9.5.2000,1 told him I had gone to hotel Padma in J.C, Nagar. It is not known how the authorities have taken it to be a lie I am also enclosing a Xerox copy of bill dated 9.5.2000 from Hotel Padma vide D.O. Annx-‘C. In support of statement, if need be, I can produce a witness who took Tiffin with me between 1.35 and 1.45 p.m. Subsequently I came back to office and suddenly it flashed to me that I needed a postal envelope for my personal use, so I was going to the post office, on the way Sri Vasudeva came from behind and offered to sit on the scooter, I thought he is going that way only he can drop me near post office. But instead of dropping me near the post office he took me to Hotel Taj as he informed that he has not taken lunch and told me after taking something light in the Taj, I can purchase the postal envelope either from post office or from any petty shop there we met another complainant.”
A reading of the above defence statement admits that the applicant had discussed with Casual Lighting Assistants as to the regularisation of their services consequent on the favourable judgment. It appears that he had suggested that appeal may be filed and that they must be able to engage a Counsel and charges have to be paid for the purpose. He also admits that going to restaurant or hotel and discussing the matters like this is not unusual. He also admits that he had gone to Hotel Padma at 1.30 p.m. on 9.5.2000 and again he went to Hotel Taj thereafter where he met another complainant. Therefore, the fact that he was there at Hotel Taj on 9.5.2000 and that he had taken food at that time is not in dispute. The further fact that he had talked with Casual Lighting Assistants as to the implementation of the Court order is not disputed. The question whether he has demanded bribe for helping them in regard to regularisation of their job is a matter to be gone into by the Inquiry Officer. It is seen that the applicant from the very start had been trying to delay the proceedings and protracted it and ultimately not cooperated with the inquiry. On the first day on 25.4.2001 itself he has stated that he will no proceed further until he gets reply from the Competent Authority on the point whether he is a Government servant or an employee of Prasara Bharathi Corporation. Even after he was clarified on the position on 17.10.2001 he had only questioned the locus standi of the Inquiry Officer to conduct the inquiry. The respondents in their reply have stated that he started questioning everybody involved in the inquiry and this is what is stated in the reply.
“… Finally, an answer to this was made available by the Director, DDK, Bangalore vide his letter dated 21.8.2001. On 17.10.2001, the applicant in the presence of the I.O. and P.O. alleged that his suspension order and the inquiry proceedings are not maintainable. He did not listen to the I.O. who directed the P.O. to present his case, but contended that neither the I.O. nor anybody else in the department has the locus standi either to continue or conduct the inquiry. Further, he stated that he has communicated the said contention to the Director on 29.9.2001. His approach to the I.O. and other officers present did not go well on 17.10.2001 as he was using high pitch and authoritative voice. He was reminded politely the duties of the I.O. who was appointed by the Competent Authority and the duties of everybody involved to cooperate to discharge the duties assigned to the individual officers. This did not heed to him and he was only engaged in accusing the I.O. The applicant also refused to answer any question relevant to the case. Under these circumstances, the applicant was told that further proceedings will be treated as closed after 29.10.2001 vide letter 17.10.2001.
During the proceedings on 17.10.2001, he was also afforded an opportunity of cross-examining the witnesses. But, he did utilise the time given upto 29.10.2001 and hence, his silence indicated that he has no respect for rules and regulations. His attitude of non-cooperation, not only hindered the inquiry proceedings, and the I.O. was compelled to close the proceedings. He did not acknowledge the letter dated 17.10.2001 and failed the opportunity given to him to defend himself. Now, he cannot contend that the I.O. has not afforded an opportunity to defend his case. In spite of ample opportunities given to the applicant, he himself has failed to utilise the same.”
The fact that he did not cooperate with the inquiry is evident. Added to that he had scant respect and regard to the higher authority is also evident from his reply dated 6.12.2001 (Annexure-A 10) to the inquiry report. It is also evident that he had shown disrespect and used expressions of a person unbecoming of a Government servant and has abused in the most bad language possible in his reply to the inquiry report. This clearly shows that the applicant had not cooperated with the inquiry and therefore, it is not open to the applicant to contend that there is violation of principles of natural justice in that he did not have fair opportunity of defending himself.
12. The applicant was not denied copies of documents and assuming it to be so, it is open to the applicant to demand furnishing of copies or permission to inspect the documents. Though the applicant has stated that he wanted to produce defence witnesses on his side he did not choose to do so. As a matter of fact he did not express his willingness to participate in the inquiry on 29.10.2001 to cross-examine the main complainants nor did he express his willingness to produce his witnesses or brought them for the purpose of examination. Even though 21 witnesses were listed and certain documents it is open to the Inquiry Officer to limit the number of witnesses to be examined or mark the documents. It is entirely within the competence of the Presenting Officer as well as the Inquiry Officer to proceed with the inquiry with the available materials. It is not open to the applicant to contend that all the witnesses cited including the CBI Officer should be examined. We do not find a case of pick and choose of witnesses by the Inquiry Officer in this case. All the witnesses deposed are relevant witnesses and they have given statements which have been considered by the Inquiry Officer. The applicant who was given opportunity to cross-examine the complainants has failed to avail the opportunity and, therefore, it is not open to the applicant to contend that their statements should not have been relied upon because they have not been given in his presence. The statements were taken because the applicant was showing antagonistic and hostile attitude and was not cooperating with the inquiry.
13. A Constitution Bench of the Hon’ble Supreme Court in Major U.R. Bhatt v. Union of India, AIR 1962 SC 1344, explaining the concept of reasonable opportunity held that the Inquiry Officer is not bound by strict rules of law of evidence and when the public servant declined to take part in the proceedings and failed to remain present, it was open to the Inquiry Officer to proceed on the materials which were placed before him. Their Lordships further held that reasonable opportunity of showing cause as found expression in Article 311 of the Constitution means that it is not within the competence of the Civil Court to sit in judgment over the decision of the authority who is competent by law to dismiss a public servant provided he has been afforded an opportunity to defend himself consistently with the substance of the constitutional guarantee. An opportunity to show cause is reasonable even if it does not contemplate a further opportunity to examine witnesses before the authority competent to impose punishment provided there has been fair and full enquiry at an earlier stage before the Inquiry Officer. Where the Inquiry Officer had afforded to the public servant an opportunity to remain present and to make his defence but because of the conduct of the public servant in declining to participate in the enquiry all the witnesses of the State who could have been examined in support of their case were not examined viva voce. The Supreme Court held that in those circumstances Inquiry Officer was justified in proceeding to act upon the materials placed before him. Their Lordships further held that the inquiry made by the Inquiry Officer cannot therefore be challenged either on the ground of unfairness or incompleteness. In the High Court of Judicature at Bombay v. Shashikant S. Patil and Anr., Their Lordships did not approve the approach of the Division Bench of the High Court as though it was an appeal against the order of Administration/Disciplinary Authority of the High Court. Their Lordships held as follows:
“…Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very fact of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But, we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) in the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.”
14. In Union of India v. T.R. Varma, AIR 1957 SC 882, a Constitution Bench of the Hon’ble Supreme Court held that the Evidence Act has no application to enquiries conducted by Tribunals, even though they may be judicial in character. Their Lordships held that such Tribunals should observe rules of natural justice in the conduct of the inquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtained in a Court of law. According to their Lordships natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. The emphasis laid by the Counsel for the applicant that opponent should be taken in his presence has no application in this case since the applicant has refused to co-operate in the inquiry right from the beginning and that he did not answer the questions required by the Inquiry Officer and the Presenting Officer and that he did not express his willingness to participate in the inquiry to cross-examine the witnesses. Therefore, in our view the applicant had sufficient opportunity to adduce evidence and to cross-examine witnesses in this case. By referring to the judgment of the Karnataka High Court in K. Raja Rao v. Syndicate Bank, , the learned Counsel for the applicant submitted that the statement recorded in the absence of the applicant should not be relied on and that documents were not proved and thereby rules of evidence have been violated. As we find that no document has been relied on by the Inquiry Officer except the statements of material witnesses. The applicant refused to co-operate with the inquiry and to cross-examine the witnesses. In his own defence statement the applicant has admitted his presence and discussions in reference to Court case with the Casual Lighting Assistants. Therefore, in our view this judgment will not apply to the facts of the present case. In State of Assam v. Mahendra Kumar Das, , the Hon’ble Supreme Court held that where the Inquiry Officer is not the Disciplinary Authority who is competent to impose punishment against the delinquent officer and the latter has independently gone into the evidence on record in respect of the charges against the officer and has come to an independent conclusion that the officer is guilty which is again considered independently and confirmed by the Appellate Authority, no principles of natural justice can be said to have been violated. In this case the Appellate Authority has independently considered the evidence on record to come to the conclusion that the applicant is guilty and hence, there is no violation of principles of natural justice.
15. The submission that the punishment is disproportionate to the charges proved also cannot be sustained. The learned Counsel for the applicant relied on the judgment of the Division Bench of the Karnataka High Court in G.S. Kumar v. The Senior Divisional Commercial Manager, Southern Railways and Ors., Writ Petition No. 23732/1999 decided on 28.10.2004. The Karnataka High Court after referring to the judgment of the Hon’ble Supreme Court in Om Kumar v. Union of India, AIR 2000 SC 3689, held that it is not for the Court to examine gravity of proved misconduct and the punishment imposed and it is for the employer who has to examine on considering the overall material evidence placed before him. It was held that the Disciplinary Authority did not examine the past record of service of the petitioner and that he is the sole bread earner of the family as to consider the gravity of the penalty imposed and the punishment being disproportionate to the charges proved. It was a case where after removal from service the petitioner was granted 2/3rd pension amount which was shown as one of the strong circumstances in favour of the petitioner and it should have been considered for giving a lesser punishment. That was a case where the charge against the petitioner was that he travelled from Madras Central to Bangalore in an invalid ticket contravening Rule 3(1)(i)(iii) of the Railway Service (Conduct) Rules, 1966 and the petitioner on the basis of inquiry was visited with an order of removal from service. His appeal and O.A. before the Tribunal also confirmed the punishment imposed. In the facts and circumstances of the case the High Court held that the punishment is disproportionate and that the petitioner must be given lesser penalty. In our view, the facts are entirely different and the charge against the applicant is one of demanding of bribe, which is a serious misconduct affecting integrity and service of the applicant. In Regional Manager, UPSRTC v. Hotilal, (2003) 3 SCC 605=2003(2) SLJ 56 (SC) the Hon’ble Supreme Court held as fellow’s:
“The Court or Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court are not proper.”
As pointed out by the Hon’ble Supreme Court in this case the question involved in mental make up of the delinquent. The applicant was in a position to advise possibility of filing an appeal against the order decided in favour of the complainants. The charge against the applicant was that he holding the public office in trust where honesty and integrity were inbuilt requirement of a public servant, he had shown dishonesty and failed to maintain integrity by demanding bribe for showing official favour. Their Lordships held that misconduct in such cases should be dealt with iron hand. In a recent case the Hon’ble Supreme Court in Divisional Controller, KSRTC v. A.T. Mane, 2005 SCC (L&S) 407=2005(1) SLJ 24 (SC) observed as follows:
” 12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriate that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation’s funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.
13. this Court in the case of B.S. Hullikatti, , held in similar circumstances that the act was either dishonest or was so grossly negligent that the respondent therein was not fit to be retained as a conductor. It also held that in such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums and thereby interfere with the quantum of punishment.”
Applying the above principle we find that the Appellate Authority has considered the quantum of penalty on the charges levelled and established in this case. We do not find any ground whatsoever to interfere with the impugned orders.
16. For the above reasons the O.A. is dismissed. No costs.