Chhote Lal Meena vs Union Of India & Ors.

Per Harvinder Kaur Oberoi, Member (J):

The applicant was appointed as Inspector in the Customs and Excise Department, Ministry of Finance, through direct recruitment w.e.f. 07.04.2011. He is presently posted in the office of the Principal Commissioner of Customs, ACC Import, New Customs House, near IGI Airport, New Delhi.

While serving as Inspector, the applicant was issued a charge memorandum dated 21.06.2017 under Rule 14 of the CCS (CCA) Rules, 1965, by the then Commissioner, Central Excise Commissionerate, Gurgaon-II. The charges related to the alleged possession of cash amounting to Rs. 15,170/- in excess of the prescribed limit of Rs. 5,000/-, without recording the same in the Cash Declaration Register, pursuant to an investigation conducted by the Directorate General of Vigilance.

The applicant submitted his reply to the charge memorandum on 29.06.2017, denying the allegations and explaining that the amount represented his personal savings withdrawn from his bank account. He further submitted that he had orally informed the then Range Superintendent, Shri R.S. Mishra, about the cash in his possession, as the Cash Declaration Register was not available in the office.

Upon completion of the departmental inquiry, the Inquiry Officer, vide report dated 28.02.2019, held that the charges against the applicant were not proved due to the absence of sufficient evidence establishing his alleged misconduct. The applicant submitted his representation dated 07.06.2019, supporting the findings of the Inquiry Officer.

However, the Disciplinary Authority, vide order dated 24.02.2020, disagreed with the findings of the Inquiry Officer and imposed the minor penalty of censure upon the applicant. Aggrieved thereby, the applicant preferred an appeal dated 25.06.2020, which was rejected by the Appellate Authority vide order dated 26.08.2021, thereby upholding the penalty imposed by the Disciplinary Authority.

The applicant has challenged the orders dated 24.02.2020 and 26.08.2021, primarily on the grounds that the Disciplinary Authority disagreed with the findings of the Inquiry Officer without furnishing a reasoned disagreement note, thereby violating Rule 15(2) of the CCS (CCA) Rules, 1965, the principles of natural justice and Article 311(2) of the Constitution of India. The applicant also contends that the impugned penalty has adversely affected his promotion prospects and consequential service benefits.

Learned counsel for the applicant submitted that the Inquiry Officer, after duly examining the witnesses and documentary evidence, rightly concluded that the charges levelled against the applicant were not proved. There was no cogent evidence establishing any misconduct on the part of the applicant, and the findings of the Inquiry Officer were based on the evidence available on record and the settled principles of disciplinary law.

It was contended that the Disciplinary Authority, while disagreeing with the findings of the Inquiry Officer and imposing the penalty of censure, failed to furnish a proper disagreement note and afford the applicant an effective opportunity to represent against the proposed findings. The impugned order is, therefore, stated to be in violation of Rule 15(2) of the CCS (CCA) Rules, 1965, and the principles of natural justice.

Learned counsel further submitted that the amount of Rs. 15,170/- found in the applicant's possession was his personal money, withdrawn from his savings bank account, and had no connection with any alleged demand or receipt of illegal gratification. The applicant had also orally informed the then Range Superintendent about the amount, and the Cash Declaration Register was not available in the office on the relevant date. It was argued that these circumstances were duly considered by the Inquiry Officer, who found the charges unsubstantiated.

It was further contended that the Appellate Authority, while rejecting the applicant's appeal, failed to consider the specific grounds raised therein, particularly the absence of a disagreement note and the lack of evidence supporting the charges. The appellate order is, therefore, alleged to be non-speaking, arbitrary and in violation of Rule 27 of the CCS (CCA) Rules, 1965.

Learned counsel argued that the Disciplinary Authority could not have imposed a penalty merely on the basis of conjectures or by introducing an allegation of negligence that was not established through the inquiry proceedings. Reliance was placed on the principles laid down by the Hon'ble Supreme Court in M.V. Bijlani v. Union of India & Ors. to contend that disciplinary findings must be supported by evidence and cannot be sustained on mere suspicion or surmise.

Lastly, learned counsel submitted that the penalty of censure is arbitrary and has adversely affected the applicant's promotion prospects, as his junior has been promoted to the post of Superintendent. Accordingly, it was prayed that the impugned orders dated 24.02.2020 and 26.08.2021 be set aside and the applicant be granted all consequential service benefits in accordance with law.

Learned counsel for the respondents has filed the counter affidavit and submitted that the applicant was found in possession of cash amounting to Rs. 15,170/- during a surprise check conducted by the Directorate General of Vigilance (DGoV) on 12.02.2015, which exceeded the prescribed limit and had not been entered in the Cash Declaration Register, in violation of the applicable instructions. Accordingly, a charge memorandum dated 21.06.2017 was issued to the applicant under Rule 14 of the CCS (CCA) Rules, 1965.

It was further submitted that although the Inquiry Officer, vide report dated 28.02.2019, held the charges as not proved, the Disciplinary Authority, upon consideration of the inquiry report and the subsequent Second Stage Advice of the DGoV dated 05.09.2019, decided to impose the minor penalty of censure. It was contended that the inquiry report and the Second Stage Advice were duly supplied to the applicant, who submitted his representation and was also afforded a personal hearing on 10.10.2019 before the penalty order dated 24.02.2020 was passed.

Learned counsel further submitted that the Disciplinary Authority was competent to disagree with the findings of the Inquiry Officer and impose an appropriate penalty based on the material available on record. It was argued that the prescribed procedure and the principles of natural justice had been duly followed, and the applicant had been afforded a reasonable opportunity to defend himself. The contention regarding the non-issuance of a separate disagreement note was also considered by the Appellate Authority, which rejected the appeal vide order dated 25.08.2021, upholding the penalty imposed by the Disciplinary Authority.

It was also contended that the applicant had failed to comply with the mandatory instructions regarding declaration of excess cash, and the fact that the Cash Declaration Register was allegedly unavailable did not absolve him of his responsibility to report the matter to the appropriate authority. Learned counsel submitted that the impugned orders were reasoned, lawful and passed after due consideration of the relevant facts and records. The grounds raised in the Original Application were stated to be a reiteration of the applicant's earlier defence, without any merit warranting interference. Accordingly, it was prayed that the Original Application be dismissed.

We have heard the learned counsel for the parties and perused the pleadings available on record.

The main issue in the present case is whether the Disciplinary Authority was justified in imposing the penalty of censure on the applicant after disagreeing with the findings of the Inquiry Officer, without issuing its own tentative reasons for disagreement as required under the applicable rules.

It is an admitted fact that the Inquiry Officer, vide report dated 28.02.2019, held that the charges against the applicant were not proved. The applicant submitted his representation dated 07.06.2019, agreeing with the findings of the Inquiry Officer. Thereafter, the Disciplinary Authority sought the Second Stage Advice of the Directorate General of Vigilance (DGoV). The DGoV, vide advice dated 05.09.2019, recommended the imposition of a minor penalty. The said advice was supplied to the applicant, who submitted his representation on 18.09.2019. He was also given a personal hearing on 10.10.2019. Subsequently, the Disciplinary Authority imposed the penalty of censure vide order dated 24.02.2020.

The main grievance of the applicant is that the Disciplinary Authority did not issue a separate disagreement note explaining why it disagreed with the findings of the Inquiry Officer. In this regard, Rule 15(2) of the CCS (CCA) Rules, 1965, provides that when the Disciplinary Authority disagrees with the findings of the Inquiry Officer, it must communicate its own tentative reasons for disagreement to the employee and give him an opportunity to submit his representation.

In the present case, the respondents have argued that the applicant was given a copy of the Second Stage Advice of the DGoV and was also allowed to submit his representation and attend a personal hearing. However, the Second Stage Advice of the DGoV cannot automatically replace the Disciplinary Authority's own tentative reasons for disagreement, as required under Rule 15(2) of the CCS (CCA) Rules, 1965. The responsibility to follow this procedure lies with the Disciplinary Authority itself.

The legal principle laid down in Taylor v. Taylor, (1875) 1 Ch. D. 426, and later recognised in Nazir Ahmad v. King-Emperor, AIR 1936 PC 253, was reaffirmed by the Hon'ble Supreme Court in State of U.P. v. Singhara Singh, AIR 1964 SC 358, and Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422. The principle is that when the law prescribes a particular procedure for doing something, that procedure must be followed in the prescribed manner.

Applying this principle to the present case, we find that when Rule 15(2) specifically requires the Disciplinary Authority to communicate its own tentative reasons for disagreement, the requirement cannot be avoided merely by supplying the DGoV's advice or by giving the applicant a personal hearing. The purpose of this rule is to inform the employee of the reasons for the proposed disagreement and allow him to respond before the final decision is taken. A personal hearing alone does not remove this defect if the mandatory requirement has not been fulfilled.

The Disciplinary Authority was certainly entitled to disagree with the findings of the Inquiry Officer. However, it was required to follow the procedure laid down in the rules before imposing a penalty. The fact that the Disciplinary Authority has the power to take a different view does not mean that it can ignore the mandatory procedure prescribed by law.

The respondents have also argued that the applicant was found in possession of Rs. 15,170/-, which exceeded the prescribed limit of Rs. 5,000/-, and that the amount had not been entered in the Cash Declaration Register. The applicant has explained that the money belonged to him and that he had orally informed the then Range Superintendent about it because the register was not available in the office. However, even if the respondents rely upon material against the applicant, the prescribed legal procedure must still be followed before a penalty is imposed.

The Appellate Authority rejected the applicant's appeal on the ground that he had been supplied with the Second Stage Advice and given an opportunity to present his case. However, the grant of these opportunities does not, by itself, establish compliance with Rule 15(2). The requirement to communicate the Disciplinary Authority's own tentative reasons for disagreement is separate and must be fulfilled in accordance with the rules.

In view of the above discussion, we hold that the Disciplinary Authority was required to follow the procedure prescribed under Rule 15(2) of the CCS (CCA) Rules, 1965. The principle laid down in Taylor v. Taylor, (1875) 1 Ch. D. 426; Nazir Ahmad v. King-Emperor, AIR 1936 PC 253; State of U.P. v. Singhara Singh, AIR 1964 SC 358; and Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422 makes it clear that a procedure prescribed by law must be followed in the manner laid down. The Second Stage Advice of the DGoV and the opportunity of personal hearing could not, by themselves, replace the specific requirement of Rule 15(2).

Accordingly, the Original Application is allowed. The impugned order dated 24.02.2020, imposing the penalty of censure upon the applicant, and the appellate order dated 26.08.2021, upholding the penalty, are quashed and set aside. The applicant shall be entitled to consequential service benefits in accordance with the applicable rules. Pending MA(s), if any, shall also stand disposed of. There shall be no order as to costs.