OM PRAKASH vs THE UNION OF INDIA and ORS

Heard Mr. K. Paul, the learned counsel representing the petitioner. The respondents are represented by the learned Central Govt. Counsel

(CGC), Mr. S. Sarma.

The petitioner is a former Cook, who was attached with the 1071 Field Workshop of the GREF. The challenge here is to the order dated

22.1.2009 (Annexure-F), whereby, on the basis of the Disciplinary Proceeding (DP) and the guilty finding, the penalty of dismissal from service

was ordered, by the Chief Engineer of Project Chetak.

The major penalty was imposed, under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter

referred to as ''the CCS (CCA) Rules''), and the petitioner contends that the Inquiry authority failed to record evidence to render his finding but

based his conclusion on the delinquent''s admission in the written statement of defence and also the earlier finding of the Court of Inquiry. This is

projected to be infringement of the procedural requirement for the D.P.

The cook while serving in the HQ 36 BRTF, was transferred on 1.6.1995 but he failed to join the new Unit. Taking an adverse view for not

reporting at the transferred station, the missing staff was removed from service, w.e.f. 16.6.1995. A couple of years after the in absentia removal

order on 7.8.1998, the delinquent''s wife Smti Maha Devi, informed the employer that her husband had not visited her for last over 5 years. This

led to issuance of the desertion declaration and attempt was made to apprehend the missing cook. But since his whereabouts could not be found

for seven years, he was presumed dead w.e.f. 29.7.2002 and the wife (Smti Maha Devi) was paid the terminal benefits like GPF, etc. With this

development, the authorities on 26.10.2005, cancelled the removal order. The mystery of the cook continued for around 11 years and then on

20.7.2006, an application was received from him where the cook shown his address as Silchar in Assam (Although Barailly was his official

address). Eventually on 19.1.2008, the delinquent reported to the Unit line, to resume service.

When the missing delinquent applied for resumption of duty on 19.1.2008, the charge memo was issued to him on 8.7.2008, under the CCS

(CCA) Rules, containing the following four charges:

(i) Absented without leave wef 16 Jun 1995 to 18 Jan 2008 thus exhibited an act of unbecoming conduct of a Government servant in violation of

the provisions of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964.

(ii) Producing false/forged medical documents to cover up his prolonged absence from duty thereby violating Rule 3(1)(i) of CCS (Conduct)

Rules, 1964.

(iii) Staying with another lady named Ms Anjali for about 12 years and neglecting his legally wedded wife and children thus violating Rule 3(1)(iii)

and Govt. of India''s decision No.12 below Rule 3-C of CCS (Conduct) Rules, 1964.

(iv) Gross Negligence in safe custody of Government property i.e., Identity Card and the Clothing Card issued to him by the Government of India,

thus violating Rule 3(1)(iii) of CCS (Conduct) Rules, 1964.

Since the alleged misconduct is serious enough to impose major penalties, following the written statement, received from the delinquent, the

disciplinary authority ordered for an enquiry into the charges. The Inquiry Officer noted that the delinquent admitted his guilt in his written statement

of defence and also in the preliminary hearing. Therefore, further enquiry was considered to be redundant by the Inquiry Officer. His assessment of

the material on record was that irrefutable evidence in support of the charge of misconduct is available and accordingly, the charges were declared

to be proved in the conclusion drawn on 5.11.2008 (Annexure-D).

The disciplinary authority thereafter considered the enquiry report and taking note of the gravity of the misconduct, ordered for the delinquent''s

dismissal from service, under Rule 12 of the CCS (CCA) Rules.

1. The petitioner contends that the major penalty was imposed without conducting the required enquiry. The failure to record findings on each

charge, as is mandated by Sub-Rule 5(a) of Rule 14 of the CCS (CCA) Rules is highlighted and the learned counsel Mr. K. Paul submits that the

admission in the written statement of defence, cannot be the basis for the adverse conclusion. He argues that the Inquiry Officer should have

received evidence and was obliged to record his independent finding on each charge, in reference to the evidence adduced.

8.2. The delinquent refers to the Medical Certificate issued by the Professor of the Department of psychiatry of the Silchar Medical College and

Hospital (SMCH), which shows that the delinquent was suffering from Chronic Paranoid Schizophrenia and was receiving prolonged treatment in

the psychiatric Department of the Medical College since 4.6.1995 till 14.11.2006. Projecting the mental state of the delinquent, Mr. Paul argues

that his failure to contact with his unit may not be willful. Therefore the counsel submits that this absence cannot be construed to be a misconduct,

without a definite conclusion on whether the delinquent deliberately remained absent or was incapacitated, by his Chronic Paranoid Schizophrenia

syndrome.

8.3. The petitioner''s counsel refers to the 28.2.2008 re-verification of the Medical Certificate, by the Associate Professor of the Medical

College''s psychiatry Department to project that, the delinquent was under prolonged treatment at the Govt. Hospital and therefore, Mr. Paul

argues that unless willful absence is established, the guilty finding against the Charge Nos.I and II, cannot be sustained.

8.4. As regards the IVth charge of loss of the official Identity Card, the delinquent contends that this charge of negligence can hardly justify the

punishment of dismissal from service and accordingly the penalty is contented to be disproportionate to the misconduct alleged against Charge

No.IV.

1. On the other hand, Mr. S. Sarma, the learned CGC submits that the delinquent in his written statement of defence had admitted his guilt

against three of the charges and therefore, he was rightly found to be guilty by the Inquiry Officer and accordingly, it is argued that intervention of

the Court is not warranted, in the disciplinary action.

9.2. The respondents project that the cook failed to report to his transferred Unit and was incognito for around 12 years and reported to his Unit

only on 19.1.2008 and accordingly it is submitted that it is a clear case of grave misconduct and therefore, the punishment is projected to be as

merited.

The Rule 14 of the CCS (CCA) Rules, lays down the procedure for imposing major penalty and it is provided that the penalties, specified in

Rule 11 should be imposed only after the enquiry is held, in accordance with the prescribed procedure. When the charges are admitted by the

delinquent in his written statement of defence, Sub-Rule 5(a) of Rule 14 of the CCS (CCA) Rules comes into operation which requires the

disciplinary authority to receive evidence and record finding based on such evidence.

In the present case, because of the admission in the written statement of defence, the Inquiry Officer felt that the enquiry is redundant. Thus the

delinquent was penalized without conducting the required enquiry, envisaged by Rule 14 of the CCS (CCA) Rules. The issue to be thus answered

is, whether disciplinary action can be based on adverse conclusion reached without the enquiry.

While examining a pari materia disciplinary proceeding, under the Nagaland Services (Discipline and Appeal) Rules, 1967, this Court in

Yanpothung Lotha vs. State of Nagaland, reported in 2014 (5) GLT 744, held that when disciplinary proceeding is initiated, punishment can be

imposed only after holding the enquiry, specified under Rule 9(1) of the Service Rules. In the absence of the required enquiry, the disciplinary

action was interfered by the Court with liberty to start the inquiry de novo, in accordance with the prescribed procedure.

Besides the admission of guilt in the written statement of defence, the Inquiry Officer also based his conclusion by referring to the findings of the

Court of Enquiry, without actually enquiring into the charges, as is prescribed by Rule 14(5)(a) of the CCS (CCA) Rules. Commenting on such

intermittent reference to the earlier findings in a disciplinary proceeding, this Court in the case of Hriday Das Lotha vs. Union of India, reported in

2015 (4) GLT 1034, adversely commented on the conduct of the concerned Inquiry Officer. We can benefit from the learned Judge''s analysis of

the procedural requirements of the Rule 14 of the CCS (CCA) Rules, by extracting the following paragraph from the judgment in Hriday Das

(Supra):

..........

Rule 14 of the 1965 Rules lays down the procedure for imposing major penalty. No order of major penalty shall be made without holding an

enquiry. The disciplinary authority may draw up definite charges of misconduct and shall serve on the Government servant a copy of the articles of

charge along with supporting documents, such as, statement of imputations of misconduct or misbehavior and lists of documents and witnesses

whereby the articles of charge are proposed to be sustained. A Government servant is required to submit written statement of his defence. On

receipt of the written statement of defence, if the disciplinary authority is not satisfied with the explanation given he may enquire into the charges

framed against the Government servant by appointing an Inquiring Authority. When an enquiry is held and Inquiring Authority is appointed, the

disciplinary authority may appoint a Government servant or a legal practitioner to be known as the Presenting Officer to present the case of the

disciplinary authority in support of the charges. In the enquiry, the Government servant may take the assistance of any other Government servant

but may not engage a legal practitioner unless the Presenting Officer is a legal practitioner or the Inquiring Authority so permits. In the course of the

enquiry, the Government servant would be entitled to cross-examine the witnesses of the disciplinary authority and may himself adduce evidence in

his defence, both oral and documentary. After completion of production of evidence, the enquiry authority may hear the Presenting Officer and the

Government servant or permit them to file written briefs of their respective cases. Thereafter, the enquiry authority is required to prepare his report

returning his findings on the charges.

............"".

Proceeding on the above basis, what is relevant in this case is that the Inquiry Officer never conducted any enquiry and dispensed with

recording of evidence, on the basis of the admission in the written statement of defence, as well as on his personal assessment that, the disciplinary

authority has irrefutable evidence in support of the charges. Such avoidance by the Inquiry Officer, in my perception led to denial of a fair

opportunity for the delinquent, as the prosecution never adduced any evidence which in turn disabled the delinquent from cross-examination of the

prosecution witnesses. This sort of truncated disciplinary proceeding does not satisfy the legal requirement and the same is thus liable to be

interfered by the Court.

It is imperative for the Inquiry Officer to conclude either way as to whether, the absence of the delinquent was intentional or he was prevented

from joining duty on account of the prolonged psychiatric sufferings. The genuineness of the medical certificate of the SMCH, produced by the

delinquent, could have been verified to reach appropriate conclusion on the actual position of the mental state. This was not done and instead

conclusion is reached on the basis of the admission in the written statement of defence and also with intermittent reference, to the findings in the

Court of Enquiry. This was clearly impermissible.

The law requires that the allegation against the delinquent should be established through due process as prescribed by Rule 14 of the CCS

(CCA) Rules, but breach of the legal requirement is clearly noticed in the instant case. For the omission of the Enquiry Officer and the resultant

denial of the fair opportunity to the affected person, this Court is constrained to declare that the punishment in pursuant to such defective

procedure, is legally unsustainable. The impugned dismissal order dated 22.1.2009 (Annexure-F) is thus quashed by the Court. The respondents

however are at liberty to re-conduct the proceeding from the stage of receipt of the written statement of defence and then to record findings with

reference to the evidence adduced, in the departmental enquiry.

To facilitate the fresh inquiry, since the delinquent may have reached the age of superannuation, he may be reinstated on notional basis and be

kept under suspension for the duration of the enquiry. Depending on the conclusion in the fresh proceeding, appropriate action is permitted to be

taken for the delinquent, in reference to the charge memo dated 8.7.2008. If the petitioner is exonerated, all service benefits as per norms be given,

subject to adjustment of the terminal benefits paid to the delinquent''s wife Smti Maha Devi. It is ordered accordingly.

With the above order, the case stands allowed. No cost.