Shri Niranjan Chandra Malakar vs The Union Of India & Ors.

PER: RAJINDER SINGH DOGRA, MEMBER (J):

The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, assailing the orders dated 02/06.08.2018 whereby a fresh Inquiry Officer and Presenting Officer were appointed in respect of the charge memorandum dated 29.01.2013, the subsequent inquiry report dated 20.08.2019 and the penalty order dated 03.03.2023 whereby 10% of the applicant's monthly pension was withheld for a period of one year. The applicant has also prayed for restoration of his full pension and refund of the amount deducted pursuant to the impugned penalty order.

The undisputed facts, insofar as relevant for determination of the present O.A., are that the applicant, while posted at Customs Division, Aizawl, was served with a memorandum of charges dated 29.01.2013 under Rule 14 of the CCS (CCA) Rules, 1965 containing two Articles of Charge. An Inquiry Officer was appointed and the inquiry was conducted. The Inquiry Officer submitted his report in 2013. The applicant submitted his representation against the inquiry report. The record further shows that the matter remained under consideration for some time and, consequent to retirement of the charged officer on 30.09.2015, the proceeding were deemed to be continued under Rule 9 of the CCS (Pension) Rules, 1972 (now Rule 8 of CCS (Pension) Rules, 2021).

Subsequently, deficiencies were pointed out in the inquiry report by the competent authorities. The report was remitted to the original Inquiry Officer under Rule 15(1) of the CCS (CCA) Rules, 1965 for rectification. The original Inquiry Officer, who had by then retired, returned the matter without undertaking the corrective exercise on account of his deteriorating health. Thereafter, another Inquiry Officer and Presenting Officer were appointed and proceedings were conducted, culminating in the inquiry report dated 20.08.2019. On the basis thereof, the impugned penalty order dated 03.03.2023 was passed withholding 10% of the applicant's monthly pension for one year.

Sri S Nath, learned counsel for the applicant submitted that the second inquiry was impermissible in law. According to him, Rule 15(1) contemplates only a further inquiry and does not confer power upon the Disciplinary Authority to discard a completed inquiry and order a de-novo inquiry through another Inquiry Officer. It is further submitted that no disagreement note was furnished to the applicant in terms of Rule 15(2) before the first inquiry was effectively superseded.

Learned counsel for the applicant further submitted that in the second-stage advice, the CVC, New Delhi, recommended imposition of a major penalty upon Shri Samir Kumar Majumdar, Inspector (Retd.), while recommending communication of Government Displeasure to the applicant. It is submitted that, subsequently, the CBIC, vide order dated 18.10.2018, dropped the disciplinary proceedings against Shri Samir Kumar Majumdar pursuant to the order passed by the Hon’ble Tripura High Court in W.P.(C) No. 550/2017.

Learned counsel for the respondents, on the other hand, submitted that the second inquiry was necessitated by deficiencies noticed in the first inquiry report. It is contended that the original Inquiry Officer had retired and was medically incapacitated and, therefore, could not undertake the corrective exercise. The appointment of another Inquiry Officer was consequently made pursuant to the directions of the competent authority and the subsequent proceedings were lawful. It is also submitted that the penalty was imposed on consideration of the material available on record and that the applicant did not avail the statutory appellate remedy.

Learned counsel for the respondents further submitted that the applicant had already challenged the appointment of the Inquiry Officer and Presenting Officer by filing O.A. No. 040/00344/2018 before this Tribunal and had, inter alia, sought stay of the inquiry proceedings. The said O.A. was disposed of on 18.03.2021 with a direction to the respondents to complete the inquiry within a specified period and to pass the final order thereafter. According to the learned counsel, by directing completion of the inquiry within a fixed time, the Tribunal had, in effect, permitted the respondents to proceed with the inquiry and, consequently, the appointment of the Inquiry Officer and Presenting Officer stood upheld. It is further submitted that the subsequent inquiry was conducted pursuant to the said direction and culminated in the inquiry report dated 20.08.2019 and the final order dated 03.03.2023.

We have considered the rival submissions, examined the material placed before us and the precedents relied upon.

Rule 15(1) of the CCS (CCA) Rules, 1965 provides that where the Disciplinary Authority is not itself the Inquiring Authority, it may, for reasons to be recorded in writing, remit the case to the Inquiring Authority for further inquiry and report, whereupon the Inquiring Authority shall proceed with the further inquiry in accordance with Rule 14, as far as may be. Rule 15(2) separately contemplates the situation where the Disciplinary Authority disagrees with the findings of the Inquiring Authority. In such a case, the Government servant is required to be furnished with the inquiry report together with the tentative reasons for disagreement and given an opportunity to submit his representation.

The Hon’ble Supreme Court in K.R. Deb v. Collector of Central Excise, (1971) 2 SCC 102, and subsequently in Vijay Shankar Pandey v. Union of India, (2014) 10 SCC 589, has recognised that the normal rule is that there should be only one inquiry. At the same time, a further inquiry may be undertaken in appropriate circumstances where a serious defect has occurred in the earlier inquiry or material evidence or witnesses could not be brought on record. What is impermissible is setting aside the earlier inquiry merely because its conclusions do not appeal to the Disciplinary Authority and ordering another inquiry for the purpose of obtaining a different conclusion.

The aforesaid principle does not, however, warrant the conclusion that appointment of another Inquiry Officer is invariably prohibited. The material question is whether the subsequent proceedings constituted a genuine “further inquiry” within the meaning of Rule 15(1), or whether they amounted in substance to a fresh/de novo inquiry into the same charges. In the peculiar facts of the present case, the original Inquiry Officer had retired and had expressed his inability to rectify the deficiencies noticed in the inquiry report on account of his deteriorating health. The competent authority thereafter required appointment of another Inquiry Officer. In such circumstances, the mere appointment of another Inquiry Officer cannot, by itself, be held to be without jurisdiction.

We are also unable to accept the submission of the respondents that the order dated 18.03.2021 passed in O.A. No. 040/00344/2018 conclusively upheld the legality of the appointment of the Inquiry Officer and Presenting Officer. The said O.A. was disposed of by accepting the prayer of the parties and expressly “without going into the merit of the case”, with a direction to complete the inquiry within a specified period and thereafter pass the final order. The said order, therefore, cannot be construed to be invalidating appointment of new IO & PO on the peculiar facts and circumstances of the case.

Equally, the dropping of charges against Shri Samir Kumar Majumdar, relied upon by the applicant, cannot by itself determine the legality of the proceedings against the applicant. It is the positive stand of the respondents that proceeding against Shri Samir Kumar Majumdar was dropped in terms of the order of the Hon’ble Tripura High Court and the proceeding against the applicant was concluded as per orders of this Tribunal in OA.344/2018.

The more substantial question, therefore, is whether the second Inquiry Officer confined the proceedings to the deficiencies noticed in the first inquiry or proceeded to conduct an entirely fresh inquiry. The first inquiry report dated 19.09.2013 formed part of the disciplinary record and could not simply be treated as non-existent. Even where appointment of another Inquiry Officer was necessitated by the retirement or incapacity of the original Inquiry Officer, the authority of the successor Inquiry Officer remained circumscribed by Rule 15(1). He could conduct such further inquiry as was necessary to cure the identified deficiencies, but could not convert the exercise into a de novo adjudication of the entire charge memorandum.

We are also of the view that the absence of a disagreement note, by itself, cannot be treated as rendering every exercise under Rule 15(1) invalid. Where the Disciplinary Authority proposes to differ from the findings of the Inquiry Officer on the merits of the charges, the safeguards contemplated under Rule 15(2) become relevant. However, where further inquiry is directed for curing procedural defects or obtaining necessary evidence, the statutory mechanism is contained in Rule 15(1). The legality of the present proceedings must therefore be tested principally by reference to the reasons for which the first report was remitted and the manner in which the subsequent Inquiry Officer conducted the proceedings.

In the present case, the record indicates that deficiencies in the first inquiry report were noticed by the competent authority and the report was initially remitted to the original Inquiry Officer for further inquiry. The original Inquiry Officer, however, expressed his inability to undertake the exercise on account of ill health. Thereafter, another Inquiry Officer was appointed. These circumstances distinguish the case from one where a second Inquiry Officer was appointed solely because the first report was considered unfavourable to the Disciplinary Authority. We therefore do not find adequate basis to invalidate the appointment orders dated 02/06.08.2018 solely on the ground that a new Inquiry Officer and Presenting Officer were appointed.

The subsequent proceedings, nevertheless, must satisfy the substantive limitation contained in Rule 15(1). If the second Inquiry Officer merely cured the deficiencies identified in the first inquiry and considered the existing record together with such further evidence as was necessary, the exercise could fall within the scope of a permissible further inquiry. If, on the other hand, the entire inquiry was reopened and conducted afresh as though the first inquiry had never taken place, the exercise would amount to a de novo inquiry and would not be saved merely by describing it as a further inquiry. The validity of the inquiry report dated 20.08.2019 and the consequential penalty order must therefore be examined on this touchstone.

On examination of the proceedings, however, it is apparent that the subsequent inquiry was not confined to curing or rectifying the specific deficiencies noticed in the first inquiry report. The earlier inquiry was, in substance, displaced and the matter was subjected to a fresh adjudicatory exercise culminating in an independent inquiry report dated 20.08.2019. Such a course travels beyond the limited power of “further inquiry” contemplated by Rule 15(1). The first inquiry report, having been duly submitted, remained part of the disciplinary record and could not be treated as non-existent merely by appointing another Inquiry Officer.

We are conscious that the Disciplinary Authority is not bound by the findings of the Inquiry Officer and is entitled, in accordance with Rule 15(2), to tentatively disagree with such findings for reasons to be recorded and to afford the delinquent employee an opportunity of representation. The absence of a disagreement note, by itself, therefore, would not render every further inquiry invalid. However, where the course adopted is not a limited further inquiry to cure an identified defect but a substantially fresh inquiry on the same charge-sheet, the question of disagreement under Rule 15(2) cannot be bypassed by resorting to Rule 15(1).

In view of the foregoing discussion, we are unable to sustain the second inquiry report dated 20.08.2019 as the culmination of a permissible further inquiry under Rule 15(1). Consequently, the penalty order dated 03.03.2023, being founded upon the said report, also cannot be sustained.

Consequently, the second enquiry report dated 20.09.2019 being resulted in the conduct of a fresh/de novo inquiry, and the consequential penalty order dated 03.03.2023 are quashed and set aside. Since the appointment of the Inquiry Officer and Presenting Officer by orders dated 02/06.08.2018 is held to be legally sustainable, the same is not interfered with. The matter is accordingly remitted to the competent Disciplinary Authority for completion of the further inquiry under Rule 15(1) of the CCS (CCA) Rules, 1965, confining to curing the specific deficiencies noticed in the earlier inquiry. Such further inquiry shall, by no means, be fresh or de novo inquiry into the charges as a whole. The earlier inquiry proceedings and report shall remain part of the disciplinary record and shall be duly considered by the Disciplinary Authority. If the Disciplinary Authority proposes to differ from the findings on merits, the procedure under Rule 15(2) shall be followed.

Since the penalty imposed by order dated 03.03.2023 is being set aside, the respondents shall restore the pension of the applicant to the extent affected by the said order and refund the amount of pension withheld pursuant thereto, subject to the final decision that may lawfully be taken by the competent authority pursuant to this order.

Having regard to the fact that the disciplinary proceedings originated in the year 2013 and the applicant has already retired from service, the competent authority shall complete the exercise and pass appropriate orders in accordance with rules, as expeditiously as possible, but not later than four months from the date of receipt of a copy of this order.

The Original Application is, accordingly, partly allowed in the above terms. Pending M.As, if any, stand disposed of. No order as to costs.