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Judgment
O R D E R
MR.SWARUP KUMAR MISHRA, MEMBER (JUDL.): The applicant in this Original Application filed u/s. 19 of the Administrative Tribunals Act, 1985 challenges calls in question & seeks to quash the disciplinary proceedings initiated against him under Rule 16 of CCS (CC&A) Rules, 1965 vide Memorandum dated 15.12.2021 (Annex.A.1); order of Disciplinary Authority dated 11.03.2022 (Annex.A/6) imposing punishment of ‘withholding of one increment of pay when falls due next for a period of nine months without cumulative effect” and the order of the Appellate Authority dated 29.07.2022 (Annex.A/8). Placing reliance on the submissions made in the OA as well as rejoinder, learned counsel for the applicant has submitted that there was no authenticated evidence that he had misbehaved and used any offensive language to Smt. Rekha Dash in presence of all other staff. The CCTV footage taken as evidence does not reveal use of any such language. Punishment was imposed on the applicant without taking and analyzing the points raised by him. It has been stated that misconduct is something different from the lapses and, thus, a person can only be punished when he has committed misconduct but not the lapses or mistakes and when the allegation was factual in nature, the disciplinary authority ought not to have imposed the punishment without resorting to regular enquiry by invoking the provision of Rule 16 (1) (b) of Rules, 1965 by way of examining the persons who were present during the incident in question etc in compliance of natural justice. Further, according to the Applicant the Disciplinary Authority copy of the preliminary enquiry was never supplied to him and he had no knowledge that any such preliminary enquiry was conducted and if at all any such enquiry was conducted the same was conducted behind his back without giving him any opportunity to cross examination the witnesses examined during the preliminary enquiry. Thus, the punishment imposed taking into consideration such preliminary enquiry is bad in law. In this connection, learned counsel for the Applicant has placed reliance on the decisions of the Hon’ble Apex Court in the cases of Ministry of Finance & Anr vs S.B.Ramesh, (1998) 1 SCSLJ 417; State of UP vs Shatrughan Lal and another, AIR 1998 SC 3038, State of Orissa vs Binapani Dei and Ors, MANU/SC/0332/1967. In support of the stand that even though it was a proceeding under Rule 16, since the charges are factual and denied by the applicant the respondents ought not to have punished the applicant without giving him opportunity by way of conducting enquiry in the manner provided in case of proceedings under Rule 14 of Rules, 1965 as held by Hon’ble Apex Court in the case of O.K.Bhardwaj vs UOI & Ors, 2002 SCC (L&S) 188 which have been followed by this Tribunal in several decisions. It has been contended that the appellate authority, without due application of mind rejected the appeal in a routine manner. The sub and substance of the contention of the applicant is that preliminary enquiry report was made the foundation of charge framed against the Applicant and, thus, it was ought to have been supplied to him. Hence non supply of preliminary enquiry report vitiates the whole departmental proceeding. According to the learned counsel for the applicant as imposition of punishment in gross violation of Rules, Law and cardinal principles of natural justice, the entire proceedings are liable to be quashed.
Similarly, relying on the stand taken in the counter, learned counsel for the Respondents has submitted that on receipt of complaints of the applicant as well as HRO, Cuttack the matter was entrusted to a responsible officer to cause an enquiry and submit the report who after due enquiry submitted its report. The Disciplinary Authority, after going through the pros and cons of the matter in its entirety, issued charge sheet under Rule 16 of Rules, 1965. The applicant had never requested for causing enquiry in the matter and Applicant submitted his written statement of defence denying the allegation. The Applicant was well aware of the preliminary enquiry as he had sought copy of the statement which were supplied to him. It has been contended that in course of the preliminary enquiry employees witnessing the incident were examined and the applicant was given adequate opportunity to prove his innocence during the process. Documents sought by the Applicant were provided to him. Learned Counsel for the Respondents has also denied the allegation of non supply of documents. It was submitted that the documents sought by applicant was duly supplied. He was also supplied the statements recorded during preliminary enquiry. It has been submitted that the act and commissions of applicant is in no way a lapse but it is an act done willfully which is subversive of discipline. As per CCS (Conduct) Rules, 1964 and Govt. of India decisions such act comes under gross moral misconduct and therefore, initiation of disciplinary proceedings and imposition of punishment is just and proper.
Considered the arguments advanced by respective parties and perused the documents. It is established from the records and in course of arguments that a fact finding enquiry was held on the allegations and the authority conducted such enquiry after examining the persons witnesses the incident, CCTV footage and other facts and circumstances came to conclusion based on such preliminary report charge sheet under rule 16 was issued to the applicant. It is also seen that the disciplinary authority took note of such report while imposing the punishment so also the Appellate Authority while rejecting the Appeal of applicant. There is no single scrap of paper has been produced to show that the applicant was given any such intimation of conducting any such preliminary enquiry to enable him to participate in the preliminary enquiry. But it is not in dispute that copy of the said report was not supplied to the applicant prior to charge sheet, with the charge or even thereafter. In the case of S.B.Ramesh (supra), the Hon’ble Apex Court was pleased to hold that statement recorded behind the back of a person cannot be made use of against an employee in a proceeding unless the person who is said to have made that statement is made available for cross-examination, to prove his or her veracity. It is also recorded that the purpose of holding preliminary enquiry is to reach a prime facie conclusion as to whether the disciplinary proceedings should be initiated or not. An employee is thus not entitled to copy of the said preliminary report unless the said preliminary report is not taken for drawal of proceedings and imposition of punishment. Hon’ble Apex Court in the case of Amlendu Ghosh v. District Traffic Superintendent, North-Eastern Railway, Katiyar, AIR 1960 SC 992, have made it clear that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held. In the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., AIR 2013 SC 58, the Hon’ble Apex Court while placing reliance upon a large number of earlier judgments have held that cross-examination is an integral part of the principles of natural justice, and a statement recorded behind back of a person wherein the delinquent had no opportunity to cross- examine such persons, the same cannot be relied upon. In the case of Nirmala J. Jhala Vs State of Gujarat, AIR 2013 SC 1513 was pleased to hold as under:
“23.In view of above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.”
In the peculiar facts and circumstances of the matter, this Tribunal is of the considered opinion that non supply of the preliminary inquiry report and on the other hand imposition of punishment by placing reliance on the said preliminary report cannot sustain in the eyes of law being in violation of the cardinal principles of natural justice. Similar is the situation in so far as the order of the Appellate Authority who had rejected the appeal placing reliance on the said preliminary enquiry report without examining whether such report was made available to the applicant. At the same time, this Tribunal cannot close its eyes to the law laid down by the Hon’ble Apex Court in the case of O.K.Bhardwaj (supra) wherein it was held by the Hon’ble Apex Court that if the charges are factual and if they are denied by delinquent employee an enquiry should also be called for. The relevant portion of the decision is quoted as under:
“The High Court has recorded its opinion on two questions : (i) that the punishment imposing stoppage of three increments with cumulative effect is not a major penalty but a minor penalty; (ii) in the case of minor penalties, "it is not necessary to give opportunity to the employee to give explanation and it is also not necessary to hear him before awarding the penalty" : a detailed departmental enquiry is also not contemplating in a case in which minor penalty is to be awarded.
While we agree with the first proposition of the High Court having regard to the rule position which expressly says that "withholding increments of pay with or without cumulative effect" is a minor penalty, we find it not possible to agree with the second proposition. Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.”
In view of the facts and law so also discussions made above, the order of punishment dated 11.03.2022 (Annexure-A/6) and the order of the Appellate Authority dated 29.07.2022 (Annexure-A/8) are not sustainable in the eyes of law and are accordingly quashed.
But looking to the allegation made in the charge sheet, this Tribunal refrained from interfering on the same. Hence, the matter is remitted back to the authorities concerned to decide the matter after holding enquiry in accordance with Rule and law within a period of six months.
In the result this OA stands allowed in part by leaving the parties to bear their own costs.