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Judgment
O R D E R
Hon’ble Mr. R.N. Singh, Member (J)
In the present OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the order dated 3.10.2017 (Annexure A-1) vide which the respondents have placed him under suspension with immediate effect by invoking the powers under sub-rule (1) of Rule 10 of the CCS (CCS) Rules, 1965 (hereinafter referred to as ‘the Rules of 1965’) on the ground of contemplated disciplinary proceedings initiated against him. The applicant has also challenged the inquiry report dated 22.12.2017 forwarded to him vide show cause notice dated 26.12.2017/5.1.2018 (Annexure A-2) vide which the allegation against the applicant in departmental proceedings have been proved by the Inquiry Officer. The applicant has further challenged the order dated 17.1.2018 (Annexure A-3) vide which the Disciplinary Authority has imposed a penalty of dismissal from service upon him and has also challenged order dated 24.10.2018 (Annexure A-4) vide which the Appellate Authority has rejected the appeal preferred by him.
The applicant has prayed for the following reliefs:-
“8.1Quash and set aside suspension order at Annexure A-1 and direct the respondents to treat the suspension from 3.10.2017 till 17.01.2018 as spent on duty for all purposes including pay and allowances; and
8.2To set aside the inquiry report at Annexure A-2 as perverse; and
8.3To set aside the dismissal order at Annexure A-3 and the appellate order at Annexure A-4 with further directions to the respondents to reinstate the applicant in service w.e.f. 17.01.2018 with all consequential benefits including back wages, seniority and promotion etc.; and
8.4Cost of this application may be directed in favour of the applicant and against the respondents; and
8.5Any other relief which this Hon’ble Tribunal deem fit and appropriate, in the circumstances of the case.”
Pursuant to notice from the Tribunal, the respondents have filed counter reply and have opposed the present Application and have also prayed for dismissal of the OA with heavy costs.
The applicant has filed his rejoinder in which he has reiterated his contentions made therein in the OA.
The brief facts leading to the present OA, which are not in dispute, are that the applicant was initially appointed as Caretaker under the respondents w.e.f. 25.7.1986. He was promoted to the post of Sanitary Superintendent on 12.3.1996 (ad-hoc) and was regularised as such on 25.7.1996. The applicant was further promoted as Chief Sanitary Superintendent on 1.1.2000.
At the time of appointment as Caretaker, the applicant was eligible in view of relevant Recruitment Rules, being possessing Matriculation and Intermediate (10+2) certificates from CBSE. The applicant has subsequently graduated in the year 1989 and has done his LLB. in the year 1994. He also possessed Diploma in Sanitary and Public Hygiene from AIIMS.
Vide Memorandum dated 22.5.2017 (Annexure A-7), the disciplinary proceedings under Rule 14 of the Rules of 1965 were proposed by the respondents containing three article of charges therein and on denial of the same by the applicant, regular inquiry has been ordered by the respondents and Inquiry Officer and Presenting Officer had been appointed by the respondents. Pursuant to the said Memorandum dated 22.5.2017, Inquiry Officer conducted the inquiry and after completion of the inquiry, Inquiry Officer tendered his report dated 22.12.2017 (Annexure A-2) and when a copy of the said report had been supplied to the applicant along with a show cause notice dated 26.12.2017/5.1.2018 (Annexure A-2) providing therein an opportunity to the applicant to make representation, the applicant had submitted his reply dated 10.1.2018 (Annexure A-11) and the Disciplinary Authority had passed the order of penalty dated 17.1.2018 (Annexure A-3) and the applicant’s statutory appeal dated 19.1.2018 (Annexure A-12 Colly) had been rejected by the Appellate Authority vide impugned order dated 24.10.2018 (Annexure A-4).
The three articles of charge annexed as ANNEXURE-I to the Memorandum dated 22.5.2017 were framed against the applicant, which read as under:-
“Statement of articles of charges framed against Sh. Surender Kumar, Chief Sanitary Supdt. Safdarjang Hospital, New Delhi.
ARTICLE-I
That, Sh. Surender Kumar Chief Sanitary Supdt. Presently working in this hospital, had submitted his educational certificates copy of Secondary Education, Madhya Pradesh, Bhopal, HSSC Exam. 1982 at the time of appointment to the post of care taker which was found fake and forged.
As per copy of Mark-Sheet submitted by Sh. Surender Kumar, S/o Sh. Ishwar Singh, bears Roll No. 157766, Sl. No. 236825 Centre No. 1304 marks obtained 577, wherein results mentioned passed in First division. On verification from Madhymik Shiksha Mandal, Madhya Pradesh, Bhopal, it was found that Sh. Surender Kumar S/o Ishwar Singh Roll No. 157766 Sl. No. 054283 Centre No. 1316 in mark-sheet total marks obtained- 256, wherein results mentioned as Failed. It is evident that the Mark-Sheet has been tampered with forged. In this regard, he was issued several memorandums to show his original documents and also directed to submit photocopies of his educational documents. But he neither replied nor submitted his documents to the Administration.
Thus, by doing the above said act Sh. Surender Kumar, Chief Sanitary Supdt. has failed to maintain devotion to duty and acted in a manner which is unbecoming of a Govt. Servant thereby contravened the Rule 3(1) (i) (ii) (iii) of CCS (Conduct) Rules, 1964.
ARTICLE-II
That, Sh. Surender Kumar, Chief Sanitary Supdt. working in this hospital, submitted his educational certificates copy of Secondary Education, Madhya Pradesh, Bhopal, HSSC Exam.1982 at the time of appointment to the post of care taker which was found fake and forged.
On verification from Madhymik Shiksha Mandal, Madhya Pradesh, Bhopal and the marks/result intimated by the Karyalaya Madhymik Shiksha Mandal, Madhya Pradesh, Bhopal on the basis of records available with them as failed, But, the available mark-sheet in the personal file of the official submitted/showed him as passed in first division. It has been established that Sh. Surender Kumar, Chief Sanitary Superintendent had actually failed in the Higher Secondary Examination. It is also evident that the Marks-sheet has been tampered with forged and it is, therefore, crystal clear that Sh. Surender Kumar has got the job in this hospital by forging the result and marks in the Mark-Sheet.
An offer appointment/Memorandum letter was issued to him on 18/07/1986, wherein it is clearly mentioned that if any declaration given of information furnished by him prove to be false or if he is found to have will-fully suppressed any material information, he will be liable to removal from service and other such action as Govt. may deem necessary.
Thus, by doing the above said act Sh. Surender Kumar, Chief Sanitary Supdt. has failed to maintain devotion to duty and acted in a manner which is unbecoming of a Govt. Servant thereby Contravened the Rule 3(1) (i) (ii) (iii) of CCS (Conduct) Rules, 1964.
ARTICLE-III
That, Sh. Surender Kumar, Chief Sanitary Supdt. working in this hospital, submitted his educational certificates copy of Secondary Education, Madhya Pradesh, Bhopal, HSSC Exam,1982 at the time of appointment to the post of care taker which was found fake and forged.
On verification from Madhymik Shiksha Mandal, Madhya Pradesh, Bhopal and the marks/result intimated by the Karyalaya Madhymik Shiksha Mandal, Madhya Pradesh, Bhopal on the basis of records available with them as failed, But, the available mark-sheet in the personal file of the official submitted/showed him as passed in first division. It has been established that Sh. Surender Kumar, Chief Sanitary Superintendent had actually failed in the Higher Secondary Examination. It is also evident that the Marks-sheet has been tampered with forged and it is, therefore, crystal clear that Sh. Surender Kumar has got the job in this hospital by forging the result and marks in the Mark-Sheet.
In this connection, a FIR No.0052, dated 10/02/2017 has been registered against him under sections 420/468/471 IPC-1860 in Safdarjang Enclave Police Station South Delhi by the Medical Superintendent of this hospital.
Thus, by doing the above said act Sh. Surender Kumar, Chief Sanitary Supdt. has failed to maintain devotion to duty and acted in a manner which is unbecoming of a Govt. Servant thereby Contravened the Rule 3 (1) (i) (ii) (iii) of CCS (Conduct) Rules, 1964.”
ANNEXURE-III to the said Memorandum dated 22.5.2017 is a list of documents vide which articles of charge framed against the applicant have been proposed to be sustained. The said list contains various documents including letter dated 18.12.2015 (Annexure A-5) vide which Office of Madhya Pradesh Board of Secondary Education, Madhya Pradesh, Bhopal has replied to respondents’ letter dated 31.8.2015, English translation of the contents of the said letter read as under:-
“In reference to the above mentioned subject, presented with your letter Higher Secondary Examination Year 1982, Roll No. 157766, Center No. 1304 candidate Surender Kumar’s S/o Sh. Ishwar Singh, mark sheet in First Division with a total of 577 marks. Upon a comparison of copy of the mark with a record following differences have been found:
SI. No. Mark sheet received from the department Mark sheet available in the office record 1. Mark Sheet Serial No. 236825 Mark Sheet Serial No. 054283 2. Center No. 1304 Center No. 1316 3. Subject wise marks: Hindi- 114, English- 039, History- 125, Civics-0157, Economics- 142, Subject wise marks; Hindi- 033, English-049 (Fail), History-049 (Fail), Civics- 064 (Fail), Social Anthro and Social -061 (Fail) 4. Total Marks: 577 Recorded Total Marks: 256 Recorded
Result: Fail recorded recorded Please be informed accordingly.”
The said list of documents also includes letter dated 31.3.2016 (Annexure A-6 Colly) of the respondents to the Secretary, Board of Secondary Education Madhya Pradesh, Madhya Pradesh, Bhopal, the contents thereof read as under:-
“Verification of Mark Sheet of Higher Secondary School Certificate Exam, 1982-regarding. I am directed to refer to the office of Madhyamik Shiksh Manda, Bhopal letter no. 3514/अिभ./स᭜य/न ᮓ-580/2015 dated 18.12.2016 (copy enclosed) and to say as follows:
2.This hospital has sent a letter dated 10.11.2015 to Assistant Secretary, Madhya Pradesh Board of Secondary Education, Bhopal enclosing there-with a copy of Higher Secondary Education Certificate of Shri Surender Kumar, Chief Sanitary superintendent along with a Demand Draft of Rs. 300/- in favour of Secretary, Madhya Pradesh Board of Secondary Education, Bhopal.
3.The Office of Madhya Pradesh Board of Secondary Education, Bhopal has sent a verification report vide letter dated 18.12.2015. In the verification letter the serial number of the mark sheet is shown as 236825 whereas the serial number of the mark sheet forwarded by this hospital to their office is 236925. It is not clear in the verification report whether the candidate bearing the serial number 054283 is Shri Surender Kumar S/o Shri Ishwar Singh, who had failed in the aforesaid examination.
4.Besides it is also not clear regarding the details of the candidate who bears the mark sheet serial number 236925 and 2369825 after necessary verification by the Madhya Pradesh Board of Secondary Education, Bhopal.
5.A clarification on point 3 and 4 is urgently required in order to verify a complaint.
6.In view of the above, you are requested to provide necessary clarification on the para 3 & 4 above at the earliest for taking further action in this matter.”
Another communication dated 25.6.2016 (Annexure A-6 Colly, at page 38 and English translation of the same at page 38A of the paperbook), of Office of Madhya Pradesh Board of Secondary Education, Madhya Pradesh, Bhopal is also mentioned in the said list of documents, English translation of the contents thereof reads as under:-
“In reply to the above reference letter, it is informed that from the letter received from your office dated 31.08.2015 and Higher Secondary Examination Year, 1982, Roll No. 157766’s mark sheet was received for verification. Variance report of the above mentioned mark sheet was sent to your office by the Board vide letter dated 18.12.2015, letter no. 3514. It is informed in reference to the above mentioned letter, in respect of serial number 3 that letter No.3514 dated 18.12.2015 of this office, shows the mark sheet serial number as 236825 which is correct. It is specified that the mark sheet made available by your hospital to the Board for verification showing serial number as 236825 is the same. The photo copy of the mark sheet provided by your hospital is annexed with this letter for ready reference.
It is also informed that as per the Board’s records, Higher Secondary Examination Year, 1982, Roll No.157766’s mark sheet as per serial number 054283, the examination was attempted by student Surender Kumar S/o Sh. Ishwar Singh only. Certified copy of the mark sheet is annexed herewith for easy reference.
It is informed in reference to point number 4 of the above reference letter that the maintenance of the record of the Board as well as any investigation/search is done as per the Roll Number of the candidate. Therefore, it is not possible to provide the information regarding the roll number and name of the candidate on the basis of the serial number of the mark sheet, so far as serial number 4 of the above reference letter is concerned. Please be informed accordingly.”
We have heard the learned counsels for the parties and have perused the pleadings on record.
Shri Gaur, learned counsel for the applicant in support of the applicant’s prayers in the present OA has argued and taken the following grounds:-
The applicant participated in the selection process for the post of Caretaker and on being found possessing all the requisite qualification(s) for the said post, he was selected and appointed to the said post by the competent authority and he has not only confirmed on the said post by the competent authority but has also been accorded promotion(s) by the competent authority in accordance with the relevant rules and instructions on the subject from time to time. At the time of his appointment, subsequently on his being confirmed on the initial post and thereafter while according promotion(s), his eligibility for such post(s) was required to be verified and was found in accordance with the relevant Recruitment Rules by the competent authority;
The disciplinary proceedings had been initiated by the respondents on an anonymous complaint and that too in utter violation of relevant rules and principles of natural justice and in a casual manner and therefore, the impugned orders are liable to be set aside;
From the aforesaid letter, i.e. 18.12.2015 of the concerned Board, it is evident that the respondents have sent a copy of mark-sheet serial No.236825 having Center No.1304 whereas the concerned Board as given the details of mark-sheet serial No.236925 having Center No.1316 and in no manner, the Madhya Pradesh Board of Secondary Education vide their letter dated 18.12.2015 have even alleged that mark-sheet submitted by the applicant with the respondents or a copy of which has been sent by the respondents to the said Board has been fake, false and/or tempered;
On perusal of the respondents’ own letter dated 31.3.2016 sent to the Secretary of the Board of Secondary Education Madhya Pradesh, Madhya Pradesh, Bhopal, it is apparent that the respondents have contended that in the verification letter dated 18.12.2015, the serial No. of the mark-sheet is shown as 236825 whereas the copy of the mark-sheet which was forwarded by them to the said Board was bearing serial No.236925 and there is no clarity regarding sending of which mark-sheet to the said Board mark-sheet, i.e., serial no.226825 and serial No.236925. Accordingly a clarification has been sought by the respondents vide their said communication dated 31.3.2016 and the said Board in their communication dated 25.6.2016 has reiterated that in the respondents’ communication dated 31.8.2015 the mark-sheet which was made available by the hospital to the Board for verification of the serial No.236825. The communication dated 25.6.2016 also contains the Board’s opinion that it is not possible to provide the information regarding the roll number and name of the candidates on the basis of the serial number of the mark-sheet so far as serial no.4 of the above reference letter is concerned;
The inquiry officer has returned a finding that articles of charge levelled against the applicant as proved on the basis of the aforesaid four communications, i.e., dated 31.8.2015 and 31.3.2016 of the respondents, 18.12.2015 and 25.6.2016 of the Madhya Pradesh Board of Secondary Education in response to those two references of the respondents. However, none of them is a final report of the competent authority about tempering or forgery in the relevant certificate(s) submitted by the applicant while securing the appointment under the respondents;
The Inquiry Officer has conducted the inquiry in a manner as if the applicant was required to prove his innocence and it was not necessary for the respondents to prove the articles of charges levelled against the applicant;
The prosecution witness, namely, mentioned in the list of witnesses in ANNEXURE-IV of the said Memorandum dated 22.5.2017, i.e., A.A.O. Admn.II was never produced to lead the prosecution evidence and even without any order or decision of the Disciplinary Authority or any information supplied to the applicant that the respondents have changed the witness, Shri Ran Niwas, Administrative Officer, was produced as a prosecution witness and, therefore, the inquiry is vitiated for violation of the provisions of Rule 14 of the Rules of 1965 and the said inquiry is non-est in the eyes of law;
The inquiry is vitiated for violation of Rules 14(16), 14(17) and 14 (18) of the Rules of 1965;
The impugned Disciplinary and Appellate Authorities orders are non-speaking and the same have been passed in a mechanical manner without dealing with any of the grounds raised by the applicant in his representation in relation to the inquiry report and in his statutory appeal;
The impugned orders, i.e., impugned Inquiry Officer’s report and impugned Disciplinary and Appellate Authorities orders are in violation of the law laid down by the Hon’ble Apex Court in a catena of cases, particularly, in Roop Singh Negi vs. Punjab National Bank and others, reported in (2009) 2 SCC 570.
On the other hand, Shri Rajeev Kumar, learned counsel for the respondents with the assistance of the reply filed on behalf of the respondents had opposed the present Application and had prayed for dismissal thereof on the ground that the disciplinary proceedings had been initiated by the competent authority and the impugned orders had been passed by the competent authority. The applicant had been accorded adequate opportunity of defence and, therefore, interference by this Tribunal while exercising the power of judicial review is not warranted. Although he had not disputed the aforesaid factual matrix of the case, however, he has submitted that the applicant had failed to prove that the mark-sheet submitted by him while obtaining the employment under the respondents was not fake or forged and the same was genuine one. He had also submitted that his service record shows that the applicant was suspended also in the year 1993 and his ACR for the year 1986 shows that he was not cooperative and made arguments with officers and his work and conduct was not satisfactory. With the assistance of the counter reply, he has further argued that the applicant has neither shown his original certificate of his secondary education issued by the Office of Madhya Pradesh Board of Secondary Education, Madhya Pradesh, Bhopal, i.e., HSSC Examination 1982, i.e., mark-sheet of 10th class before Inquiry Officer and had never been got verified by the concerned Board. It was also contended on behalf of the respondents that the applicant had not produced the original documents before the Inquiry Officer.
Learned counsel for the applicant in his rejoinder had reiterated the submissions already made on behalf of the applicant and has further argued that the applicant was not only found eligible for his appointment but was also found successful in the test, interview conducted by the respondents and after being appointed initially to the post of Caretaker, the applicant had further been confirmed, and promoted to the higher post(s) by the competent authority and had served the respondents for more than 30 years. The applicant had produced the Original documents before the respondents. It was incumbent upon the respondents to prove the charges levelled against him, which they have miserably failed to do. Moreover, the applicant had submitted the relevant communication indicating that the original certificates/testimonies had been submitted by him to the respondent. He had accordingly prayed that the OA deserves to be allowed with costs against the respondents and in favour of the applicant.
On perusal of the Inquiry Officer’s report dated 22.12.2017 (Annexure A-2), it is evident that even before prosecution could lead their evidence on 6.10.2017, questions were put to the applicant in the manner as if the applicant was required to prove his innocence. In the last line of the concluding para of the proceedings held on 6.10.2017, the IO has given a finding that “The statement does not seem to be logical and true.” From the inquiry proceedings as held on 9.11.2017 and recorded in the impugned report of the IO, it is evident that Defence Assistant of the applicant has raised the objection for non-appearance of the prosecution witness. It is further evident from the impugned IO’s report that on 23.11.2017, one Mr. Ram Niwas, Administrative Officer, had appeared as a prosecution witness. However, in the list of witnesses annexed with the charge memo AAO was mentioned as a prosecution witness. The change of witness, though prosecution produced the file to show authorisation in favour of Mr. Ram Niwas as a prosecution witness, however, the fact remains that no formal order to this effect was found to have been issued by the Disciplinary Authority or found to have been communicated to the applicant in this regard. However, no remedial action was taken by the respondents in this regard. The prosecution witness, namely, Mr. Ram Niwas in his cross examination has accepted that verification of the documents after applicant’s appointment under the respondents have been done but he could not remember the exact date thereof. It was also admitted by the said witness, namely, Mr. Ram Niwas that as per the records, the original documents, mark sheet of Higher secondary examination was verified from the original by the hospital authority and found satisfactory. From the contents of hearing of inquiry proceedings dated 04.12.2017, as recorded in the impugned IO’s report, it is evident that a letter no. Nil dated nil with diary no.E-6, 01.01.2009 regarding submission of original documents, i.e., (i) certificate of matriculation/equivalent; (ii) Caste certificate; and (iii) Diploma in public hygiene were produced by the applicant. It had came on record of the IOs that relevant file of the respondents was admitted to be missing and the applicant has alleged fabrication and manipulation in the said file by the respondents’ hospital. From the IO’s report, it is also evident that the applicant was examined before the prosecution evidence was closed. On the date of inquiry, the prosecution witness was not examined rather questions were put to the applicant. The Inquiry Officer has not questioned the applicant on the circumstances appearing against him in the evidence for the purpose of enabling the applicant to explain any circumstances appearing in the evidence against him.
On receipt of the Inquiry Officer’s report along with a show cause notice dated 26.12.2017, the applicant has preferred a detailed representation/objections to the Inquiry Officer’s report dated 10.1.2018 (Annexure A-11) therein he has raised various illegalities in conducting the inquiry like violation of various provisions of Rule 14 of the Rules of 1965 and also violation of law laid down by the Hon’ble Apex Court in LIC vs. Rampal Bishan, reported in 2010 (3) SCALE 121 and Bilaspur Gramin Bank vs. Madanlal Tandon, reported in 2016(8) SCC 461. The applicant has also taken the ground that the inquiry has been conducted in violation of principles of natural justice and provisions of Rules 14(15) and 14(18) of the Rules of 1965. However, the Disciplinary Authority vide order dated 17.1.2018 (Annexure A-3) has inflicted the penalty of dismissal from service upon the applicant. The impugned Disciplinary Authority’s order dated 17.1.2018 (Annexure A-3) clearly indicates that none of the grounds taken by the applicant in his representation dated 10.1.2018 (Annexure A-11) has been considered or dealt with. The applicant being aggrieved by the impugned Disciplinary Authority’s order dated 17.1.2018 has preferred a very detailed statutory appeal dated 19.1.2018 (Annexure A-12 Colly) wherein he has taken various specific grounds like violation of provisions of Rules 14 and 15 of the Rules of 1965, including the ground that as per the provisions of Rule 15 of the Rules of 1965, the Disciplinary Authority is duty bound to pass a speaking order. However, the said statutory appeal has been rejected by the Appellate Authority vide impugned order dated 24.10.2018 (Annexure A-4). Once again it is evident from the impugned order dated 24.10.2018 (Annexure A-4) that none of the grounds taken by the applicant in his statutory appeal has been consider and/or has been dealt with by the Appellate Authority. Provisions of Rules 14(14), 14(15), 14(16), 14(17) and 14(18) of the Rules of 1965 read as under:-
“(14)On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
(15)If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary, in the interests of justice.
NOTE.- New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.
(16)When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(17)The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.
(18)The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.”
The Govt. of India’s Decision No.4, just below Rule 15 of the Rules of 1965, provides that proceedings against an employee under CCS (CCA) Rules, 1965 or any other equivalent rules are quasi judicial in nature and, therefore, orders in such proceedings should have the attributes of a judicial order and it is obligatory to ensure that the orders are reasoned orders. This has further been emphasized under the Government of India’s said Decision that speaking order is essentially legally required to be passed. It is further mandated therein that self contained speaking and reason order should be passed. The Government of India’s Decision No.1 under Rule 27 of the Rules of 1965 provides time limit of disposal of appeal and Government of India’s Decision No.3 mandates self contained speaking and reasoned order to be passed by the Appellate Authority. The Hon’ble Apex Court in the case of Roop Singh Negi (supra) has ruled that a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. Para 23 of Roop Singh Negi’s case (supra) reads as under:-
“23.Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.”
From the charges levelled against the applicant, it is evident that the same are of very serious in nature and the same are grave and of quasi criminal in nature. The Hon’ble Apex Court in Union of India and others vs. Gyan Chand Chatter, reported in (2009) 12 SCC 78, has emphasized that a grave charge of quasi criminal nature was required to be proved beyond any shadow of doubt and to the hilt. Further adherence to the statutory provisions and inquiry to be conducted in fairly and objectively has been emphasized by the Hon’ble Apex in Gyan Chand Chatter (supra). Paras 21, 35 and 36 of the judgment of the Hon’ble Apex Court in Gyan Chand Chatter (supra) read as under:-
“21.Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the concerned employee. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.”
“35.In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjunctures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.
36.In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been agitation by the Railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the Railway Station. The Enquiry Officer has taken into consideration the non- existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eyes of law.”
The Hon’ble Apex Court has held that even in the case of ex parte inquiry, it is incumbent upon the Inquiry Officer to record the statement of witnesses mentioned in the chargesheet. Further oral evidence is required to be examined to prove the document and the inquiry proceedings cannot be conducted in a close mind. In this regard, we may refer and rely upon paras 27 and 28 of the law laid down by the Hon’ble Apex Court in State of U.P. and others vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772.
There cannot be any dispute about the principles of law as argued by the learned counsel for the respondents that ordinarily while exercising the power of judicial review, this Tribunal may not re-appreciate the evidence. However, once it is evident from the impugned report of the IO that the inquiry has been conducted in violation of the provisions of Rule 14 of the Rules of 1965 and the impugned orders of Disciplinary and Appellate Authorities are passed in a mechanical manner without recording any reasons and/or dealing with the grounds taken by the applicant in his representation/appeal, the impugned orders deserve to be interfered with. We may refer to the law laid down by the Hon’ble Apex Court in Union of India v. P. Gunasekaran, reported in AIR 2015 SC 545. The Hon’ble Apex Court in para 13 of this case has ruled that the High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. However, High Court can only see:-
“a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i.the finding of fact is based on no evidence.”
Though the applicant has challenged the order dated 3.10.2017 vide which he has been put under suspension by the respondents under sub-rule(1) of Rule 10 of the Rules of 1965. However, it has not been argued whether the said suspension was reviewed/extended or not thereafter and how the same is bad in law.
In the aforesaid facts and circumstances, we are of the considered view that OA deserves to be partly allowed and the same is accordingly partly allowed with the following orders:-
The impugned inquiry reported dated 22.12.2017 (Annexure A-2), penalty order dated 17.1.2018 (Annexure A-3) passed by the Disciplinary Authority and the Appellate Authority’s order dated 24.10.2018 (Annexure A-4) are set aside;
The respondents are directed to re-instate the applicant forthwith;
The applicant shall be entitled for consequential benefits in accordance with the relevant rules and law on the subject and the respondents shall pass an appropriate speaking order in this regard within four weeks of receipt of a copy of this Order; and
The respondents shall be at liberty to proceed in the matter, if they so decide, however, in accordance with law.
In the facts and circumstances, there shall be no order as to costs.