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Judgment
ORDER
Per:Shri Umesh Gajankush, Member (J)
The present OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
8(a) This Hon’ble Tribunal may graciously be pleased to call for the records and proceedings of the case which led to the issuance of the:
(i)Impugned punishment/penalty order dated 22.09.2022 i.e. Annx.”A1”
(ii)Impugned Chargesheet dated 19.10.2011 i.e Annexure “A2”;
(iii)Inquiry Officer’s Report dated 07.08.2019 i.e. Annexure “A3” and
(iv)Impugned UPSC Report dated 13.06.2022 i.e. Annx.”A4” And after going through its propriety, legality and constitutional validity be pleased to quash and set aside the same and accordingly order and direct the respondents to restore and grant all consequential benefits of promotions to the post of Jt. Commissioner, Addl. Commissioner, Commissioner etc. from the date the applicant’s junior Shri Mahavir Singh Chauhan was promoted to the concerned posts, seniority, proper pay fixation, arrears of pay/salary etc.
(b)This Hon’ble Tribunal may graciously be pleased to hold and declare that the impugned act/orders issued/passed against the applicant was absolutely illegal and wrong and accordingly direct the respondents to treat the applicant as if no departmental inquiry was initiated against him and accordingly, grant all consequential benefits of promotions, pay fixation, arrears of pay, etc.
(c)This Hon’ble Tribunal may graciously be pleased to impose exemplary cost for victimizing and harassing the applicant for about 12 years.
(d)Any other and further order as this Hon’ble Tribunal deems it fit and proper in the nature and circumstances of the case may be passed.
(e)Costs of the Original Application may be provided for.”
Brief facts of the case, as stated by the applicant, are that on 10.12.2002, the applicant came to be promoted on the post of Assistant Commissioner, Group “A” post. In the year 2003-2005, during the said period, the applicant was working in Patna Commissionerate and in 2006, he came to be transferred to Pune Commissionerate. At the relevant time, the Patna Commissionerate used to conduct an examination called the Custom House Agents (CHA) Examination and this examination was conducted primarily to allow Agents to function in the said Commissionerate. This very examination came to be discontinued in the year 2005-2006 itself as the same was conducted without any authority or law or direction from the Board.
The said examination was conducted on 29.09.2005 and the entire case and subject matter of the present OA pertain to the said examination. It is stated that the entire “onus” and “overall supervision” of the said examination vested with the then Joint Commissioner of Customs, Shri V.C. Gupta. The then Joint Commissioner, who was overall incharge of the said examination, directed the AC(Tech)(Applicant) to be the supervisor of the said examination. The work of supervisor was primarily to see that the examination was conducted in a systematic manner and finally the papers are sealed properly and sent to the DGCEI (Director General of Inspection Customs and Central Excise)at Delhi. All steps for conducting of the said examination were put up to the said Joint Commissioner and as per his directions and approval, all steps were taken for conducting of the said examination. The said Joint Commissioner specifically appointed Mr. M.K. Demta (Administrative officer) as ‘Invigilator’ to be in the examination hall and he was responsible for all duties in the said examination hall. There were only 8 candidates, who were to appear in the said written test and it is clear that for 8 candidates, one Invigilator was more than enough. The applicant was basically involved in assisting the Joint Commissioner, who was the overall supervisory authority in conducting of the said examination. At no point of time, the applicant was directed or ordered to perform the duty of an Invigilator and the applicant apart from the supervisory duty was also carrying out his regular duty of being Assistant Commissioner (Tech) which involve the duties of adjudication, audit, review and also technical issues with regard to the rules and law framed by the respondent Board.
On the date of examination i.e. 29.09.2005, none of the candidates or any other authority raised any objection or had any other issue with regard to conducting of the said examination including any incident of copying or malpractice etc. No untoward incident was reported or complained about by any person or candidate. The applicant had no role and was not to act like an Invigilator once an officer was specifically deputed for the said purpose. It is submitted that the superior authorities never charted out the actual duties of a supervisor and as per the understanding of the applicant, he supervised and carried out his duties with regard to the said examination with utmost sincerity and honesty that too after due approval of each and every step from the Joint Commissioner. However, shockingly, the respondents issued impugned charge-sheet dated 19.10.2011 (Annexure A-2) levelling the following charge:
“That Shri Syed Shabber Ahmed (S.S. Ahmed), then Assistant Commissioner, Customs (Preventive), Hqrs., Patna (now Deputy Commissioner, Central Excise, Thane-II) failed to maintain devotion to duty and acted in a manner which is unbecoming of a Government servant in as much as while holding a supervisory post during the relevant period, he failed to take all possible steps to prevent mass copying at CHA Examination held on 29.09.2005 at Patna and failed to ensure devotion to duty of the Government Servants under his control and authority. Thereby, he contravened the provisions of Rule 3(1)(ii), 3(1)(iii) and 3(2)(i) of Central Civil Services (Conduct) Rules 1964 and rendered himself liable for action under Rule 14 of the Central Civil Servies (CCA) Rules, 1965.”
The said charge-sheet was challenged by the applicant by filing Original Application No.162/2012 on the ground of delay and malice in law which was dismissed by this Tribunal vide order dated 28.04.2015. The aforesaid order was further challenged before the Hon’ble High Court of Judicature at Bombay by filing Writ Petition No.286/2016 in which on 29.06.2016 (Annexure A-10), the Hon’ble Bombay High Court was pleased to pass an interim order “In the meantime, the Respondents shall not proceed with the enquiry.” The aforesaid Writ Petition was finally decided by the Hon’ble Bombay High Court vide its order dated 21.03.2018. The Hon’ble Bombay High Court did not find any ground to interfere with the impugned judgment and order made by the Central Administrative Tribunal. However, the interim relief granted earlier was extended for a period of four weeks from the date of the order.
It is submitted that in the meanwhile, the Inquiry Officer has conducted departmental enquiry ex-parte and copy of Inquiry report dated 26.02.2016 was supplied to the applicant on 01.05.2018 (Annexure A-17). Thereafter, the applicant has submitted representation dated 16.05.2018 (Annexure A-19) in respect of Inquiry report raising various grounds. Thereafter, vide communication dated 17.01.2019 (Annexure A-21), Deputy Secretary to the Government of India issued letter to Inquiry Officer pointing out various deficiencies in the disciplinary proceedings/Inquiry report dated 26.02.2016 and directed the Inquiry Officer to cure the deficiencies and conclude the enquiry on priority basis latest by 28.02.2019. Thereafter, representation dated 20.02.2019 (Annexure A-23) was submitted by the applicant in pursuance of preliminary enquiry fixed on 22.02.2019 by the Inquiry Officer. In the said letter, he has specifically stated that the applicant proposed to attend the enquiry under protest. Further, by representation dated 23.04.2019 (Annexure A-24) to the Disciplinary Authority, the applicant has prayed for inspection of original of RUDs. In pursuance of which communication dated 23.05.2019 was sent by the Presenting officer to the Director General of Vigilance, Customs & Central Excise, New Delhi with a request to locate the original documents and supply the same to the Presenting officer expeditiously so that the enquiry could be proceeded and finalized within the given date.
It is submitted that as per the Central Board of Indirect Taxes and Customs, Circular dated 24.02.2011, xerox copies in departmental enquiry under CCS(CCA) Rules, 1965 are not permissible. It is submitted by the applicant that even after 17.01.2019 when the enquiry was conducted, at no point of time, the applicant was permitted to inspect the originals in respect of Relied Upon Documents (RUDs). Further, the plea of bias against the Inquiry Officer was also not considered by the Disciplinary Authority and without considering the objection raised during the course of the enquiry at various stages, the Inquiry Officer has submitted Inquiry report dated 07.08.2019 which was supplied to the applicant on 18.02.2020 against which representation dated 11.03.2020 (Annexure A-33) was submitted. In representation also, it is contended that Inquiry report suffers from bias, conduct of enquiry by the Inquiry Officer is in violation of the order of the Hon’ble High Court and enquiry was conducted in violation of the statutory rules and principles of natural justice. Detailed representation was submitted by the applicant with a prayer to reject the Inquiry report.
Further, UPSC advice dated 13.06.2022 was supplied to the applicant against which representation dated 06.07.2022 (Annexure A-34) was submitted raising various grounds in respect of enquiry conducted against the applicant contrary to principles of natural justice, statutory rules with prayer for rejecting the Inquiry report and the advice of UPSC.
It is further submitted that impugned punishment order is violative of Rule 11, Rules 14 and 15(4) and (5) of the CCS Rules, 1965. Therefore, on the basis of facts and grounds mentioned in the OA, the applicant has prayed for reliefs mentioned in paragraph 8 of the OA.
After notice, the official respondents have filed their reply and contested the OA stating that the applicant, Deputy Commissioner, the then AC, Customs (Preventive), Patna was the supervisor and Shri M.K. Demta, then Administrative Officer was the invigilator for the CHA Examination held on 29.09.2005 at Customs Hq., Patna. On the basis of a complaint dated 14.03.2006, investigation was carried out by DGOV (NZU) and it emerged that the subject examination was conducted in a grossly irregular way. These officers were directly responsible for the conduct of the examination in a proper and fair manner. However, they failed to perform their assigned duties which resulted in mass copying by the candidates. The chits on which the answers were written were alleged to have been supplied by Shri Aftab Alam, Superintendent and Shri Hari Shankar Narayan Rai, Superintendent. CVC vide their OM No.011/CEX/025/142273 dated 01.09.2011 advised for initiation of major penalty proceedings against S/Shri S.S. Ahmed, AC, M.K. Demta, AO, Aftab Alam, Superintendent and Hari Shankar Narayan Rai, Superintendent.
It has been submitted that vide Charge Memorandum No.41/2011 dated 19.10.2011 departmental proceedings for major penalty were instituted against the applicant under Rule 14 of CCS (CCA) Rules, 1965. On denial of the charges by the applicant vide letter dated 20.12.2011, a regular enquiry was held. Vide Order dated 14.12.2012, Shri T.K. Samant, Additional Commissioner was appointed as the Inquiring Authority, however, due to typographical mistake the name of Shri Shankar Lal Meena, Commissioner was typed/written in the said Order dated 14.12.2012 instead of Shri T.K. Samant. Additional Commissioner, the same was rectified by way of issuance of corrigendum dated 04.09.2013. Due to health issues (i.e. suffering from Cancer) of the IA, the Inquiry Officer in the instant case was changed due to administrative reasons and Shri Parag Borkar, Additional Commissioner was appointed as Inquiring Authority in the matter vide Order dated 12.02.2014. Due to Election duty (i.e. Expenditure Observer) of the IA, the Inquiry Officer in the instant case was changed due to administrative reasons and Shri Shiv Kumar Sharma, Additional Commissioner was appointed as Inquiring Authority in the matter vide Order dated 02.04.2014. Shri Shiv Kumar Sharma, Inquiry Authority (IA) submitted his report dated 26.02.2016 and on tentative approval of the Disciplinary Authority, the same was sent to the field formation for forwarding the Inquiry report dated 26.02.2016 to the applicant for submitting his representation on the same. However, in light of the Hon'ble Bombay High Court order dated 29.06.2016 in WP No.286 of 2016, it was decided by the Competent Authority not to serve the IO Report to the Applicant.
It has been further submitted that only after the final judgment dated 21.03.2018 of Hon'ble Bombay High Court vide which the WP filed by the applicant was dismissed, the Inquiry report dated 26.02.2016 was served to the Applicant on 01.05.2018 for submitting his representation on the same. Vide letter dated 16.05.2018, the Applicant submitted his representation on the Inquiry report dated 26.02.2016. Though, the Inquiry report dated 26.02.2016 was accepted at first but later it was found to be deficient on certain procedural aspects and was remitted to IA on 18.01.2019 to give due opportunity of hearing to the petitioner in compliance with the Order dated 21.03.2018 of Hon'ble High Court. Inquiring Authority submitted its Inquiry report dated 07.08.2019 holding the lone Article of Charge as "Proved". The Disciplinary Authority duly considered the Inquiry report and tentatively agreed with the findings of the Inquiry Officer. Accordingly, Inquiry report was forwarded to the applicant for making his representation. The applicant submitted his representation vide letter dated 11.03.2020, which was duly considered and rejected by the Disciplinary Authority. The Disciplinary Authority decided to refer the case of the applicant to UPSC for seeking their statutory advice in the matter.
It has been averred that the case records were submitted to UPSC under single window system on 15.07.2021. The Commission examined the case records and tendered their advice vide No.3/131/2021-S.I dated 13.06.2022. The requirement of submission of case record to UPSC for its advice and seeking CO's representation on same is Constitutional requirement under Article 320(3)(c) as well as statutory requirement as per Rule 15(3) of CCS (CCA) Rules, 1965. As per Rule 15(3)(b) of the CCS (CCA) Rules, 1965, a copy of UPSC advice dated 13.06.2022 was forwarded to the applicant for making his representation, vide OM dated 15.06.2022. The applicant vide his representation dated 06.07.2022 denied the charges once again. The representation of the applicant was examined. As no new facts emerged and the submission of Applicant was found devoid of merit, the same rejected by the Disciplinary Authority.
It has been submitted that accordingly, the President, after considering all facts and circumstances of the case, evidences available on record and in acceptance of advice of UPSC dated 13.06.2022, decided to impose the penalty of "reduction to lower stage in the time scale of pay by three stages till his retirement (DoR 31.05.2026) with further directions that he will not earn increments of pay during the period of such reduction and on expiry of such period, the reduction will have the effect of postponing the future increments of his pay" on the applicant, vide Order No. 50/2022 dated 22.09.2022 issued from F.No. C-14011/48/2011-Ad.V. Earlier the applicant had filed OA No.162/2012 before the CAT, Mumbai Bench to quash and set aside Charge Memorandum No.41/2011 dated 19.10.2011. The Central Administrative Tribunal, Mumbai Bench, after pursuing the disciplinary proceedings case records passed a detailed Order dated 28.04.2015 (Annexure A-8) and dismissed the OA filed by the applicant as devoid of merits. The applicant challenged order dated 28.04.2015 of the CAT, Mumbai Bench by way of filing Writ Petition No.286 of 2016 before the Hon'ble Bombay High Court. The Writ Petition filed by the applicant was dismissed by the Hon’ble High Court vide its order dated 21.03.2018 (Annexure A-9)
It is submitted that the notes of evidence led during the departmental proceedings i.e Written Brief of Presenting Officer, Exhibits produced by the Presenting Officer and Deposition of Witnesses clearly show that the charge against the applicant has been proved on the touchstone of preponderance of probability and, therefore, the OA is liable to be dismissed.
The respondent No.2 i.e. UPSC has also filed reply.
Rejoinder has been filed by the applicant placing on record copy of the investigation report dated 20.10.2011 on the subject of ‘1st stage advice in r/o Shri H.S.N. Rai, Superintendent – Regarding’.
The official respondents have also filed sur-rejoinder placing letter dated 17.01.2019 remitting the Inquiry report to the Inquiry Officer and order dated 14.12.2012 appointing the Presenting Officer which was endorsed to Shri T.K. Samant, Additional Commissioner and Inquiry Officer.
We have heard learned counsel for the parties and perused the pleadings and documents annexed to the OA.
Shri R.G. Walia, learned counsel for the applicant vehemently argued that looking to the article of charge memorandum dated 19.10.2011, it is apparent that the same is vague, imaginary and uncertain and, therefore, impugned charge-sheet itself is unsustainable in the eye of law.
It is submitted that during the course of enquiry, the inspection of relied upon documents were not provided to the applicant which is violative of principles of natural justice and statutory rules. It is submitted that list of documents of charge-sheet mentioned about letter dated 04.12.2006 of Shri Rajendra Singh, however, a copy of said original letter was never produced during the course of enquiry. It is further submitted that earlier the charge-sheet was challenged before this Tribunal in OA No.162/2012 unsuccessfully, however, when the aforesaid order was challenged before the Hon’ble Bombay High Court, the Hon’ble High Court while upholding the order of Tribunal was pleased to observe that the Central Administrative Tribunal, has in fact, reserved the liberty to the petitioner to raise the issue of the delay and explain the prejudice, if any, before the Inquiry Officer. It is submitted that during the pendency of the Writ Petition, the Hon’ble High Court vide its order dated 29.06.2016 was pleased to stay the departmental proceedings. Even thereafter, the Inquiry Officer proceeded in the enquiry and prepared the Inquiry report dated 26.02.2016 which was made available to the applicant on 01.05.2018. The enquiry proceedings conducted against the applicant in ex-parte manner in violation of the principle of natural justice, without considering the ground of bias and non-production of the original documents for inspection of the RUDs. Therefore, representation dated 16.05.2018 was submitted. It is vehemently argued that in fact communication dated 17.01.2019 (Annexure A-21) clearly shows that there were serious lapses/deficiencies in the Inquiry report dated 26.02.2016 and, therefore, the Inquiry Officer was directed to cure the deficiencies and submit the Inquiry report. Thereafter also the applicant has submitted representations dated 20.02.2019, 23.04.2019 and 25.05.2019 raising various objections in the departmental enquiry.
During the course of the arguments, learned counsel vehemently argued that Circular dated 24.02.2011 issued by Central Board of Indirect Taxes and Customs clearly provides that in the departmental enquiry, the documents should be either original documents or an authenticated copy thereof and not xerox copies. It is submitted that the inspection of original of RUDs was never provided to the applicant. It is submitted that in fact the report on which the prosecution has heavily relied was prepared on the basis of photocopies and not on the basis of originals which is clear from the statement of Dr. S. Ahmed recorded on 11.07.2019 in which Chief-In-Examination the said witness has confirmed the opinion dated 30.04.2009. However, in Cross Examination in answer to question No.1, he has stated that ‘We have given our opinion on the presumption that the documents sent to us were the photocopies of the originals’. It is submitted that this answer clearly shows that the opinion is based upon the photocopies and not on originals and, therefore, in fact, it is a case of no evidence and under these circumstances, the Inquiry report and all consequential actions including punishment order are liable to be set aside. It is submitted that in letter dated 17.01.2019 (Annexure A-21)in fact the authority on the basis of preposition of law laid down by the Hon’ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank, (2009) 2 SCC 570 observed that merely producing documents did not prove the contents thereof. However, inspite of the communication dated 17.01.2019, the Disciplinary Authority/Inquiry Officer failed to cure the deficiencies pointed out vide communication dated 17.01.2019, therefore, the impugned order is liable to be set aside.
During the course of the arguments, learned counsel for the applicant has relied upon the judgment of Hon’ble Supreme Court in the case of Kerala Agricultural University and Another Vs. T.P. Murali @Murali Thavara Panen and Another, 2024 SCC Online SC 2362 to contend that before holding a regular disciplinary proceedings, the authority must record its satisfaction that there is a prima facie case for taking action against the delinquent employee so as to hold a formal enquiry against him.
On the other hand, learned counsel for the official respondents, Shri Sachin Patil, vehemently supported the impugned orders. It is submitted that after issuance of charge-sheet, the charge-sheet was challenged before the CAT by filing OA No.162/2012 which was dismissed by this Tribunal and the aforesaid order was affirmed by the Hon’ble Bombay High Court in its order dated 21.03.2018. It is submitted that prior to Inquiry report dated 26.02.2016, the applicant has given various opportunities to participate in the departmental enquiry. However, he has failed to participate in the enquiry, therefore, the Inquiry Officer has left no option but to proceed in the enquiry ex-parte. It is further submitted that the Inquiry report was finalized by the Inquiry Officer on 26.02.2016 prior to interim order passed by the Hon’ble High Court on 29.06.2016 (Annexure A-10). However, since the interim order was passed on 29.06.2016 and, therefore, after the final order in Writ Petition, a copy of Inquiry report was forwarded to the applicant on 01.05.2018 against which representation was submitted by the applicant. It is further contended that thereafter in terms of letter dated 17.01.2019 (Annexure A-21), further preliminary enquiry was conducted in which the applicant participated and thereafter, the Inquiry report was submitted on 07.08.2019 against which the representation dated 11.03.2020 was submitted. Further, the advice of UPSC was sought and after receipt of the advice, the same was made available to the applicant for submitting representation which was submitted on 06.07.2022. After considering the representation, the impugned punishment order dated 22.09.2022 (Annexure A-1) was issued. It is submitted that there is no procedural error in the departmental enquiry which needs no interference by this Tribunal.
Learned counsel for the official respondents has placed reliance on the judgement of Hon’ble Supreme Court in the case of Manak Lal Vs. Dr. Prem Chand Singhvi and Others, (1957) 1 SCC 260.
Dr. V.B. Joshi, learned counsel for UPSC vehemently argued that UPSC’s report cannot be challenged by the applicant because it is a mere advise and, therefore, relief claimed in this regard by the applicant is liable to be rejected.
Learned counsel Shri Joshi has relied upon the following judgements:
State of Uttar Pradesh Vs. Manbodhan Lal Srivastava, (1957) 2 SCC 759.
A.M. Bhardwaj, las Vs. Union of India and Ors decided on 19.07.2002, 2003(3) SLJ 389 (CAT).
After hearing learned counsel for the parties and after perusal of the record, it is not in dispute that this is a second round of litigation at the instance of the applicant. Earlier OA No.162/2012 was filed by the applicant challenging the charge-sheet dated 19.10.2011 on the ground of delay and malice in law. The said OA was dismissed on 28.04.2015. Meaning thereby, there was no interference made by this Tribunal on the ground of delay and malice in law and the said order was affirmed by the Hon’ble Bombay High Court in its order dated 21.03.2018.
From the record, it is apparent that first Inquiry report was of dated 26.02.2016 which was supplied to the applicant on 01.05.2018 after final judgment and order dated 21.03.2018 as vide order dated 29.06.2016, the Hon’ble Bombay High Court was pleased to direct the respondents not to proceed with the enquiry. The applicant has submitted representation against Inquiry report dated 26.02.2016 on 16.05.2018. Thereafter, communication dated 17.01.2019 was issued by the Deputy Secretary to the Government of India to the Inquiry Officer pointing out various lapses in the Inquiry report dated 26.02.2016 and directed the Inquiry Officer to cure the deficiencies pointed out in the Inquiry report. Thereafter, preliminary enquiry/enquiry was conducted and the Inquiry report dated 07.08.2019 was submitted by the Inquiry Officer.
From the aforesaid chronology of facts, since in respect of Inquiry report dated 26.02.2016, the department has itself realized that there were deficiencies in the Inquiry report and directed the Inquiry Officer to cure the deficiencies, under these circumstances, this Tribunal is now required to consider whether after the communication dated 17.01.2019, the enquiry is vitiated under the law and the impugned order dated 22.09.2022 is unsustainable in the eye of law?
Prior to answering the aforesaid point, it would be appropriate to take into consideration the point raised by the UPSC that the UPSC’s advice is mere advice and not an order much less any adverse order and, therefore, the same cannot be challenged in the OA.
To the aforesaid contention, Shri Walia, learned counsel for the applicant submits that since the impugned punishment order is wholly based upon the advice of the UPSC and, therefore, the contention of the UPSC is not tenable. In this regard, suffice it to say that the findings of the Inquiry Officer i.e Inquiry report and the UPSC advice ultimately culminated into the punishment order dated 22.09.2022 and validity of the said order is under challenge in this OA. Further, based upon arguments of the parties, this Tribunal is also examining the decision making process of the Disciplinary/Inquiry Authority in furtherance of communication dated 17.09.2019 which includes Inquiry report dated 07.08.2019 and UPSC advice and, therefore, independent challenge to Inquiry report and UPSC advice is not tenable.
So far as enquiry after communication dated 17.01.2019 (Annexure A-21) is concerned, the applicant through his representation dated 23.04.2019 (Annexure A-24) prayed for production of original RUDs and in response to which communication dated 23.05.2019 (Annexure A-25) was issued by the Presenting Officer to the Director General of Vigilance Customs and Central Excise and the Presenting Officer requested the said authority to supply the original documents. However, from the record, it is not pointed out by the respondents that at any stage of enquiry, the original documents were made available to the applicant for inspection.
It is true that in terms of Circular dated 24.02.2011 of Central Board of Indirect Taxes and Custom, in the enquiry, document should be either original or an authenticated copy. Meaning thereby, authenticated copy is also permissible and not xerox copies. But the fact remains that when the applicant is seeking for inspection of original documents and to some extent, the said prayer was allowed which can be gathered from communication dated 23.05.2019(Annexure A-25), then non grant of inspection caused prejudice to the applicant that too when the departmental witness Dr. S. Ahmed in his statement categorically answered that the opinion/report dated 30.04.2009 was given under the presumption that documents sent to them were photocopies of the original. Meaning thereby, it is not clear as to whether while giving the opinion dated 30.04.2009 also, the said authorities were made available the original of the documents. Further, the authority of respondents themselves has realized the deficiencies in communication dated 17.01.2019 (Annexure A-21) observing that in view of the proposition of law laid down by the Hon’ble Supreme Court in the case of Roop Singh Negi (supra), mere tendering of documents did not prove the content thereof.
In view of the aforesaid discussion, it is clear that even after communication dated 17.01.2019, the deficiencies pointed out by the authority could not be cured in the enquiry proceedings.
Ordinarily, when the enquiry proceedings are held to be vitiated under the law then the matter is required to be remitted back to the Disciplinary Authority for enquiry from the stage it was vitiated. However, in the present case, earlier Inquiry report dated 26.2.2016 was already found deficient by the department itself which is clear from letter dated 17.01.2019. Even after the aforesaid communication, the enquiry was conducted and Inquiry report dated 07.08.2019 was submitted to the Disciplinary Authority without taking into consideration that originals of Relied Upon Document (RUD) were never produced for inspection inspite of letter dated 23.05.2019 (Annexure A-25). More specifically letter dated 04.12.2006 (of Rajendra Singh - complainant) was never provided to the applicant. Further, said Rajendra Singh was neither made listed witness nor examined during course of enquiry. Therefore, even if matter is remitted back to Disciplinary Authority/Inquiry Officer, then for want of originals, the same position will be there even after remand as these non-curable defects have come on record. Under peculiar facts and circumstances of the case coupled with the fact that the applicant stood retired on 31.05.2026 on attaining the age of superannuation and from 2011 till retirement, his right of consideration of further promotions was prejudiced by the pendency of the enquiry.
Thus, in view of the totality of the facts and circumstances of the case, impugned order dated 22.09.2022 is set aside. The respondents are directed to restore the benefits flowing from quashment of the impugned order. The respondents are further directed to consider the case of the applicant for promotion (notionally)from the date his junior was promoted to the further post in accordance with law and if found fit, extend the benefits as per rules. This exercise shall be carried out within a period of 90 days from the date of receipt of a certified copy of this order.
The Original Application is, accordingly, allowed in terms of above order and directions. Pending MAs, if any, stand closed. No costs.