The Additional Central Provident Fund Commissioner and Another vs A. Narayan

V. Gopala Gowda, J.—The Petitioners have questioned the correctness of the order dated 13.3.2002 passed by the Central Administrative Tribunal (in short ''the CAT'') in Original Application No. 337 of 2001 wherein the CAT has allowed the original application by quashing the orders passed by the Disciplinary Authority dated 10.3.1999 and the Appellate Authority dated 18.8.2000 and remitted back the matter to the Disciplinary Authority to hold a fresh inquiry in accordance with law and Discipline and Appeal Rules, urging various legal contentions.

The brief facts are stated for the purpose of appreciating the rival legal contentions urged on behalf of the parties in this petition.

The Respondent was working as Lower Division Clerk in the Cash Section of the Provident Fund Department. On 3.5.1993, one Sri Duggappa Maistry an employee of M/s. Canara Steel Limited approached the Respondent to enquire about his loan application. It is alleged that the Respondent has demanded illegal gratification of Rs. 100/- from him for handing over the cheque personally to him. The cheque dated 26.4.1993 for Rs. 14,400/- was handed over by the Respondent to Sri Duggappa Maistry personally by going to his house. On the basis of the material collected, a show-cause notice was issued by the Disciplinary Authority on 18.8.1993 (Annexure-A1) to the Respondent in pursuant to which, he submitted a reply on 13.9.1993 and thereafter a Memorandum was issued on 18.10.1993 along with statement of Articles of Charge and Statement of Imputation (Annexure-A3) wherein, the charges 1 and 2 relate to demanding of illegal gratification from Duggappa Maistry and Sri Ayya Durai of Canara Steels, Charge No. 3 pertains to Respondent''s absence for duty without permission on many occasions. On the basis of these charges, the Disciplinary Authority has held an enquiry by appointing an enquiry officer after conducting an enquiry an enquiry report was submitted by him on 24/20.4.1998 (Annexure-A4) wherein the Enquiry Officer has held that all the charges are proved against the Respondent. The Disciplinary Authority, by order dated 10.3.1999 (Annexure-A6) imposed a penalty of reversion to the post of Daftari after accepting the findings of the enquiry report in exercise of his disciplinary power. On an appeal by the Respondent against that order, the appellate authority by an order dated 18.8.2000 has confirmed the order of the disciplinary authority, against which revision petition was filed, the revisional authority has affirmed the order of penalty imposed by the disciplinary authority vide order at Annexure-A8. Aggrieved by the same, the Respondent had filed the original application before the CAT questioning the correctness of the above said orders by urging various legal grounds. The CAT after considering the rival legal contentions urged on behalf of the parties and on perusal of the enquiry record passed the impugned order by quashing all the orders which were challenged by the Respondent in his original application. Aggrieved of the said order, the Petitioners are before this Court by filing this petition, questioning the legality of the order of CAT.

The grievance of the Petitioners is that, the CAT has allowed the original application filed by the Respondent only on the ground that the Inquiry Officer has played the role of an Investigator, Prosecutor and a Judge by collecting information from the Bank behind his back and as such the entire proceedings are vitiated and it is stated that the enquiry officer has talked telephonically to the Bank Officers to collect material against the Respondent with regard to the charges made against him and since the Inquiry Officer has played the role of a Prosecutor hence, it has held that the entire proceedings, are vitiated. Therefore, the learned Counsel for the Petitioners Mr. Subramanyam has contended that the order passed by the CAT is erroneous in law and therefore the same is liable to be quashed.

The grounds of attack of the order passed by the CAT urged in this petition are, the CAT has committed an error in observing that the entire disciplinary proceedings are vitiated due to the reason that the inquiry officer has played the role of investigating officer in collecting some material evidence from the Bank against the Respondent. On the other hand, the Respondent does not contend that the information received by the inquiiry officer from the bank is incorrect. It is urged that, the CAT should have noticed that there are three charges made against the Respondent which have been held to be proved by the Inquiry Officer and the findings recorded by the enquiry officer in his report are accepted by the disciplinary authority by applying his mind. The allegation that the inquiry officer has acted as an investigating officer in collecting certain materials from the bank pertains only with regard to first charge of alleged demand of illegal gratification from Duggappa Maistry. There is no allegation in so far as 2nd and 3rd charges are concerned. When this being the fact, there is no justification for the CAT to set aside the findings recorded in the enquiry report by the enquiry officer on charges 2 and 3 and once those charges are proved against Respondent, the imposition of penalty upon him by the Disciplinary Authority is fully justified. Further, it is urged that, the CAT has committed an error in holding that there are no disclosures of material to the Respondent, which are the basis for recording the findings in the report of enquiry by the Enquiry Officer against the Respondent on the charges.

In support of said legal contentions, the learned Counsel for the Petitioners Sri Subramanyam has placed reliance upon the decisions of the Apex Court reported in Government of Tamil Nadu and another Vs. A. Rajapandian, and contended that, the CAT having quashed the impugned orders placing reliance upon the report of the enquiry officer, should not have quashed the entire proceedings at best, it could have directed the disciplinary authority to proceed further from the stage, where it was vitiated in respect of the charges 2 and 3, as there is no collection of evidence by the enquiry officer in respect of the same. This contention cannot be accepted by this Court for the reason that, the object and intentment of enacting the Administrative Tribunals Act, 1985 Act would defeat, the law laid down by the Constitution Bench of Supreme Court in the case of L. Chandra Kumar Vs. Union of India and others, where in the Apex Court at Paragraph-99 with regard to constitution of Tribunals, clauses of Articles 323A and 323B excluding the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 are held to be valid and constitutional. The relevant portion is extracted hereunder:

...The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislation (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal, Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.

Having regard to the law laid down in the above said case, law is very clear that the case arising out of service in a State is required to be effectively adjudicated by the Tribunal in exercise of its power u/s 19 read with 22 of the Administrative Tribunals Act of 1985. Further, the provisions of the Act makes it very clear that jurisdiction of the Tribunal is original jurisdiction and they have got authority and power to examine the relevant records, apply its mind with reference to the rival legal contentions that would be urged on behalf of the parties and on perusal of the record and re-appreciate the facts and record to find out whether the findings and reasons recorded by the Enquiry Officer in case of disciplinary enquiry matters and records its findings as to whether the findings of the enquiry officer and disciplinary authority are erroneous or suffer from error in law. Therefore, the reliance placed upon the judgments of the Supreme Court referred to supra by the Petitioner''s Counsel is misplaced, hence the same do not render any assistance to the case of the Petitioners. Therefore, the reliance placed by the Petitioner''s Counsel cannot be applied to the fact situation in view of subsequent development of law laid down by the Constitutional Bench of the Apex Court in the above referred case.

Sri Aswathanarayana Reddy, learned Counsel appearing for Respondent sought to justify the order passed by the CAT by placing strong reliance upon the decision of the Supreme Court reported in Union of India (UOI) Vs. T.R. Varma, at page 41.

Further the CAT, after referring to the facts and rival contentions on the basis of case law cited by both the respective learned Counsel for the parties, has examined the legal contentions urged at paragraph-10 of its order. It has extracted the relevant portion of the inquiry report in the impugned order to find out as to whether the allegation of bias against the inquiry officer is proved or not by the Respondent. Thereafter, it has applied the ratio laid down by this Court in the case of Irappa Vs. Management of M/s Karnataka State Construction Corporation Ltd., , wherein this Court after considering the similar contention urged in that case has held that one of the requirements of a fair and proper inquiry is that the person against whom the same is being conducted must be informed of the material that is sought to be used against him in the Court of the inquiry. Disclosure of material is important because unless the same is done, he will have no opportunity to meet the same which would be in violation of the principles of natural justice. There is no gain saying that any inquiry which denies to the delinquent employee such an opportunity would fall short of the legal requirement of Audi-alteram Partem. Reliance is also placed by the CAT on the report of the inquiry officer and it has extracted the relevant portion in its order at Para-7 which states thus ;

I have also telephonically ascertained from Syndicate Bank, Kulai Branch that they never worked on Sunday. Further, in another place, it is stated ''I have telephonically ascertained from the Branches of Syndicate Bank at Kulai, Kulshekar and Penabur to ascertain whether there is any notice of recording the postal registration number of envelopes containing cheques, drafts etc., received by them. They have informed that they only record the distinctive Sl. No. of the draft, cheque, etc., the amount of cheques draft etc., and the date of the instrument. Some of them would also record the reference number of the letter by which these instruments are sent to them. It is thus, clear that the inquiry officer in his report has relied on information which was obtained behind the back of the Applicant and without giving applicant an opportunity to contest the same.

Having regard to the decision relied upon by the Respondent''s Counsel and applying the legal principle to the case on hand by CAT and accepting the case pleaded by the Respondent in justification of the legal ground urged in this case, we do not find any ground to interfere with the findings recorded by the CAT in its order on the contentious point as it has to conduct an enquiry to adjudicate the rights of the parties which is one of the procedure required to be followed by the CAT in exercise of its original jurisdiction u/s 19(3) and (4) read with Section 22 of the Administrative Tribunals Act, 1995 (sic 1985) and Rules framed thereunder.

From the said undisputed statement of fact recorded in the inquiry proceedings by the enquiry officer, which portion is extracted above, the CAT has considered the same and categorically recorded the finding of fact stating that the inquiry officer in his report has relied upon the opinion which was obtained by him from the Bank behind the back of the Respondent and recorded the finding on the charge against him holding the same is proved without giving opportunity to the applicant to contest the same, which is held to be not only violation of principles of natural justice and therefore the enquiry is vitiated as the Enquiry Officer was legally biased. Therefore, the said finding is found fault with by the CAT after referring to the judgment in Radhakrishna Setty v. DGM Indian Overseas Bank reported in FLR 1998 (79) Page 39, which is extracted in the order and held that, though strict rules of Evidence Act would not apply to the proceedings of enquiry but certainly the substantive Rules of evidence, which are based on rules of natural justice would definitely apply to the enquiry proceedings. The said findings of the CAT in answer to the contentious point are based on the decision rendered by the Supreme Court in the case of Central Bank of India v. P.C. Jain reported in AIR 1969 SC 969 (sic 983). Further, the collection of evidence by the inquiry officer against the Respondent to prove the charges is rightly found fault with by the CAT by placing reliance upon Irappa''s case referred to supra.

In our considered view, the CAT has rightly recorded the findings placing reliance upon the various decisions relied by the learned Counsel on behalf of Respondent and correctly applied the ratio laid down in those cases, to the fact situation of the present case. The exercise of power by the CAT in passing the impugned order is perfectly in conformity with Chandrakumar''s case referred to supra and the case of Central Bank of India Ltd. Vs. Prakash Chand Jain, wherein the Apex Court while dealing with Industrial Disputes Act, 1947 has held that when an Industrial Tribunal is asked to give its approval to an order of dismissal u/s 33(2)(b) of the Act, it can disregard the findings given by the Enquiry Officer only, if, the findings are perverse. The test of perversity is that the findings may not be supported by any legal evidence at all. Hence, the CAT has rightly found fault with the Enquiry Officer''s findings, as he has played the role of an Investigating Officer, Prosecutor and a Judge in conducting the enquiry proceedings against the Respondent. Therefore, the CAT has correctly passed the order after due consideration of the rival legal contentions urged on behalf of the parties with reference to the enquiry record and it has rightly quashed the enquiry proceedings and consequently the impugned orders challenged in the original application by allowing the same and remitted back the matter for holding fresh enquiry by the disciplinary Authority.

For the reasons stated supra, we do not find any reason whatsoever to interfere with the findings recorded by the CAT in the impugned order. Hence, the Petitioners must fail.

Accordingly, the Writ Petition is dismissed.