Union of India and others vs Ajit Kumar Misra

Pradeep Kant and Ran Vijai Singh, JJ.—Heard the learned Counsel for the petitioner Sri Sharad Kumar Srivastava and Sri Ajit Kumar Misra, the respondent, who appears in person.

The respondent who was working as a clerk in the Military Farm Services at Lucknow was subjected to disciplinary proceedings in respect of certain charges, wherein he was awarded the punishment of compulsory retirement vide order dated 30.12.2002. Feeling aggrieved, he preferred an original application before the Central Administrative Tribunal. Affidavits were exchanged between the parties and thereafter the Tribunal has allowed the original application after holding that the complete enquiry report was not forwarded to the respondent and, therefore, the enquiry report by furnished to the respondent and the enquiry be completed accordingly.

The Tribunal did not enter upon the merits of the order of compulsory retirement and only on the ground that complete enquiry report since was not furnished to the respondent has set aside the order, with liberty to supply the enquiry report and proceed thereafter. The other point which weighed with the Tribunal was that the order of punishment is not a speaking order.

Tribunal''s finding is that the complete enquiry report of the enquiry dated 18.11.1996 was not furnished to the respondent. The Tribunal assumed that since vide letter dated 23.2.1998, the petitioner responded to the letter of the respondent dated 19.11.1997, wherein it was admitted that the copy of the enquiry proceedings conducted by the Major M. S. Prakash were inadvertently not forwarded to the respondent earlier, means that the enquiry continued even after 18.11.1996, i.e., the date of enquiry report, supplied by the respondent.

Sri S. K. Srivastava on the basis of the record and also on the basis of the averments made in the Original Application and written statement filed therein and also in the present petition including counter affidavit, has submitted that in fact there is no dispute that there is only one enquiry report dated 18.11.1996 and no second enquiry report was issued nor was prepared. He submitted that while forwarding the copy of the enquiry report dated 18.11.1996 since the copy of the proceedings were not supplied, therefore, on representation being made by the respondent these proceedings were supplied to him vide letter dated 23.2.1998. The respondent was also afforded a further opportunity to submit reply after taking into account the proceedings as well, before passing the order of compulsory retirement.

His submission, therefore, is that merely supply of enquiry proceedings of the same enquiry regarding which there exists only one report, i.e. dated 18.11.1996 at the subsequent stage on the asking of the respondent himself does not mean that the enquiry, in fact, continued after the report was submitted on 18.11.1996 or mat there was any other enquiry report which was not furnished to the respondent.

He also submitted that since the enquiry report was supplied to the respondent, therefore, the finding that the order of punishment is not a speaking order, can also not be sustained.

In response Sri A. K. Misra, who has chosen to argue the case in person, has submitted that in fact no enquiry report was supplied to him and that he has raised this grievance before the authority, For testing this argument, we have gone through the entire record and we do not find any such document or complaint of the respondent, wherein he has said either before the authority or before the Tribunal that no enquiry report was ever supplied to him, rather his case has been that complete enquiry report was not furnished to him and for that matter he made a representation on 19.11.1997 for supply of the enquiry proceedings. He also does not dispute that apart from the enquiry report dated 18.11.1996, there was no other enquiry report prepared by the Department. This being the position, it cannot be resisted from being concluded that the only enquiry report, which has made the basis of passing of the order of compulsory retirement is dated 18.11.1996 and also the same was supplied to the respondent but without the annexure of enquiry proceedings.

Enquiry proceedings mean all that which has been conducted before the finalization of enquiry report, which may include proceedings after issuance of the chargesheet, submission of reply, supply of documents, adducing of evidence and all other such proceedings which might have taken place, before the enquiry report was submitted by the Enquiry Officer.

The aforesaid facts do prove that the directive issued by the Tribunal for holding an enquiry afresh after supply of the enquiry report cannot be sustained, the same not being based on the factual statement of fact made in the pleadings and also, as admitted by the respondent. The finding of the Tribunal that the order of compulsory retirement is not an speaking order and, therefore, has rightly been quashed also requires reconsideration, in view of the fact that the enquiry report had already been supplied.

Since the respondent himself admitted that while furnishing the enquiry report dated 18.11.1996, copy of the enquiry proceedings could not be supplied, therefore, the petitioner rightly supplied the same on mere asking of the respondent and also rightly afforded further opportunity by granting additional time to submit reply to the show cause notice, which was served upon him alongwith the enquiry report.

We have not expressed our opinion on the issue which may come before the Tribunal for adjudication and might have been raised in the original application or in the written statement filed by the petitioner but we quash the order simply on the ground that assumption drawn by the Tribunal that the respondent was not supplied the enquiry report is factually not correct. The order dated 2.6.2003 passed by the Tribunal is, therefore, quashed and the matter is remanded to the Central Administrative Tribunal for deciding afresh in accordance with law.

We would like to clarify that we have not addressed ourselves on the marits of the claims of either party and thus it will be open to the parties to raise all such a pleas they intend to made in respect of the claim and this order would not come in the way.

It is also to be recorded that since the respondent also admits that there was no other enquiry report except enquiry repqrt dated 18.11.1996, the question of supplying any further enquiry report would not arise, particularly when the enquiry report as well as entire proceedings have been given to the petitioner, in view of letter dated 23.2.1998. If the respondent is having any other grievance with respect to enquiry or enquiry proceedings, he will have full opportunity to raise the same before the Tribunal.

We are informed that neither the respondent was allowed to resume the duties nor he has been paid any amount towards post retiral dues even as a consequence of his compulsory retirement.

Under, the circumstances, we direct that all the post retiral dues including arrears of pension shall be paid to the respondent, treating him to have retired compulsorily vide order dated 30.12.2002 within a maximum period of four weeks. The petitioner shall be paid provisional pension with effect from the next month, subject to final pension being determined accordingly, within next one month. The payment so made and accepted by the respondent shall be without prejudice to the rights of either party in the original application before the Tribunal.

We further direct that subject to the cooperation of the parties before the Tribunal, the matter shall be decided within a maximum period of three months from the date of receipt of a certified copy of this order.

The petition is allowed. No order as to costs. Petition allowed.