SAROJ SRIVASTAVA v. RAJYA SABHA SECRETARIAT — 1997 DIGILAW 788 (DEL)

Usha Mehra, J. ( 1 ) ( 2 ) SINCE a short point is involved in this writ petitioner hence it was taken up for disposal. ( 3 ) THE petitioner has assailed the order of penalty imposed by the disciplinary authority thereby directing withholding of promotion for a period of five years from the date she reported for duty i. e. 28th June, 1993 and further the period of her absence from duty from 7th March, 1990 to 27th June, 1993 be treated as break in service under FR 17 (A) and Rule 28 of the CCS (Pension) Rules. ( 4 ) THAT the impugned order has been assailed primarily on the ground that while imposing the said penalty the disciplinary authority did not afford any opportunity to the petitioner of being heard nor the report of the Enquiry Officer was supplied to her. Moreover, the procedure as laid down under the rules governing the service conditions of the petitioner had not been followed. The disciplinary authority without disagreeing specifically with the finding of the Enquiry Officer imposed the impugned penalty. This shows non application of mind. Finally the order of break in service may look innocuous on the face of it but it results in washing away her complete past service which tantamounts to major penalty. ( 5 ) IN order to appreciate the legal points raised, let us have quick glance to the admitted facts pleaded on record and which are necessary for the determination of the same. The petitioner joined Rajya Sabha Secretariat in the post of Senior Translator in October, 1978. She got promoted as Assistant Editor in December, 1983. Thereafter, she went on deputation to the Ministry of External Affairs in March, 1984. In March, 1989 she was repatriated to her parent department. In May, 1990 she was charge sheeted on five counts, namely, (i) Unauthorisedly absenting herself for 72 days from 7th December, 1989 to 16th February, 1990. (ii) That for ignoring the official instructions contained in the Memo dated 23rd January, 1990 intimating that permission to her to visit U. K. and U. S. A. has been refused. She still visited U. K. and thus disregarded office discipline. (iii) She disobeyed the direction to resume duties. (iv) By remaining continuously absent w. e. f. 7th March, 1990 committed misdemeanour of desertion of duty. She still visited U. K. and thus disregarded office discipline. (iii) She disobeyed the direction to resume duties. (iv) By remaining continuously absent w. e. f. 7th March, 1990 committed misdemeanour of desertion of duty. (v) She was in the habit of committing misconduct by overstaying of leave. Enquiry was held to enquire these charges. But no action against the petitioner was taken on the basis of that enquiry held against the petitioner. As per petitioner, the absence period from 7th December, 1989 to 16th February, 1990 was treated by the respondent as dies-non. But no communication of the same was given to petitioner. On 2nd March, 1994 a second charge-sheet was issued containing those very five charges, namely, unauthorised absence from 7th December, 1989 to 16th February, 1990 and from 7th March, 1990 onwards, and of her having travelled to U. K. without permission etc. Enquiry Officer was appointed. The Enquiry Officer Mr. G. K. Saxena after considering all the material facts placed before him and after considering the relevant rules submitted his report on 23rd December, 1994. Enquiry Officer observed that none of the five charges levelled against the petitioner could be established by the respondent. The said report was submitted to the Disciplinary Authority. No copy of the same was supplied to the petitioner. ( 6 ) THE Disciplinary Authority without assigning any reason either agreeing or disagreeing with the finding of the Enquiry Officer imposed the impugned penalty. The review and appeal filed by the petitioner against the impugned order has also been rejected. ( 7 ) THE first limb of Mr. Mukul Rohtagi s argument is that the respondent could not issue a second charge-sheet on the same cause of action and facts on the basis of which first charge-sheet was issued and action taken. If this is correct then the second charge-sheet cannot stand. Admittedly, we go through both the charge-sheets, the charge of unauthorised absence from 7th December, 1989 to 16th February, 1990 and from 7th March, 1990 onwards was common. It is also an admitted fact that in response to the first charge-sheet, the petitioner was afforded opportunity to defend. The Enquiry Officer was appointed and he held enquiry into the matter. According to petitioner her unauthorised period was treated as dies-non after the report of the Enquiry Officer. It is also an admitted fact that in response to the first charge-sheet, the petitioner was afforded opportunity to defend. The Enquiry Officer was appointed and he held enquiry into the matter. According to petitioner her unauthorised period was treated as dies-non after the report of the Enquiry Officer. If that be so then on that charge second enquiry could not be held. The denial by the respondent that her period was treated as dies-non is believed from its subsequent conduct. If we read the impugned order it support the version of the petitioner. In the impugned order the break in service for unauthorised period is from 7th March, 1990 to 27th June, 1993. The disciplinary authority has not touched the period from 7th December, 1989 to 16th February, 1990. There appears to be force in the submission of Mr. Mukul Rohtagi that had that period been not treated as dies-non the disciplinary authority would not have spared it from being declared as break in service. In the absence of the finding of first Enquiry Officer having been placed on record, the respondent, to my mind, ailed to substantiate that the first Enquiry Officer found her guilty on all the five charges and recommended serious view to be taken. If this assertion is accepted then it was all the more necessary for the respondent to supply copy of that report to the petitioner. But the respondent did not do so. Instead a second charge-sheet was issued reiterating all those five charges, with only difference that this time the charge-sheet was under Rules 16 and 17 whereas the first charge-sheet was only under Rule 17. ( 8 ) IN the counter affidavit it has been admitted by the respondent that the finding of the first Enquiry Officer did not result in imposition of any penalty. From this admission inference can be drawn that the respondent treated the absence period dies-on or exonerated her. Otherwise on the basis of finding of guilt the Disciplinary Authority would have taken some action against the petitioner. Having taken action not to impose any penalty pursuance to the report of first Enquiry Officer the respondent waived its right to initiate second enquiry on the same causes of action. Moreover, the Disciplinary Authority was under legal obligation to supply the enquiry report to the petitioner, in case it intended to take any action against her. Having taken action not to impose any penalty pursuance to the report of first Enquiry Officer the respondent waived its right to initiate second enquiry on the same causes of action. Moreover, the Disciplinary Authority was under legal obligation to supply the enquiry report to the petitioner, in case it intended to take any action against her. Having not done so it violated the legal right of the petitioner beside violating the principle of natural justice. The petitioner is governed by the Rajya Sabha Secretariate (Recruitment and Condition of Service) Rules, 1957. Rules relevant for our purpose are Rules 16 and 17 which are reproduced as under:- 16. Procedure for imposing major penalties - (1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, no order shall be passed imposing any of the penalties specified in Clauses (iv) to (vii) of rule 14 on an officer unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an opportunity of defending himself in the manner hereinafter provided. (2) The grounds on this it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the officer charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. (3) The Officer shall be required, within such time as may be considered by the Disciplinary Authority to be reasonably adequate in the circumstances of the case, to put in a written statement of his defence and to state whether he desires to be heard in person. (4) The Officer charged may ask for permission to inspect and take notes from official records for the purpose of preparing his written statement, provided that the Disciplinary Authority may, for reasons to be recorded in writing, refuse him such permission if in its opinion such records are not strictly relevant to the case or it is not desirable in the public interest to grant such permission. (5) After the written statement is received from the officer in accordance with sub-rule (3), or, if no such written statement is received within the time allowed, the Disciplinary Authority may, if it considers it necessary, appoint a Board of Inquiry or an Inquiry Officer to inquire into the charges framed against the officer and shall have the charges inquired into as provided in sub-rule (6 ). If the Disciplinary Authority does not consider it necessary to appoint a Board of Inquiry or an Inquiry Officer, the Disciplinary Authority shall itself inquire into the charges in such manner as it deems fit. (6) If the officer desires to be heard in person, he shall be so heard. If he desires that an oral inquiry be held, or if the Disciplinary Authority so directs, an oral inquiry shall be held by the Board of Inquiry or the Inquiry Officer, as the case may be. At such inquiry, evidence shall be taken as to such of the allegations as are not admitted and the officer charged shall be entitled to cross-examine the witnesses who give evidence in person and to have such witnesses called as he may wish: Provided that the Board of Inquiry or the Inquiry Officer, as the case may be, for reasons to be recorded in writing, refuse to call any witness whose evidence is, in the opinion of the Board or officer, not relevant or material. (7) At the conclusion of the inquiry, the authority inquiring into the charges shall prepare a report of the inquiry recording its finding on each of the charges together with the reasons therefor. If, in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its finding on such charges: Provided that the findings on such charges shall not be recorded unless the officer charged has admitted the facts consituting them or has had an opportunity of defending himself against them. If, in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its finding on such charges: Provided that the findings on such charges shall not be recorded unless the officer charged has admitted the facts consituting them or has had an opportunity of defending himself against them. (8) The record of the inquiry shall include - (i) the charges framed against the officer and the statement of allegations furnished to him under sub-rule (2); (ii) his written statement of defence, if any, (iii) the evidence recorded in the course of the inquiry; (iv) the orders, if any, made by the Disciplinary Authority and the authority making the inquiry in regard to the inquiry, and (v) a report setting out the findings on each charge and the reasons therefore. (9) The Disciplinary Authority shall, if it is not the inquiring authority, consider the record of the inquiry and determine which of the findings of the Board of Inquiry or of the Inquiry Officer, as the case may be, it accepts. (10) If the Disciplinary Authority, having regard to the findings recorded or accepted by it, is of the opinion that any of the penalties specified in Clauses (iv) to (vii) of rule 14 should be imposed, it shall - (a) furnish to the officer a copy of the report of the inquiry together with a statement of such findings, and (b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time, such representation as he may wish to make against the proposed action: Provided that if the Disciplinary Authority disagrees with any part or the whole of the findings of the Board of Inquiry or the Inquiry Officer, the point or points of such disagreement together with a brief statement of the grounds therefore shall also be communicated to the officer. (11) The Disciplinary Authority shall, determine, having regard to the findings recorded or accepted by it, and the representation, if any, made by the officer under sub-rule (10), what penalty if any, should be imposed on the officer and pass appropriate orders on the case and the orders so passed shall be communicated to the officer. (11) The Disciplinary Authority shall, determine, having regard to the findings recorded or accepted by it, and the representation, if any, made by the officer under sub-rule (10), what penalty if any, should be imposed on the officer and pass appropriate orders on the case and the orders so passed shall be communicated to the officer. (12) Notwithstanding anything contained in this rule, it shall be lawful for the Disciplinary Authority to waive, for good and sufficient reasons to be recorded in writing, any of the provisions of this rule excepting sub-rule (10) in any exceptional case where such authority is satisfied that there is difficulty in strictly complying with such provisions and that compliance with such provision can be waived without any injustice to the officer concerned. Rule 17 : 17. Procedure for imposing minor penalties - (1) No order shall be passed imposing any of the penalties specified in Clauses (i) to (iii) of rule 14 on an officer except after - (a) the officer is informed in writing of the proposal to take action against him and of the allegations on which such action is proposed to be taken and he is given an opportunity to make any representation which he may wish to make; and (b) such representation, if any, is taken into consideration by the Disciplinary Authority, and the order so passed shall be communicated to the officer. (c) The record of proceedings in such cases shall include - (i) a copy of the intimation to the officer of the proposal to take action against him; (ii) a copy of the statement of allegations communicated to him; (iii) his representation, if any, and (iv) The orders on the case together with the reasons therefor. ( 9 ) PERUSAL of sub-rules (10) and (11) quoted above it becomes clear that the Disciplinary Authority if does not agree with the finding of the Enquiry Officer he must communicate to the delinquent officer report of the Enquiry Officer and the points of disagreement alongwith statement of the grounds. After receipt of representation from the officer, then the Disciplinary Authority would take a decision to impose a penalty. But in the case in hand neither the enquiry report was sent to the petitioner nor grounds of disagreement with the finding of the Enquiry Officer. After receipt of representation from the officer, then the Disciplinary Authority would take a decision to impose a penalty. But in the case in hand neither the enquiry report was sent to the petitioner nor grounds of disagreement with the finding of the Enquiry Officer. Because of non supply of report she has been deprived of the reasonable opportunity to defend herself. The Disciplinary Authority before imposing the impugned penalty ought to have heard her. The action of the Disciplinary Authority in not supplying her the copy of the report and the reasons of disagreement with the finding of Enquiry Officer has rendered the impugned order a nullity. Natural justice requires that petitioner should have been supplied with the finding of the Enquiry Officer and reasons of disagreement by the Disciplinary Authority in order to enable her to explain why the proposed penalty be not imposed upon her. To arrive at this conclusion reference can be had to the observations of the Constitution Bench of the Apex Court in the case of Managing Director, ECIL Vs. B. Karunakaran reported in AIR 1994 SC 1074 wherein it has been observed that "when the Enquiry Officer is not the Disciplinary Authority, the delinquent employee has a right to receive a copy of the Enquiry Officer s report before the Disciplinary Authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee s right to defend himself against the charges levelled against him. A denial of the Enqiry Officer s report before the Disciplinary Authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principals of natural justice". It was further observed "report of the Enquiry Officer has to be furnished to the employee even if statutory rules are silent or against it. Copy has to be furnished to delinquent official irrespective of the fact whether he asks for it or not. " Since it is the right of the petitioner to have the report in order to defend herself effectively, and he would not know in advance whether the report is in her favour or against her. Copy has to be furnished to delinquent official irrespective of the fact whether he asks for it or not. " Since it is the right of the petitioner to have the report in order to defend herself effectively, and he would not know in advance whether the report is in her favour or against her. Therefore, it will not be a proper defence of the respondent to construe that the petitioner ought to have asked for the report and by not asking she waived her right. This view was taken by the Apex Court in ECIL case (Supra) when the Court while rejecting such an argument observed that "the copy of the Enquiry Report has to be furnished even if the delinquent official does not ask for the same. ( 10 ) SUB-RULE (12) makes it clear that Disciplinary Authority has no right to waive the provisions of sub-rule (10 ). This makes it clear that once the Disciplinary Authority issue chargesheet under Rule 16 it has to follow sub-rules (10) and (11) unless for any exceptional reasons to be recorded the prevision of sub-rule (11) are waived. But that is not the case in hand. I find fallacy in the argument of Mr. E. X. Joseph that since charge-sheet dated 2nd March, 1994 was issued under both the provisions, namely, Rule 16 and 17 hence, the Disciplinary Authority was not bound to follow sub-rule (10 ). Having ordered an enquiry into the charges levelled and Enquiry Officer after enquiry submitted the report holding that none of the charge stood established this report ought to have been supplied to the petitioner irrespective of the nature of penalty to be imposed. The Disciplinary Authority before imposing the impugned penalty ought to have supplied her the report and afforded her opportunity of being heard. In fact before issuing the impugned penalty a show cause notice ought to have been issued to her thereby indicating the intention of the Disciplinary Authority to impose such a penalty and also reasons for not agreeing with the finding of the enquiry officer. This is the minmum requirement of natural justice that no one should be condemned unheard. Now even if for arguments sake we accept that the charge-sheet was under both the Rules that makes no difference. This is the minmum requirement of natural justice that no one should be condemned unheard. Now even if for arguments sake we accept that the charge-sheet was under both the Rules that makes no difference. The Apex Court in the case of ECIL (Supra) while dealing with Article 311 (2) of the Constitution observed that: "article 311 (2) of the Constitution of India, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee in the case. If an inquiry is held before awarding the punishment, the delinquent employee will have the right to receive the Inquiry Officer s report notwithstanding the nature of punishment. " ( 11 ) THEREFORE, once the inquiry was ordered in this case be that under Rule 16 and 17 both since the Enquiry Officer was different person that the Disciplinary Authority, therefore, it was incumbent on the Disciplinary Authority to have supplied the report of the Inquiry Officer before imposing the impugned penalty. The punishment is not the governing criteria for the supply or non-supply of the copy of the Inquiry Officer s report. ( 12 ) MR. E. X. JOSEPH contends that for a minor penalty inquiry was not necessary nor supply of report, to my mind, this argument is devoid of merits. The rules in question do not prohibit holding of Enquiry under Rule 17 i. e. in case of minor penalty. Hence, once the Disciplinary Authority decided to hold enquiry even in a case of minor penalty it is duty bound to supply copy of report of Enquiry Officer to the delinquent. Then the respondent cannot take shelter under the garb that since penalty has been imposed under Rule 17, hence it is not necessary to supply the report. Having not supplied the report she has been adversely effected and prejudiced. She has also been deprived of a reasonable opportunity to defend herself. Reliance by Mr. Joseph on the decision of the Supreme Court in the case of N. Rajarathinam Vs. State of Tamil Nadu and anr. , JT 1996 (8) SC page 447 is misplaced. In that case, the finding as regards the proof of misconduct was confirmed by the Inquiry Officer. Reliance by Mr. Joseph on the decision of the Supreme Court in the case of N. Rajarathinam Vs. State of Tamil Nadu and anr. , JT 1996 (8) SC page 447 is misplaced. In that case, the finding as regards the proof of misconduct was confirmed by the Inquiry Officer. It was only the punishment which was under consideration of the Disciplinary Authority. The Disciplinary Authority on the basis of totality of the facts and circumstances and relying on the Enquiry Officer s report imposed the penalty. Enquiry report was submitted to the Public Service Commission which recommended lesser punishment. The Apex Court observed that the recommendation of the Public Service Commission could have been ignored by the Government. Once there is a finding as regards the proof of mis-conduct then what punishment should be imposed is for the Disciplinary Authority. On this proposition there cannot be any quarrel. In the facts of this case once the Inquiry Officer rendered his finding holding that non of the five charges stood proved, it became incumbent on the Disciplinary Authority to have issued show cause notice to the petitioner indicating his intention to impose a minor penalty. having not done so the petitioner has been deprived of the reasonable opportunity and there is violation of principles of natural justice. Similarly, reliance by Mr. Joseph on the decision of the Supreme Court in the case of State of Orissa and ors. Vs. Bidyabhushan Mohapatra. AIR 1963 SC 779 is also of no help to him. In that case also there was finding of the Inquiry Officer holding the delinquent official guilty against some of the charges. The punishment imposed by the Disciplinary Authority was interfered by the Tribunal. The Apex Court set aside the same observing that what punishment be awarded is within the sole jurisdiction of the Disciplinary Authority. So far as the case of Mr. B. C. Chaturvedi Vs. Union of India and ors. , AIR 1996 SC 484 relied by Mr. Joseph, in that case Court was not concerned with the supply or non-supply of the report of Enquiry Officer. The Court was ceased of the fact whether there was delay in the initiation of disciplinary proceedings. The Court observed that delay itself cannot be said to have violated Article 14 or 21 and further that the quantum of punishment cannot be interfered by the Tribunal. The Court was ceased of the fact whether there was delay in the initiation of disciplinary proceedings. The Court observed that delay itself cannot be said to have violated Article 14 or 21 and further that the quantum of punishment cannot be interfered by the Tribunal. But that is not case in hand. The petitioner in this case has not challenged the quantum of punishment but the procedure adopted by the respondent which is in violation of the principles of natural justice. Hence, none of authorities relied by the respondent has any bearing on the facts of this case. ( 13 ) SO far as Enquiry Officer was, concerned he after enquiry found none of the charges being established either for major or minor penalty. We have to see in this backdrop the conduct of the Disciplinary Authority. Moreover, no reasons have been furnished by the Disciplinary Authority for imposing the impugned penalty as required under Rules. In The absence of having assigned any reason for disagreeing with the Enquiry Officer shows no application of mind. Why I say there was non-application of mind because in the impugned order dated 12th July, 1995 which is reproduced as under, the Disciplinary Authority has nowhere stated that he has disagreed with the finding of the Enquiry Officer. If had not disagreed there how could the impugned penalty be imposed. RAJYA SABHA SECRETARIAL PARLIAMENT HOUSE ANNEXE NEW DELHI NO. RS/6 (III)/93-Personnel Dated : 12. 7. 1995 ORDER Smt. Saroj Srivastave, Assistant Editor was informed of the proposal to hold an enquiry against her under Rules 16 and 17 of the Rajya Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1957 vide Memorandum No. RS/6 (iii)/93-Personnel dated 2nd March, 1994 alongwith statement of each of (1) Articles of Charge, (ii) Imputations of Misconduct or Misbehaviour in support of the charges, and (iii) A list of documents by which the Articles of charges where proposed to be sustained were also forwarded to her. An enquiry in the case of Smt. Saroj Srivastava was conducted and the inquiry authority submitted his finding vide his report dated 23. 12. 1994 a copy of which is enclosed. An enquiry in the case of Smt. Saroj Srivastava was conducted and the inquiry authority submitted his finding vide his report dated 23. 12. 1994 a copy of which is enclosed. Hon ble Chairman Rajya Sabha, the Disciplinary Authority in this case has ordered as under : "on a careful consideration f the materials on record including the findings of the Enquiry Officers, I have come to the conclusion that all articles of charge framed against Smt. Srivastava, Assistant Editor stand established. Though the conduct of Smt. Srivastava is such that would attract as major penalty. I am inclined to take a lenient view and impose the penalty of withholding of promotion for a period of five years from the date she reported for duty i. e. 28. 6. 1993, as provided under rule 14 (ii) of the Rajya Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1957. The period of her absence from duty from 7. 3. 1990 to 27. 6. 1993 may be treated as unauthorised and resulting in break in service under FR. 17 (A) as well as Rule 28 of the CCS Pension Rules. ( 14 ) A copy of this order may be added to the Confidential service records of Smt. Saroj Srivastava. BY ORDER AND IN THE NAME OR CHAIRMAN (VINAY N. SARNA) DIRECTOR ( 15 ) ON the contrary reading of this order shows that Disciplinary Authority accepted the finding and yet mechanically imposed the penalty completely oblivious of the fact that Enquiry Officer in his report had held that none of the five charges were established by the respondent. This action of the respondent is nothing but abuse of its powers. The sovereign powers or the powers to hire and fire is no more a good law. The violation of the principles of natural justice is sufficient to hold such an order bad in law. ( 16 ) FINALLY Mr. Mukul Rohtagi drew my attention to the penalty imposed under FR (A) and Rule 28 of CCS (Pension) Rules. Though on the face of it the order looks innocuous but it has far reaching consequences. The alleged unauthorised period from 7th March, 1990 to 27th June, 1993 has been treated break in service, meaning thereby she losses he previous service. It in effect amount to major penalty. Though on the face of it the order looks innocuous but it has far reaching consequences. The alleged unauthorised period from 7th March, 1990 to 27th June, 1993 has been treated break in service, meaning thereby she losses he previous service. It in effect amount to major penalty. Instead of dismissing her by the impugned order the Disciplinary Authority washed her previous service without giving her reasonable opportunity of being heard. By this order the petitioner would loose her retrial benefits. ( 17 ) FOR the reasons stated above the impugned order cannot be sustained. The same is accordingly set aside. The Rule is made absolute with no order as to cost.