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Punjab High Court · body

2010 DIGILAW 2112 (PNJ)

Union Of India v. Shashi Bhushan

2010-07-26

A.N.JINDAL, M.M.KUMAR

body2010
Judgment M.M.Kumar, J. 1. The Union of India and its officers have filed the instant petition under Article 226 of the Constitution challenging orders dated 17.7.2008 and 20.2.2009 (P-4 and P-7), passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, the Tribunal), in O.A. No. 235/J&K/2007 and R.A. No. 36/2008 respectively. 2. Brief facts of the present case are that Shri Shashi Bhushan-respondent No. 1 initially joined the Department of Telecommunications as Engineer Supervisor Telephones. In due course of time, he was promoted as officiating Divisional Engineer (Phones) and posted as such at Ropar. On the basis of a complaint made to the Punjab Vigilance Department, respondent No. 1 was arrested on 25.11.2002. The matter was handed overto the Central Bureau of Investigation (C.B.I.). After about 9 months, the C.B.I, referred back the case to the Punjab Vigilance Department finding that no criminal case was made out. However, the Punjab Government referred the case to the Ministry of Communication & IT., Department of telecommunications for taking departmental action. It is pertinent to mention here that respondent No. 1 was suspended on 25.11.2002 and reinstated on 22.2.2006. 3. On 3.6.2005, a chargesheet under Rule 14 of the Central Civil Services (Class, Control and Appeal) Rules, 1965 (for brevity, the Rules) was served upon respondent No. 1 with the allegation that while posted and officiating as Divisional Engineer, Ropar during the year 2002, he committed grave misconduct by demanding and accepting bribe of Rs. 1,000/- from Shri Kuldip Kumar son of Shri Ram Chand for expediting new telephone connection at village {3ela, District Ropar (Annexure P-1/A). Respondent No. 1 denied the charge. The Chief General Manager Telecommunications, Punjab Circle-appellant No. 3 appointed Shri J.S. Mal, A.G.M. (R&E), as Enquiry Officer. 4. The Enquiry Officer after conducting the inquiry submitted his report to appellant No. 3 on 23.6.2006. It appears that appellant No. 3 sent the inquiry report to the competent disciplinary authority i.e. Member (Services) Telecom Commission- appellant No. 2 for taking a final decision. The competent disciplinary authority ordered for holding a de novo inquiry in the case from the stage of inspection/supply of listed documents as per Annexure-lll of the charge memo, vide letter No. 8-129/ 06-Vig. II, dated 4.10.2006. The competent disciplinary authority ordered for holding a de novo inquiry in the case from the stage of inspection/supply of listed documents as per Annexure-lll of the charge memo, vide letter No. 8-129/ 06-Vig. II, dated 4.10.2006. On the basis of order dated 4.10.2006, passed by the competent disciplinary authority, the Chief General Manager Telecom, Punjab Circle, Chandigarh-appellant No. 3, passed an order dated 31.10.2006, in exercise of powers conferred by sub-Rule (2) read with sub-rule (22) of Rule 14 of the Rules, appointing Shri H.C. Ahuja, A.G.M. (Marketing) as an Enquiry Officer in place of Shri J.S. Mai, who was the earlier Enquiry Officer, to inquire into the charges framed against respondent No. 1 (Annexure P-1/B). 5. Against the order dated 31.10.2006, respondent No. 4 submitted a reply on 20.11.2006 (Annexure P-1/C). On 18.1.2007, the cometent authority i.e. Member (Services) Telecom Commission, passed another order superseding the order dated 31.10.2006. By placing reliance on Rule 15(1) of the rules, the competent authority ordered further inquiry in the case from the stage of inspection/supply of listed documents as per Annexure III of charge memo dated 3.6.2005 (Annexure P-1/D). Paras 3 and 4 of the order dated 18.1.2007, reads as under :- "3. And whereas on completion of inquiry, inquiring authority submitted his report dated 23rd June, 06. It has been observed that during inquiry prosecution documentsas per details in Annexure III of charge Memo have not been taken on record though these documents were presented by PO and inspected by the charged Officer. This is a serious procedural lapse. It has also been noticed that deposition of S.W.2 and S.W.3 recorded on 16th December, 05 are same. S.W.3 has even not mentioned his designation correctly. This shows that IQ has conducted the inquiry in a casual manner. 4. Now, therefore, I.A.K. Saxena, Member (Services), Telecom Commission in exercise of the powers under Rule 15(1) of CCS(CCA) Rules 1965, order further inquiry in the case from the stage of inspection/supply of listed documents as per Annexure III of charge Memo dated 3rd June, 05. Shri H.C. Ahuja, A.G.M. (Mktg.), office of CGMT, Punjab Circle, Chandigarh, is appointed as inquiring authority for further inquiry in the case." 6. Feeling aggrieved against the orders dated 31.10.2006 and 18.1.2007, respondent No. 1 of filed an appeal dated 1.2.2007 before the Secretary, Telecom Commission, New Delhi (Annexure P-1/E). Shri H.C. Ahuja, A.G.M. (Mktg.), office of CGMT, Punjab Circle, Chandigarh, is appointed as inquiring authority for further inquiry in the case." 6. Feeling aggrieved against the orders dated 31.10.2006 and 18.1.2007, respondent No. 1 of filed an appeal dated 1.2.2007 before the Secretary, Telecom Commission, New Delhi (Annexure P-1/E). On 5.1.2007, a communication was sent to respondent. No. 1 by the Under Secretary to the Government of India (Vig.II) that the matter has been considered by the competent authority. The contention of respondent No. 1 that the inquiry report was accepted by the Chief General Manager, Telecommunications, Punjab Circle was denied and it was pointed out that as the inquiry was not conducted as per provisions of the Rules and procedural lapses were noticed, therefore, further inquiry in the case has been ordered in accordance with Rule 15(1) of the Rules. Respondent No. 1 was directed to cooperate in the inquiry (Annexure P-1/F). 7. The aforementioned orders dated 18.1.2007 and 5.3.2007 were challenged by respondent No. 1 before the Tribunal by filing O.A. No. 235/J&K/2007. The Tribunal by placing reliance on the provisions of Rule 15(1) of the Rules has held that no order for holding a de novo inquiry could have been passed and only a further inquiry could have been held from the stage of examination of documents. The view of the Tribunal as expressed in its order dated 17.7.2008 (Annexure P-4), is discernible from the perusal of para 10, which read as under :- "10. In the circumstances, while holding that (de novo enquiry cannot be held in the present case and only a further enquiry could be ordered from the stage of examination of documents as intended vide A-1, the order Annexure A-4 is quashed to that extent. In this view of the matter and in the interest of justice, it would be appropriate, if the further inquiry is completed expeditiously and in any case not later than 3 months from the date of receipt of a copy of this order. Thereafter, DA will take steps to finalize the proceedings within one month as per rules. We hope and expect that the applicant will co-operate in completing the further inquiry." 8. Respondent No. 1 then filed a review application bearing R.A. No. 36 of 2008. On 20.2.2009, the Tribunal reviewed its order dated 17.7.2008 and held as under :- "6. Thereafter, DA will take steps to finalize the proceedings within one month as per rules. We hope and expect that the applicant will co-operate in completing the further inquiry." 8. Respondent No. 1 then filed a review application bearing R.A. No. 36 of 2008. On 20.2.2009, the Tribunal reviewed its order dated 17.7.2008 and held as under :- "6. It is very clear that in O.A. No. 235/JK/2007, the applicant had sought the quashing of Annexures A-1 & A-2, but had not prayed for quashing of Annexure A-4. The competent authority had ordered a de-novo inquiry vide order dated 18/01/2007 (Annexure A-1) superseded the earlier order at Annexure A-4 and further inquiry was ordered from the stage of inspection/ supply of listed documents. Therefore, the only thing which remains to be clarified is the stage fcom which further inquiry is to be taken up, since it has been clearly ruled in the earlier order that de-novo inquiry cannot be held. Thus, there is an error apparent on the face of the order, which needs rectification. 7. In the present case, application of Rule 15 will be limited since a de novo inquiry is not to be held and further inquiry would be tantamount to holding an inquiry afresh. We are of the view that formulation of the first sentence in para 10 of the order dated 17/07/2008 could lend itself to contradiction. 8. In view of the above mentioned facts, the present Review Application is partly allowed by replacing para 10 as follows :- "In the circumstances, we hold that de novo inquiry is not justified in the present case and only a further inquiry may be held from the stage of submission of inquiry report under Rule. 15(2) of CCS(CCA) Rules. As per this Rule, the disciplinary authority may forward a copy of the inquiry report together with the findings of the inquiring authority on any article of charge to the government servant. The government servant may then submit his written representation to the disciplinary authority, who shall consider the same and record its findings before proceeding further. We further order that this process as well as any other process under Rule 15 may be undertaken and completed by the competent authority within a period of four months from the date of the receipt of a coy of this order. We further order that this process as well as any other process under Rule 15 may be undertaken and completed by the competent authority within a period of four months from the date of the receipt of a coy of this order. We hope and expect that the applicant will cooperate in completing the further inquiry." 9 Mr. Naveen Chopra, learned counsel for the appellants has vehemently argued that the order dated 20.2.2009 passed in the review application as well as the original order dated 17.7.2008, passed by the Tribunal are not sustainable in the eyes of law. According to the learned counsel, if the view taken by the Tribunal is accepted then it will completely render the provisions of Rule 15(1) of the Rules as illusory because in no case the matter could be remitted back to the Enquiry Officer. The Enquiry Officer cannot be given the power to have last word and the disciplinary authority is also not supposed to plainly submit to the views given by the Enquiry Officer. 10. Mr. R.K. Sharma, learned counsel for respondent No. 1 on the other hand has argued that no de novo inquiry could be ordered from the stage of service of charge sheet by setting aside the findings of the earlier Enquiry Officer. According to the learned counsel if such a procedure is permitted to be followed then it would result into grave prejudice to the interest of the delinquent officer because all the witnesses who were subjected to cross- examination during the course of earlier inquiry would plug to the loopholes left in the earlier statements either during examination-in-chief or cross- examination. 11. We have heard learned counsel for the parties and perused the paper book with their able assistance. The instant case presents a very paradoxical situation. On the one hand the right of the employer to have the enquiry to its full satisfaction is involved and on the other is the right of a delinquent employee not to be subjected to same witnesses and evidence by permitting improvement by the department. In order to appreciate the rival contentions it would first be necessary to closely examine the provisions of Rule 15(1) and (2) of the Rules, which reads thus :- "15. Action on the inquiry report. In order to appreciate the rival contentions it would first be necessary to closely examine the provisions of Rule 15(1) and (2) of the Rules, which reads thus :- "15. Action on the inquiry report. - (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be. (2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government Servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government Servant." 12. A bare perusal of the aforementioned Rules shows that the disciplinary authority can always remit the case for holding of further inquiry in so far it may be required. It is, thus, apparent that the area which has been left untouched may be permitted consideration of the Enquiry Officer. But it will not give a licence to the Enquiry Officer to reopen the whole case. Accordingly, the Enquiry Officer is at liberty to proceed with further inquiry which shall be supplemental to the earlier inquiry and not to supplant it. 13. The aforesaid rule or other such rules, which are similar in contents and substance, have been subject matter of consideration by the courts. The principle which has emerged from the various judgments delivered by Honble the Supreme Court is that a balance has to be created between the rights of the employer to get the inquiry conducted in accordance with Rules and on the other hand, the Court has to protect the interest of the employee so that procedure adopted for further inquiry is not abused by granting permission to the departmental authority to improve their version by bringing the same witnesses and documents before the Inquiry Officer. It was in this context, that the judgment in the cases of K.R. Dev vs. CCE, 1971(2)SCC 102 and Union of India vs. P. Thayagaraian, 1999(1) SCC 733 have to be viewed. In para 12 of K.R. Devs case (supra), it has been laid down that the Enquiry Officer can be asked to record further evidence without setting aside the inquiry report that has been submitted by him. The aforesaid para 12 is relevant to the issue and reads thus :- "12. It seems to us that Rule 15, on the fact of it, really provides for one enquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined for some other reason, the disciplinary authority may ask the enquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous enquiries on the ground that the report of the enquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9." 14. Commenting on para 12 of the judgment in K.R. Devs case (supra) their Lordships of Honble the Supreme Court in P. Thayagarajans case (supra) has held in para 8 of its judgment as under :- "8. A careful reading of this passage will make it clear that this Court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined, the disciplinary authority may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the present case, the basis upon which the disciplinary authority set aside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. In the present case, the basis upon which the disciplinary authority set aside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand, result in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the disciplinary authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of the present nature." 15. When we apply the principles laid down by Honble the Supreme Court, it. emerges that the disciplinary authority has noticed in paras 3 and 4 of its order dated 18.1.2007 (supra) that during inquiry, the prosecution documents as per details in Annexure III of charge Memo have not been taken on record although these documents were presented by the Presenting Officer and inspected by the Charged Officer. This was regarded as procedural lapse. The disciplinary authority has further recorded that deposition of S.W. 2 and S.W. 3 recorded on 16.12.2005 are same and even designation have not been correctly mentioned. The disciplinary authority felt that the Enquiry Officer has conducted the enquiry in a casual manner. It is in the aforesaid context that the disciplinary authority exercised power under Rule 15 (1) of the Rules and ordered further enquiry by appointing Shri H.C. Ahuja, as Enquiry Officer. The order passed by the Disciplinary Authority falls within the four corners of its power conferred by Rule 15(1) of the Rules and the judgments of Honble the Supreme Court. Accordingly, it has to be concluded that on precedent, principle and on the anvil of statutory rules, the order passed by the disciplinary authority deserves to be upheld. 16. As a sequel to the above discussion, the writ petition is allowed and orders of the Tribunal are set aside. Our direction may not be taken to mean that the petitioners are entitled to treat the earlier enquiry report as defunct and the enquiry has to be held by the Enquiry Officer from the stage, the earlier Enquiry Officer has left it. Our direction may not be taken to mean that the petitioners are entitled to treat the earlier enquiry report as defunct and the enquiry has to be held by the Enquiry Officer from the stage, the earlier Enquiry Officer has left it. The writ petition stands disposed of in the above terms.