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2012 DIGILAW 239 (JK)

Parbhat Singh v. Union of India Ors.

2012-05-10

MOHAMMAD YAQOOB MIR

body2012
1. This is the second round of litigation and point for determination is identical to the one which was dealt with in the first round of litigation. The point for determination in substance is formulated as under:- When the Disciplinary Authority does not agree with the findings of the enquiry authority, then what is required to be done by the Disciplinary Authority? 2. Rule 15 of the Central Civil Services [Class, Control and Appeal] Rules, 1965 [hereinafter referred to as CCA Rules, 1965] is applicable to the present case and has been dealt with, as such, under the same Rule. The said Rule provides that : (a) On receipt of the enquiry report, the Disciplinary Authority for reasons to be recorded in writing can remand the case to the Enquiry Authority for further enquiry and report; OR (b) the Disciplinary Authority, if dis-agrees with the report of the Enquiry Authority has to forward a copy of the report of the enquiry together with its own tentative reasons for dis-agreement to the Government Servant, so as to enable him to submit his written representation or submission within fifteen days. Then Disciplinary Authority has to consider the representation, if any, submitted by the Government Servant and then to record its findings before proceeding further in the matter as specified in Sub-Rule 3 and 4 of Rule 15. c) When the Disciplinary Authority thereafter having regard to its findings, if is of the opinion that any of the penalty specified in Clause [i] to [iv] of Rule 11 should be imposed, shall make an order imposing such penalty. The said power is controlled by the proviso to Sub-Rule 3 i.e., where there is requirement of consulting the Commission, the record has to be forwarded to the Commission for its advice, which has to be taken into consideration before making any order imposing any penalty. d) In terms of Sub-Rule 4 of the said Rule, if the Disciplinary Authority having regard to its findings is of the opinion that any of the penalties specified in Clause [v] to [ix] of Rule 11 shall be imposed, it shall make an order imposing such penalty. d) In terms of Sub-Rule 4 of the said Rule, if the Disciplinary Authority having regard to its findings is of the opinion that any of the penalties specified in Clause [v] to [ix] of Rule 11 shall be imposed, it shall make an order imposing such penalty. In that case, it shall not be necessary to give opportunity to the Government Servant to make a representation but same powers are also controlled by proviso to Sub-Rule 4 of the said Rule i.e., if there is requirement of consulting the Commission, then after obtaining the advice and after taking the same into consideration, such penalty can be imposed. 3. In the instant case, the admitted position is that the petitioner was enrolled as Sub Inspector, Central Reserve Police Force [C.R.P.F] in the year 1976, has risen to the post of Deputy Commandant by dint of his merit. On 26th of July 1996, a charge sheet was served upon the petitioner along with the statement of Articles of Charge and Statement of Imputation of mis-conduct and mis-behaviour in support of Articles of Charge. Mr. N.G.Subramania, Commandant 70 Battalion C.R.P.F was appointed as Enquiry Officer, who on conclusion of the enquiry has prepared the report, concluding para reads as under:- CHARGE PROVED OR OTHERWISE Charge of Articles [i], [ii] and [iii] levelled against Sh. P.S.Charak, Deputy Commandant of 68th Bn, C.R.P.F has not been proved due to weak prosecution witnesses and the documents produced were against the Charge of Articles rather than in favour of the charges framed Consequently, prosecution failed to prove that P.S.Charak, Deputy Commandant was not at all ill and the medical documents produced by Mr. P.S.Charak were not genuine one. 4. The Disciplinary Authority did not agree with the findings of Enquiry Officer and issued a show cause notice along with dis-agreement note, which was served upon the petitioner where under it was mentioned that the charges stand proved against the petitioner, based on which petitioner was compulsorily retired vide order dated 4th of February 1999. Appeal filed against the said order has been rejected by the Appellate Authority vide order dated 17th of September 2003. Dis-satisfied with the same, petitioner filed the Writ Petition before the Hon’ble High Court of Delhi, registered as W.P. (C) No. 5078/2004. Same has been decided by the Division Bench of the said Court on 2nd of December 2009. Appeal filed against the said order has been rejected by the Appellate Authority vide order dated 17th of September 2003. Dis-satisfied with the same, petitioner filed the Writ Petition before the Hon’ble High Court of Delhi, registered as W.P. (C) No. 5078/2004. Same has been decided by the Division Bench of the said Court on 2nd of December 2009. The Hon ble High Court of Delhi while noticing the position of Articles of Charge and the position of the petitioner having been exonerated by the Enquiry Officer quoted the opening paragraph of Note of Disagreement contained in the show cause notice, at paragraph No. 9 of the judgment which reads:- That a Departmental Enquiry was conducted against you by Sh. N.G. Subhramania, Commandant. The report of the Enquiry Officer is enclosed. Disciplinary Authority does not agree with the findings of the Enquiry Officer and holds the Articles of Charge [i], [ii] and [iii] as proved beyond any doubt to the following reasons/effect. 5. High Court of Delhi while referring to the judgment rendered in case of Yogi Nath D.Bagde Vs. State of Maharashtra and another, reported in A.I.R 1999 SC 3734 and then in paragraph No. 12 has recorded as under:- 12. The decision highlights the importance of recording prima facie and tentative findings if the disciplinary authority disgrees with the findings returned by the inquiry officer so that the mind of the disciplinary authority is open to consider the version given by the delinquent employee in response to the show-cause notice issued. 6. The Delhi High Court while quashing the show-cause notice has further ruled that even a word has not been spoken by the Disciplinary Authority with reference to the response of the petitioner to the note of disagreement furnished to him in the show-cause notice dated 1st of December 1997. Then has referred to the judgment rendered by the Hon’ble Apex Court in Ranjit Singh Vs. Union of India & others, reported in 2006 [4] SCALL wherein the Hon’ble Supreme Court has highlighted the importance of dealing with the response submitted by the charged officer to the show-cause notice. Finally, the note of disagreement, show-cause notice, order dated 4th of February 1999 and 17th of September 2003 were quashed. Thus, has concluded as under:- 26. Union of India & others, reported in 2006 [4] SCALL wherein the Hon’ble Supreme Court has highlighted the importance of dealing with the response submitted by the charged officer to the show-cause notice. Finally, the note of disagreement, show-cause notice, order dated 4th of February 1999 and 17th of September 2003 were quashed. Thus, has concluded as under:- 26. Since derailment had taken place at the stage of recording note of disagreement, we put back the train at the correct tract at said place i.e., we permit the respondents to proceed ahead in accordance with law. Needless to state, this would mean that whosoever is the disciplinary authority as of today would proceed to reconsider the report of the inquiry and if the said officer agrees with the report that would be the end of the matter failing which, if the officer opines not to agree with the report of the inquiry officer, would issue a fresh show cause notice and while doing so would keep into account the present decision and the decision of the Supreme Court in Yoginath s case [supra]. The response of the petitioner in said eventuality would be considered and fresh orders would be passed. We further direct the disciplinary authority of the petitioner to pass appropriate orders for the period reckoned with effect from the date penalty of dismissal from service was inflicted upon the petitioner till further orders are passed. 7. When for sometime the judgment was not implemented, Contempt proceedings were initiated but during the pendency of the said Contempt proceedings, respondents passed the order dated 24th of April 2010 whereby the petitioner was re-instated with a rider that he shall be deemed to have been suspended from 27th of September 1999 in terms of Rule (10) 4 of CCS (CCA) Rules, 1965 and shall remain suspended till further orders and during the period of suspension his Head Quarter was directed to be Group Centre, C.R.P.F, Ban Talab, Jammu. The said order was not treated as compliance by the Delhi High Court and it is only thereafter respondents passed the order on 8th of October 2010 where under the suspension of the petitioner was withdrawn. Thereafter the petitioner continued to remain attached with the Group Centre, C.R.P.F Bantalab, Jammu. The said order was not treated as compliance by the Delhi High Court and it is only thereafter respondents passed the order on 8th of October 2010 where under the suspension of the petitioner was withdrawn. Thereafter the petitioner continued to remain attached with the Group Centre, C.R.P.F Bantalab, Jammu. Where on 26th of May 2010, afresh copy of the enquiry report along with tentative disagreement note was served upon the petitioner through Deputy Inspector General, Group Centre, C.R.P.F, Bantalab, Jammu. Petitioner filed a representation dated 10th of June 2010, but respondents afresh passed order dated 20th of May 2011, paragraph 13 of which reads as under:- 13. NOW THEREFORE, in the light of above and having regard to all aspects of the case as well as considering the advice of the UPSC, the President considers that the ends of justice would be met in this case, if the penalty of COMPULSORY RETIREMENT is imposed on Shri P.S.Charak, Dy. Commandant, the C.O. The President hereby orders accordingly. A copy of the advice of UPSC Letter no. F.3/231/2010-SI dated 25/3/2011 is also enclosed. 8. Thereafter vide order dated 24th of May 2011 based on the aforesaid order dated 20th of May 2011, show-cause notice has been issued where under the petitioner has been asked to show-cause as to why action as proposed in paragraph No. 8 (i) to (iii) should not be taken by the competent authority. Paragraph 8 (i) to (iii) of the said show-cause notice reads as under:- i) 50% (Fifty percent) pay and allowances i.e not less than subsistence allowance and other allowances admissible under FR-53, will be paid to Shri P.S.Charak Dy Comdt w.e.f 28/2/1998 (i.e. from the date of compulsory retirement) to 17/5/2010 (i.e. date of rejoining duties). ii) The period w.e.f 28/2/1999 (i.e. date of compulsory retirement to 01/12/2009 (i.e. one day prior to date of judgment) will be treated as period not spent on duty (non duty) as per GOI order No. 3 below FR-54 (B). iii) The period w.e.f 02/12/2009 (i.e. date of judgment) to 17/5/2010 (i.e. date of joining on re-instatement) will be treated as duty for all purposes. 9. Aggrieved by the order dated 20th of May 2011 and show- cause notice dated 24th of May 2011, instant Writ Petition has been filed. Hence, the second round of litigation. 10. iii) The period w.e.f 02/12/2009 (i.e. date of judgment) to 17/5/2010 (i.e. date of joining on re-instatement) will be treated as duty for all purposes. 9. Aggrieved by the order dated 20th of May 2011 and show- cause notice dated 24th of May 2011, instant Writ Petition has been filed. Hence, the second round of litigation. 10. Learned counsel appearing for the petitioner with all humility at their command projected that the order under challenge dated 20th of May 2011 is vindictive. The respondents were given opportunity by the Hon’ble High Court of Delhi to proceed, if they so choose, from the stage of recording note of disagreement in accordance with law and as such, the disciplinary authority had to re-consider the report of the enquiry authority and in case of agreement, the matter would end otherwise in case of disagreement, the Disciplinary Authority would issue a fresh show-cause notice and while doing so, were to keep into account the decision of the Hon’ble Supreme Court in Yoginath s case as referred above. The response of the petitioner was also to be considered and then were to pass fresh orders. 11. The Disciplinary Authority again after considering the report of the enquiry officer has disagreed with the report of the enquiry authority and has recorded the reasons for disagreement as reflected in the order dated 20th of May 2011 and thereafter show-cause notice dated 24th of May 2011 has been issued. 12. Now the question, which emerges for consideration is as to whether Disciplinary Authority has complied with the requirement of Rule 15 (2) of the CCA Rules, 1965 where under the Disciplinary Authority in case of disagreement is required to record its own tentative reasons for disagreement. 13. The reasons for disagreement have been recorded. Now the question is as to whether the reasons, so recorded, are tentative or final in its operation? In case it will appear to be tentative, then the requirement of Rule is satisfied and same remains open for further consideration on the basis of the representation, as shall be filed by the petitioner in response thereto. In case the reasons recorded are not tentative, but final in its operation then, it can be termed again as derailment i.e., non-feasanc. Paragraph 10 of the order dated 20th of May 2011 provides the answer, which is quoted herein:- 10. In case the reasons recorded are not tentative, but final in its operation then, it can be termed again as derailment i.e., non-feasanc. Paragraph 10 of the order dated 20th of May 2011 provides the answer, which is quoted herein:- 10. AND WHEREAS, in compliance to Hon’ble High Court of Delhi judgment dated 02/12/2009 in which department was permitted to proced ahead with the disciplinary proceedings from the stage of reconsideration of inquiry report, the D.A re-examined the entire disciplinary proceedings and observed that the I.O has not analyzed prosecution witnesses/documents available on record properly. After thorough examination, the Disciplinary Authority held that articles of Charge I, II and III proved beyond doubt. Accordingly, fresh tentative disagreement note on IOs report served to the C.O through DIGP, GC, CRPF, Bantalab vide this Directorate letter dated 21/5/2010 with direction to submit his written reply within 15 days of receipt of the above communication. Meanwhile, said officer filed a Cont. case (c) No. 179/2010 against his suspension in Hon’ble High Court of Delhi and in compliance to High Court of Delhi judgment dated 16/8/2010 deemed suspension order of Shri P.S.Charak, Dy. Commandant was withdrawn vide Presidential order of even number dated 08/10/2010. [emphasis supplied] 14. Then in paragraph No. 11 of the said order, it is recorded that representation of the petitioner was considered and found un-satisfactory. 15. When the Disciplinary Authority, as referred above, has conclusively held that Charges (i), (ii) and (iii) are proved beyond doubt, then so called fresh tentative disagreement note and I.Os report served upon petitioner pales into insignificance because mind is already closed. Styling the disagreement note as fresh tentative disagreement note is simply a design to cover the position of Sub-Rule (2) of Rule 15 of CCA Rules otherwise in effect Disciplinary Authority has closed the matter by holding that charges are proved beyond doubt. It appears that the respondents in any case had to pass the adverse orders against the petitioner. The Hon ble High Court of Delhi while deciding the earlier Writ Petition has held that earlier disagreement note is not happily worded. Same is now repeated because it should not have been recorded that after thorough examination, the disciplinary authority held that articles of Charge (i), (ii) and (iii) are proved beyond doubt. The Hon ble High Court of Delhi while deciding the earlier Writ Petition has held that earlier disagreement note is not happily worded. Same is now repeated because it should not have been recorded that after thorough examination, the disciplinary authority held that articles of Charge (i), (ii) and (iii) are proved beyond doubt. Instead it should have been suggestive of the fact that prima facie or tentatively the Disciplinary Authority is satisfied with the articles of Charge are proved. 16. When the law provides manner, mode and method, same has to be followed in its spirit. When Rule 15 (2) of CCA Rules, 1965 provides that the Disciplinary Authority has to provide copy of the report together with its own tentative reasons for disagreement, then same has to be done in the same manner, instead of recording tentative reasons, the Disciplinary Authority has conclusively held that articles of Charge (I, (II) and (III) are proved beyond doubt, then their remains no scope for according open consideration to the representation/submission as shall be made in response to the show-cause notice by the Government employee. 17. While following the judgment rendered in Yogi Nath D. Bagde Vs. State of Maharashtra and another, reported in A.I.R 1999 SC 3734 as quoted by the Hon’ble High Court of Delhi in its judgment has held the same that when the Disciplinary Authority has made up its mind and concluded upon the issue and recorded positive findings against the delinquent employee, where remains the occasion for delinquent employee to respond. 18. While summing up, inescapable conclusion is that the Disciplinary Authority has again derailed at the stage of recording note of disagreement. Therefore, fate of this petition has to be the same as it was in the earlier round of litigation i.e., the position as has been noticed by the Hon ble High Court of Delhi in paragraph 26 of the judgment rendered in petitioner s Writ Petition, as quoted above. 19. Viewed thus, the Writ Petition succeeds. Therefore, fate of this petition has to be the same as it was in the earlier round of litigation i.e., the position as has been noticed by the Hon ble High Court of Delhi in paragraph 26 of the judgment rendered in petitioner s Writ Petition, as quoted above. 19. Viewed thus, the Writ Petition succeeds. The order dated 20th of May 2011 and show-cause notice as followed dated 24th of May 2011 are quashed, leaving it open for the respondents- authorities, if they so choose, to proceed afresh in the manner as was directed by High Court of Delhi i.e, as per paragraph 26 of the judgment, relevant portion of the said paragraph to be followed by the Disciplinary Authority reads as under:- 26. Since derailment had taken place at the stage of recording note of disagreement, we put back the train at the correct tract at said place i.e., we permit the respondents to proceed ahead in accordance with law. Needless to state, this would mean that whosoever is the disciplinary authority as of today would proceed to reconsider the report of the inquiry and if the said officer agrees with the report that would be the end of the matter failing which, if the officer opines not to agree with the report of the inquiry officer, would issue a fresh show cause notice and while doing so would keep into account the present decision and the decision of the Supreme Court in Yoginath s case [supra]. The response of the petitioner in said eventuality would be considered and fresh orders would be passed 20. Writ Petition is accordingly, disposed of along with all connected CMPs.