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2013 DIGILAW 487 (JHR)

Nitya Nand Sinha v. Government of India

2013-04-11

APARESH KUMAR SINGH

body2013
JUDGMENT Aparesh Kumar Singh, J. Heard counsel for the parties. 2. The punishment of withholding of two increments coupled with censure and warning has been being imposed upon the petitioner by order dated 27.8.1992 passed by the respondent no.3, Chairman, Board of Governors, National Institute of Foundry and Forge Technology, vide Annexure17 to the writ petition. Apart from that by the impugned order it has been held that the petitioner will not be entitled to salary for the period of suspension and the said period will be treated as punishment for all purposes and will not be treated as period spent on duty. 3. The petitioner was working as an Administrative officer in respondentNational Institute of Foundry and Forge Technology (hereinafter referred to as “NIFFT”). He was proceeded on the basis of a chargesheet alleging misconduct, vide Annexure3 dated 26.4.1991, which was preceded by a show cause notice dated 11.2.1991 alleging violation of “NIFFT Employee's (Conduct) Rules” No.3(a) and Rule No.11 for having failed to maintain his integrity and passing wrong information without any authority to a dismissed employee of the Institute. The petitioner has responded by way of reply on 15.3.1991, Annexure2, which was not accepted and the chargesheet was issued, as indicated hereinabove on 26.4.1991. The charges are that “he deliberately with a view to causing harm, harass and disrepute to the Institute and also disruption of the Institute's normal work dishonestly and with malafide intention in collusion with Sri Deepak Diwanjee, a terminated employee of the institute, has created a document to wit a “notesheet” purported to be dated September, 12, 1989 being No. NIFFT/AO3/88 though such notesheet was never written to the Director and with such intention he passed over the said fabricated notesheet or copy thereof to Sri Deepak Diwanjee”. 4. The petitioner thereafter furnished his show cause vide Annexure 4 dated 6.5.1991. Vide Annexure 5, the order dated 19.6.1991, the Inquiry Officer Dr. K.M.Khanna, Professor and Head, Department of Materials Science of the Institute , was appointed to inquire into the truth of the charges leveled against the petitioner and he was placed under suspension with immediate effect. On 25.6.1991 the petitioner made a request for change of the enquiry officer, vide Annexure 6 giving reasons for his apprehension of likelihood of bias against the said enquiry officer. On 25.6.1991 the petitioner made a request for change of the enquiry officer, vide Annexure 6 giving reasons for his apprehension of likelihood of bias against the said enquiry officer. He again represented vide Annexure 7 dated 26.7.1991 in the nature of appeal for revocation of his suspension. In the meantime, a confidential information was sent by said Mr. K.M.Khanna, which is contained in Annexure 7A, dated 12.8.1991 to the Director, Ministry of Eduction, Government of India, wherein it was alleged statements were made in relation to said Mr. Khanna by the petitioner that he has given false information about his assignment at IIT Kharagpur to create confusion about his position. The petitioner had removed a letter from his personal file that had contained the forwarding of his application to UNESCO to show that he had gone on leave without permission. Allegations were made against the petitioner by Mr. Khanna that he has been tampering many records, sending back dated letter and indulging in irrelevant communications, which should be dealt with, as it is a serious matter. It is further alleged that Mr. N.N.Sinha, the petitioner, has been indulging in character assassination of people in authority and has been inciting employees to indulge in violence. Instead of properly guiding the employees, he has been misguiding them and a few employees have indulged in indiscipline due to his nefarious activities and, therefore, such an employee should not be allowed to continue in service of the Institute. 5. The petitioner, it is said, was informed by a letter dated 18.11.1991, Annexure-9, that his request for change of enquiry officer has been refused by the Chairman, Board of Governors, NIFFT and thereafter inquiry officer proceeded asking the petitioner to appear on 23.12.1991 at 10 AM, vide communication as contained in Annexure-10 dated 10.12.1991. However, the petitioner once again made a representation vide Annexure-11 dated 20.12.1991 to postpone the inquiry proceeding in abeyance as he had made an appeal against the order of suspension. By Annexure-12 dated 3.1.1992, the petitioner was informed by the respondents that his appeal or revision can only be considered after conclusion of the inquiry and submission of report by the inquiry officer, who has been so appointed. By Annexure-12 dated 3.1.1992, the petitioner was informed by the respondents that his appeal or revision can only be considered after conclusion of the inquiry and submission of report by the inquiry officer, who has been so appointed. According to the petitioner, he was served with a second show cause notice on 12.3.1992 asking him to reply to the proposed punishment of dismissal from service for the charges said to have been established on evidence as found in the inquiry report. The petitioner by his representation dated 24.3.1992 furnished his reply to the second show cause and again on 25.8.1992 furnished another representation on the question of revocation of suspension initiated by a departmental inquiry against him. However, the petitioner was allowed personal hearing on 25.8.1992 before the Chairman, NIFFT and, thereafter, the order of punishment has been passed on 27.8.1992 imposing punishment, which is under challenge in the present writ petition. 6. The grounds of challenge on behalf of the petitioner are that the entire enquiry conducted by Dr. K.M. Khanna, the Inquiry Officer, is vitiated on the ground of real likelihood of bias as not only the petitioner has expressed his apprehension of bias against the Inquiry Officer by communication as contained in Annexure6 dated 25.06.1991 giving specific instances and reasons for his apprehension but the Inquiry Officer Mr. Khanna himself has, during the course of inquiry, vide Annexure7A dated 12.08.1991, expressed his allegations against the petitioner citing various reasons. Secondly, it is the contention of the petitioner that the Inquiry proceeding has been conducted in an exparte manner and proceeded without giving due opportunity of hearing to the petitioner except one date i.e. 23.12.1991. Counsel for the petitioner has also challenged the impugned punishment on the ground that it suffers from serious error of law as the inquiry report said to be submitted on 7.2.1992 itself as per the stand of the respondents, was not furnished to the petitioner when the second show cause notice was issued on 12.03.1992. In absence of same he was precluded from furnishing a proper reply. It is submitted on his behalf that on perusal of the impugned order of punishment itself it would appear that it is recorded therein that the inquiry report has been served upon him on 25.08.1992 before personal hearing granted to him. In absence of same he was precluded from furnishing a proper reply. It is submitted on his behalf that on perusal of the impugned order of punishment itself it would appear that it is recorded therein that the inquiry report has been served upon him on 25.08.1992 before personal hearing granted to him. Learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in the case of P. Seshadri Vs. S. Mangati Gopal Reddy, reported in 2011(2) PLJR 131 (SC) at Paragraph 27 in support of his submission that even the appellate authority, who rejected the appeal, has done so in a cryptic manner without giving the specific ground as contained in the memo of appeal, which vitiated the appellate order as well. Learned counsel for the petitioner has also relied upon a judgment of the Hon'ble Supreme Court in the case of Kulwant Singh Gill Vs. State of Punjab, reported in 1991Supp. (1) SCC 504 in order to submit that withholding of increments for two years also amounts to major punishment. However, in the instant case as would appear, the punishment of withholding of two increments is not with cumulative effect though originally the petitioner was proceeded against for major misconduct and even the second show cause was issued with the proposed penalty for dismissal from his service. Counsel for the petitioner has also relied upon the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Saroj Kumar Singh, reported in 2010(2) SCC 772 , at paragraphs 27 to 30 thereof, in support of his submission that the Inquiry Officer acting in a quasi judicial authority is an independent adjudicator and is not supposed to be a representative of the department or government. The Inquiry Officer has to be wholly unbiased and the rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done and the delinquent employee is treated fairly in the proceeding which may culminate in imposition of punishment against him. 7. In the present case, according to the petitioner, the Inquiry Officer himself has disclosed his mind showing real likelihood of bias against the petitioner in citing specific instance and, therefore, the inquiry report is vitiated on the ground of bias against the petitioner. 8. Learned counsel for the respondent nos. 7. In the present case, according to the petitioner, the Inquiry Officer himself has disclosed his mind showing real likelihood of bias against the petitioner in citing specific instance and, therefore, the inquiry report is vitiated on the ground of bias against the petitioner. 8. Learned counsel for the respondent nos. 1 and 2, the Union of India as also respondent nos. 3 to 5 being the authorities of the National Institute of Foundry and Forge Technology, Ranchi have, on the other hand, justified the impugned order of punishment passed against the petitioner, inter alia, on the following grounds. According to Mr. Rajeev Ranjan, learned counsel for the respondent nos. 3 to 5, the petitioner has been imposed with a minor penalty for violation of Rule 11 for having made unauthorized communication of information to a dismissed employee, which should not be done by a responsible employee of the institute. He refers to the rules in this connection, which are annexed as Annexure A to the counter affidavit of the respondent nos. 1 and 2 i.e. the Discipline and Appeal Rules, applicable to the employees of NIFFT. 9. Learned counsel for the respondents submits that the petitioner had expressed his apprehension of bias against the Inquiry Officer by making a representation which the disciplinary authority did not find it justified to change the Inquiry Officer. The petitioner, however, refrained from participating in the inquiry proceeding simply after making such a representation and the inquiry proceeded at a number of dates in absence of the petitioner though notice of such inquiry was available to him on 19.06.1991, 20.06.1991, 24.06.1991, 28.06.1991, 03.10.1991, 22.10.1991 and finally on 10.12.1991. On these dates the petitioner chose of his own not to appear before the Inquiry Officer. It is the contention of the respondents that simply making a representation for change of Inquiry Officer does not mean that the delinquent is not required to participate in the inquiry proceeding . Learned counsel for the respondents in respect of the communication as contained in Annexure 7A issued by the Inquiry Officer on 12.08.1991 submits that they are independent and not connected with the charges levelled in respect of misconduct of the petitioner. Learned counsel for the respondents in respect of the communication as contained in Annexure 7A issued by the Inquiry Officer on 12.08.1991 submits that they are independent and not connected with the charges levelled in respect of misconduct of the petitioner. Learned counsel for the respondents submits that the petitioner has been given an inquiry report on 14.08.1992 and he has also submitted his representation after receipt of the same on 25.08.1992, when on his request the disciplinary authority had granted him opportunity of personal hearing. It is submitted that the misconduct of the petitioner was serious enough but he has been awarded with a minor punishment of withholding of two increments only taking a lenient view. In these circumstances, learned counsel for the respondents submits that the inquiry report does not suffer from any likelihood of bias or any violation of the principle of natural justice as the petitioner had himself absented from participating in the inquiry proceeding and further the order passed by the disciplinary authority has been done after furnishing of inquiry report to the petitioner to which he has himself represented before passing of the impugned order. Learned counsel for the respondents, therefore, submits that no interference is required in the impugned order of punishment. 10. I have heard learned counsel for the parties at length and gone through the relevant materials on record as well as the impugned order. The petitioner admittedly was proceeded for a charge of major misconduct vide charge sheet as contained in Annexure 3 dated 26.04.1991. He made a representation for change of the Inquiry Officer on 25.06.1991 giving the ground of his apprehension of bias. According to him, as per Annexure 6, the petitioner had made comments on earlier occasion in respect of the past service of the Inquiry Officer in the matter of not sending his application to Dibrugarh University from I.I.T Kharagpur as required under the CCS Pension Rules. The petitioner has alleged that even the I.I.T Kharagpur has informed that they have never forwarded any application to Dibrugarh University and comment to this effect was brought to the notice of Director vide his confidential note dated 03.09.1990. Thereafter, according to the petitioner Mr. Khanna had threatened him for revengeful action in future. The report submitted by the petitioner through the Senior Administrative Officer regarding the pension of Mr. Thereafter, according to the petitioner Mr. Khanna had threatened him for revengeful action in future. The report submitted by the petitioner through the Senior Administrative Officer regarding the pension of Mr. Khanna was enclosed as Annexure 1 to the said letter. On the request for grant of increments to Mr. Khanna for the period of his extraordinary leave without pay spent on his foreign job of assignment the petitioner gave his comments according to which he was not entitled to get increments in accordance with the Fundamental Rules 26(b)(ii) and Rule 21 of the CCS (Pension) Rules 1972 for the periods of his absence on extraordinary leave without pay. This comment, according to the petitioner, has annoyed Mr. Khanna. According to the petitioner, he has also given instances where Mr. Khanna wanted pension for the period of his service rendered at Swaziland in which case he had made comments that Mr. Khanna has to deposit the money to the Institute as pension contribution for the period of his employment abroad as required under Fundamental Rules 115(a) and Fundamental Rule 116 in order to get the settled benefit as per the Pension Rules. These instances, according to the petitioner, had created hostility in the mind of Dr. Khanna and as such he did not expect fair inquiry by the said Inquiry Officer. Accordingly, he prayed for change of the Inquiry Officer. 11. In the midst of the inquiry proceeding the Inquiry Officer himself issued a confidential comment to the Director of NIFFT which is contained as Annexure 7A in which Dr. Khanna has conveyed his personal views that the petitioner has been tampering with official records and giving false information. Dr. Khanna has also alleged in the said confidential note that the petitioner has been indulging in character assassination of people in authority and has been inciting employees. In fact, after making such allegations Mr. Khanna has gone to the extent recommending that such employee should not be allowed to continue in service of the Institute. It, however, appears that the petitioner did not participate in the said inquiry which was held at the relevant period from June, 1991 to December, 1991 except on one date 23.12.1991. 12. In fact, after making such allegations Mr. Khanna has gone to the extent recommending that such employee should not be allowed to continue in service of the Institute. It, however, appears that the petitioner did not participate in the said inquiry which was held at the relevant period from June, 1991 to December, 1991 except on one date 23.12.1991. 12. From perusal of Annexure 7A itself, it would appear that the Inquiry Officer made serious charges against the petitioner during course of inquiry giving instances of the petitioner having made certain allegations against the Inquiry Officer earlier as also in relation to tampering with official records. The same person was appointed as Inquiry Officer and the aforesaid comments made by him are enough to indicate that the petitioner was justified in having apprehension of real likelihood of bias by the Inquiry Officer during the course of inquiry proceeding. 13. The petitioner did not participate in the inquiry proceeding in between all dates except of one date. The inquiry proceeding was conducted against the petitioner and inquiry report, as stated by the respondents, was submitted on 7.2.1992. The petitioner, however, was served with a second show cause notice on 12.03.1992 without the inquiry report attached to it as it appears from the submission of the respondents themselves that the inquiry report was served upon him on 14.08.1992 about 13 days prior to the passing of the impugned order on 27.08.1992. The impugned order also refers that the petitioner had been served inquiry report before personal hearing granted to him on 25.08.1992. 14. The impugned order has, however, been passed by the disciplinary authority imposing minor punishment, which are withholding of two years increments as also censure and warning as also that the period of his suspension shall be treated to be a period of punishment during which he would not be entitled for any full salary, apart from subsistence allowance. 15. In the aforesaid facts and circumstances and the reasons as recorded hereinabove, it, therefore, appears that the instant case is one where the inquiry proceeding suffers from real likelihood of bias of the Inquiry Officer and, therefore, the inquiry proceeding itself is vitiated in law as well as on facts. 15. In the aforesaid facts and circumstances and the reasons as recorded hereinabove, it, therefore, appears that the instant case is one where the inquiry proceeding suffers from real likelihood of bias of the Inquiry Officer and, therefore, the inquiry proceeding itself is vitiated in law as well as on facts. It further appears that in absence of inquiry report the petitioner had been asked to file reply to the second show cause notice for imposing penalty of dismissal form service, which does not fulfill the proper procedure as laid down for conduct of departmental proceedings. 16. In these circumstances, the impugned order imposing the aforesaid punishment, though minor on the basis of a full dress inquiry, cannot be sustained in law as well as on fact and it is, accordingly, quashed. 17. It is informed that the petitioner has since retired from service about 7 years back, in such circumstances it would be futile to remand the matter to the respondents to conduct a fresh departmental proceeding against the petitioner. 18. In such circumstances, while quashing the impugned order of punishment in the departmental proceeding, it is directed that the petitioner would be entitled to the benefit of two increments which were withheld pursuant to the impugned order of punishment during his service and such arrears of salary due thereupon should be paid to him within a period of 12 weeks from the date of receipt/production of a copy of this judgment. This writ petition stands allowed.