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Uttarakhand High Court · body

2016 DIGILAW 416 (UTT)

Union of India v. Central Administrative Tribunal

2016-08-01

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. Petitioners challenge the order of the Central Administrative Tribunal, Allahabad Bench Circuit sitting at Nainital passed in Original Application No. 1334 of 2012 filed by the second respondent. The second respondent (hereinafter referred to as ‘the applicant’) was initially appointed as a Clerk in the Accountant General Office and, later on, he was promoted as an Auditor and still further, as a Senior Auditor. He was working in the Administrative Section. A departmental proceeding was launched against him for the charge that there was an illegal and unauthorized audit of six offices of the Forest Department of Uttarakhand done by certain officers including the applicant. There is also the case that an F.I.R. was registered by the C.B.I. (Annexure No. 1). Annexure No. 2 is the charge-sheet in the case registered by C.B.I. It is the case of the petitioners that, after preliminary inquiry, one A.K. Sharma, Senior Audit Officer and another were placed under suspension. On 05.03.2010, Sri A.K. Sharma named the applicant alongwith another as his accomplices in the unauthorized audit. Applicant was placed under suspension on 05.03.2010. After framing charges, inquiry was conducted. On the basis of the report (Annexure No. 6), the applicant was dismissed by order dated 03.11.2011. The departmental appeal was unsuccessful. Thereafter, the applicant approached the Tribunal. By the impugned order, dismissal order as well as the appellate order was quashed and the respondents were directed to take the applicant back in service within one month and to pay all consequential benefits considering him as not dismissed from service. However, it was made clear that the findings of the judgment shall not affect the proceedings pending against the applicant in the C.B.I. Court. 2. We heard Mr. Rajnish Kumar Rai, learned counsel appearing for the petitioners and Mr. N.S. Pundir, learned counsel for the second respondent. 3. The Tribunal, by the order, actually, finds, inter alia, that the Inquiry Report reveals that the opinion of an expert person familiar with the handwriting of the charged official was sought by the Inquiry Officer from the Disciplinary Authority on the documents supplied by the charge-sheet i.e. rough notes etc. alleged to have been prepared by the applicant during the said audit, but no such opinion was provided to the Inquiry Officer. It is only on the basis of statement of one witness, namely, Mr. alleged to have been prepared by the applicant during the said audit, but no such opinion was provided to the Inquiry Officer. It is only on the basis of statement of one witness, namely, Mr. Ramesh Chandra Uniyal that the applicant was found guilty by the Inquiry Officer. When a question was put to Mr. Uniyal as to whether he could recognize the persons who conducted the unauthorized audit, the witness replied that he could try to recognize them. Thereafter, the Tribunal noticed that when the Presenting Officer pointed towards the charged official and asked the witness whether he was amongst the audit party, the witness replied th gkW ogh yx jgsa gS^^ translated as “yes, he appears to be the same”. The Tribunal noticed that this is the only evidence against the applicant, which was considered sufficient by the Inquiry Officer. The Tribunal finds, thereafter, considering the circumstances, that the opinion of an expert person familiar with the handwriting of the charged official was not provided and signatures of the applicant are available on the attendance register on 17.09.2012 and 18.09.2012 duly countersigned by the Senior Account Officer (both sides agreed that it should be read as 17.12.2009 and 18.12.2009). It is to be noted that this is on the basis of the case of the applicant that actually, the applicant was working in the Office on these two dates and the unauthorized audit was alleged to have been conducted between 17.12.2009 till 24.12.2009. The applicant was charged having conducted the unauthorized audit from 17.12.2009 to 24.12.2009. The Tribunal also relied on the prescription dated 21.09.2012 of the Primary Health Center, Chamoli (it is pointed out by the learned counsel for the applicant that it is actually 21.12.2009). This is for the reason that the applicant had the case that he was unwell and he attempted to prove this by relying on the prescription given by the doctor to show that, on 21.12.2009, he was unwell and he had been on leave and he was at Chamoli; whereas the audit was conducted at Uttarkashi. This is for the reason that the applicant had the case that he was unwell and he attempted to prove this by relying on the prescription given by the doctor to show that, on 21.12.2009, he was unwell and he had been on leave and he was at Chamoli; whereas the audit was conducted at Uttarkashi. On this basis, it was found that, by no stretch of imagination, the applicant could be found guilty of conducting unauthorized audit at Uttarkashi between 17.12.2012 to 24.12.2012 (again, which is a mistake as submitted by the learned counsel and it should have been 17.12.2009 to 24.12.2009), as neither any exact date of audit was alleged in the charges nor any document was produced during the course of inquiry, which could indicate that the applicant had made any rough notes in respect of the said unauthorized audit. It was found that the cursory statement of an employee of the Forest Department saying that the applicant could have been a member of said audit team is not enough to hold the applicant guilty for conducting such unauthorized audit. It is substantially on this reasoning that the Tribunal has interfered with the order. 4. Learned counsel for the petitioners would submit that this is a case, where there is a preliminary inquiry and there were three witnesses. In fact, there is also material to show that the applicant had gone and stayed in a hotel at Uttarkashi under an impersonated name and there is also evidence in the form of the Forensic Report regarding the rough notes, which the applicant had made as part of the unauthorized audit team. He would submit that even if there is something wrong in the Tribunal’s order and if Court finds that the inquiry was vitiated for some reason, the proper course should have been to leave it free to the authority to conduct a fresh inquiry. 5. Per contra, learned counsel for the applicant would, of course, submit that this is a case where the applicant had evidence in the form of his having signed on two dates, namely, on 17.12.2009 and 18.12.2009. 5. Per contra, learned counsel for the applicant would, of course, submit that this is a case where the applicant had evidence in the form of his having signed on two dates, namely, on 17.12.2009 and 18.12.2009. Therefore, he could not possibly have been in Uttarkashi, when he was actually working at Dehradun and, of course, on 21.12.2009, there was material in the form of prescription by the doctor indicating that he was not keeping well and the applicant was on leave from 21.12.2009 to 24.12.2009 in connection with the repair work of his house at Chamoli. Learned counsel for the applicant would also point out that the preliminary inquiry was conducted by an officer of the similar rank as that of Mr. A.K. Sharma. 6. This is a case where there is no doubt that there was evidence in the form of statement of one witness, who was one of the three witnesses in the preliminary inquiry, where he has identified the applicant as one of the officer, who conducted the illegal, unauthorized audit of the Forest Department. No doubt, the Tribunal has proceeded to take the view from his manner of identifying the applicant that he may not be reliable. No doubt, Mr. N.S. Pundir, learned counsel for respondent no. 2 / applicant would submit that he was not allowed to cross-examine that statement, which is disputed by the learned counsel for the petitioners. 7. Whatever that be, we would think that in the circumstances of this case, since the inquiry has been set-aside for certain defects, which included non-examination of any other witness except one of the witnesses, whose statement was found to be not reliable, and in view of not making available the Forensic Report relating to the rough notes, we would think that the Tribunal should have left it open to the authority to conduct a fresh inquiry wherein whatever defect was there, the same could be removed. 8. In such circumstances, we are inclined to set-aside the order of the Tribunal and permit the petitioners to conduct a fresh inquiry against the applicant. 9. Accordingly, we set aside the order passed by the Tribunal and permit the petitioners to conduct a fresh inquiry against the applicant. The orders passed by the disciplinary authority and the appellate authority will also stand set aside. 9. Accordingly, we set aside the order passed by the Tribunal and permit the petitioners to conduct a fresh inquiry against the applicant. The orders passed by the disciplinary authority and the appellate authority will also stand set aside. Since the purpose of permitting the petitioners is to rely on materials, which they have not produced in the original inquiry, if they intend to rely on any document or witnesses, they will serve a list of the witnesses or the documents on the applicant and proceed with the matter in accordance with law. In case of non-availability of the original Inquiry Officer, it will be open to the petitioners to appoint another Inquiry Officer and, if the petitioners intend to conduct an inquiry, the proceedings will be commenced within one month from the date of receipt of a certified copy of this judgment. The inquiry shall be completed within a period of six months from the date of receipt of the copy of this judgment. If proceedings are not taken within one month, the applicant will be reinstated, as directed by the Tribunal with full consequential benefits. If, within one month, the proceedings are commenced, as aforesaid, it will be open to the petitioners to place the applicant under suspension as per law. In case in the inquiry, which is proposed to be held by the petitioners, it is found that the applicant is blameless and exonerated, necessarily, the applicant will be reinstated with full consequential benefits. We make it clear that it will not be necessary to issue fresh charge-sheet against the applicant in the inquiry and they can proceed on the basis of the charge-sheet, which is already issued. 10. The writ petition is, accordingly, disposed of.