B.B.Gupta vs Union of India and others

The principal question that arises for consideration in this petition is: Whether the Disciplinary Authority is required to record reasons and grant

opportunity of being heard to the delinquent employee where such Authority differs from the findings of the enquiry officer in a departmental

enquiry and proceeds to award punishment on the basis of its own counter findings? The fate of the petition will ultimately turn on the answer to this

question and the ancillary issues raised by the parties would resultantly pale into insignificance.

Petitioner is an Executive Engineer in the Central Public Works Department and is due for promotion to the post of Superintending Engineer. He

was first issued a memo on 11.11.1983 charging him of certain lapses in the execution of some work in the Community Centre at Pachkuian Road,

New Delhi. He replied to the memo and denied the allegations made therein. After a year or so; a second memo dated 31.1.1985 was served on

him. This was accompanied by a charge sheet containing 7 Articles of charges and he was asked to submit his statement of defence within ten

days. He again denied the charges leading to the appointing of Shri S. Lahri and Enquiry Officer who submitted his report on 9.5.1989.

The Enquiry Officer found Articles I to V ""as factually proved"". Article VI as not established and Article VII ""as proved"". Petitioner represented

against the report and on consideration of the findings of the Enquiry Officer and on the recommendations of the Union Public Service Commission

(UPSC) the Disciplinary Authority held Articles II and IV to VII as proved and passed order dated 20.7.1993 withholding the increments of pay

of the petitioner for a period of three years without cumulative effect. Petitioner is aggrieved of this order and seeks its quashment besides other

ancillary reliefs like quashing of the charge sheet and the findings of the Enquiry Officer.

Petitioner's case proceeds on the grounds:

(i) that the order impugned suffers from nonapplication of mind as the Disciplinary Authority had failed to record any reason for its disagreement

with the findings of the Enquiry Officer and by returning his own findings; (ii) that the petitioner was denied an opportunity of being heard in respect

of the counter findings recorded by the Disciplinary Authority inasmuch as he was neither furnished a copy of the advice tendered by the UPSC

and the Vigilance Commissioner and was denied opportunity to represent against such findings as such the order impugned is violative of the

principles of natural justice; (iii) that the findings of the Enquiry Officer as well as the Disciplinary Authority are based on no evidence and could not

have formed a consideration for passing the order impugned; and (iv) that the inordinate delay in completing the enquiry in respect of an incident

which had allegedly taken place in 1982 vitiates the whole enquiry and the resultant impugned order.

Respondents, in their objections, have resisted the petition more on technical pleas. They have objected to the jurisdiction of this court on two

counts: viz. (i) that the matter was entertain able by the Central Administrative Tribunal, and (ii) that this Court had no territorial jurisdiction. It is

also submitted that the petitioner's writ petition deserved to be rejected as he had not availed of the remedy of review provided under Rule 29A of

the Central Civil Services (Classification, control and appeal) Rules, 1965 {hereafter 1965 Rules, for short). On merits it is submitted that the

impugned order had been passed in accordance with the provisions of the 1965 Rules, It is also claimed that the Disciplinary Authority had passed

the impugned order after applying its mind judiciously and on consideration of the representation made by the petitioner to the report of the Enquiry

Officer, the relevant record and the advice of the UPSC. It is denied that the petitioner was condemned unheard or that he was entitled to the copy

of advice tendered by the UPSC and the Disciplinary Authority. In this regard reliance is placed on Rules 32 of the 1965 Rules which requires the

supply of copy of the Commission's advice along with the copy of final order passed by the Disciplinary Authority.

Mr. Kohli, learned counsel for the petitioner laid a great stress on the obligation cast on the punishing Authority to give reasons in the event of its

disagreement with the findings of the Enquiry Officer. He contended that after the Enquiry Officer had held only Article W proved and had

specifically found Article VI ""as not established"", there was nothing before the Disciplinary Authority to hold unproved Articles of charges proved

in a counter finding and in case such finding had come out on the advice of the UPSC, the Authority was obliged to furnish a copy of the advice of

the UPSC to the petitioner to enable him to represent against the same. By not doing so, the Disciplinary Authority had denied opportunity of being

heard to the petitioner and had violated the principles of natural justice in the process. He derived support from Rules 15 (2) of the 1965 Rules and

also a number of judgments of the Supreme court and various High Courts including 1969 (1) SLR 657, AIR 1990 SC 1308, AIR 1988

SC1000,1991 (2) SLJ 447 and AIR 1991 SC 471.

Mr. Kohli also took me through some of the evidence recorded by the Enquiry Officer to show that the findings returned by him and the

Disciplinary Authority were not supported by any evidence. He also justified the filing of this petition before this Court on the plea that the

chargesheet had been served on the petitioner while he was serving in Jammu.

Mr. A.V. Gupta, learned counsel for the respondentUnion, submitted that the Disciplinary Authority was within its bounds to come to a contrary

conclusion than the one reached by the Enquiry Officer and was not bound by the report of the Enquiry Officer. According to him, the Disciplinary

Authority had not returned any counter findings but had only reached different conclusions on appraisal of evidence and appreciation of the existing

record and, therefore, there was no requirement for the Authority to record any reason or to allow any opportunity to the petitioner of making a

representation or of being heard. He referred and relied upon AIR 1988 SC 1000, AIR 1974 SC 1589 and AIR 1964 SC 364.

Considering the fact that the matter was agreed to be disposed of by the parties at the admission stage and that the detailed arguments were

addressed for and against, it becomes unnecessary to dilate on the jurisdictional pleas raised by the respondents. Suffice it to say that it has already

been held by this court that the Central Administrative Tribunals Act does not oust its jurisdiction to entertain the petitions filed by the central

Government employees. As regards the territorial jurisdiction, there is no denial to the fact that charge sheet was served on the petitioner when he

was serving in Jammu. This by itself should be enough to meet the jurisdictional objection. The plea of alternate remedy of review under Rule 29

also cannot be allowed to come in the way at a stage when the matter had been agreed to be heard for final disposal.

Coming to the brasstacks there can be no quarrel with the proposition that the powers of the Disciplinary Authority are not circumscribed by

the report or recommendation of an Enquiry Officer in a departmental enquiry. The Authority is neither bound by such report or recommendation

nor is barred from deviating from the same and coming to a contrary conclusion. It is, indeed, for the punishing Authority to propose and award

punishment and to pass appropriate orders in this regard after appraisal of evidence and the material on record. This position is established by a

catena of authorities. (See AIR 1969 SC 966, AIR 1964 SC 864, AIR 1962 SC 1131 and AIR 1977 SC 567).

But the matter does not rest at that. In this era of substantial justice when every disciplinary action is tested on the touchstone of the principles

of natural justice irrespective of whether it falls squarely within the parameters of Art.311 of the Constitution, it becomes necessary to examine

whether the Disciplinary Authority is required to observe the principles of natural justice and record reasons in a case where such Authority

records its own findings overriding the findings of the Enquiry Officer on the basis of the same evidence and material or some additional material. In

my view, in such a case, principles of natural justice would be surely attracted and by saying so I am only restating the known position. The reason

is not far to seek.

It does not appeal to any reason that a delinquent should be held guilty on a finding or a material of which he had no knowledge. If such

material is not put to him, can it be said that he had the opportunity to address the mind of the Disciplinary Authority and to persuade him to come

to a contrary conclusion.

13 Situations are conceivable where a delinquent employee is found to be blameless by the Enquiry Officer and is exonerated and yet the

Disciplinary Authority, not bound by the report/recommendation of the Enquiry Officer, proceeds to punish him on recording its own findings. In

such a case chance of making errors or omissions by the Disciplinary Authority could not be ruled out. It appears to me unreasonable and illogical.

Should the delinquent be not afforded an opportunity before 'the Authority records a finding of guilt against him and acts on a material with which

he was not confronted with and at his back. I am fortified to take this view by a number of judgments and a particular reference in this regard

deserves to be made to a judgment of the Supreme Court reported in 1969 (3) SLR 657, holding as under:

Now if the Conservator of Forests intended taking the charges on which he was acquitted, into account, it was necessary that attention of the

appellant ought to have been drawn to this fact and his explanation, if any, called for. This does not appear to have been done. In other words, the

Conservator of Forests used against him the charges of which he was acquitted without warning him that he was going to use them. This is against

all principles of fairplay and natural justice. If the Conservator of Forests wanted to use them, he should have apprised him of his own attitude and

given him an adequate opportunity. Since that opportunity was not given, the order of Conservator of Forests modified by the State Government

cannot be upheld. We accordingly set aside the order........

In the case (Supra) the Punishing Authority had differed from the findings recorded by the Enquiry Officer in similar circumstances. The fact that

delinquent was ordered to be dismissed from service in this case would not dilute the principle enunciated by the Apex Court.

This position is buttressed by the Supreme Court in Union of India V.E. Bashyar {AIR 1988 SC 1000), observing thus:

The question is whether it is the right of the delinquent to persuade the Authority which makes up its mind as regards the guilt of the delinquent

that such a finding is not warranted in light of the report of the Enquiry Officer. It would be startling proposition to advance that the only Authority

which really and actually holds a delinquent guilty need not afford any opportunity to the person against whom such finding of guilt is recorded and

the material on which he acts......

As regards the recording of reasons by the Disciplinary Authority, while returning a counter finding overriding the finding of the Enquiry Officer,

there can be no two opinions that the Authority is obliged to do so both in tune with the spirit of the rules and also for the sake of fairness and

fairplay. Rule 15{2)of the 1965 Rules leaves no room for doubt in this regard. It provides that if a Disciplinary Authority disagrees with the findings

of the Enquiring Authority on any Article of charges, it shall record reasons for such disagreement and record its own findings if the evidence on

record is sufficient for the purpose. The relevant rule is reproduced hereunder:

(1) xx xx xx xx xx (2) The disciplinary Authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record

its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose.

The Disciplinary Authority must advance some reason in this regard for the added requirement to show the proper application of mind or else the

order passed by such Authority would always be treated to be a routine order without any application of mind. {See 1991 (2) SLJ (CAT) 447). A

cursory glance at the order impugned would show that it is bereft of any reasons and to that extent runs counter to the provisions of Rule 15 (2)

(Supra) and becomes liable to be quashed.

In light of the foregoing discussion I hold that the Disciplinary Authority is obliged to grant an opportunity of being heard compatible with the

principles of natural justice to the delinquent employee in a case where such Authority differs or disagrees with the finding of the Enquiry officer in a

departmental enquiry and proceeds to pass an order of punishment on the basis of its own findings arrived at on the same material and evidence or

some additional material. A duty is also cast on such Authority to record reasons while returning such counter finding and overriding the finding of

the Enquiry officer under the mandate of Rules 15(2) and otherwise to show proper application of mind and f airplay.

Applying this to the present case, it does not require any research to discover that the Disciplinary Authority had reversed the finding of the

Enquiry officer and returned its own finding by holding certain articles of charges as proved. For instance, it had held charge VI proved which had

been held "" Not established"" by the Enquiry officer. Similarly it had as good as reversed Articles D and IV to VI. While doing so it had not given

reason or confronted the petitioner at any stage which is unsustainable in law.

Another aspect of the matter is that the Disciplinary Authority had done so on agreeing with the finding/recommendation of the UPSC. In other

words, it appears that the Authority had relied upon the findings and the recommendations of the UPSC of which the petitioner had no knowledge.

It is not known whether such findings and the recommendations of the UPSC had been reached on the basis of evidence and the material which

was before the Enquiry Officer or on some extra and extraneous material. The position becomes worse if the findings/ conclusions were arrived at

on the basis of some extra and extraneous material. In any case, so long such findings and recommendations were made at the back of the

petitioner and outside his knowledge without confronting him of the basis/material in support thereof, the same would not constitute any basis for

awarding punishment to him because it would tantamount to condemning him unheard. Had such basis/material been disclosed to him, he could

have certainly made an effort to appeal to the mind of the Disciplinary Authority and persuaded it to come to a different conclusion. All this was

admittedly not done in the present case leading to the inescapable conclusion that the petitioner was denied a reasonable opportunity of being

heard in respect of the new findings held by the Authority as proved against him. The course adopted contravenes all norms of fairplay and natural

justice and vitiates the order impugned. Since the impugned action Is liable to be quashed on this ground alone, it becomes futile to hold whether

the Disciplinary Authority was bound to supply a copy of the advice tendered by the UPSC to the petitioner.

The impugned order is also liable to be quashed on the ground of inordinate' delay caused in completing the enquiry against the petitioner. The

respondents have taken more than ten years in completing the enquiry and awarding punishment against him in respect of an incident which is said

to have taken place way back in 1982 and have not furnished any explanation for this. It is by now well settled that any inordinate delay caused in

holding and completing the enquiry against a delinquent official amounts to punishment and results in vitiating the action against him. The present

case also falls in this bracket and is no exception.

The result is that this petition succeeds and is accordingly allowed. The order dated 20.7.1993 directing withholding of three increments of pay

of the petitioner without cumulative effect, is quashed.

Responding to the last minute prayer of Mr. Kohli, learned counsel for the petitioner that petitioner's promotion to the higher post of

Superintending Engineer was being deliberately delayed and withheld by the respondents on one pretext or the other, it is observed and hoped that

he shall be considered for promotion to the higher post in accordance with rules without any further delay.

This also disposes of the connected CMPs.