Munna Lal vs Union Of India & Ors

Om Prakash VII, Member (J)

This O.A. has been filed by the applicants U/s 19 of the AT Act, with the following reliefs:-

i) to issue a suitable order and direction to call for record and set aside orders dated 13.5.2008 and 8.3.2010 (Annexure No. A-1 and A-2).

ii) to issue a suitable order or direction to the respondents to reinstate the applicant in service forthwith with all consequential benefits.

iii) to issue any other further direction as this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

iv) Award cost of the application to the applicants.

The facts emerges from the O.A. are that applicant while working as SPM, IFFCO Town Ship Bareilly was suspended and served a charge sheet dated 20.1.2006. Enquiry Officer was appointed who completed the enquiry without following the rules and submitted enquiry report on 17.4.2008. Applicant filed representation dated 12.5.2008 against the enquiry report. Disciplinary authority imposed the penalty upon the applicant for dismissal from service vide order dated 13.5.2008. Applicant submitted appeal dated 22.5.2008 which was rejected by the Appellate Authority vide order dated 8.3.2010.

Counter Reply has been filed by the learned counsel for respondents, in which it is stated that the case relates to misappropriation of Govt. money from SB/RD/TD accounts to the tune of Rs. 4,57,739/- by the applicant. The applicant was charge sheeted vide order dated 20.1.2006 under Rule 14 CCS (CCA) Rules, 1965. Enquiry Officer was appointed who submitted its report on 17.4.2008 and as per inquiry report, the applicant did not attend inquiry proceeding on 21.3.2006 and also failed to submit the name of defense Assistant. During the enquiry, all opportunities were provided to the applicant. Copy of Inquiry report was also provided to the applicant and after due course, a reasoned and speaking order dated 3.5.2008 was passed by the respondents. Appeal against the impugned order dated 3..5.2008 was also rejected vide order dated 8.3.2010.The competent authority and appellate authority both had considered the points raised by the applicant in his representation.

Rejoinder reply has also been filed by the learned counsel for the applicant, reiterating the facts as stated in the O.A.

Heard learned counsel for the parties.

Learned counsel for the applicant argued that after receipt of the enquiry report, applicant had submitted representation on 12.5.2008 but perusal of impugned order dated 13.5.2008 shows that disciplinary authority has not recorded the points raised by the applicant in his representation. It is also argued that documents annexed with the charge sheet has not been considered and no opportunity to cross examination has been afforded to the applicant. It is also argued that enquiry proceedings have been completed in violation of principle of natural justice in hurry manner. It is also argued that rejection order is non speaking order. Referring to the enquiry report, it was further argued that enquiry officer closed the inquiry proceeding without ensuring the service of letter dated 12.4.2008 upon the applicant. It appears improbable and unbelievable that letter dated 12.4.2008 would have served upon the applicant within 4 days. Nothing is mentioned in the inquiry report on this point. There is violation of Rule 14 of the CCS (CCA) Rules, 1965.

Learned counsel for respondents argued that full opportunity was given to the applicant to participate in the enquiry but he failed to attend the enquiry on 21.3.2006. He has not submitted the name of his defense Assistant. It is also argued that written statement of R.B. Mishra Prosecution witness was recorded on 2.2.2008, Presenting Officer submitted his brief on 12.4.2008, enquiry report was submitted on 17.4.2008 but applicant had not submitted any objection during the period from 2.2.2008 to 17.4.2008. It is also argued that charges leveled against the applicant were thoroughly discussed in the impugned order dated 13.5.2008.

We have considered the rival submission and have gone through the entire record.

Undisputed facts in the matter are that the applicant while working with the respondents organisation, was served with the charge sheet on 20.1.2006 along with Article of charges. The enquiry was conducted and the enquiry officer submitted its report by which he has found that the charge No.1,2, 3 and 4 levelled against the applicant stand proved. The copy of the enquiry report was duly communicated to the applicant and after the receipt of the enquiry report, the applicant has also given a reply. After the receipt of the said reply by the applicant, the disciplinary authority passed an order of dismissal from service vide order dated 13.5.2008. The applicant submitted an appeal to the Director of Postal Services, Bareilly Region, Bareilly and the appellate authority has also considered the appeal of the applicant along with report of the enquiry officer as well as punishment imposed by the disciplinary authority and agreed with the findings of the disciplinary authority.

From perusal of the enquiry report, the enquiry officer in its enquiry report in proceeding dated 2.2.2008, it is clearly mentioned that Presenting Officer has submitted the brief dated 11.4.2008 to the enquiry officer along with a copy to charged officer but till date i.e. till 17.4.2008, charged officer has not submitted his defense reply. Therefore, on the direction of the Disciplinary Officer, the inquiry report is being submitted. The aforesaid statement of the enquiry officer clearly shows that he has submitted the inquiry report on the direction of the disciplinary authority even in absence of the defense statement submitted by the charged officer. The aforesaid proceeding dated 2.2.2008 of enquiry report is reproduced below:-

Rule 14 (16) of CCS (CCA) Rules, 1965 also provides that when the case for the Disciplinary Authority is closed, the Government servant shall be required to state his defence, orally or in writing , as he may prefer but enquiry officer has closed the enquiry on the direction of disciplinary authority, even without taking the defence of the applicant orally or in writing, Rule 14 (16) and Rule 14(18) of CCS (CCA) Rules, 1965 are reproduced below:-

“(16) When the case for the Disciplinary Authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any appointed.

(18) The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Govt. servant to explain any circumstances appearing in the evidence against him.”

There is nothing on record to show that letter dated 12.4.2008 was served upon the delinquent officer. The statement as required under Rule 14(16) and 14(18) of CCS (CCA) Rules, 1965 have not been recorded by the enquiry officer. Due process of law has not been followed by the enquiry officer. Report submitted by the enquiry officer is against the Principle of Natural Justice.

The Hon’ble Apex Court in the case of Union of India versus P.Gunasekaran 2015 (2) S.C.C. Page 610) in paras 12, 13 & 20 has held as follows:-

“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.

Xx       xx        xx

The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.

Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.”

In the case of State of U.P. v. C.S. Sharma, AIR 1968 SC 158 the Hon’ble Supreme Court held that omission to give opportunity to an employee to produce his witnesses and lead evidence in his defence vitiates the proceedings. It was further held that a dismissal order has serious consequence and should be passed only after complying with the rules of natural justice.

It is settled principle that if any material is sought to be used in an enquiry, the copies of material must be supplied to the party against whom such an enquiry is held. The Disciplinary Authority as well as Appellate Authority did not consider this aspect of the matter and expressed their concurrence to the finding of the Inquiry Officer, without applying their independent and free mind. The Appellate Authority while considering the appeal of the petitioner failed to appreciate the fact that the Enquiry Officer at the back of the petitioner had proved charges without affording reasonable opportunity to controvert the same. Therefore, the order of Appellate Authority is bad in law and cannot be sustained. As regards the opportunity before passing of the final order, the Hon’ble Apex Court has discussed in detail in the case of B.N. Kansal Vs.State of U.P. reported in 1988 Suppe. SCC 761.

As stated above, in the instant case, the enquiry officer has not recorded the statement of the applicant as provided under Rule 14(16) and 14(18) of CCS (CCA) Rules, 1965. Nothing on record to show that letter dated 12.4.2008 was served upon the applicant. Inquiry Officer has submitted the enquiry report in hurry on the dictate of Disciplinary Authority, without following the due process of law, which is against the rules of Principles of Natural Justice. Hence, we are of the opinion that the enquiry is not held according to the procedure prescribed in that behalf and there is violation of the principles of natural justice in conducting the proceedings, as such O.A. is liable to be allowed.

Accordingly, O.A. is allowed. Impugned order dated 13.5.2008 and 8.3.2010 are quashed. Respondents are directed to reinstate the applicant in service forthwith with all consequential benefits with liberty to hold the fresh inquiry strictly in accordance with the principle of natural justice and statutory provisions governing the subject, if respondents deem fit.

There shall be no order as to costs.