S.K. Srivastava vs Appointment Committee Of Cabinet And Ors

L. Narasimha Reddy, J

1.The applicant is a Commissioner in the Income Tax Department. He has been subjected to disciplinary proceedings on various counts, and it is not necessary to refer to them in detail, or the background thereof. Suffice it to mention that in one of the departmental inquiries on the basis of charge sheet dated 03.04.2016, the Inquiry Officer submitted its report on 03.12.2016, holding that the charges framed against the applicant are not proved. However, the Disciplinary Authority intended to differ with the findings recorded by the Inquiry Officer. Therefore, an Office Memorandum dated 11.05.2017 was issued to the applicant requiring him to make his representation, or submission on the report of the Inquiry Officer, on the one hand and the tentative reasons for disagreement note of the Disciplinary Authority, on the other hand, within 15 days.

The applicant filed a representation dated 29.05.2017 to the Disciplinary Authority with a request to provide opportunity of personal hearing before the Appointments Committee of Cabinet (ACC), over the disagreement note. There was no positive reference to the same. He filed this OA, with a prayer to direct ACC to hear his objections.

The applicant contends that valuable rights have accrued to him on the basis of the report submitted by the Inquiry Officer and when the Disciplinary Authority has proposed to disagree with the findings, he is entitled to be heard. He has advanced several other contentions also, and placed reliance upon the judgments of the Hon'ble Supreme Court, in particular, the ones in Punjab National Bank v. Kunj Behari Misra AIR 1998 SC 2713 and Food Corporation of India v. V. P. Bhatia (1998) 9 SCC 131. According to the applicant, ACC is the Appointing and Disciplinary Authority for the post held by him.

The respondents filed the counter affidavit and opposed the OA. They contend that the ACC is not a specific authority and there is no provision or practice for the ACC to hear the submissions of any employee, whatever be the context. It is further stated that the CCS (CCA) Rules, 1965 contemplate only providing of an opportunity of submitting objections for the proposed disagreement and that the impugned order was issued just by reiterating the rule position.

The applicant argued the case in person and on behalf of respondents, Shri Rajesh Katyal, learned counsel advanced the arguments.

The Inquiry Officer who enquired into the charges contained in charge sheet dated 03.04.2016, submitted his report holding that the charges are not proved. Rule 14 of CCS (CCA) Rules, 1965 does confer power upon the Disciplinary Authority to disagree with the findings recorded by the Inquiry Officer. However, he is placed under obligation to given an opportunity to the employee as to why a different view be not taken from the one expressed by the Inquiry Officer. The law in this regard is fairly well settled. The small area of controversy in this case is as to whether the applicant is entitled to be given the personal hearing in the context of disagreement, and if so, by which authority.

Though in many cases, the submission of representation/objections is treated as an adequate compliance with law in the context of disagreement by the Disciplinary Authority with the report of the Inquiry Officer, there are instances where the employee is given an opportunity of being heard personally whenever such a request is made.

In Kunj Behari Misra's case (supra), the Hon'ble Supreme Court held as under:-

"The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the Inquiring Officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority."

The obligation to provide personal hearing was read into the provision as a requirement under the principles of natural justice. Though, learned counsel for the respondents made an attempt to convince us to take a different view by citing the judgment of Delhi High Court in K. Raj Arora vs. State Bank of India W.P.(C) No.154/2000 decided on 08.09.2006, we are not inclined to take such a view having regard to the categorical pronouncement of the Supreme Court on that very issue.

He has also relied on the judgments of Hon'ble Supreme Court in Managing Director ECIL, Hyderabad vs. B. Kapurnakar etc. 1993 (3) AISLJ 193; Union of India & Anr. Vs. M/s Jesus Sales Corporation (1996) 4 SCC 69; and Ganesh Santa Ram Sirur vs. State Bank of India 2006 (L&S) 537.

The next question is as to who should hear the applicant on the proposed disagreement. The applicant insisted that the decision to disagree with the findings of the Inquiry Officer was taken at the level of ACC and he is entitled to be heard by that very agency. However, from the record and the material placed before us, we do not find that the ACC has any role to play, either as a Disciplinary Authority or the Appointing Authority.

It is felt that the question as to before whom the applicant be permitted to present his case in person, be left to the respondents themselves.

We, therefore, partly allow this OA directing that

(1) the applicant shall be extended the facility of personal hearing before the Disciplinary Authority in the context of proposed disagreement with the findings of the Inquiry Officer, and

(2) the authority who issued the notice dated 11.05.2017 shall clearly mention the description of the authority before whom the applicant can appear in person, to express his views on the proposed disagreement, and the place and time of such meeting for his appearance.

There shall be no order as to costs.