Sri Venugopal Murthy vs Union of India

V. Srui Appa Rao, J.—This writ petition is filed under Articles 226 and 227 of the Constitution of India challenging the correctness of the order dated 30.05.2008 passed by the Central Administrative Tribunal, Bangalore in Application No. 105/2007 and to direct the respondents to release full pension from the date of retirement.

The brief facts leading to this writ petition are as follows :

The petitioner was appointed as Engineering Supervisor in P & T Department during the year 1967. He discharged his duties sincerely and honestly in the Department and he got promotions as Sub-Divisional Officer in the year 1981 and subsequently as Divisional Officer in the year 1981 and as Divisional Engineer during 1995 at Mysore. He also worked at Bidar as Telecom District Engineer from 20.6.1997 to 28.4.1998 and subsequently transferred to Mysore and retired in the month of June 2005. During the month of October 1999 one Sri. R. Subramanian, Chief Accounts Officer, Bangalore inspected the Office at Bidar Telecom, Bidar for the period from 05.10.1999 to 28.10.1999. He detected several illegalities in the purchase of various telecom materials and reported the matter to the General Manager (Finance), In the month of January 2000 again the Chief Accounts Officer inspected the Office of Bidar Telecom after taking permission from the General Manager (Finance) and observed several irregularities while purchasing telecom materials and submitted his Audit Report. Based on the complaint, the Central Bureau of Investigation filed charge sheet against 9 officers on 28.09.2003 including the petitioner before the Principal District Judge, Dharwad in Special C.C. No. 1/2004 and the said criminal proceedings are pending.

The Disciplinary Authority ordered departmental enquiry against the petitioner vide Memorandum dated 05.01.2004 enclosing statement of Articles of Charges, statement of imputations of misconduct. The petitioner was directed to submit statement of defence to the Articles of Charges within ten days. The petitioner received the same on 05.02.2004 through General Manager, Telecom, Mysore and on 14.02.2004 the petitioner seat para-wise defence statement to the Articles of Charges and statement of imputations of misconduct through proper channel.

Thereafter, the Disciplinary Authority appointed Sri. Yogesh, the Commissioner for Enquiry''s as an Enquiry Authority under Rule 14 of Central Civil Services (CCA) Rules 1965 by an order dated 21.04.2004. On 12.05.2004 the Enquiry Officer held preliminary hearing at Vikas Sadan, New Delhi. Due to delay in intimation to the petitioner about the preliminary hearing, the petitioner could not appear before the Enquiry Officer as the copies of documents on which the Charges alleged are being relied on by the Disciplinary Authority were not supplied to him. Therefore, the petitioner sent a Representation dated 24.06.2004 to the Disciplinary Authority praying for permission to appoint a legal practitioner (Advocate) to defend him in the Enquiry proceedings. But the Disciplinary Authority vide order dated 25.08.2004 rejected the request of the petitioner to appoint legal practitioner as defence assistant and fixed the enquiry from 11.01.2005 to 13.01.2005.

On 11.01.2005 the Enquiry was held and on direction of the Inquiry Officer, the Presenting Officer produced 64 prosecution documents which were marked as Ex.81 to S-64. After the completion of the enquiry, the Enquiry Officer sent the report cm 29.04.2005 holding that one allegation is proved and the other allegations are partly proved, Therefore, the petitioner made representation dated 31.08.2005 against the findings of the Inquiry Officer''s report to the Disciplinary Authority (Hon''ble President of India). The Disciplinary Authority (Hon''ble President of India) consulted the Union Public Service Commission, which sent its report on 08.08.2006 stating that one allegation is proved and the other allegations are partly proved and recommended to cut 30% of pension on permanent basis from the pension amount of the petitioner. Basing on the report of the Union Public Service Commission, the Disciplinary Authority ordered withholding 30% of the monthly pension otherwise admissible to the petitioner on permanent basis.

The petitioner being aggrieved by the order of the Disciplinary Authority bearing No. 8/371/2003-Vig-II dated 25.09.2006 filed an application No. 105/2007 before the Central Administrative Tribunal, Bangalore, challenging the said order passed by Disciplinary Authority. The Central Administrative Tribunal after heading dismissed the application on 30.05.2008.

Being aggrieved by the order of the Disciplinary Authority and the Orders of the Central Administrative Tribunal, the petitioner filed this Writ Petition seeking to set aside the order dated 30.05.2008 passed by the Central Administrative Tribunal and the Order of the Disciplinary Authority withholding 30% of the monthly pension otherwise admissible to the petitioner on permanent basis.

The respondent represented by its Secretary, Government of India, Ministry of Communications and I.T. Department of Telecommunications filed detailed reply statement before the Central Administrative Tribunal contending that the petitioner was given ample opportunity to defend his case before the Enquiry Officer and in fact on the request of the petitioner, the regular hearing was postponed several times and finally after giving ample opportunity to the petitioner, enquiry was concluded and on the basis of the sanction accorded by the President of India, charge sheet was also filed against the petitioner in Special Case in C.B.I. Cases for having committed criminal offence punishable under various sections of Indian Penal Code and Prevention of Corruption Act.

The respondent further contended that the petitioner was permitted to produce all relevant documents and after receiving the enquiry report the finding that the charges have ''been proved and enquiry report was carefully examined on the basis of the records. The copy of the enquiry report was made available to the petitioner. The representation dated 31.08.2005 submitted by the petitioner was considered by the President of India in consultation with the UPSC and the President of India after careful consideration of the records of enquiry and finding on the enquiry report and the representation of the petitioner accepted the advice of the Disciplinary Authority and ordered for withholding of 30% monthly pension otherwise admissible to the petitioner on permanent basis and that gratuity admissible to the petitioner be released for any other reasons. The respondent therefore contends that there are no grounds to set aside the report and the order of Disciplinary Authority withholding 30% monthly pension on permanent basis from the pension amount of the petitioner.

Considering the submissions of the petitioner and the respondent, the Central Administrative Tribunal after following the various decisions of the Hon''ble Supreme Court particularly based on the ratio laid down in State Bank of Patiala and others Vs. S.K. Sharma, dismissed the application filed by the petitioner holding that the respondent have supported and justified their action while imposing the penalty by following the procedure prescribed under Rules 14, 15 of CCS (CCA.) Rules and Rules 8 and 9 of CCS Pension Rules, 1972. Aggrieved by the order dated 30th May 2008 passed by the Central Administrative Tribunal, the petitioner has filed this writ petition invoking the provisions of Articles 226 and 227 of the Constitution of India.

We have heard the learned Counsel for both the parties.

We have been taken through the impugned order dated 30.05.2008 passed by the Central Administrative Tribunal.

The point that arise for our consideration is :

Whether the procedure followed by the Enquiry Officer in conducting the enquiry is in violation of Rules 14 and 15 of the CCS (CCA) Rules and subsequent punishment imposed by the Disciplinary Authority is violative of Articles 311 (2) of the Constitution?

The learned Counsel for the petitioner submitted that the Enquiry Officer did not follow the procedure in conducting the enquiry and reasonable opportunity was not given to the petitioner to defend himself as provided under Article 311(2) of the Constitution of India based on the principles of natural justice. In support of the contention of the learned Counsel for the petitioner, he placed reliance in the case of Union of India (Delhi) and another vs. Sri. Kula Chandra Sinha reported in AIR 1963 TRI 20, wherein it is held that:

The normal rule in departmental proceedings is that the delinquent cannot claim as a matter of right that he should he allowed to be represented by a lawyer. In cases of exceptional difficulty where them are large number of charges and voluminous records which a person cannot sift properly, the help of a lawyer has to be allowed But 1t cannot he said that the denial to be represented by a lawyer will amount to a vialation of the principles of natural justics.

Relying on the above decision, the learned Counsel for the petitioner submitted that the petitioner was denied the assistance of a lawyer during the enquiry. Therefore, the petitioner was denied the principles of natural justice during the course of enquiry.

In Khem Chand Vs. The Union of India (UOI )and Others, it is held that:

Held, on the facts of the case that the appellant though entitled to have a farther opportunity given to him to show cause why the particular punishment should not be inflicted on him was not given that opportunity and that, therefore, there was no getting away from the fact, that Art. 311(2) had not been fully complied with and the appellant had not had the benefit of all the constitutional protection and accordingly his dismissal could not be supported.

Relying on the above decision, the learned Counsel for the petitioner submitted that no notice was given to him before imposing penalty and after denying of the pension no notice was given to him before imposing penalty.

The learned Counsel for the petitioner further relied on another decision in the case of Ramesh Chandra Verma Vs. R.D. Verma and Others, wherein it is held :

The question whether in a particular case the civil servant was given an opportunity to show cause against the charges or has not been given is a question of fact depending upon the circumstances of that case. Although as a broad proposition of law it cannot be disputed that in a disciplinary enquiry the rules of procedure for a Court need not be observed and the rules of evidence need not be strictly followed yet in deciding the question of sufficient opportunity all the facts of the case have to be examined The rules of evidence which may be nothing but rules of natural justice may be relevant in connection with the Question as to whether sufficient opportunity was or was not given in the case to show cause against the charges.

The learned Counsel for the respondent submitted that the petitioner was given simple opportunity before the Enquiry Officer and also before the Disciplinary Authority. Considering the nature of the charges and based on the relevant materials available on record, imposed punishment. The Tribunal after perusal of the entire materials on record rightly dismissed the application filed by the petitioner. Therefore, there are no cogent grounds to interfere with the order dated 30.05.2008 passed by the Central Administrative Tribunal.

It is settled principles of law that in departmental proceedings, the delinquent cannot claim as a matter of right that he should be allowed to engage an Advocate to defend himself. However, the delinquent can be permitted in some exceptional cases where there are large number of charges and voluminous records, and the delinquent cannot property defend himself, he can be permitted to take the help of a lawyer. But, in the instant case, admittedly, the Chief Accounts Officer inspected the Office of the Bidar Telecom, Bidar and detected several irregularities in the purchase of various telecom materials and the matter is reported to the General Manager (Finance) and after taking permission from the General Manager (Finance), the accounts of the Office of Bidar Telecom were inspected in depth and after that the Inspecting team submitted the Audit Report alleging several irregularities while purchasing the telecom materials.

Based on the Audit Report of the Inspection Team, Disciplinary Authority ordered to initiate enquiry against the petitioner and the Central Bureau of Investigation filed charge sheet against the petitioner and others and the same is pending in Spl. CC No. 1/2004 before the Principal District Judge, Dharwad. The contents of the petition filed by the petitioner before the Central Administrative. Tribunal and also before this Court clearly indicates the above fact and the same are not denied by the petitioner.

As could be seen from the report of the Enquiry Officer, which clearly indicates that the petitioner was given sufficient opportunity to cross-examine the witnesses examined by the Presenting Officer to substantiate the charges levelled against the petitioner and others and that the petitioner was also permitted to produce his defence evidence. The records further clearly indicates that after conducting the enquiry, the Enquiry Officer furnished copy of the enquiry report to the petitioner informing him that one allegation is proved and the other allegations are partly proved. Thereafter, the petitioner submitted representation dated 31.08.2005 to the Disciplinary Authority against the findings of the Enquiry Officer. The Disciplinary Authority after consultation with the Union Public Service Commission, passed the impugned order dated 25.09.2006 imposing penalty of withholding 30% of monthly pension otherwise admissible to the petitioner on permanent basis. Thus, the entire records clearly reveals that the petitioner was rightly denied the permission to appoint legal practitioner as this case is not an exceptional case and no voluminous records is involved as the petitioner is capable of defending himself. The enquiry report clearly indicates that the petitioner was given simple opportunity to cross-examine the witnesses and he was permitted to adduce defence evidence. The petitioner was also permitted to submit the representation to the Disciplinary Authority before passing the impugned order. The entire records therefore clearly indicates that principles of natural justice was not violated in this case. The petitioner was given simple opportunity at all stages before passing of the impugned order of punishment. Therefore, we are of the view that there are no irregularities or illegalities committed in conducting the enquiry against the petitioner. The enquiry conducted by the Officers is in accordance with the CCA Rules.

Therefore, we are of the considered view that the principles of natural justice are not violated as required under Article 311(2) of the Constitution of India in conducting the enquiry and also in imposing punishment.

The enquiry report and the other materials available on record clearly indicates that the petitioner has violated the procedure in purchasing the materials. The learned Counsel for the respondent also clearly admitted that there was no financial less to the Department.

Considering the facts and circumstances and in view of the fact that there was no financial loss to the Department, we feel that the punishment imposed by the Disciplinary Authority withholding 30% of the pension amount appears to be disproportionate to the charges proved against the petitioner. Therefore, it is just and necessary in the interest and equity to reduce the punishment of withholding 30% of the pension to 10% pension.

The writ petition accordingly is allowed in part reducing the punishment by withholding the pension amount from 30% to 10% of monthly pension otherwise admissible to the petitioner on permanent basis.