Union of India and Others vs The Central Administrative Tribunal, Jaipur and Others

Instant petition is directed against order of the Central Administrative Tribunal dt. 23/04/2001.

Brief facts of the case are that the respondent-delinquent was working on the post of EDMC Khajuriawas since 1982. For the alleged delinquency, he was served with charge sheet dt. 04/12/1995 under R. 14 of the Central Civil Services (CCA) Rules, 1965 and the respondent-delinquent was called upon to submit explanation. The respondent-delinquent admitted the facts and also his guilt before the disciplinary authority in reference to the charge sheet dt. 04/12/1995 in his written reply dt. 16/12/1995 but still the disciplinary authority considered it appropriate that let the matter be referred to the enquiry officer to conduct enquiry. After the matter was referred to the enquiry officer, on the first date of the proceedings held on 13/05/1996, the respondent-delinquent rescinded from his statement of acceptance of the facts and guilt before the disciplinary authority in his written reply dt. 16/12/1995. The enquiry officer, taking note of the statement which he recorded in the proceedings dt. 13/05/1996, considered it appropriate to proceed with the enquiry in terms of the procedure provided under the Scheme of Rules, 1965 and fixed next date of 06/12/1996. On the said date of proceedings, the respondent-delinquent submitted written affidavit and admitted the facts and guilt and submitted that whatever action the authority wants to take against him is acceptable to him. Holding admission of guilt by the respondent-delinquent, the enquiry officer sent its report holding him guilty to the disciplinary authority and it has come on record that copy of the enquiry report furnished by the enquiry officer regarding admission of guilt of the respondent-delinquent was served upon him and he was called upon to submit his explanation. Even at this stage, he reiterated his admission and admitted his guilt before the disciplinary authority.

The disciplinary authority while holding him guilty punished him with penalty of removal from service vide order dt. 04/05/1997 and the appeal preferred against the order of punishment also came to be rejected against which he preferred OA before the ld. Tribunal.

The ld. Tribunal was of the view that even after acceptance of guilt by the respondent-delinquent during the course of enquiry, still enquiry was to be processed in terms of the procedure provided u/R. 14 of the Rules, 1965 and since the petitioner-department failed to comply with the procedure in its true spirit as contemplated u/R. 14 of the Rules, 1965, arrived to a conclusion that the punishment of removal from service inflicted upon him was bad in law in absence of due compliance of the procedure and accordingly quashed and set aside the order of punishment and directed the authority to reinstate the respondent-delinquent in service with all consequential benefits and granted liberty to conduct the enquiry in accordance with rules and pass orders obviously after due compliance of the principles of natural justice vide order impugned dt. 23/04/2001 which is subject matter of challenge in the instant writ petition.

It is noticed that while admitting the writ petition, the effect and operation of the order of the ld. Tribunal, was stayed by the Court as reveals from the order dt. 21/09/2001 and indisputably, the order of the ld. Tribunal impugned in the instant proceedings dt. 23/04/2001 has not been given effect to.

Counsel for the petitioners submits that once the guilt has been accepted by the respondent-delinquent in the course of enquiry before the enquiry officer, as noticed in the proceedings dt. 06/12/1996 which has been further affirmed by the delinquent after copy of enquiry report was furnished to him by the disciplinary authority, the procedure to be followed, has to be fair and in compliance of principles of natural justice as provided u/R. 14 of the Rules, 1965, has been complied with and that being so, there was no need to hold further enquiry which is a fact finding enquiry for the purpose of examining the evidence which has come on record based on preponderance of evidence but once the respondent-delinquent admitted his guilt in the course of enquiry, there is no need to proceed further and that is not the requirement of the rules and the procedure provided u/R. 14 of the Rules, 1965 and the ld. Tribunal has committed an apparent manifest error in quashing and setting aside the order of penalty while holding that since the enquiry has not been conducted in terms of R. 14 of the Rules, 1965, the order of punishment is not sustainable in law and that requires interference by this Court and in support of submission placed reliance upon judgment of the Apex Court in the case of Channabasappa Basappa Happali Vs. The State of Mysore, AIR 1972 SC 32 : (1971) 1 SCC 1 : (1971) 2 SCR 645 .

On the other hand, counsel for the respondent-delinquent, while supporting order of the Tribunal, submits that the delinquent at the initial stage, while submitting reply to the charge sheet dt. 04/12/1995, admitted the facts and the allegations levelled against him but still the disciplinary authority considered it appropriate to conduct enquiry and after the enquiry officer was appointed, the enquiry officer was under obligation to conduct enquiry in terms of the procedure provided u/R. 14 of the Rules, 1965 and admission of facts or of guilt before the enquiry officer may not be of any useful purpose unless the delinquent is held guilty in the course of enquiry after a fair and reasonable opportunity of hearing being afforded to him and the finding recorded by the enquiry officer in its report based on admission of guilt recorded in the proceedings dt. 06/12/1996 may not be self sufficient and for fairness and compliance of principles of natural justice, procedure of enquiry as provided u/R. 14 of the Rules has to be followed and admittedly and indisputably has not been complied with and that being so, the order of penalty was not sustainable in law and this what has been observed by the Tribunal in its order impugned may not be called for interference by this Court at least under its limited jurisdiction available u/Art. 227 of the Constitution.

Counsel for the respondent further submits that even this Court comes to the conclusion that on the basis of admission of guilt, there was no need to hold any further enquiry and the disciplinary authority was at discretion to proceed and pass order of penalty but still it was expected of the disciplinary authority to consider the matter in totality and the punishment of removal from service inflicted upon the delinquent is certainly shockingly disproportionate looking to the allegation and the acceptance of guilt by the delinquent which certainly requires consideration by this Court in the facts and circumstances of the instant case.

We have heard counsel for the parties and also perused the order of the Tribunal and material available on record.

The admitted facts, which has come on record and noticed by the Tribunal are that after the charge-sheet dt. 04/12/1995 was served, the respondent-delinquent, in his reply dt. 16/12/1995, admitted the facts and his guilt as well but since it was at the initial stage, the disciplinary authority was of the view that it will be appropriate to conduct enquiry and accordingly the enquiry officer was appointed and in the first date of the proceedings dt. 13/05/1996, he resiled from his statement first recorded in his written reply dt. 16/12/1995 and thus, the enquiry officer considered it appropriate to conduct enquiry and obviously to be conducted in accordance with the procedure provided u/R. 14 of the Rules, 1965 and fixed the matter for conducting enquiry on 06/12/1996. On the said date of hearing before the enquiry officer, the respondent-delinquent voluntarily admitted the facts and his guilt by submitting his written affidavit and that was noticed by the enquiry officer as well while furnishing his report to the disciplinary authority holding the delinquent guilty and the disciplinary authority furnished the report of enquiry to the delinquent calling for his written explanation which was the requirement of R. 15 of the Rules, 1965. Indisputably, copy of the enquiry report, furnished by the enquiry officer, was served upon the delinquent and his explanation was called for and even in pursuance thereof he admitted his guilt and left it open to the disciplinary authority to take its decision and after affording reasonable opportunity of hearing, the disciplinary authority, while holding the delinquent guilty, looking to the nature of allegation, found proved against him, considered it appropriate to punish him with the penalty of removal from service vide order dt. 05/05/1997 which primarily was subject matter of challenge before the Tribunal.

We find justification in the submission made by counsel for the petitioner that once the delinquent admitted the facts and his guilt not only before the disciplinary authority but during the course of enquiry before the enquiry officer as indicated in the proceedings held on 16/12/1996, there appears no reasonable justification for the enquiry officer to further conduct the enquiry in terms of the procedure provided u/R. 14 of the Rules, 1965. The procedure for inflicting major penalty provided u/R. 14 of the Rules, 1965 is to conduct enquiry in a manner which may provide a reasonable and fair opportunity of hearing to the delinquent before a finding in reference to the allegation, is recorded by the enquiry officer.

In the instant case, as the delinquent voluntarily came forward and admitted the facts and his guilt before the enquiry officer during the course of the enquiry proceedings, we do find justification for the enquiry officer not to proceed in conducting further enquiry and even there is no requirement u/R. 14 of the Rules, 1965 to proceed further after admission of fact and guilt being recorded by the delinquent during the course of enquiry proceedings and the view, which the ld. Tribunal expressed of conducting further enquiry, cannot be fortified from the Scheme of the Rules, 1965 and as already observed, there is no requirement at least for the enquiry officer to proceed further after the bona fide and voluntary acceptance of guilt recorded by the delinquent of his own during the course of enquiry. The ld. Tribunal has committed gross error in recording a finding of conducting enquiry in the present facts of the case after the admission of the facts and guilt recorded by the delinquent in the course of enquiry under R. 14 of Rules 1965.

In the instant case, the ld. Tribunal has not even noticed that after the enquiry report was furnished by the enquiry officer, procedure provided u/R. 15 of the Rules, 1965 was followed by the disciplinary authority and indisputably, copy of the enquiry report was served upon the delinquent obviously for calling for his explanation and he had an opportunity either to resile from the statement earlier recorded or to submit written objection in the findings of the enquiry report and he has come forward to accept his guilt and looking to the nature of allegation, the disciplinary authority considered it appropriate to inflict penalty of removal from service vide order impugned dt. 05/05/1997 and we do not find any error in the procedure which the disciplinary authority has adopted in upholding the finding of guilt and inflicting penalty which was within his jurisdiction to exercise under the schedule of penalties provided u/R. 11 of the Rules, 1965 and we find that the ld. Tribunal has committed gross error in not appreciating the facts which has come on record while setting aside the penalty of removal from service dt. 05/05/1997 under order impugned.

So far as the submission made by counsel for the respondent regarding the penalty being shockingly disproportionate, in our considered view, may not hold good for the reason that it was neither pleaded in the OA nor raised before the Tribunal and examining the dispute raised for the first time in the instant proceedings u/Art. 227 may not be available for us to consider moreso when the respondent is out of employment for last more than 19 years. In view of what has been discussed herein above, in our considered view, the order of the Tribunal is not sustainable and deserves to be quashed and set aside.

Consequently, the writ petition succeeds and is hereby allowed. The order of the ld. Tribunal impugned herein dt. 23/04/2001 is quashed and set aside. No costs.