Full Judgment
2. According to applicant, while working as Telephone Operator, Kayamkulam, he was proceeded against under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (CCS (CCA) Rules, 1965 for short) by issue of a charge sheet on 26.8.83. After enquiry, on 14.12.87, the Disciplinary authority removed the applicant from service. On appeal, the Appellate authority set aside the order of removal and remitted the matter to the Disciplinary authority directing de novo proceedings from the stage of drawing up of the charge sheet.
Thereafter, the Telecom. District Engineer issued Memo No. Q-1884/Pt/4 dated 14.10.88 proposing to hold an enquiry under Rule 14 of CCS (CCA) Rules, 1965 against the applicant. The Telecom. District Engineer, Alleppey vide memo No. Q-1884/10 dated 27.12.88 appointed Shri G.Krishna Pillai, as Enquiry Officer to enquire into the charges levelled against the applicant. By another memo No. Q-1884/11 dated 27.12.88 Shri K. V. Balakrishna Pillai was appointed as Presenting Officer. The Telecom District Engineer also issued memo No. Q-1884/12 dated 29.12.88 providing an addendum to Annexure A III charge sheet dated 14.10.88.
The applicant's request for change of enquiry officer made vide his representation dated 1.3.89 was rejected by the Director Telecom (S), Trivandrum vide letter No. AMS/70-2/C1/87 dated 20.3.89 and the same was communicated to the applicant by the Telecom District Engineer, Alleppey vide his letter No. Q-1 884/PI/21 dated 30.3.89. The applicant submitted a representation against the above order of Director, Telecom (S), Trivandrum. The same was also rejected by the Deputy General Manager Telecom Area, Trivandrum vide his letter dated 10.11.89. After completion of the enquiry, the enquiry report was submitted to the Disciplinary authority. Thereafter, the applicant received Annexure A1 order imposing the punishment on him along with which a copy of the enquiry report was also enclosed. The applicant submitted the appeal dated 30.5.96 addressed to the Telecom District Manager (Respondent No.2). Applicant's appeal was considered by the appellate authority Mr.
G.C. Varier who according to the applicant earlier worked as Divisional Engineer (Telecom), Alleppey. The appeal was rejected by the Appellate authority vide his letter dated 31.7.96. Applicant filed the Revision petition before the Respondent No. 3 challenging the orders in Annexure A1 and A2. Whereas the disciplinary authority imposed the punishment of reduction of pay from Rs. 1390 to Rs. 975 in the scale of Rs. 975-1660 for a period of two years without cummulative effect and the Appellate authority rejected the appeal, the Revisionary authority, respondent No. 3 modified the punishment on 10.2.97 in that the pay of the applicant was reduced by four stages from Rs. 1390 to 1270 in the scale of Rs. 975-1660 for a period of two years without cummulative effect.
3. The applicant has challenged the impugned orders Annexure Al, A2 and A16 and sought the following reliefs: (ii) To direct the respondents to draw and disburse amount if any withheld/reduced pursuant to Annexure A1 and A2 to the applicant.
(iii) Grant such other reliefs as may be prayed for and the Tribunal may deem fit to grant, and (i) The enquiry report was not furnished to the applicant by the Disciplinary authority as per the law laid down by the Hon'ble Supreme Court in Mohammed Ramzan Khan v. Union of India (AIR 1991 SC 471) and Managing Director, ECIL v. B. Karunakar (AIR (ii) Shri G.C. Varier who had acted as applicant's disciplinary authority for considerable time and had appointed the enquiry officer and the presenting officer and had issued the addendum to the charge sheet, had got some ideas about the case and was personally biased and therefore rejected the appeal.
(iii) The disciplinary authority and the appellate authority did not give any attention to the quantum of punishment imposed on him. They had not taken into consideration the facts of the applicant being a cancer patient and his wife being a Asthma patient, denial of time bound promotion due to him and the circumstance that the applicant had improved a lot.
(iv) The object of the enquiry must not only be to find out whether the official concerned was guilty or not but it must be a remedial one also and the wrong doer must be given opportunity to recognise his guilt to improve himself.
(v) The enquiry officer Sri G. Krishna Pillai had developed certain ideas about the case and it was with these pre-occupied notions that he approached the enquiry the second time and he was biased.
(vi) The procedures under Rule 14(16) and 14(18) of CCS (CCA) Rules, 1965 which were mandatory were not observed and non-observance vitiated the enquiry.
(vii) Order of Respondent No. 3 was not sustainable as after finding that the punishment was liable to be quashed for non-supply of enquiry report, on non-genuine grounds, he justified the punishment and brushed aside the objection raised against Sri Varier acting as appellate authority.
5. The respondents filed a reply statement and resisted the claim of the applicant. They stated that the enquiry was conducted adhearing to all the procedural formalities and the applicant was given ample opportunities to participate in the enquiry and that the disciplinary authority passed the order after taking all the relevant facts and circumstances of the case. The Appellate authority as well as the Revisionary authority passed orders after examination of the case and taking all the facts into account. Regarding the applicant's claim of non-observance of procedure under Rule 14(16) and 14(18) of the CCS (CCA) Rules, a copy of the Presenting Officer's brief was forwarded to the applicant with a direction to submit his written statement vide Enquiry Officer's letter dated 14.5.94. The applicant sought some time to submit his defence statement. In spite of Enquiry Officer's letters dated 30.8.94, 29.11.94 and 28.1.95, the applicant did not submit any defence statement and therefore the enquiry report was finalised without the defence brief. According to the respondents it could not be stated that Rule 14(16) and 14(18) were not observed. Respondents admitted that copy of the enquiry report was not supplied to the applicant before the Disciplinary authority passed final order. They stated that the third respondent had considered this aspect while passing the revisionary order. The revisionary authority came to the conclusion that as the applicant had disputed the punishment order only on technical grounds and had not challenged the enquiry proceedings on the conclusions arrived at and as the punishment imposed by the disciplinary authority for reduction in pay from Rs. 1390 to Rs. 1270 for two years without cummulative effect was only a minor penalty, came to the conclusion that if de novo proceedings was ordered giving a copy of the enquiry report, the same would result in further loss of time and consequently hardship to the applicant and considering the fact that the applicant was undergoing disciplinary proceedings for considerable length of time, instead of quashing the proceedings took a lenient view and modified the order of the disciplinary authority by reduction of pay from Rs. 1390 to 1270 for a period of two years without cummulative effect as against reduction of pay from Rs. 1390 to Rs. 975/-. Further, they claimed that as only a minor penalty was imposed, detailed enquiry is not mandatory. The respondents denied that Shri G.C. Varier who had acted as disciplinary authority for some time and who by virtue of promotion became the appellate authority had dealt with him with pre-determined mind or with any bias. They submitted that the appeal had been considered in its right perspective considering all the allegations set forth in the appeal and only thereafter the appellate authority had concurred with the findings of the disciplinary authority. They also denied the contention that before initiating disciplinary proceedings no preliminary enquiry was conducted.
According to the respondents, the applicant did not have any legal and enforceable cause of action and submitted that the Original Application was devoid of any merit and the grounds raised in support of the same were not enable and prayed for dismissal of the Original Application.
6. Heard learned counsel for the parties. The learned counsel for the applicant mainly challenged the impugned orders on the ground of non-furnishing of a copy of the enquiry report, enquiry officer and appellate authority being biased, non-observance of Rule 14(16) and 14(18) of the CCS (CCA) Rules and violation of Govt. orders regarding appointment of enquiry officer. According to the learned counsel of the applicant, as per DGP&T's letter No. 20.1.71-Disc. I. dated 9.12.71 modified by letter No. 2001/75/Disc. V. dated 20.5.76, the officer appointed as enquiry officer should not have associated with the enquiry against the defending official at any earlier stage and should have also not expressed any opinion about the merits of the case. He submitted that Shri G. Krishna Pillai had earlier acted as enquiry officer and had expressed his opinion and therefore he should not have been appointed as enquiry officer for the de novo enquiry. The learned counsel relied on the following judgments of the Tribunal in support of his arguments apart from the judgment of the Hon'ble Supreme Court in the case of Managing Director, ECIL v. Karunakar, reported in 1993 (4) SCC 727: (i) G. Selawathy v. Director Social Welfare Department, Govt. of Pondicherry and Anr., 1991 (18) ATC 33.Dewan Ram v. Delhi Administration and Ors., 1991 (17) ATC 596 (FB).
7. The learned counsel for the respondents took us through the pleadings given in the reply statement.
8. We have given careful consideration of the submissions made by the learned counsel for the parties and rival pleadings and have perused the records annexed thereto. The applicant has mainly challenged the impugned orders on the grounds of non-supply of enquiry report before the disciplinary authority passed the orders, non-compliance of the procedure laid down in Rule 14(16) and 14(18) of the CCS (CCA) Rules, the enquiry officer being biased the appointment of the enquiry officer being against the Government of India's instructions and the appeal being dealt with by the officer who had functioned as disciplinary authority for considerable length of time. The respondents while admitting the above have contended that the applicant had raised these as technicalities and the revisionary authority taking all factors into consideration had not set aside the proceedings on these grounds. We have given our anxious consideration to these rival leadings and submission. In the case of Managing Director, ECIL v. B. Kamnakar reported in 1993 (4) SCC 727 Constitutional Bench of the Apex Court while holding that non-furnishing of a copy of the enquiry report amounted to denial of reasonable opportunity, further held that just because it was shown that a copy of the enquiry officer's report was not furnished, the punishment need not be set aside as a matter of course and courts should interfere with the punishment order only if it is satisfied that there had been failure of justice. The Hon'ble Supreme Court in State Bank of Patiala and Ors. v. S.K. Sharma (1976 (3) SCC 364) decided on 27.3.96 had gone into these aspects at considerable length and relying on para 31 of the judgment of the Constitution Bench in ECIL case had evolved the principles in the context of disciplinary enquiries and orders of punishment imposed by an employer upon an employee based on which Courts/Tribunals should examine the aspect of fair and reasonable opportunity to be given to a delinquent employee. The Apex Court held the test to be applied by the Courts/Tribunals as "All things taken together whether the delinquent officer/employee had or did not have a fair hearing." We have come across a judgment of the Hon'ble Supreme Court of a Bench consisting of three Judges in Union of India v. Viswa Mohan decided on 7.4.98 wherein also the proceedings were challenged on the grounds of non-supply of a copy of enquiry report before punishment was imposed. In the present O.A. also the enquiry report was furnished to the applicant along with the order of the disciplinary authority imposing on him the punishment.
It is not a case of non-supply but supply of the enquiry report before appeal was submitted. The applicant could have assailed the enquiry report in his appeal before the appellate authority. We have perused the appeal filed by the applicant dated 30.5.96 enclosed as Annexure A-13 to the Original Application. We find that the applicant has not stated as to how the non-furnishing of the enquiry report had prejudiced him and how the findings are defective. Further even in the revision petition submitted by the applicant dated 19.10.96, enclosed as Annexure A15 to the O.A. he has not assailed the non-supply of enquiry report and indicated how he had been prejudiced and how the findings of the enquiry report is not based on the evidence adduced during the enquiry. Thus, even though there is a procedural irregularity in the disciplinary proceedings in that, a copy of the proceedings were not given to the applicant giving him an opportunity to represent anything he has to plead before the disciplinary authority before the disciplinary authority considered the enquiry report, as the applicant had not availed of the facility available to him after the enquiry report was supplied to him when he filed the appeal and revision petition, we are of the view that no prejudice has been caused to him because of this irregularity. Even in this O.A., it had not been brought out as to how the enquiry officer's report and the findings were in-consistent with the evidence adduced during the enquiry.
9. The second ground urged before us was that the appointment of the enquiry officer Shri G. Krishna Pillai has been done against the DGP&T letter dated 9.12.71 followed by letter dated 20.5.76. According to the applicant, the enquiry officer who had conducted the first enquiry which was set aside by the appellate authority had again been appointed as enquiry officer in the de novo proceedings against the specific instructions of the DGP&T. We find that the applicant challenged the appointment of the enquiry officer in 1989. First the Director, Telecom (C), Trivandrum rejected the same and again the Deputy General Manager, Telecom Area, Trivandrum rejected the appeal. We find that the setting aside of the first enquiry proceedings by the appellate authority was not for any infirmity in the enquiry proceedings but was only for some defect in the charge sheet. Here again, the applicant has neither in the appeal and revision petition nor in the present O.A. has brought out as to how the appointment of Shri G. Krishna Pillai as enquiry officer has caused prejudice to his case. Therefore, we are of the considered view that this ground is not sustainable for setting aside the impugned orders.
10. The third ground taken by the learned counsel for the applicant was that Shri Varier who had for considerable time acted as the disciplinary authority had dealt with the appeal on his becoming the Telecom District Manager, Alleppey. The respondents submitted that Varier by virtue of passage of time had been promoted TDM, Alleppey and had become the appellate authority and he had dealt with the appeal after application of mind and not dealt with the same with pre-determined mind or with any bias. We find that Rule 24 (2) (ii) of CCS (CCA) Rules, 1965 prohibits only the person who made the order appealed against dealing with the appeal if he become by virtue of subsequent appointment or otherwise the appellate authority in respect of such order and lays down that the appeal against such an order lies to the next higher authority. We find that the punishment order has not been passed by Shri Varier. Moreover, if personal bias/malafides is alleged the concerned officer should have been impleaded by name which had not been done in this case. Therefore, we are unable to accept this ground.
11. The next ground urged before us is that the non-compliance of the procedure laid down under Rule 14(16) and 14(18). When the applicant had not availed of the opportunities given to him to submit his defence plea against the Presenting Officer's brief in spite of three or four reminders, we are not convinced that non-compliance of the above procedural provisions had any prejudicial effect on the applicant's case as has been observed by Hon'ble Supreme Court in the State Bank of Patiala v. S.K. Sharma 12. All the grounds which have been urged before us are violation of procedural provisions which we are of the opinion are not substantive in nature. We are of the considered view that there had been substantial compliance of the principles of natural justice and reasonable opportunity was given to the applicant to present his case.
Further, we find that the ultimate punishment imposed on the applicant after the revisionary order is not one of removal/dismissal/compulsory retirement or of reduction in rank. It is only a reduction in the stage of the pay of the employee without cummulative effect for a period of two years which is a minor penalty. We also find that in the appeal or in the revision petition, the applicant had not pleaded that he is innocent. From Annexure A3 enclosed with the O.A. which is the appellate authority's order against the first charge sheet issued to the applicant it is observed that in his first appeal the appellant (applicant) had expressed his regret and apology for having given room for such complaints and he also undertook not to give way of such action in future. Even in the present O.A. one of the grounds taken by the applicant is as follows: "The object of an enquiry must not only be to find out whether the official concerned is guilty or not, but it must be to give wrong doer an opportunity to recognise his guilt and improve himself for achieving that purpose enquiry must be finalised within a short but stipulated period. In the present case, the enquiry went on for 13 long years, practically destroying the life of applicant. This aspect should have been duly considered by the authorities when they considered the case of applicant. But that was not done." 13. We feel this is a tacit admission of his guilt by the applicant.
Moreover, the applicant is assailing the delay caused in his disciplinary proceedings in this ground. On the basis of this ground urged before us, we are of the view that the reasons recorded by the revisionary authority for not setting aside the proceedings on the procedural irregularities and at the same time reducing the punishment as valid. ' 14. The ratio in the judgment in O.A. 202/98 relied upon by the learned counsel of the applicant will not be applicable in the facts and circumstances of the present case. In that case, the applicant was imposed with the punishment of removal from service.
15. In view of the detailed analysis as given above, we are of the view that the applicant is not entitled to any of the reliefs claimed in this application. Accordingly, the O.A. is dismissed with no order as to costs.