1. In this application, the applicant has challenged the order dated 31.5.1995 passed by the disciplinary authority removing him from service. He has stated that he had preferred an appeal against the removal order vide his Memo of Appeal dated 29.6,1995 but "no information has been given to the applicant until the filing of this Original Application". This O.A. has been filed on 23.9.1996.
2. With regard to the aforesaid submission made by the applicant, we note that the respondents in their reply filed on 13.1.1997, have submitted in paragraph 11 as follows: "Shri S. A. Thakur has submitted an appeal against the said order of "Removal from service" issued by COMCG (W), to the appellate authority viz DGCG. The said appeal has been considered by the said appellate authority and the same has been rejected keeping in view the nature of the offence leading to the charges. The said decision has been communicated to the charged employee by RHQ (W) letter No. CGR/CE/269/SAT dated 09 Apr 96 on the direction of the appellate authority. The above letter was forwarded to the charged employee by Registered post bearing registration number 3299 dated 26 Apr 96".
When the case was taken up for final hearing and it was pointed out that no rejoinder has been filed to the aforesaid reply of the respondents to the averments made by the applicant that he has not received any information regarding the disposal of his appeal memo dated 29.6.1995, Mr. G.S. Walia, learned Counsel for the applicant has very vehemently submitted that nothing turns on this point. His contention is that if the applicant had, in fact, received a copy of the appellate authority's order dated 9.4.1996, as stated by the respondents, copy of which has been enclosed by them to the reply, he would have challenged the same. He has also submitted that the appellate authority's order dated 9.4.1996 is a bald and non-speaking order and in the circumstances, there was no reason at all for the applicant to state in the O. A. that he has not received the copy of the appellate authority' s order. Learned Counsel has relied on the judgment of the Supreme Court in R.P. Bhat v. Union of India and Ors., 1986 SCC (L&S) 330=1986(1) SLJ 383 (SC). He has also disputed the fact that merely because the respondents state that they have sent the appellate authority's order by Registered post on 26.4.1996 by Registration No. 3299 proves nothing, as proof of service/receipt by the applicant has nowhere been produced. Mr. G.S. Walia, learned Counsel, has, therefore, very strongly submitted that mere sending the copy of the appellate authority's order by Registered post is no service of the appeal to the applicant, apart from the fact that the applicant does not gain anything by suppressing this fact that he has not received any information about the facts of his memo of appeal dated 29.6.1995. Learned Counsel has also stressed on the fact that the copy of the appellate authority's order has been sent by the respondents only when they filed the reply on 13.1.1997 and not earlier, that is only after the O.A. was filed on 23.9.1996 and admitted vide order dated 25.9.1996.
3. The above averments have been stoutly rebutted by Mr. V.S. Masurkar, learned Counsel for the respondents. His contention is that when the respondents have; as far back as 13.1.1997 filed the reply on verification by a Gazetted Officer, that is the Commandant of Coast Guard Region (W), Mumbai that the appellate authority has taken a decision on his appeal and the said decision has been communicated to the applicant by letter dated 9.4.1996, the details of which have also been specified along with the fact that it has been sent by Registered post bearing Registration No. 3299 of 26.4.1996, there is no reason why the applicant could not have rebutted these facts. He has also submitted that the order dated 9.4.1996 only conveys the decision of the competent authority and if the applicant had, at any time after the reply was filed, filed his rejoinder or amended the O.A. suitably to challenge the appellate authority's order, on the grounds now orally submitted by the learned Counsel for the applicant, for example, that it is a non-speaking order, he could have brought the relevant records and also rebutted these pleas. He has submitted that the competent authority has considered the applicant's appeal and had found no merit in the same which has been conveyed to him in the letter dated 9.4.1996. He has submitted that the applicant cannot, therefore, taken such extraneous pleas, especially when there is no pleading to the facts of even challenging the appellate authority's order, copy of which has come on record of this Tribunal way back in January, 1997.
Learned Counsel has relied on the judgments of the Supreme Court in Harcharan Singh v. Shivrani and Ors., AIR 1981 SC 1284, where the Hon'ble Apex Court has held that "when a registered envelope is tendered by a postman to the addressee but he refused to accept it, there is due service effected upon the addressee by refusal; the addressee must, therefore, be imputed with the knowledge of the contents thereof and, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act".
He has also relied on Rule 30 of the CCS (CCA) Rules, 1965. In the circumstances, learned Counsel has contended that the information given to the applicant regarding the fate of his appeal and disposal of the same by the appellate authority vide his order dated 9.4.1996 having been sent to the applicant by Registered post on 26,4.1996 has to be presumed to be service on him in accordance with law.
4. The learned Counsel for the parties have also addressed us on the merits of the case, especially on the question of prejudice and non-supply of the Inquiry Officer's report to the applicant prior to the disciplinary authority's order dated 31.5.1995. It is seen from the order passed by the disciplinary authority that he has enclosed the copy of the Inquiry Officer's report dated 21.11.1994. Learned Counsel for the applicant has also very vehemently submitted that the applicant has never admitted the charges levelled against him and on the contrary he has emphasised that the whole thing was a "stage-managed affair", with the presenting officer and the inquiry officer and the Applicant was totally at the mercy of both". He has also contended that the applicant being a Group 'C' employee, MT Driver, was not conversant with English language. He has also referred to the statement made by the applicant in Gujarati, translation of which has been submitted and placed on record, dated 9.5.1994, in which he states that he has not admitted the charge, whereas on 3.11.1994 the Inquiry Officer has stated that he had admitted the charge, on the basis of which the disciplinary authority had passed the order dated 31.5.1995.
5. Another argument advanced by the learned Counsel for the applicant is that as the respondents have placed on record a copy of the appellate authority's order dated 9.4.1996 which is not a reasoned order, the case may be remitted to that authority to pass a reasoned and speaking order, in accordance with law, as this, according to him, will not cause any prejudice to the respondents.
6. We have considered the preliminary objections taken by the learned Counsel for the respondents regarding non-challenge of the appellate authority's order dated 9.4.1996 in the O.A. We see force in the submission made by the learned Counsel for the respondents. In spite of a categorical and clear statement made by the respondents, which has been verified by the competent authority in the written reply on behalf of the respondents, that they have sent the copy of the appellate authority's order dated 9.4.1996 by Registered post by Registration No.3299 dated 26.4.1996, (copy of the receipt of the registered post has been annexed as Annexure R-1) from which it is seen that it is addressed to the applicant at Daman, no where the applicant has averred that either the address or the name in the registered postal receipt does not pertain to him. We also see force in the submission made by Mr. V.S. Masurkar, learned Counsel that there are no reasons, let alone sufficient reasons, advanced by the applicant to explain why, if he had not received the copy of the appellate authority's order, he could not have brought the facts on record in the O.A. by filing a suitable reply to the reply filed by the respondents as far back as 13.1.1997. The other contention taken by Mr. G.S. Walia, learned Counsel that as the O.A. has been admitted on 25.10.1996, he need not have done so, is, to our mind, not a sufficient reasons because the respondents have stated that prior to the applicant filing the O.A. on 23.9.1996, the appellate authority has already disposed of the appeal vide his order dated 9.4.1996. Therefore, we do not see any merit in the submissions made by the learned Counsel for the applicant that under Section 19 of the Administrative Tribunals Act, 1985, further action has abated. In this case, the appellate authority's order, as seen from the records in the file, has been passed prior to the applicant filing the O.A. Therefore, in the facts and circumstances of the case, this contention of the learned Counsel for the applicant is rejected.
7. In the above circumstances, the applicant has also challenged the appellate authority's order dated 9.4.1996. Taking into account the judgment of the Supreme Court in Harcharan Singh 's case (supra) and the provisions of Section 27 of the General Clauses Act, 1897, read with Rule 30 of the CCS (CCA) Rules, 1965, the presumption that the applicant has received the copy of the appellate authority's order has not been rebutted in any way by the contentions of the learned Counsel for the applicant on his behalf that perhaps the applicant might have only received the empty envelope and so on. As the respondents have categorically made the averments, as referred to in their reply in paragraphs 11 quoted in paragraph 2 above, which averments have not in any way been rebutted at any stage in writing by the applicant, we see no reason to disbelieve the facts brought on record in the pleadings in the O.A. The judgment of the Hon'ble Supreme Court in Dilip Kumar Tripathy v. State of Orissa and Ors., 1996(3) SLJ 112 is also applicable to the facts in this case. The pleadings in the O.A, cannot be ignored and, as mentioned above, we have no reason to presume that the registered post letter sent by the respondent on 26.4.1996 has not been received by the applicant even till he filed the O.A on 23.9.1996, as nothing has come on record to show otherwise. Therefore, the plea of the learned Counsel for the applicant that we may direct the respondents to reconsider the appeal and pass a reasoned and speaking order at this stage will not arise. That plea is also rejected.
8. The other main contention of the learned Counsel for the applicant with regard to the disciplinary authority's order dated 31.5.1995 is on the ground that a copy of the Inquiry Officer's report dated 21.11.1994 was not given prior to the punishment order but only alongwith it. He has relied on the judgment of the Hon'ble Supreme Court in Union of India and Ors. v. Mohd Ramzan Khan, 1991(1) SCC 588=1991(1) SLJ 196 (SC). He has also contended that, as contended by the applicant in the appeal submitted to the respondents on 29.6.1995, if the Inquiry Officer's report had been given to him earlier, he could explain to the disciplinary authority that he had, in fact, not pleaded guilty before the Inquiry Officer who had mistaken his statement and his asking for mercy was not properly understood by the Inquiry Officer. To this, the learned Counsel for respondents has submitted that if, as contended by the learned Counsel for applicant, the applicant was under pressure from the Inquiry Officer and the Presenting Officer on 3.11.1994 when he is stated to have admitted his guilt and was forced to sign the order sheet of even date, he could have brought these facts to the notice of the disciplinary authority and the higher authority which he has failed to do. In the circumstances, learned Counsel for the respondents has submitted that no prejudice has been caused to the applicant and the judgment of the Supreme Court in Mohd. Ramzan Khan's case (supra) will not be applicable to the facts in the present case, as the applicant has admitted to his guilt and there was no question of holding the inquiry under the Rules. Mr. V.S. Masurkar, learned Counsel, has relied on the judgment of the Supreme Court in State of U.P. v. Harendra Arora and Anr., 2001(2) SC SLJ 29=2001(3) SLJ 421 (SC) wherein the judgment in Mohd, Ramzan Khan's case (supra) and other relevant judgments have been considered by the Apex Court. He has emphasised that what has to be seen in the present case is whether there has been actual prejudice caused to the applicant by not supplying the copy of the Inquiry Officer's report prior to 31.5.1995, He has further submitted that the order sheet dated 3.11.1994 which has been signed by the applicant alongwith the Inquiry Officer and Presenting Officer would have been given to him on the same date as per the procedural Rules. He has submitted that these facts have nol been disputed by the applicant and he cannot do so at this stage as an after thought. He has also relied on the judgment of the Supreme Court in Union Bank of India v. Vishwa Mohan, AIR 1998 SC 2311 = 1998(3) SLJ 207 (SC).
9. The learned Counsel for applicant has, on the other hand, submitted that by the above arguments, Mr. V.S. Masurkar, learned Counsel for respondents, is trying to shift the burden of proof regarding prejudice to the applicant which he cannot do. He has relied on the judgment of the Supreme Court in Sitaram Bhau Patil v. Ramchandra Nago Patil, AIR 1977 SC 1712. In Harendra Arora's case (supra), the Supreme Court has considered a catena of judgments, including the judgment of Mohd.
Ramzan Khan's case (supra) and State Bank of Patiala and Ors. v. S.K.Sharma, 1996(3) SCC 364, on the issue of whether non-furnishing of an inquiry report to the charged officer would automatically invalidate the order of dismissal. They have answered this query in the negative and have held that the order would not be invalidated unless it is shown that the delinquent has been prejudiced. Paragraph 23 of this judgment reads as follows: "Thus, from a conspectus of the aforesaid decisions and different provisions of law noticed, we hold that provision in Rule 55-A of the Rules for furnishing copy of enquiry report is procedural one and of a mandatory character, but even then a delinquent has to show that he has been prejudiced by its non- observance and consequently the law laid down by the Constitution Bench in the case of ECIL, to the effect that an order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by non-furnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnish ing copy of enquiry report under the statutory provisions and/or service rules". (Emphasis added) Applying the above law laid down by the Hon'ble Supreme Court to the facts and circumstances of the present case, we are unable to agree with the contentions of the learned Counsel for applicant that prejudice has been caused in the present case. The disciplinary authority has noted that the applicant had submitted his written statement of defence on 19.8.1994 of denying the charges and, therefore, the Inquiry Officer was appointed to inquire into the charges. The Inquiry Officer in his daily order sheet dated 3.11.1994 which has also been signed by the applicant, has noted that the applicant has admitted to his guilt. The record of proceedings of the inquiry has been produced by the learned Counsel for the respondents which has also been shown to the learned Counsel for applicant, which shows that it has also been signed by the applicant. In the facts and circumstances of the case, as held by the Supreme Court in a catena of judgments, we are unable to agree with the applicant's contention that prejudice has been caused to him by non-furnishing of the Inquiry Officer's report prior to 31.5.1995. We are also unable to agree with the contention of the learned Counsel for the applicant that there has been any shift of burden of proof of prejudice to the applicant because it has been laid down in the aforesaid judgments of the Supreme Court that in such cases, the delinquent has to show that he has been prejudiced by its non-observance, i.e. non-supply of the Inquiry Officer's report. It is also relevant to note that in the appeal filed by the applicant dated 29.6.1994, while he does refer to the contents of the Inquiry Officer's report in several places, nowhere he has brought to the attention of the authorities that a copy of the same has not been given to him which has caused him any difficulty or prejudice in filing the appeal. Therefore, this plea is also rejected. In the circumstances of the case, we also see no justification to interfere in the matter on any of the grounds taken by the learned Counsel for the applicant.
10. In the result, for the reasons given above, as we find no merit in this application, O.A. fails and is accordingly dismissed. No order as to costs.