1. Shri Sher Singh has filed this application under Section 19 of the Administrative Tribunals Act, 1985, and has sought the following reliefs: "(i) That by an appropriate writ, order or directions the impugned order No. 1278577/SK/DO-78/A2/Civ/CA-6/16 dated 31,1.92 (Annexure A/1), impugned order No. 1278577/SK/Diep/228/Civ./CA-6 dated 11.6.99 (Annexure A/2), impugned order No. 1276577/SK/Susp/235/Civ./CA-6 dated 20.9.99 (Annexure A/3, impugned order No. 1278577/SK/Susp/ 243/Civ/CA-6 dated 10.2.2000 (Annexure A/4) and impugned order No. A/24321/25/OS-BC(ii) dated 19.6.2001 (Annexure A/5) be declared illegal and be quashed and set aside by the Hon'ble Tribunal as if the same were never passed against the applicant.
(ii) That the respondents may be directed to refund the whole amount recovered from salary of the applicant in view of the impugned orders along with interest @ 12% p.a.
(iii) That the respondents may be directed to pay and allowances for the period of suspension along with interest @ 12% p.a.
(iv) Exemplary cost may be imposed against the respondents for causing unique harassment to applicant.
(v) Any other relief/s which is found just and proper in the facts and circumstances of the case may be passed in favour of the applicant by the Hon'ble Tribunal in the interest of justice." 2. As may be succinctly put, the factual matrix of this case is that the applicant was Vice President of 6 FOD Employees Union and while working on the post of Senior Store Keeper, was placed under suspension on 19.11.1991. Another order to this effect was also issued on 25.11.1991 (Annexure A/6). He was issued with a charge sheet vide Memo dated 31.1.1992 alleging violation of Rule 11 of CCS (Conduct) Rules, 1964. He denied the charges and explained the whole position in reply to charge sheet. An inquiry was conducted and the applicant was supplied with a copy of inquiry report by the Disciplinary Authority vide letter dated 20.4.1998. A representation was made against the findings of Inquiry Officer, after seeking a clarification that letter dated 8.8.1998 did not relate to him.
3. Thereafter, the applicant was imposed the penalty of reduction of pay by one stage for a period of one year with cumulative effect vide impugned order dated 11.6.1999 (Annex. A/2). The suspension order was also revoked with effect from 17.6.1999. Further, the period of suspension has been ordered to be treated as on duty but without pay and allowance except subsistence allowance already paid. An appeal against same came to be turned down vide order dated 10.2.2000 (Annex.
A/4).
4. The further case of the applicant is that he preferred an appeal dated 1.3.2002 to the 2nd respondent pointing out clearly that he wrote the letter dated 1.9.1991 in the capacity of Vice President of the Union and a citizen of country as it was his fundamental duty to save the property of nation. Presenting Officer acted as a witness and the Inquiry Officer cross examined him and there was violation of principles of natural justice. He was asked to explain the reasons for delay in filing of appeal. He explained the same as well as the whole position of the case. But, the appeal has been rejected vide impugned order dated 19.6.2001 (Annex. A/5).
5. The impugned orders have been assailed on number of grounds enunciated in Para 5 (A to L) of the original application. However, we shall be dealing with the grounds stressed during the arguments at an appropriate place in this order in subsequent paras.
6. The respondents have contested the case and have filed a joint counter reply. The facts and grounds mentioned in the O.A. have been generally denied. The applicant was not a Vice President of the so called Union which is not recognised. The applicant was held guilty of Articles I, III and IV and not guilty of Articles of Charge II. The suspension is not a punishment and applicant was paid subsistence allowance. His representation was considered but, he has been awarded a major penalty, thus, the claim of full pay and allowances is not admissible.
7. The further defence of the respondents as set out in the reply is that there was no procedural irregularity committed by them. The applicant was provided with all the reasonable opportunity to defend his case and there has been no breach of principles of natural justice.
The Rules of Conduct and Discipline, fully apply to the office bearers also. Article 51(a) of the Constitution of India, does not provide any right to any employee to communicate/address any information/letter to higher authority except through proper channel. The reply further contains that the Appellate Authority has considered all evidences and records made available, and also the penalty as commensurate with the misconduct committed by him. The application may, therefore, be dismissed with costs.
8. We have heard the arguments advanced by the learned Counsel for the parties at a considerable length and have bestowed our earnest consideration to the pleadings and the documents on records.
9. At the very outset, the learned Counsel for the applicant has drawn our attention to Para 13 (at page 84 of Paper Book) of the appeal dated 1.3.2000 (Annex. A/16) and submitted that CCS (CCA) Rule, 1965 as well as CCS (Conduct) Rules, 1964, under which, the inquiry has been conducted and charges have been framed, do not apply to the case of applicant who is a civilian in defence. Therefore, the whole disciplinary proceedings including penalty and suspension orders, is inoperative and void ab initio. Thereafter, he has reiterated the facts and some of the grounds stressed by him. He has stressed that the Inquiry Officer has acted like a prosecutor as well as Judge in as much as he has cross examined the applicant as well as Presenting Officer.
The Presenting Officer was a material witness in the case. The procedure adopted was most unfair and unusual. The applicant has not committed any misconduct; rather he endeavoured to unearth the corruption being practiced by the respondents. On his complaints certain recoveries were also made from the higher officers. He has, in fact, been victimised just because he was royal to the nation and performed his duty with zeal, courage and devotion.
10. On the contrary, the learned Counsel for the respondents has reiterated the defence of respondents as enunciated in the reply. He was confronted with two fold query by this Tribunal as to (i) what is the law which regulates the terms and conditions of services especially the disciplinary proceedings and under which law the civilian in defence can be placed under suspension (ii) and whether, Article 311 of the Constitution of India and the Rules framed under Article 309 of the Constitution of India, apply to his case. He was at difficulty to answer the same. However, he only submitted that the respondents have given reasonable opportunity to defend his case and the penalty/ appellate orders have been passed after due application of mind after following the principles of natural justice.
11. In order to appreciate the various contentions raised during the arguments, it is necessary to refer to various provisions in the matter as under: "Article 309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of such Act.
Article 310 (1). Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.
Article 311(1). No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges....
(1) These rules shall apply to every Government servant including every civilian Government servant in the Defence Services, but shall not apply to : (a) any railway servant, as defined in Rule 102 of Volume-I of the Indian Railways Establishment Code, (d) any person subject to discharge from service on less than one month's notice, (e) any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.
12. The various issues involved in this case, have in fact been already resolved by the Hon'ble Supreme Court in numerous decisions. There is rather unanimity in the view of Supreme Court which would be evident from the following statements of law: J.M. Ajwani v. Union of India, 1967 SLR 467 (SC). This was a constitution Bench judgment of Hon'ble the Supreme Court. The appellant was employed in Military Engineering Service as a Civilian and was dismissed from service. Their Lordships held that Article 311 of the Constitution of India, does not apply to the members of defence services.Lekh Raj Khurana v. Union of India, AIR 1971 SC 2111 (Constitution Bench). It was also a case of a civilian in defence, who was paid his salary from defence estimates. The appellant therein, was removed from service. Their Lordships have held as under: "4. The question whether the case of the appellant was governed by Article 311 of the Constitution stands concluded by two decisions of this Court. In Jugatrai Mahinchand Aljwani v. Union of India (C.A. 1185 of 1965 D/- 6.2.1967 SC), it was held that an Engineer in the Military Service who was drawing his salary from the Defence Estimates could not claim the protection of Article 311(2) of the Constitution. In that case also the appellant was found to have held a post connected with Defence as in the present case. This decision was followed in S.P. Behl v. Union of India, (C.A. 1918 of 1966 D/- 8.3.1968 (SC)). Both these decisions fully cover the case of the appellant so far as the applicability of Article 311 are concerned."Union of India and Anr. v. K.S. Subramanian, AIR 1989 SC 662--This was a case of termination of permanent and confirmed civilian worker in defence department. Their Lordships have examined the applicability of Article 311(2), and 309 of the Constitution of India and also the Rules framed under later Article and have observed as under: "10. By virtue of Article 311(2), no civil servant can be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges. Article 311(2) thus imposes a fetter on the power of the President or the Governor to determine the tenure of a civil servant by the exercise of pleasure. Tulsi Ram case, AIR 1985 SC 1416=1985(2) SLJ 145 (SC), concerned with the exclusion of Article 311 (2) by reason of second proviso there under. We are also concerned with the exclusion of Article 311 (2), if not by second proviso but by the nature of post held by the respondent. We have earlier said that the respondent is not entitled to protection of Article 311(2), since he occupied the post drawing his salary from the Defence/Estimates. That being the position, the exclusionary effect of Article 311(2) deprives him the protection which he is otherwise entitled to. In other words, there is no fetter in the exercise of the pleasure of the President or the Governor.
11. It was, however, argued for the respondent that 1965 Rules are applicable to the respondent, first, on the ground that Rule 3(1) thereof itself provides that it would be applicable, and second, that the Rules were framed by the President to control his own pleasure doctrine and, therefore, cannot be excluded. This contention, in our opinion, is basically faulty. The 1965 Rules among others, provide procedure for imposing the three major penalties that are set out under Article 311(2). When Article 311(2) itself stands excluded and the protection there under is withdrawn there is little that one could do under the 1965 Rules in favour of the respondent. The said Rules cannot independently play any part since the rule making power under Article 309 are subject to ArticleUnion of India v. S.B. Mishra, AIR 1996 SC 613=1996(1) SLJ 94 (SC), In this case, a penalty of compulsory retirement, was inflicted on a civilian in defence and the order of penalty was challenged on the ground that a copy of inquiry report was not furnished to the employee.
The case was allowed by the Tribunal but, their Lordships set aside the same with the following observations: "6. Thus, it is settled law that the Rules made under proviso to Article 309 will be subject to doctrine of pleasure enshrined in Article 310. Article 310(1) expressly excludes the applicability of the provisions of the Rules to the defence personnel. We, therefore, hold that the CCS (CCA) Rules have no application to the defence personnel. Consequently the respondent is not entitled to the supply of the inquiry report as contemplated Clause (2) to Article 311 of the Constitution read with the Rules. As a result, the order of the Tribunal directing the appellant to supply the copy of the inquiry report and to take further action thereon and to reinstate him till the inquiry is illegal. The order of the Tribunal is set aside."(SC)--Director General of Ordnance Services and Ors. v. P.N. Malhotra andUnion of India and Anr. v.K.S. Subramanian, AIR 1976 SC 2433, also, their lordships have held that the civilians in defence are not having the protection of Article 311 of the Constitution of India and CCS (CCA) Rules, do not apply to them.In the Management Hotel Imperial, New Delhi and Ors. v. Hotel Workers Union, AIR 1959 SC 1342, their Lordships dealt with the power of employer to suspend an employee. The Calcutta Bench of this Tribunal relied upon the same in a case relating to the validity of suspension order of a civilian in defence in case of Tapesh Chandra Saha v. Union of India and Ors., 2002(2) SLJ (CAT) 129 and has lucidly illustrated the legal position in the following words: "13. It may be stated here that the power of the employer to suspend an employee under the ordinary law of master and servant in the sense of a right to forbid a servant to work, is not implied in a contract between master and servant. Such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself vide The Management Hotel Imperial, New v. Hotel Workers' Union, AIR 1959 SC 1342. Their Lordships Delhi and others clearly held that the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so he will have to pay wages of the so called period of suspension. Thus the legal position is that an employer does not have an implicit power of suspending an employee. The power must come through the contract or must find place in the Rules framed under some statute. In the instant case, we have seen that the Rules of 1965, under which the applicant was placed under suspension, were not applicable to the applicant and therefore, the suspension of the applicant, by the respondent, was without jurisdiction." 13. From a reading of the aforesaid proposition of law, it is clear that the civilians in defence, do not have the protection of Article 311 of the Constitution of India and CCS (CCA) Rules, 1965 which have been framed under Article 309 of the Constitution of India, also do apply to them. We have also not been shown any other rule which may be applicable to such employees. In fact, no such rules regulating the disciplinary proceedings against civilians in defence, who are paid from defence estimates, are in existence. Admittedly, the applicant was placed under suspension under Rule 10 of CCS (CCA) Rules, 1965 and the disciplinary proceedings were also conducted under the said Rule 14 of the rules.
14. Taking the matter relating to suspension of applicant first, there admittedly no specific provision under any rules for placing a civilian in defence under suspension. The suspension of the applicant itself is without jurisdiction and inoperative in view of the decision of Hon'ble the Supreme Court in Management, Hotel Imperial's case (supra). Thus, the period of suspension will have to be treated as spent on duty for all the purposes.
15. As regards the other primary issues, the argument of the learned Counsel for the applicant that once CCS (CCA) Rules, 1965 do not have any application to his case, the complete disciplinary proceedings held under such rules are without jurisdiction being void ab initio and ex facie illegal besides there was denial of principles of natural justice. As far as the applicability of CCS (CCA) Rules, 1965, is concerned, the law position is not in dispute but, the Supreme Court has also held that these rules enunciate the principles of natural justice and no prejudice can be said to have been caused to an employee. Thus, we, inescapably, reach to the conclusion that the disciplinary proceedings cannot be declared as illegal on the ground that the same were conducted under the CCS (CCA) Rules, 1965. This contention stands repelled.
16. The next point argued by the learned Counsel for the applicant that there was denial of reasonable opportunity and proper procedure was not adhered to in as much the Presenting Officer was one of the material witness in the case and the Inquiry Officer cross examined him as well as the applicant by playing the role of prosecutor as well as of a Judge.
17. In the present case, the applicant has admitted to have the direct communication with the higher authorities but, his contention is that he did so in the capacity of Vice President of Trade Union which has been refuted by the respondents. The respondents have submitted that the office bearers are also subject to some standard of discipline to which there was no counter/rejoinder from the applicant side.
18. The learned Counsel for the applicant has placed strong reliance on the following decisions: (i) S. Krishnan Nair v. The Divisional Superintendent (PB), Southern Railway and Ors., 1973(2) SLR 353 (Kerala)=1973 SLJ 46 (Kerala).
Held--Where Enquiry Officer takes a different role, he becomes disqualified.
(ii) S.D. Bhargdwaj v. Union of India and Ors., 1983(1) SLR 32 (HP -DB)= 1982(2) SLJ 515. Held--Statement taken in the preliminary inquiry at the back of employee cannot be taken into consideration by the Enquiry Officer--Inquiry would be illegal and cannot be read in evidence.
(iii) Vijay Singh v. Wadia Institute of Himalayan Geology Society , 1990(1) SLR 32 (Delhi). Held--Member of the disciplinary committee appeared as a witness in inquiry--disciplinary proceedings are violative of rules of natural justice as such liable to be quashed.
(iv) Latoor Singh v. Union of India and Ors., 2003(1) ATJ 105 (CAT Lucknow). Held--Natural Justice--A document which is produced in the inquiry cannot be validity proved if the maker of that document is not summoned.In Kuldeep Singh v. Commissioner of Police and Ors., 1999 SCC (L&S) 429 Hon'ble the Supreme Court has held as under: "A. Departmental enquiry--Judicial review--Scope of, under Articles 226 and 32 -- Held, not totally barred -- Finding of guilty although would not be normally interfered with, held, the Court can interfere therewith if the same is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse or is made at the dictates of a superior authority." 19. We have considered the aforesaid contentions and arguments of the learned Counsel for the applicant and have also perused the aforesaid authorities upon which, strong reliance has been placed. The abstract application of the same would have countenanced the submissions of learned Counsel. But, with the conjoint consideration of special facts and circumstances of this case where the applicant does not dispute the factum of making correspondence with higher authorities directly, may be in the capacity of Vice President or as an individual, it is, definitely, not a case of no evidence and on that ground no interference can be called for.
20. Let us consider the submission made by the learned Counsel for the applicants from yet another angle. Of late, 'test of prejudice' has come to be introduced by the Apex Court by holding that in every case where the principles of natural justice are said to have been followed, it is not necessary to quash the offending order unless serious prejudice has been caused to the concerned employee. In the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh, (1966) 2 SLR 172, it was held that it is not necessary to quash the order merely because of violation of principles of natural justice. Earlier, the breach of principles of natural justice was in itself treated as prejudice and no other "de-novo prejudice" was needed to be prove. This line of reasoning was deviated from in the case of S.L. Kapoor v.Jagmohan, 1980(4) SCC 379 in which two exceptions were carved out, firstly, "if upon admitted or indisputable facts, only one conclusion was possible", then, in such case the principle that breach of natural justice was in itself a prejudice, would not apply. In other words, if no other conclusion was possible on the admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Secondly, in addition to the breach of natural justice, real 'prejudice' must also be proved to have been caused. This theory has been developed in the case of K.L. Tripathi v. State Bank of India, 1984(1) SCC 43=1983(2) SLJ 623 (SC), in which it was laid down that not mere violation of natural justice, but de facto prejudice had to be proved. The law on the point has been exhaustively dealt with in the case of State Bank of Patiala v. S.K. Sharma, 1996(3) SCC 364. In that case, principle of 'prejudice' has been elaborated. The same principle has been reiterated in Rajinder Singh v. State of Madhya Pradesh, 1996(5) SCC 460. In the case of M.C. Mehta v. Union of India, 1996(6) SCC 237, it was held that there may be certain situations in which an order passed in violation of natural justice need not he set aside, for example, where no prejudice is caused to the person concerned, interference of the Court is not necessary.
21. From the facts as have been set out above, it is clear that it is a case where the applicant has admitted the factum of making direct correspondence inter alia other matters, with the higher authorities and no prejudice can be said to have been caused to him in the present case. Hence, the action of the respondents in imposition of penalty on the applicant cannot be said to be faulty and thus, impugned orders relating to the penalty are in order and beyond question or scrutiny.
22. Before parting with this case, we would like to observe that civilians in defence constitute major part of the staff in defence establishments. But, unfortunately, there is no rule relating to conducting disciplinary proceedings against them. No conduct rules exist. Even, any order of suspending any of such civilian staff is a nullity. We are conscious of our jurisdiction and power that we can not direct the Competent Authority to frame service rules in respect of any class of employees, but, the necessity of having specific rules for regulating the terms and conditions of service for such a number of employees, can hardly be over emphasised. It would be in the interest of Government as well as the employees. Recently, Hon'ble the Supreme Court while declaring the employees of Unit Run Canteens in Army, Navy and Air Force, as Government employees, in the case of Union of India and Ors. v. Mohd. Aslam and Ors., 2001 SCC (L&S) 302=2001(2) SLJ 287 (SC), have directed the Defence Ministry to determine their (i.e.
employees of Unit Run Canteen) service conditions. The result of the same would be that the civilians employed in the canteens of defence establishments would be having service rules in regard to their service conditions but, other civilians in the same establishments will have no such rules. It may also be noted that the civilians seems to be in adverse position even though they are out of purview of Article 33 of the Constitution of India, which applies to the defence service personnel in uniforms in respect of whom the detailed procedure for taking disciplinary proceedings has been codified but no such course of action has been found expedient in respect of the civilian in defence like that of applicant.
23. Having regard to the provisions and position of law, the discussions made and for the reasons recorded herein above, we party allow this case. The impugned order dated 20.9.1999, 10.2.2000 annexed as Annexures A/3 and A/4, are hereby quashed and the period of suspension from 19.11.91 to 17.11.99, shall be treated as duty for all purposes including pay and allowances, seniority, promotion, qualifying service for pension etc. This order shall be complied with within a period of three months from the date of receipt of a certified copy of this order. No costs.
The Registry of this Tribunal is directed to send a copy of this order under the seal and signature, directly to the Secretary to the Ministry of Defence, Raksha Bhawan, New Delhi, so as to enable them to explore the feasibility and expediency, and framing of service rules in respect of civilian employees employed in defence establishment.