Full Judgment
The applicant had also prayed for interim relief seeking stay of further proceedings pursuant to Annexure 3. That prayer, however, was not pressed for order and hence no interim order was issued.
2. The facts of the case, in short, are as follows. The applicant had served as G.E., E/M, Chakeri. His Disciplinary Authority (Ministry of Defence) by their letter dated 26.4.1996 issued a show cause notice to him indicating their intention of holding an enquiry against him under Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 for alleged irregularities in purpose while he was serving as G.E., E/M, Chakeri during the period from 1.7.1984 to 29.6.1987. He was served with a show cause notice by the Chief Engineer (AF), Allahabad, in February 1993. The applicant, having been asked to show cause after a gap of 10 years from the date of certain actions being taken, requested for documents to submit his reply." Thereafter he submitted his reply to the show cause notice though documents sought by him were not supplied. Then after a lapse of three years, the Ministry of Defence by letter dated 26.4.1996, initiated a departmental enquiry against the applicant. The Inquiry Officer submitted his report in June 1998. A copy of this report was supplied to the applicant, calling upon him to submit representation, if any, against the said report. The applicant submitted his representation on 12.8.1998. After considering his representation, the Disciplinary Authority passed order on 24.9.1999 imposing penalty of reduction of his pay to a lower stage in the time scale of pay for a period of one year with cumulative effect. Being aggrieved by this order of penalty, the applicant has approached the Tribunal for justice.
3. The respondents have submitted a counter opposing the original application. The applicant has filed no rejoinder. During pendency of this original application, the Disciplinary Authority had completed the proceedings and had passed the final order in the matter because of which the applicant by submitting a Miscellaneous Application sought permission of the Tribunal to carry out amendment to the O.A. The said prayer of the applicant was allowed by the Tribunal vide its order dated 15.5.2002 and the applicant was called upon to file consolidated O.A incorporating the amendment, which was complied with. The respondents were given opportunity for filing counter, if any, to the consolidated O.A.4. We have heard Mr. Indrajit Ray, the learned Senior Counsel appearing for the applicant and Mr. A.K. Bose, the learned Senior Standing Counsel for the respondents and have perused the records placed before us.
5. The learned Counsel for the applicant assailed the disciplinary proceedings instituted against the applicant on several counts, the most important defect being the delay in initiation of the disciplinary proceedings. He drew our notice repeatedly to the fact that the action(s) of the applicant which were the subject-matter of the disciplinary proceedings, had taken place ten years before the applicant was asked to show cause why disciplinary action should not be taken against him, i.e., in 1993. The applicant promptly responded and asked for documents to enable him to give reasons behind the decision that he had taken ten years back. The applicant did not receive the documents and therefore, submitted his reply based on his memory.
Paragraph 8 of his reply under Annexure 2 dated 20.3.1993 reads as follows: "8. The entire reply is based on my memory on the subject. This could be modified on perusal of the documents requested from GE (EM) Chakeri vide my letter No. DO/KLS/201815/52/E4, dated 15 March '93 and DO/ KLS/201815/54/E4, dated 18th March, 1993," In spite of such a submission made by the applicant, no response was received from the Disciplinary Authority in the matter. Then after a lapse of three years, the chargesheet was issued in 1996. Secondly, the learned Counsel for the applicant submitted that the charges in the chargesheet dated 26.4.1996 were different from the charges in the show cause notice dated 15.2.1993 and no reasons were given by the Disciplinary Authority for carrying out changes in the charges. Some charges were also changed during the inquiry. A Disciplinary Authority is precluded from resorting to mid-term correction of charges. Should he feel impelled to carry out changes in the charge sheet, he shall have to drop the earlier proceedings before he can move forward, the learned Counsel contended. Thirdly, he submitted that this is a case of no evidence, that the whole case from start to finish was carried out without having any material evidence to support it, that the prosecution had only one witness, that it held enquiry for only one day, i.e., on 12.2.1998, and that the entire proceedings were carried out in violation of Paragraph 18 of Rule 14 of the CCS (CC A) Rules when the Inquiry Officer had examined the charged officer in course of the inquiry. Because of all these shortcomings in the process of enquiry, he submitted, that the Inquiry Officer had seriously breached the rules of natural justice and as a result prejudiced the rights and interest of the applicant. Fourthly, he pointed out that the Disciplinary Authority differed with the findings of the Inquiry Officer, but the reasons for differing with the report of the Inquiry Officer were not made known to the applicant, which had seriously prejudiced the applicant. Such a defect is incurable and the Courts in a catena of decisions have repeatedly stressed this point. In this case, the Disciplinary Authority awarded the punishment without serving any notice on the applicant or hearing him. Fifthly, the punishment order of the Disciplinary Authority, he pointed out, is also defective.
The order reads as follows: "...... the ends of justice will be fully met if a penalty of reduction of his pay to a lower stage in the time scale of pay for a period of one year with cumulative effect is imposed...." The learned Counsel for the applicant, drawing our notice to Rule 11 of the CCS (CCA) Rules under heading "Major Penalties", submitted' that the words "cumulative effect" do not find place under Rule 11(v) and therefore, the punishment order is defective on the ground of non-application of mind and this has to be set aside. He thus concluded that because of the above legal infirmities covering the disciplinary proceedings from the start to finish, it is a case where the Court must intervene for the sake of justice and fair-play.
6. Mr. A.K. Bose. the learned Senior Standing Counsel, contesting the allegations made by the applicant both in his application as well as through his learned Counsel, stated that mere delay in initiation of the disciplinary proceedings is not a valid reason for the Courts to intervene in the matter. He also emphatically denied the allegation of no evidence in this case because no such plea he had ever taken earlier during the inquiry. In this regard, he relied on the judgments of the Apex Court rendered in the case of Director General, Indian Council of Medical Research and Ors. v. Dr. Anil Kumar Ghosh and Anr., AIR 1998 SC 2592=1999(I) SLJ 288 (SC). He denied that the Inquiry Officer by examining the delinquent officer during enquiry, had contravened any of the provisions of the CCS (CCA) Rules. He clarified that the Inquiry Officer had generally examined the delinquent officer and did not use the outcome of his examination as evidence against the charged official. In the circumstances, no objection can be taken against the procedure adopted by the Inquiry Officer. The learned Senior Standing Counsel further submitted that the Tribunal has got limited role to play in the matter of disciplinary proceedings. It can intervene only when the punishment order is shockingly disproportionate to the charge(s) or when the order of the Disciplinary Authority is perverse and not for any other reason.
7. Having heard both the learned Counsels and going through the objections issues raised by both the parties for and against the proceedings as carried out in this case, we have given our best thoughts in the matter. The following are the most important characteristics of the disciplinary proceedings that were earned out against the applicant. These are: (1) delay in initiation of disciplinary proceedings, (2) case of no evidence, (3) differing from the Inquiry Officer without following due procedure, and (4) denial of hearing before imposition of punishment. We now proceed to examine whether the instant case is affected by any of these defects which may compel us to intervene in the matter.
8. With regard to delay in initiation of disciplinary action, the allegation of the applicant is that he got the first notice about such an enquiry ten years after he had left his charge as G.E. Chakeri. The respondents have not denied this. They had taken further three years, alter serving on him the show cause in 1993, to start the enquiry in 1996. The respondents have not rebutted these facts nor has any credible reason been adduced either in the counter or during the oral argument for us to gloss over this allegation. Thus it is accepted that there was delay of 10 to 13 years in initiating disciplinary action in this case. The learned Senior Standing Counsel had contended that delay alone should not be a cause for the Court to intervene in the matter.
We have considered his submissions, but we are unable to accept his plea, because of a number of judgments of the Apex Court available in this regard. In this connection, we have perused the judgment of the Apex Court rendered in the case of State of Andhra Pradesh v. N.Radhakishna, (1998) 4 SCC 154=1998(3) SLJ 162 (SC), where the following observation was made : ".........If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations." Their Lordships in the case of State of Punjab and Ors. v. Chamanlal Goyal, (1995) 2 SCC 570=1995(2) SLJ 126 (SC), decided how the question of delay affects the outcome of disciplinary proceedings. Their Lordships observed as follows: "...........There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges....." As we have found earlier that delay in this case has been shockingly over a decade and no explanation whatsoever has been placed before us justifying the delay being out of the control of the respondents, we feel that it is a bit case to intervene in the matter.
9. The next allegation is that the applicant was denied of second show cause notice. It is well-settled position of law of the land that the Disciplinary Authority is required to give opportunity of representation before differing with the findings of the Inquiry Officer. This is based on the principles of natural justice as enunciated by the Apex Court in the case between/Managing Director, ECIL, Hyderabad, etc. etc. v. B. Karunakar, etc., etc., AIR 1994 SC 1074=1993(3) SLJ 193 (SC). If the principles of natural justice are not observed in a disciplinary case, the proceedings are bound to be vitiated. The Apex Court has dealt with this question in the case of Institute of Chartered Accountants of India v. I. K. Ratna and Ors., AIR 1987 SC 71, where it observed that the Disciplinary Authority is obliged to give reasons for its findings that the member is guilty of misconduct so as to enable the member to effectively exercise his right of appeal. The learned Counsel for the applicant has emphatically drawn our notice to the fact that the Disciplinary Authority did not hear the applicant before awarding punishment. It was also alleged that the applicant was never confronted with the fact that the Disciplinary Authority proposes to differ with the findings of the Inquiry Officer.
Thus, he passed an order of punishment behind the back of the charged officer. While making this submission, the learned Counsel drew our notice to the judgment of the Apex Court rendered in the case of Yoginath D. Bagde v. State of Maharashtra and Anr., AIR 1999 SC 3734, where Their Lordships held that the "Disciplinary Authority has to indicate to the delinquent officer the tentative reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the findings of the Inquiring Authority are not liable to be interfered with." Their Lordships also held that denial of such an opportunity will violate the principles of natural justice.
10. The next contention of the learned Counsel for the applicant is that this was a case of no evidence, because the prosecution called only one witness. The witness was called to depose before the Inquiring Authority oh 12.2.1998. In his evidence, all that he said was as follows: ".... I am aware about the inquiry against Shri K.L. Sharma except when I was called for giving my evidence on summons of the Inquiry Officer......" and then he concluded his evidence by saying, "I have no knowledge of this case." The inquiry was held only for one day, i.e., on 12.2.1998.
Thus, the inquiry was completed on the basis of documents placed before the Inquiry Officer. The respondents did not have any special light to throw on this aspect of the case. That apart, the learned Counsel for the applicant also drew our notice to the summary of the Inquiry Officer's report (Paragraph 5.2) where he had concluded as follows; "..... But in absence of any evidence produced by the prosecution, the part relating to the placing of huge job orders, placing repeat orders on comparatively higher rates and causing huge financial loss to the State is not proved." At the end, his findings were that Article I was not proved and Article II was partly proved. The learned Counsel for the applicant submitted that the findings of the Inquiry Officer with regard to Article II is incorrect as mere existence of irregularity cannot mean that that part is proved. A perusal of Paragraph 5.2 of the report of the Inquiry Officer leads us to accept the contention of the learned Counsel for the applicant.
11. Having regard to the facts of the case, the specific issues raised before us by the learned Counsel for the applicant and the law settled in the said regard by the Apex Court, we are of the view that the delay has been the most dominant characteristic in this case, followed by non-supply of documents to the applicant and denial of the principles of natural justice, like not hearing before handing over punishment, differing with the report of the Inquiry Officer without giving reasons, etc. The applicant had also been seriously prejudiced because of ever changing nature of the charges brought against him. Last but not the least, the order of the Disciplinary Authority suffers from multiple defects, which can hardly be tolerated. In his order, the Disciplinary Authority introduces the concept of "cumulative effect" of the punishment and surely the Disciplinary Authority never thought that he could write the statute book afresh for the purpose of awarding penalty. Under Rule 11(v) of the CCS (CCA) Rules, there being no concept of punishment having cumulative effect, the punishment order is bad ab initio, over and above the fact that the applicant has been denied the benefit of natural justice in more than one way. We have, therefore, no hesitation in calling the punishment order as perverse and quashing the order dated 24.9.1999 in Annexure 16.
12. Their Lordships in Yoginath D. Bagde's case (supra) had observed that the law is well established that if the findings are perverse and are not supported by evidence on record, it would be open to the Court to interfere in the matter. Their Lordships had also observed that although the Court cannot sit in appeal over the findings recorded by the Disciplinary Authority in a departmental enquiry, it does not mean that in no circumstance can the Court interfere, and then concluded that "Courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse".
13. As we have noted earlier that this case suffers heavily on account of delay in initiation of the disciplinary action and when the same was initiated, the principles of natural justice were thrown to the winds and the Disciplinary Authority did everything to prejudice the interest of the applicant.
14. In the circumstances, this original application succeeds and we accordingly quash the orders of the Disciplinary Authority, dated 24.9.1999 and 6.6.2000 (Annexures 16 and 17). No costs.