Judgment:
V. K. Bali, Chairman:
P. C. Tomar, a retired employee of Municipal Corporation of Delhi, the applicant herein, complains of harassment meted out to him by the respondents eversince 1986 when he was holding the post of Deputy Director (Horticulture), which continued unabated even after his retirement. The applicant states that continuing with the departmental enquiry against him even when he has since been exonerated not once, not twice, but thrice, is only witch-hunting. Is it so? The facts will speak.
2. The applicant came to be appointed as Overseer (Garden) in the year 1961. He was regularized on the post of Assistant Superintendent (Garden)/Assistant Director (Horticulture) in the year 1978, and promoted as Deputy Director (Horticulture) in the year 1986. He superannuated on 30.11.2003. He belongs to Scheduled Caste category. In the year 1986, a complaint was filed against the applicant that his SC certificate was not genuine. Allegations of forgery and fabrication were raised. The matter was enquired into by referring the same to Deputy Commissioner, Delhi by the Corporation, first respondent herein. The Deputy Commissioner after making detailed investigation in the matter came to the conclusion that the applicant indeed belonged to SC and the certificate given to him in that regard was genuine, bona fide and valid. The findings of the aforesaid enquiry, which was by a competent authority, were accepted. As per the case set up by the applicant, the matter stood conclusively determined in his favour and that no further enquiry ought to have been initiated in that regard. The applicant has placed on records as Annexure P-1 communication dated 26.11.1986 of Deputy Commissioner, Delhi, which recites that on verification it has been established that Sh. Prem Chand Tomar s/o Sh. Tota Ram belongs to Mallah caste which has been recognised as Scheduled Caste in the Union Territory of Delhi. Hence he is entitled for all the benefits extended to the Scheduled Caste persons. It is the case of the applicant that he belongs to SC category and had done exceptionally well in his service career, which was, however, not to the liking of certain persons in the department, and they left no stone unturned to harass him and deny him promotion to higher post, and further that false allegations were raised against him and he was implicated in a false case. Disciplinary proceedings were initiated against him in the year 1993 and he was placed under suspension. The entire effort, it is further the case of the applicant, was to deny him promotion as the Departmental Promotion Committee for the post of Director (Horticulture) was to be held in the year 1993. The said Committee did meet and placed the applicant at serial no. 1 in the merit list. However, due to departmental proceedings pending against him, sealed cover procedure was followed and he was not promoted. It is then his case that the nefarious designs of persons who were targeting him stood fulfilled on denial of immediate promotion to him. The applicant was, however, reinstated in service on revocation of his suspension in the year 1998, and he was exonerated of the allegations in the enquiry report dated 19.11.1998. Even though, an enquiry had been conducted in respect of the applicant with regard to his caste in the year 1986 and it was held that he belonged to SC category, another complaint was initiated against him. The matter was once again, referred to Deputy Commissioner who submitted his report dated 3.5.1995 inter alia stating that the certificate issued to the applicant with regard to his SC status was not a genuine one and had been obtained on the basis of incorrect information. This order came to be challenged by the applicant in WP (C) No. 80/1996 before the Hon’ble High Court of Delhi. The first respondent meanwhile sought to terminate the services of the applicant on the basis of aforesaid report of Deputy Commissioner by initiating proceedings for imposition of major penalty by issuing charge-sheet 5.2.1997. This too was challenged by the applicant in the same very writ petition, and the Hon’ble High Court on consideration of the matter stayed the operation of order dated 3.5.1995. Vide order dated 2.12.2002, the High Court directed that the enquiry into the allegations be concluded within a period of 15 days and thereafter appropriate action be taken by the respondent Corporation. The enquiry proceedings were initiated pursuant to directions of the High Court. The same were primarily on two grounds the first being that the applicant had fraudulently obtained a Scheduled Caste certificate dated 28.12.1966 by declaring himself to be belonging to Mallah caste, whereas he was Dhiwar by caste; and secondly that he had obtained benefits under the Corporation on the basis of a wrong caste certificate. The enquiry officer after considering the evidence submitted his report dated 24.12.2002. With regard to the allegation that the applicant had fraudulently obtained a caste certificate, it was conclusively held by the enquiry officer that no fraudulent motives could be imputed to the applicant and that the department had not been able to bring on record any conclusive evidence to establish the charge that the applicant had played fraud or deliberately misrepresented in order to obtain the caste certificate dated 28.12.1966. With regard to the second allegation, however, it was held that the applicant was Dhimar by caste and not Dhiwar. It was also held that Dhimar is synonyms of Mallah caste and since Mallah was the notified caste in SC category, Dhimar was to be given the certificate specifying them as Mallah. Despite the finding as mentioned above, the enquiry officer came to the conclusion that the applicant had obtained the benefit of SC certificate at the time of selection as Assistant Director (Horticulture) as also at the time of his promotion on the post of Deputy Director (Horticulture). The enquiry officer, however, concluded that the applicant had not obtained any benefit at the time of his original selection. It is the case of the applicant that once, the conclusion was drawn that the caste certificate had not been obtained by fraudulent means and he indeed belonged to SC category, and he was entitled to a certificate being issued in that regard, the enquiry officer clearly erred in coming to the conclusion that the second charge was partly proved against him. The applicant submitted a detailed reply with regard to the part of the report of the enquiry officer holding him guilty, and the Corporation in consideration of the same in the House, passed resolution No. 266 dated 25.8.2003 and came to the conclusion that the allegations against the applicant were not proved and, therefore, he was liable to be exonerated of the same. It is the case of the applicant that insofar as, the order passed by the disciplinary authority, i.e., the respondent Corporation, exonerating him is concerned, the same has attained finality, and against such exoneration there is no provision of appeal by the Corporation. In the meantime, the applicant superannuated on 30.11.2003. Despite exoneration of the applicant, the respondent corporation referred his case to the Central Vigilance Commission (CVC). It is the case of the applicant that there is no provision under the Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter to be referred as the Regulations of 1959) for any such reference to be made, and that reference to the Commission in the said Regulations, wherever it occurs, is to Union Public Service Commission and not CVC, and further that wherever any advice or opinion is to be sought for with regard to appointment of any officer or any other matter relating to his service, it is only the opinion of Union Public Service Commission which can be obtained, which is also advisory in nature. It is thus the case of the applicant that referring the matter to CVC would be contrary to law. CVC vide its letter dated 17.10.2003 advised the respondent Corporation to impose a suitable major penalty on the applicant. The matter thus came to be put up again before the Corporation for re-consideration in terms of the letter received from CVC. The Corporation once again, considered and reviewed the entire matter including the recommendation of CVC and vide resolution No. 660 dated 12.1.2004 reiterated its resolution No. 266 dated 25.8.2003, thereby again exonerating the applicant. The first respondent issued letter dated 1.3.2004 intimating the applicant that he had been exonerated of the charges leveled against him. On 20.4.2005, the applicant wrote to the first respondent that since in terms of order dated 1.3.2004 he had been exonerated of all the charges, he should be granted all benefits under F.R. 54(1)(b) by treating his suspension period from 24.8.1993 to 8.2.1998 as spent on duty for all purposes and for re-fixation of pay for the tenure till retirement up to 30.11.2003. He sought for payment of his retirement dues. The first respondent would not, however, release the benefits available to the applicant under F.R. 54(1)(b) and retirement dues. Despite the two resolutions referred to above exonerating the applicant, once again, CVC vide letter dated 15.3.2004 stated that since the decision of the Corporation was in disagreement with the advice of CVC, the same was being included in the Commissions annual report for 2004 as a case of disagreement. On receipt of the letter aforesaid, the matter was once again re-considered and reviewed. On reconsidering the matter as well, vide resolution No. 628 dated 21.2.2005, while taking into consideration the comments of CVC, as mentioned above, it was resolved that the decision already taken by the Corporation vide its resolution No.660 dated 12.1.2004 be reiterated. On each occasion, it was found by the competent authority, i.e., the first respondent, that there was no ground to take any disciplinary action against the applicant. Despite the fact that the first respondent, the disciplinary authority in the case of the applicant, is bound by its own decision, the Commissioner, MCD preferred a review before the Lt. Governor, the second respondent herein under regulation 16 of the Regulations of 1959. It is the case of the applicant that the second respondent without issuing any show cause notice to him and without granting him an opportunity of hearing, directed to institute review proceedings in respect of the Corporations third review resolution dated 21.2.2005 exonerating the applicant for the third time. The first respondent issued a show cause notice dated 16.3.2006 informing the directions of the second respondent to initiate review proceedings against the applicant and calling upon him to show cause as to why penalty orders for suitable cut in pension be not inflicted upon him. Vide letter dated 25.3.2006 the applicant responded to the show cause aforesaid and brought out the fact that the entire exercise initiated against him was contrary to law. He also sought that the material and basis on which the second respondent had initiated review proceedings against him be intimated to him to enable him to file a suitable reply. In response to the letter aforesaid, the respondents intimated him vide letter dated 11.7.2006 that since the enquiry had already been conducted, there was no need to conduct any other enquiry and supply any documents as a decision was to be taken on the basis of the material available on records. The applicant was not intimated as to on which particular part of the records reliance was being placed to impose a penalty upon him. The applicant vide letter dated 5.8.2006, once again called upon the second respondent to disclose the reasons, material and basis on which he had decided to initiate review proceedings against the applicant. It is the case of the applicant that the reasons for disagreement were also liable to be disclosed to him as he was required to respond to the entire matter. The applicant also apprised the first respondent of the legal position, which, according to him, would not permit review of the order exonerating him. The applicant, however, came to be visited with the penalty of 10% cut in pension vide order dated 21.8.2007. It is this order that has been challenged in the present Application. In consequence of setting aside of the order aforesaid, the applicant further prays that the first respondent be directed to grant all admissible benefits under FR 54(1)(b) to the applicant by treating the suspension period from 24.8.1993 to 8.2.1998 as spent on duty for all purposes and grant other benefits admissible under rules till the date of his retirement on 30.11.2003.
3. Pursuant to notice issued by this Tribunal, the first respondent has filed its reply contesting the cause of the applicant. Insofar as, the second respondent is concerned, it would be clear from the proceedings before the High Court dated 4.4.2008 that counsel for the said respondent stated that he would not wish to file any counter affidavit. Arguments in this case were heard on 15.5.2009. During the course of hearing when we tentatively and prima facie observed that unless reasons for disagreeing with the view of the disciplinary authority, i.e., the first respondent, were communicated to the applicant, the impugned order may have to be set aside, Ms. Smita Shankar, counsel representing the respondents urged that the reasons differing with the view taken by the enquiry officer and the disciplinary authority may be available on records. She also stated that the file may also show communication of such reasons to the applicant. On the statement made by the learned counsel, as mentioned above, reluctantly though, we adjourned the matter by recording the following order on 15.5.2009:
Arguments have been heard in this case. On conclusion of arguments, Ms. Smita Shanker, counsel defending the respondents Corporation, states that records may be available with the respondents Corporation, which may reveal the material on which the concerned authorities reviewed their earlier decision. There also may be record to show that some authorities had recorded some reason for differing with the report of the enquiry officer and disciplinary authority.
2. We are of the view that the counsel would have made such a statement if there had been definite instructions to that effect. All that has been stated is that there may be some record but there is no definite information with the counsel. However, in the interest of justice, we defer orders today.
3. List the matter again on 18.05.2009. Counsel for the respondents may bring the record, as suggested by her.
The learned counsel has brought the entire records, but reference has been only made to the order of the Lt. Governor dated 10.10.2007, which would indeed show that a show cause notice was given to the applicant on 16.3.2006 but the same was to communicate him the intent of the Lt. Governor of imposing a suitable cut in pension. In paragraph 4 of the order, the contentions raised by the applicant with regard to there being no provision for appeal against exoneration and regulation 16 being applicable only to appeasable orders, his exoneration, and passage of a period of more than 2= years at a belated stage, have been raised. In paragraph 5, reference is to regulation 16(1)(iii) of the Regulations of 1959, which would allow the reviewing authority to confirm, reduce, enhance or set-aside the penalty order. Paragraph 6 which is the operative part of the order, reads as follows:
6. I have gone through the charges, findings of the Inquiring Authority, order of the Disciplinary authority, the request of Commissioner, MCD, for instituting review proceedings, the representation of the delinquent officer against the Show Cause Notice issued to him and the relevant records of the case. I find that the averments made by Shri P.C.Tomar are devoid of any merit. I, therefore, disagree with the orders dated 01.03.2004 passed by the Corporation exonerating Shri P.C.Tomar, Director (Hort.), MCD (now retired) and recommend a 10% cut in his pension for two years to MHA for Presidential orders under Rule 9 of the CCS (Pension) rules, 1972. I order accordingly. The MCD may take necessary steps for the same. Shri P.C.Tomar, Director (Hort.) (Retd.) be so informed.
The learned counsel would concede that on the file there is absolutely no reason recorded by any authority that may show that any such authority had differed with the view of the enquiry officer or the disciplinary authority. From the order referred to by the learned counsel, it is quite apparent that notice issued to the applicant was only with regard to proposed punishment, which was cut in pension. We need not delve on this issue any more, as surely, and admittedly, the notices issued to the applicant in that regard, available on records, are only with regard to proposed punishment of cut in pension. What thus clearly emerges is that while inflicting the punishment upon the applicant, there is no reason recorded by any one, inclusive of the order passed by the Lt. governor adverted to above, which may record reasons for differing with the view expressed by the enquiry officer and the disciplinary authority. The learned counsel representing the respondents has even not chosen to refer to the counter reply to suggest that there were indeed some cogent reasons for differing with the view of the enquiry officer and the disciplinary authority. All that has been urged during the course of arguments is that the Lt. Governor had passed the order and the applicant has arrayed him as a party respondent, and the counsel would not be able to answer as to whether any reasons differing with the view of the enquiry officer and the disciplinary authority were recorded or communicated to the applicant, and that it is for the second respondent to answer the said question. The second respondent, as mentioned above, has chosen not to file reply despite opportunity given in that behalf. It is not even in dispute during the course of arguments that even the grounds of review submitted by the first respondent were never communicated to the applicant. What thus transpires is that but for the advice of CVC, which too was admittedly not communicated to the applicant, there is no difference of opinion expressed by any one.
4. There are number of points which have been raised in support of the present Application, like there being no provision for appeal or review against exoneration of an employee sequel to a departmental enquiry, and resort to regulation 16 by the Lt. Governor was wholly illegal; cut in pension would be beyond the scope of regulation 16, particularly when the applicant had retired and there was no relation of master and servant between the applicant and the Corporation; no penalty of cut in pension having been provided under the Regulations of 1959 either as a minor or major punishment; and reference to CVC was illegal, as if at all the Corporation was to seek advice, it could have been from UPSC only, which too, would be advisory in nature, whereas in the present case, the Corporation has considered the advice of CVC as binding upon it. In our view, it would be unnecessarily burdening the judgment to deal with all the points mentioned above. This Tribunal is of the firm view that without recording reasons for differing with the findings of the enquiry officer and the view taken by the disciplinary authority, and without communicating it to the applicant so that he could file a meaningful representation against the same, the impugned order needs to be set aside, both on the basis of provisions of regulation 16 of the Regulations of 1959, under which review was sought and ordered, as also principles of natural justice. Before we may, however, give reasons for our finding as mentioned above, we may mention that the charge framed against the applicant was of fraudulently obtaining a Scheduled Caste certificate and availing the benefits/concessions in promotion while in municipal service. The charges as framed by the enquiry officer against the applicant read, thus:
Shri P. C. Tomar has been functioning as Director in Horticulture Department of MCD since January, 1992. He failed to maintain devotion to duty and absolute integrity and committed grave misconduct which is unbecoming of a municipal employee on the following counts:
He fraudulently obtained a Scheduled Caste Certificate bearing No.2033/Caste/Misc./66(M) dated 28.12.1966 from the Office of Dy. Commissioner, Delhi, declaring himself belonging to Mallah caste and a resident of Delhi though he is Dhiwar by caste and was born at Etah in U.P.
He while in municipal service availed benefits/ concessions in promotion etc., on the basis of the above wrong caste certificate which are made available only to the persons belonging to Scheduled Castes under reservation policies as laid down by Govt. of India from time to time.
He, thereby, contravened Rule 3(1) (i) (ii) (iii) of the CCS (Conduct) Rules, 1964 and made applicable to the employees of MCD.
The enquiry officer while considering the evidence, both oral and documentary, as also the defence projected by the applicant, summed up his conclusion as follows:
Shri P.C. Tomar was born at Etah in Uttar Pradesh, he is Dhimar by caste and not (Dhiwar) as alleged. As such he was not entitled to obtain a Scheduled Caste Certificate from the Dy. Commissioner, Delhi. Further Dhimar and Mallah are synonyms of each other. He was ordinarily resident of Delhi at the relevant time and considering him as such, the Scheduled Caste Certificate seems to have been issued to him by the Competent Authority. There is no conclusive evidence to prove that he obtained the Scheduled Caste Certificate by fraudulent means or by misrepresenting the facts before the Scheduled Caste Certificate Issuing Authority.
Further, Shri P. C. Tomar did not avail any benefit of the Scheduled Caste Certificate at the time of his initial appointment in the MCD, however, he got the benefit/concession at the time of his selection as Assistant Director of Horticulture and also was considered as a Scheduled Caste candidate at the time of his promotion to the post of Dy. Director of Horticulture.
The charge is proved to the extent as mentioned above.
The enquiry officer gave his report on 24.12.2002. The Corporation, when the enquiry report was put up before it, vide resolution No. 266 dated 25.8.2003 exonerated the applicant. We may make a mention of the representation made by the applicant on the crucial issues subject matter of charge, which reads as follows:
4. In regard to the findings of the I.O. in respect of Part (i) of the charge, the learned I.O. has himself held that there is no evidence to show that I obtained S.C. Certificate by fraudulent means or by misrepresenting facts. The I.O. has also held that I was born in U.P. and was Dhimar by caste and since Dhimar and Mallah are synonyms of each other and I was ordinarily resident of Delhi at the relevant time of issue of certificate, the certificate has been issued to me by the competent Authority. Hence the first part of the charge stands automatically demolished.
5. Part (ii) of the charge is that I availed benefit in promotion on the basis of the Scheduled Caste Certificate dated 28-12-1966. It is true that I was allowed the benefit of the S.c. Certificate in promotion as Asstt. Director and also as Dy.Director. This was after a detailed verification carried out in 1986 vide Ex.D-2. But the precise question for determination of the part of the charge is as to whether I was entitled to get the S.C. Certificate as an ordinarily resident of Delhi or not. The learned Inquiry Officer has himself given the finding in respect of Part (i) of the charge that Dhimar and Mallah are synonyms of each other and I was ordinarily resident of Delhi at the time and therefore, the S.C. Certificate has been issued to me by the Competent Authority and that there is no evidence to prove that the said S.C. Certificate was obtained by me by fraudulent means or by misrepresenting the facts before the Scheduled Caste Certificate Issuing Authority. Once it is held by the Inquiry Officer that the S.C. Certificate, in question, was not obtained by any fraudulent means or by misrepresenting facts and that the S.C. Certificate has been issued by the Competent Authority on the ground that Dhimar and Mallah are synonyms of each other and I was ordinarily resident of Delhi at the relevant time of issue of certificate, the said certificate cannot be termed as wrong. It is a valid certificate, issued by the Competent Authority strictly in accordance with the then existing orders.
Resolution No.266 dated 25.8.2003 reads as follows:
Having considered the Inquiry Report, reply submitted by Shri P.C. Tomar and allied records annexed as Annexures A and Brespectively to Commissioners letter No.F.33/Vig./404/CandC dated 3-3-2003 and the recommendations made by the Appointments, Promotions, Disciplinary and Allied Matters Committee vide its Resolution No.7 dated 5-6-2003, resolved that Shri P.C. Tomar, Director (Hort.) be exonerated from the charges leveled against him.
S
While recording its decision as reproduced above, it would be made out from the records, not only the entire enquiry report was before the Corporation, but the representation of the applicant was also there. An elaborate mention of the same has been made before arriving at the conclusion. We may only mention that once, the first charge was not proved there was no question of holding the second charge as proved. This was the precise plea raised by the applicant, which may not have been mentioned in the resolution reproduced above, but shall be deemed to have been accepted. We reiterate that if the applicant was a person belonging to Scheduled Caste category and was rightly issued the caste certificate, he was entitled to avail such benefits as may accrue to him because of his belonging to that category, and, therefore, the second charge was wrongly held proved by the enquiry officer. The second resolution, once again exonerating the applicant bearing No.660 came to be passed on 12.1.2004. The resolution after tracing the earlier history of the case, makes a mention of the advice of CVC, which has been reproduced in the resolution, which reads as follows:
The Commission have perused the facts of the case. It does not agree with the recommendation of the disciplinary authority to exonerate Shri Tomar. Keeping in view the totality of the circumstances, the Commission advises imposition of a suitable major penalty on Shri P. C. Tomar, Director (Hort.).
It is then mentioned that the advice of CVC was placed before the Corporation with the request to re-consider their earlier decision. The Corporation, however, after considering the records, resolved to exonerate the applicant. The resolution reads as under:
Having considered the position as brought out by the Commission in its letter No.F.33/Vig./2222/CandC dated 6-11-2003, and the recommendation made by the Appointments, Promotions, Disciplinary and Allied Matters Committee vide its Resolution No.104, dated 17-12-2003, resolved that the decision already taken by the Corporation vide Resolution No.266 dated 25-8-2003, be reiterated.
It appears from the records of the case that exoneration of the applicant was notified on 1.3.2004. On 15.3.2004, however, CVC communicated to the Corporation as follows:
The Commission had advised the imposition of a major penalty on Shri P.C. Tomar, Director (Hort.) vide its advice dated 17-10-2003. However, the disciplinary Authority has exonerated Shri Tomar of the charges. Since this is disagreement with the Commissions advice, it has been decided to include this case in the Commissions Annual Report for 2004 as a case of disagreement.
The case of the applicant was re-submitted to the Corporation but vide resolution No.628 dated 21.2.2005, it was resolved as follows:
Having considered the position as brought out by the Commissioner in his letter No.F.33/Vig./ 856/CandC dated 4-6-2004 and the recommendations made by the Appointments, Promotions, Disciplinary and Allied Matters Committee vide its Resolution No.125 dated 20-1-2005, resolved that the decision already taken by the Corporation vide its Resolution No.660 dated 12-1-2004, be reiterated.
The records would not reveal anything as to how and in what circumstances and on what material, the Corporation sought review of its repeated and reiterated resolutions referred to above.
5. In the counter reply filed on behalf of the respondent Corporation, it is mentioned that the preamble for review of the Corporations decision was held on 20.1.2005 and the item was passed with the decision that the Corporations earlier decision to exonerate the applicant be reiterated, and hence, the proceedings against the applicant did not come to an end as alleged. The applicant, it is then stated, was imposed the penalty vide order dated 21.8.2007 after taking into consideration the communication of the applicant dated 20.4.2005. It is also mentioned that inasmuch as, the case of the applicant would fall within the purview of CVC, its advice was sought at various stages, and since the applicant was exonerated by the Corporation on each occasion and the same was in disagreement with the advice of CVC, the Commissioner found it appropriate to refer the matter to the reviewing authority, i.e., the Lt. Governor for his advice. The reasons for differing with the findings of the enquiry officer and the view taken by the disciplinary authority, i.e., the Corporation, thrice over, are conspicuous only by their absence. It rather appears that the Corporation took it as if the advice of CVC is binding upon it. In our view, it was an erroneous view on the part of the Corporation. Advice of CVC or UPSC, be it first or second stage, is always advisory in nature and it is too well settled that the same can never be binding upon the disciplinary authority. Be that as it may, as mentioned above, the impugned order is wholly unsustainable as the provisions contained in regulation 16 of the Regulations of 1959 would entail, if the punishment is to be inflicted, the same procedure as is required to be gone into in a regular departmental enquiry. Regulation 16(1) which is relevant for the purpose of dealing with the issue in question, reads as follows:
16. (1) Notwithstanding anything contained in these regulations:
the Commissioner, in case the order proposed to be reviewed has been made by the Dy. Commissioner or other officer subordinate to him; the Corporation in case the order proposed to be reviewed has been made by the Standing Committee;
The Central Government in case the order proposed to be reviewed has been made by the corporation;
may at any time, either on his or its own motion or otherwise call for the record of proceedings, enquiry and review any order made under these regulations from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed and may:
(a) confirm, modify or set-aside the order; or
(b) confirm, reduce, enhance or set-aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed or;
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such orders as it may deem fit.
Provided that no order imposing or enhancing any penalty shall be made by the reviewing authority unless the municipal officer or the municipal employee has been given reasonable opportunity of making a representation against the proposed penalty and if it be proposed to impose any penalty specified in clause (iv) to (vii) of regulation 6 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those Clauses, no such penalty shall be imposed except after, an enquiry in the manner laid down in Regulation 8 and after giving a reasonable opportunity to the municipal officer or municipal employee concerned of showing cause against the penalty proposed on the evidence adduced during the enquiry.
As per proviso to regulation 16(1) reproduced above, it is imperative, when the proposal may be to impose any of the penalties specified in clauses (iv) to (vii) of regulation 6 or to enhance the penalty after an enquiry in the manner laid down in regulation 8, to give a reasonable opportunity to an employee. We are of the considered view that if it may have been a case of exoneration of an employee against whom regular departmental enquiry has been conducted under regulation 8, and if the proposal may be approved to inflict punishment upon him by resorting to regulation 16, then the procedure insofar as, the same may be relevant in terms of inflicting or enhancing the punishment, as provided in regulation 8, has to be gone into. Relevant regulations 8(10), (11) and (12) read as follows:
(10) If the Disciplinary Authority having regard of its findings on the charges, is of the opinion that any of the penalties specified in Regulation 6 should be imposed, it shall:
furnish to the officer or other municipal employee a copy of the report of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority, a statement of findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and
Give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action.
(11) The Disciplinary Authority shall consider the representation, if any, made by the municipal officer or other municipal employee in response to the notice under Sub-regulation (10) and determine what penalty, if any, should be imposed on the municipal officer or other municipal employee and pass appropriate orders on the case.
(12) Orders passed by the disciplinary Authority shall be communicated to the municipal officer or other municipal employee who shall also be supplied with a copy of the resort of the Inquiring Authority and where the disciplinary authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him.
The disciplinary authority, if it is a case covered under regulation 16, would be the Lt. Governor. It is conceded position that the Central Government mentioned in clause (iii) of regulation 16(1) would be, in the context of service rules applicable in the present case, the Lt. Governor. If, therefore, the Lt. Governor was to disagree with the view already taken by the enquiry officer and the disciplinary authority, it had to record reasons and make the same available to the applicant. The impugned order being in violation of regulation 16 apart, the same cannot sustain, as surely, not even recording reasons for disagreement no naturally conveying the same to the applicant, would be in gross violation of the principles of natural justice. We may add here that even the advice of CVC or the reasons recorded by it favouring a major penalty against the applicant were not supplied to the applicant, nor even the grounds of review, if any, were made available to him. In State Bank of India and Others v D. C. Aggarwal and Others [AIR 1993 SC 1197], where only the recommendation of CVC was not supplied to the employee, it was held that non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry. In The Siemens Engineering and Manufacturing Co. v Union of India [AIR 1976 SC 1785] the Hon’ble Supreme Court held that It is now settled law that when an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. The rule requiring reasons to be given in support of an order is like the principle of Audi alter am partum, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. This judgment of the Hon’ble Supreme Court may not be on non-supply of the material to an employee which may have been taken into consideration while passing the orders, but the same certainly advances the cause of the applicant that principles of natural justice have to be observed in every quasi judicial process.
6. If perhaps, it was only a case of non-supply of the disagreement note or reasons for disagreement to the applicant, we may have remitted the case to the Corporation for having a fresh look into the matter. However, in the present case it is not only that disagreement note has not been conveyed to the applicant, it is rather a case where the said reasons are non existent. The advice of CVC, which, as mentioned above, is not binding upon the disciplinary authority, cannot partake the character of a note of dissent by the disciplinary authority. It is interesting to note that even at this stage, not even in the counter reply filed on behalf of the respondent, any reason has been spelled out, which might have guided the disciplinary authority to take a view different than the one taken by the enquiry officer. It would thus be an exercise in futility to remit the case to the Corporation, particularly at this distance of time when the applicant has already retired about six years ago.
7. In view of the discussion made above, present Application succeeds. Order dated 21.8.2007 imposing the penalty of cut in pension upon the applicant is quashed and set aside with the direction to the respondents to work out all monetary benefits that may be admissible to the applicant under rules in consequence of setting aside the order aforesaid. We are of the considered view that the applicant deserves to be compensated by way of costs. It may be recalled that even though, the first report of the Deputy Commissioner was in favour of the applicant and was given way back in 1986, the respondents chose to proceed against the applicant in disciplinary proceedings only in 1993, when the applicant was under consideration for promotion to the post of Director (Horticulture). In fact, the DPC had found him fit for promotion and placed his name at serial no. 1. It is unfortunate that because of wholly illegal proceedings initiated against the applicant, his promotion was stalled. So much so, he remained suspended for as many as five years, his suspension having been revoked only in 1998. We do not know as to whether the applicant even came to be promoted to the post of Director (Horticulture), till such time he retired. Assuming that he was promoted before his superannuation, he indeed suffered a great deal, as surely, the said promotion may have come to him at a very late stage. The applicant was put to an unending trial, which may not be witch-hunting as such, as there is no concrete evidence to conclude that some one was after him, but the same has indeed visited the applicant with such evil consequences that he cannot be compensated at this stage. We thus mulct the respondents with costs quantified at Rupees twenty-five thousand, which again may be only conciliatory and not compensatory.