Dr. Ramesh Chandra Panda, Member (A):
1. Shri Ravinder Kumar an Indian Police Service (IPS) Officer of Himachal Pradesh Cadre belonging to 1977 batch has been aggrieved by the presidential penalty order dated 13.08.2009 (Annexure A-2) as per which he has been compulsorily retired from service in terms of Rule 6 (1) of the All India Service (Discipline and Appeal) Rules, 1969. He is also aggrieved by the Charge Memo that was issued to him on 28.03.1995 (Annexure A-1) in which disciplinary proceedings were instituted against the applicant under Rule 8 read with Rule 7 of the All India Service (Discipline and Appeal) Rules, 1969. Feeling aggrieved by the penalty order and the Charge Memo, he has instituted this OA under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
“a) Quash and set aside the impugned Memorandum dated 28.03.1995 (Annexure A-1) as illegal and non-est, ab-initio or deem it lapsed in view of the Tribunal order dated 26.11.2002 Annexure A-34);
b) Quash and set aside the impugned inquiry report dated 09.08.2001 (Annexure A-30) as well as the impugned order of punishment dated 13.08.2009 (Annexure A-2) as illegal and non est;
c) Pass orders directing the respondents to reinstate the applicant along with all consequential benefits;
d) Award exemplary costs in favour of the applicant and against both the respondents; and
e) Pass such further orders and grant such further reliefs in favour of the applicant and against the respondents as may be deemed fit and proper in the facts and circumstances of the case.”
2. Before we may dwell on the facts of the case, it would be proper to note that this is the second round of litigation by the applicant on the said disciplinary proceedings. Earlier he visited the Tribunal challenging the penalty order of compulsory retirement ordered by the competent authority. In the earlier OA No. 2207/2005, Tribunal took into account the only ground which was pressed during the hearing that the copy of the advice of the Central Vigilance Commission (CVC) was not given to the applicant along with the report of Enquiry Officer (EO). The Tribunal in its order dated 20.12.2007, after taking into account the judgment of Hon’ble Supreme Court in the matter of State Bank of India and others v. D.C. Aggarwal and another, reported in (1993) 1 SCC 13; the letter of the CVC bearing No.99/VGL/66 dated 28.09.2000; and considering the judgment of this Tribunal in the matter of Gurdial Singh v. Secretary, Railway Board and others (OA No.446/2006 decided on 13.02.2007) and also the judgment of Hon’ble Apex Court in the matter of Union of India and another v. T.V. Patel, [(2007) 4 SCC 785], allowed the OA granting liberty to the respondent-competent authority to proceed afresh with the enquiry from the stage of supply of the advice of CVC to the applicant along with the EO’s report. It is relevant to take the extract of the pertinent paragraphs of the Tribunal’s order in the said OA, which read as follows:-
“10. As we have said earlier, we are not considering other arguments advanced in the pleadings made in the OA and only considering the argument regarding non-supply of CVC’s advice to the delinquent officer, as has been pressed before us during the arguments.
11. It is very clear from the above that the advice of the CVC has to be given to the Applicant along with a copy of the report of the enquiry officer whereas the report of the UPSC is given along with the final order passed in the enquiry against the delinquent officer. The Honourable Supreme Court has very clearly held that the case of D.C. Aggarwal (cited supra) is distinguishable from the case of T.V. Patel (cited supra) in which the argument had been advanced on behalf of T.V. Patel that the Honourable Supreme Court had held in D.C. Aggarwal that not supplying the CVC’s order had prejudicially affected the case of the delinquent officer. The observations of the Honourable Supreme Court in paragraph 24 of the judgment in T.V. Patel (supra) have been quoted in paragraph 9 above.
12. In the light of the above discussion it is clear that the Applicant’s defence has been prejudiced by not supplying the copy of the advice of CVC. The Respondent’s argument that the advice was asked for only once and, therefore, it was not necessary to supply it, treating it presumably as first stage advice, cannot be accepted. The advice which has been obtained is clearly the second stage advice on the basis of which the decision to impose a penalty on the Applicant has been taken.
13. On the basis of above discussion, we quash and set aside the impugned order dated 5.03.2004 whereby the Applicant was compulsorily retired from service and order dated 12.07.2007 whereby the application for revision filed under Rule 24 of All India Services (Discipline and Appeal) Rules, 1969 was rejected. The Respondents are, however, at liberty to proceed afresh with the enquiry from the stage of supply of CVC’s order to the Applicant along with the enquiry report. However, since the orders have been quashed and set aside on technical grounds, we are not passing any order about consequential benefits. The consequential benefits shall abide the final order in the fresh enquiry from the stage mentioned as above, if any. In the facts of the case, there will be no order as to costs.”
Pursuant to the above directions of the Tribunal, the respondents have proceeded against the applicant in the disciplinary case and ultimately imposed the major penalty of compulsory retirement from service on the applicant.
3. It would be appropriate for us to briefly indicate the facts of the case as may be relevant for adjudication of the issues raised in the present OA. In the present disciplinary case against the applicant, he was issued a Charge Memo dated 28.03.1995 for his alleged misconduct during the period from 16.08.1993 to 25.10.1994. The Charge Memo contained eight Article of Charges against the applicant, which are summarized below:-
“Article No.I - When the Applicant was posted as Deputy Inspector General of Police (DIG of Police)/Assistant Inspector General of Police, Railway and Traffic, Northern Range, Dharamshala during the period 11.04.1994 to 25.10.1994, he directed his subordinate officers to arrange a Refrigerator, free of cost for his personal use at his residence at Dharamshala. No payment was ever made by the Applicant for the purchase of Refrigerator.
Article No.II - The Applicant got installed the colour television set of Police Lines, Dharamshala at his residence, which caused a great deal of resentment among the policemen of Police Lines.
Article No.III - The Applicant demanded rice, atta, vegetables and other articles of daily use from his subordinate police officers posted in Kangra District.
Article No.IV - The Applicant got his personal guests entertained in the rest house of HPSEB at Palampur on 29.05.1994 through his subordinate officials by misusing his official position.
Article No.V - The Applicant misused the Government vehicles for transporting his guests at different times whereas log books of the vehicles were got filled up by his subordinate officials under pressure for official duty.
Article No.VI - The Applicant claimed his transfer TA amounting to Rs.4350/- from Vigilance Organization of H.P. He also claimed transfer grant of Rs.3000/- and packing allowance of Rs.1200/-. In fact the Applicant has not shifted his personal effects from Delhi to Vigilance Office at Shimla although for that also he had claimed the packing allowance of Rs.1200/-. The Applicant on his transfer to Dharamshala as DIG of Police preferred another T.A. bill for Rs.3134/- in which it was claimed that his personal effects had been transported on 10.05.1994 from Delhi to Dharamshala. The personal effects of the Applicant had never been transported from Delhi either to Shimla or Dharamshala. Therefore, the Applicant had claimed false T.A. He has also claimed false packing allowance.
Article No.VII - The Applicant appointed one Shri Paramjit as part-time Cook for Police Station, G.R.P. Shimla in spite of complete ban on filling up of such vacancies imposed by the Government of H.P. Shri Paramjit never discharged his duties as Cook in G.R.P. Shimla and he worked at the private residence of the Applicant at Delhi right from the day of his appointment. Later when the Applicant was working as DIG at Dharamshala, he got Shri Paramjit appointed as part-time water carrier in Police Station, Dehra and Shri Paramjit continued to work as domestic servant with the Applicant at his residence at Delhi.
Article No.VIII - The Applicant misused the manpower resources when he was posted as DIG, Northern Range. He used his subordinate officials for his personal work to places outside the State for private purposes.”
4. As the applicant denied the said Articles of Charges, an enquiry was instituted against him. Initially Shri P.S. Kumar, IPS, Additional Director General of Police (Vigilance) conducted the enquiry who was replaced by Mr. C. Balakrishanan, IAS and further the case was enquired into by Ms. Harinder Hira, IAS. The EO examined 29 witnesses for prosecution who were also cross examined by the applicant. The Presenting Officer brought in nine more witnesses but they were examined in the absence of the applicant and the enquiry was proceeded ex parte w.e.f. 28.01.1998. However, enquiry officer furnished the copies of the Enquiry Proceedings to the applicant and the Statement of Witnesses examined during the ex parte enquiry was also sent to him. The applicant did not submit list of any defence witness and the evidence was closed by the enquiry officer on 17.03.1998. On the change of EO when Mr. C. Balakrishanan was appointed, the applicant associated himself with the enquiry proceedings with effect from 15.06.1999, when the applicant was allowed to cross examine the witnesses, who were examined during his absence. Subsequently, when Ms. Harinder Hira, IAS became the enquiry officer, the applicant did not appear before her and he was proceeded ex-parte with effect from 3.04.2001. The Enquiry Officer after considering the Presenting Officer’s written arguments, evidence gathered during the enquiry, held all the charges as established and submitted her report on 09.08.2001. The applicant was furnished a copy of the report of the enquiry officer vide letter dated 30.10.2001 to which the applicant submitted a detailed reply and pursuant to the same, the competent authority passed the penalty order dated 05.03.2004 and the applicant was compulsorily retired from service. The said penalty order had an enclosure of UPSC advice dated 8.10.2003.
5. At this stage, it would be appropriate to mention that the applicant approached the Chandigarh Bench of this Tribunal in OA No.105-HP-1998, challenging the enquiry and the said OA was disposed of on 18.08.2000 with the directions to the EO to conclude the enquiry proceedings within a period of six months. As the enquiry was not completed during the said period, the applicant moved the Chandigarh Bench of this Tribunal in M.A. No.1292/2002 with the prayer to close the enquiry and drop the charges. At that time, it was noticed that the respondents who could not complete the enquiry within six months have already sought extension of time through appropriate application, which was granted by the Tribunal upto 26.05.2002. The applicant’s prayer to treat the enquiry as closed and the charges as dropped was not acceded to by the Tribunal and the MA was dismissed, vide order dated 28.08.2003.
6. As indicated within, in the first round of litigation before the Principal Bench of this Tribunal in OA No. 2207/2005, the applicant challenged not only the penalty order but also the Charge Memo but during the arguments as the only ground was pressed before the Tribunal by the applicant’s counsel that non-supply of CVC advice before passing of the penalty order which denied the applicant an opportunity to defend himself, was considered in the light of the judgments of Hon’ble Supreme Court and of this Tribunal, referred to above, and the extant guidelines of the CVC, the OA was allowed by quashing and setting aside the penalty order.
7. In the above background, the applicant was reinstated in service by the competent authority vide order dated 26.05.2008 without prejudice to the respondents to continue with the departmental proceedings which was still pending against him. A copy of the advice of CVC was provided to the applicant by the State Government to which the applicant submitted a representation on 12.06.2008. In his representation he raised certain points with regard to the advice tendered by the CVC and information which he received from the CVC under Right to Information Act. The case was again submitted by the respondents to CVC on 13.09.2008 for their advice. CVC rendered its advice on 20.01.2009 inter alia stating therein that the imposition of major penalty of compulsory retirement on the applicant would suffice as all the eight charges were held as proved. Further, the competent authority taking into consideration the above facts in the case came to the tentative conclusion that a major penalty of compulsory retirement should be imposed upon the applicant. Thereafter, the entire case was referred to Union Public Service Commission (UPSC) for their advice on the quantum of penalty. The UPSC vide its letter dated 07.07.2009 referring to its earlier advice indicated that out of eight charges framed against the applicant three Article of Charges i.e. Article of Charges No.II, III and VII were proved and Article of Charge No.VI was partly proved. The UPSC informed that the applicant in his fresh representation has only brought in certain contradictions in the deposition of certain witnesses and has not brought forward any new facts or evidence which would justify re-consideration of the UPSC advice already tendered on the earlier occasion to the competent authority and indicated that imposition of compulsory retirement from service as penalty would suffice. Accordingly, the competent authority vide the impugned order dated 13.08.2009 passed the final order imposing the penalty of compulsory retirement from the service on the applicant. In this background, the applicant is before the Tribunal in the instant OA.
8. Highlighting the background of the case, Shri V.S.R. Krishna submitted his contentions for quashing the penalty order and the Inquiry Report -
(i) The 1st EO allowed Shri R.S. Dhaulta, DA/Vigilance, posted under his administrative control, to function as Presenting Officer w.e.f. 04.02.1997 and the same not being approved by the competent authority, the proceedings from 25.02.1997 till 18.03.1997 were illegal. Vide his letter dated 25.02.1997 the applicant represented to the 1st EO requesting him not to allow Sh. R.S. Dhaulta as a Presenting Officer and to permit him to engage a legal practitioner to act as his Defence Assistant and to adjourn the proceedings till then. But the EO continued the proceedings in utter violation of the principles of natural justice; and, under threat of ex parte enquiry forced the applicant to participate. Such proceedings should be declared invalid as held in the matter of Dewan Ram v. Delhi Administration [(1991) 17 ATC 596 (Delhi)]. In view of this, it is contended that the applicant submitted a copy of his representation addressed to the Disciplinary Authority vide Endst. No. 116 dated 25.02.1997 requesting him to change the said EO. But, the EO didn’t stay the inquiry. Instead of getting the orders on his representations from the Disciplinary Authority, the EO rejected on his representation on the very day (25.02.1997) during the enquiry. The non-stayal was in violation of the principles of natural justice, as well as the GOI instructions issued vide DOPandT OM No. 39/40/70-Estt.(A) dated 09.11.1972. This grave irregularity vitiated the inquiry; and, hence the impugned Inquiry Report and the impugned order dated 13.08.2009 ought to be quashed on this ground.
(ii) His another set of submissions disclosed that though the EO was changed but the said second EO did not hold the enquiry afresh i.e. de-novo, from the stage as on 25.02.1997. In this regard reliance was placed on the judgment of Hon’ble Supreme Court in Tilak Chand v. Kamla Prasad Shukla [1995 Supp.1 SCC 21] to state that the proceedings taken by an EO who is biased would be illegal.
(iii) The applicant’s representation dated 02.07.2001 to change the EO on the grounds of bias and malafides was forwarded to the Disciplinary Authority, but instead of staying the inquiry, she held ex parte proceedings from 03.07.2001 and closed the inquiry on 09.07.2001, while the representation was decided and conveyed later on vide letter dated 18.07.2001. The above act of the EO violated the principles of natural justice as well as the instructions issued vide DOPandT OM dated 09.11.1972. This grave irregularity vitiated the inquiry and was sufficient to quash the impugned EO’s Report and the impugned penalty order dated 13.08.2009.
(iv) Further, the last EO did not record any evidence and did not summon any defence witness, in total violation of Rule 8(18) of the All India Services (Discipline and Appeal) Rules, 1969. Shri Krishna relied on the judgment of Hon’ble Apex Court in the matter of State of Punjab v. Diwan Chuni Lal [AIR 1970 SC 2086] holding that it is the duty of the Inquiring Authority to summon all the witnesses, including the defence witnesses. The burden can’t be shifted to the charged officer. The last EO did not even fulfill her duty to call for a reply of the applicant for the purpose of enabling the latter to explain the circumstances appearing against him in evidence, which was in violation of Rule 8(19) of the All India Services (Discipline and Appeal) Rules, 1969. Denial of this opportunity to the applicant, even in an ex parte proceeding, vitiates the inquiry as held by the Hon’ble Apex Court in the case of Ministry of Finance and Anr. Vs. S.B. Ramesh [1998 AIR 853]. The EO did not give a copy of the written brief submitted by the Presenting Officer to the applicant and without giving him a notice for submission of his written brief in his defence, the EO closed the inquiry proceeding on 09.07.2001, in violation of Rule 8(20) of All India Services (Discipline and Appeal) Rules, 1969. Placing his reliance on the judgment of Hon’ble Calcutta High Court in the matter of Collector of Customs vs. Md. Habibul Haq [SLR (1973) 1 Cal. 321]. Shri Krishna submits that failure to supply a copy of the written brief of the presenting officer to the charged employee will result in denial of reasonable opportunity of defence to him.
(v) Shri Krishna submitted that a copy of the CVC advice and UPSC report on the basis of which penalty was imposed were supplied to the applicant after the penalty order was passed. This violates the principles of natural justice. The impugned penalty order deserves to be quashed as the respondent no.1 once again has committed the illegality of issuing the order in violation of the law laid down by the Hon’ble Apex Court in the matter of State Bank of India vs. D.C. Aggarwal and Anr. [1992 (5) SLR 598] and Union of India and Ors. vs. S.K. Kapoor [Civil Appeal No. 5341 of 2006 decided on 16.03.2011]. Hon’ble Supreme Court in the matter of Union of India and Ors. Vs. S.K. Kapoor (Civil Appeal No. 5341 of 2006 decided on 16.03.2011).
(vi) Shri Krishna’s another submission was that the penalty order has not considered the applicant’s representation on the EO’s report properly because the penalty order does not disclose which charge was held as proved and on what basis. The impugned order is bald, non-speaking and non-reasoned so much so the applicant is in dark to know which charge(s) are held as proved to impose the penalty of compulsory retirement from service. On this ground he urges the impugned penalty order to be set aside.
In view of the above submissions Shri Krishna contends that the OA should be allowed directing the respondents to extend all consequential benefits.
9. On receipt of notice from the Tribunal, the respondents have entered appearance and have filed their affidavits. The 1st respondent represented by Mrs. Priyanka Bhardwaj, learned additional Government counsel submitted the reply affidavit on 06.05.2010 and Shri Subhash Gosain learned counsel of the 2nd respondent filed the reply affidavit on 01.07.2010.
10. The respondents have taken the stand that the applicant’s counsel restricted his ground in the earlier litigation i.e. in OA No. 2207/2005 namely that non-supply of CVC report has prejudiced the applicant and on that ground the Tribunal in its order dated 20.12.2007 quashed the penalty order compulsorily retiring the applicant from service passed by the competent authority. The case was remanded back to the respondents. The contention is that once the applicant has relinquished or abandoned his reliefs as claimed in OA No. 2207/2005, he cannot claim the same reliefs in the present OA as the Tribunal has already decided directing the respondents to supply the copy of the CVC Report to the applicant. The respondents were duty bound to restrict the matter only to that part of the judgment which was directional in nature which the competent authority has fulfilled by providing the copy of the CVC report to the applicant and thereafter deciding the disciplinary case. Thus, the contentions not raised but abandoned in the earlier litigation cannot be raised in the present OA. In this context, reliance was placed on the judgment of the Hon’ble Supreme Court in the matter of Sarguja Transport Service versus State Transport and Others, reported in AIR-1987-SC-88 and K.V. Gorge versus The Secretary to Government, reported in AIR-1990-SC-53. Learned counsel for the respondents would, therefore, submit that the claimant not raising some of the issues in the first OA, the second OA raising same issues is barred under law.
10.1 This argument was contested by the learned counsel for the applicant and highlighted that in the earlier litigation many grounds were raised, but the Tribunal took note of the main technical ground of non-supply of CVC report as the basis to quash and set aside the penalty order. To say that the grounds were not taken in the earlier litigation is not correct. On the other hand, Shri V.S.R. Krishna submits that the grounds raised therein have also been raised in the present OA. Therefore, the applicant is not barred to raise the remaining issues and the judgments relied upon by the learned counsel for the respondents would not be applicable in the present case.
10.2 We have examined this issue at the present stage and find that the applicant has actually raised all those points in the earlier litigation, which have been raised in the present OA. The relief claimed at present is against the compulsory retirement order passed as penalty in a fresh order by the competent authority. He has every right to raise the legal issues at any point of time. Majority of the contentions of the applicant are legal issues which are either violative of the statutory rules or violative of the principles of natural justice. In our considered opinion, the ground of the respondents that the applicant is barred to raise fresh ground in the instant OA is not acceptable, hence rejected.
11. Shri Subhash Gosain, learned counsel for the respondents, submits that the Tribunal while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. In this regard, reliance was placed on the judgment of Hon’ble Supreme Court in the matter of B.C. Chaturvedi versus Union of India and Others, reported in AIR-1996-SC-484. Further, the applicant submits that the court should not interfere with the decision of the executive unless the Tribunal finds that the same is illogical or suffers from procedural impropriety or was shocking the conscience of the court. In this regard, he relied on the judgment of the Hon’ble Supreme Court in the matter fo Damoh Panna Sagar Rural Regional Bank and Another versus Munna Lal Jain, reported in JT 2005 (1) SC 70. Referring to the issue of non-supply of the report of CVC and UPSC, Shri Gosain would contend that UPSC and CVC have tendered the same advice as has been made available to the applicant earlier in point of time. While passing the earlier penalty of compulsory retirement upon the applicant, proper enquiry was conducted by the inquiring authority as per the terms of the rules and regulations and the applicant was accorded due opportunity. As the applicant was facing serious corruption charges which have been held as proved, he contends that the compulsory retirement as the penalty is proportionate. The UPSC and CVC reports have been supplied to the applicant as required under the law. He, therefore, submits that the OA being devoid of merits should be dismissed.
12. Mrs. Priyanka Bhardwaj, learned counsel appearing on behalf of the 1st respondent endorsed the views expressed by Sh. Subhash Gosain, learned counsel for the 2nd respondent. She submits that the presidential order was passed by the Union of India as per the All India Service (Discipline and Appeal) Rules, 1969. There has been no procedural irregularity nor any legal infirmity for which the applicant is alleging against the respondents. She also argues for dismissal of the OA.
13. Having heard the contentions of the parties, with the assistance of the counsel we perused the pleadings and relied on judgments. The controversy for our determination is whether the penalty order passed by the competent authority is legally sustainable?
14. During the hearing, learned counsel for the respondents extensively dwelt on the issue of the limited judicial review power available with the Tribunal to look into the disciplinary proceedings and Tribunal should restrain to re-appreciate the evidence and substitute the penalty sitting as an appellate authority. We are conscious of the limited powers that the Tribunal has to exercise under Article 226 of the Constitution of India. Hence, we feel it proper to discuss briefly the settled position in law on the powers of the Tribunal as to what extent this Tribunal can interfere in the matters of disciplinary proceedings. We note that our power is limited. We went through many judgments of Honourable Supreme Court of India in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities and identified the guiding principles in the subject. Some of the relevant decisions of the Honourable Apex Court referred to by us are viz: B.C. Chaturvedi versus Union of India [1995 (6) SCC 749]; State of Tamil Nadu versus S. Subramanyan, [1996 (7) SCC 509]; State of Tamil Nadu versus K.V. Perumal [1996 (5) SCC 474]; Kuldeep Singh Versus Commissioner of Police and others [1999(2) SCC 10]; Om Kumar versus Union of India (2001) 2 SCC 386); M.V. Bijlani versus Union of India [2006 SCC - 5-88] ; State of Rajasthan versus Mohd Ayub Naz [2006 SCC-1-589SC] ; Govt. of A.P. versus Nasrullah Khan [2006 STPL (LE) 36733 SC]; Govt. of India Versus George Philip [2007 STPL (LE) 37755 SC]; Union of India Versus S.S. Ahluwalia [2007 SCC (7) 257] ; and Moni Shankar versus Union of India [2008 SCC (3) 484]. The common threads running through these decisions of the Honourable Apex Court are that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless those are found to be suffering from certain procedural, legal, statutory improprieties and infirmities. In the disciplinary cases where the case of no evidence ground is taken the Tribunal can examine closely the enquiry proceedings and the same cannot be construed as re-appreciation of evidence. On certain grounds only the Tribunal can closely scrutinize the relevance or irrelevance of facts; presence or absence of some evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance or otherwise of the wednesbury principle, probability of preponderance doctrine and the like. Some of the guiding principles, we kept in our mind while deciding the present OA, are as follows:-
(1) The Tribunal cannot interfere with the findings of the Inquiry Officer which is based on some evidence and substitute its own independent findings. But in case of no evidence careful examination of enquiry proceeding would be permissible.
(2) When the findings of the disciplinary authority or the appellate authority are based on some evidence, the Tribunal cannot re-appreciate the evidence and substitute its own findings.
(3) Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which decision is made. The decision making process is as important as the decision itself.
(4) When an inquiry is conducted on the charge(s) of misconduct against a public servant, where the authority held the proceedings against the delinquent officer, the Tribunal is empowered to determine -Whether the inquiry was conducted by the competent officer? Or -Whether rules of natural justice have been complied with? Or -Whether the findings / conclusions are based on some evidence or no evidence to reach a finding/conclusion? Or -Whether the mode of inquiry is in violation of statutory rules? Or -Whether the findings are arbitrary or utterly perverse?
(5) Adequacy of evidence or reliability of evidence applies to the disciplinary proceedings. (6) When the Inquiry Officer finds and accepts the evidence, his conclusion normally is guided by such evidence and as such the disciplinary authority is entitled to hold the delinquent officer as the guilty or otherwise of the charge.
(6) The disciplinary authority exercises his quasi judicial power to appreciate the evidence and finding on each of the charges is arrived after proper analysis of evidence of the prosecution and defence witnesses and documents.
(7) In case of an appeal, the Appellate Authority has co-extensive power to re appreciate the evidence and the nature and proportionality of punishment and the Appellate Order is to be passed as expeditiously as possible.
(8) The Tribunal can interfere with the decision of the Disciplinary /Appellate / Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards or unreasonable.
(9) The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
(10) The Tribunal is entitled to arrive at its own conclusion on the premise that evidence adduced in the enquiry meets or does not meet the requirement of burden of proof, namely preponderance of probability.
15. The principal ground taken by the applicant in the present OA relates to the non-supply of CVC and UPSC reports. Admittedly, both the reports have been supplied to the applicant much after the penalty order was passed. The penalty order is dated 13.08.2009 and the applicant received CVC and UPSC advice vide 1st respondent’s order dated 14.09.2009. Though the Rule 29 of the All India Service (Discipline and Appeal) Rules, 1969 provides that whenever the UPSC is consulted to tender advice and where such advice is provided to the competent authority, the same shall be furnished to the Member of the service concerned along with the copy of the order passed in the case. This statutory provision has not been complied with by the respondents as the report of the UPSC was supplied not along with the copy of the penalty order but one month after issue of the penalty order. In this context, it would be appropriate for us to place our reliance on the law set by the Hon’ble Supreme Court on the matters whether the delinquent official should be supplied with the copy of the UPSC report prior to the penalty order or along with the penalty order or after the penalty order is passed and the Hon’ble Supreme Court in the matter of Union of India and Others versus S.K. Kapoor reported in 2011-4-SCC-589 wherein after referring the decision of Union of India versus T.V. Patel’s case reported in 2007-4-SCC-785, observed as follows:-
“7. In the aforesaid decision, it has been observed in para 25 that “the provisions of Article 320(3) (c) of the Constitution of India are not mandatory”. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel’s case is clearly distinguishable.
8. There may be a case where the report of Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula Vs. Union of India and Ors., Civil Appeal No.642 of 2004 decided on 30th January, 2004.
9. It may be noted that the decision in S.N. Narula’s case (supra) was prior to the decision in T.V. Patel’s case (supra). It is well settled that if a subsequent co-ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narula’s case (supra) was not noticed in T.V. Patel’s case (supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula’s case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a serious of judgments of this Court.”
16. In view of the authoritative pronouncement of the Supreme Court on the issue, the competent authority having not given an opportunity to the applicant to respond to the advice of the UPSC, the impugned penalty order would, therefore, suffer from the violation of the principles of natural justice. On this ground alone, the penalty order is liable to be quashed and set aside.
17. As decided in the earlier litigation of the applicant, he has to be supplied with CVC report before penalty order is to be passed as held by Hon’ble Supreme Court in the matter of D.C. Aggarwal’s case (supra). As the applicant was visited with a fresh penalty order dated 13.08.2009 on the basis of the CVC advice received to pass such a penalty order the same should have been supplied to the applicant before the said order was passed. On the contrary, the CVC advice was given to him vide order dated 14.09.2009 after a month of the passing of the order. Non-supply of the CVC advice has again prejudiced the applicant, as he could not defend himself properly. On this ground also, the impugned order suffers from the illegality.
18. One more contention that was raised by the applicant’s counsel relates to the fact that the impugned Presidential penalty order dated 13.08.2009 is non-speaking, non-reasoned and bald order. Though the respondents have taken the stand that the order is a speaking order keeping in view the report of the EO and advice received from the CVC and UPSC, we have given our careful consideration to the contention raised by the applicant. It is apt for us to refer to the impugned order. The said order in paragraphs 1 to 8 narrates the background of the case including the orders passed by the Tribunal in OA No. 2207/2005 and refers to the applicant’s representation in paragraph no.9 and ultimately on the receipt of the advice of the UPSC on the nature of penalty to be imposed, the competent authority has passed the final order. The relevant part of the impugned penalty order is extracted below:-
“9. and WHEREAS the said Shri Ravinder Kumar had submitted a representation on 12.06.2008 subsequent to his reinstatement in service. In his representation Shri Ravinder Kumar has raised certain points with regard to the advice tendered by the CVC and the noting of the CVC obtained by him under the RTI Act. A copy of the representation was forwarded to the CVC on 30.09.2008 for their comments. CVC vide their letter dated 20.01.2009 has mentioned that while advising major penalty of ‘compulsory retirement’ on Shri Revainder Kumar, the Commission has noted that during the inquiry proceedings he was given full opportunity to defence the case. He did not cooperate with the Inquiry Officer and the proceedings were held ex-parte as per the procedure. All the eight charges were held proved by the I.O. and the CVC had advised imposition of major penalty of ‘compulsory retirement’ on him.
10. and WHEREAS the Competent Authority after taking into consideration the facts and circumstances of the case came to the tentative conclusion that a major penalty of ‘compulsory retirement’ be imposed on Shri Ravinder Kumar, and the matter was referred to the UPSC for their advice on the quantum of penalty;
11. and WHEREAS the UPSC vide their letter dated 07.07.2009 has informed that on an earlier reference from Ministry of Home Affairs seeking the advice of the Commission in the disciplinary proceedings against Shri Ravinder Kumar, IPS (HP:77), the Commission found that out of the 8 charges framed against him, 3 articles of charges, namely, Article-II, III and VII were proved and Article-VI as partly proved. On a detailed examination of the submissions made by Shri Ravinder Kumar in his representation dated 12.06.2008, the Commission observed that except for bringing out a few contradictions in the deposition of certain witnesses, the Member of Service has not brought forward any new facts/evidences which may justify a review/reconsideration of the advice already communicated by the Commission in their earlier letter 08.10.2003 for imposition of a penalty of compulsory retirement on him;
12. and NOW, TEHREFORE, the Competent Authority, after careful consideration of the case and taking into account all other aspects relevant to the case, has come to the conclusion that a penalty of ‘compulsory retirement’ from service be imposed on Shri Ravinder Kumar, IPS (HP:77), in terms of Rule 6 (1)(vii) of AIS (DandA) Rules, 1969, with effect from the date of issue of this Order. It is ordered accordingly.”
19. The above order does not analyze as to how the competent authority has come to the conclusion that Articles of Charges II, III, VI and VII are held as proved and the competent authority has not analyzed the defence taken by the applicant in his representation dated 12.06.2008. The penalty order is quasi-judicial in nature. The order itself should demonstrate the reasons to impose a penalty and more so for a major penalty of compulsory retirement. The reasons are the heartbeats of an order in the absence of which that becomes lifeless. By no stretch of imagination, the order can be considered to be subjective satisfaction of the competent authority through an objective analysis of the charges held as proved, representation of the applicant and conclusion arrived at by the competent authority. The disciplinary authority is a quasi-judicial authority and in exercise of such powers has to pass such an order by which what prevailed in the mind of the disciplinary authority to impose a major penalty could be clearly understood from the analysis made in the order. On this score, the said impugned order does not succeed.
20. Yet another point was raised on the issue as to the charges on which the penalty was imposed. From paragraph 11 of the order, it is seen that the competent authority has imposed the punishment of compulsory retirement from service mainly on the basis of the three Articles of Charges held as proved and one Article of Charge held as partly proved. Thus, out of eight charges framed against the applicant, four charges having been held as proved, the competent authority has decided the penalty to be imposed on the applicant. However, it is the case of the applicant that the competent authority’s mind has been influenced by the recommendation of the UPSC and independent analysis of the pros and cons of the case has not been brought out to show that independent decision has been taken by the competent authority.
21. One more illegality has been stated by the counsel for the applicant. The same is that representations of bias and malafide raised by the applicant against the EO was decided by the EO instead of placing the same before the competent disciplinary authority to decide. The applicant filed his letter dated 20.02.1997, which is at page 466 of the paper book in which he has raised the issues regarding appointment of Shri Ravinder Singh Daulta as Presenting Officer which should not have been allowed as he was DA(Vigilance) and had a legal background and sought that he should be allowed to engage a Legal Practitioner as his Defence Assistant. He has also requested for supply of relevant additional documents for his perusal. He has also given a letter to Hon’ble Chief Minister on 25.02.1997, which is available at pages 472-473 of the paper book through proper channel requesting change of EO. He had alleged certain bias and malafides in the said letter and sought that Shri P.S. Kumar, IPS should be changed as EO in his disciplinary case, but the EO in his proceedings dated 25.02.1997 rejected the claim of the applicant for change of EO and went on to state that in case the applicant disassociates from the enquiry, the enquiry would be conducted ex parte. The said recording of the EO appears to be illegal in the sense that when the bias and malafide is alleged against the EO, the extant guidelines provide that enquiry should be stopped and the full facts of the representation should be placed before the competent Disciplinary Authority to decide the matter. On the other hand, the EO has decided the same and rejected the representation for change of EO sought for by the applicant. The applicant’s representation dated 25.02.1997 though was not accepted by the EO on 25.02.1997, but admittedly the Disciplinary Authority decided the representation on 01.03.1997. The EO was informed to proceed ex parte enquiry as the applicant was not cooperating with the enquiry. In the meantime on 20.10.1998, the EO was changed. On careful study of the relevant records, we note that though there is small procedural infraction in the EO’s noting dated 25.02.1997 in rejecting the applicant’s representation but this infraction can be ignored as it is noticed that after about three days the Disciplinary Authority rejected his representation on 01.03.1997.
22. Initially, Shri P.S. Kumar, IPS, Additional Director General of Police (Vigilance) was the EO. It is noted that he was replaced by Mr. C. Balakrishanan, IAS on 20.10.1998. It is noticed that on the basis of the representation of the applicant for change of EO, the competent disciplinary authority has already taken a decision and changed the EO. The second EO was Shri C. Balakrishnan, IAS and the applicant cooperated with him in the enquiry. Though the recording of the first EO in rejecting the applicant’s representation has been highlighted by the counsel for the applicant, it is appropriate for us to note that the competent authority having decided the representation within few days, the contention of illegality having been crept in at that stage cannot be sustained and, therefore, the said ground is overruled. An associated issue raised was that there were more than one EO appointed to proceed with the enquiry proceedings and complete the same. The applicant’s contention was that every time there was a fresh EO, the EO should not have continued from the stage where the former EO completed the enquiry but should have started afresh. But the extant guidelines and rules do not support the contention of the applicant. On a very careful study of the appointment of 2nd, 3rd and 4th Eos, and the enquiry proceedings, we are of the considered opinion that the applicant himself has disassociated from the enquiry at different stages and such disassociation has not been misused by the EO. On the other hand, the EO has furnished all the relevant extracts of the proceedings conducted ex parte. The written submissions by the Presenting Officer have also been supplied to the applicant. A careful perusal of the enquiry proceedings would disclose that the EO examined 29 witnesses and the applicant did not bring any defence witness in his support. After completion of the enquiry proceedings by the last EO, the enquiry report was finalized. We are of the considered opinion that there is no illegality or infirmity in the conduct of enquiry and submission of EO’s report. Only small infraction of the EO rejecting the applicant’s representation has not made any difference to the enquiry as concluded by us. Therefore, we are of the firm opinion that the EO’s report is legally sustainable and procedurally tenable.
23. Considering the totality of the facts and circumstances of the case, we find that the impugned penalty order suffers from the legal infirmity on three counts i.e. (a) the impugned penalty order has been passed before the supply of CVC report to the applicant; (b) the non-supply of UPSC report before the passing of the impugned penalty order has violated the principles of natural justice; and (c) non-speaking and non-reasoned penalty order passed by the competent authority. In case of (a) and (b) above, the principles of natural justice have been violated as held by the Hon’ble Supreme Court in the matters of D.C. Aggarwal’s case (supra) and S.K. Kapoor’s case (supra).
24. Resultantly, the penalty order dated 13.08.2009 is quashed and set aside. Consequently, the respondents are directed to reinstate the applicant in service forthwith. However, liberty is granted to the respondents to continue with the disciplinary case against the applicant from the stage where the legal infirmity has crept in. We consider that the legal infirmity has been crept in from the stage of non-supply of CVC and UPSC advice to the applicant before passing of the impugned penalty order dated 13.08.2009. The respondents are, therefore, directed to get the representation of the applicant on the UPSC and CVC advice already communicated to him vide order dated 14.09.2009 and on receipt of the same, the respondents would pass appropriate orders which should be speaking and reasoned one. The applicant is also directed to furnish his response to the CVC and UPSC advice communicated to him vide respondent’s order dated 14.09.2009, within a period of four weeks from the date of receipt of a certified copy of this order. Let the respondents decide the representation of the applicant as expeditiously as possible but positively within a period of three months from the date of receipt of representation of the applicant.
25. In terms of our above orders, directions and observations, the present Original Application is disposed of leaving the parties to bear their own costs.