| SooperKanoon Citation | sooperkanoon.com/54488 |
| Court | Central Administrative Tribunal CAT Lucknow |
| Decided On | Sep-03-2003 |
| Judge | M A A.K., A Bhatnagar |
| Reported in | (2004)(3)SLJ69CAT |
| Appellant | Dr. Gurdeep Singh |
| Respondent | Union of India (Uoi) and ors. |
It is also prayed that all benefits admissible to the applicant from the date such benefits have been allowed to his next junior also be given to him including the Jr. Administrative Grade and the Selection Grade.
2. Learned Counsel for the applicant Mr. Sundeep Dixit and for respondent No. 2 Mr. A.K. Chaturvedi have been heard and pleadings on record have been perused. During the course of hearing on 30.7.2003, learned Counsel for the applicant Mr. Sandeep Dixit stated at the bar that at this stage he is not pressing the relief clause in Para 8 (ii) of the O.A. relating to grant of all benefits from the date such benefits have been granted to his next junior including the Jr.
Administrative Grade and Selection Grade. In so far as respondent No. 1 is concerned, learned Counsel Mr. Q.H. Rizvi was not present on a number of dates fixed for hearing such as on 1st July, 2003, 10th July, 2003, 15th July, 2003, 23rd July, 2003, 24th July, 2003, 25th July, 2003, 29th July, 2003 and 30th July, 2003. However, the counter reply filed on behalf of the respondent No. 1 has been taken into account while deciding this O.A.3. The brief facts of the case are that the applicant who is an officer belonging to 1985 batch of the Indian Administrative Service was issued a charge sheet for major penalty on 15th October, 1992 under Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969 (hereinafter referred to as Rules of 1969). The only charge against the applicant was that during his posting as CDO at Basti between October, 1989 and July 1991, he presided over the selection/interview of Junior Clerks and selected his real brother Sri Ajit Singh as Junior Clerk. In pursuance of this charge sheet, the Disciplinary Authority by his order dated 21st April, 1999 levied the penalty of reduction by one stage in the time scale of pay for a period of 2 years providing that the applicant shall not earn increments of pay during such period of reduction and that this will have the effect of postponing his future increments. The said punishment was levied on the applicant on the basis of the advice dated 15.3.99 of the UPSC to whom the question of levy of penalty on the applicant was referred. The said order of the Disciplinary Authority dated 21.4.99 was challenged by the applicant in appeal and the Appellate Authority by his order dated 22nd August, 2000/25th August, 2000 confirmed the penalty imposed by the Disciplinary Authority on the basis of advice dated 3rd July, 2000 tendered by the UPSC on a reference made to the UPSC at the appellate stage. Both the orders passed by the Disciplinary Authority on 21.4.99 and by the Appellate Authority on 25th August, 2000 have been challenged in the present O.A.4. In pursuance of the charge sheet dated 15.10.92, the applicant initially did not give any representation within a period of 15 days as required in the memorandum of charge sheet dated 15.10.92 but subsequently he submitted a reply to the charge sheet dated 14th June, 1993 which was duly considered by the Disciplinary Authority before levying the punishment. In pursuance of the charge sheet an Inquiry Officer was appointed who submitted his report dated 7th October, 1997.
In the office of the CDO Basti, the selection was to be made of junior clerks. There were four vacancies of Junior Clerks against which 27 candidates appeared for interview/selection including the real brother of the applicant. The applicant chaired the Selection Committee as Chief Development Officer, Basti and selected four candidates as Jr.
Clerks including his own real brother who was placed at Sl. No. 3 in the select list. Subsequently when the misconduct committed by the applicant came to light, the applicant's brother who was appointed as Jr. Clerk by the applicant resigned on 28.2.92.
5. The penalty imposed on the applicant by the Disciplinary Authority in consultation with the UPSC and on the basis of the advice dated 15.3.99 tendered by the UPSC is a major penalty specified in Rule 6(v) of the Rules of 1969.
6. The factual position as discussed above is not in dispute. The main challenge of the applicant in the original application is on the following grounds: (a) The charge against the applicant based on instruction dated 31st October, 1969 is that the applicant committed the misconduct of charging the Selection Committee for selection of junior clerks for which the applicant's real brother was a candidate and of appointing him to the post of junior clerk for which the applicant was the Appointing Authority. According to the applicant G.O. of 31st October, 1969 referred to in the charge sheet (RA-1 to the Rejoinder reply) against counter of opposite party No. 2 only provides that where a near relative of a member of Selection Committee is appearing for selection such member should obtain prior permission of his superior officer. This G.O. does not prohibit a member of Selection Committee from presiding over the Selection Committee before which his near relative is appearing as a candidate.
(b) The documents listed in the Annexure to the charge sheet were not supplied to the applicant and only the list of documents was supplied which caused grave prejudice to the applicant.
(c) The sole witness one Sri Anwar Hussain Rizvi Head Clerk who had since retired was examined by the Inquiry Officer on 18.7.1994 behind the back of the applicant and the applicant was not given any opportunity to cross examine Sri Rizvi.
(d) The Enquiry Officer by his report dated 7.10.97 found the charges against the applicant as not proved but the Disciplinary Authority imposed the punishment of reduction by one stage in the time scale of pay for a period of 2 years providing that the applicant shall not earn increments of pay during such period of reduction and that this will have the effect of postponing his future increments. Thus the Disciplinary Authority disagreed with the finding recorded in his report by the Enquiry Officer and levied the. impugned punishment without issuing a show cause and without affording an opportunity of hearing to the applicant which was a serious irregularity causing grave prejudice to the applicant.
(e) Copy of the advice of the UPSC dated 15.3.99 had not been furnished to the applicant as required under rules and this also was a serious irregularity causing grave prejudice.
7. The contention of the applicant at Para 6(a) is that the charge based on instruction dated 31st October, 1969 of chairing the Selection Committee for selection of Junior Clerks for which the applicant's real brother was a candidate and of appointing him as Junior Clerk is not sustainable as the instruction dated 31st October, 1969 (RA-1 to the Rejoinder) only provides that in such a case the Chairman of the Selection Committee should obtain the prior permission of his superior authority and did not prohibit him in his capacity as CDO from Chairing the Selection Committee. It was contended in this regard that the fact that the applicant would be chairing the Selection Committee was in the knowledge of the District Magistrate, Basti who was the immediate superior of the applicant. In any case it was argued that the charge sheet itself was defective on this count as the circular letter of 31.10.69 did not prohibit the applicant from chairing the Selection Committee. It was also contended on behalf of the applicant that rules for recruitment of ministerial staff in the subordinate Govt. offices of the State came into existence in 1985 and the said rules titled as the subordinate offices, ministerial staff (Direct Recruitment) Rules, 1985 were amended on 8th September, 1986. It was accordingly submitted that the instruction dated 31st October, 1969 lost all validity and sanctity after the said Rules of 1985 came into existence. Further it was submitted that the applicant being an officer of the 1985 batch and the so called misconduct committed by him in March, 1991, was the result of lack of experience and knowledge on his part in as much as the instructions of October, 1969 issued 16 years prior to joining of the IAS by the applicant never came to his knowledge. It was also argued that the selection made by the applicant was fully in accordance with the provisions of subordinate offices, Ministerial Staff (Direct Recruitment) Rules of 1985 as amended in 1986.
8. The other contention raised on behalf of the applicant in Para 6(b) above is that the documents listed in the Annexure to charge sheet had not been supplied to him either prior to the enquiry or during the course of enquiry and only the list of documents was supplied. It was submitted in this regard on behalf of the respondents that the enquiry report was submitted by the Enquiry Officer in October, 1997 and a copy of this enquiry report was also made available to the applicant. It has been stated at page 2 of the enquiry report that the documents listed in the Annexure to the charge sheet were duly supplied to the applicant on his request after which the applicant submitted his reply dated 14th June, 1993. Thus according to the report of the Enquiry Officer, the documents listed in the Annexure to the charge sheet had duly been supplied to the applicant and the contention raised to the contrary on behalf of the applicant according to the respondents is not factually correct. Further according to respondents by letter dated 1st September, 1993 addressed to the applicant by the Enquiry Officer, the applicant was informed that along with the charge sheet dated 15.10.92, the list of documents annexed along with copies thereof have been supplied. Thus the case of the respondents is that not only the list of documents but the copies of documents also had been supplied to the applicant. According to the applicant he made a request for supply of the copies of the documents relied upon by his letter dated 17th May, 1993 but to no avail. The applicant has also stated in his appeal dated 19.5.99 in Para 10 that in spite of his specific request made by letter dated 17.5.93, demanding copies of the documents listed, the copies of such documents were not supplied to him. Further in Para 12 of the appeal dated 19.5.99, it has been stated by the applicant that the copies of documents had not been supplied to him either by Govt. of U.P. or by the Enquiry Officer.
9. The next contention raised on behalf of the applicant in Para 6(c) above is that the sole witness in the enquiry against the applicant namely one Sri Anwar Hussain Rizvi, Head Clerk who had since retired was examined by the Enquiry Officer on 18th July, 1994 behind the back of the applicant and the applicant was not afforded any opportunity to cross examine Sri Rizvi. In this regard the report of the Enquiry Officer may be referred to in which on page No. 2, the Enquiry Officer has made a mention to the effect that the statement of Sri Rizvi, retired Head Clerk had been recorded on 18th July, 1994 and prior to that the statement of the applicant had been recorded on 6th July, 1994. There is no mention in the report of the Enquiry Officer as to whether the applicant was allowed an opportunity to cross examine Sri Rizvi, retired Head Clerk. In the appeal dated 19.5.99 also filed by the applicant, it has been stated in Paragraph No. 19 that the only oral evidence was that of Sri A.H. Rizvi, retired Head Clerk and his statement was recorded behind back of the applicant without affording an opportunity to the applicant (sic) examine Sri Rizvi. Thus the factual position is not denied that Sri Rizvi was the only witness and his statement was recorded behind the applicant's back without affording an opportunity to the applicant to cross examine him.
10. It has also been contended on behalf of the applicant in Para 6(d) that the Enquiry Officer through his report dated 7th October, 1997 found the charges against the applicant as not proved whereas the Disciplinary Authority holding the charge as proved imposed the impugned penalty without issuing a show cause notice to the applicant in spite of the fast that the Disciplinary Authority had disagreed with the findings recorded by the E.O. I have gone through the enquiry report submitted and I find that the Enquiry Officer has no where held that the charge against the applicant is not proved. As a matter of fact the Enquiry Officer has held that the irregularity was committed by the applicant because of his lack of experience as he was comparatively a junior officer and he was not aware of the rules in this regard. Further the Enquiry Officer in the last paragraph of his report has stated that since the irregularity had been committed by the applicant on account of lack of experience and since the younger brother of the applicant selected and appointed as Junior Clerk by the applicant had resigned, the matter against the applicant may be closed.
Thus in actual fact the Enquiry Officer has found the charge as proved and has recommended closure of the case against the applicant in the light of the fact that the applicant was not experienced enough and the irregularity had been committed by him on account of lack of knowledge of the rules in this regard. We have considered the submissions made in this regard on behalf of the parties and we are of the opinion that it cannot be said that the Enquiry Officer exonerated the applicant by holding that the charge was not proved. The Enquiry Officer infact held the charge as proved but recommended closure of the case in the light of the applicant's lack experience and the resignation given by his younger brother. The report of the Enquiry Officer is only a fact finding report and as a matter of fact the Enquiry Officer did not have jurisdiction to recommend closure of the case against the applicant. Be that as it may, since the Enquiry Officer had found the charge as proved, it cannot be said that the Disciplinary Authority had disagreed with the finding of the E.O. Accordingly there was no need for the Disciplinary Authority to issue a show cause notice to the applicant before levying the impugned punishment.
11. Further it was submitted on behalf of the applicant in Para 6 (c) above that the advice of the UPSC had not been furnished to the applicant as required under rules which had caused grave prejudice to the applicant. On facts, the submissions made on behalf of the applicant in this regard have not been controverted on behalf of the respondents. The advice tendered in the matter by the UPSC is dated 15th March, 1999 which was accepted as such by the Disciplinary Authority and accordingly the penalty as recommended by the UPSC was imposed on the applicant. However, the appellate order passed by the Department of Personnel, Public Grievance and Pension dated 22nd August, 2000/25th August, 2000 contains the following observations : "The only valid point in the appeal of the officer is that while imposing the penalty, a copy of the Commission's advice had not been forwarded by the State Govt. to him which was a procedural requirement." 12. The advice of the UPSC forwarded to the Department by letter dated 3rd July, 2000 also makes a mention in this regard in Para 3.1 of the advice, the relevant portion of which is reproduced below: "The Disciplinary Authority wanted to impose the penalty of censure whereas the UPSC recommended the aforesaid penalty now imposed on him. A copy of the advice of the UPSC which should have been furnished to him while examining the penalty has also not been given to him." 13. It was further observed in Para 3.4 of the advice tendered by the UPSC as under: "The only valid point in the appeal of MOS is that while imposing the penalty, copy of the Commission's advice has not been forwarded which was required under Rule 12 and Rule 29 of the All India Service (D&A) Rules, 1969. This however, does not appear to have prejudiced the case of C.O. as he has referred to the Commission's advice at a number of places in his appeal." 14. Thus the fact remains that the advice of the UPSC though accepted as such by the Disciplinary Authority had never been communicated to the applicant as required under Rules of 1969. The question to be examined in this regard is to what extent this ommission has caused prejudice to the applicant.
15. Further it was submitted on behalf of the applicant that under Rule 17 of the UP Subordinate Offices Ministerial Staff (Direct Recruitment) Rules of 1985 as amended in 1986, the Selection Committee is to comprise of the Appointing Authority as Chairman, an officer from the scheduled caste nominated by the District Magistrate, an officer from the minority community and an officer nominated by the Appointing Authority. It was submitted on behalf of the applicant that the Selection Committee was constituted by four members as per rules including the Chairman and it was submitted that it was not the sole prerogative of the applicant to select or not to select a particular candidate and a decision in this regard was taken by consensus arrived at by all the members of the Selection Committee. Thus it was submitted that the selection of the applicant was based on merit and on a common consensus of all the members constituting the Selection Committee.
Accordingly it was contended that no favour whatsoever was shown to the brother of the applicant: Further it was submitted by the applicant that his brother who was selected and appointed as Junior Clerk by the applicant had since resigned on 28.2.92 and therefore, irregularity if any committed by the applicant stands abated.
16. It will be necessary to examine in this regard the case law on the various questions arising in this case. On the question of scope of judicial review, the following decisions were cited by the learned Counsel for the respondents: 1. H.B. Gandhi, Excise and Taxation Officer v. Gopi Nath and Sons, 1992 (Supplement) 2 SCC 312.
2. Food Corporation of India v. Prahalad Rao and Anr., (2001) 1 SCC 165=2001(2) SLJ 204 (SC).Union of India v. Upendra Singh, (1994) 3 SCC 357=1994(2) SLJ 77 (SC).
4. State of Gujarat v. Umed Bhai M. Patil, (2001) 3 SCC 314=2001(3) SLJ 285 (SC).
17. In the case of H.B. Gandhi, Excise and Taxation Officer v. Gopi Nath and Sons (supra), it was held by the Hon'ble Supreme Court that the High Court erred in reappriciating the primary facts by sitting in appeal over the decision of the fact finding authority. Further it was held by the Apex Court that the judicial review is a review of the decision making process and not of the decision itself. It was held in this regard that the primary facts found by the fact finding authority cannot be reappraised by the High Court as an Appellate Authority.
Similarly in the case of Food Corporation of India v. Prahalad Rao (supra), it was held by the Hon'ble Supreme Court that power of judicial review is limited and the Courts can interfere where an authority holds the enquiry proceedings in a manner in-consistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry or where the conclusion reached by the Disciplinary Authority is based on no evidence. In the case of Union of India v. Upendra Singh (supra), the Hon'ble Supreme Court held that the Courts should not ordinarily interfere in the matter at the intermediate stage of the issue of the charge sheet and the conduct of enquiry proceedings. Such interference is warranted only after the disciplinary proceedings are finalised. In the case of State of Gujarat v. Umed Bhai M. Patil (supra), the Apex Court while examining the validity of an order of compulsory retirement in public interest held that the same could not be sustained as such order was passed for extraneous considerations. It may be stated here that this decision and the decision in the case of Union of India v. Upendra Singh (supra) are not germane to the issue involved in the present case and hence are not of much relevance.State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370, in the case of Nathuni Yadav and Anr. v. State of Bihar (1998) 9 SCC (sic) the decision in the case of Ravindra Kumar and Anr. v. State of Punjab, (2001) 7 SCC 690 relate to criminal law and hence are not relevant and do not merit any discussion.
18. Further on behalf of the respondents it was argued that even if Sri Rizvi retired Head Clerk was examined by the Enquiry Officer behind the back of the applicant and the applicant was not given an opportunity of cross examining him, the same has not caused any prejudice to the applicant. Likewise it was argued that non-supply of the copy of the advice of the UPSC dated 15th March, 1999 as also not caused any prejudice to the applicant and further that the copies of the documents listed in the Annexure to the charge sheet though were supplied to the applicant could not have caused any prejudice to the applicant even if it is presumed that the copies of such documents had not been furnished to the applicant. It was submitted in this regard that the test to be applied is whether any prejudice was caused to the applicant by not observing these procedural requirements. Reference was made in this regard to the following decisions:State Bank of Patiyala v. S.K. Sharma, 2. Jarnail Singh v. Union of India and Anr., (1990) 13 ATC 415 (CAT-New Delhi) 3. P.V. Rao v. Union of India, (1994) 26 ATC 563 (CAT-Hyderabad) = 1994(1) SLJ 64 (CAT).Managing Director, ECIL, Hydrabad v. B. Karunakar, (1993) 4 SCC, 727 (FB)=1993(3) SLJ 193 (SC).Gurdeep Singh v. State of Punjab, 7. Chandrama Tiwari v. Union of India, AIR 1988 SC 117= 1988(1) SLJ 180 (SC).State of Madras v. A.K. Srinivasan, AIR 19. It was argued by the respondents that ratio of the decisions in all these cases cited above is that in disciplinary proceedings. It has to be shown that procedural irregularities committed, if any, have caused prejudice to the applicant. If procedural irregularities though committed have not caused prejudice to the applicant the decision of the Disciplinary Authority to impose the punishment need not be interfered with.Slate Bank of Patiala v. S.K. Sharma (supra) it was held by the Hon'ble Supreme Court that procedural rules are designed to afford a full and proper opportunity to the delinquent. In this case copies of statement of witness were not supplied to the respondents though he was allowed to inspect the same and take notes therefrom. No objection was raised by the respondents in that case that non-furnishing of the statement of witness had prevented him from effectively cross examining the witnesses. Accordingly it was held by the Apex Court that no prejudice was caused to the delinquent who had waived the right of receiving the copies of statement of witnesses. It was observed by the Apex Court in this regard that a substantive provision has to be complied with and the theory of substantial compliance or test of prejudice would not apply in such a case. It was held in this context that violation of a procedural rule would not automatically vitiate the enquiry unless there is no notice, no opportunity or no hearing. It was further held by the Hon'ble Court that in case of no opportunity or no hearing, liberty is to be given to the Department to take proceedings afresh as per law. In the case of Jarnail Singh v. Union of India (supra), it was held by the Principal Bench of this Tribunal that the evidence adduced during enquiry cannot be reappraised by the Tribunal. In the case of P.V. Rao v. Union of India (supra), the Disciplinary Authority had ordered common and joint enquiry against three delinquents but the Enquiry Officer held enquiry only against one applicant. Since the applicant in this case had failed to show prejudice caused to him, it was held that mere failure to hold joint enquiry by the Enquiry Officer as per directions of the Disciplinary Authority did not vitiate the enquiry. In the case of Managing Director, ECIL, Hyderabad v. B. Karunakar (supra), it was held by the Hon'ble Supreme Court that where the enquiry report is not supplied to the delinquent, the proceedings cannot be said to be vitiated in every case. The relief to be granted in a case where copy of the enquiry report was not supplied would depend on the extent of prejudice caused and hence reinstatment of the delinquent need not be ordered in all the cases. Further the Apex Court held that where punishment is set aside, reinstatement is to be ordered for the purpose of continuing the enquiry from the stage of furnishing the report. In the case of A.N. D'Silva v. Union of India(supra), it was held by the Hon'ble Supreme Court that the selection of appropriate punishment under the Civil Services Rules is discretionary. It was further held that consultation with the UPSC under the Article 320(3) is for advice.
Since the UPSC is not an Appellate Authority it was held that the President is not bound by the advice of the UPSC. Further it was held that the conclusion and findings of the Enquiry Officer are not binding on the Disciplinary Authority. In the case of Gurdeep Singh v. State of Punjab the father of the respondent No. 3 who was Secretary of the Managing Committee participated in the selection of his daughter and subsequently such selection was confirmed. The Hon'ble Supreme Court set aside the selection so made and the Managing Committee of the school was directed to make a fresh selection. In the case of Chandrama Tiwari v. Union of India (supra), although the matter related to criminal law, the Hon'ble Supreme Court held that if copies of relevant documents including the statement of witnesses recorded in the preliminary enquiry are not supplied to the delinquent officer and such documents are relied upon by the Enquiry Officer, the enquiry would be vitiated and violative of the principles of natural justice. It was further held by the Apex Court that if a document has no bearing on the charges or is not relied upon by the Enquiry Officer, non-supply of such documents cannot be said to cause any prejudice to the delinquent.
In the case of Ram Kumar v. State of Haryana (supra), it was held by the Hon'ble Supreme Court that the Disciplinary Authority is not required to pass a reasoned order again if it accepts the findings of the Enquiry Officer. In this case a Roadways Bus Conductor had charged fare from certain passengers without issuing tickets to them and was terminated. The State Govt. in this case was asked to consider the reemployment of the Bus Conductor on the ground that he had a family of five minor children to support. In the case of ADM Agra v. Prabhakar Chaturvedi (supra), it was held by the Hon'ble Supreme Court that in a case where a sum of Rs. 21000 had been misappropriated punishment of dismissal from service cannot be said as grossly disproportionate specially in the light of the fact that the delinquent official had admitted his guilt and had made a statement before the Enquiry Officer that he did not want to give any documentary or oral evidence. In the case of State of Madras v. A.R. Srinivasan (supra), it was held by the Apex Court that no reasons are to be recorded where the Disciplinary Authority agrees with the finding of the Enquiry Officer.
21. On behalf of the applicant reference was made to the decisions in the case of Punjab National Bank v. Kunj Bihari Mishra and Ors., (1998) 7 SCC 84=1999(1) SLJ271 (SC) and in the case of State Bank of India and Ors. v. Arvind Kumar Shukla, AIR 2001 SC 2398. In the case of Punjab National Bank v. Kunj Bihari Mishra (supra), it was held by the Hon'ble Supreme Court that if the report of the Enquiry Officer is in favour of the delinquent officer but the Disciplinary Authority proposes to differ from the report of the Enquiry Officer, the Disciplinary Authority has to give the delinquent an opportunity of hearing. The ratio of the decision of the Apex Court in this case was followed subsequently by the Apex Court in the case of SBI and Ors. v. Arvind Kumar Shukla. The decisions of the Apex Court in both the cases are not applicable to the facts as obtaining in the case of the applicant because on facts, we have already held that there was no disagreement with regard to the finding of fact recorded by the Enquiry Officer in respect of the charge framed against the applicant. Since there was no disagreement between the Disciplinary Authority and the Enquiry Officer, the Disciplinary Authority was not obliged to give any opportunity to the applicant.Town Area Committee, Jalalabad v. Jagdish Prasad and Ors. (1979) 1 SCC 60=1978 SLJ 707 (SC), in the case of State of U.P. v. Md. Sharif (1982) 2 SCC 376=1982(2) SLJ 259 (SC), in the case of U.P. State Road Transport Corporation v. Muniruddin (1990) 4 SCC 464=1990(3) SLJ 144 (SC), in the case of Indrani Bai v. Union of India, 1994 (Supplement) 2 SCC 256, in the case of Kashi Nath Dixit v.Union of India, (1986) 3 SCC 299 in the case of State of U.P. v.Shatrughan Lal and Ors., (1998) 6 SCC 651 = 1999(1) SLJ 213 (SC), in the case of Ram Prakash v. State of Punjab, 1989 (Supplement) 1 SCC 389 and in the case of Bhupendra Pal Singh v. D.G. Civil Aviation and Ors., (2003) 3 SCC 633, it was held by the Apex Court that where opportunity to cross examine the witnesses is not given to the applicant during the course of enquiry, the order of removal cannot be sustained as such order would be in clear violation of principles of natural justice.
Further it was held in these cases that where copies of documents relied upon in the charge sheet have not been supplied, the ommission to supply the copies of documents relied upon would vitiate the enquiry. It was also held that copies of statement of the witnesses recorded have also to be necessarily supplied because if the charged official is asked to submit his reply without the copies of statement of witnesses, he would be deprived of an opportunity of effective hearing. In the case of State of U.P. v. Shatrughan Lal and Ors.
(supra) it was also held by the Hon'ble Supreme Court that the burden of proof that the charged official was not prejudiced in his defence was on the appellant state to establish that non-supply of statement of witnesses recorded in the primary enquiry did not cause any prejudice.
It was further held in this case by the Apex Court that in such cases the enquiry would be vitiated. In the case of Rani Prakash v. State of Punjab (supra), it was held by the Hon'ble Supreme Court that failure to give opportunity of cross examining the witnesses would be in violation of Article 311 of the Constitution of India. In this case, the order of removal was set aside and the Enquiry Officer was directed to afford an opportunity to the delinquent to cross examine the witnesses and thereafter to consider the matter afresh on the basis of the additional evidence so recorded. In the case of Kashi Nath Dixit v.Union of India (supra), it was held by the Apex Court that failure to supply copies of statement of witnesses recorded ex-parte at the preliminary enquiry stage, and failure to supply copies of documents relied upon to (sic) the charges would amount to denial of reasonable opportunity to the delinquent officer to defend himself. It was held that in such a case the provisions of Article 311(2) of the Constitution would be violated vitiating the enquiry, as in such a case, it cannot be said that no prejudice was caused to the petitioner in defending himself. Similarly in the case of U.P. State Road Transport Corporation v. Muneeruddin (supra), it was held by the Hon'ble Supreme Court that non-supply of vital documents to the charged official would cause prejudice. In the case of Indrani Bai v. Union of India and Ors. (supra), it was held by the Apex Court that where the delinquent officer did not participate in the enquiry and the witness was examined ex-parte but subsequently on direction of higher authority the delinquent was allowed to participate in the enquiry, the Enquiry Officer should have recalled the ex-parte order and given the delinquent officer an opportunity to cross examine the witness already examined and to adduce his evidence in rebuttal. The Apex Court in this case quashed the order of dismissal and since the delinquent officer had died his widow was directed to be given compassionate appointment in addition to the back wages and pensionary benefits. Similarly in the case of Town Area Committee, Jalalabad v. Jagdish Prasad and Sons (supra), and in the case of State of U.P. v. Md. Sharif it was held by the Hon'ble Supreme Court that the right of hearing includes the opportunity to cross examine the witnesses and to lead evidence. It was further held that where copies of statements of witnesses are not furnished at the time of enquiry, it cannot be said that reasonable opportunity of defence was afforded to the delinquent and hence in such a ease prejudice would be caused to the delinquent officer. Similarly in the case of Bhagwati Prasad Dubey v. Food Corporation of India, 1987 (Supplement) SCC 579, it was held by the Apex Court that normally no interference should be made by the Courts with the finding of fact arrived at by the Disciplinary Authority but where the Enquiry Officer arrives at his conclusion on no evidence and without proper appreciation of the background and circumstances of the case, the Courts can interfere.
23. In the case of Ishwar Chandra Mohanty v. State of Orrisa, AIR 1966 Orissa 173, it was held by the Hon'ble Supreme Court that the power to revert a Govt. servant vests with the Govt. and not with the Public Service Commission though the Commission has to aid the Govt. through its advice. It was further held that where the Govt. passes a reversion order purely on the advice of the Commission without applying its own mind, the order of punishment would be open to challenge as vitiated by malafides. Similarly in the case of A.N. D'Silva v. Union of India, (supra) which was also cited on behalf of the respondents it was held by the Apex Court that although the selection of an appropriate punishment under the Civil Service Rules is discretionary consultation with the UPSC under Article 320(3) of the Constitution is for advice.
It was further held that the advice of the UPSC is not binding as the UPSC is not an Appellate Authority and its role is only advisory.
24. In the case of the applicant of the present O.A., it is not disputed that the statement of solitary witness Sri Rizvi, retired Head Clerk was recorded behind the back of the applicant and the applicant was not even aware of the fact that his statement has been recorded behind his back. The report of the Enquiry Officer itself mentions that the statement of the applicant was recorded on 6th July, 1994 and thereafter the statement of Sri Rizvi retired Head Clerk was recorded on 18th July, 1994. According to the report of the Enquiry Officer, the retired Head Clerk Sri Rizvi in his statement stated that he was not consulted by the applicant in the matter and further that Sri Rizvi did not have any knowledge that the applicant's brother was appearing for interview before the Selection Committee chaired by the applicant. Thus the statement of the Head Clerk Sri Rizvi was such that it was necessary for the applicant to cross examine him to clarify the position whether the applicant in actual fact consulted him or not and what advice of any was given by Sri Rizvi. The cross examination of Sri Rizvi by the applicant would also have revealed whether the fact that the applicant's brother was also a candidate before the Selection Committee was in the knowledge of the District Magistrate, Basti, as submitted by the applicant. Thus the statement of Sri Rizvi, the only witness recorded behind the back of the applicant, had definitely caused prejudice to the applicant in the enquiry proceedings and oil this count in our opinion the enquiry was vitiated. Further although the question whether the copies of relied upon documents were supplied to the applicant or were not supplied is disputed, we find that the applicant has all along taken the stand that the copies of relied upon documents were not supplied to him either by the Disciplinary Authority or by the Enquiry Officer and the enquiry was concluded without furnishing to him the copies of the documents listed in the Annexure to the charge sheet. In this regard the Enquiry Officer in his report has observed that the copies of documents listed were demanded by the applicant by his letter dated 17th May, 1993 and the reply was furnished by the applicant belatedly on 14th June, 1993 after receipt of the copies of the documents listed in the Annexure to the charge sheet. In this regard it will be necessary also to refer to the appeal dated 19.5.1999 filed by the applicant in which the applicant has mentioned in Paragraphs 10, 12, 13 and 15 that in spite of request made by him in writing on 17.5.1993, the copies of the documents listed in the Annexure to the charge sheet were not supplied to him and he had to submit his reply on 14th June, 1993 on the basis of some documents and his memory. Since this issue is disputed by respondents, and we are of the opinion that the enquiry was vitiated also for the reason that the statement of sole witness was recorded behind the back of the applicant, we are inclined to take the view that the copies of the documents listed in the Annexure to the enquiry report were not supplied to the applicant and only the list of documents was supplied since actual copies of the documents were not supplied, we hold that the enquiry was vitiated on this count also. Reference in this regard may be made to the following decisions as discussed above in detail in Paragraph No. 22 of this order:State of U.P. v. Shatrughan Lal (supra), the Apex Court held that the burden of proof to show that the delinquent was prejudiced in his defence because of non-supply of the statement of witnesses was on the appellant state to establish. Further in the case of Indrani Bai v. Union of India and Ors. (supra) the Apex Court while holding that failure to afford an opportunity to the delinquent officer to cross examine the witness had vitiated the enquiry not only quashed the order of dismissal but directed that the widow of the delinquent officer be given compassionate appointment also in addition to back wages and pensionary benefits. In the case of Gurdeep Singh v. State of Punjab (supra) relied upon on behalf of the respondents, where the Secretary of the Managing Committee of the School had participated in the selection of his daughter, the Apex Court though set aside the selection did not give any direction to initiate action against the Secretary of the Managing Committee. In the case of. the applicant of the present O. A. also his brother who had been selected as Junior Clerk had already resigned on 28.2.1992.
26. However, the disciplinary proceedings in our opinion are also vitiated on account of the fact that the copy of the advice of the UPSC had not been given to the applicant before the Disciplinary Authority imposed the impugned punishment. This copy was given to the applicant only later, on the direction of the UPSC while tendering the second stage advice dated 3rd July, 2000. The furnishing of the advice of the UPSC dated 15th March, 1999 was a mandatory requirement as per Rules 12 and 29 of the All India Service (D&A) Rules, 1969. Further in our opinion the advice of the UPSC dated 15th March, 1999 was mechanically followed by the Disciplinary Authority who levied the impugned penalty by his order dated 21st April, 1999. This in our opinion has caused grave prejudice to the applicant in the light of the decision of the Apex Court in the case of A.N. D'Silva v. Union of India, (supra). The Apex Court held in this case that UPSC which is to be consulted as per the constitutional mandate of Article 320(3) does not have the rule of an Appellate Authority. It was held that the UPSC cannot sit in appeal over the conclusion arrived at by the Enquiry Officer though in its advisory function, the UPSC could take a particular view even on the question of punishment. Further it was held by the Apex Court in the case of Ram Chandra v. Secretary to the Govt. of West Bengal and Ors., AIR 1964 SC 265, that the Govt. cannot act mechanically on the advice of the UPSC without applying its mind and if the Govt. acts mechanically the order would be vitiated and tainted with malafides. It was further held by the Apex Court that malafides does not necessarily involve a malacious intention and it is enough if the aggrieved party establishes that the authority making the impugned order did not apply its mind at all to the issue in question. It was further held that the final action is to be taken by the authority who is entrusted with the power to take a final decision and such an authority cannot simply act on the advice given by an advisory body without applying its own mind.
The decision in the case of Ram Chandra Chowdhary v. Secretary to the Govt. of West Bengal (supra), was followed in the case of Ishwar Chander Mohanty v. State of Orissa, (supra), where the Hon'ble Court held that the power to revert a gazetted Govt. servant vests exclusively in the Govt. and not in the Public Service Commission, though the Commission has to aid and advice the Govt. by giving its opinion. It was accordingly held that where the Govt. passes an order of reversion exclusively on the basis of the opinion given by the Commission without applying its own mind, the order is vitiated and tainted with malafides. It was held that the authority vested with the power to impose penalty has to apply his mind on the basis of material available on record and if so required can disagree with the advice of the UP.SC. In the case of the applicant of the present O.A., we notice that the advice of the UPSC dated 15.3.99 has been mechanically followed and adopted by the Disciplinary Authority who himself had proposed the penalty of censure but solely on the advice of the UPSC imposed the enhanced penalty of reduction by one stage in the lime scale of pay for a period of two years during which no increments of pay were to be earned by the applicant and which was to have the effect of postponing the future increments of the applicant. The order passed by the Disciplinary Authority is a brief order in which nothing has been stated as to why he is imposing the penalty as proposed by the UPSC. No reasons have been given by the Disciplinary Authority for agreeing with the advice of the UPSC despite the fact that he had proposed only a, penalty of censure. Thus acceptance of the advice of the UPSC by the Disciplinary Authority mechanically without applying his mind has vitiated the order of the Disciplinary Authority. The decision cited by the respondents of the Hon'ble Karnataka High Court in the Chief Commissioner of Income Tax v. B.N. Rangnath (WP 24181/1991(S-CAT) does not deal with the binding or advisory effect of the advice of the UPSC and has also not considered the judgments of the Hon'ble Supreme Court discussed above and hence is not applicable.
27. Thus in our opinion as discussed above in Paragraphs 22 to 26 inquiry is vitiated for the reason that the sole witness Sri Rizvi, Head Clerk was examined by the Enquiry Officer behind the back of the applicant who was denied the opportunity of cross examining him and for the reasons that actual copies of the documents listed in the Annexure to the charge sheet had not been furnished to the applicant. The order of the Disciplinary Authority dated 21.4.99 levying the impugned penalty is vitiated also for mechanically accepting and adopting the advice of the UPSC. In fact according to the law laid down by the Apex Court mechanically accepting the advice of the UPSC without application of mind has tainted with malafides the order dated 21.4.1999 passed by the Disciplinary Authority levying the impugned penalty on the applicant.
28. Accordingly, we set aside the punishment order dated 21.4.1999 (Annexure 1 to the O.A.) and the appellate order dated 25.8.2000 (Annexure 2 to the O.A.). Since the report of the Enquiry Officer is also vitiated, the respondents are given option and liberty to conduct a fresh enquiry after giving full opportunity to the applicant to cross examine the witness and after providing him the copies of documents listed in the annexure to the charge sheet. Since the charge sheet is based on the circular dated 31st October, 1969, which only provides for obtaining the permission of the superior officer by the officer chairing the Selection Committee and does not debar the authority from chairing the Selection Committee whose near relative is a candidate appearing for selection, it will also be open to the respondents to suitably amend the charge sheet also and to issue a fresh charge sheet.