Union Of India (Uoi) And Ors. vs Sahi Ram
2007 Latest Caselaw 107 Del

JUDGMENT

Mukul Mudgal, J.

CM No. 693/2007 (Exemption)

Allowed subject to all just exceptions.

The application stands disposed of accordingly.

Caveat No. /2007

Since the caveators have put in appearance through counsel, the caveat stands disposed of.

W.P. (C) No. 376/2007 & CM No. 692/2007

1. Rule DB.

2. With the consent of the learned Counsel for the parties, the matter is taken up for final hearing.

3. We are not inclined to interfere with the Order of the Tribunal dated 13.7.2006 in view of the fact that the Inquiry Report apart from not being furnished to the respondent also did not deal with paragraph (3) of the reply of the respondent given by his counsel to the show cause notice. The reply has presumably not been taken into account on the ground that the reply was not given by him and sent by the counsel. Thus it is clear that the respondent was not right in dealing with the plea raised in para 3 of the reply which reads as under:

That the offence which is being levelled against my client with regard to issuance of extra grocery items from his counter, is absolutely unknown and foreign to the chartered of his duty, as he is not concerned at all for the issue of store but his concerned is confined to the extent of checking of stores. The question of issue of extra grocery items to one Ex.Nk. Ram Raj Goyal is absolutely vague, illegal, irrestional, unconstitutional and unwarranted, as well as without jurisdiction. The issuance of the alleged show cause notice on such filmsy and vague grounds is absolutely tained with malafide intentions and malicious character.

4. Furthermore the CAT found as follows:

17. If one has regard to be above, this order of termination has indicated that the applicant's integrity is doubtful and his retention in the employment not found to be conducive in the interest of regimental welfare. On perusal of the appellate order, we find that before a show cause was issued to the applicant a court of enquiry was conducted where number of witnesses were examined and a categorical finding was given whereby applicant has been held guilty of alleged misappropriation and the show cause notice was issued.

18. In our considered view what is required for establishing the character of the termination as a stigmatic order is that applicant has been alleged to be doubtful integrity and also unfitness for service not in the interest of regimental welfare. Though in the termination order, there is no reference to the report of court of enquiry which has been wrongly withheld from the applicant yet the appellate authority when pitted with such a contention, we are of the view that the disciplinary authority has deliberately withheld the aforesaid from the applicant as he could have rebutted the contentions or taken his legal rights which is in violation of principles of natural justice. Be that as it may, the fact remains that the order passed against the applicant is a stigmatic order. It questions the integrity of the applicant and also proves his unfitness for the service. Another ground which now leads us as to whether a preliminary enquiry has the nomenclature of an enquiry conducted into the fact of suitability of applicant for service or for a particular misconduct of misappropriating the money. This is clear from the order passed by the appellate authority wherein it is categorically observed that show cause notice issued was for the reasons that the court of enquiry was held to investigate these circumstances under which excess grocery items were sold to Nk R.R. Goyal, where on categorical finding on evidence applicant's services have been dispensed with. In our considered view, if an particular misconduct of a Government servant or may be an employee in Taurus Canteen found sole motive for dispensing his services that is impermissible in law and the order passed would partakes the character of a punitive order.

19. In the present case when it is admitted by the respondents themselves that a preliminary enquiry was held in the circumstance of theft which is an alleged misconduct levelled against the applicant, misconduct is certainly the foundation of the order. The process undertaken when include formality of issuing a show cause notice but also non-furnishing the applicant the relevant material which have been relied upon to arrive at a finding of guilt, the termination would be a punitive order founded on the misconduct. The decision in Balbir Singh's case (Supra) which has been referred to substantiate the aforesaid conclusion wherein reference to the decision of the Apex Court in Parvender Narain Verma v. Union of India 2000 (1) SCC 520 it has been ruled that the test of the misconduct depends upon object of the enquiry. If the object was the unsuitability of the applicant and if it is otherwise, order is certainly a punitive one and for not following the principles of natural justice and deprivation of reasonable opportunity termination is illegal.

20. A court of enquiry when investigated into a particular misconduct in its course not only prosecution witnesses have been examined but a categorical finding is arrived at. If it is behind the back of the applicant without affording him a right to rebut, under the guise of preliminary enquiry settled law is that such a preliminary enquiry would not include participation of the concerned but on an enquiry report where a categorical finding as to misconduct has been arrived at form basis which ensues civil consequences upon a Government servant withholding such a report and not furnishing it to the concerned would certainly a breach of audi alteram partem and deprivation of a reasonable opportunity which is not in consonance with the principles of natural justice.

21. Moreover, the enquiry report which has been withheld the applicant has also not been accorded an opportunity to participate in the enquiry. Another aspect of the matter is that once a show cause notice is issued only to propose a disciplinary action against the applicant the aforesaid show cause notice is not in consonance with para 30 (c) for his alleged misappropriation and would entain termination. The necessity of bringing to the notice of the aforesaid is to afford an opportunity to the concern to be prepared in advance to defend the action. Merely stating that a disciplinary action would be taken would include other things as well and being non-specific show cause notice it deprives a reasonable opportunity to the applicant.

22. A closed mind of the competent authority in its termination order is apparent from the fact that whereas the applicant has preferred a reply through a legal notice yet observing that no reply has been filed the respondents have not at all adhered to any of the contentions of the applicant taken in his reply and on their ipsi dixit an order passed is almost an ex parte order which also offends the requirement of para 30 (c) according to which it is only on consideration of the reply, it it is not found satisfactorily, termination would entail.

5. Apart from the reasoning recorded in para 4 above we fully concur with the findings of fact arrived at by the CAT which do not warrant influence under Article 226 of the Constitution. However, the learned Counsel for the petitioner had pointed the judgment of the Hon'ble Supreme Court titled as Managing Director, ECIL, Hyderabad etc. v. B. Karunakar reported as . The relevant portion of the judgment reads as under:

It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Courts/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

6. The learned Counsel for the petitioner prays that the above procedure be adopted in the present case. Accordingly we are of the view that since the defect noticed by us in the procedure indicate that the order of reinstatement should be passed but nevertheless as laid down by the above judgment, the respondent shall be placed under suspension and inquiry shall proceed from the stage of furnishing the respondent a copy of the inquiry report and other proceedings. The said inquiry report and the other proceedings in the inquiry shall be furnished to the respondent through counsel not later than two weeks from today. Reply, if any, shall be filed by the respondent within two weeks thereafter.

7. The respondent shall appear before the Vice Chairman, Canteen Officer, Headquarter Delhi Area, Station Canteen on 26th February, 2007 at 10.30 a.m. The Inquiry Officer shall be nominated by the Vice Chairman. The Inquiry Officer will continue the inquiry of the respondent. The respondent shall appear before Inquiry Officer and shall be provided adequate legal assistance. The inquiry shall be proceeded in accordance with the prescribed procedure of law. Since we are directing the reinstatement of the respondent subject to the rider imposed in the judgment of the Supreme Court (Supra) we are of the view that taking into account the nature of the charge and the passage of six years of time, ends of justice shall be substantially met if for the said period the respondent is paid 25% of the emoluments payable under the judgment of the Tribunal. Ordered accordingly.

8. The 25% of the emoluments shall be paid to the respondent on or before the date of his 1st appearance appearance before the Vice Chairman on 26th February, 2007. The inquiry shall be completed not later than six weeks from the date of first appearance of the respondent before the Inquiry Board. In case defense assistance or legal assistance of a counsel is sought by the respondent, that request shall be guaranteed by the Inquiry Officer. In case the respondent is aggrieved by the result of the enquiry he shall be entitled to assail it in appropriate proceedings according to law.

9. With the above observations, the Writ Petition and all pending applications stands disposed of.