R.K. Garg vs Union Of India And Another
2009 Latest Caselaw 3638 Del

*           HIGH COURT OF DELHI : NEW DELHI


+ 1.        Writ Petition (Civil) No. 4711 of 2001


                                     Judgment reserved on: July 27, 2009

 %                              Judgment delivered on: September 9, 2009


       R.K. Garg
       S/o Late Shri Kulwant Rai
       R/o A-25, Mohan Park
       Naveen Shahdara
       Delhi-110032.                                    ...Petitioner

                       Through Mr. G.D. Gupta, Sr. Advocate with
                               Mr.Vikram Saini, Advocate

                       Versus

1.     Union of India
       Through the Secretary to the
       Government of India
       Ministry of Urban Development
       Nirman Bhawan
       New Delhi-110011.

2.     The Director General (Works)
       Central Public Works Department
       Nirman Bhawan
       New Delhi-110011.                                ...Respondents

                       Through Mr. A.K. Bhardwaj with
                               Ms. Jagrati Singh, Advocates


                                   WITH


WP (C) No.4711/2001                                            Page 1 of 23
 2.   Writ Petition (Civil) No. 3705 of 2001

R.K. Garg
S/o Late Shri Kulwant Rai
R/o A-25, Mohan Park
Naveen Shahdara
Delhi-110032.                                      ...Petitioner

                      Through Mr. G.D. Gupta, Sr. Advocate with
                              Mr.Vikram Saini, Advocate

                      Versus

1.   Union of India
     Through the Secretary to the
     Government of India
     Ministry of Urban Development
     Nirman Bhawan
     New Delhi-110011.

2.   The Director General (Works)
     Central Public Works Department
     Nirman Bhawan
     New Delhi-110011.                             ...Respondents

                      Through Mr. A.K. Bhardwaj with
                              Ms. Jagrati Singh, Advocates

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                              Yes

2. To be referred to Reporter or not?                           Yes

3. Whether the judgment should be reported                      Yes
   in the Digest?

WP (C) No.4711/2001                                          Page 2 of 23
 MADAN B. LOKUR, J.

The two principal issues that arise for our consideration

relate to the interpretation of the proviso to Rule 9(2)(a) of the Central

Civil Services (Pension) Rules, 1972 and the validity of a non-speaking

order passed by a disciplinary authority pursuant to a departmental

disciplinary inquiry.

In our opinion, the proviso to Rule 9(2)(a) of the Central

Civil Services (Pension) Rules, 1972 does not obligate the President or

the disciplinary authority of a delinquent official to supply to him the

report of the findings of the disciplinary authority before a final decision

is taken by the President on the inquiry report in a departmental

disciplinary proceeding. We are also of the opinion that, in law, a

disciplinary authority is obliged to give reasons for taking an adverse

decision against a delinquent official and imposing a penalty on him.

2. The Petitioner is aggrieved by a common order dated 27th

May, 1999 passed by the Central Administrative Tribunal, Principal

Bench in OA Nos. 22/1993 and 3310/1992.

3. The Petitioner was subjected to two departmental

disciplinary enquiries by the Respondents on the basis of two charge-

sheets issued to him under Rule 14 of the Central Civil Services

(Classification, Control and Appeal) Rules, 1965. During the pendency

of the disciplinary proceedings, the Petitioner superannuated and,

therefore, the enquiries proceeded against him in accordance with the

provisions of Rule 9 of the Central Civil Service (Pension) Rules, 1972.

4. On the conclusion of the departmental enquiries, the

Petitioner was visited with a penalty imposed by the President by two

orders dated 25th January, 1992 and 29th January, 1992. The penalty

imposed on the Petitioner in respect of both cases was a 50% cut in

pension for 15 years.

5. Feeling aggrieved by the imposition of a penalty, the

Petitioner preferred original applications before the Tribunal under

Section 19 of the Administrative Tribunals Act, 1985. In support of his

applications, the Petitioner raised four contentions before the Tribunal,

all of which were negatived and that is why the Petitioner is now before

us. Learned counsel reiterated those contentions before us.

Interpretation of the proviso to Rule 9(2)(a) of the Central Civil Services (Pension) Rules, 1972

6. It was submitted that under the proviso to Rule 9(2)(a) of the

CCS (Pension) Rules, 1972 the Petitioner's disciplinary authority is

required to submit a report of his findings to the President and it is on

the basis of this report that a decision is taken by the President whether

to impose any punishment on the delinquent official or not. It was

submitted that the report submitted by his disciplinary authority to the

President was not supplied to the Petitioner and, therefore, he was

unable to represent against it. Consequently, it was contended that there

was a violation of the principles of natural justice.

7. Rule 9(2)(a) of the CCS (Pension) Rules, 1972 reads as

follows: -

"9. Right of President to withhold or withdraw pension.

             (1)        xxx        xxx        xxx

             (2) (a)     The departmental proceedings referred to in sub-

rule (1), if instituted while the Government servant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President." (Emphasis supplied)

8. In support of his contention, learned counsel for the

Petitioner placed reliance on a Division Bench decision of this Court in

Moti Lal Shakya v. Union of India and others (WP (C) No. 3097/2002

decided on 29th May, 2009). In that decision, there is an observation to

the effect that the "......respondents have violated the statutory

procedure while non supplying the recommendation of the initial

disciplinary authority......". Unfortunately, there is no discussion on the

question whether there is at all a requirement for the disciplinary

authority or the President to furnish to the delinquent officer the report

submitted by the disciplinary authority. It is only if there is such a

requirement that the non-supply of the recommendation can be a

violation of the procedure. Unfortunately, this issue has not been

addressed. A little later in the decision it is observed that "......the

respondents have violated the statutory procedure prescribed in Rule 9

of the CCS (Pension) Rules 1972, firstly, the President (delinquent?)

was not supplied the specific recommendation of the initial disciplinary

authority while forwarding the enquiry officer's report and, secondly,

the charged officer's comments were also not sent to the President for

his consideration. We are, therefore, of the considered opinion that non-

supply of essential documents to the President has resulted in

miscarriage of justice in the present case." Again, there is no discussion

on this aspect and no reasons have been given for this conclusion. With

respect, therefore, we hold these observations to be not binding in law

but only limited to the facts of that case.

9. Learned counsel for the Petitioner also relied upon State

Bank of India and others v. D.C. Aggarwal and another, (1993) 1 SCC

13 to submit that it was mandatory for the Respondents to have

furnished the report of the disciplinary authority to the Petitioner and to

have invited his comments thereon while forwarding the case to the

President. On the failure of the Respondents to do so, there is a

violation of the principles of natural justice.

10. In our opinion, this decision does not at all advance the case

of the Petitioner. What the Supreme Court was considering was the

necessity of providing to the delinquent officer the views of the Central

Vigilance Commission (CVC) for consideration by the disciplinary

authority. The CVC was not a party to the proceedings and its

recommendation was "prepared behind the back of the respondent

without his participation, and one does not know on what material......"

It is in this context that the Supreme Court expressed the view that the

opinion of the CVC is "irrelevant" and could not be looked into and,

therefore, the delinquent official is entitled to give his comments in

respect of that opinion. Clearly, the facts of that case are not at all

apposite to the facts of the case that we are concerned with simply

because it is not the opinion of any third or outside party that is being

forwarded to the President but the views of the Petitioner's disciplinary

authority.

11. Moreover, it is not as if the report of the disciplinary

authority is prepared without the Petitioner's participation or without

any knowledge of the material. In this context, it is important to note

the procedure and circumstances in which the findings of the

disciplinary authority are required to be forwarded to the President. As

per the procedure explained to us, the report given by the Enquiry

Officer on the conclusion of the disciplinary proceedings is furnished to

the delinquent official who is entitled to make a representation in

respect of the discussion and conclusions of the Enquiry Officer. Both

the enquiry report as well as the representation of the delinquent official

thereon are placed before the disciplinary authority who then gives his

report and forwards the entire record to the President for taking a final

decision in the matter on whether to impose any penalty on the

delinquent official or not. It is nobody's case that while taking a

decision, the President considers only the findings of the disciplinary

authority and not the report of the Enquiry Officer or the representation

of the delinquent official, which are the primary documents.

12. Under the circumstances, it is quite clear that, as per the

procedure, the delinquent official fully participates in the entire process.

Giving the delinquent official an opportunity to represent against the

report of findings of the disciplinary authority before the award of a

punishment (as canvassed by learned counsel), would virtually amount

to giving to that delinquent official a third opportunity to explain why

he should not be punished - the first opportunity being during the

departmental enquiry, the second opportunity being by way of a

representation against the enquiry report and the third opportunity being

against the findings of the disciplinary authority. Surely, the principles

of natural justice which require a fair hearing cannot be stretched to

mean three fair hearings as contended by the Petitioner.

13. All that Rule 9 of the CCS (Pension) Rules does is to transfer

the power of punishment from the disciplinary authority to the

President. This procedural transfer cannot be read to mean that an

additional right gets conferred on the delinquent official to make a

representation to the President beyond the right to represent against the

report of the Enquiry Officer. Under the circumstances, there can be no

obligation, and indeed none has been shown to us, to supply a copy of

the report of the findings of the disciplinary authority to the Petitioner.

14. In our opinion, the Tribunal rightly came to the conclusion

that the findings of the disciplinary authority were not required to be

supplied to the Petitioner for his comments under the proviso to Rule

9(2)(a) of the CCS (Pension) Rules, 1972 and, in any event, non-supply

of the findings does not prejudice the delinquent official or violate any

principle of natural justice.

Advice of the Union Public Service Commission

15. The second contention urged by learned counsel before the

Tribunal (and this was not pressed before us) was that the advice of the

Union Public Service Commission was not supplied to the Petitioner

before the penalty order was passed by the President. Learned counsel

for the Petitioner rightly did not press this ground in view of the

decision of the Supreme Court in Union of India and another v. T.V.

Patel, (2007) 4 SCC 785.

Non-speaking order of the disciplinary authority

16. The third contention urged by learned counsel for the

Petitioner was that the penalty orders passed by the President were non-

speaking orders. We have gone through the orders passed by the

President and find that this submission of learned counsel is

substantiated. After giving the broad facts of the controversy, the

penalty order dated 25th January, 1992 reads as follows: -

"3. The Inquiry Officer submitted the inquiry report dated 28.4.1989 wherein he held Articles I, II and V as proved, Article III as partly proved, and Article IV as factually proved. The disciplinary authority sent a copy of the inquiry report to Shri R.K. Garg Asstt. Engineer (Retd) submitted the representation vide letter, dated the 11th September 1989. The Disciplinary Authority considered the representation of the charged officer vis-a-vis inquiry report and records

relevant to the case and submitted a report recording its findings to the Government for passing appropriate orders.

4. The President in consultation with the UPSC has considered the inquiry report, findings of the Disciplinary Authority and records relevant to the case. Agreeing with the recommendations of the Disciplinary Authority and the UPSC, the President has come to the conclusion that all the five articles of charges may be held as proved. Shri R.K. Garg, Asstt. Engineer is also involved in another case which has been examined in this Ministry in File No. C- 14012/2/90-AVI II, wherein the President in consultation with the UPSC held all the Articles of charge except Article V and VI as proved.

Considering the fact the charges established against Shri R.K. Garg, Asstt. Engineer in both the cases are serious in nature, the President has come to the conclusion that the ends of justice would be met if 50% (fifty per cent) monthly pension otherwise admissible to Shri R.K. Garg, Asstt. Engineer is withheld for a period of 15 years for both the cases.

5. A copy of the UPSC's advice contained in their letter No. F. 3.2.91-SI, dated the 5th July, 1991 is enclosed."

[The penalty order dated 25th January, 1992 is on the same lines.]

A perusal of the above extract from the penalty order clearly indicates

that no reasons have been given by the President for coming to the

conclusion that he did. The Petitioner canvassed this issue before the

Tribunal also but unfortunately in paragraph 7 of the impugned order,

the Tribunal merely stated that on a perusal of the impugned penalty

order it was unable to agree with learned counsel that it was a non-

speaking order. No reasons have been given by the Tribunal for coming

to the conclusion that it did. The question that arises under these

circumstances is whether the order passed by the President as the

disciplinary authority of the Petitioner is required to be a reasoned order

or not.

17. In support of his contention in this regard, learned counsel

placed reliance on two decisions of the Supreme Court, namely,

Mahabir Prasad Santosh Kumar v. State of Uttar Pradesh and others,

AIR 1970 SC 1302 and Director (Marketing) Indian Oil Corporation

Ltd. and another v. Santosh Kumar, (2006) 11 SCC 147.

18. Mahabir Prasad pertains to the cancellation of a license of a

dealer in sugar and flour. It was noted that the order cancelling the

license is appealable, which implied that the aggrieved party must have

an opportunity to convince the appellate authority that the order passed

by the original authority is erroneous. The Supreme Court held that the

right of appeal could be effectively exercised only if reasons were

recorded by the original authority and supplied to the aggrieved party.

If the aggrieved party is not supplied the reasons, the right of appeal is

an empty formality.

19. Similarly in Santosh Kumar it appears that the disciplinary

authority had mechanically passed an order of dismissal against the

respondent pursuant to a disciplinary enquiry. It was upheld by the

appellate authority without recording any reasons. On this basis, the

Supreme Court concluded that the orders passed by the disciplinary

authority as well as the appellate authority deserved to be quashed and

remitted the matter for a fresh consideration. There is nothing explicit

in the decision to suggest that the disciplinary authority was required to

give reasons for punishing the delinquent official.

20. However, it is implicit in the above decisions that the

original authority, excercising quasi-judicial functions, should supply

the reasons for an adverse finding to the affected party.

21. In addition to the above decisions, we may discuss a few

recent decisions of the Supreme Court on the subject.

22. In Divisional Forest Officer, Kothagudem and Others v.

Madhusudhan Rao, (2008) 3 SCC 469 one of the issues for

consideration before the Supreme Court was whether the order of the

appellate authority in respect of a disciplinary inquiry was vitiated and

liable to be set aside on the ground that it was not a reasoned order. The

Supreme Court expressed the opinion in paragraph 19 of the Report that

it was the duty of the appellate authority to give at least some reasons

for rejecting the departmental appeal preferred by the respondent. It was

further said that a similar duty was cast on the revisional authority. It

was noted in paragraph 20 of the Report that both the appellate authority

as well as the revisional authority are not required to give detailed

reasons for agreeing and confirming an order passed by the lower forum,

but in the interest of justice, the delinquent officer is entitled to know at

least the mind of the appellate or revisional authority in dismissing his

appeal and/or his revision. While no detailed reasons are required to be

given, some brief reasons should be indicated even in an order affirming

the views of the lower forum.

23. As will be seen, the decision does not concern the recording

of reasons by a disciplinary authority but it is quite clear that if the

appellate authority as well as the revisional authority are duty bound to

give at least some reasons for taking a view adverse to a party, it would

be irrational to conclude that the authorities constituting the lower

forum are not required to give reasons. Therefore, it must necessarily

follow from this that even the disciplinary authority is required to give

reasons for arriving at his conclusion for imposing a penalty on a

delinquent officer.

24. In Roop Singh Negi v. Punjab National Bank and Others,

(2009) 2 SCC 570 the Supreme Court noted that a departmental

proceeding is a quasi-judicial proceeding and an Enquiry Officer

performs a quasi-judicial function. In paragraph 23 of the Report it was

observed that the orders of the disciplinary authority as well as the

appellate authority were not supported by any reasons. Since both these

orders had severe civil consequences, reasons should be assigned for

arriving at an adverse conclusion.

25. Finally in Chairman, Disciplinary Authority, Rani Lakshmi

Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and Others,

(2009) 4 SCC 240 the question that arose for consideration was whether

an order passed by the appellate authority affirming the decision of the

disciplinary authority in respect of disciplinary proceedings is required

to be supported by reasons or not. In paragraph 5 of the Report, the

Supreme Court held that an order of affirmation need not contain as

elaborate reasons as an order of reversal but that does not mean that the

order of affirmation need not contain any reasons whatsoever. It was

noted that whether there was an application of mind or not can only be

disclosed if some reasons, at least in brief, are mentioned in the order of

the appellate authority. In coming to this conclusion, the Supreme Court

referred to and relied upon Madhusudhan Rao, M.P. Industries Ltd. v.

Union of India, AIR 1966 SC 671 and Siemens Engineering &

Manufacturing Co. of India Ltd. v. Union of India, (1976) 2 SCC 981.

26. The Supreme Court also briefly discussed the decision of the

Constitution Bench of the Supreme Court in S.N. Mukherjee v. Union

of India, (1990) 4 SCC 594 to the effect that the purpose of disclosure

of reasons is that it minimizes the chances of arbitrariness and enables a

person to know that the authority has applied its mind to the case

thereby instilling confidence in the judicial or quasi-judicial authorities.

27. There are, therefore, two facets to this controversy - firstly,

the duty cast on the disciplinary authority to give reasons for its adverse

order and secondly, the entitlement of the delinquent official to know

the reasons to enable him to effectively challenge the adverse order in

appeal.

28. On an appreciation of all the above decisions rendered by the

Supreme Court (and many others which we are not referring to at the

moment) it is quite clear that a disciplinary authority has a duty to give

reasons for coming to its conclusion, more particularly if the conclusion

has adverse civil consequences in so far as the delinquent official is

concerned. The giving of reasons enables the aggrieved official to know

the mind of the disciplinary authority and this enables him to make an

effective appeal to the higher forum, which can focus its thoughts on the

issues involved, rather than have to search for them. There is, therefore,

a tremendous benefit to all concerned if reasons for taking an adverse

decision are recorded. The case law clearly suggests that the authorities

higher up in the forum such as the appellate authority and the revisional

authority are also required to give reasons even if they are in agreement

with the views of the disciplinary authority but in the case of the

appellate or revisional authority, the reasons need not be elaborate or

detailed but they must nevertheless exist so that it is apparent that there

is an application of mind by the authorities.

29. At the same time, we may add that it is not as if the

disciplinary authority is required to write a "judgment" as is commonly

understood but its order must be detailed enough to clearly suggest that

there is an application of mind to all the relevant facts of the case and to

the submissions made by the delinquent official and if those

submissions are rejected then the reasons for their rejection. In our

opinion, this is now settled law and there can be no going back on this.

We may also note that learned counsel for the Respondents did not cite

any decision on this aspect of the case to persuade us to take a different

view.

30. Applying the law laid down by the Supreme Court, we find

that the orders passed by the President do not contain any reasons

whatsoever. All that they say is that the President has considered the

inquiry report, findings of the disciplinary authority and the record

relevant to the case and in consultation with the Union Public Service

Commission the President has come to the conclusion that the articles of

charge are proved. There is nothing to indicate that the submissions

made by the Petitioner in his representation against the enquiry report

were duly considered and the reasons for their rejection.

31. Unfortunately, even the Tribunal has not given due

consideration to the fact that the order of the President does not contain

any reasons. The Tribunal has merely stated that it is unable to agree

with learned counsel for the Petitioner that the orders passed by the

President are not speaking orders. The Tribunal was undoubtedly under

an obligation to give reasons for disagreeing with learned counsel for

the Petitioner when a specific contention was raised that the order

passed by the President was not a speaking order, but it has failed to do

so.

32. We may also add that against the order of the President

(virtually acting as the disciplinary authority of the Petitioner) no appeal

or revision is provided for. The effect of this is that the delinquent

official really does not even know the reasons for an adverse decision (if

one is taken against him) until he approaches the Tribunal for relief.

Even there, he is handicapped in challenging the order of the President

due to an absence of reasons for the adverse order. To obviate placing

the delinquent official on the backfoot and to give him a real chance of

impugning the adverse penalty order, the interests of justice require that

in proceedings such as the one that we are concerned with, the order of

the President must be supported by reasons.

33. In view of the above, we have no option but to set aside the

order passed by the Tribunal to this limited extent and also to set aside

the orders passed by the President (virtually acting as the disciplinary

authority of the Petitioner) and to issue an appropriate direction to the

President to consider the matter afresh and pass speaking and reasoned

orders.

Unequal punishments

34. The fourth contention urged by learned counsel for the

Petitioner was that the punishment awarded by the Respondents to two

other persons who were proceeded against on similar charges was much

milder than the punishment awarded to the Petitioner.

35. We are not inclined to accept this submission made by leaned

counsel. Each case has to be decided on its own facts and the evidence

on record. The proceedings in respect of the other two officials were

not common with the proceedings in the case of the Petitioner. The

other two persons were separately charge-sheeted and were dealt with

separately. In the absence of a full disclosure of all relevant material, it

is not possible for us to compare and contrast the charge-sheet issued to

other persons and to the Petitioner, the evidence available in the other

two cases, the conclusion arrived at by the Enquiry Officer and the view

taken by the disciplinary authority.

Joint penalty

36. The final submission urged by learned counsel was that the

matter has been dealt with by the President in respect of two charge-

sheets and two penalty orders have been passed, but the actual penalty is

common for both cases. Learned counsel says that this is impermissible.

Apart from the fact that learned counsel has not shown us any decision

in support of his contention, this issue was not urged by the Petitioner

before the Tribunal. In exercise of our writ jurisdiction under Article

226 of the Constitution it is not possible for us to take up this issue for

consideration as if we are a court of first instance. The contention urged

by learned counsel in this regard is, therefore, rejected.

Conclusions

37. For the above reasons, the writ petition is party allowed. The

impugned order passed by the Tribunal as well as the orders passed by

the President on 25th January, 1992 and 29th January, 1992 are set aside

on the ground that the order of the President does not contain any

reasons. We remit the matter back to the President for a reconsideration

of the case and to pass speaking and reasoned orders. Since the case is

very old, we grant six months time for taking a final decision in the

matter. No costs.

                                              MADAN B. LOKUR, J



September 9, 2009                             A.K. PATHAK, J
kapil/vk


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