Uniion Of India Through ... vs Tarlok Singh
2011 Latest Caselaw 1390 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No.1760/2008

%                      Date of Decision: 10.03.2011

Union of India through Secretary, Ministry of             .... Petitioners
Information and Broadcasting & Anr.

                      Through Mr.M.M.Sudan, Advocate

                                 Versus

Tarlok Singh                                             .... Respondent

                      Through Ms. Meenu Maini, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL

1.      Whether reporters of Local papers may             Yes
        be allowed to see the judgment?
2.      To be referred to the reporter or not?            No
3.      Whether the judgment should be                    No
        reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioners Union of India through the Secretary, Ministry of

Information and Broadcasting and Anr. have challenged the order dated

12th March, 2007 passed by the Central Administrative Tribunal,

Principal Bench in O.A No.2759/2005 titled as „Sh.Tarlok Singh v.

Union of India and Ors‟ allowing the original application of the

respondent and setting aside the order dated 28th August, 2002 of

major punishment imposed upon the respondent and holding that

consequent to setting aside of major punishment the respondent shall

be entitled for all consequential benefits.

2. The brief facts to comprehend the disputes between the parties

are that the respondent was appointed as JE on 9th June, 1989 and

was subsequently promoted as AE (Electrical). On 9th July, 1996 a

memorandum of chargesheet was served on the respondent alleging

that he had accepted an alternator of lesser frame size and had falsely

recommended passing of the first running account bill of M/s.Escorts

Ltd. Allegations were also made that he did not initiate action for testing

the alternator. The articles of charges made against the respondent

were denied by him. An enquiry officer, Sh. Onkarmal Kedia,

Commissioner for Departmental Inquiries, CVC was appointed to

enquire into the charges framed against the respondent. Though an

enquiry was conducted in which the respondent did not examine

himself as witness, however, in compliance with Rule 14(18) of CCS

(CCA) Rules, 1965 the evidence against the respondent was not put to

him. The allegation was also made by the respondent that the enquiry

officers conducted the enquiry proceedings in violation of the principles

of natural justice.

3. The enquiry officer gave a report dated 26th May, 1998 and a copy

of the enquiry report was also given to the respondent. The respondent

submitted a representation dated 6th May, 1999 categorically

contending that the enquiry was not conducted in compliance with the

principles of natural justice; that the enquiry officer has not put the

evidence which was against the respondent in compliance with Rule

14(18) of CCS (CCA) Rules, 1965 and also that the disciplinary

authority, without properly considering the representation and without

dealing with the pleas and contentions raised by the respondent

imposed a penalty of withholding of two increments for a period of two

years with cumulative effect.

4. The respondent also came to know that the UPSC was consulted

regarding the punishment to be imposed, however, copy of the opinion

of UPSC was not given to the respondent, which was mandatory. The

respondent, therefore, filed an appeal on 17th March, 2003 which was

converted into a revision petition, however, the reviewing authority

rejected the same by order dated 30th November, 2005. Aggrieved by the

order, the respondent filed an original application being O.A

No.2759/2005 before the Central Administrative Tribunal, Principal

Bench on the grounds inter-alia that the enquiry officer did not put the

evidence adduced against him during the enquiry in compliance of Rule

14 sub Rule 18 of CCS (CCA) Rules, 1965 which contemplates that the

enquiry authority, after Government servant closes his case, and if the

employee has not examined himself, shall generally question him on the

circumstances appearing against him in the evidence, for the purpose of

enabling the employee to explain any circumstances appearing in the

evidence against him. The respondent also challenged the appointment

of Sh.O.Kedia, Commissioner for departmental enquiry, CVC, who

conducted the enquiry against the respondent, on the ground that he

was also directed to hold the enquiry in case of Sh.D.S.Manchanda and

Sh.Lalit Kumar against whom similar chargesheet had already been

issued.

5. The respondent contended that after examining the prosecution

witness since there was no defence witness, the enquiry officer ought to

have put the evidence adduced during the enquiry against the

respondent in compliance of Rule 14(18) of CCS (CCA) Rules, 1965.

The respondent also contended that though there were three charges

against the respondent, the enquiry officer did not put any question in

regard to any evidence which was adduced against him during the

enquiry. The respondent categorically contended that the enquiry officer

had only put two generic questions in regard to charge No.2 and charge

No.3 stipulating rebuttal of charges, but did not put any question

regarding the evidence which had been recorded against the respondent

and which was required to be explained by him. The respondent in the

circumstances contended that the infirmity in the enquiry proceedings

vitiates the entire enquiry and relied on „Ministry of Finance v.

S.B.Ramesh‟, SLJ 1998 Vol. II SC page 67 holding that the failure of

enquiry officer to put mandatory question on the charged officer

regarding circumstances appearing against him would vitiate the entire

enquiry proceedings.

6. The respondent also objected to the enquiry officer directing the

presenting officer to give his brief to refer to some extraneous material

which was not produced during the enquiry. In the brief the presenting

officer referred to the charge leveled against the respondent being

investigated through Sh.V.B.Gupta, Director, CEA regarding the frame

size on the basis of which the Director General, AIR was directed to

replace the Jyoti make alternator of the same size THJD-66-4-B3 with

the alternator of the frame size as specified in the agreement. The

presenting officer also referred to the advice of the CVC. Relying on the

presenting officer‟s brief, it was contended that the chargesheet issued

against the respondent was based merely on the enquiry report

submitted by Sh.V.B.Gupta, Director, CEA but surprisingly the basis on

which the chargesheet was issued to the respondent was not given to

the respondent. In the circumstances it was contended that even the

enquiry officer could not have relied on preliminary enquiry without

supplying a copy of the same to the respondent. It was further asserted

that reliance of the enquiry officer on the report of Sh.V.B.Gupta, a copy

of which was not supplied to the respondent vitiates the entire enquiry

proceedings. The respondent also objected to the appointment of

Sh.Uppal as presenting officer and contended that his appointment had

seriously prejudiced the case of the respondent as Sh.Uppal was one of

the officers, who was concerned with the whole episode in respect of

which the charges had been made against the respondent. Reliance was

placed by the respondent on Rule 57 of CPWD Code. The respondent

also relied on a letter by the presenting officer Sh.Uppal, who had not

raised any objection in regard to any item accepted by the respondent.

Relying on the testimonies of Sh.Manchanda who was the Chief

Engineer in connection with the case of Sh.Lalit Kumar and

Sh.D.C.Banerjee who was the department witness in the case of Lalit

Kumar, it was contended that they were categorical in stating that the

frame size would not materially effect the capacity of the alternator as

long as it satisfies other technical parameters without causing excessive

heat in the winding. It was thus contended that the charges have not

been made out even on the basis of the department witnesses. The

respondent before the Tribunal also challenged the punishment

imposed upon him on the ground that the UPSC recommendation

which was relied upon by the Disciplinary Authority, a copy of which,

as also a copy of the CVC report was not supplied to him, which was

mandatory and thus the entire disciplinary proceedings were vitiated. In

the circumstances the respondent had prayed that his application be

allowed and the order of major penalty of withholding of two increments

for a period of two years with cumulative effect be quashed.

7. The petition was contested by the petitioners contending inter-

alia that the respondent had not presented himself as defence witness

and he was generally examined on 6th April, 1998 in accordance with

Rule 14 sub Rule 18 of CCS (CCA) Rules, 1965. Without categorically

denying that the evidence adduced during the enquiry was not put to

him, the petitioners contended that there has been no violation of Rule

14(18) of CCS (CCA) Rules, 1965. The petitioners, however, did not deny

that the questions put to the respondents were generic in nature e.g do

you have anything else to say?; the prosecution has charged you with

proposing over payment of Rs.1.03 lakhs to the agency while

recommending release of payment of part rate after accepting supply of

LT panel. Your comment? Regarding the copies of recommendation of

the UPSC and the advice of CVC, the petitioners contended that in his

written statement of defence dated 27th July, 1996, the respondent had

not sought for the copies of the documents. Regarding the appointment

of Sh.A.J.S.Uppal as presenting officer it was asserted on behalf of the

petitioners that appointment was as per rules and there was no

question of any prejudice caused to the respondent. Regarding the

preliminary enquiry it was clarified that it was conducted by

Sh.V.B.Gupta, Director, CEA and not by Sh.Uppal. It was further

contended that the duty of presenting officer is only to present the case

for and on behalf of the disciplinary authority and, therefore, the

question of bias cannot be attributed to him.

8. The Tribunal after noting the pleas and contentions of the parties

relied on State Bank of India and Ors v. D.C.Aggarwal and Ors, (1993) 1

SCC 13 holding that it is obligated upon the department to serve a copy

of the report of CVC along with the enquiry officer‟s report to the

charged officer as the charged officer would be deprived of a reasonable

opportunity in contravention of the principles of natural justice, if the

copy of the report is not supplied to him. Taking into consideration the

three questions put to the respondent the Tribunal noted that it is the

Articles of Charge that had been put to the respondent and not the

evidence adduced during the enquiry against him and, therefore, there

was no valid compliance of Rule 14(18) of CCS (CCA) Rules, 1965. In

paragraph 6 of the order, the Tribunal held that there has been non

compliance of Rule 14(18) of CCS (CCA) Rules, 1965 and the enquiry is

also vitiated on account of non supply of CVC recommendations. The

reasons and observations of the Tribunal are as under:-

"6. It is trite that till the decision of the Tribunal is not overturned or modified, the same has precedent value and has to be followed under the doctrine of precedent. It is also trite that in a disciplinary proceeding, Courts/Tribunal cannot go into the correctness of the charge and re- appreciate the evidences by assumption of the role of appellant authority. It is open for the Courts/Tribunal to interfere in the matter only when the disciplinary proceedings are based on „no evidence‟ „surmises‟ and „conjectures‟. Supply of CVC second stage advice has been made obligatory on the basis of D.C.Aggarwal‟s case (Supra). It is also trite that administrative instructions, if not specific, would not be applied retrospectively. The decision in D.C.Aggarwal‟s case (Supra) relied upon in the

T.K.Nath‟s case, has held that non-supply of CVC recommendations, which are administrative in nature along with the enquiry report, not only prejudice the concerned but deprived him of a reasonable opportunity to show cause against the enquiry report which ultimately affected the substantiate right of the applicant to effectively defend. The decision of the Apex Court is binding on us under Article 141 of the Constitution of India and we are in agreement with the decision of the Coordinate Bench decision in T.K.Nath‟s case (Supra). We rule that non-supply of CVC second advice to the applicant has certainly prejudiced him in the enquiry, which vitiates the subsequent orders. In so far as Lalit Kumar‟s case is concerned, despite stay, we find that issue of CVC advice has been left open. Accordingly, stay of operation of our order would not be an impediment for us to rely upon in T.K.Nath‟s case as well as D.C.Aggarwal‟s case (Supra). The issue pertaining to punishment of withholding of two increments has been a matter of decision in an identical situated case of Harish Kumar v. Union of India & Others OA-256/2002 decided on 5.2.2004 by the Jodhpur Bench of the Tribunal, wherein it is ruled that whereas increment can be withheld when one gets it and by no stretch of imagination two increments can be withheld in a year since one does not get them at all. From the perusal of penalty order, it is certain that penalty order is not in consonance with Rule 11 of CCS(CCA) Rules, 1965 as the same has been issued with a closed mind, which cannot be sustained in law. As regards violation of Rule 14(18) of CCS(CCA) Rules is concerned, CCS Rules are formulated for according a reasonable opportunity to a Government servant. One of the rules is that a delinquent is generally examined. The enquiry officer is obligated to put questions to the delinquent pertaining to the incriminating evidences, brought forth in the course of disciplinary proceedings, with an object sought to be achieved. Accordingly, Rule 14(18) considered by the Apex Court in OA-1826/98 decided on 14.9.2002 Charanjit Singh Khurana v. Union of India as well as by the Ministry of Finance v. S.B.Ramesh 1998(3) SCC 227. The same has been upheld as a mandatory valid compliance, which has been held to have caused prejudice and vitiated the enquiry

in Lalit Kumar‟s case (Supra). In the facts and circumstances of the present case, what we find is that enquiry officer, on general examination of the applicant on 6.4.98, has only put him the article of charge alleged against him but incriminating evidence has not been put. This has deprived the applicant an opportunity of defence by virtue of Rule 14(18) OF THE Rules ibid, which is mandatory provision to be complied with and dispensation of which has not ruled either by the Apex Court or any pronouncement. Accordingly, Rule 14(18) has not been validly complied with, which has certainly caused prejudice to the applicant and deprived him to effectively rebut the circumstances appearing against him in the form of evidence. This has also vitiated the orders passed by the respondents subsequently. It is trite that it is incumbent upon the enquiry officer to serve a copy of document relied upon so that one gets an opportunity to defend. A reference of V.B.Gupta‟s report, preliminary enquiry conducted before the disciplinary proceedings has been made. When the enquiry officer was brought to the notice the above objection, no finding has been recorded thereupon. Accordingly, once the evidence of witness where V.B.Gupta‟s report has been mentioned has been relied upon having not been furnished to the applicant. He has been denied a reasonable opportunity to effectively defend the charges levelled against him."

9. The order of the Tribunal is challenged by the counsel for the

petitioners primarily on the ground that the respondent was liable to

show as to what prejudice had been caused to him on account of non

supply of the copy of CVC report. The learned counsel for the

petitioners has relied on (2010) 5 SCC 349, Union of India & Ors v. Alok

Kumar holding that in terms of CVC circular dated 28th September,

2000 regarding non- furnishing of CVC‟s, first stage advice to the

employee along with the chargesheet, disciplinary proceedings would be

vitiated only if it is established that prejudice was caused to the

employee in defending himself. It was also held that consultation with

CVC is not a mandatory requirement. On the facts of the case the

Supreme Court had held that there was nothing on record to show that

CVC‟s advice was taken into consideration and it influenced the mind of

the appointing authority and in the circumstances it was held that no

prejudice was caused to the employee and failure to supply copies of

CVC recommendation/advice would not vitiate the enquiry proceedings.

Regarding non compliance of Rule 14(18) of CCS (CCA) Rules, 1965 it

was contended that perusal of the record will reveal that the said

provision has been complied with as three questions were put by the

enquiry officer to the charged officer. The petitioner also contended that

the supply of CVC‟s second stage advice was introduced by the

instruction issued by CVC on 28th September, 2000 and they were

prospective in nature whereas in the case of the respondent the enquiry

report was submitted on 26th May, 1998 and the respondent had

submitted his explanation to the same on 2nd February, 1999. The

petitioners also contended that the enquiry officer in his enquiry report

has not relied upon the preliminary enquiry conducted by

Sh.V.B.Gupta, therefore, no prejudice had been caused to the

respondent on account of non supply of copy of the preliminary report.

10. The learned counsel for the petitioner, Mr.Sudan also relied on

(2007) 4 SCC 785, Union of India and Anr v. T.V.Patel holding that

consultation with Public Service Commission on all disciplinary matters

under Article 320 (3)(c) is not mandatory and consequently absence of

consultation or any irregularity in consultation process or in furnishing

copy of advice tendered by Public Service Commission will not vitiate

the enquiry.

11. The petition is contested by the respondent, contending inter-alia

that no material should have been relied upon by the enquiry officer,

the copy of which had not been relied upon in the charge sheet and

which had not been supplied to the charged officer. The reliance has

been placed by the respondent on (1993) 1 SCC 13, „State Bank of India

& Ors. v. D.C.Aggarwal & Ors.‟ holding that the material not supplied

for showing to the charged officer cannot be taken into account by the

Disciplinary authority in passing the order of punishment. In this

matter, the enquiry officer had exonerated the charged officer however,

the report was directed by the Bank, employer to be submitted through

Central Vigilance Commission (CVC). The CVC however, disagreed with

the report and recorded its finding of guilt and recommended imposition

of major penalty of removal. The copy of recommendation of CVC was

denied to the employee on the ground that the recommendation of CVC

was a privileged document. The Disciplinary authority, however, relying

on the recommendation of CVC disagreed with the report of the enquiry

officer and imposed major punishment. The order of punishment

passed by the Disciplinary authority was held to be vitiated for violation

of principles of natural justice in denying the copy of the

recommendation of CVC. The respondent also contended that the

Central Vigilance Commission has also amended its rule vide

Notification dated 28th September, 2000 which contemplated providing

the second stage advice of CVC to the charged officer prior to imposition

of penalty. The Commission held that it is consulted at two stages in

Disciplinary proceeding i.e. first stage advice is obtained on the

investigation report before issue of the charge sheet and second stage

advice is obtained either on receipt of reply to the charge sheet or on

receipt of enquiry report. The Commission however, categorically noted

that when the CVC second stage advice is obtained, a copy there of may

be made available to the concerned employee along with the IOs report,

to give him an opportunity to make representation against the IOs

finding and CVC advice if he desires to do so. The relevant extract of

CVC advice based on the judgment of the Supreme Court in

D.C.Aggrawal (Supra) is as under:-

"3. The Commission, at present, is being consulted at two stages in disciplinary proceedings, i.e. first stage advice is obtained on the investigation report before issue of the charge sheet, and second stage advice is obtained either on receipt of reply to the charge sheet or on receipt of enquiry report. It, however, does not seem necessary to call for the representation of the concerned employee on the first stage advice as the concerned employee, in any case, gets an opportunity to represent against the proposal for initiation

of departmental proceedings against him. Therefore, a copy of the Commission‟s first stage advice may be made available to the concerned employee along with a copy of the charge sheet served upon him, for his information. However, when the CVC‟s second stage advice is obtained, a copy thereof may be made available to the concerned employee along with the IO‟s report, to give him an opportunity to make representation against IO‟s findings and the CVC‟s advice, if he desires to do so."

12. The respondent also contended that the rules provide for grant of

only one increment in a year which can be withheld for a number of

years, but if two increments are granted in a year, they cannot be

withheld at the same time.

13. Regarding non-compliance of the Rule 14(18) of CCS(CCA) Rules,

the respondent asserted that he had not appeared as a witness during

the enquiry, therefore, the enquiry officer was mandated to put the

evidence adduced against him during the enquiry. Instead of putting

the evidence adduced against him during the enquiry, the enquiry

officer only repeated the charges which were against the respondent. It

was contended that the rule is mandatory and non-compliance of the

same would vitiate the enquiry proceedings. The respondent placed

reliance on Ministry of Finance v. S.B.Ramesh, SLJ 1998 (2) 67.

14. This Court has heard the learned counsel for the parties in detail

and has also perused the record. The learned counsel for the petitioner

has relied on (2007) 4 SCC 785, „Union of India & Ors. v. T.V.Patel‟

holding that where the Disciplinary authority sought advice of the UPSC

before imposition of penalty on the delinquent officer, it was not

necessary for the Disciplinary authority to make available the copy of

the advice tendered by the UPSC to the delinquent officer so as to

enable him to make effective representation to the punishment

proposed, on the ground that the provisions of Article 320 (3)(c) of the

Constitution of India are not mandatory and it does not confer any right

on the public servant, so that the absence of consultation or any

irregularity in consultation process or in furnishing a copy of the advice

tendered by the UPSC, if any, does not afford the delinquent

Government servant a cause of action in a Court of law. In this case the

Disciplinary authority has sought advice of the UPSC which was

tendered. After the Disciplinary authority passed the order, a copy of

the advice tendered by the UPSC was also sent along with the copy of

the final order imposing the penalty on the delinquent officer. In the

circumstances, the question to be determined by the Supreme Court

was whether a copy of advice tendered by the UPSC is to be furnished

along with the order of penalty or before passing an order imposing final

penalty. Referring to Rule 32 in Part-IX of CCS Rules, it was held that

the rule contemplating "along with a copy of the order passed in the

case by the authority making the order" would mean the final order

passed by the authority imposing the penalty on the delinquent

government servant. Consequently, relying on the judgment of the

Constitution Bench in AIR 1957 SC 192, State of U.P. v. Manbodhan

Lal Srivastava, it was held that the provisions of Rule 320 (3)(c) of the

Constitution of India are not mandatory and they do not confer any

rights on the public servant so that the absence of consultation or any

irregularity in consultation process or in furnishing a copy of the advice

tendered by the UPSC, if any, does not afford the delinquent

Government servant a cause of action in a Court of law. Para 25 at page

793 of T.V.Patel (Supra) is as under:-

"25. In view of the law settled by the Constitution Bench of this Court in the case of Srivastava (supra) we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law."

15. The learned counsel for the petitioner has also impugned the

order of the Tribunal holding that non-supply of the CVC

recommendation along with enquiry report not only prejudiced the

concerned charged officer, but also deprived him of his reasonable

opportunity to show cause against the enquiry report which ultimately

affected the substantial right of the applicant to defend himself

effectively.

16. The learned counsel for the petitioner has however, relied on

(2010) 5 SCC 349, „Union of India & Ors. V. Alok Kumar‟ to contend

that non-supply of the CVC second stage advice will not vitiate the

enquiry proceeding and the punishment imposed upon the respondent,

as the respondent had not disclosed as to what prejudice had been

caused to him. According to him, the prejudice being a matter of fact

should have been categorically pleaded and demonstrated by cogent

documents. It was further contended that de facto prejudice is one of

the essential ingredients to be shown by the delinquent officer before an

order of punishment could be set aside.

17. In Alok Kumar (Supra), the Supreme Court had considered

whether it is the duty of the Disciplinary authority to furnish the report

of CVC and whether supply of CVC report arises out of a statutory rule

or in consonance with the principles of natural justice and whether

non-supply of such a report would cause any prejudice to the officer

concerned. In the facts and circumstances of the case, it was held that

there was nothing on record to show that CVC recommendations had

actually been taken into consideration and the same had affected the

mind of the Disciplinary authority while considering the defence of the

delinquent officer and imposing punishment upon him. The Supreme

Court had held that unless such notices were actually considered and

had some prejudicial effect to the interest of the delinquent officer, it

would not be necessary for the Court to interfere with the departmental

enquiry. In Alok Kumar (Supra), the Supreme Court therefore, did not

vitiate the enquiry proceeding on the ground that a copy of the CVC first

stage recommendations/reports were not provided to the charged

officer. Paras 78 & 79 at page 376 are as under:-

"78. No rule has been brought to our notice where it is a mandatory requirement for the disciplinary authority to consult the vigilance officer and take the said report into consideration before passing any order. If that was the position, the matter would have been different.

79. In the present case, firstly, no such rule has been brought to our notice and secondly, there is nothing on record to show that the alleged notes of the CVC were actually taken into consideration and the same effected or tainted the findings or mind of the authority while passing the orders of punishment. Thus, in our view, the findings of the Tribunal cannot be sustained in law. Unless the Rules so require, advice of the CVC is not binding. The advice tendered by the CVC, is to enable the disciplinary authority to proceed in accordance with law. In absence of any specific rule, that seeking advice and implementing thereof is mandatory, it will not be just and proper to presume that there is prejudice to the concerned officer. Even in the cases where the action is taken without consulting the Vigilance Commission, it necessarily will not vitiate the order of removal passed after inquiry by the departmental authority. Reference in this regard can also be made to the judgment of this Court in the cases of State of A.P. and Anr. v. Dr. Rahimuddin Kamal: 1997 (3) SCC 505 and Deokinandan Prasad v. State of Bihar: 1971 (2) SCC 330."

18. Though the Tribunal has held relying on D.C.Aggarwal‟s case

(supra) that non-supply of CVC recommendations has deprived the

respondent of a reasonable opportunity to show cause against the

enquiry report which ultimately affected the substantial rights of the

respondent to effectively defend himself, however, the learned counsel

for the respondent is unable to show as to how the CVC

recommendations were taken into consideration by the Disciplinary

authority, and how the case of the respondent has been prejudiced. It

was incumbent upon the Tribunal to have considered whether there

were any such CVC Notes or recommendations which had a direct

bearing on the enquiry in question and whether such recommendations

or Notes were actually taken into considerations by the Disciplinary

authority while passing the impugned order and whether the

respondent had suffered de facto prejudice as a result of non-furnishing

of advice. In absence of these factors, the order of the Disciplinary

authority imposing penalty on the respondent cannot be faulted, nor

can the order of the Tribunal to this effect be sustained.

19. The next contention on behalf of the petitioner is about the non-

compliance of the Rule 14(18) of CCS(CCA) Rules. According to the

petitioners, Rule 14(18) was substantially complied with. Perusal of the

record, however, reveals that it is an admitted case that the respondent

did not examine himself as a witness. In case the respondent had not

examined himself as witness, it was incumbent upon the enquiry officer

to put evidence adduced against the respondent during the enquiry to

him in compliance of Rule 14(18) of CCS(CCA) Rules. The said rule had

been enacted with a view that whatever evidence comes in the enquiry,

explanation may be sought to rebut the circumstances, which would be

in the consonance with the principle of reasonable opportunity and audi

alterm partum as inbuilt in the principles of natural justice. On perusal

of the questions put by the enquiry officer to the respondent, it is

apparent that out of the three articles of charges, only two articles of

charge were put to the respondent, while none of the evidence in

support of those articles of charges which were against the respondent

were put to him.

20. Perusal of Rule 14(18) clearly reveals that it is obligatory upon the

enquiry authority to question the delinquent officer on the

circumstances appearing against him in the evidence, for the purpose of

enabling him to explain any circumstance. As there is no reference to

the evidence brought on record or circumstances appearing against the

applicant, putting the charges against the respondent was not valid

compliance of Rule 14(18) of the CCS(CCA) Rules 1965.

21. Provisions analogous to Rule 14(18) of CCS(CCA) Rule exist in

Rule 9(21) of Railway Servant (Discipline & Appeal) Rules, 1958. In the

matter of Moni Shankar V. Union of India, 2008 (1) AJW 479, an

enquiry proceeding was conducted in which the following questions that

were put to the Charged Officer: "please state if you plead guilty?" ; "Do

you wish to submit your oral or written arguments?"; "Are you

satisfied with the enquiry proceeding" and "Can I conclude the

enquiry?", were held to be not in compliance of Rule 9(21) of Railway

Servant (Discipline & Appeal) Rules, 1958 as such type of questions did

not reveal the evidence adduced in support of charges against the

charged officer.

22. In Ministry of Finance v. S.B.Ramesh, (1998) 3 SCC 227 the

Supreme Court had held the Rule 14 (18) of CCS (CCA) Rules, 1965 to

be mandatory. The Apex Court had upheld the decision of the Tribunal

holding that the order of the Disciplinary Authority was based on no

evidence and that the findings were perverse, on the reasoning that

even if the Enquiry Officer had set the applicant ex parte and recorded

the evidence, he should have adjourned the hearing to another date to

enable the applicant to participate in the enquiry thereafter. Or even if

the Enquiry Authority did not choose to give the applicant an

opportunity to cross-examine the witness examined in support of the

charge, he should have given an opportunity to the applicant to appear

and then proceeded to question him under Sub-rule (18) of Rule 14 of

the CCS (CCA) Rules. The omission to do this was construed to be a

serious error committed by the Enquiry Authority. This also cannot be

disputed that if the charged officer has examined himself as a witness

then it will not be obligatory to examine the charged officer under Rule

14(18) of CCS(CCA) Rules. However, in the absence of any defense

statement by the charged official, it was mandatory on the part of the

enquiry officer to examine him under Rule 14(18), and the non-

compliance of which will vitiate the enquiry proceedings.

23. Consequently, the order of the Tribunal quashing the enquiry

proceeding on account of non-compliance of Rule 14(18) of CCS(CCA)

Rules 1965 by not putting the evidence adduced before the enquiry

officer in support of the three articles of charge to the charged officer

vitiates the enquiry proceeding, cannot be termed to be illegal or un-

sustainable so as to require any interference by this Court in exercise of

its jurisdiction under Article 226 of the Constitution of India.

24. In the circumstances, the order of the Tribunal setting aside the

punishment awarded to the respondent does not require any

interference in the facts and circumstances of the case and the writ

petition is therefore, dismissed. The parties are however, left to bear

their own costs.

ANIL KUMAR, J.

March 10th, 2011                             VEENA BIRBAL, J.
„k‟