Amar Singh Verma vs Union Of India And Ors.
2013 Latest Caselaw 2887 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  W.P.(C) No.4813/1998
%                                                            10th July, 2013


AMAR SINGH VERMA                                     ..... Petitioner
                          Through:       Mr. Rajiv Bakshi, Advocate with Ms.
                                         Bhanita Patowary, Advocate.

                          Versus


UNION OF INDIA AND ORS.                                   ..... Respondents
                  Through:               Mr. Sumeet Pushkarna, Advocate for
                                         respondent No.1.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?     Yes


VALMIKI J. MEHTA, J (ORAL)

1.           This writ petition is filed by the petitioner-Mr. Amar Singh

Verma seeking quashing of the orders passed by the Departmental Authority

imposing the punishment of dismissal from service upon the petitioner.

2.           Petitioner was an employee of the respondent No.2/ Indian

Nursing Council. By the memorandum dated 1.12.1995, and which was

accompanied by the Article of Charges and imputation of misconduct with



W.P.(C) No.4813/1998                                          Page 1 of 23
 the facts, enquiry proceedings were initiated against the petitioner. There

were a total of three Articles of Charges against the petitioner. The sum and

substance of the charges against the petitioner was that when he was

functioning as an Assistant Secretary (Admn.) of the respondent No.2 during

the period 1992-95 he wrongly granted affiliation/recognition to Gandhi

Memorial Medical Training Institute and College, Pathankot although the

same was beyond his powers.        There are also charges of issuance of

communication dated 15.9.1992 to the said college for starting the General

Nursing Training Course as a special case. Petitioner is also guilty of

addressing a communication allowing 27 first year general Nursing students

to appear in examinations. Petitioner was also found guilty of writing letters

to V.V.I.Ps such as the Governor of Himachal Pradesh, Chief Minister of

Himachal Pradesh and Registrar of Himachal Pradesh Nursing Registration

Council to derecognize the Himachal Pradesh State Nursing Registration

Council.     Petitioner is also charged with writing a number of

communications at his own level without proper authority to over a dozen of

institutions as stated in Article II of charges. Petitioner has been charged

with acting in a manner to favour these institutions stated in Article II.

Petitioner is also charged with joining hands with one Mrs. R.D. Verma in




W.P.(C) No.4813/1998                                          Page 2 of 23
 making manipulations to make it appear that recognition had been secured

by the Gandhi Memorial Medical Training Institute and College and which

aspect was adversely commented upon by the High Court of Himachal

Pradesh in W.P. No.1537/1993. In sum and substance, the petitioner is

charged with doing various acts not falling in the scope of his powers/duties.

3.            Enquiry proceedings culminated by passing of the report by the

Enquiry Officer dated 23.4.1997 which reads as under:-

     "ENQUIRY REPORT AGAINST SHRI A.S. VERMA,
     ASSISTANT SECRETARY (ADMINISTRATION), INDIAN
     NURSING COUNCIL
        The undersigned is appointed to hold an enquiry against Shri A.S.
     Verma, Assistant Secretary (Admn.), Indian Nursing Council vide
     Order No.20-12/89-INC, dated 26-6-1996. The enquiry committee
     meetings were held on 8th August, 18th Dec. And 27th December,
     1996 in which Smt. Kanta Sangar, Presenting Officer and Shri A.S.
     Verma, Charged Officer attended the meetings and Mrs. A.K.
     Ahluwalia, Vice President of Indian Nursing Council, Mrs. R. Gujral,
     Secretary, Indian Nursing Council also participated as witnesses.
     Shri Verma was asked whether he was given specific powers to
     discharge the statutory functions of Indian Nursing Council other
     than the administrative work. Shri Verma replied that he was not
     specifically given any order allowing him to discharge statutory
     functions of the Indian Nursing Council.
        Smt. Kanta Sangar presented the case of Shri A.S. Verma and
     read out the article of charges in the Chargesheet. The records of the
     Indian Nursing Council were produced the undersigned that Shri
     Verma showed undue favour to Gandhi Memorial Medical Training
     Institute and College, Registration Council, Shimla to registrar
     Gandhi Memorial Medical Training Institute and College, Pathankot
     with their official communication. The approval of competent
     authorities were not taken before issue of such letters and thereby




W.P.(C) No.4813/1998                                           Page 3 of 23
      violating the provisions of the Indian Nursing Council Act, 1947.
     Further records were showed that Shri A.S. Verma addressed letters
     to the Governor, Himachal Pradesh, Health Commissioner-cum-
     Health Secretary, Government of Himachal Pradesh to allow 27 1 st
     Year General Nursing Students of the Gandhi Memorial Medical
     Training Institute, Pathankot to appear in September/October, 1993
     exams conducted by Himachal Pradesh State Nursing Registration
     Council. These letters were also issued by Shri A.S. Verma without
     approval from any higher authorities.
         Records were shown by the Presenting Officer that Shri A.S.
     Verma had written to the number of Nursing Institutions located in
     Bangalore, Nellore, Hoogly informing that their Institutions have
     been included in the list of recognized Institutions prepared by the
     Indian Nursing Council. These letters were also addressed by Shri
     Verma without approval of the competent authorities.
         The Charge under article 3 relates to High Court of Himachal
     Pradesh and Supreme Court of India judgments and the undersigned
     has no comments to offer.
         In the light of the foregoing paragraphs, the charges against Shri
     A.S. Verma, Assistant Secretary (Admn.), Indian Nursing Council in
     articles (1) and (2) are proved based on the records shown to the
     undersigned.
                                               (D. THANAPAUL)
                                               INQUIRY OFFICER"


4.            A reference to the aforesaid report shows that during the course

of enquiry proceedings the petitioner replied that he was not specifically

given any order allowing him to discharge the statutory functions of the

Indian Nursing Council. The Enquiry Officer's report also shows that the

records of the Indian Nursing Council were produced to show the favours

given by Mr. Verma to Gandhi Memorial Medical Training Institute and




W.P.(C) No.4813/1998                                           Page 4 of 23
 College, Pathankot. The record also shows that the approval by the

competent authorities was not taken before writing letters to various

authorities for recognizing of the said Gandhi Memorial College. Record

also reveals that the petitioner addressed letters to the Governor of Himachal

Pradesh as also the Health Commissioner-cum- Health Secretary of

Government of Himachal Pradesh to allow 27 first Year General Nursing

students to appear in examination. Record was also perused and shown to

the Enquiry Officer with respect to writing of letters to over a dozen

institutions as mentioned in Article of Charges and which was beyond the

powers of the petitioner. Letters were issued without approval of the

competent authorities.

5.           Before proceeding further, It is necessary at this stage to refer

to the ratio of the recent judgment of the Supreme Court in the case of State

Bank of India and Ors. Vs. Narendra Kumar Pandey 2013 (2) SCC 740.

In this judgment the Supreme Court has held that once the record comes

before the Enquiry Authority, there is no formal need to prove the said

record. Supreme Court has observed that strict rules of Evidence Act do not

apply in departmental proceedings. It was held that in exparte proceedings

charges would stand proved from the documents which were maintained in




W.P.(C) No.4813/1998                                          Page 5 of 23
 the normal course of business and no oral evidence is necessary to prove

those   documents.     Putting it differently it is held that uncontroverted

documentary evidence in such situation is sufficient to prove the charges.

On the facts of that case Supreme Court held that documents which were not

controverted by the charged official were sufficient in themselves to prove

the charges against the officer concerned. Supreme Court has reiterated that

in departmental enquiries, Disciplinary Authority is expected to see that the

charges are proved not beyond all reasonable doubt but only on

preponderance of probabilities. Paras 22 and 23 of the said judgment read

as under:-

   "22. We are of the view that the High Court also committed an error
  in holding that since no witness was examined in support of charges,
  it was a case of no evidence. In an ex parte inquiry, in our view, if the
  charges are borne out from documents kept in the normal course of
  business, no oral evidence is necessary to prove those charges. When
  the charged officer does not attend the inquiry, then he cannot
  contend that the Inquiring Authority should not have relied upon the
  documents which were not made available or disclosed to him. of
  course, even in an ex parte inquiry, some evidence is necessary to
  establish the charges, especially when the charged officer denies the
  charges, uncontroverted documentary evidence in such situation is
  sufficient to prove the charges.
  23. The Inquiring Authority has examined each and every charge
  levelled against the charged officer and the documents produced by
  the presenting officer and came to the conclusion that most of the
  charges were proved. In a departmental inquiry, the disciplinary
  authority is expected to prove the charges on preponderance of




W.P.(C) No.4813/1998                                           Page 6 of 23
      probability and not on proof beyond reasonable doubt. Reference
     may be made to the judgments of this Court reported in Union of
     India v. Sardar Bahadur and R.S. Saini v. State of Punjab. The
     documents produced by the bank, which were not controverted by the
     charged officer, supports all the allegations and charges levelled
     against the charged officer. In a case, where the charged officer had
     failed to inspect the documents in respect of the allegations raised by
     the bank and not controverted it is always open to the Inquiring
     Authority to accept the same. (underlining added).

6.             The Supreme Court in the case of Maharashtra State Board of

Secondary and Higher Secondary Education Vs. K.S. Gandhi and Ors.

(1991) 2 SCC 716 has held that strict rules of Evidence Act and the

standards of proof envisaged therein do not apply to departmental

proceedings in a domestic Tribunal and it is open to the authorities to

receive and place on record documents and acceptable materials which are

strictly not in conformity with the Evidence Act. It has also been held that

there is no requirement of Enquiry Officer writing a judgment like a Judge

of a Court. Supreme Court further clarifies in this judgment that when facts

are not in dispute then recording of reasons in support of the conclusions

does not violate the principles of natural justice. The relevant paras of this

judgment are paras 17, 22, 32, and 37 and which read as under:-

     "17. The students involved at the examination of secondary education
     are by and large minors but that by itself would not be a factor to hold
     that the students were unfairly treated at an inquiry conducted during
     the domestic inquiry. Assistance of an Advocate to the delinquent at a



W.P.(C) No.4813/1998                                             Page 7 of 23
    domestic enquiry is not a part of the principles of naturaljustice. It
   depends on the nature of the inquiry and the peculiar circumstances
   and facts of a particular case. The regulations and the rules of enquiry
   specifically excluded the assistance of an Advocate at the inquiry.
   Therefore, the omission to provide the assistance of a counsel at the
   inquiry is not violative of the principles of natural justice. The show
   cause notice furnished wealth of material particulars on which the
   tampering was alleged to be founded and given the opportunity to
   each student to submit the explanation and also to adduce evidence,
   oral or documentary at the inquiry. Each student submitted the
   explanation denying the allegation. At the inquiry the questionnaire in
   the pro-forma was given to each student. It is undoubted that the
   allegation of fabrication was stated to have been done at the behest of
   either the student/parents or guardians and the parents or guardians
   were not permitted to participate in the inquiry. Inspection of
   documents was given. Their answer-sheets and marks secured were
   perused by the students and were asked to testify whether the answer-
   books belongs to him or her and to identify the marks awarded by the
   examiner to each answer to the question and the total marks awarded.
   It was also asked to verify and state whether the moderator's marks-
   sheets were tampered in the concerned subject or subjects as the case
   may be. The student could easily identify and in fact identified his or
   her answer books and verified the marks awarded and answered
   positively that the marks were fabricated in the moderators' mark-
   sheets. The questionnaire was also given to indicate their educational
   background in the previous school years and also the marks they
   expected at the final examinations. The need of the assistance of the
   parents/guardians was thus absolutely nil. Further question in the
   proforma was to ascertain from the students, due to tampering,
   whether or not the marks were increased to his or her advantage. It
   could be answered by a mere look at the marks. No outside assistance
   is needed. All the students have admitted that the answer books
   belong to them. They also admitted the marks initially awarded by the
   examiner or added or subtracted, if any, by the moderatOrs. They also
   admitted that the fabrication in the moderators' marks-sheets in the
   subject or subjects and the marks were increased to their advantage.
   They also denied the complicity of him or her or of parents or
   guardians. It is not the case of the respondents that they were coerced




W.P.(C) No.4813/1998                                          Page 8 of 23
    to answer the questions in a particular manner. It is obvious from the
   record that they had prior consultations with the counsel. Thus it could
   be seen that the procedure adopted at the inquiry is fair and just and it
   is not vitiated by any procedural irregularity nor is violative of the
   principles of natural justice. The absence of opportunity to the parents
   or guardians, in this background does not vitiate the legality or
   validity of the inquiry conducted or decision of the Committee.

   22. From this perspective, the question is whether omission to record
   reasons vitiates the impugned order or is in violation of the principles
   of natural justice. The omnipresence and omniscience of the principle
   of natural justice acts as deterrence to arrive at arbitrary decision in
   flagrant infraction of fair play. But the applicability of the principles
   of natural justice is not a rule of thumb or a straight jacket formula as
   an abstract proposition of law. It depends on the facts of the case
   nature of the inquiry and the effect of the order/decision on the rights
   of the person and attendant circumstances. It is seen from the record
   and is not disputed, that all the students admitted, the talcum of
   fabrication and it was to his or her advantage and that the
   subject/subjects in which fabrication was committed belong to him or
   her. In view of these admissions the Inquiry Officer obviously did not
   find it expedient to reiterate all the admissions made. If the facts are
   disputed, necessarily the authority or the Inquiry Officer, on
   consideration of the material on record, should record reasons in
   support of the conclusion reached. Since the facts are admitted, the
   need to their reiteration was obviated and so only conclusions have
   been stated in the reports. The omission to record reasons in the
   present case is neither illegal, nor is violative of the principles of
   natural justice. Whether the conclusions are proved or not is yet
   another question and would need detailed consideration.

   .............

.............

32. It was held that in evaluating the evidence of circumstantial nature it is the duty of the prosecution that all the circumstances must be fully established circumstances should be consistent only with the hypothesis of the guilt of the accused. This standards of proof also is

not relevant nor to be extended to consider the evidence in an inquiry by the domestic tribunal. ....................................

37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstances to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred with as much practical as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straight Jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries." (underlining added).

7. It may also be mentioned that it is settled law that this Court

will interfere with the findings and conclusions of the Disciplinary Authority

only if the findings are against the rules of the organization or the findings

are perverse or against the principles of natural justice. This Court while

hearing a petition under Article 226 of the Constitution of India does not sit

as an appellate Court to re-apprise the findings of facts and conclusions

arrived at in departmental proceedings, and unless clear cut perversity is

shown, findings in the departmental proceedings are not interfered with.

Keeping the aforesaid legal parameters in mind let us turn to the facts of this

case.

8. The enquiry report has already been reproduced above and

which shows that the petitioner did not dispute that he was not given any

order allowing him to discharge the statutory functions of the respondent

No.2. Surely grant of recognition to a college, allowing classes to start or

holding of examinations or directing deregistration of a State Council are all

functions which would solely be in the realm of the functions of the

Executive Council of the respondent No.2. No individual officer obviously,

unless he is able to show a resolution of the Executive Council of delegation

to him or such a rule of the organization, can exercise powers of recognition

of a college or allowing commencement of classes or allowing holding of

the examinations or directing that there should be deregistration of a State

body by writing letters to the Governor or Chief Minister or the Secretary of

the State. In fact, the ultra vires acts of the petitioner were adversely

commented upon by the Himachal Pradesh High Court in its judgment

passed in W.P.(C) No.1537/1993. Surely, records of the respondent No.2

itself or of the Court are not such documents which in departmental

proceedings require to be proved only through witnesses as is done in the

civil court. Technical rules of evidence of civil court of proving of

documents do not apply in departmental proceedings, and more so when the

petitioner/charged official admitted that he had no powers which could

statutorily be only exercised by the Executive Council of respondent No.2.

Though counsel for the petitioner did try to make an endeavour to argue that

the enquiry report wrongly records the admission of the petitioner however

the only way in which this aspect could have been challenged was by

making of a representation to this effect before the Disciplinary Authority.

Admittedly, to the Disciplinary Authority no such representation was made

that the enquiry officer has wrongly recorded the admission of the petitioner.

In fact, counsel for the petitioner admits that to the show cause notice dated

25.4.1997 issued by the Disciplinary Authority no representation/response

was given by the petitioner. It is alleged on behalf of the petitioner that no

representation was given because the time given by the show cause notice

was too short, however, there is nothing on record that the petitioner asked

the Disciplinary Authority to give him more time because time given was

short. Therefore this argument now raised that no reply could be given to

the show cause notice because of the short time is an afterthought argument

and the same stands rejected.

9. On behalf of the petitioner, it was sought to be argued before

me that the petitioner has not been given an opportunity to lead evidence or

cross examine the witnesses and therefore the proceedings have to fail on

account of violation of principles of natural justice. Reliance in this regard

is placed upon para 14 of the judgment of the Supreme Court in the case of

Managing Director, Uttar Pradesh Warehousing Corporation and Anr.

Vs. Vijay Narayan Vajpayee (1980) 3 SCC 459 and which reads as under:-

"14. The appellant is a Corporation constituted under the Uttar Pradesh State Warehousing Corporation (Act 28) of 1956, which was subsequently replaced by the Central Act 58 of 1962. It is a statutory body wholly controlled and managed by the Government. Its status is analogous to that of the Corporations which were under consideration in Sukhdev Singh's case (ibid). The ratio of Sukhdev Singh's case, therefore, squarely applies to the present case. Even if at the time of the dismissal, the statutory regulations had not been framed or had

not come into force, then also the employment of the respondent was public employment and the statutory body, the employer, could not terminate the services of its employee without due enquiry in accordance with the statutory Regulations, if any in force or in the absence of such Regulations, in accordance with the rules of natural justice. Such an enquiry into the conduct of a public employee is of a quasi-judicial character. The respondent was employed by the appellant-Corporation in exercise of the powers conferred on it by the statute which created it. The appellants' power to dismiss the respondent from service was also derived from the statute. The Court would therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice, and to act in accordance with the spirit of Regulation 16, which was then on the anvil and came into force shortly after the impugned dismissal. The rules of natural justice in the circumstances of the case, required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes an opportunity to cross-examine the witnesses relied upon by the appellant-Corporation and an opportunity to lead evidence in defence of the charge as also a show-cause notice for the proposed punishment. Such an opportunity was denied to the respondent in the instant case. Admittedly, the respondent was not allowed to lead evidence in defence. Further, he was not allowed to cross-examine certain persons whose statements were not recorded by the Enquiry Officer (Opposite Party No. 1) in the presence of the respondent. There was controversy on this point. But it was clear to the High Court from the report of enquiry by the Opposite Party No. 1 that he relied upon the reports of some persons and the statements of some other persons who were not examined by him. A regular departmental enquiry takes place only after the charge-sheet is drawn up and served upon the delinquent and the latter's explanation is obtained. In the present case, no such enquiry was held and the order of dismissal was passed summarily after perusing the respondent's explanation. The rules of natural justice in this case, were honoured in total breach. The impugned order of dismissal was thus bad in law and had been rightly set aside by the High Court."

10. No doubt, where in departmental proceedings a person should

be allowed to lead his evidence and cross examine the witnesses of the other

party, however this request made must be reflected from the record of the

departmental proceedings. Nothing could be pointed out to me on behalf of

the petitioner that in the departmental proceedings, petitioner in any manner

prayed for leading of evidence. In fact, in the petitioner's admission it is

noted that he did not have the powers of the Executive Council to do the acts

which are imputed to him in the Article of Charges. Assuming that the

petitioner had made a prayer before the Enquiry Officer and which was

allegedly not recorded in the enquiry proceedings, the first point of time

when such a stand should have been raised was by replying to the show

cause notice by the Disciplinary Authority after the enquiry report was

given. As already stated above, no response was given by the petitioner to

the show cause notice issued by the Disciplinary Authority and therefore

raising of a ground for the first time in this Court that petitioner was denied

an opportunity to lead evidence is therefore only an afterthought. The fact

that this is an afterthought also becomes clear from the fact that the enquiry

report shows that all the relevant records were produced and which were of

the respondent No.2 itself and as stated above in the judgments of the

Supreme Court that documents in departmental proceedings do not have to

be strictly proved as per the Evidence Act. The report in this case of the

Enquiry Officer really turned upon existence of delegation of statutory

powers of the Executive Council of the respondent No.2 to the petitioner,

and surely it was the petitioner who could also have shown this aspect

because the nature of charges in present case were such that they clearly

showed actions or functions which by their nature could not have been

performed by anyone except the Executive Council of the respondent No.2.

Supreme Court has held that compliance of principles of natural justice is

dependent on the peculiarities of a particular enquiry and principles of

natural justice are not inflexible technical rules. Therefore, I reject the

argument that the petitioner had prayed for leading of evidence and which

alleged prayer was denied to him. Petitioner therefore cannot complaint of

violation of principles of natural justice.

11. Reliance is also placed by the petitioner upon paras 27 and 28

of the judgment of the Supreme Court in the case of State of Uttar Pradesh

and Ors. Vs. Saroj Kumar Sinha (2010) 2 SCC 772 and which read as

under:-

"27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government

servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.

28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."

The reliance upon the judgment in the case of Saroj Kumar

Sinha (supra) by the petitioner is misconceived because in the present case

the Enquiry Officer has perused the record with respect to the Article of

Charges and has held the petitioner guilty on the basis of the record of the

respondent No.2. It is not therefore as if the Enquiry Officer has arrived at a

finding without considering the evidence in the case. Necessary evidence

has been produced. The necessary evidence being the record of the

respondent No.2 has been considered. Only thereafter the Enquiry Officer

has given his report and thus it cannot be said that the Enquiry Officer in the

present case has acted both as a prosecutor and the Judge. Enquiry Officer

has given his report only after referring to the evidence which has

established the charge against the petitioner and more so keeping the vital

fact in mind that petitioner admitted that he could not file any proof of his

powers exercised by him and which he did not have as stated in the Articles

of Charges.

12. Counsel for the petitioner then sought to argue that the enquiry

report is a non-speaking report and therefore the same is liable to be

quashed. Even this argument on behalf of the petitioner is misconceived

because Enquiry Officer's report is not like a judgment of a Judge of a civil

court and it is enough if from the report the reasons are perceptible which

show that the Enquiry Officer was convinced with respect to guilt of the

charged official- vide Maharashtra State Board's case (supra). All that the

enquiry report has to show is that the facts in question have been considered

and the Enquiry Officer is convinced on the basis of the evidence before him

with regard to the establishing of the Articles of Charges. The enquiry

report in this case may not be a detailed judgment which proceeds article by

article however the report does give necessary findings and conclusions.

The findings and conclusions in this case are bound to be mixed up because

all the charges effectively are with respect to exercise of powers by the

petitioner beyond the scope of his powers/duties. Therefore, there is nothing

wrong with the Enquiry Officer in not proceeding in very great detail but

giving his conclusions and findings in reasonable language. This argument

of the petitioner is also therefore rejected that the enquiry report is not a

speaking report.

13. Another argument raised on behalf of the petitioner was that the

order of the Disciplinary Authority was served upon the petitioner after his

retirement on 30.4.1997 i.e the Disciplinary Authority's order was served on

1.5.1997 post retirement. In my opinion, there cannot be an illegality in

serving of the disciplinary order after the retirement because what is

required in law is that ordinarily the disciplinary proceedings must be held

during the period of service of the employee and admittedly proceedings in

this case were held by the departmental authorities before the retirement of

the petitioner. Even the disciplinary order has been passed before the

retirement of the petitioner and the service of such order after the retirement

on the petitioner is not an illegality which can vitiate the entire departmental

proceedings. I have not been shown any judgment or a provision of law that

order of Disciplinary Authority passed before the retirement of a person

becomes illegal merely because it is served after the retirement of the

charged official. The argument of the petitioner therefore of order of the

Disciplinary Authority being illegal on account of same having been served

after the retirement is a misconceived argument and is accordingly rejected.

14. An endeavour was also made on behalf of the petitioner to

argue that the Disciplinary Authority in the present case who has signed the

order dated 30.4.1997 was not competent to do so because the President who

has signed the order dated 30.4.1997 imposing the punishment of dismissal

of services had no such power, however, when asked to point out as to how

this ground is substantiated by which Rule of the respondent No.2, counsel

for the petitioner could not point out to me any Rule as to why the

Disciplinary Authority in the present case being the President of the

respondent No.2 is not the Disciplinary Authority. If the petitioner wanted

to seriously argue this point, petitioner ought to have filed the Rules of the

respondent No.2 to show who was actually the Disciplinary Authority and

only thereafter it could have been shown that the President of respondent

No.2 could not be the Disciplinary Authority. I may note that the

Disciplinary Authority's order dated 30.4.1997 specifically refers to not only

passing an order of dismissal of the petitioner but also of consultation with

the Executive Committee of the respondent No.2. The argument of the

petitioner therefore that the Disciplinary Authority is not an authorized

Disciplinary Authority is an argument without any substance and is

accordingly rejected.

15. The next argument which was raised on behalf of the petitioner

was that show cause notice for response of petitioner to the Enquiry

Officer's report in the present case was issued by the Secretary of the

respondent No.2, and the Secretary was incompetent to issue the notice

because the Secretary was one of the witnesses who had proved the case of

the department in the enquiry proceedings. However, I note that Secretary

has issued the show cause notice pursuant to the order of the Enquiry Officer

only as an administrative act and the order in question of punishment has

been passed by the Disciplinary Authority being the President of the

respondent No.2 and not by the Secretary who issued the show cause notice.

Secretary of the respondent No.2 was thus only exercising administrative

powers for issuing of a show cause notice calling upon the petitioner to give

his reply to the enquiry report and thus this action of Secretary cannot be

such an act which can lead to setting aside of the order of the Disciplinary

Authority. There is no law that if after completion of an enquiry one of the

witnesses issues and signs an administrative letter calling for reply to the

enquiry report then that action will make the enquiry report or the order of

the Disciplinary Authority bad in law.

I may also, at this stage, note that at once it was sought to be

argued on behalf of the petitioner that the show cause notice dated 25.4.1997

given after the enquiry report does not refer to any specific punishment to be

imposed and it is therefore violative of the ratio in the case of Vijay

Narayan Vajpayee (supra). However, even this argument raised on behalf

of the petitioner is misconceived because what the show cause notice issued

on behalf of the Disciplinary Authority requires is response to the action

proposed and which is therefore the penalty to be imposed if the enquiry

report is accepted and it is not the law that in the show cause notice issued

by the Disciplinary Authority pursuant to the enquiry report must show that

a specific penalty is proposed to be imposed and which specific penalty has

to be replied to by the guilty official. This argument urged on behalf of the

petitioner is thus rejected.

16. Finally, it was argued on behalf of the petitioner that the

petitioner has been exonerated in the criminal case and therefore the orders

of the departmental authorities have to be set aside for this reason. Though

this is not a ground in the petition yet let us examine the same. This

argument raised on behalf of the petitioner is also misconceived because the

Supreme Court in a catena of decisions has held that the scope of enquiries

before a Criminal Court and in the Departmental Proceedings are totally

separate. Whereas in the criminal proceedings the charges have to be

proved beyond all reasonable doubt, but, in the departmental proceedings

the charges have to be proved only on preponderance of probabilities.

Therefore, merely because the petitioner has been acquitted in criminal case

cannot mean that on this ground itself petitioner will stand exonerated and

orders passed by the Disciplinary Authority have to be quashed for this

reason only because the charges against the petitioner independently stands

established in the departmental proceedings.

17. In view of the above, there is no merit in the petition, which is

accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J JULY10, 2013 Ne