C.P. Gupta vs Union Of India And Ors.
2013 Latest Caselaw 2940 Del

   $~6
   *     IN THE HIGH COURT OF DELHI AT NEW DELHI
   + W.P.(C) No.7288/2012 & CM No.6053/2013


   %                              Date of decision: 12th July, 2013


         C.P. GUPTA                                      ..... Petitioner
                            Through   Ms.Jyoti Singh, Sr. Advocate with
                                 Ms.Tina Bajwa, Advocate

                                  Versus


         UNION OF INDIA AND ORS.                 ..... Respondents
                       Through   Mr.Sachin Dutta, Advocate

         CORAM:
         HON'BLE MS. JUSTICE GITA MITTAL
         HON'BLE MR. JUSTICE J.R. MIDHA

   GITA MITTAL, J. (Oral)

1. By way of the present writ petition, the petitioner has assailed the

disciplinary proceedings conducted against him pursuant to a memorandum

of charges issued on 7th December, 2005; the findings of the inquiry officer

dated 29th January, 2009; the order dated 26th August, 2010 issued by the

disciplinary authority accepting the recommendations and findings of the

inquiry officer and imposing the punishment of dismissal of service which

shall ordinarily be a disqualification for future Government employment.

2. It is contended by the petitioner that the order of penalty upon the

petitioner is not sustainable for the reason that as per the impugned order

dated 26th August, 2010, the disciplinary authority had sought the advise of

the Union Public Service Commission (UPSC) which recommended the

imposition of the penalty of "Dismissal from Service" upon the petitioner. It

is urged that the advise of the UPSC was served upon the petitioner along

with the order dated 26th August, 2010 passed by the disciplinary authority

which accepted and acted upon the advise of the commission. Reliance is

placed on the judicial pronouncements of the Supreme Court reported at

(2011) 4 SCC 589 Union of India & Ors. Vs. S.K. Kapoor & (2011) 4 SCC

591 S.N. Narula Vs. Union of India & Ors. and two pronouncements of this

court being the decision dated 13th January, 2012 in WP (C) No.265/2012

Union of India Vs. Yogita Swaroop & Anr. and the decision dated 24th

January, 2012 in WP (C) No.476/2012 Union of India & Anr. Vs. R.K.

Sareen.

3. It is urged that in the light of these precedents, the petitioner was

legally entitled to a copy of the advice of the UPSC and was required to be

given an opportunity to make a representation against the advise and to

submit his point of view. The submission is that such representation of the

petitioner was required to be considered by the disciplinary authority before

accepting the recommendations of the inquiry officer and imposing the

punishment upon him.

4. So far as the legal position is concerned, the same is crystalised by the

observations of the Supreme Court in the judgment in Union of India &

Ors. Vs. S.K. Kapoor (supra) wherein in paras 5 & 8, the Supreme Court

has reiterated the settled position thus:-

"5. It is settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge-sheeted employee so that he may have a chance to rebut the same.

xxx xxx xxx

8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N. Narula v. Union of India."

The other judicial pronouncements placed before us reiterate or rely

upon the above legal position.

5. It is, therefore, well settled that in case a disciplinary authority was to

seek the advice of the UPSC and rely upon the same, it is incumbent upon it

to make available a copy thereof to the delinquent employee and afford an

opportunity for representation against the same.

6. Our attention is drawn to Page 304 of writ petition which is the

penalty order. Para 7 shows that UPSC advice was enclosed with penalty

order. Para 8 of the order dated 26th August, 2010 shows that the

Disciplinary Authority before imposing the penalty considered the

representation of the petitioner dated 8th June, 2009 and relied upon the

advice of the UPSC and held that the charges against him are conclusively

proved. The same has admittedly not been done in the instant case rendering

the order dated 26th August, 2010 contrary to law.

7. In view of the above, we direct as follows:-

(i) The order dated 26th August, 2010 is hereby set aside and quashed.

(ii) The petitioner shall be reinstated into service for the purposes of

completing the disciplinary proceedings without any back wages and other

service benefits. His entitlements, if any, would be adjudicated by the

authorities depending upon the result of the disciplinary proceedings.

(iii) So far as the disciplinary proceedings against the petitioner are

concerned, the matter shall proceed from the stage of service of the UPSC's

advise on the petitioner.

(iv) Inasmuch as the petitioner has been served a copy of the advise of the

UPSC along with the order dated 26th August, 2010, therefore, no further

copy thereof is required to be furnished to the petitioner.

(v) The petitioner shall make a representation, if any, to the disciplinary

authority with regard to the UPSC advise within a period of six weeks from

today.

(vi) It shall be open to the disciplinary authority to proceed in the matter

and take a fresh view thereon. The order of the disciplinary authority shall

be communicated to the petitioner who shall be free to proceed in the matter

in accordance with law.

(vii) We make it clear that we have not expressed any opinion on the

merits of the case.

8. This writ petition is disposed of in the above terms.

C.M. No.6053/2013

In view of the orders passed in the writ petition, these applications do

not survive for adjudication and are accordingly dismissed.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE JULY 12, 2013 j