S.K.Shah vs Uoi And Ors
2013 Latest Caselaw 5014 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 1016/2012

%                        Date of decision: 31st October, 2013

      S.K.SHAH                                  ..... Petitioner
                         Through :    Mr.Padma Kumar S.,
                                      Advocate

                         versus

      UOI AND ORS.                            ..... Respondents
                         Through :    Mr.Jatan Singh, CGSC and
                                      Mr.Soayib Qureshi, Advocate

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

      GITA MITTAL, J. (Oral)

1. By way of the instant writ petition, the petitioner has assailed the order dated 17th January, 2011 whereby the disciplinary authority accepted the report of the inquiry dated 29th October, 2009 submitted by the inquiry officer on culmination of disciplinary proceedings which were conducted against the petitioner with regard to the charge sheet dated 22nd August, 2007. The disciplinary proceedings were held on the following charges:

ARTICLE I That the said Shri S.K.Shah, while functioning as Adjutant/DDO, 24th Bn Gangtok, Sikkim, had intentionally tried evading payment of Income Tax for the Assessment Year 2005-06 w.e.f. 01.04.04 to

31.03.05 by deliberately and wilfully signing his own Income Tax statement Form No.16 reflecting tax payable for the above referred financial year as NIL, with malafide intention and an aim to defraud the Government by projecting and fabricating wrong facts. The said Shri S.K.Shah, has thereby committed an act most unbecoming of the Government Servant f his rank and status which adversely reflects on his integrity thereby violating Rule-3 (I) (i & iii) of the CCS Conduct Rules 1964.

ARTICLE - II That the said Shri S.K.Shah, while functioning as Adjutant/DDO, 24th Bn, Gangtok, Sikkim has misused his official position wherein he has deliberately and with ulterior motive fabricated a wrong document thereby committing an act most unbecoming of a government servant of his rank and status thereby violating Rule 3 (I) (i & iii) of the CCS Conduct Rules 1964 and rule 71 of the Central Govt Account (Receipt and Payments) Rule 1983.

ARTICLE - III That the said Shri S.K.Shah, while functioning as Adjutant/DDO, 24th Bn Gangtok, Sikkim, had demanded a sum of Rs.10,000/- projecting an illegal demand of purchasing a Blue Tooth for the Unit Commandant from Sh.Sanjay Das, owner of M/s Bhawani Motor Garage where SSB vehicles were got repaired.

The said Shri Shah has thereby committed an act most unbecoming of a Government Servant of his rank and status, which adversely reflects on his integrity thereby violating rule-3 (I) (i & iii) of the CCS conduct rules 1964.

ARTICLE -IV That the said Shri S.K.Shah, while functioning

as Adjutant/DDO, 24th Bn Gangtok, Sikkim, had taken a sum of Rs.10,000/- from Sh.Sanjay Das, owner of a private Motor Garage named Bhawani Motor Garage, Siliguri in the Officers Mess of SSB Ranidanga on 11.02.05 on account of projecting a illegal demand for purchase of Blue tooth for the commandant, 24th Bn, Gangtok.

The said Shri S.K.Shah, has used the officers mess for a illegal activity and has illegally accepted money thereby committing an act most unbecoming of a Government Servant of his rank and status which adversely reflects on his integrity thereby violating rule 3 (I) (i & iii) of the CCS conduct Rules 1964.

ARTICLE - V That the said Shri S.K.Shah, while functioning as Adjutant/DDO, 24th Bn Gangtok, Sikkim, by demanding a sum of Rs.10,000/- from Shri Sanjay Das and having received the said sum of Rs.10,000/- on 11.02.05, has brought disrepute to the Force as well as to Commandant, in a personal capacity, thereby committing an act most unbecoming of a government servant of his rank and status which adversely reflects on his rank and status which adversely reflects on his integrity thereby violating Rule 3 (i & iii) of the CCS Conduct Rules 1964.

2. Amongst others, the petitioner has assailed the said order dated 17th January, 2011 on the ground that the order has been passed without taking into consideration the representation submitted by the petitioner with regard to the inquiry report. Another ground for challenge in the writ petition by the petitioner before us is that the respondents had referred the case to the Union Public Service Commission (UPSC) for advice, which advice when received was taken into consideration by the disciplinary authority while passing

the impugned order and imposing the penalty upon the petitioner. However, the advice which was received by the respondents was not furnished to the petitioner prior to the passing of the order and thereby petitioner was deprived of the opportunity to make a representation in respect of the same.

3. Inasmuch as we propose to dispose of the writ petition on these grounds, we do not deem it necessary to examine the challenge by the petitioner to the proceedings of the inquiry at this stage or the other grounds of challenge.

4. We find from the record that the enquiry officer had submitted his enquiry report dated 29th October, 2009 to the disciplinary authority. The petitioner has contended that he had superannuated on 30th November, 2009 from service and on which date he was living in accommodation allotted to him in government quarters in Sarojini Nagar, New Delhi. The inquiry report was admittedly sent by the respondent on 12th April, 2010 to the petitioner's private address in Dwarka. According to the petitioner, for the reason that he was not residing at the Dwarka flat which was locked at this stage, the enquiry report did not reach him and he was unable to submit his representation. The petitioner vacated the government quarters and started living in private accommodation in Dwarka and on 2nd August, 2010, the guard in the building in Dwarka handed over the envelope wherein the petitioner found the inquiry report.

5. The petitioner states that he promptly reacted and addressed the letter dated 4th August, 2010 under registered post to the respondents informing them that he had received the inquiry report

on 2nd August, 2010 and as such was unable to respond thereon. The petitioner applied for grant of 15 days time to file his reply.

6. Shortly thereafter, on 11th August, 2010, the petitioner also sent his representation against the inquiry proceeding to the disciplinary authority. Receipt thereof is not disputed before us. On the contrary, we find that in the impuged order dated 17 th January, 2011, the disciplinary authority has noted in para 11 that the petitioner had failed to submit the representation against the inquiry report "within the stipulated period". It is apparent therefore that even though the representation of the petitioner was received by the respondents before passing of the order dated 17th January, 2011, however, the same was not taken into consideration while passing the impugned order on the ground that the same had not been received within the stipulated period. The respondents failed also to note that the petitioner informed them of the circumstances in which the inquiry report had not been served upon him and that he was actually deprived of the opportunity to make a representation within the stipulated period to the respondents.

In this background, the failure to consider the representation of the petitioner against the inquiry report was certainly erroneous and for reasons which are completely unsustainable.

7. We do not know the view which the disciplinary authority may have taken in the matter after considering the objections taken by the petitioner. The disciplinary authority may have accepted or rejected the petitioner's contentions. However, it cannot be denied that given the fact that the disciplinary officer has to give the petitioner an

opportunity to make a representation against the inquiry report of the inquiry officer, it is incumbent upon the disciplinary authority to consider the representation when the same is received. The order dated 17th January, 2011 would not be sustainable for this reason alone.

8. In addition thereto, we find from a reading of the order dated 17th January, 2011 that the disciplinary authority in para 12 notes that the case was referred to UPSC for advice and the commission after taking all factors into account in the light of findings, was of the opinion that the charges established against the charge officer, constitute grave misconduct on his part. The disciplinary authority notes that the UPSC had advised that the ends of justice would be met in this case if the penalty of withholding of 20% of the monthly pension otherwise admissible to the petitioner was imposed on him for a period of five years and further the gratuity admissible to him should be released, if not required in any other case.

9. In para 13 of the order dated 17th January, 2011, the disciplinary authority records that on a consideration of the report of the inquiry officer as well as the advice of the UPSC, the President has ordered that the ends of justice would be met in this case, if the penalty of withholding of twenty percent of the monthly pension otherwise admissible to the petitioner is imposed on him for a periof of five years. It is therefore manifest that the disciplinary authority had accepted the advice of UPSC in toto and imposed the punishment suggested by them. It was therefore incumbent on the disciplinary authority to have forwarded a copy of the advice received from

UPSC to enable the petitioner to make his representation before relying upon the same.

We may note that the order dated 17th January, 2011 records that the copy of the advice received from UPSC is enclosed. It would therefore appear that the respondents have opted to serve a copy of the advice received from UPSC along with the impugned order imposing the penalty upon him and thereby deprived the petitioner of the opportunity to make representation against the advice before its consideration.

10. It has been urged by Mr.Jatan Singh, learned standing counsel for the Central Government that there was no requirement on the part of the respondents under the applicable rules including the Rule 32 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 which requires the disciplinary authority to serve copy of the UPSC advice upon the charged officer.

11. The requirement to supply the advance copy of the advice received from UPSC has been read into the procedural safeguards by several judicial precedents. In this regard, we may refer to the judgment in Civil Appeal NO.5341 of 2006 Union of India & Ors. Vs. S.K. Kapoor in which the Supreme Court has observed that in a case where the report of the UPSC is relied upon by the disciplinary authority, "then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice."

The Supreme Court has referred to a view taken on 30th January, 2004 in Civil Appeal No.642 of 2004 in case of S.N.Narula

vs.Union of India & Others. The principle of Supreme Court would guide the adjudication.

12. The order passed by the disciplinary authority without service of the UPSC advice upon the petitioner is in violation of the principles of natural justice is completely unsustainable. The same must comply with the requirement of law. Learned counsel for the petitioner also assails the same on the ground of non-application of mind. There is merit in these submissions.

13. In view of the above, we hold and direct as follows:

(i) The order dated 17th January, 2011 is hereby set aside and quashed and the matter is remanded back to the disciplinary authority for consideration afresh of the enquiry report.

(ii) The disciplinary authority shall take into consideration the submissions made by the petitioner in his representation dated 11th August, 2010 against the proceedings which were conducted against him.

(iii) The petitioner is additionally given four weeks time to submit the representation with regard to the advice of the UPSC to the disciplinary authority which representation shall also be considered by it before passing its order.

(iv) The order shall be passed by the disciplinary authority within a period of three months. The order which is to be passed by the disciplinary authority shall be reasoned and speaking, and shall be served upon the petitioner.

(v) If the petitioner is aggrieved by the order which is passed, he shall be at liberty to assail the same by way of appropriate legal

proceedings in accordance with law.

14. We make it clear that we have not expressed any opinion on the merits of any of the grounds of the writ petition or petitioner with regard to any inquiry or the merit of the charges which were laid against the petitioner on which inquiry was conducted. It shall be open to the petitioner to raise challenge in future proceedings against such orders.

The writ petition is allowed in the above terms. Dasti to parties.

GITA MITTAL, J

DEEPA SHARMA, J OCTOBER 31, 2013 rb