Sandeep Antil vs Staff Selection Commission And ...
2014 Latest Caselaw 6331 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) 8362/2014

                                           Decided on :     01.12.2014

IN THE MATTERS OF :
SANDEEP ANTIL                                         ..... Petitioner
                        Through: Mr. Nitin K. Gupta, Advocate

                        versus

STAFF SELECTION COMMISSION AND ORS            ..... Respondents
                   Through: Ms. Harvinder Oberoi, Advocate for
                   R-4/FCI.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner praying

inter alia for quashing and setting aside the show cause notice dated

10.06.2013 and the order dated 27.01.2014 issued by the respondent

No.3/Regional Director (NR) of the respondent No.1/Staff Selection

Commission (in short 'SSC'), whereunder he was informed that his

candidature in the Combined Recruitment for Assistant Grade III in

General, Depot, Technical and Accounts Cadre and Hindi Posts (AG-II)

in the Examination, 2012 held for respondent No.4/FCI was cancelled

and he was debarred for a period of three years from the

Commission's examinations.

2. With the consent of the parties, the matter is taken up at the

stage of admission for final disposal.

3. Briefly stated, the facts of the case are that on 29.10.2011, a

Combined Recruitment for Assistant Grade-III in the General Depot,

Technical and Accounts Cadres and Hindi Posts (AG-II) in the

Examination, 2012 to be held for the respondent No.4/FCI, was

notified by the respondents No.1-3 in the Employment News. As per

the petitioner, he possessed the educational qualifications stipulated

in the advertisement and had submitted an application for

participating in the examination. Learned counsel for the petitioner

states that the examination was to be held in three parts, the first

stage was of the written examination, then the successful candidates

were to participate in the Computer Proficiency Test (CPT) and finally,

the shortlisted candidates were to appear for the personal interview.

4. It is the case of the petitioner that he had qualified in the

written examination and was provisionally called by the respondents

No.1-3 to appear in the CPT that was scheduled for 28.6.2012. The

petitioner had duly participated in the said test and was awaiting the

results. However, on 10.06.2013, the respondents No.1 and 3 issued

a notice to show cause to the petitioner stating inter alia that experts

had been engaged to scrutinize and analyze the performance of the

candidates in the objective type multiple choice question papers and

in the course of the said analysis undertaken in respect of the written

examination papers in Paper-II/Paper III, "incontrovertible and

reliable evidence" had emerged to the effect that he had resorted to

unfair means by indulging in copying, in association with some other

candidates who also sat for the examination. The petitioner was

called upon to reply to the show cause notice within ten days

explaining inter alia as to why his candidature should not be cancelled

and why should he not be debarred for five years from appearing in

the examinations conducted by the Commission on account of having

indulged in unfair means in the aforesaid examination.

5. Upon receipt of the aforesaid notice to show cause, the

petitioner had submitted a reply on 19.06.2013, wherein he denied

the charges leveled against him.

6. In the impugned order dated 27.01.2014, the respondents

No.1-3 took note of the submissions made by the petitioner and

proceeded to cancel his candidature in the said examinations by

observing that there was "incontrovertible and reliable evidence"

discovered against him during the post-examination scrutiny and

analysis. Further, it was decided to debar the petitioner for a period of

three years from participating in the examinations conducted by the

respondent No.1/Commission.

7. The main plank of the arguments advanced by learned counsel

for the petitioner to assail the impugned notice to show cause dated

10.06.2013 and the order dated 27.01.2014 passed by the

respondents No.1 and 3 is that neither the notice to show cause, nor

the impugned order mentions the evidence which has been described

as "incontrovertible and reliable" that had purportedly emerged during

the scrutiny and analysis of the written examination, to enable the

petitioner to offer a worthwhile explanation or offer a valid defence.

Learned counsel contends that in the absence of any material

particulars supplied to him by the respondents, the petitioner was not

in a position to file a proper reply to the notice to show cause.

8. Learned counsel for the petitioner informs the court that the

issue raised in the present petition came up for consideration before

the Division Bench in W.P.(C) 7416/2013 entitled SSC and Ors. vs.

Rakesh Kumar Yadav. In the said case, the court had the occasion to

examine two notices to show cause issued by the SSC to the

respondent therein in respect of a Combined Graduate Level (Tier-II)

Examination, 2011. The said notices to show cause had alleged inter

alia that the candidates including the respondent therein had indulged

in malpractices. The respondent had filed a reply to the two notices

issued by the SSC, wherein he stated that it was not disclosed as to

what was the nature of the unfair means alleged to have been

adopted by him while taking the said examination, without responding

to the objections taken by the respondent. Vide order dated

19.06.2012, the SSC had proceeded to cancel his candidature and

had debarred him from participating in any examination conducted by

the Commission for a period of four years.

9. Aggrieved by the said decision taken by the SSC, the aforesaid

respondent had approached the Central Administrative Tribunal for

appropriate relief by filing a petition, which was duly allowed. The

petitioner/SSC in the aforecited petition had then filed an appeal

against the decision of the Tribunal that came up before the Division

Bench of this Court and was dismissed vide order dated 26.11.2013,

with an observation that as per the charges leveled against him in the

show cause notice, the alleged unfair means used by the respondent

therein were never revealed to him and in the absence of the said

information, he was not in a position to effectively reply to the notice

to show cause.

10. The Court is informed that the aforesaid order dated

26.11.2013, passed by the Division Bench in W.P.(C)7416/2013 has

attained finality. The facts of the present case are identical to those

decided by the Division Bench in the aforecited case to the extent that

in both the case, the notices to show cause are bereft of any material

particulars as to the nature of unfair means allegedly adopted by the

candidates. It may also be relevant to note that prior hereto, some

other similarly placed candidates had filed petitions before this Court

assailing the notices to show cause and the subsequent orders passed

by the respondents [WP(C) No.7552/2014, 7661/2014, 7604/2014

and 7580/2014], which were allowed in their favour on the ground of

failure on the part of the respondents to reveal the material

information gathered against them.

11. While dealing with a matter relating to the dismissal of a

government employee, in Biecco Lawrie Ltd. v. State of W.B.,

reported as (2009) 10 SCC 32, the Supreme Court had laid

emphasis on following principles of natural justice and on the aspect

of issuing an effective notice to show cause, the following pertinent

observations were made:

"24. It is fundamental to fair procedure that both sides should be heard--audi alteram partem i.e. hear the other side and it is often considered that it is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. One of the essential ingredients of fair hearing is that a person should be served with a proper notice i.e. a person has a right to notice. Notice should be clear and precise so as to give the other party adequate information of the case he has to meet and make an effective defence. Denial of notice and opportunity to respond result in making the administrative decision as vitiated. (emphasis added)

25. The adequacy of notice is a relative term and must be decided with reference to each case. But generally a notice to be adequate must contain the following:

(a) time, place and nature of hearing;

(b) legal authority under which the hearing is to be held;

(c) statement of specific charges which a person has to meet."

12. A perusal of the impugned notice to show cause dated

10.06.2013 bears out the submission made by learned counsel for the

petitioner that the same does not disclose the manner in which the

petitioner had allegedly resorted to unfair means when sitting in the

subject examination. On account of failure on the part of the

respondents No.1-3 to specify the material available with it, the

petitioner would not have been in a position to give a reply in a

proper manner and defend himself effectively and respondent No.1

and 3, proceeded to pass the impugned order dated 27.01.2014,

cancelling the petitioner's candidature in the subject examination,

2012 and debarring him for a period of three years from participating

in the Commission's examinations.

13. Learned counsel for the petitioner is justified in submitting that

when the petitioner was never confronted with the relevant material

available with the respondents No.1-3 to substantiate its stand that it

had "incontrovertible and reliable evidence" against him in its

possession, which it had gathered on the basis of the analysis and

scrutiny of the written examination purportedly conducted with the

help of experts, how could the respondents expect the petitioner to

have furnished a satisfactory reply to the notice to show cause issued

by the Commission. It was incumbent for the respondent

No.1/Commission to have first disclosed the material available with it

to substantiate the charges leveled against the petitioner and only

thereafter, could the petitioner have been in a position to submit a

reply to the show cause notice by taking all the defences that may

have been available to him.

14. A perusal of the impugned notice to show cause reveals that no

mention has been made therein as to the nature and details of the

material that the SSC had come upon for initiating any action against

the petitioner for allegedly resorting to malpractices during the

examination. When the petitioner was not even confronted with the

details of the case made out against him, how could he be expected

to respond effectively? Having failed to furnish the explicit material in

the power and possession of the respondents for arriving at a

conclusion that there was sufficient evidence to indict the petitioner, it

has to be held that the principles of natural justice have been grossly

violated by them and the entire procedure of affording an adequate

opportunity of hearing to him, was reduced to an empty formality.

15. In view of the aforesaid facts and circumstances, this Court is of

the opinion that the impugned notice to show cause dated 10.06.2013

and the order dated 27.01.2014 passed by the respondent No.1 and

3/SSC are not sustainable in the eyes of law and resultantly, the

same are quashed and set aside. However, if the respondents do

have sufficient material available with them to establish that the

petitioner had resorted to unfair means in the examination in

question, then they shall be at liberty to issue a fresh notice to him

along with all the relevant information available with them, to

substantiate their allegations and the petitioner shall be entitled to file

a reply thereto. The said reply shall be considered and decided by the

respondents in accordance with law, under written intimation to the

petitioner. As much time has lapsed after issuance of the

impugned notices to show cause, if the respondents propose to issue

a fresh notice to show cause to the petitioners as per the liberty

granted, then expeditious steps shall be taken by them and the same

shall be issued within six weeks and the entire process shall be

concluded within three months from today.

16. The petition is allowed and disposed of on the above lines, while

leaving the parties to bear their own costs.

                                                       (HIMA KOHLI)
DECEMBER 01, 2014/rkb                                    JUDGE