Nishant & Ors vs Fci And Ors
2014 Latest Caselaw 6499 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) 7168/2014

                                              Decided on 05.12.2014
IN THE MATTER OF :
NISHANT & ORS                                        ..... Petitioners
                       Through: J.S. Bhasin with
                       Ms. Rashmi Priya, Advocates

                       versus

FCI AND ORS                                     ..... Respondents
                       Through: Mr. Mohan Sharma, Advocate
                       for FCI.
                       Mr. Vikas Mahajan, Advocate for UOI.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

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

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

10.06.2013 issued by the Regional Director (NR) of the respondent

No.2/Staff Selection Commission (in short 'SSC'), whereunder they

were informed that on failure to show cause, their 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.1/FCI, would be cancelled

and they would be debarred for a period of five 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.1/FCI, was

notified by the respondent No.2/SSC in the Employment News. As

per the petitioners, they possessed the educational qualifications

stipulated in the advertisement and had submitted an application for

participating in the examination. Learned counsel for the petitioners

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 petitioners that they had qualified in the

written examination and were provisionally called by the respondent

No.2/SSC to appear in the CPT that was scheduled for 26.06.2012.

The petitioners had duly participated in the said test and were

awaiting the results. However, on 10.06.2013, the respondent No.2

issued a notice to show cause to the petitioners 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 they had resorted to unfair means by indulging in copying, in

association with some other candidates who also sat for the

examination. The petitioners were called upon to reply to the show

cause notice within ten days explaining inter alia as to why their

candidature should not be cancelled and why should they 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

petitioners had submitted replies on 17.06.2013/18.06.2013, wherein

they had denied the charges leveled against them.

6. Aggrieved by the aforesaid notice to show cause issued by

the respondent No.2/SSC, the petitioners had approached the Central

Administrative Tribunal, Principal Bench, New Delhi, by filing OA

No.923/2013. However, since the matter related to the respondent

No.1/FCI, which does not fall in the jurisdiction of the Tribunal, vide

order dated 22.9.2014, the aforesaid petition was dismissed and

thereafter, the petitioners have filed the present petition on

15.10.2014.

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

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

10.06.2013 issued by the respondent No.2/SSC is that it does not

mention 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 petitioners to offer

a worthwhile explanation or offer a valid defence. Learned counsel

contends that in the absence of any material particulars supplied to

them by the respondents, the petitioners were not in a position to file

a proper reply to the notice to show cause.

8. Learned counsel for the petitioners 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 almost 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. and Anr. vs. State of

W.B. and Anr., 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 notices to show cause dated

10.06.2013 bears out the submission made by learned counsel for

the petitioners that the same do not disclose the manner in which the

petitioners had allegedly resorted to unfair means when sitting in the

subject examination. Quite apparently, on account of failure on the

part of the respondent No.2/SSC to specify the material available

with it, the petitioners would not have been in a position to give a

reply in a proper manner and defend himself effectively.

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

when the petitioners were never confronted with the relevant

material available with the respondent No.2/SSC to substantiate its

stand that it had "incontrovertible and reliable evidence" against

them 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 petitioners to have furnished satisfactory replies to the notices to

show cause issued by the Commission. It was incumbent for the

respondent No.2/Commission to have first disclosed the material

available with it to substantiate the charges leveled against the

petitioners and only thereafter, could the petitioners have been in a

position to submit replies to the show cause notice by taking all the

defences that may have been available to them.

14. A perusal of the impugned notices 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 petitioners for allegedly resorting to malpractices during the

examination. 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 petitioners, 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 them, was reduced to an empty formality.

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

of the opinion that the impugned notices to show cause dated

10.06.2013 issued by the respondent No.2/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 petitioners had resorted to unfair means in

the examination in question, then they shall be at liberty to issue

fresh notices to them along with all the relevant information available

with them, to substantiate their allegations and the petitioners shall

be entitled to file replies thereto. The said replies shall be considered

and decided by the respondents in accordance with law, under written

intimation to the petitioners. As much time has lapsed after

issuance of the impugned notices to show cause, if the respondents

propose to issue fresh notices 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 05, 2014                                        JUDGE
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