Abhishek And Ors vs Staff Selection Commission And ...
2014 Latest Caselaw 6847 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 1204/2014

                                             Decided on :     16.12.2014

IN THE MATTERS OF :
ABHISHEK AND ORS                                     ..... Petitioners
                         Through: Mr. Sachin Chauhan, Advocate

                         versus


STAFF SELECTION COMMISSION AND ORS             ..... Respondents
                   Through: Mr. Vivek Goyal, Advocate for R-1
                   and R-2.
                         Ms. Anuja Masih, Advocate for R-3.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

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

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

10.06.2013 and the orders dated 27.01.2014 issued by the

respondent No.2/Regional Director (NR) of the respondent No.1/Staff

Selection Commission (in short 'SSC'), whereunder they were

informed that their candidatures 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.3/FCI were cancelled and they were debarred for a period of three

years from the Commission's examinations.

2. Counter affidavits have been filed by the respondents No.1 and

2/SSC and respondent No.3/FCI. Rejoinders have not been filed.

However, since identical matters came up before this Court and were

disposed of on the same set of facts, with the consent of the parties,

the matter is taken up 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.1-2 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 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 petitioners that they had qualified in the

written examination and were provisionally called by the respondents

No.1-2 to appear in the CPT that was scheduled on 28.6.2012 for the

petitioners No.1 and 2, on 25.06.2012 for the petitioner No.3, on

29.06.2012 for the petitioner No.4 and on 16.06.2012 for the

petitioner No.5. The petitioners had duly participated in the said test

and were awaiting the results. However, on 10.06.2013, the

respondents No.1 and 2 issued notices 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

submit their replies to the show cause notices within ten days,

explaining inter alia as to why their candidatures 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 notices to show cause, the

petitioners had submitted their separate replies, wherein they all had

denied the charges leveled against them.

6. In the impugned order dated 27.01.2014, the respondents

No.1-2 took note of the submissions made by the petitioners and

proceeded to cancel their candidatures in the said examinations by

observing that there was "incontrovertible and reliable evidence"

discovered against them during the post-examination scrutiny and

analysis. Further, it was decided to debar the petitioners, 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 petitioners to assail the impugned notices to show cause dated

10.06.2013 and the orders dated 27.01.2014 passed by the

respondents No.1 and 2 is that neither the notices to show cause, nor

the impugned orders 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,

and the said objection was specifically taken by them in their replies

to the show cause notices. Learned counsel contends that in the

absence of any material particulars supplied to the petitioners by the

respondents, they were not in a position to file a proper reply to the

notices to show cause. The respondents had however proceeded to

impose the punishment vide orders dated 27.01.2014, without

considering the plea of the petitioners.

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,

7580/2014 amongst others], 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 notices to show cause dated

10.06.2013 bears out the submission made by learned counsel for the

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

petitioners had allegedly resorted to unfair means when sitting in the

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

respondents No.1-2 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 themselves effectively and despite the

plea being taken by the petitioners in their replies to the show cause

notices, the respondents No.1 and 2, had proceeded to pass the

impugned order dated 27.01.2014, cancelling the petitioners'

candidature in the subject examination, 2012 and debarring them for

a period of three years from participating in the Commission's

examinations.

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

when the petitioners were never confronted with the relevant material

available with the respondents No.1-2 to substantiate the stand that

they had "incontrovertible and reliable evidence" against the

petitioners No.1 to 5, in their possession, which they 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 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 petitioners and only thereafter, could the petitioners have

been in a position to submit their replies to the show cause notices by

taking all the defences that may have been available to them.

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 petitioners for allegedly resorting to malpractices during the

examination. When the petitioners were not even confronted with the

details of the case made out against them, how could they 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

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 and the orders dated 27.01.2014 passed by the

respondent No.1 and 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 a fresh

notice to them along with all the relevant information available with

them, to substantiate their allegations and the petitioners shall be

entitled to file their 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 16, 2014                                      JUDGE
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