Kuldeep Singh vs The District And Sessions Judge, ...
2014 Latest Caselaw 5658 Del

$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on: 11.11.2014
+      W.P.(C) 3778/2013

       KULDEEP SINGH                                ..... Petitioner
                          Through : Sh. Harpreet Singh and Sh.
                          Arunesh Sharma, Advocates.
                          versus
       THE DISTRICT & SESSIONS JUDGE, DELHI..... Respondent

Through : Ms. Latika Chaudhry, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. The petitioner is aggrieved by an order of the District Judge dated 30.09.2009 and the appellate order dated 20.02.2010, confirming that order.

2. The petitioner was imposed with the penalty of dismissal pursuant to an inquiry into the charges levelled against him. The Memorandum of Charges was issued to the petitioner on 11.03.2008. The Inquiry Officer (IO) was appointed by the appointing authority - District Judge, on 09.05.2008. Four Articles of Charges were alleged against the petitioner. They are extracted below:

"ARTICLE-I That Shri Kuldeep Singh, Assistant while posted as Reader in the court of Shri R.L. Puri, Special Metropolitan

W.P.(C) 3778/2013 Page 1 Magistrate, Rohini Courts, Delhi during the year 2007 remained absent from duty unauthorisedly w.e.f. 24/4/2007 to 19/5/2007 without any leave application/intimation.

ARTICLE-II That said Sh. Kuldeep Singh, the then Reader failed to send the fine statements for the month of November 2005 to March 2007 in the Accounts Branch, Tis Hazari Courts, Delhi despite several reminders.

ARTICLE-III That the said Sh. Kuldeep Singh, the then Reader did not prepare the fine statements for the dates 21/5/2007, 23/5/2007, 24/5/2007, 25/5/2007, 26/5/2007, 28/5/2007, 29/5/2007, 30/5/2007, 1/6/2007, 2/6/2007 & 4/6/2007 and deposited the cash with the cashier as an on account payment.

ARTICLE-IV That the said Sh. Kuldeep Singh, the then Reader did not complete the fine registers and receipts books and neither consigned them to the Record Room.

Being a Reader it was the primary duty of Sh. Kuldeep Singh to send the fine statements regularly to the accounts branch, prepare the daily fine statement and deposit the realised fine amount in full to the cashier on the same day itself, to consign the complete fine registers and receipt books in the Record Room, to maintain regularity and punctuality and devotion to duty but he failed to do so."

3. The IO prepared a report and furnished it to the competent authority on 12.03.2009. The report held that all the charges levelled against the petitioner had been proved. Apparently, after attending the inquiry proceedings on 2-3 occasions, the petitioner did not pursue the matter, and was set-down ex-parte on 17.01.2009.

W.P.(C) 3778/2013 Page 2

4. It is contended that the inquiry is beset with vital infirmities. It was firstly contended that the IO permitted the Presenting Officer to lead additional evidence without proper application of mind and without notifying the petitioner/delinquent employee. The second contention urged was that the IO did not follow the procedure prescribed under Sections 14(18) of the CCS (Classification, Control and Appeal) Rules, 1965 (hereafter the "1965 Rules") which mandates that at the conclusion of the inquiry, the delinquent officer should be called upon to furnish his explanation in respect of the evidence led.

5. On the other hand, learned counsel for the respondents urged this Court not to interfere with the findings of the penalty order. It was emphasized that the order of the disciplinary authority was carefully examined by the appellate authority and there was no procedural irregularity. Highlighting that the petitioner did not choose to air his grievance at the appropriate stage, i.e. when called upon to do so after the inquiry report was furnished to him, in the representation made to the disciplinary authority, learned counsel submitted that in these circumstances, the petitioner cannot be now heard to urge that there was failure of justice or failure of natural justice.

6. This Court has considered the submissions. Rule 14(15) of the CCS(CCA) and Rule 14(18) reads as follows:

"(15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands

W.P.(C) 3778/2013 Page 3 it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary, in the interests of justice.

XXXXXX XXXXXX XXXXXX (18) The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him."

7. The decision of the Supreme Court in Ministry of Finance v. S.B. Ramesh 1998 (3) SCC 227 was relied upon by the petitioner to urge that where ex-parte inquiry is held, the dictate of Rule 14(18) of the 1965 Rules, i.e. calling upon the government servant to furnish his explanation with respect to the evidence led, has to be followed. In the present case, the IO has eventually taken into account the fact that the petitioner had been set-down ex-parte and had chosen to stay away from the proceedings. In these circumstances, he did not notify the petitioner formally under Rule 14(18) of the 1965 Rules. As S.B. Ramesh (supra) states, such a procedure is irregular.

8. So far as the contention with respect to additional evidence goes, Rule 14(15) of the 1965 Rules requires that the IO applies his mind if an application to adduce additional or new evidence is made.

W.P.(C) 3778/2013 Page 4 He cannot automatically grant the application. In the present case, the relevant proceedings of the IO, i.e. the minutes of order dated 24.01.2009 show that the inquiry officer merely allowed the request of the Presenting Officer for the asking, as it were. That is not the mandate of Rule 14(15). Furthermore, this is all the more so because the Note to Rule 14(15) is clear - in that evidence/new material would not be permitted to just fill in the gap in the evidence already led. Furthermore, regardless of whether the delinquent employee has been set-down ex-parte or not, the IO is required to issue notice and hear his views and grant him opportunity if he asks for inspection of such evidence. In addition, the IO has to permit the delinquent officer to lead any evidence in rebuttal of such evidence, if he so desires. All these steps were not followed, rendering the conduct of inquiry irregular. For the above reasons, the impugned penalty order and appellate order are hereby set aside.

9. However, following the decision in State Bank of Patiala and Ors. v. S.K. Sharma 1996 (3) SCC 364, the matter is remitted to the respondent to continue with the inquiry from the stage when the application for additional evidence was presented. The application shall be considered by the Inquiry Officer and appropriate order made after hearing the petitioner as well as the Presenting Officer. The inquiry shall be completed having regard to, inter alia, Rule 14(15) and Rule 14(18). The respondents shall ensure that the inquiry is completed at the earliest, and preferably within three months from today. It is open to the respondents, i.e. disciplinary authority to pass appropriate consequential orders in accordance with law as to the manner in which the period of service of the petitioner is to be dealt

W.P.(C) 3778/2013 Page 5 with from the date of the impugned order of dismissal, till date. The writ petition is allowed in the above terms.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) NOVEMBER 11, 2014 'ajk'

W.P.(C) 3778/2013 Page 6