Hitender vs Union Of India And Ors
2014 Latest Caselaw 5844 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+           W.P.(C) 7661/2014, 7604/2014, 7580/2014

                                            Reserved on: 5/10.11.2014
                                            Decided on : 17.11.2014

IN THE MATTERS OF :
HITENDER                                         ..... Petitioner in
                                                 WP(C) No.7661/2014

AJAY KUMAR                                       ..... Petitioner in
                                                  WP(C) No.7604/2014

VIKRANT                                           ..... Petitioner in
                                                 WP(C) No.7580/2014
                         Through: Mr. Aviral Dhirendra, Advocate

                         versus

UNION OF INDIA AND ORS                      ..... Respondents
                    Through: Mr. Anil Soni, CGSC with
                    Mr.Nagendra Benipal, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

1. By this common judgment, the Court proposes to decide all the

three cases as the facts are more or less similar and the grievance of

the petitioners are identical. For ready reference, the facts of the case

in WP 7661/2014 are being referred to.

2. 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 Regional

Director (NR) of the respondent No.2/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.3/FCI was cancelled and he

was debarred for a period of three years from the Commission's

examinations.

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.3/FCI, was

notified by the respondents No.1 and 2/SSC 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

had stated 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 and 2/SSC to appear in the CPT that was scheduled for

18.06.2012. The petitioner had duly participated in the said test and

was awaiting the results. However, on 10.06.2013, the respondents

No.1 and 2 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 21.06.2013, wherein he denied

the charges leveled against him.

6. In the impugned order dated 27.01.2014, the respondents

No.1-2/SSC 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. Aggrieved by the aforesaid decision taken by the

respondents No.1-2/SSC, the petitioner had approached the Central

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

No.1588/2014. However, since the matter related to the respondent

No.3/FCI, does not fall in the jurisdiction of the Tribunal, vide order

dated 18.09.2014, the petitioner was permitted to withdraw the

aforesaid petition and thereafter, he has filed the present petition on

05.11.2014.

8. 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 2/SSC was 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 contended 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.

9. Learned counsel for the petitioner informed 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.

10. 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.

11. A copy of the aforesaid order dated 26.11.2013, passed by the

Division Bench in W.P.(C) 7416/2013 was handed over by learned

counsel for the respondent in court who stated that the said order 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.

12. 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."

13. 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 and 2/SCC 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 2, 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.

14. 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 and 2/SSC 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.2/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.

15. 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.

16. 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

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

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.

17. All the three petitions are allowed and disposed of on the above

lines, while leaving the parties to bear their own costs.

                                                      (HIMA KOHLI)
NOVEMBER       17, 2014                                 JUDGE
rkb/mk