Delhi High Court
Union Of India And Anr. vs S. S. Singh on 9 October, 2015
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9637/2015
% Date of judgment: 9th October, 2015
UNION OF INDIA AND ANR. ..... Petitioners
Through: Mr. R. Mishra, Mr. Sanjiv Kumar Saxena
and Mr. Mukesh Kumar Tiwari, Advocates
Versus
S.S. SINGH ... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J.
CM APPL. Nos. 22895-96/2015
1. Exemption allowed, subject to all just exceptions.
2. Applications stand disposed of.
CM APPL. Nos. 22897-98/2015
3. Allowed, applications stand disposed of.
W.P. (C) No.9637/2015
4. By way of the present petition, the petitioners challenges the correctness of
the order dated 14.11.2014 passed by the Central Administrative Tribunal in
O.A. No. 2616/2012, whereby the Tribunal allowed the O.A. of the
respondent herein.
5. To appreciate the controversy in hand, it would be necessary to give a brief
gist of the facts.
"2. A charge memorandum dated 07.06.2006
under Rule 14 of the CCS (CCA) Rules, 1965 was
issued to the applicant which contains the
following charge:
On the night intervening 18/19-3-2006 three
passenger namely Balbir Singh S/o Sh. Gurdeep
Singh, R/O Village Nawanpind, Distt. Jallandhar
(PB), passport No.E-5806185, Sh. Milkit Singh S/o
Shankar Singh, R/O Viuullage Suchetgarh Kothe,
Distt. Kapurthala (PB), passport No.F-4825241
and Sh. Gurmit Singh S/o Mehar Singh, R/O
Village Toti, Distt. Kapurthala (PB), passport
No.F-5675098 intended to go to Moscow by flight
No.HY-424(Uzbekistan Airlines) and approached
the counter No.3 manned by Sh. S.S.Singh, ACIO-
II/G for immigration clearance. Clearing officer
Sh. S.S.Singh, ACIO-II/G told them to wait and
demanded 100 US $ from each passenger for
immigration clearance. The pax Balbir Singh paid
100 US $ for their clearance to Sh. S.S.Singh.
Above act of Sh. S.S.Singh, ACIO-II/G
thefore, violated the provision of rule 3(1)(iii) of
CCS (Conduct) Rules, 1964.
3. On denying the said charge by the applicant, the
respondents conducted a detailed inquiry and the
inquiry officer vide his inquiry report dated
26.03.2007 held that the charge was not proved.
4. The disciplinary authority, though the inquiry
officer held that the charge levelled against the
applicant was not proved, however, imposed the
minor penalty of censure on the applicant vide
Order dated 11.04.2007. The appeal preferred by
the applicant was rejected by the appellate
authority vide its order dated 29.11.2007. The
revision petition of the applicant was also rejected
by the revisional authority vide Order dated
15.03.2012."
6. The learned counsel for the petitioners argued that the Central
Administrative Tribunal erred in not appreciating the observations recorded
by the Disciplinary authority that "it has been established that the applicant
made the complainants wait for a quite long period of time without plausible
reasons", and thereafter the Disciplinary Authority based on such
observations imposed the penalty of 'censure'.
7. The learned counsel for the petitioners further argued that it may be noted
from the Article of Charge framed against the respondent vide Memorandum
dated 07.06.2006 that the respondent was also charged for demand of money
from the passengers for the immigration clearance.
8. The learned counsel for the petitioners further argued that the respondent has
not alleged any illegality or irregularity in the procedure and therefore
interference by the learned Tribunal with the impugned orders were
inappropriate.
9. The learned counsel for the petitioners argued that the Appellate Authority
after considering the contention of the respondent rejected the appeal
preferred by the respondent. The relevant extract of the order dated
29.11.2007 reads as under:-
"The penalty of „censure‟ has been awarded to
him on the ground of giving delayed immigration
clearance to three passengers by making them to
wait for longer period of time without any
plausible reason. The fact that the said passengers
were given delayed immigration clearance was not
contested during cross examination of witnesses
and so the point has been proved as an established
fact from the records. When seen in the context of
overall facts from the records. When seen in the
context of overall facts and circumstances of the
case, it becomes amply clear that the motive of the
charged officer was definitely not good, but for
seizure of extortion money which has been
reportedly returned by the charged officer by
forcibly putting the US $ 100 note into the pocket
of the PAX, it would have been defiantly a case of
major penalty. As the departmental proceedings
are based on the principle of preponderance of
probability, the disciplinary authority after
carefully considering the case awarded him
penalty of censure which is in accordance with the
CCS (CCA) Rules. Thus there is no violation of
principles of natural justice. Taking into
consideration the facts and circumstances of the
case, the undersigned does not find any reason to
interfere with the penalty imposed on him by the
disciplinary authority and the appeal of Shri S.S.
Singh is accordingly rejected."
10. We have heard the learned counsel for the petitioners. The question which
arises in the present writ petition is whether the imposition of the penalty of
censure on the respondent was appropriate? To consider the question in
hand, it is important to go through the impugned order passed by the learned
Tribunal and law laid down by the Hon'ble Apex Court in this regard. The
relevant para 9 and 10 of the impugned order is reproduced as under:
"9. Admittedly, the inquiry officer held that the
charge levelled against the applicant vide charge
memorandum dated 07.06.2006 is not proved.
Further, the disciplinary authority vide the
disciplinary order dated 11.04.2007 specifically
agreed with the said findings of the inquiry officer.
However, by observing that it has been established
that the applicant made the complainants to wait
for a quite long period of time without plausible
reason imposed the penalty of censure. The said
observation was neither part of the charge levelled
against the applicant and that no finding was given
by any authority to that effect. Even the perusal of
Annexure R1 on which the respondents placed
reliance to state that the applicant has admitted
that he made the complainants (passengers) to
wait for undue long period, is found to be
incorrect. On the other hand, in the said Annexure
R1, the applicant has denied the charge levelled
against him was totally baseless and false.
10. In any event, no employee can be punished
for a charge which was not levelled against him at
any point of time and without providing him any
opportunity to defend himself on the said charge.
In the present case, it is admitted that the applicant
was imposed with the minor penalty of censure on
an allegation which was not forms part of the
charge memorandum in pursuance of which an
inquiry was conducted, wherein it was held that
the charge levelled against him is not proved."
11. The law in this regard is already well settled by the Hon'ble Apex Court in
State of Punjab v. Bakhatawar Singh : AIR 1972 SC 2083 wherein the
Hon'ble Apex Court observed as under:
"It may be noted that Shri Bakhtawar
Singh was not charged with having not discharged
his duties impartially. Non of the charges levelled
against him of not discharging his duties
impartially. Hence the Minister was not justified in
taking into consideration a charge in respect
of which the member was not given any
opportunity to explain his position..."
12. In Punjab National Bank and Ors. v. Kunj Behari Mishra: (1998) 7 SCC
84, relying upon the earlier decisions passed in State of Assam v. Bimal
Kumar Pandit: AIR 1963 SC 1612; Institute of Chartered Accountants of
India v. L.K. Ratna and Ors.: (1986) 4 SCC 537 as also the Constitution
Bench decision in Managing Director, ECU, Hyderabad and Ors. v. B.
Karunakar and Ors.: (1993) 4 SCC 727 and the decision in Ram Kishan
v. Union of India: (1995) 6 SCC 157, it was held that: (SCC p. 96, para 17)
"...It will not stand to reason that when the finding
in favour of the delinquent officers is proposed to
be overturned by the disciplinary authority then no
opportunity should be granted. The first stage of
the enquiry is not completed till the disciplinary
authority has recorded its findings. The principles
of natural justice would demand that the authority
which proposes to decide against the delinquent
officer must give him a hearing. When the
enquiring officer holds the charges to be proved,
then that report has to be given to the delinquent
officer who can make a representation before the
disciplinary authority takes further action which
may be prejudicial to the delinquent officer. When,
like in the present case, the enquiry report is in
favour of the delinquent officer but the disciplinary
authority proposes to differ with such conclusions,
then that authority which is deciding against the
delinquent officer must give him an opportunity of
being heard for otherwise he would be condemned
unheard. In departmental proceedings, what is of
ultimate importance is the finding of the
disciplinary authority."
13. The Court further observed as under : (SCC p. 96, para 18)
"...When the enquiry is conducted by the enquiry
officer, his report is not final or conclusive and the
disciplinary proceedings do not stand concluded.
The disciplinary proceedings stand concluded with
the decision of the disciplinary authority. It is the
disciplinary authority which can impose the
penalty and not the enquiry officer. Where the
disciplinary authority itself holds an enquiry, an
opportunity of hearing has to be granted by him.
When the disciplinary authority differs with the
view of the enquiry officer and proposes to come to
a different conclusion, there is no reason as to why
an opportunity of hearing should not be granted. It
will be most unfair and iniquitous that where the
charged officers succeed before the enquiry
officer, they are deprived of representing to the
disciplinary authority before that authority differs
with the enquiry officer's report and, while
recording a finding of guilt, imposes punishment
on the officer. In our opinion, in any such
situation, the charged officer must have an
opportunity to represent before the disciplinary
authority before final findings on the charges are
recorded and punishment imposed..."
14. The said decision was also followed by the Hon'ble Apex Court in Yoginath
D. Bagde v. State of Maharashtra & Anr.: (1999) 7 SCC 739, wherein it
has been held as under:-
"33. In view of the above, a delinquent employee
has the right of hearing not only during the
enquiry proceedings conducted by the Enquiry
Officer into the charges leveled against him but
also at the stage at which those findings are
considered by the Disciplinary Authority and the
latter, namely, the Disciplinary Authority forms a
tentative opinion that it does not agree with the
findings recorded by the Enquiry Officer. If the
findings recorded by the Enquiry Officer are in
favour of the delinquent and it has been held that
the charges are not proved, it is all the more
necessary to give an opportunity of hearing to the
delinquent employee before reversing those
findings. The formation of opinion should be
tentative and not final. It is at this stage that the
delinquent employee should be given an
opportunity of hearing after he is informed of the
reasons on the basis of which the Disciplinary
Authority has proposed to disagree with the
findings of the Enquiry Officer. This is in
consonance with the requirement of
Article 311(2) of the Constitution as it provides
that a person shall not be dismissed or removed or
reduced in rank except after an enquiry in which
he has been informed of the charges against him
and given a reasonable opportunity of being heard
in respect of those charges. So long as a final
decision is not taken in the matter, the enquiry
shall be deemed to be pending. Mere submission of
findings to the Disciplinary Authority does not
bring about the closure of the enquiry proceedings.
The enquiry proceedings would come to an end
only when the findings have been considered by
the Disciplinary Authority and the charges are
either held to be not proved or found to be proved
and in that event punishment is inflicted upon the
delinquent. That being so, the "right to be heard"
would be available to the delinquent up to the final
stage. This right being a constitutional right of the
employee cannot be taken away by any legislative
enactment or Service Rule including Rules made
under Article 309 of the Constitution."
15. On perusal of facts and circumstances of the present case as well as the law
laid down by the Hon'ble Apex Court in this regard, we are of the
considered view that it is a settled proposition of law that an employee
cannot be punished for a charge which is not levelled against him. The
action of an employer of punishing an employee in respect of the charge
which is not levelled against him results in breach of the principles of natural
justice and it has the effect of rendering the order passed by the employer a
nullity. It is an elementary rule of natural justice that a man whose civil
rights are going to be affected by an action of a public authority must know
the reasons on which the action is being taken against him and must have an
opportunity to represent his case. In the present case, the Memorandum
dated 07.06.2006 under Rule 14 of CCS (CCA) Rules, 1965 was issued to
the respondent for demanding US $ 100 from each of the passengers for
immigration clearance but the same could not be proved before the Inquiry
Officer. Moreover, the Inquiry Officer in his inquiry report dated 26.03.2007
concluded that US $ 100 were not recovered from the respondent nor any
evidence surfaced against the respondent for the charge imposed on him
despite which the Disciplinary Authority vide order dated 11.04.2007 agreed
with the findings of the Inquiry Officer, imposed the penalty of 'censure' on
the respondent without any explanation and application of mind. The only
complaint against the respondent was that he made the passengers to wait for
quite a long period of time without plausible reason. Therefore, the act of
imposition of penalty of 'censure' without affording an opportunity to the
respondent to make representation is illegal and arbitrary. Hence, the
Disciplinary Authority and the Appellate Authority erred in imposing the
penalty of 'censure' on respondent and such order of punishment cannot be
sustained.
16. Resultantly, we find no infirmity in the order of the Central Administrative
Tribunal which would require interference. The petition is without any merit
and the same is accordingly dismissed.
17. CM APPL. No. 22894/2015 (Stay)
In view of the order passed in the writ petition, the present application is also
dismissed.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
OCTOBER 9, 2015
sc
