Satya Prakash vs Union Of India And Ors.
2015 Latest Caselaw 6947 Del

$~33
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 8086/2014
%                                                Date of Judgment : 15.09.2015
        SATYA PRAKASH                                         ..... Petitioner
                            Through:     Ms. Meenu Mainee, Advocate

                            Versus

        UNION OF INDIA & ORS.                             ..... Respondents
                      Through:           Mr.Arun Bhardwaj, CGSC with Mr.
                                         Rishi Kapoor, Advocate for UOI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S.SISTANI, J. (ORAL)

1. Rule DB. With the consent of the counsel for the parties, the present

writ petition is taken up for final hearing and disposal.

2. Aggrieved by the order of 4th April, 2014 by which the Central

Administrative Tribunal (CAT) has dismissed the Review Petition

filed by the petitioner and the order of 13th March, 2013 by which the

OA filed by the petitioner has been dismissed has led to the filing of

the present writ petition.

3. The necessary facts to be noticed for disposal of this writ petition are

that the petitioner was placed under suspension and a charge sheet was

issued on 30th November, 1999. The Enquiry Officer submitted his

findings on 10th July, 2001. As per the report, the charges were not

proved. The Disciplinary Authority disagreed with the findings of the

Enquiry Officer by an order dated 8th April, 2003. The petitioner

replied to the disagreement note which was submitted on 21st April,

2003. Thereafter, the Disciplinary Authority passed an order on 16th

July, 2003. The Appellate Authority enhanced the punishment in

2004. Since the punishment was enhanced without issuing a show

cause notice, OA filed by the petitioner was allowed in the year 2005

while granting liberty to the Disciplinary Authority to take up the

proceedings from the stage of examination of handwriting expert in

the enquiry. Since the inquiry was not conducted again in accordance

with the Rules, another OA was filed and the direction was issued to

conduct an enquiry at the stage of cross examination. Further facts

would not be necessary except to state that this Court is again faced

with the situation where it has been contended before us that the

respondents have failed to comply with Rule 14(18) of the CCS

(CCA) Rules 1965.

4. Learned counsel for the petitioner has placed reliance on the judgment

Ministry of Finance and Another vs. S.B. Ramesh (1998) 3 Supreme

Court Cases 227. The relevant portion is as under:-

"13. It is necessary to set out the portions from the order of the Tribunal which gave the reasons to come to the conclusion that the order of the Disciplinary Authority was based on no evidence and the findings were perverse. The Tribunal, after extracting in full the evidence of SW-1, the only witness examined on the side of the prosecution, and after extracting also the proceedings of the Enquiry Officer dated 18.06.1991, observed as follows:

"After these proceedings on 18.06.1991 the Enquiry Officer has only received the brief from the PO and then finalized the report. This shows that the Enquiry Officer has not attempted to question the applicant on the evidence appearing against him in the proceedings dated 18.06.1991. Under sub-rule (18) of Rule 14 of the CCS (CCA) Rules, it is incumbent on the Enquiry Authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as a witness. This mandatory provision of the CCS (CCA) Rules has been lost sight of by the Enquiry Authority. The learned counsel for the respondents argued that as the inquiry itself was held ex parte as the applicant did not appear in response to notice, it was not possible for the Enquiry Authority to question the applicant. This argument has no force because on 18.06.1991 when the inquiry was held for recording the evidence in support of

the charge, even if the Enquiry Officer has set the applicant ex-parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the Enquiry Authority did not choose to give the applicant an opportunity to cross-examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule (18) of Rule 14 of CCS (CCA) Rules. The omission to do this is as serious error committed by the Enquiry Authority. Secondly, we notice that the Enquiry Authority has marked as many as 7 documents in support of the charge, while SW-1 has proved only one document, namely, the statement of Smt. K.R. Aruna alleged to have been recorded in his presence. How the other documents were received in evidence are not explained either in the report of the Enquiry Authority or in the proceedings. Even if the documents which were produced alongwith the charge-sheet were all taken on record, unless and until the applicant had requested the Enquiry Officer to mark certain documents in evidence on his side, the Enquiry Authority had no jurisdiction in marking all those documents which he had called for the purpose of defending himself on the side of the applicant while he has not requested for marking of these documents on his side. It is seen that some of these documents which are

marked on the side of the defence not at the instance of the applicant, have been made use of by the Enquiry Authority to reach a finding against the applicant. This has been accepted by the Disciplinary Authority also. We are of the considered view that this is absolutely irregular and has prejudiced the case of the applicant. These documents, which were not proved in accordance with law should not have been received in evidence and that, any inference drawn from these documents is misplaced and opposed to law. We further find that the Enquiry Authority as well as the Disciplinary Authority have freely made use of the statement alleged to have been made by Smt. K.R. Aruna in the presence of SW 1 and it was on that basis that they reached the conclusion that the applicant was living with Smt. K.R. Aruna and that, he was the father of the two children of Smt. K.R.Aruna. SW 1 in his deposition which is extracted above, has not spoken to the details contained in the statement of Smt. K.R. Aruna which was marked as Ex.1. Further it is settled law that any statement recorded behind the back of a person can be made use of against him in a proceedings unless the person who is said to have made that statement is made available for cross- examination, to prove his or her veracity. The Disciplinary Authority has not even chosen to include Smt. K.R. Aruna in the list of witnesses for offering her for being cross-examined for testing the veracity of the

documents exhibited as Ex.1 which is said to be her statement. Therefore, we have no hesitation in coming to the conclusion that the Eqnuiry Authority as well as the Disciplinary Authority have gone wrong in placing reliance on Ex.1 which is the alleged statement of Smt. K.R. Aruna without offering Smt. K.R. Aruna as a witness for cross-examination. The applicant's case is that the statement was recorded under coercion and duress and the finding based on this statement is absolutely unsustainable as the same is not based on legal evidence. The other documents relied on by the Enquiry Authority, as well as by the Disciplinary Authority for reaching the conclusion that the applicant and Smt. K.R. Aruna were living together and that they have begotten two children have also not been proved in the manner in which they are required to be proved."

5. Reliance is also placed by Ms. Mainee on Moni Shankar v. Union of

India and Anr. 2008(3) All India Services Law Journal 325. The

relevant portion of the judgment is reproduced as under:-

"18. The Enquiry Officer had put the following questions to the appellant:

"Having heard all the PWs, please state if you plead guilty? Please state if you require any additional documents/witness in your defence at this stage? Do

you wish to submit your oral defence or written defence brief? Are you satisfied with the enquiry proceedings and can I conclude the Enquiry?

6. Counsel thus contends that in the absence of compliance of Rule

14(18) of the CCS (CCA) Rules 1965, the enquiry is liable to be set

aside.

7. Learned counsel for the respondent contends that the petitioner had

appeared before the Enquiry Officer, the witnesses were examined and

later cross-examined by him. He was given an opportunity to lead

defence evidence. The entire enquiry was conducted in his presence.

He also submitted his reply to the chargesheet and statement of

defence. Thus, it cannot be said that the petitioner was not aware of

either the evidence produced in the matter or the principles of natural

justice were not complied with. Reliance is placed on a decision

reported in 1980 Vol. 3 SCR 179 titled Sunil Kumar Banerjee vs.

State of West Bengal and Ors. The relevant portion of the judgment is

as follows:-

"There is no substance in the contention of the appellant that the 1955 rules and not the 1969 rules were followed. As pointed out by the High Court, in the charges framed against the appellant and in the first show cause notice

the reference was clearly to the 1969 rules. The appellant himself mentioned in one of his letters that the charges have been framed under the 1969 rules. The enquiry report mentions that Shri Mukherji was appointed as an Enquiry Officer under the 1969 rules. It is, however, true that the appellant was not questioned by the Enquiry Officer under Rule 8(19) which provided as follows:

"The enquiring authority may, after the member of the services closes his case and shall if the member of the service has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the member of the service to explain any circumstances appearing in the evidence against him."

It may be noticed straightaway that this provision is akin to Section 342 of the Criminal Procedure Code of 1898 and Section 313 of the Criminal Procedure Code of 1974. It is now well established that mere non examination or defective examination under section 342 of the 1898 Code is not a ground for interference unless prejudice is established, vide, K.C. Mathew v. State of Travancore-Cochin : (1955) 2 S.C.R. 1057, Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal : (1969) 2 S.C.R. 104. We are similarly of the view that failure to comply with the requirements of

Rule 8(19) of the 1969 rules does not vitiate the enquiry unless the delinquent officer is able to establish prejudice. In this case the learned single Judge of the High Court as well as the learned Judges of the Division Bench found that the appellant was in the way prejudiced by the failure to observe the requirement of Rule 8 (19). The appellant cross-examined the witnesses himself, submitted his defence in writing in great detail and argued the case himself at all stages. The appellant was fully alive to the allegations against him and dealt with all aspects of the allegation in his written defence. We do not think that he was in the least prejudiced by the failure of the Enquiry Officer to question him in accordance with Rule 8(19).

8. Mr. Bhardwaj learned counsel for the petitioner submits that the

judgment relied upon by him is by a three-Judge Bench while the

judgment relied upon by the petitioner is by a Bench comprising of

two Judges. Moreover, the judgments sought to be relied upon by

counsel for the petitioner have not considered the earlier judgment

referred to by him.

9. We have heard the learned counsel for the parties and considered their

rival submissions. Although the judgment relied upon by

Mr.Bhardwaj is of three-Judges Bench and this judgment has not been

referred to the judgment relied upon by Ms.Mainee, however,

Ms.Mainee has handed over in Court an Office Memorandum of 18th

February, 2015. As per this Memorandum, Para 3 reads as under:-

"Rule 14(18) of CCS (CCA) Rules, 1965, provides that, "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." This is a formal action required to be taken by the inquiry officer before closing the inquiry. It has been seen that many a times this is not formally recorded and the inquiry gets vitiated. It is imperative that the inquiry is conducted strictly in accordance with the procedures prescribed."

10.The Office Memorandum issued as late as on 18th February, 2015

reiterated that Rule 14(18) of the CCS(CCA) Rules 1965 should be

complied with and noticed that in the absence of compliance of this

Rule, the enquiry gets vitiated and emphasised that the enquiry should

be conducted strictly in accordance with the procedures prescribed.

We deem it appropriate to the facts of this case, without expressing

any opinion on the merits of the matter and as agreed between the

parties to remand the matter before the Disciplinary Authority. The

Enquiry Officer, after complying with the Rule 14(18) of the CCS

(CCA) Rules 1965, shall submit a fresh report. Taking into

consideration that it is an old matter, the enquiry be completed within

four months. Since this order is passed with the consent of the parties,

it would not be treated as precedent.

11.The writ petition is disposed of.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J SEPTEMBER 15, 2015 ks