Union Of India & Anr. vs S.K.Verma
2018 Latest Caselaw 1611 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment Reserved on : March 01, 2018
%                           Judgment Delivered on : March 09, 2018

+                      W.P.(C) 1000/2015 & CM No.1762/2015 (stay)

       UNION OF INDIA & ANR.                                 ..... Petitioners
                     Through:          Ms.Mrinalini Sen Gupta,
                                       Advocate with Mr.Tanman
                                       Yadav, Advocate.

                                  versus

       S.K.VERMA                                            ..... Respondent
                            Through:   Ms.Tripta Kanojia, Advocate.

CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J.
1.     The petitioner/Union of India has invoked the writ jurisdiction
of this Court under Article 226 of the Constitution of India, impugning
the order dated 29.10.2014, passed by the Central Administrative
Tribunal in O.A. No.3836/2013. The petitioner/UOI has also prayed
for restoring the validity of three orders, all dated 25.09.2013 and
allow them to remit the inquiry against the respondent, in terms of the
said orders.
2.     The respondent herein (applicant in O.A. No.3836/2013) was
served with a memorandum of chargesheet dated 22.10.2008 and the
statement of Articles of Charge framed against him, pertaining to his




W.P.(C) No.1000/2015                                          Page 1 of 12
 unauthorized absence from duty and his absence from the Head
Quarters during the period of his suspension, without prior approval of
the competent authority. The witnesses proposed to be examined by
the Department and named in the list of witnesses were Smt.P.K.Neela
Reddy, SPS, CESTAT, Bangalore and Sh.Ahswath Narayan, Peon,
CESTAT, Bangalore. The list of documents contained the details of
seven documents to be proved during the inquiry against the charged
officer/respondent.
3.     After conducting the inquiry, the Inquiry Officer (Ms.Archana
Wadhwa, Member (Judicial) CESTAT), submitted her report on
26.12.2012 to the effect that both the charges had not been proved,
alongwith the reasons in support thereof.
4.     The Disciplinary Authority, vide its order No.A.28012/1/2013-
AD.IC (CESTAT) dated 25.09.2013, formed an opinion that a proper
inquiry had not been conducted in this case. In exercise of powers
conferred by Rule 15(1) of the CCS (CCA) Rules, 1965, the
Disciplinary Authority remitted back the inquiry report to the Inquiry
Officer, for the following reasons:-
     "(i)   Grounds for rejection of leave mentioned by
     Sh.T.K.Jayaraman, Member (T) and controlling officer of
     CO were not examined.

     (ii)   Fact about the arrest warrants issued against the
     CO during the period of absence, was either not brought to
     the knowledge of IO or not considered by the IO. Similarly,
     other material evidence against the CO was not taken into
     account by the IO.

     (iii)    As per records, no medical documents were




W.P.(C) No.1000/2015                                         Page 2 of 12
      submitted by the CO during the Inquiry, which would lend
     support to his claims. The IO did not call for such records
     during the course of the Inquiry.

     (iv)   IO has not mentioned in her report about any
     written brief filed by the Presenting Officer during the
     course of the Inquiry. Therefore, it is not clear whether the
     PO had submitted any written brief or not.

     (v)     IO in her report mentioned that the Presenting
     Officer had not advanced any evidence to counter or rebut
     the evidence produced by the CO.

     (vi)    In the light of the above facts further examination is
     required whether CO had left the Headquarters without
     obtaining permission from his controlling officer."

5.     On the same date i.e. on 25.09.2013, by two separate orders
with the same number, in exercise of powers purportedly conferred
upon it by sub-rule (2) read with sub-rule 22 of Rule 14 of the
CCS(CCA) Rules, 1965 and sub-rule 5 (c), the Disciplinary Authority
appointed a new Inquiry Officer (Mr.D.N.Panda, Member (Judicial)
CESTAT) as well as a new Presenting Officer (Sh.V.P.Pandey, Court
Master, CESTAT) in place of the earlier Presenting Officer (Sh.Rah
Kumar, SPS, CESTAT).          The inquiry was remitted back to the
aforesaid IO, for further inquiry.
6.     The aforesaid action of the petitioner/Union of India was
challenged by the respondent by filing O.A. No.3836/2013 which was
allowed by the Tribunal vide order dated 29.10.2014 and now
impugned before us in this petition.
7.     The grievance of the petitioner/UOI is that the Tribunal erred in




W.P.(C) No.1000/2015                                          Page 3 of 12
 holding that in the garb of a further inquiry, a de novo inquiry had
been ordered or that while remitting the inquiry, another Inquiry
Officer had been appointed with a motive to get a favourable report.
8.     Ms.Mrinalini Sen Gupta, learned counsel for the petitioner/UOI
has submitted that in this case, the respondent was a Group-A Officer
and the orders dated 25.09.2013 impugned in O.A.No.3836/2013,
were passed in the name of the President of India. The charges against
the respondent-employee were for his unauthorized absence from duty
and for his absence from the Head Quarters during the period of his
suspension, without prior approval of the competent authority. The
Inquiry Officer submitted the report to the Disciplinary Authority
holding that the charges had not been proved against the respondent.
The Disciplinary Authority, after going through the inquiry report and
for the reasons recorded in the order dated 25.09.2013, in exercise of
powers conferred by Rule 15(1) of the CCS (CCA) Rules, 1965 had
remitted the case for further inquiry. Merely because a new Inquiry
Officer and a new Presenting Officer were appointed vide two
separate orders of the even date, it does not have the effect of a de
novo inquiry, to obtain a motivated report.
9.     Learned counsel for the petitioner/UOI submitted that under
Rule 15(1) of CCS (CCA) Rules, 1965, the Disciplinary Authority
may, for reasons to be recorded by it in writing, remit the case to the
Inquiring Authority for further inquiry and report.     The Inquiring
Authority thereupon proceeds to hold a further inquiry according to
the provisions of Rule 14, as far as may be. She has relied on the
decision of the Supreme Court in Union of India & Ors. vs. Shashi



W.P.(C) No.1000/2015                                         Page 4 of 12
 Bhushan and Ors. reported as 2011(1) SCT 92 (P&H), in support of
her contentions.
10.    We may note that the aforementioned three orders, all dated
25.09.2013, were challenged by the respondent in O.A. No.3836/2013
and were set aside by the Tribunal by examining the scope of Rule
15(1) of CCS(CCA) Rules, 1965, for the following reasons:-
      "14. .....It is seen that the Articles of Charges against the
      Applicant was for unauthorized absence from duty and was
      his absence from the headquarters during his period of
      suspension with the prior approval of the competent
      authority. The Enquiry Officer, after a detailed enquiry in
      the matter held that those charges have not been proved.
      Under Rule 15(1) of the CCS (CCA) Rules, 1965, the
      Disciplinary Authority has the power to remit the case to
      the Inquiring Authority for further enquiry and report.
      The further enquiry to be held so is to be from the stage
      from which any infirmity in the procedure has occurred
      and not a de-novo enquiry. Such an enquiry has to be
      done by the same Enquiry Officer and not by appointing
      another Enquiry Officer. The Disciplinary Authority
      cannot go on holding enquiry against a delinquent
      employee till the desired report is given by the Enquiry
      Officer. Rule 15(1) ibid clearly says that the Disciplinary
      Authority may remit the case to the Inquiring Authority and
      not to a New Inquiring Authority. Without specifying the
      stage from which further enquiry is to be commenced or not
      entrusting the further enquiry to the same Enquiry Officer
      except for the reason that the said Enquiry Officer is not
      available or incapacitated to hold enquiry, such a
      procedure cannot be termed as a further enquiry but is a
      fresh enquiry or a de-novo enquiry. As held by the Apex
      Court in K.R. Deb‟s case (supra), there is no provision in
      Rule 15(ibid) for completely setting aside previous inquiries
      on the ground that the report does not appeal to the
      Disciplinary Authority. Further, in the said judgment, Apex




W.P.(C) No.1000/2015                                          Page 5 of 12
       Court has held that it may be possible if in a particular case
      there has been no proper inquiry because some serious
      defect has crept into the inquiry or some important
      witnesses were not available at the time of the inquiry or
      were not examined for some other reason. However, the
      reasons given by the Disciplinary Authority to remit the
      case to another Inquiring Authority are not anything to do
      with any defects crept into the previous enquiry or any
      witnesses have been omitted from examining during the
      enquiry proceedings. On the other hand, the reasons given
      by the Disciplinary Authority are either quite extraneous or
      factually incorrect....." (emphasis added)

11.    In the decision, Union of India & Ors. vs. Shashi Bhushan
and Ors. (supra) relied upon by the learned counsel for the petitioner,
the fact situation was that vide order dated 04.10.2006, the
Disciplinary Authority therein ordered for holding a de novo inquiry in
the case from the stage of inspection/supply of listed documents, as
per Annexure-III of the charge memo. On the basis of the order dated
04.10.2006 passed by the Disciplinary Authority, the Chief General
Manager Telecom, Punjab Circle, Chandigarh, in exercise of powers
conferred in sub-Rule (2) read with sub-Rule (22) of Rule 14 of the
Rules, passed an order dated 31.10.2006, replacing the Inquiry Officer
to inquire into the charges. The order of the Disciplinary Authority
was upheld for the following reasons:-

      "13. Commenting on para 12 of the judgment in K.R. Deb‟s
      case (supra) (AIR 1971 SC 1447) their Lordships of Hon'ble
      the Supreme Court in P. Thayagarajan‟s case (supra) (AIR
      1999 SC 449) has held in para 8 of its judgment as under:-

           "8. A careful reading of this passage will make it
           clear that this Court notices that if in a



W.P.(C) No.1000/2015                                            Page 6 of 12
            particular case where there has been no proper
           enquiry because of some serious defect having
           crept into the enquiry or some important
           witnesses were not available at the time of the
           enquiry or were not examined, the disciplinary
           authority may ask the enquiry officer to record
           further evidence but that provision would not
           enable the disciplinary authority to set aside the
           previous enquiries on the ground that the report
           of the enquiry officer does not appeal to the
           disciplinary authority. In the present case, the
           basis upon which the disciplinary authority set
           aside the enquiry is that the procedure adopted by
           the enquiry officer was contrary to the relevant
           rules and affects the rights of the parties and not
           that the report does not appeal to him. When
           important evidence, either to be relied upon by the
           Department or by the delinquent official, is shut
           out, this would not result in any advancement of
           any justice but on the other hand, result in a
           miscarriage thereof. Therefore we are of the view
           that Rule 27(c) enables the disciplinary authority
           to record his findings on the report and to pass an
           appropriate order including ordering a de novo
           enquiry in a case of the present nature."

     14. When we apply the principles laid down by Hon'ble the
     Supreme Court, it emerges that the disciplinary authority
     has noticed in paras 3 and 4 of its order dated 18.1.2007
     (supra) that during inquiry, the prosecution documents as
     per details in Annexure III of charge Memo have not been
     taken on record although these documents were presented
     by the Presenting Officer and inspected by the Charged
     Officer. This was regarded as procedural lapse. The
     disciplinary authority has further recorded that deposition
     of S.W. 2 and S.W. 3 recorded on 16.12.2005 are same and
     even designation have not been correctly mentioned. The
     disciplinary authority felt that the Enquiry Officer has
     conducted the enquiry in a casual manner. It is in the



W.P.(C) No.1000/2015                                             Page 7 of 12
       aforesaid context that the disciplinary authority exercised
      power under Rule 15 (1) of the Rules and ordered further
      enquiry by appointing Shri H.C. Ahuja as Enquiry Officer.
      The order passed by the Disciplinary Authority falls within
      the four corners of its power conferred by Rule 15(1) of the
      Rules and the judgments of Hon'ble the Supreme Court.
      Accordingly, it has to be concluded that on precedent,
      principle and on the anvil of statutory rules, the order
      passed by the disciplinary authority deserves to be upheld."
      (emphasis added).

12.    Reverting to the facts of the instant case, the Disciplinary
Authority vide order dated 25.09.2013, had remitted the inquiry for
the reasons given hereunder:-
                          "New Delhi, the 25th September, 2013

                         ORDER

Whereas an Inquiry under Rule 14 of CCS (CCA) Rules, 1965 was held against Sh.S.K.Verma, Assistant Registrar, CESTAT for remaining absent from duty unauthorizedly.

AND Whereas the Inquiry Officer Ms.Archana Wadhwa, Member (Judicial), CESTAT vide her Inquiry report dated 26.12.12. held both charges against the charged officer, viz. Sh.S.K.Verma, Assistant Registrar, CESTAT as „Disproved‟.

AND Whereas the competent Disciplinary Authority, after careful consideration of the facts of the case and the report submitted by the Inquiry Officer has come to the conclusion that a proper Inquiry has not been conducted in this case in view of the following reasons:

i) Grounds for rejection of leave mentioned by Sh.T.K.Jayaraman, Member (T) and controlling officer of CO were not examined.

ii) Fact about the arrest warrants issued against the CO during the period of absence, was either not brought to the knowledge of IO or not considered by the IO. Similarly, other material evidence against the CO was not taken into account by the IO.

iii) As per records, no medical documents were submitted by the CO during the Inquiry, which would lend support to his claims. The IO did not call for such records during the course of the Inquiry.

iv) IO has not mentioned in her report about any written brief filed by the Presenting Officer during the course of the Inquiry. Therefore, it is not clear whether the PO had submitted any written brief or not.

v) IO in her report mentioned that the Presenting Officer had not advanced any evidence to counter or rebut the evidence produced by the CO.

vi) In the light of the above facts further examination is required whether CO had left the Headquarters without obtaining permission from his controlling officer.

NOW THEREFORE the President, in exercise of the powers conferred by Rule 15(1) of the CCS(CCA) Rules, 1965, remits the Inquiry Report back to IO for further Inquiry, taking into consideration all the above facts."

13. The reasons given by the Disciplinary Authority for remitting the inquiry, have been dealt with and rejected by the Tribunal for the following reasons:-

"........We have also perused the departmental file. According to the Disciplinary Authority, the Enquiry Officer did not examine the grounds for rejection of leave mentioned by Shri T.K. Jayaraman, Member (T), but it was not true. Of course, the Enquiry Officer did not examine

Shri T.K. Jayaraman, Member (T) as he was not a listed witness. On the other hand, both the listed witnesses have been duly examined. The Enquiry Officer cannot create any evidence in the absence of the statements in support of the prosecution case. Again, the Disciplinary Authority held that the Enquiry Officer did not consider the fact about the arrest warrant issued to the Applicant. It was not considered because it was outside the scope of the enquiry. Further, contrary to what the Disciplinary Authority has stated the Inquiring Authority has considered the medical certificates submitted by the Applicant during the enquiry. The other ground that the Presenting Officer did not advance any evidence to counter or rebut the evidence produced by the Applicant is also wrong as the Presenting Officer can produce only those evidence which have been made available by the Disciplinary Authority and nothing else......"

14. It is not the case of the petitioner that the first Inquiry Officer (Ms.Archana Wadhwa, Member (Judicial), CESTAT) was not available or incapacitated to conduct the inquiry, when the inquiry had been remitted. From the inquiry report submitted by the first Inquiry Officer, it is clear that specific findings have been given in respect of each of the charges leveled against the respondent. We are unable to decipher any lawful reasons for the Disciplinary Authority to remit the inquiry report back to the IO for directing a further inquiry and simultaneously, for appointing some other Inquiry Officer and another Presenting Officer, despite the inquiry having been duly conducted, by giving an opportunity to both sides of leading evidence as per the list of witnesses and list of documents, annexed with the chargesheet.

15. In our opinion, the Tribunal has rightly held that such a procedure cannot be termed as a 'further inquiry' but for all effect and

purposes, a fresh inquiry or a de novo inquiry as a 'further inquiry' is required to be held from the stage at which any infirmity in the procedure would have crept in, which is not the case herein. Even such a 'further inquiry' has to be done by the same Inquiry Officer unless and until the said Inquiry Officer is unavailable or incapacitated to conduct the entire inquiry. The learned Tribunal cannot be faulted in holding that under Rule 15(1) of the CCS (CCA) Rules, 1965, the Disciplinary Authority may remit the case to the same Inquiry Officer and not to a new Inquiry Officer.

16. The procedure adopted in this case has the effect of a fresh or a de novo inquiry and not a 'further inquiry', as sought to be projected by the petitioner before the Tribunal and before this Court. The Tribunal has relied upon the decision of the Supreme Court in K.R.Deb vs. Collector, Central Excise, Shillong reported as AIR 1971 SC 1447, wherein it was held that there is no provision in Rule 15 (ibid) for completely setting aside previous inquiries on the ground that the report does not appeal to the Disciplinary Authority. We enlarge the view expressed by the Tribunal that the reasons given by the Disciplinary Authority to remit the case to another Inquiry Officer, without specifying any defect in the previous inquiry or pointing out any witnesses left to be examined during the inquiry proceedings, the reasons recorded in the orders dated 25.09.2013 for remitting the matter back for further inquiry and further, appointing another Inquiry Officer, were patently extraneous and factually incorrect.

17. For the foregoing reasons, we do not find any illegality or infirmity in the impugned judgment dated 29.10.2014, that warrants

any interference by this Court in exercise of writ jurisdiction.

18. The writ petition is accordingly dismissed, alongwith the pending application, with costs quantified as `10,000/-.

PRATIBHA RANI (JUDGE)

HIMA KOHLI (JUDGE) MARCH 09, 2018 „st‟