Delhi High Court
Mukesh Singh Bhati vs Institute Of Human Behaviour And ... on 1 September, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 01.09.2022
+ W.P.(C) 12527/2022 & CM APPL. 37870/2022 (stay)
MUKESH SINGH BHATI ..... Petitioner
Through: Ms.Sonia A. Menon, Adv. with
petitioner in person
versus
INSTITUTE OF HUMAN BEHAVIOUR AND ALLIED
SCIENCES (IHBAS) & ORS. .....
Respondents
Through: Mr.Tushar Sannu, SC, IHBAS with
Ms.Priyansha Sinha, Adv.
Ms.Avnish Ahlawat, SC, GNCTD with
Mr.N.K.Singh, Ms.Tania Ahlawat, Ms.Palak
Rohmetra, Ms.Laavanya Kaushik & Ms.Aliza
Alam, Advs. for R-2
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The petitioner, who is working with the respondent no.1 as an
Assistant Engineer (Civil) and is facing a departmental inquiry pursuant to
the chargesheet dated 16.03.2022 issued by the respondent no.1, has
approached this Court seeking the following reliefs:-
"a. Set aside/quash the charge-sheet dated 16.03.2022 as
issued by the Respondent to the Petitioner;
b. Set aside/quash the office order dated 24/30.03.2021
constituting the fact-finding committee, for being an
arbitrary exercise of power;
C. Set aside/quash order dated 22/29.07.2022 appointing
Mr. Hari Pal Singh as the IO to inquire into the charges
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as mentioned in charge-sheet dated 16.03.2022;
d. Set aside/quash Order dated 12.08.2022 passed by the
Respondent rejecting the request of the Petitioner for the
change of the 10."
2. The petitioner, on 16.02.2015, joined the respondent no.1 as an
Assistant Engineer (Civil) on deputation, and was subsequently absorbed
on the said post on 01.01.2020. He was, thereafter, on 10.03.2015, given
the additional charge of the post of officiating Executive Engineer (Civil).
3. On 06.08.2019, while working as an officiating Executive Engineer
(Civil), the petitioner was served with a Show Cause Notice by the
respondent no.1, levelling allegations against him for indulging in
demolition of RCC water over-head tanks during 2018-19 in contravention
of the estimated items/schedule of quality. An explanation was, therefore,
sought from him as to why disciplinary action should not be initiated
against him under the CCS (CCA) Rules, 1965. On 23.08.2019, the
petitioner sent a detailed reply refuting all the charges against him, and
stated that action had been taken by him strictly as per the laid down
procedure.
4. Being not satisfied with the reply submitted by the petitioner, the
respondent no.1 on 24/30.03.2021 initially appointed a two-member
Preliminary Fact-Finding Committee (PFFC), which gave its report on
09.12.2021, holding the petitioner, and two other officers, liable for lapses
during execution of the work entrusted to them. On the basis of this report,
the respondent no.1 issued a charge-sheet dated 16.03.2022 to the
petitioner, proposing an inquiry in respect of two Articles of Charges.
5. The petitioner on 18.04.2022, filed his statement of defence refuting
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both the charges, and alleging therein that the charge-sheet had been mala
fidely issued at the behest of the erstwhile Director/respondent no.3. As
the reply submitted by the petitioner was not found to be satisfactory, the
Disciplinary Authority, vide its orders dated 22/29.07.2022, appointed
respondent no.4 as Inquiry Authority (IA) and also simultaneously
appointed Dr. V.K.S. Gautam as the Presenting Officer (PO) for
conducting a departmental inquiry against the petitioner.
6. On 02.08.2022, the petitioner submitted a representation to the
respondent no.1 expressing his apprehension regarding the appointment of
Dr. Gautam as the Presenting Officer, on the ground that, while working
as a Vigilance Officer (VO), he was instrumental in initiating the PFFC
against him. The said representation, however, did not illicit any response
from the said respondent, and in the meanwhile, on 03.08.2022, the
Inquiry Officer/respondent no.4 issued a notice to the petitioner for
holding a preliminary hearing on 08.08.2022. The petitioner was also
informed that he could either engage a fellow government official or a
retired official as his defence assistant during the inquiry proceedings.
7. The petitioner then, vide his letter dated 05.08.2022, approached the
Inquiring Authority/respondent no.4, with a request for rescheduling of the
hearing, and 15 days' time to engage his defence assistant. The petitioner
claims that this communication was sent to the respondent no.4 not only
through speed post, but also through email. However, on 08.08.2022 the
respondent no.4, upon finding that the petitioner had not appeared for the
hearing, adjourned the proceedings to 16.08.2022. Soon thereafter, the
respondent no.4, on 09.08.2022, received the petitioner's communication
dated 05.08.2022, by which he had sought deferment of hearing.
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8. At this stage, the petitioner, vide his letter dated 08.08.2022,
approached the Chief Secretary, GNCTD/respondent no.2, expressing his
reservations regarding the appointment of Shri Hari Pal/respondent no.4 as
the Inquiring Authority, and requested him to set aside the said
appointment. In response to this communication addressed to the Chief
Secretary, GNCTD, the Disciplinary Authority, vide its letter dated
12.08.2022, while rejecting the request of the petitioner for change of the
Inquiry Officer, informed him that his action of directly communicating
with the Chief Secretary was in violation of the CCS (Conduct) Rules.
9. On 16.08.2022, when the inquiry proceedings were next held, the
respondent no.4, while taking note of the petitioner's letter dated
05.08.2022 received by him through speed post on 09.08.2022, stayed the
proceedings on account of the petitioner's pending representation for
change of the Inquiry Officer.
10. At this stage, the petitioner again preferred yet another
representation to the Chief Secretary on 17.08.2022, and on receiving no
reply thereto, has preferred the present petition.
11. In support of the petition, Ms. Menon, learned counsel for the
petitioner, submits that the appointment of Shri Hari Pal/the respondent
no.4, a retired Joint Secretary of the Union Public Service Commission as
the Inquiry Officer, is contrary to orders issued by the Department of
Personnel and Training (DoPT) from time to time, and is therefore, liable
to be set aside. She submits that as per the Office Memorandums (OM)
dated 15.09.2017, 25.01.2022 & 15.03.2022 issued by the DoPT, the
Inquiry Officer can either be a serving officer or a retired officer only
from the panel maintained by the Government of N.C.T of Delhi
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(GNCTD) or by the Central Government. However, in important cases a
request may be made to the CVC to depute a CDI as an Inquiry Officer.
She contends that once it is an admitted position that the respondent no.4
is neither a serving officer nor an officer from amongst the panel of retired
officers maintained by the GNCTD or by the Central Government, the
respondent no.1 could not have appointed respondent no.4 as the Inquiry
Officer.
12. She further submits that the respondent no.4, by virtue of being
appointed as the Inquiry Officer, will receive huge financial benefits, by
way of remuneration, and therefore, the respondent no.1 could not have,
without recording any reasons as to why a serving officer or a retired
officer from the panel could not be appointed as the Inquiry Officer,
straightaway appointed respondent no.4 as the Inquiry Officer. She,
therefore, prays that the appointment of the respondent no.4 as the Inquiry
Officer be set aside.
13. The next submission of Ms. Menon is that once the petitioner had
made a representation of the Chief Secretary, who is the Appellate
Authority, seeking change of the Inquiry Officer on account of bias on his
part, the said representation ought to have been decided by the Chief
Secretary, and could not have been rejected by the Disciplinary Authority.
In support of her plea, she places reliance on the OM dated 09.11.1972
issued by the Department of Personnel to contend that such a
representation is required to be considered by the Appellate Authority.
14. She finally submits that even though on 05.08.2022, the petitioner
requested the Inquiry Officer to defer hearing to enable him to engage a
defence assistant, for which he required 15 days' time, the respondent
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no.4, with a biased mind, on the next date of hearing i.e. on 08.08.2022,
by ignoring the communication dated 05.08.2022, recorded that none was
present on behalf of the petitioner and while adjourning the matter to
16.08.2022, observed that in case the petitioner did not appear on the next
date, he would proceed ex parte with the inquiry. She contends that the
approach of the Inquiry Officer is evidently biased and, therefore, prays
that he be removed, and the petitioner be granted appropriate time to
engage a defence assistant.
15. On the other hand, Mr.Sannu, learned counsel for the respondent
no.1 defends the rejection of the petitioner's request for change of the
Inquiry Officer and submits that neither Rule 14 of the CCS (CCA) Rules,
nor any of the OMs relied upon by the petitioner, mandate that only a
serving officer or any retired officer from the panel should be appointed as
an Inquiry Officer. He submits that there is no provision or circular which
prohibits the Disciplinary Authority from appointing any competent
retired officer as an Inquiry Officer. Insofar as the petitioner's request to
defer the hearing to enable him to engage a defence assistant is concerned,
neither the respondent no.4 nor the Disciplinary Authority have any
objection to the said request. He submits that merely because in the order
sheet dated 08.08.2022 no reference was made to the petitioner's email
communication dated 05.08.2022, it cannot be said that the Inquiry Officer
was acting in a biased manner. Moreover, as is evident from the order
dated 16.08.2022, the Inquiry Officer duly referred to this request of the
petitioner for grant of 15 days' time to engage a defence assistant, and
stayed the proceedings to await the outcome of the representations made
by him. The petitioner has however, not engaged a defence assistant till
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now, even though the inquiry proceedings will now recommence as the
petitioner's request for change of the Inquiry Officer stands rejected by the
Disciplinary Authority on 24.08.2022.
16. He submits that similarly, the petitioner's insistence that his
representation addressed to the Chief Secretary, GNCTD/respondent no.2
regarding changing the Inquiry Officer should have been decided by the
said respondent itself, and not by the Disciplinary Authority, is also
without any basis. The Chief Secretary is the Appellate Authority and is
not required to deal with issues which the Disciplinary Authority is
competent to deal with. In the present case, the petitioner's grievance is
against the Inquiry Officer and, therefore, the same has been considered
by the Disciplinary Authority who has, after considering the matter,
rightly rejected the same. He contends that the petitioner's reliance on OM
dated 09.11.1972 to contend that a request for change of Inquiry Officer
must be considered by the Appellate Authority, is also meritless, and,
therefore, prays that the writ petition be dismissed.
17. Having considered the submissions of the learned counsel for the
parties, I find absolutely no merit in any of the submissions of the learned
counsel for the petitioner. In order to appreciate the first plea of the
petitioner that the Inquiry Officer must be a serving officer or a retired
officer from the panel maintained by the GNCTD or by the Central
Government, it would be apposite to note the relevant extracts of the OMs
dated 15.09.2017, 25.01.2022 and 15.03.2022 relied upon by the
petitioner. I may first note the OM dated 15.09.2017, which reads as
under:
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F.No.142/40/2015-AVD.I
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
New Delhi Dated, the 15th September, 2017
OFFICE MEMORANDUM
Subject: Procedure for empanelment of retired officers
as the Inquiry Officers for conducting Departmental
Inquiries- reg.
The undersigned is directed to state that the issue of
utilizing the services of retired officers for conducting
departmental inquiries had been under consideration of
the Department. It has now been decided that panels of
retired officers from the Ministries/Departments under
Government of India and PSUs would be created and
maintained by the respective Cadre Controlling
Authorities for conducting Departmental Inquiries against
the delinquent officials.
2. Procedure for empanelment of retired officers as the
Inquiry Officers-Panels of retired officers not below the
rank of Deputy Secretary in Central Government and
equivalent officer in the State Governments/PSUs to be
appointed as the Inquiry Officer for the purpose of
conducting departmental inquiries would be maintained
level/rank wise and place-specific by each cadre
controlling authority where its offices are located.
3.Validity of the panel- The panel of the retired officers
created for the purpose of appointing Inquiry Officers for
conducting departmental inquiry will be valid for a period
of three years. The respective Cadre Controlling
Authority will ensure that a panel of retired Inquiry
Officers is available with them.
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4. Following are the eligibility conditions for appointment
of willing retired officers as the Inquiry Officers to
conduct departmental inquiries:
(i) Retired officers who are willing to serve as Inquiry
Officer.
(ii) He/she should not have been penalized in a
Disciplinary Proceeding case
(no penalty in DP or prosecution in criminal case)
5. The respective Cadre Controlling Authority will
immediately take necessary action for inviting
applications from willing and eligible retired officers to
serve as the Inquiry Officer for conducting departmental
inquiry. In this regard, a format for inviting applications
is annexed.
6. A three-member committee consisting of Joint
Secretary level officers including CVO of the concerned
Ministry/Departments/PSUs would be constituted by the
respective cadre controlling authority. The other two
members can be from the same Ministry/Department or
from the attached or sub ordinate office. After receipt of
willingness of the retired officers, names of the officers
will be screened by the committee so constituted. The
formation of panel will be a continuous and ongoing
process. The DA will decide on the appointment of the IO
based on willingness for a case, experience in the sector
and status of residence. Committee constituted for making
panels of retired officers as the Inquiry Officer has to
keep in mind that applications of retired officers willing to
serve as an Inquiry Officer should be scrutinized carefully
to ensure that the applicant meets the eligibility criteria.
7. The number of disciplinary cases assigned to an
Inquiry Officer may be restricted to 8 cases in a year, with
not more than 4 cases at a time.
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8. Terms and conditions for appointment of retired
officers as the Inquiry Officer.
The designated Inquiry Officer shall require to give an
undertaking as follows:
(i) that he/she is not a witness or a complainant in the
matter to be inquired into or a close relative or a known
friend of the delinquent Government officer. A certificate
to this effect will be obtained from the Inquiry Officer with
respect to every inquiry and placed on record.
(ii )shall maintain strict secrecy in relation to the
documents he/she receives or information/data collected
by him/her in connection with the inquiry and utilize the
same only for the purpose of inquiry in the case entrusted
to him/her.
9. No such documents/information or data shall be
divulged to anyone during the Inquiry or after
presentation of the Inquiry Report. All the records,
reports etc. available with the Inquiry Officer shall be
duly returned to the authority which appointed him/her as
such, at the time of presentation of the Inquiry Report.
10. The Inquiry Officer shall conduct the inquiry
proceedings at a location taking into account the
availability of records, station/place where the
misconduct occurred as well as the convenience of the
witnesses/ PO etc. Video Conferencing should be utilized
to the maximum extent possible to minimize travel
undertaken by the 1O/PO/CO. The cadre controlling
authorities will facilitate necessary arrangements for the
Video Conferencing.
11. The Inquiry Officer shall undertake travel for
conducting inquiry unavoidable (in circumstances) with
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the approval of an authority as may be nominated by the
concerned Ministry/Department.
12. The Inquiry Officer shall submit the inquiry report
after completing the inquiry within 180 days from the date
of his/her appointment as the Inquiry Officer. Extension of
time beyond 180 days can be granted only by the
Authority as may be prescribed.
13. The rates of honorarium and other allowances
payable to the Inquiry Officer will be as under:-
Items Category Time taken to complete Rate per case (in rupees)
the inquiry proceedings
Honorarium 'I' Where the number of 80% of monthly basic
witnesses cited in the pension drawn
charge sheet is more
than 10
'II' Where the number of 60% of monthly basic
witnesses cited in the pension drawn
charge sheet are between
6-10
'III' Where the number of 50% of monthly basic
witnesses cited in the pension drawn
charge sheet is less than
6
Transport Rs. 40,000/- per case
Allowance Subject to the condition that the for outstation journey,
the actual expenses for Air/Railway AC I will be
reimbursed in addition. ( subject to the approval of the
competent authority and for outstation journey by Air
journey will be performed by Air India in the cheapest
of the entitled class a per their status before retirement
and tickets will have to be arranged through authorized
/permissible sources as per | MoF's guidelines;,. If
journey is not performed by Air India, prior approval
for travelling in airlines other than Air India would be
required as per the prescribed procedure; Similarly
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traveling by train would also be permissible/restricted
as per the far of class entitled to the officer before
retirement.
Secretarial 'I' Where the number of Rs.40,000/-
Assistance witnesses cited in the
charge sheet is more than
10
'II' Where the number of Rs.30,000/-
witnesses cited in the
charge sheet are between
6-10
'III' Where the number of Rs.20,000/-
witnesses cited in the
charge sheet is less than
6
50% will be paid on submission of the Inquiry Report.
Remaining amount will be paid within 45 days. In case it
is not possible to proceed with the matter due to stay by
courts etc., the Inquiry Officer may be discharged from
his/her duties and payment of honorarium and other
allowances will be made on pro rata basis.
14. Before the payment is received by the Inquiry Officer,
it will be his/her responsibility to ensure that:-
(a) All case records and inquiry report (two ink signed
copies) properly documented and arranged is handed
over to the office of Disciplinary Authority.
(b) The report returns findings on each of the Articles of
Charge which has been enquired into should specifically
deal and address each of the procedural objections, if
any, raised by the charged officers as per the extant rules
and instructions.
(c) There should not be any ambiguity in the inquiry
report and therefore every care should be taken to ensure
that all procedures for conducting departmental inquiries
have been followed in accordance with the relevant
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rules/instructions of disciplinary and appeal Rules to
which the delinquent Government officials are governed.
15. Letter regarding engaging a retired officer as the
Inquiry Officer will only be issued with the approval of
the Disciplinary Authority of the Ministry/Department/
Office concerned.
16. A review of every empanelled Inquiry Officer will be
done after receipt of2 inquiry reports where adherence to
time lines and the procedure and quality of work will be
assessed by the concerned Ministry. Subsequent
allocation of work may be done only after such
evaluation. The services of Inquiry Officers whose
performance is not upto the mark will be terminated with
the approval of appointing authority.
17. Any issue arising out of this O.M. between the
Inquiring Officer and the Disciplinary Authority will be
decided by the Secretary ,DoPT whose decisions hall be
final and binding on both parties.
18. These guidelines are issued for internal use of DoPT
and other Cadre controlling authorities may adopt the
same with suitable amendments.
Sd/-
Under Secretary to the Govt. of India
18. The relevant extract of OM dated 25.01.2022 may now be noted:-
No. 142/01/2021-AVD.I.C.I
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training
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********
North Block, New Delhi
Dated the 25 January, 2022
OFFICE MEMORANDUM
Sub: Inviting panel of officers to be nominated for appointment
of Inquiry Officer for conducting departmental inquiries
against the delinquent officials in the Ministry of Health
& Family Welfare(MoHFW) - reg.
The undersigned is directed to circulate OM No.C-
14017/03/2016-Vig. dated 03rd January, 2021 received
from Ministry of Health & Family Welfare regarding
inviting panel of officers to be nominated for appointment
of Inquiry Officer for conducting departmental inquiries
against the delinquent officials in the Ministry of Health
& Family Welfare (MoHFW). The last date of receipt of
application has now been extended to 15th February,
2022.
2. In case of any further clarification, applicants are
requested to contact the concerned Ministry/Department
which has advertised the circular.
Sd/-
Under Secretary to the Govt. of India
19. The OM dated 15.03.2022 reads as under:
No.142/40/2015-AVD.I
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
Room No.222D, North Block,
New Delhi, dated February, 2022
15th March 2022
Signature Not Verified
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OFFICE MEMORANDUM
Sub: Empanelment of retired officers as the Inquiry
Officers for conducting Departmental inquiries against
the delinquent officials -reg.
The undersigned is directed to state that Department of
Personnel &Training is in the process of constituting a
panel of Inquiry Officers for conducting Departmental
Inquiries against officers whose Cadre Controlling
Authority is Department of Personnel & Training, based
on the terms and conditions prescribed vide this
Department's OM of even number dated 15th Septembers,
2017 (copy attached) and subsequent amendments, if any.
2. The eligible retired officers (not below the rank of
Deputy Secretary)from the Ministries/Departments under
the Government of India, who are willing to be empaneled
as Inquiry Officers, may apply in the format annexed in
the said OM dated 15th September, 2017 and send their
applications to the Under Secretary. (AVD.IC.I),
Department of Personnel& Training, Room No.222-D,
North Block, New Delhi - 110001 latest by30th April,
2022.
Sd/-
Under Secretary to the Govt. of India
20. From a perusal of the aforesaid OMs, what emerges is that panels
of retired officers willing to serve as Inquiry Officers are required to be
maintained by all the Cadre Controlling Authorities, and for this purpose
applications are to be invited on a regular basis from retired officers.
However, neither these OMs nor Rule 14 of the CCS (CCA) Rules in any
manner suggest that the department must in all cases engage only a
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serving officer or a retired officer from the panel maintained by the
GNCTD or by the Central Government. The fact that such panels of
retired government officers exist, and could have been used by the
respondent no.2 is not in dispute. In my view, the creation of the panel is
only meant to assist the Disciplinary Authority to appoint a suitable retired
officer but cannot be, in any manner be treated as an embargo on the right
of the Disciplinary Authority to appoint an officer other than that of these
panels. I am therefore unable to accept the petitioner's plea that these OMs
require only serving officers or retired officers from these panels to be
appointed as Inquiry Officers for conducting departmental inquiries.
21. Now coming to the petitioner's next plea that his representation for
change of Inquiry Officer addressed to the Chief Secretary, GNCTD was
required to be considered not by the Disciplinary Authority, but by the
Chief Secretary himself as the Appellate Authority. Since the petitioner in
support of this plea has relied on OM dated 09.11.1972, issued by the
Department of Personnel, it would be apposite to note the relevant extracts
of this OM. The same read as under:
(No.39/40/70-Est ...)
Government of India/Bharat Sarkar Cabinet
Secretariat/Mantrimandal Sachivalaya Department of
Personnel/Karmik Vibhag
115 DELHI-110001, the 9th November, 1972
18 Karka, 1894
OFFICE MEMORANDUM
Subject:-Departmental Inquiries against Government
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servants appointment of Inquiring Authority.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
3. A suggestion was made by the Staff Side that when a
representation by the delinquent official against the
appointment of a particular Inquiry Officer on grounds of
bias, is rejected by the Disciplinary Authority, it should be
open to the delinquent official, to prefer an appeal to the
Appellate Authority. It was pointed out that though there
was no provision in the CCS (CCA) Rules for filling an
appeal against an order appointing a person as Inquiry
officer in a disciplinary proceeding, such an order could,
nevertheless, be reviewed under the said Rules, The Staff
Fide desired that in view of this position, the Inquiry officer
should stay the proceedings if an application for review is
filed by the delinquent official. It was agreed that obviously
this should be done and the attention of the competent
authorities could be drawn to the need for staying the
proceedings once a review petition vas submitted in such
cases.
4. It has accordingly been decided that whenever an
application is moved by a Government servant against
whom disciplinary proceedings are initiated under the CCS
(CA) Rules against the inquiry officer on grounds of bias,
the proceedings should be stayed and the application
referred, alongwith the relevant material, to the appropriate
reviewing authority for considering the application and
passing appropriate orders there on. It has also been
decided to reemphasize to all Ministries/ Departments the
following instructions contained in paragraph 5 of H.H.A.
O.M. No. 39/40/52-Ests, dated the 4th October, 1952, on the
subject to expeditious and better disposal of departmental
proceedings against Government servants:
i) In each Ministry or Department specified officer or
officers of appropriate rank shall be nominated and
earmarked for the purpose of conducting all the
departmental inquiries arising within that Ministry/
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Department.
ii) As soon as occasion arises for taking up such an inquiry,
the nominated officer will be relieved of his normal duties to
such extent as may be necessary to enable him to devote full
and careful attention to the completion of the enquiries and
the submission of his report. During this time the work of
which the officer is relieved may be distributed amongst
other officers.
5. The Ministry of Finance etc. are accordingly requested to
bring to the notice of the various disciplinary authorities the
need for staying the proceedings till such time as the review
petition, if any, submitted by a Government servant against
the appointment of the Inquiry Officer is disposed of, as
agreed to in the Committee of the National Council vide
paragraph 3 above. They are also requested to keep In view
the instructions contained in the Ministry of Home Affairs
(now Department of Personnel) 0.M.io. 6/26/60-Ests (A)
dated 16th February, 1761 and No. 39/40/52-Ests dated the
4th October, 1952 referred to the appointment of Inquiry
officers in disciplinary proceedings.
22. A bare perusal of the aforesaid OM shows that the petitioner's plea
that a representation for change of Inquiry Officer must be decided by
Appellate Authority, is wholly without any basis. The said OM only
records a suggestion made by the staff representative that, even though
there is no such provision in the CCS (CCA) Rules, whenever a request
for change of Inquiry Officer on account of bias is rejected by the
Disciplinary Authority, it should be open to the charged employee to
prefer an appeal to the Appellate Authority. This suggestion was however,
not accepted as is apparent from paragraphs 4 and 5 of the OM. On the
other hand, what the OM envisages is that when a request for change of
Inquiry Officer is considered by the Disciplinary Authority, the inquiry
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proceedings must necessarily be stayed. In the present case, it is not the
petitioner's case that inquiry proceedings were not stayed by the Inquiring
Authority during the pendency of his representations before the
Disciplinary Authority. I am therefore, unable to accept the petitioner's
plea that the decision was taken by the Department of Personnel that a
request for change of the Inquiry Officer must always be dealt with by the
Appellate Authority. Even otherwise, there is no gainsaying that it is both
in the interest of the employee and the employer, that the proceedings in
the departmental inquiry are conducted with promptitude and no undue
delays are caused. If every application made by delinquent officials were
to be decided by the Appellate Authority, it would lead to unnecessary
delay in the conclusion of the departmental proceedings, and would in fact
be counterproductive to the very purpose of holding a departmental
inquiry. I, therefore, do not find any merit in the petitioner's submission
that his representation for change of Inquiry Officer must have been
decided by the Chief Secretary, GNCTD/respondent no.2, being the
Appellate Authority
23. Now coming to the petitioner's final plea that he has not been
granted extension of time to engage a defence assistant. In order to
appreciate this stand of the petitioner, it would be apposite to first note the
relevant extracts of the order dated 16.08.2022 passed by the Inquiring
Authority on the petitioner's request for being granted more time to
engage a defence assistant. The same reads as under:
"DAILY ORDER SHEET.NO.2
OFFICE OF THE INQUIRING AUTHORITY, IMBAS,
DELHI-110095
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DATE: 16.8.2022
DAILY ORDER SHEET
Sub- Departmental Inquiry proceedings into the charges
framed against Shri MS Bhati, Asstt Engineer (Civil),
IHBAS, under Rule 14 of CCS CCA Rules, 1965.
In response to the Notice dated 8.8.2022 to Shri MS Bhati,
CO, as also in accordance with the Daily Order Sheet dated
8.8.2022, the Preliminary Hearing proceedings were held
by the undersigned on 16.8.2022 10.30 AM in the room
adjacent to the Room of PS to Director/HBAS, Academic
Block. The CO Shri MS Bhati did not present himself in the
preliminary hearing despite a telephonic call around 11 AM
from PS to Director regarding today's hearing of the case.
It is hereby brought on record that the CO has sent the
following two written communications to the undersigned by
speed post/mail:
1. Letter dated 5.8.22 addressed to me seeking 15 days time
so as to enable him to appoint a defence assistant on his
behalf and reschedule the preliminary hearing accordingly.
This letter was received by the undersigned on 9.8.22
through speed post whereas the first preliminary hearing
was held already on 8.8.22 fixing next date of hearing at
10.30 AM on 16.8.2022.
2. Letter dated 8.8.22 addressed to the Chief Secretary,
GNCT Delhi endorsing a copies thereof to Director/HBAS
and the undersigned regarding removal of the undersigned
as Inquiring authority. This letter was received by the
undersigned on 10.8.22 wherein he has stated that he has no
faith in the undersigned and has stated that some other
officer from the panel of retired government officers as
inquiry officers maintained by GNCT Delhi may be
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appointed as inquiring authority.
In view of the above two written communications from the
CO, Director/HBAS being the competent Disciplinary
Authority in the case may like to take a view on the same
and issue directions in the matter and consider passing
appropriate orders thereon. The Inquiry is therefore stayed
by the undersigned for the time being till receipt of further
orders/ directions from the Disciplinary/ Reviewing
Authority in terms of Ride 14(22) of CCS CCA Rides,
1965."
24. A perusal of the aforesaid order shows that the Inquiry Officer has
in fact been absolutely fair and the moment he learnt about the
representation made by the petitioner, as was expected from him, the
inquiry proceedings were duly stayed by him. It is only after 24.08.2022,
when the Disciplinary Authority rejected the petitioner's request for
change of the Inquiry Officer, that the inquiry proceedings are, as stated
by learned counsel for the respondent, once again being revived. By
adjourning the proceedings on 08.08.2022, the Inquiring Authority has,
therefore, effectively granted more time to the petitioner to engage a
defence assistant, than what he had prayed for by him. The petitioner has
however, instead of engaging a defence assistant, filed this petition only
with a purpose of somehow delaying the proceedings.
25. The writ petition being meritless is dismissed, with no order as to
costs.
(REKHA PALLI)
JUDGE
SEPTEMBER 1, 2022
kk
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