Gauhati High Court
Page No.# 1/35 vs Tapan Das on 9 April, 2021
Page No.# 1/35
GAHC010063452020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2229/2020
THE UNION OF INDIA AND 3 ORS.
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF DEFENCE,
SOUTH BLOCK, NEW DELHI- 110011
2: THE CONTROLLER GENERAL OF DEFENCE ACCOUNTS
GOVT OF INDIA
MIN OF DEFENCE
DEFENCE ACCOUNTS DEPTT
ULAN BATOR ROAD
PALAM DELHI CANTONMENT
PIN- 110010
3: THE CONTROLLER OF DEFENCE ACCOUNTS
GUWAHATI
DEFENCE ACCOUNTS DEPTT
MIN OF DEFENCE
GOVT OF INDIA
UDAYAN VIHAR
NARENGI
GUWAHATI
PIN- 781171
KAMRUP (M) DISTRICT
ASSAM
4: THE ASSTT OF CONTROLLER DEFENCE ACCOUNTS DEPTT
MIN OF DEFENCE
GOVT OF INDIA
UDAYAN VIHAR
NARENGI
GUWAHATI
PIN- 781171
KAMRUP METROPOLITAN DISTRICT
ASSA
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VERSUS
TAPAN DAS
S/O- LATE BAPURAM DAS, R/O- DHARAPUR, P.O- DHARAPUR, P.S- AZARA,
DIST- KAMRUP (M), ASSAM, PIN- 781017
:: BEFORE ::
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MR. JUSTICE MIR ALFAZ ALI
For the petitioners : Mr. R.K.D. Choudhury, A.S.G.I.
For the respondent : Mr. N. Dutta, Senior Advocate,
: Mr. P. Mahanta, Advocate
Date of hearing : 05.01.2021, 19.01.2021, 25.01.2021, 05.02.2021,
: 11.02.2021 and 25.02.2021.
Date of judgment : 09.04.2021.
JUDGMENT & ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. R.K.D. Choudhury, the learned A.S.G.I. for the petitioners. Also
heard Mr. N. Dutta, learned senior counsel, assisted by Mr. P. Mahanta, learned counsel for
the respondent.
2) At the insistence of the learned counsel/ senior counsel appearing for the
respective parties, the matter has been heard at the "admission" stage.
3) The legality of the judgment and order dated 20.12.2019, passed by the
learned Central Administrative Tribunal, Guwahati Bench, Guwahati (herein after referred to
as the "learned Tribunal" for brevity) in O.A. No. 40/425/2018 has been assailed by the
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petitioners in this writ petition filed under Article 226 of the Constitution of India. By the
impugned order, the learned Tribunal had directed the petitioners to reinstate the respondent
in service forthwith, however, by granting liberty to the petitioners to consider imposition of
lesser punishment proportionate to the lapse alleged to have been committed by the
respondent.
4) Bereft of details, for the purpose of this order, it would be relevant to
mention that at the relevant time, the respondent was discharging his duty as the Senior
Auditor in the establishment of Controller of Defence Accounts, Guwahati (hereinafter
referred to as 'CDA' for brevity) under the Ministry of Defence. Certain explanation was called
from the respondent and on considering his reply, the CDA had served a Memorandum of
Charges dated 05.10.2015 to the respondent, with the following enclosures, viz., Articles of
Charges (Annexure-I), a statement of the imputations of misconduct in support of each article
of charge (Annexure-II), list of documents (Annexure-III), list of documents (Annexure-IV).
The respondent submitted his written statement of defence on 16.10.2015. Thereafter, vide
order dated 23.12.2015, an Inquiry Officer was appointed to enquire into the charges. In the
disciplinary proceeding, inquiry was conducted and the Inquiry Officer submitted his report on
30.05.2016, wherein it was held that the Article I, II and III as proved and Article IV as not
proved. Thereafter, the respondent had submitted his parawise reply dated 06.07.2016 to the
charges framed by the Inquiry Officer. The Disciplinary Authority, after considering the Inquiry
Report dated 30.05.2016, written reply dated 06.07.2016, passed an order dated 12.08.2016,
thereby holding that prima facie it appears that large scale financial irregularities were
involved in the act of the charged official and the Inquiry Officer has held the charges as
proved, the finalization of the inquiry proceeding had become inconclusive and that to ensure
that the disciplinary case in respect of the respondent is disposed of as quickly as possible
and for the sake of natural justice it had become utmost necessary to prove the charges on
the basis of material evidence, i.e. bank account statement of the respondent, his spouse and
dependent child for the period from 18.06.2012 to 31.07.2014 verifying the entries therein
and accordingly, the Disciplinary Authority directed that in terms of Rule 15(1) of the Central
Civil Services (Classification, Control and Appeal) Rules, 1965 [hereinafter referred to as "CCS
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(CCA) Rules" for brevity] that a further inquiry in the case may be held by the Inquiry Officer
as regards to the Article of Charges against the respondent.
5) The respondent had submitted his representation dated 22.08.2016 against
the proposed fresh inquiry and requested the Assistant CDA to review his case
sympathetically. The said represented was rejected by letter dated 23.08.2016 as misleading
and baseless in the belated stage and as there was no substance in it and the respondent
was asked to extend his full cooperation in the inquiry proceeding. The respondent submitted
another representation dated 21.09.2016 before the Disciplinary Authority and by letter dated
06.10.2016, the officials of CDA was discouraged to make unnecessary correspondence as
the Disciplinary Authority would take final decision after careful consideration of final inquiry
report keeping in view all the substance and technicalities in mind. Nonetheless, the
respondent submitted another representation dated 05.12.2016 before the CDA, which was
not responded to. The Supplementary Inquiry Report was submitted by the Inquiry Officer,
wherein a finding was recorded to the effect that the respondent had received undue
gratification from suppliers/ individuals and had not maintained absolute integrity and acted
in a manner unbecoming of a Government servant and it was held that the charges was
proved under Article IV. Thereafter, the respondent had submitted his representation against
the daily order no. 10 dated 14.12.2016, wherein the Disciplinary Authority was informed of
his previous representation dated 05.12.2016 and the said authority was requested to hold
the proceeding dated 14.12.2016 as null and void and to consider his representation dated
05.12.2016. Thereafter, the respondent had submitted his appeal dated 10.07.2017 under
Rule 23 of the CCS (CCA) Rules, 1965. The Controller General of Defence Accounts, Delhi
Cantt., vide appellate order dated 09.03.2018, rejected the appeal, being devoid of merit.
6) The aggrieved respondent had approached the learned Tribunal and assailed
the order dated 17.05.2017, passed by the Disciplinary Authority and order dated 09.03.2018,
passed by the Appellate Authority and inter-alia, prayed for reinstate the respondent to his
original post and also to treat his dismissal period as on duty. The learned Tribunal held that
the order dated 12.08.2016 passed by the Disciplinary Authority, directing further inquiry, was
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not permissible under the law and the said order was set aside. It was also held that the
punishment imposed by the Disciplinary Authority, as upheld by the Appellate Authority was
held to be shockingly disproportionate considering the gravity of offence and it was held that
it had shocked the conscience of the learned Tribunal and accordingly, it was held that the
punishment of dismissal of service was not sustainable and therefore, the impugned orders
dated 17.05.2017 and 09.03.2018 were set aside and quashed. The petitioners herein were
directed to reinstate the respondent forthwith. However, liberty was granted to the petitioners
to consider imposition of lesser punishment proportionate to the lapses alleged to have
committed by the respondent.
7) The learned ASGI has submitted that the learned Tribunal had scrutinized
the disciplinary order as if it was an appellate authority. By referring to the provisions of Rule
15 of the CCS (CCA) Rules, it is submitted that the said Rule permitted the Appellate
Authority to hold further inquiry as it had disagreed with the finding returned on Charge No.
IV. It is also submitted that the impugned order passed by the learned Tribunal was not
sustainable because there was no discussion on Charge nos. I, II and III and the learned
Tribunal had not interfered with the finding on the said three charges, yet it was held that the
punishment was disproportionate. It is submitted that while ordering re-inquiry on Charge No.
IV, the respondent was given full opportunity to participate in the proceeding. However, the
respondent adopted delay tactics by submitting representations one after the other and in the
inquiry proceeding, the respondent took adjournment and left and the Inquiry Officer had no
option but to proceed with the hearing. Moreover, it is submitted that the respondent was
accosted with his own bank account statement, which he did not dispute and that the said
bank account statement revealed receipt of more than Rs.14.00 lakh from various suppliers.
Thus, on the basis of proof that the respondent had obtained undue gratification from
suppliers/ individuals, which substantiated the written statement dated 29.07.2014, given by
the then A.A.O. (Assistant Accounts Officer) and therefore, the Inquiry Officer held that the
respondent had violated the provisions of Rule 3(1)(i), (iii) and Rule 13 of CCS (Conduct)
Rules, 1964. Accordingly, the Inquiry Officer concluded that the charge framed under Article-
IV of the Memorandum dated 23.12.2015 was established. It is submitted that thereafter vide
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letter dated 01.12.2016, the further hearing was fixed before the Inquiry Officer on
14.12.2016, but despite service of notice, the respondent did not appear and participate in
the proceeding. The finding of the Inquiry Officer on 14.12.2016 was to the effect that the
bank statement of account was shown to the respondent, who had admitted that the same
belonged to him and that the said account disclosed receipt of large sum of money and that
the said statement further disclosed that a total of 33 entries of cash deposit were made in
the account of the petitioners amounting to Rs.5,36,800/- and it was concluded that the
charge framed under Article-IV of the Memorandum dated 23.12.2015 was established.
8) Thus, while summing up, the learned ASGI has submitted that the learned
Tribunal had scrutinized the disciplinary order as if it was an appellate authority and
moreover, though the learned Tribunal did not interfere with the finding on Charge no. I, II
and III, it had interfered with the punishment by holding that the punishment was
disproportionate and in this regard, it was also submitted that the Tribunal could not have
interfered with the punishment awarded, and ought to have remanded the matter back to the
Disciplinary Authority. It is further submitted that the respondent had admitted that the bank
statement shown to him was of his account and that the said statement clearly disclosed
receipt of huge payment received from contractors, which was nothing but a gross
misconduct and therefore, the learned Tribunal is deemed to have ignored material evidence
and arrived at a erroneous conclusion and thereby interfered with the disciplinary order.
9) In support of his submissions, the learned ASGI has referred to the following
case citations, viz., (i) State of Bihar Vs. Phulpari Kumari & Ors. [1] (ii) State Bank of India Vs.
Mohammad Badruddin [2], (iii) R. Mohajan Vs. Shefali Sengupta [3], (iv) T. Sudhakar Prasad
Vs. Govt. of Andhra Pradesh & Ors. [4] (v) The Govt. of A.P. Vs. B. Ashok Kumar [5] (vi)
Punjab National Bank Vs. Kunj Behari Misra, (1998) 7 SCC 84 [6].
10) The learned senior counsel for the respondent has submitted that it is too
well settled that the Tribunal has powers similar to that of the High Court while adjudicating a
matter before it. Hence, if the punishment was found shocking to its conscience of
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disproportionate, it was justified for the learned Tribunal to interfere with the punishment. It
is submitted that the sanction to procure was from the GOC and after items were purchased,
the bills were sent for scrutiny to the auditor. As per the inquiry, the sanction by the GOC was
irregular. Therefore, if there was no proceeding against the GOC and others who had dealt
with the matter, the respondent could not have been singled out and punished with order of
dismissal. It is submitted that as per his instruction, the procedure followed was that the
GOC, who was the competent authority had taken a decision to purchase and issued a
sanction order. Thereafter, supply was made and the bills were processed for payment and in
that connection, the bills were sent for scrutiny by the auditor and as no mistake was noticed,
the bill goes to the AAO, FAO and GAO who process the bills and prepare a payment order
and thereafter, the accounts department issued the cheque for payment. Moreover, it is
submitted that as the highest authority over the respondent had issued the sanction order, it
was not necessary for him to make an inquiry if the sanction order was irregular or not, which
is beyond his duty. It is submitted that the defence of the respondent was that he did not
have knowledge of computers and IT and that it was never proved that the mistake allegedly
committed by the respondent had caused loss, as such, the punishment of dismissal was
disproportionate. Moreover, it is submitted that the respondent was an auditor and he was
not the authority to pass the bill or to make payment.
11) It is submitted that the CCS (CCA) Rules was a complete Code and the
procedure of inquiry is prescribed in Rule 14 and that while conducting re-inquiry on Charge
no. IV, the said Rule 14 was totally violated because the respondent, being the charged
officer, could not have been asked to produce document and be a witness against himself.
Moreover, it is submitted that vide order dated 12.08.2016, the disciplinary authority had
recorded that the Inquiry Report was forwarded to the respondent in terms of the CCS (CCA)
Rules, intimating him to make representation in writing to the disciplinary authority and that
the respondent had submitted his representation dated 06.07.2016, which was considered.
However, it was held that it prima facie appeared that large scale financial irregularities was
involved in the act of the charged officer and that the Inquiry Officer had held the charge to
be proved, yet it was held that the finalization of inquiry proceeding had become inconclusive
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and therefore, it was held that it had become utmost necessary to prove the charges on the
basis of material evidence i.e. bank account statement of the respondent, his spouse and
dependent child for the period from 18.06.2012 to 31.07.2014 verifying the entries therein.
Thus, by referring to the scheme of Rule 15 of CCA (CCS) Rules, it is submitted that having
followed the procedure of Rule 15(2), it was incumbent on part of the disciplinary authority to
follow Rules 15(3) and 15(4) and it could not have resorted to Rule 15(1). It is further
submitted that the respondent was not put to notice about inclusion of any new document or
list of witness in the Memorandum containing Articles of Charges no. IV and therefore, there
was a clear non- adherence to the provisions of Rule 14(3) read with Rule 15(1) of the CCA
(CCS) Rules. However, when the respondent had protested, vide letter dated 06.10.2016, he
was discouraged not to represent and it was stated that his contention would be considered
in the final report.
12) It is submitted that it was a matter of record that in course of the
proceedings held on 29.06.2019, the Inquiry Officer had permitted the respondent to leave
and after he had left, the proceeding was continued after deliberation between the Inquiry
Officer and the Presenting Officer and thereafter, the Presenting Officer had produced the
bank account which was accepted as an evidence and held to be proved, even without
examining any witness to prove the said document. It is submitted that save and except the
bank account statement of the respondent, the respondent had produced all other material in
this writ petition. In this regard, it is submitted that the bank account statement was not
admissible in evidence because it did not contain certificate as required under Bankers Books
Evidence Act, 1891. Accordingly, it is submitted that the respondent was not given any
opportunity to explain any entry entered in the said bank account statement.
13) In support of his submissions and in order to counter the cases cited by the
learned ASGI, the learned senior counsel for the respondent has referred to the following
cases, viz., (i) State of Bihar Vs. Phulpari Kumari & Ors. [7] (ii) Chief Executive Officer, Krishna
District Cooperative Central Bank Ltd. & Anr. Vs. K. Hanumantha Rao & Anr. [8] (iii) State
Bank of Mysore & Ors. Vs. M.C. Krishnappa[9], (iv) Jagjit Singh Vs. State of Haryana [10] (v)
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Administrator, Union Territory of Dadra & Nagar Haweli Vs. Gulabhia M. Lad[11] (vi)
Bongaigaon Refinery & Petrochemicals Co. Ltd. Vs. Girish Chandra Sarmah[12] (vii) Dev
Singh Vs. Punjab Tourism Development Corpn. Ltd.[13] (viii) Union of India Vs. K.D.
Pandey[14] (ix) U.P. State Road Transport Corporation Vs. Mahesh Kumar Mishra[15] (x)
The Govt. of A.P. Vs. B. Ashok Kumar, (supra) (xi) Union of India Vs. B.C. Chaturvedi[16] (xii)
L. Chandra Kumar Vs. Union of India & Ors.[17] (xiii) Union of India Vs. S.A. Abbas [18] (xiv)
Union of India Vs. Parma Nanda[19] (xv) Ranjit Thakur Vs. Union of India[20] (xvi) Bhagat
Ram Vs. State of H.P. & Ors.[21] (xvii) Ramchandra Keshav Adke Vs. Govind Joti
Chavare[22] (xviii) K.R. Deb Vs. Collector of Central Excise, Shillong[23] (xix) Laxmi Devi
Sugar Mills[24] (xx) Anupam Nath Vs. Union of India & Ors.[25].
14) The Article of Charges against the petitioner were as follows:-
I. That the said Shri Tapan Das while serving as Sr. Auditor while serving in SC-IV
section of M.O. CDA Guwahati has shown utter negligence and passed a high value
bill pertaining to Hqrs 57 Mtn Div contingent Bill No. 57116/P/2012-13/02/GS(IT)
dated 29.11.2012 amounting to Rs.10.97 lac (Rupees Ten Lac and Ninety Seven
Thousand) without any proper scrutiny which has caused loss to the Govt
exchequer. Details of which are enclosed at Annexure-II.
Thus by his above act of misconduct Shri Tapan Das, SA, A/C No. 8334143 has
failed to carry out basic checks as required and found negligent towards his duties
thus conducted in a manner unbecoming of a government servant thereby
violating the provisions of Rule 3(1) (ii) & (iii) of CCS (Conduct) Rules, 1964.
II. That the said Shri Tapan Das, SA, A/C. No. 8334143, while serving as Seniority
Auditor in Accounts section of M.O. CDA Guwahati was involved himself in gross
irregularities, unethical practices and gross violation of orders of the higher
authorities. As it has been verified from the records that despite his being posted
out from the SC-IV section w.e.f. 24.01.2013 to Accounts Section of MO CDA
Guwahati large number of bills of SC-IV section mentioned in Annexure- III were
processed by him in the month of March, 2013 which is in violation of SC-IV
section order No. 04 of 13.02.2013 although the bills were allotted to the task
holder of SC-IV section.
While asked he could not quote any bona fide Office Order/ authority under which
he has passed these bills. While passing the bills it has also been observed that
the FIFO system has not been maintained by him anywhere. The details of which
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are enclosed at Annexure-II.
Thus by his above act of misconduct, Shri Tapan Das, SA, A/C No. 8334143 has
failed to maintain integrity in his official dealings. By subverting the orders of his
superiors in an unauthorized way he has been doing all these wrongdoing and
thus has been providing benefit to the firms. Thus he concluded in a manner
which definitely questions his integrity which violates the provisions of Rule 3(1) (i)
of CCS (Conduct) Rules, 1964.
III. That the said Shri Tapan Das, SA, A/C No. 8334143 while as Senior Auditor in
Accounts section passed a large numbers of bills pertaining to SC-IV Section of
M.O. CDA Guwahati in an unauthorized manner without any office order and while
reviewing such bills it has been observed that despite of huge audit observations
these bills have been processed and passed without following the guidelines which
are required to be resorted to while carrying out proper audit and scrutiny only to
give undue benefit to certain to certain suppliers. The details of which is enclosed
in Annexure-II.
Thus by his above act of misconduct Shri Tapan Das, SA, A/C No. 8334143 has
indulged himself in unethical practice of collusion with certain suppliers. By doing
this he has given undue benefit to the suppliers and also involved himself in
obtaining undue gratification from suppliers as substantiated the fact from the
statement of Sh R V Sharma, AAO A/C No. 8320091 thereby violating the
provisions of Rule 3(1) (i) (ii) & (iii) of CCS (Conduct) Rules, 1964 and Rule 13 of
CCS (Conduct) Rules, 1964 and Rule 13 of CCS (Conduct) Rules, 1964.
IV. That the said Shri Tapan Das, SA, A/C No. 8334143 while serving as SC-IV
Section was involved in taking undue Gift(either in kind or cash) from certain
vendors as it has been revealed from the statement of AAO SC-IV Section. This is
a serious charge and violates the provision contained in CCS(Conduct) Rules,
1964.
Thus by his above act of misconduct Shri Tapan Das, SA, A/C No. 8334143 has
alleged to have indulged himself in unethical practice of taking undue gratification
and also involved himself in obtaining undue gratification from suppliers as
substantiated from the statement of Sh R V Sharma, AAO A/C No. 8320091,
thereby violating the provisions of Rule 3(1) (i), (iii) and Rule 13 of CCS (Conduct)
Rules, 1964.
15) From the nature of argument submissions made by the learned ASGI and the
learned senior counsel for the respondent, the following point of determination arises for
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decision of the Court:-
i. Whether there was any aberration of procedure in course of the
departmental proceeding and whether it vitiated the impugned order dated
12.08.2016, passed by the Disciplinary Authority?
ii. Whether the bank statement of the respondent was duly proved in
accordance with law?
iii. Whether the Article of Charge No. IV had been proved in accordance with
law?
iv. Whether the impugned judgment and order dated 20.12.2019, passed by
the learned Tribunal is liable to be interfered with?
16) As per the Inquiry report on 30.05.2016, wherein it was held that the Article
I, II and III was proved and that Article IV was not proved. Thereafter, the Disciplinary
Authority, after considering the Inquiry Report dated 30.05.2016 and written reply dated
06.07.2016, passed the following order no. AN/1B/D/139/T Das dated 12.08.2016:-
ORDER
WHEREAS, disciplinary proceedings in terms of Rule 14 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965 were initiated against Shri
Tapan Das, A/C No. 8334143 in the office of the CDA Guwahati on the charged
based on the allegations set out in the Memorandum No. AN/1B/D/139/T Das
dated 05.10.2015.
AND WHEREAS, Shri Tapan Das A/C. No. 8334143 having denied the charges,
Shri RVS Phungreihor, IDAS, the then ACDA was appointed vide this office order
No. AN/IB/139/T Das dated 23.12.2015 as the Inquiry Officer to inquire into the
said charges. The Inquiry Officer, Shri RVS Phungreihor, IDAS, the then ACDA has
completed the inquiry and submitted his report on 30.05.2016. The Inquiry Report
thereafter was forwarded to Charged Official, in terms of Rule of Central Civil
Services (Classification, Control and Appeal) Rules, 1965, intimating him to make
any representations/ submission in writing to the Disciplinary Authority.
AND WHEREAS, the Charged Official submitted his written representation
dated 06.07.2016. The undersigned, having carefully gone through the records of
inquiry and the representation of the charged official, finds that Shri Tapan Das, SA
has explained various points in his self defence and requested the Disciplinary
Authority to drop the charges hold by Inquiry Officer against him and exonerate
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him from all the charges.
AND WHEREAS, prima facie it appears that large scale financial irregularities
were involved in the act of the charged official and the Inquiry Officer has hold the
charges as proved, the finalization of the inquiry proceeding had become
inconclusive.
AND WHEREAS, to ensure that the disciplinary case in respect of Shri Tapan
Das, A/C. No. 8334143 is disposed of as quickly as possible and for the sake of
natural justice it has become utmost necessary to prove the charges on the basis
of material evidence, i.e. Bank Account Statement of the above charged official,
his spouse and dependent child for the period from 18.06.2012 to 31.07.2014
verifying the entries therein.
NOW, THEREFORE, the undersigned hereby directs, in terms of Rule 15(1) of
the said Rules, that a further inquiry in the case may be held by Shri RVS
Phungreihor IDAS, DCDA as stated in the foregoing Para as regards to the Article
of charges against Shri Tapan Das, A/C No. 8334143 .
17) It would be appropriate to refer to Rule 15 of the CCS (CCA) Rules, 1965
provides as follows:-
"15. Action on the inquiry report:
(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons
to be recorded by it in writing remit the case to the inquiring authority for further
inquiry and report and the inquiring authority shall thereupon proceed to hold the
further inquiry according to the provisions of Rule 14, as far as may be.
(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the
report of the inquiry, if any, held by the Disciplinary Authority or where the
Disciplinary Authority is not Inquiring Authority, a copy of the report of the
Inquiring Authority together with its own tentative reasons for disagreement, if
any, with the findings of Inquiring Authority on any article of charge to the
Government servant who shall be required to submit, if he so desires, his written
representation or submission to the Disciplinary Authority within fifteen days,
irrespective of whether the report is favourable or not to the Government servant.
(a) In every case where it is necessary to consult the Commission, the Disciplinary
Authority shall forward or cause to be forwarded to the Commission for its
advice:
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(i) a copy of the report of the Inquiring Authority together with its own
tentative reasons for disagreement, if any, with the findings of Inquiring
Authority on any article of charge; and
(ii) comments of Disciplinary Authority on the representation of the
Government servant on the Inquiry report and disagreement note, if any
and all the case records of the inquiry proceedings.
(b) The Disciplinary Authority shall forward or cause to be forwarded a copy of the
advice of the Commission received under clause (a) to the Government
servant, who shall be required to submit, if he so desires, his written
representation or submission to the Disciplinary Authority within fifteen days,
on the advice of the Commission.
(4) The Disciplinary Authority shall consider the representation under sub-rule (2)
and/or clause (b) of sub-rule (3), if any, submitted by the Government servant and
record its findings before proceeding further in the matter as specified in sub-rules
(5) and (6).
(5) If the Disciplinary Authority having regard to its findings on all or any of the articles
of charge is of the opinion that any of the penalties specified in clause (i) to (iv) of
Rule 11 should be imposed on the Government servant, it shall, notwithstanding
anything contained in Rule 16, make an order imposing such penalty.
(6) If the Disciplinary Authority having regard to its findings on all or any of the articles
of charge and on the basis of the evidence adduced during the inquiry is of the
opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11 should
be imposed on the Government servant, it shall make an order imposing such
penalty and it shall not be necessary to give the Government servant any
opportunity of making representation on the penalty proposed to be imposed."
18) It is seen from the order dated 12.08.2016, quoted herein before, that upon
receipt of the Report from the Inquiry Officer, the Disciplinary Authority had taken recourse to
Rule 15(2) and 15(4) of the said CCS (CCA) Rules. Thereafter, recourse to Rule 15(1) of the
Rules was taken. The learned ASGI could not show that the procedure as adopted was
permissible. From the scheme of Rule 15 of the said CCA(CCS) Rules, it appears that after
having taken recourse to Rule 15(4), the Disciplinary Authority ought to have finally decided
the matter on the basis of evidence available on record. In this regard, the Court finds
support from the case of Dhiman Singha Vs. State of Tripura[26], wherein the Division Bench
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of the High Court of Tripura had held as follows:-
"10. Rule 15(2) deals with a different situation. This contemplates a situation
where on the evidence on record and without any further evidence being recorded
the disciplinary authority is of the view that the finding recorded by the inquiring
officer exonerating the delinquent official is against the evidence of law. In such a
case, the disciplinary authority is directed to indicate and give its prima facie or
tentative reasons for disagreeing with the report of the inquiring authority and
then communicate the reasons to the delinquent official giving him a chance to put
forth his case and answer the queries of the disciplinary authority.
11. Thereafter, the disciplinary authority is required not only to consider the
inquiry report but also it's own tentative reasoning as well as the reply given by
the delinquent official. After considering all three the disciplinary authority has a
right to form his own opinion on the basis of the evidence. This does not envisage
the holding of any fresh inquiry but only on the basis of the evidence already
recorded by the inquiring officer the action is to be taken."
19) From the Statement of Articles of charges, it is not in dispute that the only
document which was relied in respect of Article of Charges No. IV was the written statement
of Shri R.V. Sharma, AAO, A/C No. 8320091 dated 29.07.2014, however, in the list of witness
by whom the Articles of Charges No. IV framed against the respondent was proposed to be
sustained, it is mentioned as "NIL". The learned ASGI has not been able to show that either
vide impugned order dated 12.08.2016, or at any subsequent point of time the Statement of
Articles of Charges was amended so as to include (i) the bank statement of the respondent,
his spouse and dependent child in the list of documents and supplied to the respondent in
course of the departmental inquiry, or (ii) to include in the list, name of any witness proposed
to be examined to sustain the allegations contained in Article of Charges No. IV.
20) In pursuance to the order dated 12.08.2016, the next sitting of the
Departmental Inquiry was held on 22.08.2016 in respect of Articles of Charge No. IV. On the
said date, the respondent had submitted an application dated 20.08.2016, addressed to the
Branch Manager, SBI, Guwahati University Branch to provide bank statement of his bank
account no. 10243217015 (salary account) for the period from 18.06.2012 to 31.07.2014 and
the Inquiry Officer was informed that the statement would be produced on the next date. He
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had further informed that his spouse had refused to produce her bank account details and
that his dependent child had no bank account. The Presenting Officer then showed the
respondent a statement of his account no. 200824899110 with SBI Madgharia, Noonmati
Branch, which was replied by the respondent in the affirmative and the respondent was
shown the said statement for verification and the respondent denied to have a copy. Thus, it
is seen that the Presenting Officer had in his custody the purported bank account statement
of the respondent without being included as a document to prove Article of Charge No. IV.
The learned ASGI has not been able to cite any provision in the CCS(CCA) Rules or any case
law to show that without examining any witness, the Presenting Officer could have introduced
a document which was not cited in respect of Articles of Charge No. IV. The learned ASGI has
also not been able to cite the provisions of any Act, Rules, or case law on the point that in
Disciplinary Inquiry, the charged officer can be compelled to produce documents against his
interest and become a witness against himself.
21) As per record of proceeding dated 14.12.2016, the respondent did not appear
in spite of receipt of notice of hearing. However, the Inquiry Officer and the Presenting
Officer, after deliberation, decided to place the findings based on material evidence, i.e. bank
statement of account no. 200824899110 of the respondent with SBI Madgharia, Noonmati
Branch and finding was recorded to the effect that as per item no. 7 and 8 of the proceedings
held on 22.08.2016, the C.O. after verification stated that the account no. 200824899110
belonged to him and that from the statement shown to the respondent, transactions relating
to some individuals/ firms involving huge amounts during the period 15.03.2012 to
25.07.2014 have been observed and after quoting the entries, it was held that from the
evidence the respondent had received/ obtained undue gratification from suppliers/
individuals in general and in particular from M/s. Diods & Semi Conductor, which substantiates
the statement given by R.V. Sharma, AAO in his written statement dated 29.07.2014. It was
further held that the respondent had violated the provisions of Rule 3(1)(i), (ii) and (iii) and
Rule 13 of CCS (Conduct) Rules, 1964. Accordingly, it was concluded that the charge framed
under Article IV of Memorandum No. AN/1B/D/139/T Das dated 23.12.2015 is established.
Page No.# 16/35
22) On a perusal of the order dated 12.08.2016, as extracted herein before, it is
seen that the Disciplinary Authority had accepted the Inquiry Report without any
disagreement with the finding on Article of Charge No. IV, rather, the Inquiry Report was
forwarded to the respondent as per Rule 15(2) of CCS (CCA) Rules, 1965. Thus, the said
order does not contain any reason to justify further inquiry under Rule 15(1) of the said CCS
(CCA) Rules. Thus, the order dated 12.08.2016 for further inquiry by invoking Rule 15(1) of
the said CCS (CCA) Rules, 1965 is not sustainable either on facts or in law and accordingly, it
is held that the quashing the supplementary inquiry report dated 20.01.2017 by the learned
Tribunal as null and void cannot be faulted with. It would be appropriate to now refer to the
cases cited by the learned senior counsel for the respondent.
23) In the case of Moni Shankar Vs. Union of India[27], the Supreme Court of
India had held as follows:-
"17. The departmental proceeding is a quasi-judicial one. Although the
provisions of the Evidence Act are not applicable in the said proceeding, principles
of natural justice are required to be complied with. The courts exercising power of
judicial review are entitled to consider as to whether while inferring commission of
misconduct on the part of a delinquent officer relevant piece of evidence has been
taken into consideration and irrelevant facts have been excluded therefrom.
Inference on facts must be based on evidence which meet the requirements of
legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on
the premise that the evidence adduced by the Department, even if it is taken on
its face value to be correct in its entirety, meet the requirements of burden of
proof, namely, preponderance of probability. If on such evidences, the test of the
doctrine of proportionality has not been satisfied, the Tribunal was within its
domain to interfere. We must place on record that the doctrine of
unreasonableness is giving way to the doctrine of proportionality."
24) In the case of K.D. Pandey14, the Supreme Court of India had deprecated
further inquiry in the absence of any reasons stating the drawbacks of the earlier inquiry.
Similarly, in the case of K.R. Deb23, it had been held by the Supreme Court of India that
earlier inquiry cannot be set aside merely on the ground that the report of the Inquiry Officer
does not appeal to the Disciplinary Authority. The Division Bench of this Court in the case of
Page No.# 17/35
Anupam Nath25, this Court had held as follows:-
"23. In view of the above discussions, we are of the considered opinion that
the order imposing penalty on the petitioner on the basis of the proceedings,
where no prosecution witness was examined and which was based on no
evidence, cannot receive judicial imprimatur and the same cannot be sustained.
Taking that view, the order dated 30.07.2013 imposing penalty of removal of the
petitioner from service, the appellate order dated 20.11.2013, and the order dated
21.05.2015, passed by the CAT, Guwahati Bench, in O.A. No. 040/00047/2014 are
set aside and quashed. The petitioner shall be re-instated in service forthwith ."
25) Accordingly, in light of the discussions above, the point of determination no.
(i) is answered by holding that there was aberration of procedure in course of the
departmental proceeding and that having taken recourse to Rules 15(2) and 15(4) of the said
CCS (CCA) Rules, the Disciplinary Authority could not have taken recourse to Rule 15(1)
thereof and therefore, the impugned order dated 12.08.2016, insofar as it relates to further
inquiry on Article of Charge No. IV was fatal and such action had vitiated the impugned order
dated 12.08.2016.
26) The point of determination no. (ii) is taken up now. In this regard, it is seen
that on 22.08.2016, the Inquiry Officer had questioned the respondent as to whether the
bank account statement was of his account. The respondent had answered in the affirmative.
The said statement was a mere admission that the statement belonged to his bank account.
It is seen that the record of proceeding/ order dated 14.12.2016 does not reflect that any
witness had tendered the said bank statement as evidence, as such, in the absence of any
witness having been examined to prove the bank account statement, it can safely be
presumed that the Presenting Officer had assumed the role of producing and presenting the
purported bank statement of account of the respondent evidence against the respondent.
There is nothing on record to show that (i) when the respondent was shown the copy of the
bank account statement, he was put to notice that the bank statement of account would be
used as evidence against him, (ii) that the Inquiry Officer had examined the original ledger of
the SBI, (iii) or that the said bank statement of account contained a certificate under the
Page No.# 18/35
Bankers' Books Evidence Act, 1891. It is reiterated that the herein before named R.V. Sharma,
AAO, who had submitted his written statement in respect of Article of Charges No. IV, was
the listed witness in connection with Article of Charge No. I, II and III, but he was not the
listed witness in respect of Article of Charge No. IV.
27) In the various orders/ record of proceeding available on record, the learned
ASGI could not show that either the Inquiry Officer or the Presenting Officer had asked the
respondent any question on the entries contained in the bank account statement.
Nonetheless, the finding recorded by the Inquiry Officer in his Supplementary Inquiry Report
forwarded on 05.01.2017 on Article of Charges No. IV to the effect that (i) "... From the
evidence adduced above, prima facie it appears that the C.O. has received/ obtained undue
gratification from suppliers/ individuals in general and in particular from M/s. Diods & Semi
Conductor which substantiates the statement given by Shri RV Sharma, AAO in his written
statement dated 29.07.2014. As such, the C.O. has violated the provisions of Rule 3(1)(i), (iii)
and Rule 13 of the CCS (Conduct) Rules, 1964 " and finding to the effect that " From the
above, it is evident that Shri Tapan Das, SA/8334143 has indeed received undue gratification
from suppliers/ individuals and has not maintained absolute integrity and acted in a manner
unbecoming of a Government Servant. I hold that the charge framed under Article- IV is
proved." It is too well settled that mere admission of a document in evidence would not
amount to or constitute proof of its contents. The mere admission of document in evidence
does not amount to its proof. In other words, mere marking of exhibit on a document does
not dispense with its proof, which is required to be done in accordance with law. If needs any
authority on the point, the case of L.I.C. of India Vs. Ram Pal Singh Bisen[28].
28) The Court is conscious that in departmental proceeding, Evidence Act, 1872
may not be strictly followed. In this regard, we may refer to the case of Pravin Kumar Vs.
Union of India[29]. It would be relevant to quote para-26 thereof:-
"26. These principles are succinctly elucidated by a three-judge Bench of this
Court in B.C. Chaturvedi16 in the following extract:
"12. Judicial review is not an appeal from a decision but a review of the
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manner in which the decision is made. Power of judicial review is meant to
ensure that the individual receives fair treatment and not to ensure that the
conclusion which the authority reaches is necessarily correct in the eye of the
court. When an inquiry is conducted on charges of misconduct by a public
servant, the Court/Tribunal is concerned to determine whether the inquiry
was held by a competent officer or whether rules of natural justice are
complied with. Whether the findings or conclusions are based on some
evidence, the authority entrusted with the power to hold inquiry has
jurisdiction, power and authority to reach a finding of fact or conclusion. But
that finding must be based on some evidence. Neither the technical rules of
Evidence Act nor of proof of fact or evidence as defined therein, apply to
disciplinary proceeding. When the authority accepts that evidence and
conclusion receives support therefrom, the disciplinary authority is entitled to
hold that the delinquent officer is guilty of the charge. The Court/Tribunal in
its power of judicial review does not act as appellate authority to re-
appreciate the evidence and to arrive at its own independent findings on the
evidence. The Court/Tribunal may interfere where the authority held the
proceedings against the delinquent officer in a manner inconsistent with the
rules of natural justice or in violation of statutory rules prescribing the mode
of inquiry or where the conclusion or finding reached by the disciplinary
authority is based on no evidence. If the conclusion or finding be such as no
reasonable person would have ever reached, the Court/Tribunal may interfere
with the conclusion or the finding, and mould the relief so as to make it
appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is
presented, the appellate authority has coextensive power to reappreciate the
evidence or the nature of punishment. In a disciplinary inquiry, the strict
proof of legal evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot be permitted to be
canvassed before the Court/Tribunal. In Union of India vs. H.C. Goel, (1964)
4 SCR 718, this Court held at p.728 that if the conclusion, upon consideration
of the evidence reached by the disciplinary authority, is perverse or suffers
from patent error on the face of the record or based on no evidence at all, a
writ of certiorari could be issued."
29) In the present case in hand, there is nothing on record that the Inquiry
Officer had examined either the officer of the bank or the original ledger of the bank. As
already indicated above, there is nothing on record to show that the bank account statement
Page No.# 20/35
as produced by the Presenting Officer was duly certified under Bankers' Books Evidence Act,
1891. Therefore, by introducing evidence, the Presenting Officer is deemed to have become a
witness, but without record of his examination by the Inquiry Officer. In any specific order to
the effect, the Court is unable to accept the strenuous submissions made by the learned ASGI
that the proceeding of 22.08.2016 and 26.09.2016 amounted to put the respondent to notice
that the copy of his bank account statement could be used as evidence against the
respondent. As per the record of proceeding/ order dated 26.09.2016, it is seen that the
respondent had made a prayer before the Inquiry Officer that since he had submitted a letter
dated 21.09.2016 to his Disciplinary Authority, he was unable to sit in the hearing and he was
allowed to leave. However, after allowing the respondent to leave, the Inquiry Officer and the
Presenting Officer, after due deliberation, had decided to place the finding based on material
evidence, i.e. bank statement of account no. 20082489110 of the respondent and it was
recorded as under:-
Findings
· The C.O. as per item no. 5 of the proceeding held on 22.08.2016 agreed to
produce his bank account statement in respect of his SBI Guwahati, University
Branch, Saving A/C No. 10243217015 but he has not produced the same.
· As per item No. 7 and 8 of the proceedings held on 22.08.2016 the C.O. after
due verification stated that the Account Number 2282489110 being maintained at
SBI Madgharia, Noonmati Branch, Guwahati belongs to him. From this account
number a bank statement which was shown to the C.O. during the above
proceedings the following transactions relating to some individual/ firms involving
huge amounts during the period 15.03.2012 to 25.07.2014 have been observed on
different dates as shown below:-
Sl. No. Date Name of Depositor Amount(Rs)
1. 15.03.2012 Diods & Semi Conductor 5000
2. 19.08.2012 -do- 50000
3. 27.08.2012 -do- 50000
4. 10.9.2012 -do- 40000
5. 13.09.2012 -do- 10000
6. 17.10.2012 -do- 70000
7. 19.10.2012 -do- 37000
Page No.# 21/35
8. 13.03.2013 -do- 100000
9. 26.04.2013 -do- 50000
10. 23.05.2013 -do- 100000
11. 28.04.2012 B Deb 25000
12. 24.05.2012 Sunil 25000
13. 24.05.2012 Santosh 25000
14. 22.06.2012 Harbans Lal 32000
15. 06.07.2012 IB Traders 50000
16. 24.07.2012 SK Enterprise 25000
17. 27.02.2013 S Das 2000
18. 31.07.2013 Parlay Engg Constr 150000
19. 03.10.2013 -do- 500000
20. 09.04.2013 Jai Durga Enterprises 40000
21. 06.02.2014 Prakash Gupta 20000
It is further observed from the above given bank statement that a total of 33
cases of cash deposit by self had been made on different dates amounting to Rs.
536800/- from different places.
From the evidence adduced above, prima- facie it appears that the C.O. has
received/ obtained undue gratification from suppliers/ individuals in general and in
particular from M/S Diods & Semi Conductor which substantiates the statement
given by Shri RV Sharma, AAO in his written statement dated 29.07.2014. As such
the C.O. has violated the provisions of Rule 3(1) (i), (iii) and Rule 13 of CCS
(Conduct) Rules, 1964.
30. The respondent was not shown the bank statement on 26.09.2016, but he
was shown the bank statement on 22.08.2016, but with no questions put to him on various
entries contained therein. The respondent was not put to notice that the bank statement
would be used against him for the purpose of further inquiry on Article of Charge No. IV.
Thus, the learned senior counsel for the respondent has been successfully able to
demonstrate that (i) the Inquiry Officer had proceeded with the inquiry behind the back of
the respondent, (ii) the respondent was not put to notice, that the inquiry would proceed in
Page No.# 22/35
his absence on 26.09.2016, after he leaves, (iii) that no witness had tendered any additional
evidence in form of bank statement on record, (iv) that the Presenting Officer was holding a
copy of the statement of bank account, yet, the Article of Charge No. IV was neither
amended so as to refer to the said bank statement as material to prove the charges nor any
witnesses was named to prove the said charge in course of further inquiry.
31. Having noticed that there is nothing on record to show that the bank account
statement had been exhibited in regular inquiry. In absence of information in the charge
sheet that such statements would be relied upon against the respondent, it was not
permissible for the Inquiry Officer to rely upon the same. It is no longer res integra that
natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict
adherence to the principle is required, whenever civil consequences follow as a result of the
order passed. In the case of Nirmala J. Jhala Vs. State of Gujarat[30] the Supreme Court of
India had held that natural justice is a universal justice. Thus, under the facts of this case,
the non- observance of the rule of natural justice is found to result in sufferance of prejudice
by the respondent.
32. The Inquiry Officer as well as the Disciplinary Authority had also failed to
consider that the Article of Charge No. IV, inter-alia, was to the effect that the respondent
was involved in taking undue gift either in cash or in kind from certain vendors. However, the
learned ASGI could not show that in course of the Disciplinary Inquiry, any particular entry
was proved to be receipt of undue gift as because no person who had allegedly given the gift
was examined to prove the allegation. The learned ASGI has also not been able to show any
provision of any Act, Rules or case law on the point by which an entry in bank account can be
presumed to be undue gift. The Court is conscious of the fact that in departmental inquiry,
principles of preponderance of probability applies and in this connection, with profit, relevant
portion of paragraphs 16 and 17 of the case of Nirmala J. Jhala30 (as extracted from 2013
STPL 10574 SC) are quoted below:-
"16. In High Court of Judicature at Bombay through its Registrar v.
Udaysingh & Ors, AIR 1997 SC 2286, this Court held :
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"The doctrine of `proof beyond doubt' has no application. Preponderance of
probabilities and some material on record would be necessary to reach a
conclusion whether or not the delinquent has committed misconduct."
17. In view of the above, the law on the issue can be summarised to the
effect that the disciplinary proceedings are not a criminal trial, and in spite of the
fact that the same are quasi-judicial and quasi- criminal, doctrine of proof beyond
reasonable doubt, does not apply in such cases, but the principle of
preponderance of probabilities would apply. The court has to see whether there is
evidence on record to reach the conclusion that the delinquent had committed a
misconduct. However, the said conclusion should be reached on the basis of test of
what a prudent person would have done. ..."
33. But in the present case in hand, owing to a total lack of evidence, even by
applying the principles of preponderance of evidence, presumption that the respondent was
involved in taking gift, either in cash or in kind, cannot be drawn. The learned ASGI had
earnestly submitted that it was not permissible for the High Court to shift through evidence
on record. There is no grievance with the said well established principle, but to find out
whether or not the finding reached by the Inquiry Officer as well as by the Disciplinary
Authority was perverse, an over-view of the evidence available on record has to be examined,
which does not amount to a thorough re-examination of evidence on record. In the present
case in hand, from the manner in which evidence was taken on record is sufficient to indicate
that the Report dated 05.01.2017 of the further inquiry as well as the impugned order of
punishment dated 17.05.2017, suffer from patent error on the face of the record, and is
based on no evidence at all. The consequent order dated 09.03.2018, passed by the
Appellate Authority, thereby rejecting the appeal is not found sustainable on facts and in law.
Therefore, the interference by the learned Tribunal cannot be faulted with. Thus, the point of
determination no.(ii) is decided in the negative and against the petitioners by holding that the
bank statement of the respondent was not duly proved in accordance with law and
resultantly, the Article of Charge No. IV could not be proved.
34. It may be mentioned that the learned ASGI had made a very strenuous two
fold argument. Firstly, it was submitted that the learned Tribunal had not interfered with the
Page No.# 24/35
finding returned on Article of Charges No. I, II and III and yet held that the punishment was
disproportionate. Secondly, it was submitted that the learned Tribunal had determined the
matter as well as punishment imposed on the respondent as if it was sitting in appeal over
the departmental proceeding and that at best, it would have only remanded the matter back
to the departmental authorities to re-determine the punishment. In this regard, we may refer
to the case of B.C. Chaturvedi16 decided by a Coram of three Judges, and paragraph 18, 21
and 23 to 25 are quoted below:-
18. A review of the above legal position would establish that the disciplinary
authority, and on appeal the appellate authority, being fact-finding authorities have
exclusive power to consider the evidence with a view to maintain discipline. They
are invested with the discretion to impose appropriate punishment keeping in view
the magnitude or gravity of the misconduct. The High Court/Tribunal, while
exercising the power of judicial review, cannot normally substitute its own
conclusion on penalty and impose some other penalty. If the punishment imposed
by the disciplinary authority or the appellate authority shocks the conscience of the
High Court / Tribunal, it would appropriately mould the relief, either directing the
disciplinary / appellate authority to reconsider the penalty imposed, or to shorten
the litigation, it may itself, in exceptional and rare cases, impose appropriate
punishment with cogent reasons in support thereof.
21. I am in respectful agreement with all the conclusions reached by
learned brother Ramaswamy, J. This concurring note is to express my view on two
facets of the case. The first of these relates to the power of the High Court to do
"complete justice", which power has been invoked in some cases by this Court to
alter the punishment/ penalty where the one awarded has been regarded as
disproportionate, but denied to the High Courts. No. doubt, Article 142 of the
Constitution has specifically conferred the power of doing complete justice on this
Court, to achieve which result it may pass such decree or order as deemed
necessary; it would be wrong to think that other courts are not to do complete
justice between the parties. If the power of modification of punishment/penalty
were to be available to this Court only under Article 142, a very large percentage
of litigants would be denied this small relief merely because they are not in a
position to approach this Court, which may, inter alia, be because of the poverty of
the concerned person. It may be remembered that the framers of the Constitution
permitted the High Court to even strike down a parliamentary enactment, on such
a case being made out, and we have hesitated to concede the power of even
substituting a punishment/penalty, on such a case being made out. What a
difference? May it be pointed out that Service Tribunals too, set up with the aid of
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Article 323-A have the power of striking down a legislative act.
22. The aforesaid has, therefore, to be avoided and I have no doubt that a
High Court would be within its jurisdiction to modify the punishment/penalty by
moulding the relief, which power it undoubtedly has, in view of long lines of
decisions of this Court, to which reference is not deemed necessary, as the
position is well settled in law. It may, however, be stated that this power of
moulding relief in cases of the present nature can be invoked a High Court only
when the punishment/penalty awarded shocks the judicial conscience.
23. It deserves to be pointed out that the mere fact that there is no
provision parallel to Article 142 relating to the High Courts, can be no ground to
think that they have not to do complete justice, and if moulding of relief would do
complete justice between the parties, the same cannot be ordered. Absence of
provisions like Article 142 is not material, according to me. This may be illustrated
by pointing out that despite there being no provision in the Constitution parallel to
Article 137 conferring power of review on the High Court, this Court held as early
as 1961 in Shivdeo Singh's case (AIR 1963 SC 1909), that the High Court too can
exercise power of review, which inheres in every court of plenary jurisdiction. I
would say that power to do complete justice also inheres in every court, not to
speak of a Court of plenary jurisdiction like of High Court. Of course, this power is
not as wide which this Court has under Article 142. That, however, is a different
matter.
24. What has been stated above may be buttressed by putting the matter a
little differently. The same is that in a case of dismissal, Article 21 gets attracted.
And, in view of the inter-dependence of fundamental rights, which concept was
first accepted in the case commonly known as Bank Nationalisation case, (1970) 3
SCR 530, which thinking was extended to cases attracting Article 21 in Maneka
Gandhi v. Union of India, AIR 1978 SC 597, the punishment/penalty awarded has
to be reasonable; and if it be unreasonable, Article 14 would be violated. That
Article 14 gets attracted in a case of disproportionate punishment was the view of
this Court in Bhagat Ram v. State of Himachal Pradesh, (1983) 2 SCC 442 also.
Now if Article 14 were to be violated, it cannot be doubted that a High Court can
take care of the same by substituting in appropriate cases, a punishment deemed
reasonable by it.
25. No. doubt, while exercising power under Article 226 of the Constitution,
the High Courts have to bear in mind the restraints inherent in exercising power of
judicial review. It is because of this that substitution of High Court's view regarding
appropriate punishment is not permissible. But for this constraint, I would have
thought that the law makers do desire application of judicial mind to the question
Page No.# 26/35
of even proportionality of punishment/ penalty. I have said so because the
Industrial Disputes Act, 1947 was amended to insert section 11A in it to confer this
power even on a Labour Court/Industrial Tribunal. It may be that this power was
conferred on these adjudicating authorities because of the prevalence of unfair
labour practice or victimisation by the management. Even so, the power under
Section 11A is available to be exercised, even if there be no victimisation or taking
recourse to unfair labour practice. In this background, I do not think if we would
be justified in giving much weight to the decision of the employer on the question
of appropriate punishment in service matters relating to Government employees or
employees of the public corporations. I have said so because if need for
maintenance of office discipline be the reason of our adopting a strict attitude qua
the public servants, discipline has to be maintained in the industrial sector also.
The availability of appeal etc. to public servants does not make a real difference,
as the appellate/revisional authority is known to have taken a different view on the
question of sentence only rarely. I would, therefore, think that but for the self-
imposed limitation while exercising power under Article 226 of the Constitution,
there is no inherent reason to disallow application of judicial mind to the question
of proportionately of punishment/penalty. But then, while seized with this question
as a writ court interference is permissible only when the punishment/penalty is
shockingly disproportionate."
35. In respect of finding contained in the Report of the Inquiry Officer and finding
recorded by the Disciplinary Authority on Article of Charges No. I, II and III, it is seen that
the learned Tribunal, after examining the materials on record, held that there was no ill-
motive on the part of the respondent to work in SC-IV Section. It was also observed that the
Inquiry Officer also found the respondent having a limited knowledge in procurement of I.T.
items and it was held that the respondent was not the sanctioning authority, but his duty was
to pass bills sanctioned by the competent authority. Therefore, in this back-drop, the learned
Tribunal had relied on the case of Union of India Vs. J. Ahmed[31], and was of the view that
limited knowledge in the I.T. items, as observed by the Inquiry Officer as well as the
Disciplinary Authority shall not warrant for major penalty where there is no grave offence like
misappropriation or misconduct. Hence, taking note of the gravity of offence, the penalty/
punishment of dismissal from service was found disproportionate and shocking to the
conscious of the said learned Tribunal. The said finding is not found to be hit by the
Wednesbury's principle of reasonableness, as such, the setting aside and quashing of the
Page No.# 27/35
punishment of dismissal from service cannot be faulted with.
36. It would be also of profit to refer to the relevant portion of para-127 of the
decision of the Constitution Bench of the Supreme Court of India in the case of Union of India
Vs. Tulsiram Patel[32] where it was observed as follows:-
"127. A government servant who is aggrieved by the penalty imposed
can agitate in appeal, revision or review, as the case may be, that the penalty was
too severe or excessive and not warranted by the facts and circumstances of the
case. If it is his case that he is not the government servant who has been in fact
convicted, he can also agitate this question in appeal, revision or review. If he fails
in all the departmental remedies and still wants to pursue the matter, he can
invoke the court's power of judicial review subject to the court permitting it. If the
court finds that he was not in fact the person convicted, it will strike down the
impugned order and order him to be reinstated in service. Where the court finds
that the penalty imposed by the. impugned order is arbitrary or grossly excessive
or out of all proportion to the offence committed or not warranted by the facts and
circumstances of the case or the requirements of that particular government
service the court will also strike down the impugned order. Thus, in Shankar Dass
v. Union of India, (1985) 2 SCC 358 this Court set aside the impugned order of
penalty on the ground that the penalty of dismissal from service imposed upon the
appellant was whimsical and ordered his reinstatement. in service with full back
wages. It is, however, not necessary that the court should always order
reinstatement. The court can instead substitute a penalty which in its opinion
would be just and proper in the circumstances of the case."
37. The learned ASGI had referred to the case of Anant R. Kulkarni Vs. Y.P.
Education Society[33] for the proposition that once the learned Tribunal had set aside an
order of punishment on the ground that enquiry was not properly conducted, the Tribunal
ought not to have precluded the employer from holding the inquiry in accordance with law.
The relevant para-13 thereof is quoted below:-
13. It is a settled legal proposition that, once the Court set asides an order
of punishment on the ground, that the enquiry was not properly conducted, the
Court should not severely preclude the employer from holding the inquiry in
accordance with law. It must remit the concerned case to the disciplinary
authority, to conduct the enquiry from the point that it stood vitiated, and to
Page No.# 28/35
conclude the same in accordance with law. However, resorting to such a course
depends upon the gravity of delinquency involved. Thus, the court must examine
the magnitude of misconduct alleged against the delinquent employee. It is in
view of this that courts/tribunals, are not competent to quash the charge-sheet
and related disciplinary proceedings, before the same are concluded, on the
aforementioned grounds. [Vide ECIL Vs. B. Karunakar , (1993) 4 SCC 727: AIR
1994 SC 1074; Hiran Mayee Bhattacharyya Vs. S.M. School for Girls & Ors., (2002)
10 SCC 293; U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & Anr., (2005) 8 SCC
264; and Union of India Vs. Y.S. Sandhu, (2008) 12 SCC 30: AIR 2009 SC 161].
In this regard, it is seen that after the inquiry, the Disciplinary Authority had
conducted a further inquiry. However, as indicated herein before, the procedure adopted was
not in consonance with procedure established by law. Therefore, the learned Tribunal
interfered with the punishment, but it is seen that the employer was precluded from taking
any such steps as they may be so advised, because the learned Tribunal had not quashed the
charge-sheet. Nonetheless, the departmental inquiry against the respondent had proceeded
on the basis of vague charges as the materials based on which the further inquiry was held
was not disclosed to the respondent. In this regard, it would be appropriate to quote para-15
and 16 of the case of Anant R. Kulkarni33 cited by the learned ASGI, which reads as follows:-
15. In Surath Chandra Chakravarty Vs. The State of West Bengal, (1970) 3
SCC 179: AIR 1971 SC 752 this Court held, that it is not permissible to hold an
enquiry on vague charges, as the same do not give a clear picture to the
delinquent to make out an effective defence as he will be unaware of the exact
nature of the allegations against him, and what kind of defence he should put up
for rebuttal thereof. The Court observed as under:-
"The grounds on which it is proposed to take action have to be reduced
to the form of a definite charge or charges which have to be
communicated to the person charged together with a statement of the
allegations on which each charge is based and any other circumstance
which it is proposed to be taken into consideration in passing orders has
to be stated. This rule embodies a principle which is one of the specific
contents of a reasonable or adequate opportunity for defending oneself.
If a person is not told clearly and definitely what the allegations are on
which the charges preferred against him are founded, he cannot
possibly, by projecting his own imagination, discover all the facts and
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circumstances that may be in the contemplation of the authorities to be
established against him."
(Emphasis added)
16. Where the chargesheet is accompanied by the statement of facts and the
allegations are not specific in the chargesheet, but are crystal clear from the
statement of facts, in such a situation, as both constitute the same document, it
cannot be held that as the charges were not specific, definite and clear, the
enquiry stood vitiated. Thus, nowhere should a delinquent be served a charge-
sheet, without providing to him, a clear, specific and definite description of the
charge against him. When statement of allegations are not served with the
charge-sheet, the enquiry stands vitiated, as having been conducted in violation of
the principles of natural justice. Evidence adduced should not be perfunctory, even
if the delinquent does not take the defence of, or make a protest with against that
the charges are vague, that does not save the enquiry from being vitiated, for the
reason that there must be fair-play in action, particularly in respect of an order
involving adverse or penal consequences. What is required to be examined is
whether the delinquent knew the nature of accusation. The charges should be
specific, definite and giving details of the incident which formed the basis of
charges and no enquiry can be sustained on vague charges. [Vide: State of Andhra
Pradesh & Ors. v. S. Sree Rama Rao, AIR 1963 SC 1723; Sawai Singh Vs. State of
Rajasthan, (1986) 3 SCC 454: AIR 1986 SC 995; U.P.S.R.T.C. & Ors. Vs. Ram
Chandra Yadav, (2000) 9 SCC 327: AIR 2000 SC 3596; Union of India &
Ors. Vs. Gyan Chand Chattar, (2009) 12 SCC 78; and Anil Gilurker v. Bilaspur
Raipur Kshetria Gramin Bank & Anr., (2011) 14 SCC 379].
Therefore, the cited case of Anant R. Kulkarni33 does not help the petitioners.
38. The case of Kunj Behari Misra6 and Mohammad Badruddin2 were cited to
show that if the Disciplinary Authority proposes to differ with the conclusions of the Inquiry
Report, then that authority must give the delinquent officer an opportunity of being heard,
which was complied with in this case. This is not in dispute. However, the cited cases do not
deal with facts having any semblance to the facts of the case in hand. The cited cases are not
authority on the point that after issuing notice to the delinquent officer, a re-inquiry could
have been ordered by the Disciplinary Authority by directing the Enquiry Officer to proceed to
hear on a document, which did not form of the list of documents intended to be relied upon.
Page No.# 30/35
The procedural safeguards available to a delinquent officer under Rule 14 and 15 of the CCS
(CCA) Rules do not permit so. Thus, the cited case does not help the petitioners.
39. The learned ASGI had cited the case of Phulpari Kumari1, which is of no help
to the petitioners as it is distinguishable on facts. The observations made in para-6 thereof is
quoted below:-
"6. The criminal trial against the Respondent is still pending consideration
by a competent criminal Court. The order of dismissal from service of the
Respondent was pursuant to a departmental inquiry held against her. The Inquiry
Officer examined the evidence and concluded that the charge of demand and
acceptance of illegal gratification by the Respondent was proved. The learned
Single Judge and the Division Bench of the High Court committed an error in re-
appreciating the evidence and coming to a conclusion that the evidence on record
was not sufficient to point to the guilt of the Respondent. It is settled law that
interference with the orders passed pursuant to a departmental inquiry can be
only in case of 'no evidence'. Sufficiency of evidence is not within the realm of
judicial review. The standard of proof as required in a criminal trial is not the same
in a departmental inquiry. Strict rules of evidence are to be followed by the
criminal Court where the guilt of the accused has to be proved beyond reasonable
doubt. On the other hand, preponderance of probabilities is the test adopted in
finding the delinquent guilty of the charge. The High Court ought not to have
interfered with the order of dismissal of the Respondent by re-examining the
evidence and taking a view different from that of the disciplinary authority which
was based on the findings of the Inquiry Officer."
40. In the case of B. Ashok Kumar5, which was cited by the learned ASGI, on the
allegation of bribe, in the enquiry report it was held that the charge against the respondent
had been proved and he was guilty of the charge. However, the Enquiry Tribunal had made
recommendation to impose the penalty of stoppage of three increments with cumulative
effect. The Government after consideration of the evidence found that the recommendation
was not correct, proper and that major penalty was required to be given. Accordingly show
cause notice, together with copy of the report, was issued for imposing punishment of
dismissal from service and the respondent submitted his reply. The Government after
considering the entire material came to the conclusion that the respondent deserved to be
Page No.# 31/35
dismissed from service. Accordingly, the delinquent officer was dismissed from service. The
delinquent officer approached the learned Tribunal, and the said learned Tribunal while
accepting that the charge had been proved was of the view that the Government should
reconsider the question of imposition of the penalty of stoppage of three increments. It is
under these facts that that the Supreme Court of India held found no force in finding by the
learned Tribunal that the imposition of the penalty of dismissal from service shook the
conscience of the Tribunal and observed that it was settled legal position that imposition of
the penalty is the right of the disciplinary authority consistent with the magnitude and the
misconduct imputed and the evidence in support thereof. It may be stated that the Tribunal in
disciplinary proceedings found as a fact that the respondent demanded and accepted illegal
gratification of Rs. 3,000/- for not prosecuting the offender and as the delinquent officer was
an Inspector of Police, a higher ranking Officer, his demand and acceptance of illegal
gratification to restrain himself from initiating prosecution against the offender, it would have
an effect on the maintenance of law and order in the society. Accordingly, the ratio laid down
in the case of B.C. Chaturvedi16, it was held that the Tribunal has no power to direct the
appellant to reconsider the matter. However, in the present case in hand, the finding as
regards Article of Charge No. I, II and III has already been dealt with in para-35 above,
which is not reiterated for brevity. Hence, on facts, the present case is distinguishable.
41. The case of T. Sudhakar Prasad4 was cited to impress upon the Court that the
learned Tribunal is under the supervisory jurisdiction of this Court and that it does not have
power akin to or similar to what is enjoyed by this Court. This legal proposition, being not the
matter in issue, there appears to be no need to deliberate on that matter, which is academic.
In this regard, it is too well settled by the Supreme Court of India that if the punishment
imposed shocks the conscious of the learned Tribunal, it had the jurisdiction to interfere with
the decision of the Disciplinary Authority. Moreover, in the case of T. Sudhakar Prasad4 the
Supreme Court of India had clarified that jurisdiction should not be confused with status and
subordination. It may also be mentioned in the case of Union of India Vs. Pradeep
Sharma[34], the Supreme Court of India had held that - " The legal position is fairly well
settled that while exercising power of judicial review, the High Court or a Tribunal cannot
Page No.# 32/35
interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the
Appellate Authority with regard to the imposition of punishment unless such discretion suffers
from illegality or material procedural irregularity or that would shock the conscience of the
Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary
Authority or Appellate Authority is dependent on host of factors such as gravity of
misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of
the position that the delinquent holds, previous penalty, if any, and the discipline required to
be maintained in the department or establishment he works. Ordinarily, the Court or a
Tribunal would not substitute its opinion on reappraisal of facts ." In the case of S.A. Abbas18,
while holding the Administrative Tribunal is not an Appellate Authority sitting in judgment
over the orders of transfer and that it cannot substitute its own judgment for that of the
authority competent to transfer, it was also held by the Supreme Court of India that power of
the learned Tribunal was akin to that of the High Court. Thus, it is seen that the Supreme
Court of India had taken note of the power exercisable by the learned Tribunal. Hence, the
submission by the learned ASGI that the learned Tribunal does not have power which can be
exercised by the High Court is not found acceptable. In the present case in hand, as indicated
herein before, the learned Tribunal by holding that the punishment was disproportionate and
shocking to its conscience, did not venture to decide the punishment to be imposed on the
respondent, but the matter was remanded back to the Disciplinary Authority to decide on the
quantum of punishment, as such, the learned Tribunal has followed the well established
principle on this aspect.
42. It may be mentioned that in the case of Dev Singh12, the Supreme Court of
India had held that the Court will not ordinarily interfere in the punishment imposed in the
disciplinary proceedings to substitute its own conclusion on penalty except where the
punishment imposed is found to be shockingly disproportionate to the misconduct proved
against the delinquent. In the said case, the charge against the delinquent was merely of
negligence due to which an office file was misplaced without any allegation of deliberate or
mala fide misplacing of the file with any ulterior motive, as such, it was held that the
punishment of dismissal from service will certainly be shockingly disproportionate to the
Page No.# 33/35
proved guilt.
43. Thus, in view of the herein before cited authority on the point, the
submissions made by the learned ASGI regarding absence of authority of the learned Tribunal
and of this Court to interfere with the punishment is not acceptable. In the present case in
hand, in respect of the Article of Charges No. I, II and III, neither the Inquiry Officer nor the
Disciplinary Authority attributed any ulterior motive to the respondent. Moreover, it is seen
that the learned Tribunal had ordered reinstatement of the respondent and having regard to
the finding on Article of Charges No. I, II and III, held that the punishment imposed on the
respondent for the lapses was disproportionate and shocking to its conscious, had granted
liberty to the respondents to consider imposition of lesser punishment proportionate to the
lapses alleged to have been committed by the respondent. In connection with Article of
Charges No. I, the Inquiry Officer had held that the respondent had less knowledge. In
connection with Article of Charges No. II, it could not be shown that any evidence was led by
virtue of any Rules in force, there was any bar to process any bill if the earlier bill was not
passed and paid (first in first out principle). The Court does not find any infirmity in such
order.
44. Therefore, in view of the finding recorded in connection with point of
determination No. (i) and (ii), the point of determination no. (iii) and (iv) are also decided
against the petitioners and in favour of the respondent by holding that the Article of Charge
No. IV had not been proved in accordance with law and that the finding in connection with
Articles of Charges No. I, II and III by the said learned Tribunal to the effect that the
punishment awarded to the respondent was disproportionate and shocking to its conscience
and consequential remand of the matter to the Disciplinary Authority to award lesser
punishment vide the impugned judgment and order dated 20.12.2019, passed by the learned
Central Administrative Tribunal, Guwahati Bench, Guwahati in O.A. No. 40/425/2018 is not
liable to be interfered with.
45. Thus, in light of the discussions above, this writ petition fails and the same is
Page No.# 34/35
dismissed. The Rule stands discharged. The parties are left to bear their own cost.
JUDGE JUDGE.
Comparing Assistant
Endnote (table of cases cited):
[1] State of Bihar Vs. Phulpari Kumari & Ors., (2020) 2 SCC 130.
[2] State Bank of India Vs. Mohammad Badruddin, (2019) 16 SCC 69 .
[3] R. Mohajan Vs. Shefali Sengupta, (2012) 4 SCC 761 .
[4] T. Sudhakar Prasad Vs. Govt. of Andhra Pradesh & Ors., (2001) 1 SCC 516 .
[5] The Govt. of A.P. Vs. B. Ashok Kumar, (1997) 5 SCC 478.
[6] Punjab National Bank Vs. Kunj Behari Misra, (1998) 7 SCC 84.
[7] State of Bihar Vs. Phulpari Kumari & Ors., (2020) 2 SCC 130.
[8] Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. & Anr. Vs. K.
Hanumantha Rao & Anr., (2017) 2 SCC 528.
[9] State Bank of Mysore & Ors. Vs. M.C. Krishnappa, (2011) 7 SCC 325 .
[10] Jagjit Singh Vs. State of Haryana, (2006) 11 SCC 1 .
[11] Administrator, Union Territory of Dadra & Nagar Haweli Vs. Gulabhia M. Lad, (2010)
5 SCC 775,
[12] Bongaigaon Refinery & Petrochemicals Co. Ltd. Vs. Girish Chandra Sarmah, (2007)
& SCC 206.
[13] Dev Singh Vs. Punjab Tourism Development Corpn. Ltd., AIR 2003 SC 3712.
[14] Union of India Vs. K.D. Pandey, (2002) 10 SCC 471.
Page No.# 35/35
[15] U.P. State Road Transport Corporation Vs. Mahesh Kumar Mishra, (2000) 3 SCC 450 .
[16] Union of India Vs. B.C. Chaturvedi, (1995) 6 SCC 749.
[17] L. Chandra Kumar Vs. Union of India & Ors., AIR 1991 SC 1151 .
[18] Union of India Vs. S.A. Abbas, (1993) 4 SCC 357.
[19] Union of India Vs. Parma Nanda, (1989) 2 SCC 177.
[20] Ranjit Thakur Vs. Union of India, (1987) 4 SCC 611.
[21] Bhagat Ram Vs. State of H.P. & Ors., (1983) 2 SCC 442.
[22] Ramchandra Keshav Adke Vs. Govind Joti Chavare, AIR 1975 SC 915.
[23] K.R. Deb Vs. Collector of Central Excise, Shillong, AIR 1971 SC 1447.
[24] Laxmi Devi Sugar Mills, AIR 1957 SC 7.
[25] Anupam Nath Vs. Union of India & Ors., (2019) 7 GLR 495: 2019 (1) GLT 568:
(2019) 0 Supreme(Gau) 165.
[26] Dhiman Singha Vs. State of Tripura, (2015) 0 Supreme(Tri) 677.
[27] Moni Shankar Vs. Union of India, (2008) 3 SCC 484.
[28] L.I.C. of India Vs. Ram Pal Singh Bisen, (2010) 4 SCC 491
[29] Pravin Kumar Vs. Union of India, (2020) 9 SCC 471: 2020 STPL 6520 SC.
[30] Nirmala J. Jhala Vs. State of Gujarat, (2013) 4 SCC 301 ,
[31] Union of India Vs. J. Ahmed, (1979) 2 SCC 286.
[32] Union of India Vs. Tulsiram Patel, (1985) 3 SCC 398.
[33] Anant R. Kulkarni Vs. Y.P. Education Society, (2013) 6 SCC 515 .
[34] Union of India Vs. Pradeep Sharma, (2017) 0 Supreme(SC) 1396: 2018 STPL 506
SC: (2018) 1 SLR 703.
