Ms. Khushi Mangla v. Dr. Chander Prakash

9. Case of respondent before the learned Tribunal was that as per Rule 9 (2) of the Discipline and Appeal Rules, the condition precedent for disagreement is recording of reasons and a finding thereof by the disciplinary authority in disagreement, that too, on existence of sufficient evidence. It was further stated that there was no evidence on record to hold the respondent guilty and as the inquiry officer had already exonerated him, thus there is violence to Rule 9 (2) of the Rule mentioned above.

10. The case put up before the learned Tribunal was that once a quasi- Judicial authority is bound by the rules, it has to act within its four corners. A thing is to be performed in a particular manner and no other manner can be approved of. To buttress his arguments, learned counsel for the respondent relied upon a decision of the Constitution Bench in Calcutta Discount Company Limited vs Income Tax Officer, Companies District I & Anr, I960(2) SCR 241 to contend that when a condition precedent for exercise of a jurisdiction is not discharged, the order has to be treated as without jurisdiction.

11. The disciplinary authority is precluded from taking a fresh material into consideration and relying upon the decision of the Hon’ble Supreme Court in M/s Bareilly Electricity Supply Co. Ltd. vs The Workmen and others, 1971 (2) SCC 617 to contend that mere production of documents, even keeping in view the non-applicability of Indian Evidence Act, does not amount to proof unless the maker of it is called in evidence with an opportunity of rebuttal and cross-examination to the concerned. Accordingly, it is stated that admittedly the disagreement note is based on the log book of the relevant period, the daily diary register maintained at Police Station and log book of the Deputy Commissioner of Police, including PCR log book, yet these documents have not been exhibited during the course of disciplinary proceedings. The persons who had lodged these reports have not been summoned in the inquiry. As such, when these documents have not formed part of the record, though may be part of the chargesheet, yet due to non-adducing these documents in the inquiry, they cannot be treated as evidence, let alone a legally admissible evidence.

12. The case of petitioner before the learned Tribunal was that referring to the statement recorded it is submitted that unlike a criminal trial, in the departmental inquiry, strict rules of evidence are not applicable. The logbook entries have been proved by SI Raj Singh and the DW-13 N.D. Sharma has also established the prosecution’s story.

13. It is submitted that sufficiency of evidence is not within the scope of judicial review. It is stated that the V.P. Manwah’s report has proved the allegation to its hilt. Due to inefficiency of the respondent and his nonsupervision and non-effective control over his subordinates, deaths had occurred in his jurisdiction.

14. Case for the petitioner before the learned Tribunal was that Union Public Service Commission earlier through its advice recommended a penalty of compulsory retirement, as respondent was found wanting in his duties due to dereliction and negligence, which resulted in omission of the respondent to effectively control the riots within his area of jurisdiction. The advice of the Union Public Service Commission tendered has been reiterated in the subsequent advice, which has been considered by the disciplinary authority and thereafter the punishment was imposed post retirement upon the respondent.

15. Moreover, the learned Tribunal after scanning through the articles and imputation observed that the disagreement arrived at by the disciplinary authority is on the allegation that respondent had failed to give any specific directions to his staff for controlling the situation despite receipt of repeated messages of violence.

16. However, importantly in support thereof, certain instances have been mentioned from column-1 A to J. The learned tribunal found that the aforesaid instances levelled as charges against the respondent in the disciplinary proceedings have been brought outside the scope of the inquiry as an extraneous matter. It amounts to framing of a new charge against the respondent, against which he has not been afforded an opportunity to rebut. What is provided under Rule 9 (2) is that disagreement can be made only on the evidence on record and that too on the charges levelled. But if the charge established on disagreement in the inquiry is alien to the charges framed and on the basis of documents not mentioned or forming part thereof, then it is a case where extraneous matter and a charge alien to the record of the proceedings has been relied upon by the petitioner. This not only deprives a reasonable opportunity to effectively rebut the allegations but is also in contravention of the principles of natural justice.

17. The learned Tribunal has also traversed through the material relied upon to take a different view by the disciplinary authority, which is the affidavit of the witnesses given before Justice Ranganath Mishra Commission of Enquiry. The learned Tribunal find that these statements were part of the departmental record but yet considered to disagree is not on evidence recorded during the course of the inquiry.

18. In view of the above, the learned Tribunal observed that the reply filed by the respondent to the disagreement clearly demonstrated as the disagreement was based on an extraneous matter. It was also observed that surmises and conjectures and the evidence outside the record should not have been relied upon to hold respondent guilty of the charge.

19. A reading of Rule 9 (2) lays down a condition precedent on disciplinary authority while disagreeing to first record his finding with reasons on articles of charge. The only interpretation in its logic and rationale is that while disagreeing, the disciplinary authority has to record reasons in a very specific manner, as provided under the Rules. The learned Tribunal finds that the IO with his elaborate conclusions, whereby eight articles of charge have not been proved against the respondent, has arrived at a detailed finding. It was imperative upon the disciplinary authority to have recorded reasons for disagreement on each article of charge with the reasoning thereof. From the disagreement note it appears that without discharging the mandate of the rule and without specifying as to which part of the charge has been disagreed and on what reasoning, a generalized view of the evidence brought on record has been mentioned and thereafter the respondent was asked to comment upon.

20. Had there been a case where Union Public Service Commission was not consulted, the orders passed by the disciplinary authority dealing with the contentions of the respondent in response to the disagreement would have been made available to him, by which he would have known whether there has been application of mind by the disciplinary authority or not. However, with the methodology under the rules requires consultation from Union Public Service Commission but in the present case, the conclusion arrived at has been directly forwarded to the Union Public Service Commission and thereafter, the advice of the Union Public Service Commission was dittoed by the disciplinary authority, resulting in imposing the post retiral punishment upon respondent which is unfair and against the principle of natural justice.

21. It cannot be disputed that in the case of Bhavnagar University v, Palitana Sugar Mills, 2003 (2) SCC 111, the Supreme Court held that if a statutory body or authority is bound by the rules or statute acts, it has to be done in the manner prescribed under the rules and if any other manner is adopted, it shall be an illegality in the decision-making process, which shall vitiate the administrative order. Moreover, a quasi-judicial authority, like disciplinary authority is bound by the statutory rules.

22. In view of the above, the learned Tribunal observed that by not recording a disagreement on each article of charge with reasoning thereof, not only the mandate as an obligation under Rule 9 (2) has been violated but also prejudice has been caused to respondent on denial of reasonable opportunity to effectively defend the disagreement. It was further observed that “Right to know” is a constitutional right, which has transformed into principle of audi alteram partem.

23. As far as Union Public Service Commission advice is concerned, as per Article 320 (c) of the Constitution of India, consultation with Union Public Service Commission whether under the CCS (CCA) Rules or under the All India Services Rules is only directory. The advice of the Union Public Service Commission being a consultative body is not binding on the disciplinary authority, as has been ruled by the Apex Court in Union of India v. T.V. Patel, 2007 (2) SCC (L&S) 98.

24. If any order passed by the President post retirement of a government servant imposing a penalty of pension cut, Rule 6 of the All India Services (Death-cum- Retirement Benefits) Rules, 1958 provides that if a pensioner is found in departmental proceedings to have been guilty of a grave misconduct, the Central Government will have a right to withhold pension. But nothing in this rule by necessary implications excludes recording of reasons by the President or the Central Government. When a quasi-judicial or even an administrative authority acts where there is determination of right of a party or there has been civil consequences ensued upon a Government servant, as a condition precedent, reasons are to be recorded.

25. In case of S.N. Mukherjee v. Union of India, 1990 (4) SCC 594, the Hon’ble Supreme Court has held that reasons are essence of rule of law and cannot be dispensed with, unless by necessary implications of the rules. When discretion is vested in a public functionary, it becomes more important to record reasons. The reasons make transparency in the order and facilitate cause of justice. For want of reasons, the aggrieved person would not be able to effectively defend his right before the departmental authorities and also impede adjudication by the Court.

26. It is not in dispute that the Presidential order has reflected the factual aspect of the matter and the stages reached in arriving at a final decision after Union Public Service Commission advice had been received with the following observations, a penalty had been imposed: “12.

AND WHEREAS the earlier advice tendered by the Commission imposing the penalty of compulsory retirement had, in the meantime, become infructuous as Shri Chandra Prakash had retired from service on 30-11-2001 on superannuation.

13.

AND WHEREAS Union Public Service Commission vide their letter No.F.3/357/2006-S.[1] dated 18.06.2006 observed that the charges proved against Shri Chander Prakash constitute grave misconduct on his part and advised that the ends of justice would be met if the penalty of 50% (fifty percent) cut in the monthly pension on permanent basis is imposed on Shri Chander Prakash. The gratuity as admissible to him may be released, unless otherwise required to be withheld under the Rules. A copy of the Union Public Service Commission’s letter No. F.3/357/2006-S. 1 dated 18.08.2006 is enclosed.

14.

AND WHEREAS the President, after going through the case records, the findings of the Inquiring Authority, the representation of Shri Chander Prakash, advice of the Union Public Service Commission and all other relevant factors related to case, has come to the conclusion that the ends of justice in this case would be met if a penalty of 50% (fifty percent) cut in the monthly pension on permanent basis is imposed on Shri Chander Prakash.

15. Now, therefore, the President, in exercise of the powers conferred under Rule 6 of All India Services (Death-cum-Retirement Benefits), Rules, 1958 orders that the penalty of 50% (fifty percent) cut in the monthly pension on permanent basis be imposed on Shri Chander Prakash. By Order and in the name of the President Sd/- Under Secretary to the Government of India.”

27. The learned Tribunal was of the opinion that the disciplinary proceedings initiates from the stage of serving memorandum of allegations and ends with a final order passed by the disciplinary authority. Though consultation with the Union Public Service Commission is a mandate under the rules, yet it is only an opinion tendered on the basis of a findings arrived at in the inquiry as well as by the disciplinary authority. From the allegations leveled against the respondent in the inquiry, there was no allegation of grave misconduct but there has been a violation of Rule 3 of AIS Service (Conduct) Rules, i.e., unbecoming of a Government servant and in a nutshell, the sum and substance of the allegation is negligence on the part of the respondent in controlling the riots.

28. We have gone through the material on record and order passed by the learned Tribunal, we found that in the departmental proceedings, all other officers have been exonerated except the respondent herein for the reasons best known to the petitioner.

29. During the course of hearing, we put a query to the learned counsel for the petitioner as to how many DCPs in Delhi were chargesheeted for the riots that happened in the year 1984. Though she failed to reply to that query, however, learned counsel for the respondent submitted that except respondent no.1, not even a single DCP of the particular area was chargesheeted or punished. Not only that, under his district (South District), the incharge of the Police Stations were SHOs and also, there are other Additional DCPs and ACPs concerned available and supervising the particular area or that district, but not even a single officer has been punished except the respondent herein.

30. If that is the position on the ground, the SHO concerned is the officer to control the law and order situation in the jurisdictional area. Above the SHOs, ACPs and additional DCPs are there in hierarchy, however, they were not punished. Even if we take every supervisory officer to be booked and punished, then even CP Delhi was at that time supervisor of all the DCPs of Delhi, however, he was not punished. It seems as observed by the learned Tribunal that it was some bias attitude of the petitioner and the respondent was made the scapegoat for some ulterior purpose.

31. In view of the above, we find that there is no error or perversity in the order passed by the learned Tribunal. Petition is accordingly dismissed being without merit.

32. The concerned authorities are directed to clear the arrears of the respondent (who has expired) to his legal heirs within four weeks from today with interest @ 7% per annum from the due date till it is paid.

33. Pending applications, if any, stand disposed of.

SURESH KUMAR KAIT JUDGE GIRISH KATHPALIA JUDGE AUGUST 7, 2024/as/riya