Appellate Tribunal for Forfeited Property v. Shailender Kumar and Anr.

1. The present writ petition under Article 226 of the Constitution of India seeks to assail the order dated 13.05.2015 passed by the learned Central Administrative Tribunal in O. A. No. 2805/2013. Vide the impugned order, the learned Tribunal has quashed the charge memo dated 16.02.2012 issued to the respondents alongwith the enquiry report dated 11.04.2012 as also all the consequential orders including the orders passed by the disciplinary authority, appellate authority and the reviewing authority.

REKHA PALLI, J (ORAL)

2. The respondents’ case, as set up before the learned Tribunal, was that he had been appointed as a Stenographer in the petitioner organisation. While he was working as a Stenographer (Grade II), a charge memorandum dated 16.02.2012 was issued to him on the following charge: “That the said Shri Shailender Kumar, Stenographer Grade-II in the office of Appellate Tribunal for Forfeited Property, New Delhi is an habitual and compulsive absenter and highly irregular in attending office, Despite advices and even warning in the past, Shn Shailender Kumar has continued to absent himself from office for days at will, without either advance sanction of leave or even prior intimation to his controlling officer. Lately, his tendency to remain unauthorisedly absent from office has crossed all limits, Thus, in the month of November, 2011, he was absent on Nov. 14 (for which there is even no leave application on record) and again from Nov. 18 to Nov. 24 for which the leave application was submitted only on Nov.25. Similarly, during, December' 2011, he was absent on Dec. 1, 2, 7, 8, 13, 14, 15, 16, 20 21,22,27,28 and 29 without any prior sanction of leave. For his absence on Dec. 20,21 and 22' there is even no application on record whereas for his absence on other days in Dec. 11, he Emitted leave applications after he had availed leave at his will. Similarly, in the month of January' 2012, he was absent on Jan. 2,3,5,10,11,12,16,17,18,20,23, 24, 25 and 27 without any prior sanction of leave. In the month of February also, he has so far been unauthorisedly absent from office on Feb. 1, 3, 7, 8, 9and 14. This is despite the fact that earlier also disciplinary proceedings were instituted against Shri Shailender Kumar which had led to imposition of minor penalty on him. Thus, Shri Shailender Kumar's above conduct displays total lack of devotion to duty and is highly unbecoming of a government servant thus violating Rule 3(1) (ii) and 3(1) (iii) of CCS (Conduct) Rules.”

3. As per the record, even though a list of documents, by which the charge against the respondents was proposed to be proved, was enclosed as Annexure III to the charge memorandum, the list of witnesses, which was Annexure IV to the charge memorandum, clearly stated that no witness was proposed to be examined and the column of list of witnesses stated “Nil”. It was the respondent’s case that on receipt of the charge memorandum, he submitted a representation dated 14.03.2012 requesting the petitioner to condone the period during which he remained absent from duty on account of his psychiatric ailment and also prayed that the delay on his part in submitting the leave applications be condoned. Upon not finding this reply satisfactory, the petitioner appointed an enquiry officer. In the enquiry, though the respondent denied having committed any misconduct and explained that he had to take repeated leaves on account of his medical problems, the enquiry officer, by relying on the documents filed by the presenting officer, held the respondent guilty of the charge

4. This enquiry report dated 11.04.2012, was accepted by the disciplinary authority and consequently vide an order dated 04.05.2012, penalty of dismissal was imposed on the respondent. Being aggrieved, the respondent preferred an appeal before the appellate authority, which was rejected. His petition to the reviewing authority met the same fate. The respondent then approached the learned Tribunal by way of the aforesaid O.A, which has been allowed under the impugned order.

5. It is in these circumstances that the present petition has been filed by the petitioner. In support of the petition, learned counsel for the petitioner submits that the impugned order is wholly perverse as the learned Tribunal has failed to appreciate that since the respondent had admitted that he had remained absent from duty, the requirement of producing a witness to prove the documents relied upon, in the enquiry, stood waived. By drawing our attention to the reply to the charge memorandum submitted by the respondent, she submits that there was no requirement to examine any witnesses as the respondent had himself admitted that he had remained on unauthorised leave; his only prayer in his reply being that the delay in filing of leave applications be condoned. Alternately, she submits that even if the proceedings were found to be in breach of Rule 14 of the CCS (CCA) Rules 1965, the learned Tribunal ought to have granted liberty to the petitioner to hold a de novo enquiry against the respondent, instead of restraining the petitioner from initiating disciplinary proceedings against him. She therefore, prays that the impugned order be set aside.

6. On the other hand, learned counsel for the respondents supports the impugned order and submits that the petitioner’s plea that the respondent had admitted the charge is absolutely incorrect. He submits that no witness was named in the charge sheet itself and therefore, the petitioner’s plea that on account of the reply submitted by the respondent there was no requirement to examine any witnesses in the enquiry was wholly misplaced. He submits that since the charge relate to the year 2012 and ten years have already elapsed, the respondent ought not to be subjected to any de novo departmental enquiry at this belated stage.

7. Having considered the rival submissions of the parties, we find that it is an admitted position that no witness was cited by the petitioner to tender/ prove the documents which were produced in the enquiry. Though learned counsel for the petitioner has vehemently urged that on account of the respondent’s admission of his remaining on unauthorised leave, the examination of witnesses to tender and prove the documents relied in the enquiry would have been a futile exercise. Having perused the reply submitted by the respondent, we are unable to accept this plea. We say so, firstly, because we find that in the reply submitted by the respondent, he had merely explained the reasons for his absence, which according to him were on account of his psychological ailment and also as the respondent, we find, had nowhere admitted having committed any misconduct. Secondly, we find that even before a reply to the charge memorandum was submitted by the respondent, the petitioner had in Annexure IV to the Charge Memorandum already declared that no witness was proposed to be examined.

8. In our considered view, the learned Tribunal was correct in holding that the production of witnesses, in an enquiry, is essential to tender and prove the documentary evidence, which witness the respondent could have cross-examined. By not giving an opportunity to the respondent to examine any witness, the petitioner had undoubtedly curtailed his essential right in the enquiry. In this regard, we may refer to a decision of this Court in Anil Kumar Dhyani v. Union of India & Ors. (2017) SCC OnLine Del 9911 wherein, like in the present case, documents filed by the department were relied upon by the Enquiry Officer even though no witness had been examined to exhibit those documents. The relevant extracts of the said decision as contained in paragraph nos.17 & 18 thereof, read as under:-

considered view, it was imperative for the Respondents management to, at least, examine some witness to exhibit those documents before the inquiry officer, and only when the documents were exhibited through a witness, before the inquiry officer, and sufficient opportunity granted to the charged officer to cross-examine the witness, that reliance could have been placed on the same to hold the Petitioner guilty.”

9. In this regard, it will also be apposite to refer to the decision of the Apex Court in Roop Singh Negi v. Punjab National Bank & Ors. (2009) 1 SCC (LS) 398, which was relied upon by the learned Tribunal. The relevant extracts of the said decision as contained in paragraph no.10, thereof, read as under:-

10. In the light of the aforesaid, we are of the view that the finding of the learned Tribunal that the enquiry was vitiated on account of non-compliance of Rule 14 of the CCS (CCA) Rules, cannot be faulted with. We, therefore, see no reason to interfere with this finding of the learned Tribunal.

11. Now coming to the petitioner’s second plea that even if the departmental enquiry was found to be vitiated on account of breach of CCS (CCA) Rules as also principles of natural justice, the petitioner ought to be granted permission to re-open the departmental proceedings. The respondent has vehemently urged that no such liberty should be granted to the petitioner at this belated stage. Having given our thoughtful consideration to the rival pleas of the parties, we are of the view that taking into account the nature of charge levelled against the respondent, which the petitioner claims can be easily proved through documentary evidence already available, the petitioner ought to be granted liberty to hold a de novo enquiry. Given the respondent’s own stand that he had remained on unauthorised leave and was taking treatment from private doctors, the learned Tribunal erred in accepting his bald plea that there were compelling reasons for him to remain absent from duty.