Union of India v. S.K. Verma

10. We may note that the aforementioned three orders, all dated 25.09.2013, were challenged by the respondent in O.A. No.3836/2013 and were set aside by the Tribunal by examining the scope of Rule 15(1) of CCS(CCA) Rules, 1965, for the following reasons:- “14. …..It is seen that the Articles of Charges against the Applicant was for unauthorized absence from duty and was his absence from the headquarters during his period of suspension with the prior approval of the competent authority. The Enquiry Officer, after a detailed enquiry in the matter held that those charges have not been proved. Under Rule 15(1) of the CCS (CCA) Rules, 1965, the Disciplinary Authority has the power to remit the case to the Inquiring Authority for further enquiry and report. The further enquiry to be held so is to be from the stage from which any infirmity in the procedure has occurred and not a de-novo enquiry. Such an enquiry has to be done by the same Enquiry Officer and not by appointing another Enquiry Officer. The Disciplinary Authority cannot go on holding enquiry against a delinquent employee till the desired report is given by the Enquiry Officer. Rule 15(1) ibid clearly says that the Disciplinary Authority may remit the case to the Inquiring Authority and not to a New Inquiring Authority. Without specifying the stage from which further enquiry is to be commenced or not entrusting the further enquiry to the same Enquiry Officer except for the reason that the said Enquiry Officer is not available or incapacitated to hold enquiry, such a procedure cannot be termed as a further enquiry but is a fresh enquiry or a de-novo enquiry. As held by the Apex Court in K.R. Deb‟s case (supra), there is no provision in Rule 15(ibid) for completely setting aside previous inquiries on the ground that the report does not appeal to the Disciplinary Authority. Further, in the said judgment, Apex Court has held that it may be possible if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason. However, the reasons given by the Disciplinary Authority to remit the case to another Inquiring Authority are not anything to do with any defects crept into the previous enquiry or any witnesses have been omitted from examining during the enquiry proceedings. On the other hand, the reasons given by the Disciplinary Authority are either quite extraneous or factually incorrect.….” (emphasis added)

11. In the decision, Union of India & Ors. vs. Shashi Bhushan and Ors. (supra) relied upon by the learned counsel for the petitioner, the fact situation was that vide order dated 04.10.2006, the Disciplinary Authority therein ordered for holding a de novo inquiry in the case from the stage of inspection/supply of listed documents, as per Annexure-III of the charge memo. On the basis of the order dated 04.10.2006 passed by the Disciplinary Authority, the Chief General Manager Telecom, Punjab Circle, Chandigarh, in exercise of powers conferred in sub-Rule (2) read with sub-Rule (22) of Rule 14 of the Rules, passed an order dated 31.10.2006, replacing the Inquiry Officer to inquire into the charges. The order of the Disciplinary Authority was upheld for the following reasons:- “13. Commenting on para 12 of the judgment in K.R. Deb‟s case (supra) (AIR 1971 SC 1447) their Lordships of Hon'ble the Supreme Court in P. Thayagarajan‟s case (supra) (AIR 1999 SC 449) has held in para 8 of its judgment as under:- "8. A careful reading of this passage will make it clear that this Court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the enquiry or some important witnesses were not available at the time of the enquiry or were not examined, the disciplinary authority may ask the enquiry officer to record further evidence but that provision would not enable the disciplinary authority to set aside the previous enquiries on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. In the present case, the basis upon which the disciplinary authority set aside the enquiry is that the procedure adopted by the enquiry officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand, result in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the disciplinary authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of the present nature."

14. When we apply the principles laid down by Hon'ble the Supreme Court, it emerges that the disciplinary authority has noticed in paras 3 and 4 of its order dated 18.1.2007 (supra) that during inquiry, the prosecution documents as per details in Annexure III of charge Memo have not been taken on record although these documents were presented by the Presenting Officer and inspected by the Charged Officer. This was regarded as procedural lapse. The disciplinary authority has further recorded that deposition of S.W. 2 and S.W. 3 recorded on 16.12.2005 are same and even designation have not been correctly mentioned. The disciplinary authority felt that the Enquiry Officer has conducted the enquiry in a casual manner. It is in the aforesaid context that the disciplinary authority exercised power under Rule 15 (1) of the Rules and ordered further enquiry by appointing Shri H.C. Ahuja as Enquiry Officer. The order passed by the Disciplinary Authority falls within the four corners of its power conferred by Rule 15(1) of the Rules and the judgments of Hon'ble the Supreme Court. Accordingly, it has to be concluded that on precedent, principle and on the anvil of statutory rules, the order passed by the disciplinary authority deserves to be upheld.” (emphasis added).

12. Reverting to the facts of the instant case, the Disciplinary Authority vide order dated 25.09.2013, had remitted the inquiry for the reasons given hereunder:- “New Delhi, the 25th September, 2013 ORDER Whereas an Inquiry under Rule 14 of CCS (CCA) Rules, 1965 was held against Sh.S.K.Verma, Assistant Registrar, CESTAT for remaining absent from duty unauthorizedly. AND Whereas the Inquiry Officer Ms.Archana Wadhwa, Member (Judicial), CESTAT vide her Inquiry report dated 26.12.12. held both charges against the charged officer, viz. Sh.S.K.Verma, Assistant Registrar, CESTAT as „Disproved‟. AND Whereas the competent Disciplinary Authority, after careful consideration of the facts of the case and the report submitted by the Inquiry Officer has come to the conclusion that a proper Inquiry has not been conducted in this case in view of the following reasons: i) Grounds for rejection of leave mentioned by Sh.T.K.Jayaraman, Member (T) and controlling officer of CO were not examined. ii) Fact about the arrest warrants issued against the CO during the period of absence, was either not brought to the knowledge of IO or not considered by the IO. Similarly, other material evidence against the CO was not taken into account by the IO. iii) As per records, no medical documents were submitted by the CO during the Inquiry, which would lend support to his claims. The IO did not call for such records during the course of the Inquiry. iv) IO has not mentioned in her report about any written brief filed by the Presenting Officer during the course of the Inquiry. Therefore, it is not clear whether the PO had submitted any written brief or not. v) IO in her report mentioned that the Presenting Officer had not advanced any evidence to counter or rebut the evidence produced by the CO. vi) In the light of the above facts further examination is required whether CO had left the Headquarters without obtaining permission from his controlling officer.

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

13. The reasons given by the Disciplinary Authority for remitting the inquiry, have been dealt with and rejected by the Tribunal for the following reasons:- “……..We have also perused the departmental file. According to the Disciplinary Authority, the Enquiry Officer did not examine the grounds for rejection of leave mentioned by Shri T.K. Jayaraman, Member (T), but it was not true. Of course, the Enquiry Officer did not examine Shri T.K. Jayaraman, Member (T) as he was not a listed witness. On the other hand, both the listed witnesses have been duly examined. The Enquiry Officer cannot create any evidence in the absence of the statements in support of the prosecution case. Again, the Disciplinary Authority held that the Enquiry Officer did not consider the fact about the arrest warrant issued to the Applicant. It was not considered because it was outside the scope of the enquiry. Further, contrary to what the Disciplinary Authority has stated the Inquiring Authority has considered the medical certificates submitted by the Applicant during the enquiry. The other ground that the Presenting Officer did not advance any evidence to counter or rebut the evidence produced by the Applicant is also wrong as the Presenting Officer can produce only those evidence which have been made available by the Disciplinary Authority and nothing else……”

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

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

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

17. For the foregoing reasons, we do not find any illegality or infirmity in the impugned judgment dated 29.10.2014, that warrants any interference by this Court in exercise of writ jurisdiction.

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

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