Dipankar Datta, J.@mdashThis is an application under Article 226 of the Constitution of India (hereafter writ petition) challenging the judgment and order dated February 10, 2010 passed by the Central Administrative Tribunal (hereafter the Tribunal) in O.A. No. 118/AN/2009.
2. The Petitioner was an Executive Engineer in the Store Division of the Andaman Public Works Department (hereafter APWD).
3. In the months of July, 2002 and October. 2002, two cases were initiated against the Petitioner. In substance, it was alleged that the Petitioner, while serving as an Executive Engineer, amassed assets disproportionate to his known source of income. The Central Bureau of Investigation (hereafter the CBI) was entrusted to investigate into the charges under the Prevention of Corruption Act.
4. On completion of investigation, the Superintendent of Police, Anti-corruption Branch, CBI, Kolkata, forwarded a final report. It was stated by theinvestigating agency that the purchase orders issued by the Petitioner to a private firm for supply of materials to APWD were issued at the approved rate of Government of India. Therefore, no wrongful loss was caused to the government and the Petitioner acquired no wrongful gain. The investigating agency, also, reported that no evidence of conspiracy or cheating could be established in course of investigation.
5. The matter was posted before the learned Special Judge for the acceptance of the final report submitted by the CBI. The learned Special Judge, by order dated June 28, 2006, accepted the final report submitted by the investigating agency u/s 173 of the Code of Criminal Procedure.
6. On the allegation that there were violations of the departmental procedures in issuing the purchase orders, a departmental proceeding was, also, initiated by issuance of memorandum of charge sheet dated July 7, 2004 containing 4 (four) articles of charge framed against the Petitioner. In Annexure-III accompanying the memorandum of charge sheet, being the list of documents, about 41 (forty-one) documents were referred to which would be relied on to substantiate the allegations against the Petitioner.
7. In course of the departmental enquiry, the presenting officer wanted to rely on 5 (five) more documents, which are as under:
1. Requirement letter of all EE''s (1999-2000)
2. Consolidate statement of requirements of materials (1999-2000)
3. Enclosure of minutes of PCA meeting of (1999-2000)
4. Amendment order dated August 4, 2000 (increasing quantity)
5. Changing description letter dated July 28, 2000.
8. The Petitioner strongly objected to the production of those additional documents by the presenting officer. It was stated that those documents were sought to be relied upon against the Petitioner to cure the lacuna in the evidence. Still, the inquiring authority by order dated June 29, 2005 permitted the presenting officer to produce and rely upon those five documents.
9. Several opportunities were granted to the presenting officer to produce those documents. Eventually, on September 17, 2008, the presenting officer expressed his inability before the inquiring authority to produce those documents.
10. Since the inquiry in connection eith the departmental proceeding initiated against the Petitioner had been pending for substantially long period of time without possibility of its completion in the near future, he had earlier approached the Tribunal by filing O.A. 169/AN/2007. The said application was disposed of by an order dated December 10, 2008 with a direction on the disciplinary authority to complete the departmental proceeding within three months from date and to pass appropriate order and communicate to the Petitioner within fifteen days thereof.
11. The inquiring authority completed the enquiry and submitted his report. The same, however, was not furnished to the Petitioner. It has also not been brought on record by the Respondents.
12. The disciplinary authority, however, thought that the matter required re-enquiry inasmuch as the prosecution could not produce those five documents. Therefore, the disciplinary authority by an order dated November 12, 2009 appointed a new inquiring authority, as the earlier inquiring authority was transferred, to re-enquire into the charges framed against the Petitioner and record further evidence on the basis of the said five documents.
13. Feeling aggrieved by the order of the disciplinary authority dated November 12, 2009, the Petitioner approached the Tribunal. The Tribunal by the order impugned, set aside the said order of the disciplinary authority but granted liberty to the disciplinary authority to take a decision as to whether a further inquiry could be held. The Tribunal, inter alia, found that under the rules re-inquiry was not permissible, but further enquiry from the stage where the alleged irregularity was caused could be initiated.
14. Feeling aggrieved by the judgment and order of the Tribunal, the Petitioner presented this writ petition before this Court on April 19, 2010
15. Mr. Bikash Ranjan Bhattacharya, learned senior advocate appearing for the Petitioner submitted that the order of the disciplinary authority dated November 12, 2009 clearly evinces an intention on his part to continue the enquiry for the purpose of obtaining a report adverse to the interest of the Petitioner. He argued that the Petitioner accepted the order of the inquiring authority granting permission to the presenting officer to produce the additional documents. The same could not be produced for reasons best known to the Respondents and now with the submission of the enquiry report, which must have been favourable to the Petitioner, the case has been remitted to a new inquiring authority in abuse of power conferred on the disciplinary authority for causing harassment to the Petitioner and to spoil his chance of promotion.
16. He further contended that the Tribunal failed to appreciate the issue in the proper perspective and committed error of law in granting liberty to the disciplinary authority to proceed afresh from the stage the irregularity was caused.
17. The departmental proceeding, according to him, ought to be brought to rest by quashing the impugned judgment and order.
18. Mr. Mohammed Tabraiz, learned advocate for the Respondents, opposed the writ petition by objecting to its maintainability before this Court at the present stage. Referring to an order dated April 5, 2010 passed by the disciplinary authority in compliance with the order of the Tribunal dated February 2, 20 10 whereby Dr. Alok Saxena, Addl. PCCF, Forest Department, was appointed as inquiring authority to conduct further enquiry into the charges framed against the Petitioner on the basis of the said five additional documents, being an annexure to the counter affidavit filed before this Court, he contended that a fresh cause of action has arisen for the Petitioner to persue his remedy by approaching the Tribunal with a fresh application. According to him, the writ petition was filed by the Petitioner, after the disciplinary authority compiled with the order of the Tribunal, is not maintainable in law.
19. On merits, he contended that in terms of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules (hereafter the Rules), the disciplinary authority has been conferred power to remit a case to the inquiring authority for further enquiry and report and the only requirement of the law is that reasons must support the action of the disciplinary authority in this behalf. He submitted that the five additional documents which the prosecution intended to rely on were in the custody of the CBI so long and, therefore, could not be produced before the inquiring authority. Now that the department has been able to retrieve the said five documents from the CBI, the enquiry must be allowed to be completed by the inquiring authority upon consideration of the said additional documents. He, accordingly, prayed for dismissal of the writ petition.
20. The first point that arises for a decision is whether this writ petition is maintainable or not. If the answer is in the affirmative, the further point that would require an answer is whether on facts and in the circumstances, the disciplinary authority could have acted within the parameters of Rule 15 of the Rules and remit the case for further enquiry.
21. The objection regarding maintainability is dealt with first. It is true that the Petitioner presented this writ petition after the disciplinary authority passed an order availing the leave granted by the Tribunal. That by itself, without anything more, would not prove fatal in respect of maintainability of the writ petition. If the Petitioner is relegated to the Tribunal to challenge the order of the disciplinary authority dated April 5, 2010 (issued availing the liberty granted by the Tribunal itself), the order dated February 10, 2010 of the Tribunal without the same being set aside would stare at the face of the Tribunal and no relief whatsoever can be granted by it. There is force in the submission on behalf of the Petitioner that the Tribunal by the order dated February 10, 2010 granted liberty to proceed and as soon as the liberty was availed by the disciplinary authority, the reason for the Petitioner to feel aggrieved by the order of the Tribunal arose leading to filing of the writ petition. This Court does not consider that simply because the disciplinary authority has passed an order in terms of the order of the Tribunal would foreclose the Petitioner''s right to maintain this writ petition. The objection is misconceived and subsequently(sic), stands overruled.
22. This Court now proposes to deal with the second point. It would be proper to note the relevant part of Rule 15 for deciding such point. The same reads 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 the 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.
23. It appears on bare perusal of Rule 15(1) that the power conferred on the disciplinary authority to remit a case back to the inquiring authority, even after receipt of the enquiry report, must be based on reasons, to be recorded in writing. It follows, a fortiorari, that the reasons must be germane, cogent and valid reasons and the action of remitting the case to the inquiring authority must not be based on the whims, fancy or caprice of the disciplinary authority.
24. Rule 15 came up for consideration before the Constitution Bench of the Supreme Court in
12. It seems to us that Rule 15, on the face of it, provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry 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, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring authority or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
25. The Supreme Court was of the view that if in a particular case there has been no proper inquiry in the sense that some defect has crept into the inquiry or that some witnesses were not. available at the time of inquiry or were not examined for some other reason, the disciplinary authority would be within his right to call upon the inquiring authority to record further evidence. The statement of law appears to have weighed in the mind of the members of the Tribunal while granting opportunity to the disciplinary authority to initiate further inquiry on the basis of the said five additional documents.
26. Having considered the law laid down in K.R. Deb (supra) and the rule itself, this Court is of the opinion that on facts and in the circumstances of the present case, the disciplinary authority was not justified in directing re inquiry and subsequently the Tribunal was also not justified in granting liberty to the disciplinary authority to proceed for conducting further inquiry.
27. The charge sheet alleging that the Petitioner had amassed assets disproportionate to his own source of income, was issued on July 7, 2004. Annexure III to the memorandum of charge sheet, as noted above, reveals that the prosecution intended to rely on 41 (forty-one) documents at the inquiry for driving home the charges. Admittedly, the said 5 (five) documnets were not listed in Annexure III to the charge sheet memorandum as documents on which the prosecution would rely on.
28. However, the Commissioner of Departmental Inquiries, being the inquiring authority by his order dated June 29, 2005, upon reconsideration of the prayer of the presenting officer for production of additional documents ordered that in the interest of justice additional documents may be allowed to be produced by the prosecution to proceed further. This order was made rejecting the objection of the Petitioner. The said additional documents could not be produced before the inquiring authority for more than three years. No evidence has been placed on record to satisfy the Court why the said documents could not be produced and further as to what steps the prosecution had taken to produce the same before the inquiring authority. it appears from the proceedings of inquiry annexed to the affidavit-in-reply filed before us that repeatedly extension of time was granted to the prosecution toproduce the documents, yet the same were not produced and, ultimately, on September 17, 2008 the presenting officer expressed his inability to produce the additional documents. The inquiring authority thereafter proceeded on the basis of the available evidence and submitted his report to the disciplinary authority, whereupon the order dated November 12, 2009 impugned before the Tribunal was issued.
29. It has already been noted that by an order dated December 10, 2008 the Tribunal had directed the disciplinary authority to complete the departmental proceeding within three months from date and to pass appropriate order within fifteen days thereof. In view of the order dated December 10, 2008, the disciplinary authority was under an obligation to complete the departmental proceeding within March 10. 2009 and to pass the the final order within fifteen days thereafter. It is true that it was an order in terrorem but there could hardly be any justification for the disciplinary authority to ignore the direction and take his sweet time to complete the inquiry.
30. The final order on the proceedings by the disciplinary authority was passed more than eight months after the expiry of the time frame fixed by the Tribunal. It does not appear that any prayer for extension of time was made before the Tribunal by the disciplinary authority to complete the inquiry and pass the final order. The disciplinary authority proceeded as if the order of the Tribunal is to be honoured in the breach. It is unfortunate that the
Tribunal in the impugned order has viewed the issue of non-completion of the departmental proceeding within the time frame fixed by its previous order lightly but there can be no two opinions that the Tribunal showed extreme indulgence to the disciplinary authority.
31. Be that as it may, coming back to Rule 15 of the Rules, this Court is convinced that Rule 1 5 is not intended to provide authority to the disciplinary authority to continue to conduct an inquiry into alleged misconduct agasint the charged officer for recording additional evidence to fill up gaps in the prosecution ease and till such time the guilt of the charged officer is sufficiently proved and the desired report is submitted. In support of such finding, reference to Rule 14(15) of the Rules is considered useful.
The same is set out below:
14. Procedure for imposing major penalties.-
(15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government Servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government Servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government Servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government. Servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary, in the interest of justice.
Note.- New evidence shall not be permitted or called for or any witness not to be recalled to fill up any gap in the evidence. Such evidence may he called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.
32. The note extracted supra makes the position clear that new or additional evidence may not be allowed to be taken on record to fill up any gap in the evidence in course of enquiry. The same may be called for only when there is inherent lacuna or defect in the evidence originally produced. The note is a complete answer to the issue raised herein. If new or additional evidence cannot be produced before conclusion of enquiry for filling up gap(s), it follows, a fortiorari, that the same would also not be permissible while the disciplinary authority decides on the next course of action while considering the report of enquiry. It has not been recorded by the disciplinary authority that there has been inherent lacuna or defect in the evidence which was produced originally, requiring additional evidence to be adduced in the enquiry. On the contrary, it seems to be clear that further enquiry by the disciplinary authority has been allowed by the Tribunal oblivious of the limitation in the statutory rules. The disciplinary authority as well as the Tribunal failed to notice the note appended to Rule 14(15) of the Rules, thereby rendering their respective decisions vulnerable.
33. Power conferred by Rule 15(1) of the Rules can be invoked for a limited purpose. As As held in K.R. Deb (supra), further enquiry may be ordered only if there is improper enquiry. The power as conferred must be exercised with caution and circumspection and in appropriate cases where the defect in the enquiry proceeding is found to be of such an extent that the same is vitiated and could be viewed as bad in law. There is nothing on record to suggest that the enquiry leading to the report was conducted in a manner prejudicial to the interest of the prosecution or that there is any infirmity in the procedure adopted by the inquiring authority, rendering the enquiry vitiated. It appears that the Tribunal granted liberty to the disciplinary authority to proceed from the stage the irregularity occurred. If the procesution has failed to produce the additional documents which it sought to rely on for more than three years after it was permitted to do so by the inquiring authority, does it amount to an infirmity in the enquiry for which leave to conduct further enquiry should be granted? In the absence of any explanation as to why the prosecution could not produce the additional documents, could it be said that there was sufficient cause which prevented the prosecution from producing the same? Would it be fair and just procedure to allow the prosecution to fill up the lacuna by producing the additional documents to the detriment and prejudice of the charged officer who successfully repelled the charges against him on the basis of the available materials? The answers to the above questions cannot but be in the negative. The Tribunal failed to pose the correct questions and, therefore, the impugned judgment and order is rendered vitiated.
34. The decision in K.R. Deb (supra) cannot come to the rescue of the disciplinary authority by reason of a distorted reading of paragraph 12 thereof. In the considered view of this Court, the Supreme Court while allowing the civil appeal before it never intended to lay down a propostition of law that would be contrary to the procedure for holding enquiries, as noticed above. Disciplinary proceedings no doubt are quasi-judicial proceedings. The minimum requirement is to ensure a just and reasonable procedure according to the Rules governing the enquiry to ensure that both the prosecution and the charged officer receive an equally fair deal. In other words, to ensure a fair trial ought to be the essence of every departmental proceeding. A party facing enquiry is entitled in law to claim that the procedural safeguards are strictly maintained. It does not appear to this Court that the disciplinary authority independently assessed the facts and circumstances of the case and the orders passed from time to time by the inquiring authority granting repeated extension to the presenting officer to produce the additional documents. He ordered re-inquiry by merely referring to the fact that the additional documents had not been produced, without appreciating that the inquiring authority had played no role in its non-production. If indeed the disciplinary authority had an open mind and not acted as one who is chagrined by the result of enquiry, he ought to have recorded in his order dated November 10, 2009 the vitiating factors that had the effect of invalidating the earlier enquiry. If a party despite being given repeated opportunity to produce a document fails to produce it, he must suffer(sic) consequences therefor, is the law.
35. Corruption of officers in public service can hardly be tolerated an(sic) this Court would appreciate measures taken to weed it out at all costs, be(sic) according to law. Merely because the charge against the Petitioner is grave(sic) and serious and is related to corruption, however, should not be viewed(sic) isolation to direct further inquiry, for the law governing departmental(sic) enquiries for misconduct of a public servant relating to corruption are not(sic) different from these relating to other misconduct. Remitting the case back to the inquiring authority for recording further evidence, on facts andinthe circumstances, reasonably warrents an inference about the inclination of disciplinary authority to come down heavily on the black sheep in his organization and evinces his anxiety not to allow a tainted officer to go scot-free, but the: action does not sustain judicial scrutiny tested on the touchstone of Article 14 of the Constitution.
36. The contention of Mr. Tabraiz, learned advocate, that the additional documents could not be produced before the inquiring authority since the same were in the custody of the CBI has failed to impress this Court. The contention, as raised, is not traceable in the counter affidavit. No counter affidavit was filed by the Respondents before the Tribunal and, thus, this point was also not there before the Tribunal. The proceedings of enquiry have not been produced or annexed to the counter affidavit to demonstrate that the additional documents were in the custody of the CBI. Even if it were so, steps could have been taken to retrieve it much earlier. Why even the photocopies of the documents were not produced before the inquiring authority has also not been explained. The prosecution was clearly remiss in its obligation.
37. This Court is of the view that the Tribunal did not exercise its jurisdiction legally in granting liberty to the disciplinary authority to hold further enquiry inasmuch as the reason for holding further enquiry does not inspire confidence. A public servant cannot be harassed for an indefinite period for the laches and/or inaction of the department. The departmental proceeding has been pending for long six years and remitting the case back to the inquiring authority by the disciplinary authority dehors the Rules ought to have been interdicted by the Tribunal.
38. In the result, the order impugned to the extent it quashes the order of the disciplinary authority dated November 12, 2009 is affirmed but the part of the order granting liberty to the disciplinary authority to proceed afresh from the stage the irregularity was caused, is set aside. As a consequence, steps taken in pursuance thereof shall be of no effect. But the disciplinary authority shall be at liberty to proceed further in accordance with Rule 15of the Rules to conclude the departmental proceeding as early as possible but not later than 3 (three) months from date of receipt of a copy of this order. Needless to observe, the disciplinary authority shall not order further enquiry in terms of Rule 15(1) for recording further evidence. In the event the departmental proceeding cannot be concluded within the time frame fixed above, the Respondents shall grant all the benefits admissible to the Petitioner in accordance with law.
The writ petition is allowed to the extent mentioned above. Parties are left tobear their own costs.
Subhro Kamal Mukherjee, J.
I agree.
