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TMI Blog2015 (2) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... eet before the Central Administrative Tribunal in O.A.No.623 of 2012 which was eventually dismissed on 29.8.2012. Aggrieved by the same, the appellant filed a writ petition in the Allahabad High Court but withdrew the same subsequently. The order of the Central Administrative Tribunal became final. 4. The Enquiry Officer submitted his report on 30.8.2012 exonerating the appellant of all the charges. The copy of the said report is not served on him. 5. On 9.9.2012, the meeting of a Selection Committee for considering the cases of officers of the Indian Administrative Service for promotion to the Super Time Scale-II (ASTS-II) was held. The case of the appellant was considered and the decision was kept in a sealed cover. The appellant, therefore, submitted a representation to the Chief Secretary of the State of Uttar Pradesh on 11.9.2012 requesting that in view of exoneration by the Enquiry Officer, he be promoted to the Super Time Scale-II (ASTS-II). As there was no response to the representation, he approached the Central Administrative Tribunal on 26.9.2012 once again in O.A.No.381 of 2012 with prayer as follows: "a) to issue an order or direction commanding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that it had become infructuous. O.A.No.395/2012 was also dismissed on 20.12.2013 with certain directions. The later decision was challenged by the appellant herein in Writ Petition No.87(S/B) of 2014, in which the order under appeal herein (hereinafter referred to as the Order under APPEAL) came to be passed dismissing the writ petition. 7. The background facts of this case are that a Writ Petition (C) No.37 of 2010 titled "Julio F. Ribero and others vs. Govt. of India including the appellant herein, came to be filed under the name and style of India Rejuvenation Initiative, a non-Government Organisation (NGO). The said Writ Petition along with another culminated in a judgment of this Court in Ram Jethmalani & Others v. Union of India & Others, (2011) 8 SCC 1. All the charges against the appellant are in connection with the filing of the said Writ Petition on the ground that the conduct of the petitioner is violative of the various CONDUCT Rules. Charge No.1 is on account of certain statements made in the said Writ Petition against certain senior officers of the Government of India. The second charge is that the appellant failed to comply with the requirement of Rule 13 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment, either in their own or in another person's name. as such you violated Rule-7 of the All India Service (Conduct) Rules-1968. This conduct of yours is contrary to Rule-3 of the All India Service (Conduct) Rules-1968 and you have violated the aforesaid rule. Charge No.4 In Writ Petition No.37(Civil)/2010 Julio F. Ribero and Others v. Govt. of India and others filed before the Hon'ble Supreme Court, by way of an additional affidavit filed by the petitioners (which also includes), officers of the Enforcement Directorate of Government of India were criticized, whereas as per Rule-8 of the All India Service (Conduct) Rules-1968, members of the All India Service are not allowed to depose in any enquiry wherein the Central or the State government may be criticized. This conduct of yours is contrary to Rule-3 of the All India Service (Conduct) Rules-1968 and you have violated the aforesaid rule. Charge No.5 In Writ Petition No.37(Civil)/2010 Julio F. Ribero and Others v. Govt. of India and others filed before the Hon'ble Supreme Court, no permission of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further argued that the reason given (by the State for rejecting the Enquiry Officer's report) that the enquiry was conducted in violation of the mandate contained in Rules-8(15), 8(16), 8(20) and 8(24) of DISCIPLINE Rules, is wholly unsustainable in law - for the reason that the Order dated 26.9.2012 fails to specify the exact violations of above mentioned rules, committed by the Enquiry Officer. On the other hand, none of these provisions are attracted in the case on hand as each one of the above mentioned rules pertain to the procedure to be followed while conducting an enquiry. Rules 8 (15) and 8(16) of the DISCIPLINE Rules, incorporate the rule of audi altem partem to enable both the delinquent officer as well as the State to adduce evidence in support of their respective stands on the various charges set out in the chargesheet. Rule 8(20) of the 1969 Rules only enables the Enquiry Officer to either receive written briefs or hear both the Presenting Officer and the delinquent. The Rule does not mandate either causes of the action unless the parties desire so. It is not the case of the State at any stage that the Presenting Officer either wanted to be heard in person or to fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions. 16. The first submission of the appellant is to be examined in the light of Rule 8(1), (2) and (3) of the DISCIPLINE Rules. Rule 8 as far as is relevant is extracted: Rule 8. Procedure for imposing major penalties - (1) No order imposing any of the major penalties specified in Rule 6 shall be made except after an inquiry is held as far as may be, in the manner provided in this rule and Rule 10, or, provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a member of the Service, it may appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. (3) Where a Board is appointed as the inquiring authority it shall consist of not less than two senior officers provided that at least one member of such a Board shall be an officer of the service to which the member of the service belongs. 17. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or a multi member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in K.R. Deb v. The Collector of Central Excise, Shillong, (1971) 2 SCC 102, examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered against a sub-Inspector, Central Excise (the appellant before this Court). The inquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed another inquiry officer "to conduct a supplementary open inquiry". Such supplementary inquiry was conducted and a report that there was "no conclusive proof" to "establish the charge" was made. Not satisfied, the disciplinary authority thought it fit that "another inquiry officer should be appointed to inquire afresh into the charge". 22. The Court held that: "12. It seems to us that Rule 15, on the face of it, really 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (15), (16), (20) and (24) of the DISCIPLINE Rules. (iii) The contents of Writ Petition (C) No. 37 of 2010 on the file of this Court constitutes a criticism of the Central Government, and therefore, is a clear violation of Rule 3(1), Rule 7, 8(1) and 17 of the CONDUCT Rules. (iv) That the Inquiry Officer failed to properly investigate the facts before submitting his report. 27. The legality of the IMPUGNED order depends on the tenability of the above. We shall deal with the last of the above-mentioned four reasons: 4th Reason : It is an absolutely untenable ground, since there was nothing for the Enquiry Officer to investigate regarding the facts of the various allegations in the charge-sheet. The appellant herein never disputed the factual correctness of the allegations. He admitted that he was a petitioner in Writ Petition (C) No. 37 (supra). He never disowned any one of the allegations made in the said Writ Petition. Therefore, there were no facts to be investigated into. Ist Reason: Coming to the first reason - that the report is a cursory report. A copy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r desired to file a written brief or make oral submissions, but was prevented from doing so by the Enquiring Authority. Therefore, even this reason must fail. 33. Coming to Rule 8(24), the sub-Rule reads as follows:- "(24)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain- (a) the articles of charge and the statement of imputations of misconduct or misbehaviour; (b) the defence of the member of the Service in respect of each article of charge; (c) an assessment of the evidence in respect of each article of charge; and (d) the findings on each article of charge and the reasons therefore. Explanation. - If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge. Provided that the findings on such article of charge shall not be recorded unless the member of the Service has either admitted the facts on which such article of charge is based or has had a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any act done by him in his private capacity. Provided that he shall submit a report to the Government regarding such action." We fail to understand how this Rule could be said to have been violated, in the background of the allegations contained in the charges framed against the appellant. In our opinion, this rule has no application whatsoever to the allegations contained in the charge-sheet. The rule only prohibits a member of the service from having recourse either to a Court or to the press for vindication of the official acts of such member which have been the subject matter of adverse criticism or a defamatory attack. It is not the content of any one of the charges against the appellant that he sought to vindicate any one of his official acts by filing WP (C) No. 37 of 2010. 36. Rule 7 of the Conduct Rules reads as follows: "7. Criticism of Government. - No member of the service shall, in any Radio Broadcast or communication over any public media or in any document published anonymously, pseudonymously or in his own name or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty except with the previous sanction of the Government. However, sub-rule (3) (b) makes a categorical declaration that nothing in the Rule shall apply to evidence given in any judicial inquiry. Writ petition filed in public interest before the highest court of the country cannot be an inquiry contemplated under Rule 8(i). This is apart from the fact that sub-rule (3)(b) expressly excludes evidence given in any judicial inquiry. Dehors such an exception, Rule 8 would be subversive of the basic freedom of the citizens of this country, detrimental to the norms of good governance and antithetical to the liberal democratic structure of the Constitution. 39. Rule 3(1) reads as follows: "3. General.-(1) Every member of the service shall, at all times, maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service." 40. We are at a loss to comprehend how the filing of the writ petition containing allegations that the Government of India is lax in discharging its constitutional obligations of establishing the rule of law can be said to amount to either failure to maintain absolute integr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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