TMI Blog2015 (2) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... nquire into the misconduct of a delinquent officer. The issue is not really whether the Enquiring Authority should be a single member 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 [1971 (4) TMI 94 - SUPREME COURT], examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was held that there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer 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. The scheme of Rule 8 of the DISCIPLINE Rules and Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are similar. Therefore, the principle laid down in Deb’s case [1971 (4) TMI 94 - SUPREME COURT], in our opinion, would squarely apply to the case on hand. We are at a loss to comprehend how the filing of the writ petition containing allegations that the Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant submitted his reply on 5.3.2012. The appellant challenged the chargesheet 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 praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 16.4.2013 on the 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 Government was sought for filing the additional affidavit which was filed by the petitioners (which also includes you), whereas members of the All India S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 file a written brief, therefore, there cannot be any infraction of Rule 8(20) of the 1969 Rules. Lastly, it is submitted that Rule 8(24) of the DISCIPLINE Rules only prescribed the format in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is apparent that Rule 8(1) prohibits imposition of any major penalty without holding an enquiry either in accordance with the procedure prescribed under the Rules or under the provisions of the Public Servants (Inquiries) Act, 1850. 18. Rule 8(2) s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the inquiry or some important witnesses were not available at the time of the inquiry or 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the report is not made available to the appellant. The content of the said report is not known. The only admitted fact about the report is that the appellant was exonerated of all the charges made against him. If such a conclusion is otherwise justified, whether the report is cursory or elaborate, should make no difference to the legality of the report. What matters is the correctness of the conclusions recorded, not the length or the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect 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 opportunity of defending himself against such article of charge. (ii) The inquiring authority shall forward to the disciplinary authority the records of inquiry which shall include- (a) the report prepared by it under clause (i); (b) the written statement of defence, if any, submitted by the member of the Service; (c) the oral and documentary evidence produced in the course of the inquiry; (d) written briefs, if any, filed by the Presenting Officer or the member of the Service or both during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 opinion- (i) which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government; or (ii) which is capable of embarrassing the relations between the Central Government and any State Government; or (iii) which is capable of embarrassing the relations between the Central Government and the Government of any Foreign State: Provided that nothing in this rule shall apply to any statement made or views expressed by a member of the service in his official capacity and in the due performance of the duties assigned to him. 37. Clearly this Rule only prohibits criticism of the policies of the Government or making of any statement which is likely to embarrass the relations between the Government of India and a Foreign State or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the rule of law can be said to amount to either failure to maintain absolute integrity and devotion to duty or of indulging in conduct unbecoming of a member of the service. 41. Even otherwise, the IMPUGNED order, in our opinion is wholly untenable. The purpose behind the proceedings appears calculated to harass the appellant since he dared to point out certain aspects of mal-administration in the Government of India. The action of the respondents is consistent with their conduct clearly recorded in (2011) 8 SCC 16 . The whole attempt appears to be to suppress any probe into the question of blackmoney by whatever means fair or foul. The present impugned proceedings are nothing but a part of the strategy to intimidate not only the appellant but also to send a signal to others who might dare in future to expose any mal-administration. The fact remains, that this Court eventually agreed with the substance of the complaint pleaded in Writ Petition No.37 of 2010 and connected matters; and directed an independent inquiry into the issue of black money. 42. The Constitution declares that India is a sovereign democratic Republic. The requirement of such democratic republic is that e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
