IMPORTANT POINT
Where Disciplinary Authority proposed to differ with conclusion of Enquiry Officer, apart from complying with principles of natural justice, it was obligatory on his part, even in absence of any show cause filed by delinquent, to analyse the material on record afresh.

Headnote:SERVICE LAW—Order of dismissal —Appellant an Inspector, Central Excise and Custom was found possessing assets disproportionate to his known source of income in a raid conducted by CBI—Criminal case was registered—Disciplinary proceedings were initiated—CBI submitted closure report—Enquiry Officer submitted report exonerating appellant—Disciplinary Authority differed with findings of Enquiry Officer and issued Memo stating reasons for his difference with Enquiry Officer—Appellant failed to file his representation despite two opportunities and finally filed it dt. 7.4.1997 but Authority passed order on 8.4.1997 and representation was stated to have been received there after— Original application filed before Central Administrative Tribunal was dismissed—Writ was summarily rejected—Appeal—Principles of natural justice were required to be complied with by Disciplinary Authority— Disciplinary Authority did not arrive at any independent finding for passing order of dismissal and proceeded on basis that appellant had not filed a show cause—It was obligatory on its part in absence of any show cause to analyse the material on record afresh—Interest of justice with be served if Disciplinary Authority was directed to consider the matter afresh.
Held : In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the Disciplinary Authority. He was also required to apply his mind to the materials on record. The Enquiry Officer arrived at findings which were in favour of the Appellant. Such findings were required to be over turned by the Disciplinary Authority. It is in that view of the matter, the power sought to be exercised by the Disciplinary Authority, although not as that of an appellate authority, but akin thereto. The inquiry report was in favour of the Appellant but the Disciplinary Authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in absence of any show cause filed by the Appellant, to analyse the materials on records afresh. It was all the more necessary because even the CBI, after a thorough investigation in the matter, did not find any case against the Appellant and thus, filed a closure report. It is, therefore, not a case where the Appellant was exonerated by a criminal court after a full fledged trial by giving benefit of doubt. It was also not a case where the Appellant could be held guilty in the disciplinary proceedings applying the standard of proof as preponderance of the probability as contrasted with the standard of proof in a criminal trial, i.e., proof beyond all reasonable doubt. When a final form was filed in favour of the Appellant, the CBI even did not find a prima facie case against him. The Disciplinary Authority in the aforementioned peculiar situation was obligated to apply his mind on the materials brought on record by the parties in the light of the findings arrived at by the Inquiry Officer. He should not have relied only on the reasons, disclosed by him in his show cause notice which, it will bear repetition to state, was only tentative in nature. As the Appellate Authority in arriving at his finding, laid emphasis on the fact that the Appellant has not filed any objection to the show cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hands appears to be an exceptional one as the Appellant was exonerated by the Inquiry Officer. He filed a show cause but, albeit after some time the said cause was available with the Disciplinary Authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show cause as it did not leave his office by then. The expression “communication” in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer. [See State of Punjab vs. Amar Singh Harika, AIR 1966 SC 1313]. Even otherwise also the jurisdiction of a Disciplinary Authority to consider the matter would remain with him till it goes out of his hands which would mean the order is dispatched, as in the case of order of suspension. [See Sultan Sadik v. Sanjay Raj Subba and Others, (2004) 2 SCC 377]. We are, therefore, of the opinion that interest of justice will be sub-served if the Disciplinary Authority is directed to consider the matter afresh in the light of the show cause filed by the Appellant herein before him. It will be desirable that an opportunity of personal hearing is also given to the appellant herein.(Paras 22 to 24)

JUDGMENT

S.B. Sinha, J.—The Appellant herein was an Inspector, Central Excise and Customs, New Delhi. As his father died in harness, he was appointed on compassionate grounds.

2. A raid by the Central Bureau of Investigation (CBI) was conducted in his house on 29th November, 1990. He was allegedly possessing assets disproportionate to his known source of income. A criminal case was initiated against him by the CBI. On or about 31.12.1991, a disciplinary proceeding was initiated against him. The charges framed against him were:

“Article–I – That Shri Ranjit Singh during the year 1981-90 while working as a Government Servant in the capacity of Inspector Customs and Central Excise failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant inasmuch as he by exploiting his official position as a Government servant acquired assets to the tune of Rs. 6,43,737.15 in his own name and in the name of his family members which are disproportionate to the known sources to his income. During the above said period his total income from all known sources comes to Rs. 5,54,924.10 p. and the expenditure comes to Rs. 1,92,676.83 and the assets disproportionate to the known sources of income come to the tune of Rs. 2,81,488.88 p. Thus, said Shri Ranjit Singh by his above acts of omission and commission contravened provisions of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.

Article–II – The Shri Ranjit Singh during the said period while functioning in the above said capacity failed to maintain devotion to duty and acted in a manner unbecoming of a Government servant as much as he invested Rs. 60,000/- in the purchase of FDRs in his own name as well as in the name of his mother Smt. Leelawanti in Punjab and Sind Bank, Vijayawada in 1981 without any intimation to his department/Government as required under Rule 18(3) of the CCS (Conduct) Rules 1964.”

3. A closure report was submitted by the CBI on 20th July, 2001. In the departmental proceeding, the Appellant adduced evidences on his behalf as also cross-examined witnesses examined on behalf of the Department. The Enquiry Officer submitted a report dated 26.9.1996 exonerating him from the said charges. The Disciplinary Authority, however, differed with the findings of the Enquiry Officer and issued a memorandum on or about 17.2.1997 stating the reasons for his difference with the Enquiry Officer and called upon the Appellant to make his representation in his defence to the grounds of disagreement before a final decision is taken stating :

“Any representation which he may wish to make against the tentative opinion will be considered by the undersigned independent of her tentative opinion. Such a representation, if any, should be made in writing and submitted so as to reach the undersigned not later than 10 days from the date of receipt of this memorandum.”

4. By a letter dated 13.3.1997, the Appellant prayed for grant of 10 days time. The same was allowed. Yet again on 25.3.1997, he prayed for further 10 days’ time to submit his representation which was also allowed. It is, however, not in dispute that on or about 7.4.1997, i.e., after the expiry of 10 days time from 25.3.1997, he filed another application for granting 3-4 days time. According to the Disciplinary Authority, the order of punishment was already prepared on 8.4.1997 whereas the said application dated 7.4.1997 reached its hand later.

5. The contention of the Disciplinary Authority in this behalf furthermore is that he was informed by an order dated 21.3.1997 that no further opportunity would be granted to him. The Disciplinary Authority contends that the said order was served on the Appellant but according to him he did not receive the same.

6. The Appellant, however, submitted a memorandum on 10.4.1997 before the Disciplinary Authority stating in details as to why the conclusion of the Enquiry Officer in his report should be upheld. The said memorandum admittedly was not consider

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2006 Supreme(SC) 324

IMPORTANT POINTWhere Disciplinary Authority proposed to differ with conclusion of Enquiry Officer, apart from complying with principles of natural justice, it was obligatory on his part, even in absence of any show cause filed by delinquent, to analyse the material on record afresh.

Cases Referred (3)

IMPORTANT POINT
Where Disciplinary Authority proposed to differ with conclusion of Enquiry Officer, apart from complying with principles of natural justice, it was obligatory on his part, even in absence of any show cause filed by delinquent, to analyse the material on record afresh.