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2018 Supreme(Gau) 1494
IN THE HIGH COURT OF GAUHATI
Hrishikesh Roy, J.
Om Prakash – Appellant
Versus
Union of India – Respondent
W.P. (C) No. 5814 of 2009
Decided On : 18-01-2018
For the Petitioners: Mr. K. Paul, Mr. A. Verma, Mr. J.P. Chauhan.
For the Respondent: Mr. S. Sarma.
Headnote:
Central Civil Services Classification, Control and Appeal Rules, 1965 - Rule 14, Rule 3(1)(ii), Rule 3(1)(iii) 5(a) of Rule 14 , Rule 9(1), Rule 14(5)(a) - Delinquents admission - Petitioner is a former Cook who was attached with 1071 Field Workshop of GREF and challenge here is to order on basis of Disciplinary Proceeding (DP) and guilty finding penalty of dismissal from service was ordered by Chief Engineer of Project Chetek and cook while serving in HQ BRTF was transferred but he failed to join new Unit and taking an adverse view for not reporting at transferred station missing staff was removed from service and A couple of years after in absentia removal order delinquents wife informed employer that her husband had not visited her for last over years and this led to issuance of desertion declaration and attempt was made to apprehend missing cook and but since his whereabouts could not be found for seven years he was presumed dead and wife was paid terminal benefits like GPF and With this development authorities cancelled removal order and mystery of cook continued for around years and then an application was received from him where cook shown his address as Slither in Assam Although Bareilly was his official address Eventually delinquent reported to Unit line to resume service – Held, law requires that allegation against delinquent should be established through due process as prescribed by Rule of CCS (CCA) Rules but breach of legal requirement is clearly noticed in instant case and for mission of Enquiry Officer and resultant denial of fair opportunity to affected person this Court is constrained to declare that punishment in pursuant to such defective procedure is legally unsustainable impugned dismissal order is thus quashed by Court and respondents however are at liberty to re-conduct proceeding from stage of receipt of written statement of defense and then to record findings with reference to evidence adduced in departmental enquiry and to facilitate fresh inquiry since delinquent may have reached age of superannuation he may be reinstated on notional basis and be kept under suspension for duration of enquiry and Depending on conclusion in fresh proceeding appropriate action is permitted to be taken for delinquent in reference to charge memo and If petitioner is exonerated all service benefits as per norms be given subject to adjustment of terminal benefits paid to delinquents wife It is ordered accordingly with no cost - Petition is allowed
1. Heard Mr. K. Paul, the learned counsel representing the petitioner. The respondents are represented by the learned Central Govt. Counsel (CGC), Mr. S. Sarma.
2. The petitioner is a former Cook, who was attached with the 1071 Field Workshop of the GREF. The challenge here is to the order dated 22.1.2009 (Annexure-F), whereby, on the basis of the Disciplinary Proceeding (DP) and the guilty finding, the penalty of dismissal from service was ordered, by the Chief Engineer of Project Chetak.
3. The major penalty was imposed, under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the CCS (CCA) Rules) and the petitioner contends that the Inquiry authority failed to record evidence to render his finding but based his conclusion on the delinquent's admission in the written statement of defence and also the earlier finding of the Court of Inquiry. This is projected to be infringement of the procedural requirement for the D.P.
4. The cook while serving in the HQ 36 BRTF, was transferred on 1.6.1995 but he failed to join the new Unit. Taking an adverse view for not reporting at the transferred station, the missing staff was removed from service, w.e.f. 16.6.1995. A couple of years after the in absentia removal order on 7.8.1998, the delinquent's wife Smti Maha Devi, informed the employer that her husband had not visited her for last over 5 years. This led to issuance of the desertion declaration and attempt was made to apprehend the missing cook. But since his whereabouts could not be found for seven years, he was presumed dead w.e.f. 29.7.2002 and the wife (Smti Maha Devi) was paid the terminal benefits like GPF, etc. With this development, the authorities on 26.10.2005, cancelled the removal order. The mystery of the cook continued for around 11 years and then on 20.7.2006, an application was received from him where the cook shown his address as Silchar in Assam (Although Barailly was his official address). Eventually on 19.1.2008, the delinquent reported to the Unit line, to resume service.
5. When the missing delinquent applied for resumption of duty on 19.1.2008, the charge memo was issued to him on 8.7.2008, under the CCS (CCA) Rules, containing the following four charges:
"(i) Absented without leave w.e.f. 16 Jun 1995 to 18 Jan 2008 thus exhibited an act of unbecoming conduct of a Government servant in violation of the provisions of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964.
(ii) Producing false/forged medical documents to cover up his prolonged absence from duty thereby violating Rule 3(1)(i) of CCS (Conduct) Rules, 1964.
(iii) Staying with another lady named Ms Anjali for about 12 years and neglecting his legally wedded wife and children thus violating Rule 3(1)(iii) and Govt. of India's decision No. 12 below Rule 3-C of CCS (Conduct) Rules, 1964.
(iv) Gross Negligence in safe custody of Government property i.e., Identity Card and the Clothing Card issued to him by the Government of India, thus violating Rule 3(1)(iii) of CCS (Conduct) Rules, 1964."
6. Since the alleged misconduct is serious enough to impose major penalties, following the written statement, received from the delinquent, the disciplinary authority ordered for an enquiry into the charges. The Inquiry Officer noted that the delinquent admitted his guilt in his written statement of defence and also in the preliminary hearing. Therefore, further enquiry was considered to be redundant by the Inquiry Officer. His assessment of the material on record was that irrefutable evidence in support of the charge of misconduct is available and accordingly, the charges were declared to be proved in the conclusion drawn on 5.11.2008 (Annexure-D).
7. The disciplinary authority thereafter considered the enquiry report and taking note of the gravity of the misconduct, ordered for the delinquent's dismissal from service, under Rule 12 of the CCS (CCA) Rules.
8.1. The petitioner contends that the major penalt
