1. It is one facet of the natural justice - right to a hearing embodied in sub-r (11) of R. 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter called the Ccs (CCA) Rules) - which comes up for consideration mainly by way of statutory construction in these two writs petitions, namely, Civil writs 670 and 717 of 1969.
2. The four petitioners were Sorters in the Railway Mail Service at Delhi. The first four respondents are the concerned departmental officials, the fifth one being the Union of India. The petitioners were suspended by an order dated 5th October, 1968, On 12-12-1968 charge sheets accompanied by a statement of allegations against them were served on the petitioners who were asked to file the written statement in defense within ten days. The charges were that the petitioners had been order by Respondent No. 4 parbhatilal about 01-05 hours on 5-10-1968 to dispose of mails from New Delhi RMS/3 dated 4-10-1968, X-3 out dated 4-10-1963, Central PSO-3 dated 4-10-1968 and Eastern Court Post Office dated 4-10-1968. But they refused to do so. On 16-12-1968, the petitioners made a representation to the Director of Postal Services against the charges brought against them. On 23rd and 26th December 1968, they made an application to the Respondent No. 2 who had served the charges on them to afford them facilities for inspection of the originals of the following documents and provide copies thereof namely:-
1. Attendance Register of 4th, 5th October 1968.
2. Arrangement Register of 18-9-1968 19-9-1968.
3. Statements of Shri. Parbhati Lal, Irm Delhi Rms Shri Attam Ji Ahuja, Supervisor Delhi Rms if they had been recorded already;
4. Log book of Mail van (register of movement of Mail Motors of alternative set M.A. 2
5. Work papers of M.A. 1, M.A. 4, of 4th and 5th October 1968.
6. Dairy notes of Shri Atamjit Ahuja, Supervisor Mail Agency Branch for the 4th and 5th October 1968.
7. Rough note book of M.A. 2, and Daily Report of M.A. 2 of 17-9-1968 also supplied.
8. Daily notes of Shri Parbhati Lal, Inspector Rms for 4th and 5th October, 1968.
3. The petitioners stated that without an inspection of the above documents it would be difficult for them to prepare and submit their defense. On 26th and 27th December 1968, however the Respondent No. 2 allowed the inspection of the first two documents and stated that a copy of the statement of Shri. Parbhatilal being the third document had already been supplied to the petitioners. But documents NO. 4 to 8 were said to be irrelevant and their inspection was refused by necessary implication. On 31-12-1968 and 3-1-1969, the petitioners made a representation to the Respondent No.1, complaining against the order of the Respondent No. 2 disallowing the prayer of the petitioners to inspect the documents considered relevant for the purpose of defense by them and stating that he was biased against the petitioners. They also referred to certain judicial decisions in support of their contention.
The Respondent No. 1 rejected the representation of the petitioners by informing the Respondent No. 2 that the Respondent No. 2 was fully competent to suspend the petitioners and an Enquiry Officer outside Delhi Rms has been appointed and the petitioner should avail themselves of the full opportunity to place their case before him. The Respondent No. 3 was the Enquiry Officer appointed by Respondent No. 1.
4. On 29-1-19698 the petitioners appeared before the Enquiry Officer (Respondent No. 3) and stated in writing before him that they have no confidence in an enquiry conducted by him he being a Class Iii official and also in view of the detailed reasons given in the representations which were made to the Respondents No. 1, (which included the complaint that the Respondent No.2 had illegally disallowed the inspection of relevant documents to the petitioners). The Enquiry Officer however told the petitioners that if they would not participate in the enquiry it would proceed ex parte in their absence. On that, the petitioners asked for ten minutes time to think over and reply. Thereafter, they said they would not participate in the enquiry. As such the enquiries against the petitioners were decided to be pursued in the absence of the petitioners and the next date of enquiry was fixed on 2-2-1969 when the Presenting Officer Shri. Acchru Ram Passi was asked to present the case was heard ex parte against the petitioners and on the report of the Enquiry Officer, the punishment of reduction in rank was imposed on the petitioners.
5. Shri Vasudev Pillai, learned counsel for the petitioners, urged only one ground against the validity of the enquiry, namely, that the refusal by Respondent No. 2 to allow the petitioners an inspection of the relevant documents for preparing their defense vitiated the enquiry as this was in violation of R. 14 (11) of the Ccs (CCA) Rules and also of the general rule of audi alteram partem which is a part of natural justice.
6. The reply to this contention by Shri Deepak Chaudhry learned counsel for the respondents (whose argument was adopted by Shri. O. P. Malhotra learned counsel for the respondents in Civil Writ 717 of 1969) was two fold, namely:-
(1) That the petitioners had no right to inspect the documents not relied upon by the government as such as early stage of the enquiry and thereforee the order refusing inspection was proper.
(2) Even if the said order was wrong, the primary remedy of the petitioners was to file an appeal under Rule 23 of the Ccs (CCA) Rules, 1965. As the petitioners had not availed themselves of the said remedy, the Court should not entertain these writ petitioners.
The questions for decision, thereforee, are:
1. Whether the order refusing inspection of documents contravened Rule 14 (11) of the Ccs (CCA) Rules, 1965 or the audi alteram partem rule of natural justice?
2. Whether the petitions were liable to be dismissed on the preliminary ground that the petitioners had not availed themselves of the remedy of appeal under Rule 23 of the Ccs (CCA) Rules, 1965?
7. Questions No. 1:- In Jung Raj Singh v. Delhi Administration 1970 SLr 400 (Delhi) I had occasion to point out the person facing a disciplinary enquiry has a right to access to two classes of documents to defend himself, namely (1) those documents relied upon by the Government against the persons subjected to enquiry, and (2) other documents which even though they are not relied upon by the Government in support of the charges against the Government servants facing the enquiry, are nevertheless required by the Government servants for preparing their own defense. I had based this observation on the decisions of the Supreme Court in State of Madhya Pradesh v. Chintaman, Air 1961 Sc 1623 and Triloki Nath v. Union of India, 1967 S Lr 759 (SC). Clearly the documents in question were not those which were relied upon by the Government against the petitioners. Did they fall under the second category of documents which were necessary for the defense of the petitioner: The relevancy of these documents for the defense of the petitioners is explained by them in their rejoinders at length. The importance of these documents for the defense of the petitioners is so obvious that Shri Chaudhry, learned counsel for the respondents did not deny it. It is thereforee clear that the documents were relevant ad their inspection should have been given to the petitioners.
8. Shri Chaudhry however contends that the petitioners could not insist on the inspection to those documents before filing a written documents before filing a written statement of defense. The stage at which the inspection of these documents could be sought by the petitioners is to be determined on a construction of sub-rule (11) of R. 14 of the Ccs (CCA) Rules, 1965. Under sub-rule (3) or R.14 the disciplinary authority has to file a list of documents by which the charges are proposed to be sustained along with the charge-sheet, The Government relied only upon one document which was listed along with the charge sheet. Under sub-rule (4), the Government servant has to submit a written statement of his defense within such time as may be specified by the disciplinary authority.
Under sub-rule (5) the disciplinary authority either it may itself make the enquiry or many appoint another Enquiry Officer. thereforee before the appointment of Respondent No. 3, as an Enquiry Officer, Respondent No. 2 was the disciplinary authority and the Enquiry Officer. The request for the inspection of documents was thereforee properly made before Respondent No. 2 by the petitioners long before Respondent No. 3 was appointed as an Enquiry Officer. Under sub-rule (7) the Government servant has to appear before of enquiring authority within ten days from the date of the receipt of the charges by him. The petitioners thereforee rightly appeared before the Respondent No.2 within this time. Under sub-rules (9) and (10), if the Government servant pleads guilty to the charges then the enquiry authority has to record a finding of guilt in respect the charges to which the Government servant pleads guilty.
9. Under sub-rule (11), if the Government servant fails to appear within the specified time or refuses or omits to plead guilty, the enquiring authority has to pass two orders. On the one hand, it has to require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge and to adjourn the case to a later date not exceeding thirty days. On the other hand even before requiring the Government to produce their evidence, the enquiring authority has to pass an order that the Government servant may for the purpose of preparing his defense.
(i) inspect the documents relied upon by the Government
(ii) submit a list of his own witnesses and
(iii) give a notice within ten days of the above-mentioned order passed by the Enquiry Officer under sub-rule (11) of the discovery or production of any documents which are in the procession of Government but are not mentioned in the list filed by the Government with the chargesheet apparently because the Government has not relied on them.
The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government. Under subrule (12) the enquiry authority shall on no receipt of the notice for the discovery of production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition. Under sub-rule (13) the authority in possession of the documents shall reproduce the same before the enquiry authority.
10. Reading sub-rr (12) and (13) with sub rule (11) (ii) it is clear that before the Enquiry Officer asks the Government to produce their evidence on a date to be fixed by the Enquiry Officer , the Enquiry Officer has to make the government servant aware of the right conferred by sub-rule (11) on the Government servant to give a notice for the inspection of documents which are not relied upon by the Government but which are necessary for the defense of the Government servant. This right can be exercised by the Government servant irrespective of the question whether he files a written statement or not. For, the Government servant has a right to cross-examine the witnesses produced by the Government even if the Government does not file a written statement. For sub-rule 95) (b) makes it clear that even if no written statement is submitted by the Government servant, the disciplinary authority has to enquire into the article of charges. It is this enquiry which is contemplated in sub-rule (11).
The argument of the learned counsel for the respondents, thereforee, that the inspection of the document necessary for the defense of the petitioners could not be insisted upon by the petitioners before the filing of the written statement is contrary to sub-rule (5) (b) read with sub-rule 911) and cannot, thereforee, be accepted. As pointed out in 1970 S Lr 400 (Delhi) referred to above, the necessity of these documents is that they are to be used in the cross-examination of the witnesses of the Government. They have thereforee to be inspired by the petitioners before the enquiry begins and the enquiry may begin even if the petitioners do not file written statement.
11. In Annexure R-2, the Respondent No. 1 writing to Respondent No. 2 has stated that the petitioners may avail themselves of full opportunity to place their case before the new Enquiry Officer. By this the Respondent No. 1, merely allayed the fears of the petitioners that the enquiry by Respondent No. 2 would not be impartial. But the Respondent No. 1 did not answer the complaint made by the petitioners that they were being prejudiced by the refusal of the Respondent No. 2 to allow them to inspect some documents to prepare their defense. This silence of the Respondent No. 1 meant that he did not want to disturb the decision of Respondent No.2 on this point as he had no power to do so. Any decision of the Enquiry Officer can be interfered with only by the appellate authority. This letter of the Respondent No. 1 to the Respondent No. 2 cannot, thereforee be construed as giving the petitioners a right to make request for the inspection of documents again before the Respondent No. 3.
12. In fact, when the case came before the Respondent No. 3 on 29-1-1969, the petitioners filed an application before him on that very date informing him that they had no confidence in the enquiry to be confidence in the enquiry to be confidence in the enquiry to be conducted by him as he was only a Class Iii Government servant like themselves and also because of reasons given by them in the representation to the Respondent No. 1. These reasons included the objection to the enquiry on the ground that the defense of the petitioners would be greatly prejudiced by the refusal of the Respondent No. 2 to allow inspection of documents necessary for the defense of the petitioners. The Respondent No. 3 also did not re-open the question and did not tell the petitioners that they could have the inspection of the desired documents.
The refusal of the petitioners to take part in the enquiry was thereforee due mainly to the order passed the Respondent NO. 2 refusing inspection of documents which greatly prejudiced the petitioners in defending themselves. Their non participation was justified as the order of the Respondent No. 2 was clearly illegal and contrary to sub-rule (11) of R. 154 of the Ccs (CCA) Rules. This is not thereforee a case in which the Government servant who refused to participate in an enquiry with a valid reason is disabled from disputing the result of the enquiry. On the contrary, the justification of the petitioners in refusing to participate in the enquiry stands or fails with the reasons for the non-participation. If the reasons was good, non participation was good. As I have held the reason for non-participation was good, I must hold that non-participation was also justified. Consequently I find that the subsequent enquiry including the orders of reduction in rank passed against the petitioners as a result of the enquiry was vitiated and has to be set aside.
13. Question No. 2:- The appeal against the order of reduction in rank had to be filed within 45 days. That period having expired, the appeals cannot be filed now. The question, thereforee, is whether the writ petitions should be dismissed solely on the ground that the alternative remedy which was available to the petitioners had not been ailed or by them. It is true that the rule is that a writ petition shall not be entertained unless and until the alternative statutory remedy is availed of by the petitioner. This is not however a rule of law but a rule of practice which gives a certain amount of discretion to the Courts. In the present cases, the petitioner refused to participate in the enquiry, inter alia, because they were not given inspection of documents which were necessary for their defense. This was a pure question, of law to be decided on the construction of law to be decided on the construction of Rule 14 (11) of the Ccs (CCA) Rules. The construction of Rule 14 (11) was a comparatively new question decided in this case. It was not covered by previous authorities and it was not likely, thereforee, that the appellate authority would have been in a position to construe the said rule in the absence of legal arguments particularly because the appellate authority would not have had the benefit of any oral argument much less that of a counsel.
14. The petitioners also could not well be expected to file an appeal inasmuch as they had decided to refuse to participate in the proceedings on a question of law. They might have felt that any further participation in the proceedings by way of filing an appeal to the appellate authority would compromise their position. At any rate, it is now to late to refuse to entertain these writ petitions, after having heard full arguments on merits. I, thereforee exercise the discretion to entertain these writ petitions.
15. For the above reasons, the writ petitions are allowed and the disciplinary enquires held against the petitioners are set aside format the stage of which Respondent No. 2 passed the orders refusing inspection of the documents to the petitioner. The orders passed against the petitioners reducing them in rank as a result of the vitiated enquiries were also set aside. As the petitioners by the illegal orders passed by the Respondent No. 2 the costs of these writ petitioners shall be paid to the petitioners by the Respondents No. 5, namely Union of India. There shall be only one set of counsel's fee, which is fixed at Rs.150/-
16. Petitions allowed.