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Fandurang, G. Adyalkar Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 434 of 1980
Judge
Reported inILR1985Delhi272
ActsConstitution of India - Article 226; Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rule 14(2)
AppellantFandurang, G. Adyalkar
RespondentUnion of India and ors.
Advocates: Randhir Jain and; C.L. Choudhry, Advs
Cases ReferredRajinderpal Abrol v. State of Punjab
Excerpt:
.....(23) on the conclusion of the enquiry a report has to be prepared as provided in the said sub-rule. rule 14(23)(ii) provides that where the disciplinary authority is not the enquiring authority the inquiring authority shall forward to the disciplinary authority the records of the inquiry containing the report and other documents mentioned therein. irrespective of the fact whether the inquiry is held by the disciplinary authority or by any other authority appointed by the disciplinary authority it is the disciplinary authority alone which has to come to the conclusion on the consideration of the evidence on the record whether all or any of the charges are established against the charged officer and thereafter to decide on the penalty it deems fit to impose. this would mean that..........(23) on the conclusion of the inquiry a report has to be prepared as provided in the said sub-rule. rule 14(23) (ii) provides that where the disciplinary authority is not the inquiring authority the inquiring authority shall forward to the disciplinary authority the records of the inquiry containing the report and the other documents mentioned therein. in my view. irrespective of the fact whether the inquiry is held by the disciplinary authority or by any other authority appointed by the disciplinary authority it is the disciplinary authority alone which has to come to a conclusion on the consideration of the evidence on the record whether all or any of the charges are. established against the charged officer and thereafter to decide on the penalty it deems fit to.impose. this would.....
Judgment:

Aggalwal, J.

(1) By this petition under Article 226 of the Constitution of India Dr. P. G. Adyalkar, the petitioner herein,has challenged the legality and validity of the order dated 8/07/1983 by the President of India imposing on the petitioner the penalty of 'dismissal from service'. The petitioner at the relevant time was posted as Director, Eastern Region,Central Ground Water Board, Calcutta.

(2) The relevant facts are these. In response to an advertisement dated 6/12/1952 of the Union Public Service Commission for the post of Assistant Geologist, Geological Survey of India, the petitioner sent his application dated 2 6/12/1952. The petitioner in the application declared that he belonged to 'Halba scheduled tribe. The petitioner was selected by the Union Public Service Commission and recommended for appointment as Assistant Geologist in the Geological Survey of India against a post exclusively reserved for scheduled tribe candidates. The petitioner joined as Assistant Geologist on 27/10/1953.

(3) In response to an advertisement dated 10/12/1955 for the post of Geologist (Junior) the petitioner submitted his application dated 20/12/1955 declaring therein that he belonged to 'Halba' scheduled tribe. The Director, Geological Survey of India, in the letter dated 29/12/1955while forwarding the application stated that though the applicant(petitioner) did not possess the required experience of five years in geological work his application is being forwarded for consideration as a special case as he came from the scheduled tribecommunity. The petitioner was selected by the Union Public Service Commission and recommended for appointment to the post of Geologist (Junior) against a post open to the candidates from all communities. The petitioner joined as Geoloagist(Junior) with effect from 3/05/1957.

(4) On 1/07/1957 the petitioner was confirmed in the post of Assistant Geologist with effect from 1/07/1957 against one of the ten permanent posts reserved for scheduled caste/scheduled tribe candidates.

(5) On a complaint that the petitioner had obtained the appointment to the post of Assistant Geologist by making a false declaration that he belonged to 'Halba' scheduled tribe an enquiry was conducted against the petitioner under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules.1965.The petitioner was charged as under:

'THAT the said Dr. P. G. Adyalkar, now functioning asDirector, Central Ground Water Board, EasternRegion, Calcutta, under the Government of India,Ministry of Agriculture and Irrigation, Department of Agriculture & Cooperation, derived the following advantages in obtaining service as Assistant Geologist,Geological Survey of India, and thereafter by virtue of his false declaration that he belongs to 'Halba'Scheduled Tribe:(1) In response to an advertisement dated 6-12-52of Upsc for the post of Assistant Geologist, Geological Survey of India, he sent his application dated26th December, 1952 falsely declaring therein that he belongs to 'Halba' scheduled Tribe. He was selected by the Upsc and recommended for appointment as Assistant Geologist in Geological Survey of India against a post exclusively reserved for Scheduled Tribe candidates. He joined asAsstt. Geologist on 27-10-1953. (2) In response to an advertisement dt. 10th Dec.,1955 for the post of Geologist (Junior), he submitted his application dt. 28-12-55 falsely declaring therein that he belongs to 'Halba' Scheduled276Tribe. In the letter dt. 29th Dec., 1955, theDirector, Geological Survey of India, while forwarding his application stated that though he did not possess the required experience of 5 years in Geological work, his application was sent for consideration as a special case as he came from Scheduled Tribe community. He was selected by the Upsc and recommended for appointment to the post of Geologist (Junior) against a post open to candidates for all communities. He joined as Geologist (Jr) w.e.f. 3-5-57.(3) He was confirmed in the post of Asstt-Geologistw.e.f. 1-7-1957 against one of the 10 permanent posts reserved for Scheduled Caste scheduled tribe Candidates.Dr. P. G. Adyalkar has, thus, exhibited lack of integrity thereby violating Rule 3 of the Central Civil Services (Conduct) Rules, 1964'.

(6) The petitioner claimed that he originally belonged to village Gullargh at in Melghat Tehsil in Amravati district of Maharashtra and that he belonged to 'Halba' Scheduled Tribe,and that the word 'Koshti' is purely an occupational name to aweaver. The petitioner claimed that his caste is 'Halba' 'Koshti.'

(7) The central issue that arose for determination before the Enquiry Officer was whether the petitioner had by virtue of a false declaration that he belonged to 'Halba' scheduled tribe obtained the appointment to the post of Assistant Geologist in1953, thereafter to the post of Geologis (Junior) in 1957. The prosecution examined a number of witnesses and also produced documentary evidence. The petitioner in his defense examined some witnesses. The Enquiry Officer after a detailed discussion of the material placed before him found as follows:

'IT is found proved that Dr. Adyalkar has all along been shown as 'Koshti' caste in all his educational record and not as 'Halba' scheduled tribe. However, while it is proved that he was appointed as Assistant Geologist in Gsi, against S-T. vacancy, it is also found that he would nave been confirmed as Assistant Geologist from 1-7-57, and appointed as Geologist Jr. from3-5-57 even if he had not been treated as a Scheduled Tribe candidate, i.e, he could have got these benefits as a general candidate due to his competence and learning in the normal course.'

(8) The case was sent for the opinion and advice of the Union Public Service Commission. The Commission after discussing the evidence produced before the Enquiry Officer held that charge I was fully proved against Dr. Adyalkar and charges 2 and 3partially proved. The Commission gave the following advice :

'IN the light of their findings as stated above, and after taking into account all other factors relevant to the case the Commission consider that charges proved against Dr. Adyalkar involve lack of integrity and that he is not a fit person to be retained in Government.service. The Commission advice that the penalty of dismissal from service be imposed on Dr. Adyalkar.'

(9) The President of India who was the disciplinary authority by his order dated 8/07/1983 imposed on the petitioner the penalty of dismissal from service. The relevant portion of the impugned order reads as under :

'AND whereas the Enquiry Authority has since finalised its Report on the 2/04/1983.And whereas on the careful consideration of the report of the Enquiry Authority and on the basis of the evidence adduced during the inquiry and in consultation with the Union Public Service Commission the President is of the opinion that good and sufficient reasons exist for imposing a 'Major'penalty on Dr. Adyalkar, Director, EasternRegion, Central Ground Water Board, Calcutta;Now, thereforee, in exercise of the powers conferred on him under Rule 15(4) of the Central Civil Services (Classification, Control and Appeal)Rules, 1965, the President hereby imposes uponDt. P. O. Adyalkar the penalty of 'DISMISSAL,FROM SERVICE' as specified under clause(ix) of Rule 11 Ibid and the said Dr. P. G.Adyalkar, Director, Eastern Region, Central Ground Water Board, Calcutta, shall stand dismissed from service with effect from the afternoon of the 13/07/1983.'

(10) To appreciate the contentions urged by Mr. Jain, learned counsel for the petitioner, some of the provisions of the Central Civil Services (Classification, Control and Appeal) Rules need to be noticed. Rule 11 enumerates the penalties that can be imposed on a government servant. Clauses (i) to (iv) of rule 11specify the 'minor* penalties and clauses (v) to (ix) the 'major'penalties. Rule 14 lays down the procedure for imposing majorpenalties. Sub-rule (2) of rule 14 provides that whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a government servant it may itself inquire into or appoint under this rule or under the provisions of the Public Servants (Enquiry) Act, 1850, as the case may be, an authority to inquire into the truth thereof. The Explanationn to sub-rule (2) provides that where the disciplinary authority itself holds an enquiry any reference in sub-rule (7) to sub-rule (20)and in sub-rule (22) to the inquiry authority shall be construed as a reference to the disciplinary authority. Sub-rule (23) which is important reads as under :

'(23)(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 the imputations of misconduct or misbehavior;(b) the defense of the Government servant in respect of each article of charge ;(c) an assessment of the evidence in respect of each article of charge.(d) the findings on each article of charge and reasons thereforee.Explanation. If in the opinion of the inquiring authority the proceeding of the inquiry establish any article of charge different from the original articles of the 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 Government servant 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, where it is not itself the disciplinary 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 defense, if any. submitted by the Government servant ;(c) the oral and documentary evidence produced in the course of the inquiry:

Rule 15 reads as under:

'15.(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing remit the case to the inquiring authority for further inquiry and report,and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.(2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose.(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty:Provided that in every case where it is necessary to consult the Commission the record of the inquiry-shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of Rule 11should be imposed on thJ Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed :Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before makingan order imposing any such penalty on the Governmeantservant.'

(11) Shri jain contended that the disciplinary authority in passing the order dismissing the petitioner from service has not given a speaking order. The contention is that the disciplinary authority should have given a reasoned order and recorded its findings on each of the charges. The counsel contended that the reasons mentioned in the order 'on the careful consideration of the report of the inquiry authority and on the basis of the evidence adduced during the evidence and in consultation with the Union Public Service Commission the President is of the opinion that good and sufficient reasons exist for imposing a major penalty' does not make the order a speaking order. The counsel contended that under sub-rule(4)of rule 15 the disciplinary authority should have recorded separate findings on each of the charges and thereafter Voided on the penalty to be imposed on the charged officer.

(12) Shri Chaudhary, learned counsel for the respondents,contended that rule 15 envisages four situations, (i) where the disciplinary authority for reasons to be recorded by it is of the view that further inquiry needs to be made in the case it may remit the case to the inquiring authority for further inquiry and report, (ii) where the disciplinary authority disagrees with the findings of the inquiring authority on any article of charge, the disciplinary authority may record its reasons for such disagreement and thereafter record its own findings on such charge if the evidence on record is sufficient for thepurpose, (iii) where the disciplinary authority having regard its findings on all or any of the articles of charge is of the opinion that all or any of the articles of charge is proved then it may, notwithstanding anything contained in rule 16, make an order imposing any of the penalties specified in clauses (1)to (iv) of rule 16, and (iv) where the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule Ii should be imposed on the government servant it may make the order imposing suchpenalty. The counsel contended that the words in sub-rules(3) and (4) 'if the disciplinary authority having regard to its findings on all or any of the articles of charge' contemplate cases in which the disciplinary authority itself had held the inquiry. The counsel contended that where the disciplinary authority accepts or agrees with the findings of the inquiry officer it has not to record its own findings and make a reasonedorder.

(13) On giving the case my careful thought I am not inclined to agree with the contentions of Shri Chaudhary. Under rule14(2) the inquiry can be held either by the disciplinary authority itself or it may appoint another authority to inquire into the allegations. Under sub-rule (23) on the conclusion of the inquiry a report has to be prepared as provided in the said sub-rule. Rule 14(23) (ii) provides that where the disciplinary authority is not the inquiring authority the inquiring authority shall forward to the disciplinary authority the records of the inquiry containing the report and the other documents mentioned therein. In my view. irrespective of the fact whether the inquiry is held by the disciplinary authority or by any other authority appointed by the disciplinary authority it is the disciplinary authority alone which has to come to a conclusion on the consideration of the evidence on the record whether all or any of the charges are. established against the charged officer and thereafter to decide on the penalty it deems fit to.impose. This would mean that the disciplinary authority has to apply its mind to all the material before it and separate findings on all the charges. This, obviously, has to be by a reasoned order. The mere mention in the order 'that the inquiry report and the evidence produced during the inquiry has been carefully considered' does not, in my opinion, satisfy the requirements of law. I do not mean to suggest that the disciplinary authority has to give a detailed reasoned order but the order must show application of mind.

(14) The impugned order does not, even, show that the disciplinary authority had agreed with or accepted the findings of the inquiring authority. Shri, Chaudhary contended that the executive notes culminating in the impugned order show that the disciplinary authority had agreed with the findings of the inquiring authority. The application of mind should be discernible from the order itself and it would not be permissible to refer to the executive files to guess the reasons.

(15) The above view finds support from the instructions issued in July 1981 by the department of personnel and Administrative Reforms that the order of the disciplinary appellate reviewing authority should be self-contained speaking and reasoned order.

(16) In R. S. Sehgal v. Director General, Posts and Telegraphs and others 1983 (2) SLR 473(1), Mr. Justice S. B. Wad held:

'THERE is no doubt that the impugned order is a nonepeaking order. Being a quasi-judicial order the order must be reasoned order. The law on the point has been very clearly laid down by various decisions of High Courts and the Supreme Court.A final order passed by the Disciplinary Authority must discuss the Department's case, the petitioner'sdefense, the evidence of both the parties, the reasons why the Department's evidence is more acceptable than that of the delinquent The authority must record separate findings on each of thecharges. These are not only the requirements ofa fair trial but the procedure prescribed by Rule14 also requires the same. In the impugned order the Director General has stated that he has 'applied his mind' and 'on an objective assessment' held that the charge against the petitioner is proved.Mere use of words 'application of mind' and 'objective assessment' does not make an order a speaking order. It must be disclosed in the order itself as to how the mind worked, on what material and how the finding was reached. The order must further disclose that the evidence has been objectively assessed, both for the conclusion of guilt and the appropriateness of punishment. As observed by Punjab and Haryana High Court in Rajinderpal Abrol v. State of Punjab 1971 (2) S.L.R. 130(2) 'application of judicial mind has to be seen from the order itself and not that the reasons are to be guessed from the scrutiny of Executive files.'

(17) For the reasons stated I hold that the impugned order is not legal and valid and it is quashed. The disciplinary authority shall be at liberty to pass a fresh order in conformity with law.

(18) Before concluding I would like to emphasise for the consideration of the disciplinary authority that the petitioner Joined the service in 1953. The impugned order was passed on 13/07/1983. The petitioner is due for retirement in July1985. The confidential note file which was produced before me shows that the performance of the petitioner has throughout been very good. This circumstance, to my mind, would be relevant in taking a decision on the question of penalty. The learned counsel for the petitioner stated at the bar that his client is immediately willing to seek voluntary retirement. It would for the disciplinary authority to decide in case it finds the petitioner guilty of the charges as to what punishment it should give.

(19) Another factor which I would like to bring to the notice of the disciplinary authority for its consideration is that the petitioner in the admission form for the B.Sc. examination in 1947 had given his caste 'Halba Koshti'. This could not be a deliberate pre-thought out statement.

(20) The petition is disposed of. The parties shall bear their own costs.


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