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Ram Dayal vs Municipal Corporation Of Delhi ... on 7 October, 1969
The Public servants (Inquiries) Act, 1850
The Administrative Tribunals Act, 1985
Section 14 in The Administrative Tribunals Act, 1985
The Code Of Civil Procedure (Amendment) Act, 2002

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Central Administrative Tribunal - Delhi
Shri Kailash Chand vs The Director Postal Service (P) on 10 August, 2010

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

OA No.2616 of 2008

New Delhi this the 10th day of August, 2010

Honble Shri N.D.Dayal, Member (A)

Honble Dr. Dharam Paul Sharma, Member (J)

Shri Kailash Chand

Son of Shri Nabbu Singh,

Working as Assistant Supdt. of Post Officers,

New Delhi Head Post Office,

Under Delhi Postal Circle,

New Delhi,

R/o Kanjhawala,

New Delhi-110081 and Address for service of notice is

C/o Shri Sant Lal, Advocate, CAT Bar Room,

New Delhi-110001

i .... Applicant

(By Advocate: Shri Sant Lal)

VERSUS

The Union of India, through the Secretary,

M.O.Communications & I.T, Deptt. of Posts,

Dak Bhawan,

New Delhi-110001

The Pr. Chief Postmaster General,

Delhi Circle, Meghdoot Bhawan,

New Delhi-110001

The Director Postal Service (P)

O/O the Chief Postmaster General,

Delhi Circle, Meghdoot Bhawan,

New Delhi-110001

. Respondents

(By Advocate: Shri R.N.Singh)

O R D E R

Dr. Dharam Paul Sharma, Member (J)

This application, filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, is directed against Memo No. Staff/E-Disc-III/KC dated 11.09.06 issued by the Director Postal Services (P, O/O CPMG, New Delhi (Annexure A-1) and Memo No. Staff/E-Disc-III/KC dated 07.01.2008 issued by the Pr. Chief Postmaster General, Delhi Circle, New Delhi (Annexure A-2).

2. Vide Memo dated 11.09.06 (Annexure A-1), the applicant has been informed that an inquiry is proposed to be held against him under Section 14 of the CCS (CCA) Rules,1965 calling upon him to submit his written statement in defence. The statement of articles of charges, annexed to said Memorandum, reads as follows:- ARTICLES OF CHARGE  I

That the said Shri Kailash Chand S/o Shri Naboo Singh, allegedly furnished a certificate dated 14.06.76 from Tehsildar, Bharatpur purporting to be a member of Scheduled Tribe in support of his claim to belong to the ST community. The certificate declares him to belong to Aheria caste. Vide letter No.Nyay/06/100 dated 20.01.06, Collector AND District Magistrate, Bharatpur, has informed that Aheria caste is not included in the schedule of Scheduled Tribes.

That the said Shri Kailash Chand was given notice vide memo number Staff/BB-5/Kailash Chand/KW dated 24.04.06 from the office of Chief Postmaster General, informing him that benefit of belonging to the ST Community was not admissible and asking him to submit his representation, if any, in this regard within 10 days.

That the said Shri KailashChand failed to submit any representation whereby, vide memo number Staff/BB-5/2005-Kailash Chand/KW dated 7.06.06, orders were issued withdrawing benefits of ST community from the said Shri Kailash Chand.

It is, therefore, alleged that the said Shri Kailash Chand by claiming himself as ST, to which community he did not belong, derived unintended benefits. Thereby, the said Shri Kailash Chand is alleged to have failed to maintain absolute integrity and acted in a manner unbecoming of a government servant, thereby allegedly violating the provisions of Rule 3(1)(i) and (iii) of the CCS (Conduct Rules),1964.

ARTICLE OF CHARGE  II

That Shri Kailash Chand, S/o Shri Naboo Singh, allegedly obtained a caste certificate dated 14.06.1976 from Tehsildar Bharatpur purporting him to be a member of Scheduled Tribue in support of his claim to belong to ST Community, though he was not temporarily/ordinarily residing in Bharatpur but is a permanent resident of Hapur, Meerut of Uttar Pradesh State. More, Tehsildar, Bharatpur was not at the time empowered to issue caste certificate in 1976.

It is, therefore, alleged that Shri Kailash Chand obtained and submitted an invalid caste certificate with mala fide intention to support his claim to be a member of a Scheduled Tribe community. The said Shri Kailash Chand is thereby, alleged to have failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant violating the provisions of Rule 3 (1) (i) and (iii) of the CCS (Conduct) Rules,1964.

3. The grievance of the applicant has been that he had already been proceeded against in the earlier departmental proceeding for the same charge wherein, upon his appeal, the charge had not been found proved against him and, therefore, the order of dismissal dated 06.04.2004, issued by the Disciplinary Authority, was set aside and the applicant was directed to be reinstated in service and the period of suspension from the date of suspension to the date of reinstatement was regularized as spent on duty for all purposes under FR 54 (2). A copy of appellate order dated 2.2.2005 is as Annexure A-4. The applicant, therefore, submitted a representation dated 2.2.2007 to the Chief Postmaster General, Delhi Circle on the ground that fresh charge sheet, as has been issued vide Memo dated 11.09.2006, amounts to double jeopardy as he has been proceeded against for the same charge in the earlier inquiry. The said representation was rejected vide Memorandum dated 7.01.2008 (Annexure A-2) holding that the current charge sheet alleges submission of false certificate by an authority not competent to issue the certificate on the basis of evidence that antedates the first charge sheet and thus this is not a charge given in the first charge sheet. Hence the fresh charge sheet does not amount to double jeopardy. Both these memos dated 11.9.2006 and 7.01.2008, as referred to above, are challenged in these proceedings.

4. The brief facts of the case are that the applicant joined as Postal Clerk w.e.f 20.10.1976 against ST quota. The applicant claimed that he belonged to Aheria caste and submitted a certificate dated 14.6.1976 in support of his claim. After due verification, the applicant was given due appointment as aforesaid. He was further promoted as Inspector of Post Offices after passing departmental competitive examination held in 1983 w.e.f. 05.06.84. He was further given promotion to the post of Assistant Superintendent of Post Offices w.e.f. 27.12.87. He further got promotion as HS G-I w.e.f. 29.4.1994. The cadres of Assistant Superintendent of Post Offices and HSG-I were merged w.e.f. 1.1.1996 with the introduction of revised pay scales on the recommendations of Vth CPC. The applicant was, however, placed under suspension vide Memo dated 01.11.1995 by the Disciplinary Authority on the ground of contemplation of disciplinary proceedings against him. The Disciplinary Authority issued charge sheet under Rule 14 of CCS (CCA) Rules, 1965 vide Memo dated 22.3.1996 relating to allege incident of 1976. The said articles of charge read as under- ARTICLE OF CHARGE

That the said Shri Kailash Chand, S/o Shri Naboo Singh, while seeking employment in Delhi Postal Circle as a time scale clerk in the year 1976, declared himself belonging to Scheduled Tribe community and mentioned his Cast as AHERIA against Col.4 (kha) of the application dated 27-1-1976 on plain paper assigned serial No.01610 in the office of Postmaster General, Delhi Circle, New Delhi-110001. Inspite of the Warning printed at the bottom of the attestation form, the said Shri Kailash Chand mentioned his community as S.T. vide Col. 9 (b) there of while filling it on 28-6-76 after his selection as Clerk against S.T. quota. It was subsequently found that the caste AHERIA is not specified as S.T. community in the Presidential Orders. It is, therefore, alleged that the said Shri Kailash Chand by claiming himself as S.T. to which community he does not belong and dirived unintended benefits in the matter of securing employment as clerk and subsequent promotions to the cadres of Inspectors/Asstt. Supdts/HSG-I which render him unfit and unsuitable for continuance in service.

5. The applicant submitted his representation against the said charge sheet and denied the charges leveled against him.

6. Not agreeing with the applicants claim, the Disciplinary Authority appointed the Inquiry Officer vide Memo dated 24.4.1996. The Inquiry Officer completed the inquiry and submitted the inquiry report to the Disciplinary Authority on 22.9.1997 holding the charges as not proved. A copy of said report was not provided to the applicant. The Disciplinary Authority did not agree with the inquiry report and remitted the matter back to the Inquiry Officer on 18.12.97 for further inquiry from the stage of examination of SW4 with certain directions and instructions. The copy of inquiry report was, however, not provided to the applicant. The applicants grievance is that the said further inquiry was done more with a view to fill up the gap in the evidence in the earlier inquiry and the same was not permissible under Rule 14(15) of CCS (CCA) Rules, 1965. The Inquiry Officer made further inquiry despite the objections so raised by the applicant. He completed the said inquiry and submitted second inquiry report on 30.3.99 holding the charge as proved. A copy of inquiry report was supplied by the Disciplinary Authority to the applicant against which he submitted his representation dated 23.06.2000.

7. Upon consideration of the applicants representation, as well as the inquiry report, the Disciplinary Authority imposed penalty of dismissal from service on the applicant vide Memo dated 6.04.2004.

8. The applicant preferred an appeal against the said order of dismissal to the appellate authority on 11.05.2004. The appeal was allowed by the appellate authority on 02.02.2005 whereby the order of dismissal was set aside and the applicant was directed to be reinstated in service with all consequential benefits. The said order has been duly implemented by the respondents though there has been some controversy as to the regularization of period of suspension which too was ultimately settled in favour of the applicant in OA NO.2431/2006 filed by the applicant. Notwithstanding all this, the respondents have issued the impugned charge sheet and thereby proceeded in the same very matter which had earlier been decided in favour of the applicant, as referred to above.

9. The principal ground, on which the legality of impugned orders is being assailed, is that it is not open to the respondents to issue second charge sheet in the matter which has earlier been enquired into and finalized in favour of the applicant. It is thus alleged that the impugned charge sheet dated 11.9.2006 has been issued on the same basic charge which has been the subject matter of the earlier charge sheet/disciplinary proceeding. The earlier charge sheet was issued about 20 years of the incident and the second charge sheet was issued after 30 years. It is clear from both the charge sheets that the charge is based on same set of facts. In pith and substance, the charge against the applicant has throughout been that he, by claiming himself as a member of ST community to which he did not belong, has derived unintended benefits. This course of action of the respondents is not permissible under law. In support of this, the applicant has relied upon the case of The State of Assam and another Vs. J.N.Roy Biswas (AIR 1975 Supreme Court 2277) wherein, inter alia, it has been held that No rule of double jeopardy bars but absence of power under a rule inhibits a second inquiry by the Disciplinary Authority after the delinquent had once been absolved. Once a disciplinary case has closed and the official re-instated, presumably on full exoneration, a chagrined Government cannot restart the exercise in the absence of specific power to review or revise vested by rules in some authority. The basics of the rule of law cannot be breached without a legal provision or other vitiating factor invalidating earlier enquiry. 

10. The learned counsel for the applicant referred to and relied upon the judgment of the Honble Delhi High Court in the case of Prabhu Dayal and ors. vs. Municipal Corporation of Delhi and Ors. (1981 (2) SLJ 123). The learned counsel for the applicant has specifically drawn our attention to Para 9 which reads as under: 9. Domestic enquiries into charges of misconduct of employees do not always inspire any great or abiding faith and confidence in their impartiality because employer virtually becomes a judge in his own cause by appointing his own nominee as the Enquiry Officer. The eroding faith in the domestic enquiry will vanish altogether if an employer can go on repeating enquiries till the ultimate result satisfies him in the style of repeating the mixture till the patient is dead. It is, therefore, salutary to visit even domestic enquiries with an increasing content of fairness and insulating as far as possible their per- functoriness. We are, therefore, of the opinion that the respondent Corporation was not entitled to order a fresh enquiry against the petitioners in respect of the same charges which had been validly found by the Labour Court not to have been established or proved before the domestic enquiry. In this view we are supported by the judgment of the Supreme Court in K.R. Deb v. The Collector of Central Excise (AIR 1971 SC 1447). In this case a Constitution Bench of the Supreme Court had occasion to consider Rule 15(1) of the Classification, Control and Appeal Rules which reads as under: Without prejudice to the provisions of the Public Servants (Enquiry) Act 1950 no order imposing on a Government servant any of the penalties specified in clauses (iv) to (vii) of Rule 13 shall be passed except after an enquiry, held as far as may be, in the manner hereinafter provided.

On page 1449 the court observed:

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 inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined 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 ground that the report of the Inquiring Officer or officers does not appeal to the Disciplinary Authority. That Disciplinary Authority has enough powers to consider the evidence itself and come to its own conclusion under Rule 9.

11. It has further been submitted by the learned counsel that while allowing the appeal filed by the applicant, against the order of dismissal vide order dated 2.2.2005, the appellate authority neither remitted the order back to the disciplinary authority for further proceeding nor granted any liberty to the disciplinary authority to restart a fresh enquiry. The appellate authority has, indeed, given finding that the charge, leveled against the applicant has not been proved as is evident from the following findings given by the appellate authority: (i) There is no evidence to show that the appellant was in any way responsible for obtaining the ST certificate by concealment or misrepresentation of facts or using wrong means. Shri Kailash Chand has argued that he had stated the real caste before the Tehsildar Bharatpur who issued the ST Certificate to him.

The certificate was verified twice by the PRI Bharatpur and there is no doubt about its authenticity. The Inquiry Officer has also not found it fake or forged.

The ST certificate was cancelled after issue of chargesheet by Distt. Magistrate Bharatpur w.e.f. 29-07-97 without giving the appellant a chance to represent. No reasons have been given for cancellation nor has it been stated whether the earlier certificate was a genuine one or not.

There is no allegation or evidence that Ex-5 i.e. ST certificate is not genuine document or it has not been issued by a competent authority.

It is common knowledge that a caste would be added or deleted in SC/ST order in a particular state and a caste which is ST in one State may not be ST in another State. It is, therefore, the duty to the authorities to verify at the time of confirmation to verify the caste certificate produced is correct.

12. In view of the aforesaid, it has been very strongly urged that it is not within the competence of the Disciplinary authority to override the decision on the first charge sheet and to restart the matter by issuing second charge sheet in the same very matter.

13. It has further been contended that the second charge sheet is also violative of the provisions of Note below Rule 14(15) of CCS (CCA), 1965 which, inter alia, provides that new evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. It further provides that such evidence may be called only when there is an inherent lacuna or defect in the evidence which has been produced originally. It has thus been contended that it is an abuse of the authority to issue second charge sheet to make use of extraneous papers/documents which could not be produced in the inquiry proceedings being not permissible under the said rule even though inquiry was held twice; the first Inquiry report is dated 22.9.1997 and the second inquiry report is dated 30.3.1999.

14. On the grounds, as stated above, the applicant has prayed for quashing and setting aside the impugned order date 11.9.2006 and also the order dated 7.01.2008 rejecting his representation and sought declaration to the effect that the matter is closed in view of the decision of the appellate authority given vide order dated 2.2.2005 under which the appeal of the applicant was allowed with consequential benefits which has been implemented and has become final.

15. In the reply, the respondents have claimed that the applicant has been proceeded against vide Memo dated 11.9.2006 for obtaining and submitting invalid caste certificate dated 14.06.1976 from Tehsildar, Bharatpur purporting himself to be a Member of Scheduled Tribe. It has been stated that the earlier charge was that he had given false declaration and mentioned his caste as Aheria and his community as ST. The current charge sheet alleges submission of false certificate by an authority not competent to issue the certificate on the basis of evidence that antedates the first charge sheet. Reference has been made by the respondents to the case of Asstt. Superintendent of Posts & Ors Vs. R.Balasinha Babu where the Honble Supreme Court has held that if an employee has played fraud in obtaining appointment, he should not be allowed to get the benefit thereof as the foundation of the appointment collapses and it may not be necessary in such cases to even initiate disciplinary proceedings. It has further been submitted that the Collector and D.M. Bharatpur subsequently cancelled the caste certificate vide order dated 29.7.1999. The applicant is thus alleged to have furnished false information in respect of his community at the time of seeking employment as Time Scale Clerk under ST quota to which he does not belong. It has further been stated that the applicant is permanent resident of Hapur (UP) whereas the caste certificate has been obtained from Bharatpur (Rajasthan).

16. The applicant has filed rejoinder reiterating his submissions made in the OA. It has, however, been submitted that the respondents are trying to twist the charge to justify the issuing of second charge sheet which is otherwise not permissible under law . When the charge of obtaining invalid certificate has not been proved in the detailed earlier inquiry proceedings held under Rule 14 and the applicant has been exonerated, he cannot be preceeded again alleging that the same certificate was given by an authority not competent to do so.

17. At the hearing, the learned counsel for the applicant reiterated the submissions made in the application. He has specifically drawn our attention to the allegations made in the first charge sheet on one hand and in the second charge sheet on the other hand. The first charge sheet is dated 22.03.1996. The allegation is in the following terms: It is, therefore, alleged that the said Shri Kailash Chand by claiming himself as S.T. to which community he does not belong and derived unintended benefits in the matter of securing employment as clerk and subsequent promotions to the cadres of Inspectors/Asstt. Supdts/HSG-I which render him unfit and unsuitable for continuance in service.

18. As against this, there are two charges in the Memo dated 11.09.2006. The first charge is in the following wordings:

It is, therefore, alleged that the said Shri Kailash Chand by claiming himself as ST, to which community he did not belong, derived unintended benefits. Thereby, the said Shri Kailash Chand is alleged to have failed to maintain absolute integrity and acted in a manner unbecoming of a government servant, thereby allegedly violating the provisions of Rule 3(1)(i) and (iii) of the CCS (Conduct Rules),1964.

19. In the second charge, the allegation is as follows:

It is, therefore, alleged that Shri Kailash Chand obtained and submitted an invalid caste certificate with mala fide intention to support his claim to be a member of a Scheduled Tribe community. The said Shri Kailash Chand is thereby, alleged to have failed to maintain absolute integrity and acted in a manner unbecoming of a government servant, thereby allegedly violating the provisions of Rule 3 (1) (i) and (iii) of the CCS (Conduct) Rules,1964.

20. A plain reading of the aforesaid would reveal that the essence of charges leveled against the applicant has been that he by claiming himself as ST to which community he did not belong derived unintended benefits. Article of Charge II in Memo dated 11.9.2006 is only an off-shoot of Charge I. Then he has drawn our specific attention to the operative portion of the appellate authority which reads as follows: In view of the foregoing, it is clear that the proceedings against Shri Kailash Chand are in violation of Rule 14 of CCS (CCA) Rules and are, therefore, vitiated. The charge has not been proved against Shri Kailash Chand. I, therefore, accept the Appeal of Shri Kailash Chand and set aside the order of dismissal issued vide No.Vig/Misc.-11/94 dt.6.4.2004 by the Disciplinary Authority. Shri Kailash Chand should be reinstated immediately and period from date of dismissal to date of reinstatement be regularized as duty for all purposes under FR 54 (2).

21. The learned counsel for the applicant further submitted that the caste certificate dated 14.6.1976 submitted by the applicant, is the same in both the enquiries. The issue being as to whether the applicant actually belongs to ST community and derived the benefit of that caste certificate is also common in both the enquiries. Once the applicant has been exonerated of these charges in a full fledged enquiry, no second enquiry can be held in the same matter de hors the rules.

22. The learned counsel for the respondents controverted these submissions and has drawn our attention to the following observations made in appellate order dated 2.2.2005:

Therefore if the contention of the appellant that Seharia, Sehria and Sahariyaa are the same as Aheria is correct then he is still belongs to Scheduled Tribe. This should have been got verified before any action was taken on the cancellation of the ST certificate by the DM, Bharatpur.

23. The learned counsel for the respondents submitted that the respondents have thus made further enquiry in this regard and found that Ahera is not included in the list of ST.

24. Notwithstanding the aforesaid observations, as referred to above by the respondents counsel, the fact remains that the appellate authority did not remit the matter back to the respondents to make further enquiry in this regard. Furthermore, the cancellation of the certificate that has been relied upon by the respondents would not be of much help to them as this fact has already been taken note of the appellate authority while passing the earlier order. It is also an admitted fact that the appellate authority had not given any liberty to enquire the matter afresh to the respondents.

24. It is well established proposition of the law of inquiry that a second inquiry is not permissible in law on the same allegations provided that the Disciplinary Authority in the first enquiry has decided the allegations on merits. In a case, where the allegations against the Government servant having been decided on merits, a final order is passed and penalty order of dismissal is unconditionally withdrawn, no fresh enquiry lies in law as has been held in K. Sen Vs. Director Admin., Govt. of India, Dept. of Supply, Directorate-General of Supplies and disposals( 1973 SLJ692) and R.N.Arti Vs. Union of India (1979 SLJ 12 Del. Thus, if a proper enquiry is held and finding is given in that enquiry whether of guilty or innocence, no power is left with the Government to hold again a second enquiry on the same charges. It is, indeed, open to the Disciplinary Authority to take a different view from the view recorded by the Inquiry Officer, yet it cannot go on conducting the inquiries again and again till the guilt of the employee is proved. It tantamounts to harassment even though the principle of double jeopardy is not applicable as has been held in M.Kolandal Gownder Vs. Divisional Engineer, Tamilnadu Electricity Board (1997 (1) SLR Mad.467).

25. The impugned proceeding against the applicant has been in respect of charge contained in charge sheet dated 11.09.2006 claiming himself as ST based upon caste certificate dated 14.6.1976 indicating his caste as Aheria. The substance of the allegation that has been leveled against the applicant is, thus, to the effect that the applicant by claiming himself to be belonged to ST community based on caste certificate dated 14.6.1976 to which community he did not belong, had derived unintended benefits. That charge having been not proved in the first enquiry, the second charge sheet vide Memo dated 11.09.06 on the same set of facts is not permissible in law. As a necessary corollary, the impugned order on the representation of the applicant vide Memo dated 7.01.2008 against the issue of Memorandum of charge sheet dated 11.09.2006 is also not sustainable.

26. In the facts and circumstances, stated above, we allow this application and quash the impugned orders dated 11.09.2006 and 7.01.2008, referred to above. No order as to costs.

(Dr. Dharam Paul Sharma) (N.D.Dayal)

Member (J) Member (A)

/usha/