JUDGMENT [ENTITY], J.
1. By this application filed under [SECTION] of the [ACT], the petitioner has challenged the legality and validity of order dated 02.02.2006 passed by the disciplinary authority and order dated 27.06.2006 passed by the appellate authority. The petitioner has also sought for a relief in the nature of a writ of mandamus as directing the respondent authorities to pay to the petitioner his gratuity with interest upto 12 percent per annum. The case of the petitioner has been contested by the respondent authorities as by way of filing an affidavit-in-opposition.
2. On the basis of allegation made to the extent that the petitioner, while functioning as Superintendent and Asstt. Registrar (Estt.), sent an anonymous letter by post to the Chairman, North Eastern Regional Institute of Science & Technology (NERIST) and Secretary, Ministry of Human Resource & Development, New Delhi. Charges of misconduct were drawn-up and served on the petitioner vide memo dated 06.02.2003. In reference to the above said memo dated 06.02.2003, the petitioner had also submitted a written statement vide his application dated 17.02.2003. It is further disclosed that the petitioner had earlier approached this Court, as in [CASE NUMBER], challenging the memo of charges dated 06.02.2003. The said case was disposed of by this Court vide order dated 27.04.2005. It is further disclosed that the petitioner had further preferred an appeal against the said order dated 27.04.2005, as in [CASE NUMBER] and the Division Bench of this Court over had disposed of the said appeal vide order dated 06.06.2005. Recording the observations of the learned single Judge and also holding that there was no error in the view taken by the learned single Judge, the Division Bench had dismissed the Writ appeal by observing to the extent that the question as to whether, after retirement of the appellant, the proceeding can continue or not can be urged in the departmental proceeding itself and that the other submission in his defence has to be adjudicated on the materials on record of the disciplinary proceeding. Thereafter, the petitioner was directed to appear before the Inquiry Officer on 17.08.2005 vide letter dated 16.08.2005. In reference to the said letter dated 16.08.2005, the petitioner had submitted application dated 25.08.2005 raising preliminary objections against the continuation of the enquiry proceeding. It transpired that in reference to the said letter dated 25.08.2005, by letter dated 29.08.2005, the authority of NERIST had advised the petitioner to approach the Inquiry Officer with respect to the points raised by him. The enquiry proceeding continued and ultimately the Inquiry Officer had submitted the enquiry report dated 21.10.2005. The petitioner submitted representation dated 29.11.2005 as by way of making a reply to the Inquiry Officer's report dated 21.10.2005. In the said representation dated 29.11.2005, the petitioner had raised contentions as to the maintainability of the departmental proceedings as raised in his preliminary objections and also contending to the extent that the report of forensic experts cannot be treated as evidence as to hold that he was associated with the writings of an anonymous letter. Ultimately, by the impugned order dated 02.02.2006, the disciplinary authority had imposed punishment on the petitioner by not allowing any gratuity amount payment (i.e. forfeiting the full gratuity payment). An appeal dated 04.05.2006 was filed before the appellate authority. In the said appeal, various contentions have been raised as challenging the basis of the order of penalty dated 02.02.2006 by traversing the various points that had been raised in his preliminary objections as well as his representation dated 29.11.2005 submitted in reply to the Inquiry Officer's report dated 21.10.2005. By order dated 27.06.2006, the appellate authority had disposed of the appeal holding that there was no merit in the appeal.
3. For the purpose of considering the present application, without stating the entire pleadings exchanged, it may be sufficient to make reference to certain essential facts.
It is the admitted position that the petitioner had effectively retired w.e.f. 30.04.2005. No order was rendered by the NERIST authorities as extending the service of the petitioner beyond 30.04.2005. By memo dated 06.02.2003, it was proposed that an enquiry be held against the petitioner under [SECTION] of the [ACT], hereinafter referred to as the Rules of 1965. Four articles of charges were drawn-up as of misconduct as to be in violation of [SECTION] of the [ACT], hereinafter referred to as the Rules of 1964 read with Clause 110 of the Manual of the Office procedures. The preliminary objection that was raised by the petitioner vide his representation dated 25.08.2005 is not shown to have been considered and disposed of by the Inquiry Officer or the NERIST authorities by a speaking order. Although it has been explained to the extent that the petitioner had not chosen to nominate a person as Defence Assistant at the initial stage of the departmental proceedings, the disciplinary authority had not passed any order appointing Defence Assistant as requested vide his representation dated 25.08.2005 and the Inquiry Officer had also not passed any further direction as requesting the disciplinary authority for appropriate decision in the matter. The Inquiry Officer's report does not indicate as to the manner in which evidence on behalf of the disciplinary authority has been introduced. It is the admitted position that no particular witness was examined in support of the case of the disciplinary authority. No particular witness was therefore examined as to bring into evidence the opinion of the expert who had examined the disputed writings referable to the anonymous letter.
4. In the above factual background, the submissions made by Mr. [ENTITY], learned Counsel for the petitioner and Mr. [ENTITY], learned senior Counsel appearing on behalf of the respondent authorities may be noted.
Mr. [ENTITY], learned Counsel, while referring to various pleadings raised in the present application, submits that the impugned orders cannot be sustained in law and that the petitioner is entitled to the payment of gratuity with all the consequential benefits as in the form of interest. For the sake of brevity, the contentions that have been raised by the learned Counsel for the petitioner maybe summarized as follows:
(a) The petitioner had effectively retired from service w.e.f. 30.04.2005 and the fact that the disciplinary proceedings having been drawn-up in terms of the Rules of 1965 and that the said Rules of 1965 having not made a provision as allowing the disciplinary authority to continue the disciplinary proceedings against an employee after retirement from service, the present is without the authority of law and as such, the impugned order of penalty as a nullity.
(b) The Rules of 1965 specifies various type of penalty that may be imposed but the forfeiture of penalty is not at all specified as a form of penalty and as such, the penalty imposed on the petitioner as forfeiting his gratuity is without any legal sanction.
(c) The disciplinary proceedings on the basis of which the penalty was imposed on the petitioner must be held to be vitiated by illegalities for the reason that the Inquiry Officer had committed procedural irregularities in not considering the preliminary objection raised by the petitioner and that the service of a Defence Assistant was denied to the petitioner and that the enquiry was conducted abruptly without giving a fair opportunity to the petitioner.
(d) The impugned orders dated 02.02.2006 and 27.06.2006 are liable to be held as invalid for the reason that no reasons whatsoever have been recorded and the same have been rendered in arbitrary and mechanical manner without proper application of mind to the facts and circumstances of the case and in particular, in reference to the points raised by the petitioner in his reply to the report of the Enquiry Officer.
(e) The impugned, orders are also liable to be held as without any legal basis as the charges of misconduct are not proved by any evidence whatsoever.
(f) Even if the disputed writings are held to be authorised by the petitioner, the same do not constitute misconduct as sought to be projected in the manner in the memo of charges and in any case, the allegations can be said to have been established by the official inspection report prepared by the Audit party of Accountant General (Audit), Meghalaya, Mizoram and Arunachal Pradesh, [ENTITY], on the accounts of the Director of NERIST for the year 2001-2002 and the same having been made in the interest of the institution of NERIST, the same cannot be held as a basis for questioning the integrity of the petitioner towards the said institution or be understood as adverse criticism of the official policies of the Director, NERIST and the institute.
5. In support of the contention to the extent that the respondent authorities had committed illegalities in continuing the disciplinary proceedings after retirement of the petitioner, the learned Counsel for the petitioner has referred to a number of precedents.
The petitioner having effectively retired w.e.f. 30.04.2005, the learned Counsel submits that the authority could not have any power to extent the service of the petitioner and for this proposition, he has also placed reliance on the decision of the Apex Court as [PRECEDENT]. It is otherwise pointed-out no order was also made extending the service of the petitioner. In support of the proposition that the authority would have no power to continue the disciplinary proceedings, the petitioner has also referred to the decision of the Apex Court as [PRECEDENT], by which decision it has been held that the disciplinary proceedings would lapse on retirement of an employee on superannuation. A reference has also been made to a decision of a single Bench of the Karnataka High Court as reported in [PRECEDENT] wherein it has been held that the general rule is that an employer cannot pro ceed in exercise of his disciplinary jurisdiction against an ex-employee who has retired from service on attaining the age of superannuation except where the law authorizes continuance of a disciplinary proceeding in relation to the grant of pensionary benefits. For the reasons that no pecuniary loss has been caused to the NERIST authorities even on the basis of the articles of charges, the learned Counsel submits that there was no legal basis whatsoever to continue the disciplinary proceedings and for that proposition, he has also referred to a decision of Calcutta High Court as reported in [PRECEDENT]. For the purpose of contending that the order of penalty forfeiting the gratuity is illegal, the learned Counsel refers to the specific provision of the Rules of 1965 dealing with the nature of penalty and also places a reliance on a decision of the Apex Court as reported in [PRECEDENT] wherein it has been held that the order passed by the Government forfeiting the gratuity payable to the appellant must be held to be bad as there is no legal provision empowering the authorities to forfeit gratuity payable to a retired employee. The learned Counsel for the petitioner further refers to a decision of the Delhi High Court as reported in [PRECEDENT] Ex. [PRECEDENT] wherein it has been held that imposition of 5 percent cut of gratuity would not be permissible where there is no provision to impose the cut in the gratuity. Apart from the contention that the disputed writings do not constitute misconduct as projected in articles of charges, the learned Counsel also submits that the action of the authorities in ordering the disciplinary proceedings against the petitioner is liable to be held to be bad in law for the reason that there has been no proper application of mind. He also submits that in any view of the matter, without verifying the veracity of the allegations made in the disputed writings, as otherwise verifiable from the Audit report of the Accountant General (Audit), Shillong, the authorities could not have taken any action against the petitioner. In this connection, the learned Counsel has placed reliance on the decision of the Andhra Pradesh High Court as reported in [PRECEDENT] wherein the said court, while dealing with a case involving the anonymous/pseudonymous letter, held that anonymous or pseudonymous letters should not be encouraged in the interest of discipline in the department but that should also be given due weight against the other factors viz. that such petitions often lead to the discovery of several fraudulent and illegal going-on which equally serves public interest and further expressed that in that particular case the respondents acted rather unusually seeking to punish the petitioners for writing letters without even making any effort to find-out and without even suggesting that the allegations made therein are totally false, unfounded and malicious. The learned Counsel submits that the present case is equally covered by the observations made in the said case and as such, the present case warrants utmost consideration by this Court in proper perspective.
Mr. [ENTITY], learned senior Counsel appearing for NERIST authorities first submits that the power of judicial review that may be exercised by this Court is limited and the present case may also be appreciated in the light of such legal position. He also submits that the petitioner had chosen not to nominate the Defence Assistant in the beginning of the proceedings prior to submitting his preliminary objections and having regard to the nature of the case involved, the petitioner cannot be said to have suffered any prejudice for the reason that the no Defence Assistant was appointed in the disciplinary proceedings. As against the contention raised with respect to the non-production of witness for proving the expert's opinion dealing with the disputed writings, he submits that it is not necessary to produce any particular witness for the same. For the said proposition, he places reliance on the decision of the Apex Court as [PRECEDENT]. According to him, the non-examination of the expert who had examined the disputed writing is not fatal to the case of the disciplinary authority as the case can be said to have been otherwise established on the facts and circumstances itself. In this connection, he has also placed reliance on the decision of the Apex Court as [ENTITY] v. Ms. Suresh Joshi.
6. While dealing with the submissions of the learned Counsel for the parties, it is also considered necessary to note certain aspects of the issues raised in the present application. The disciplinary proceeding was admittedly drawn-up in terms of the Rules of 1965. The petitioner had also effectively retired from service w.e.f. 30.04.2005 on reaching the age of superannuation and there is no specific order rendered by the disciplinary authority as extending the service of the petitioner. It is also not the case of the respondent authorities that the above said proceeding was drawn-up and continued under the provisions of other relevant rules. It is also disputed that the [ACT] is not applicable to the employees of NERIST. It is also not the case of the petitioner that the alleged misconduct of the petitioner had resulted any pecuniary loss to the NERIST institution. Apart from the memo of charges, the impugned orders also disclose that the disciplinary authority and the appellate authority had exercised their powers in terms of the Rules of 1965. No submission has at all been made if the present proceedings can be said to be sanctioned under any other provision of law. The Rules of 1965 does not otherwise provide any provision as empowering the disciplinary authority to continue the disciplinary proceedings after retirement of an employee. Even at the stage of hearing, no particular provision of law has been placed before this Court as to show that the respondent authorities would have the power to continue the disciplinary proceedings. It is stated at the Bar that the payment of gratuity is governed by [ACT], hereinafter referred to as the Act of 1972. While the above said Act of 1972 does not provide for independent proceedings as in the nature of disciplinary proceedings against an employee after retirement, it must also be understood that the present disciplinary proceeding raised in the present case cannot be understood as a proceeding as may be covered by the above said Act of 1972. Therefore, a conclusion may be drawn from the above discussions that the action of the respondent authorities in continuing the disciplinary proceedings after retirement of the petitioner is liable to be held as without legal sanction. Accordingly, as held by the Apex Court in a case as reported in [PRECEDENT] to the extent that the dismissal subsequent to retirement would be inconsequential and superfluous, the contention of the learned Counsel for the petitioner to the extent that the impugned orders are of no legal consequence must be accepted as tenable. On the basis of this conclusion alone, a view may be taken that the application should succeed in challenging the validity and legality the impugned orders dated 02.02.2006 and 27.06.2006.
7. However, in view of the contentions raised by the learned Counsel for the parties, the other aspects of the matter may also be discussed. Having regard to the admitted position as regard the non-examination of the witness, it maybe argued that the appointment of Defence Assistant would not have a bearing on the out-come of the proceeding and therefore, the issue of non-appointment of Defence Assistant may not be an important issue for scrutinizing the legality and validity of the impugned orders. As regard the contention raised by the learned Counsel for the petitioner to the extent that the alleged misconduct of the petitioner would not constitute misconduct as sought to be projected in articles of charges, such submission maybe appropriately appreciated in the light of the facts and evidence on record. In the present case, questions have been raised as to contend that there is no legal evidence even otherwise to establish the misconduct. Therefore, it may only be considered necessary to examine as to whether or not the findings of the inquiry Officer and the disciplinary authority or the appellate authority are based on legal evidence and it is not considered necessary to go into the question as to whether the alleged misconduct of the petitioner can be said to be not covered by the provision of the [ACT], as contended by the learned Counsel for the petitioner.
8. In the present case, it is the admitted position that no witness has been examined on behalf of the disciplinary authority although the names of altogether 10 witnesses were mentioned in the list referred to as Annexure-IV to the memo of charges. The disputed writings and the expert's opinion appeared to have been taken as the basis for the finding of the Enquiry Officer, which the disciplinary authority and the appellate authority have also accepted. It is not otherwise reflected in the report of the Inquiry Officer as to how such materials have been brought on record as evidence. The expert on whose opinion reliance has been placed for the purpose of recording a finding against the petitioner, had not been examined. No evidence is also recorded as to how the said opinion has been obtained. While dealing with this issue, we may also refer to the decisions relied upon by the learned senior Counsel for the NERIST authorities. It maybe mentioned herein that in the decision referred to in [ENTITY] (supra), the non-examination of a witness was with respect to the documentary evidence as of Bank documents. The facts of the above said case do not apply to the present case as the basis of the disciplinary authority is entirely based on the opinion of the expert who had not been examined at all, not to speak of the petitioner being afforded an opportunity of testing such evidence by cross-examination. The other case referred to in [ENTITY] (supra) deals with also the issue of non-examination of expert. However, it may also be noted that the court held that the non-examination of handwriting-expert to prove the genuineness of the signature of the Advocate on cheque was not of any significance and did not cause prejudice to him as the circumstances established clearly pointed towards misconduct of the Advocate. In the present case, questions have been raised that it is a case of no legal evidence. The decision referred to as reported in [PRECEDENT], which the learned Counsel for NERIST authorities has placed a reliance for the purpose of supporting his contention that the burden of proof also lies on the delinquent employee, in my view, would be of no assistance in the present case if it is held that no legal evidence has been brought on record by the disciplinary authority to prove the charges of misconduct. Although as a matter of legal proposition, the law of evidence may not said to be strictly applicable to the disciplinary proceedings, it cannot also be possibly disputed that there must be a legal basis for a finding on the basis of which the disciplinary action is taken.
9. In the present case, it is not established that the materials on record have been brought as by way of bringing the same as legal evidence. The materials on record having not been brought on record as legal evidence or witnesses having not been examined, the petitioner cannot be called-upon to discharge the burden of proof. Considering the different aspects of the matter, a view may, therefore, be taken that it is a case of no legal evidence. In the event the materials brought on record in the manner as indicated above are to be taken as a basis for recording a finding against the petitioner, it must also be held that the same would suffer from a legal infirmities as the procedure adopted by the Inquiry Officer may be treated as vitiated by violation of the principles of natural justice. There is also another aspect of the matter as regard the nature of penalty imposed as in the present form. The Rules of 1965 does not prescribe for forfeiture of gratuity as punishment. As pointed out at the Bar as regard the application of the Act of 1972, a view may also be taken that the present order of penalty forfeiting gratuity is an executive order and such executive order not being sanctioned in accordance with the provisions of the Act of 1972, the impugned orders are liable to be held as violative of the provisions of [ACT].
10. For the reasons discussed above, there is no escape from the conclusion that may be drawn to the extent the finding of the Inquiry Officer is a nullity and in any case, the same is not based on legal evidence as to hold that the petitioner is guilty of the charges of misconduct. Consequently, it must be held that the impugned order dated 02.02.2006 based on the report of the Inquiry Officer is a nullity and illegal and to further hold that the impugned order dated 27.06.2006 is of no legal consequence. Therefore, I am to hold that the impugned orders are liable to be held as bad in law and the same are liable to be set aside. Accordingly, it is ordered that the impugned orders dated 02.02.2006 and 27.06.2006 are set aside and quashed.
11. Consequently, the petitioner is entitled to be paid gratuity in accordance with law. However, taking the position that the payment of gratuity is governed by the provisions of payment of [ACT] and the same should be appropriately dealt with in accordance with the provisions of the said Act of 1972, it is considered appropriate that no further direction be made as in what manner the payment of gratuity should be released or with respect to the aspect of the relief in the form of payment interest as claimed by the petitioner in the present application in the understanding that the appropriate authorities would pass such further appropriate order in the matter on appropriate application that may be made by the petitioner in this regard. In the result, the application is allowed to the extent as indicated above. There shall be no order as to costs.