IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.513 of 1997 Date of decision: 2.6.2008 Harminder Singh Petitioner Vs. Union of India & another Respondents Coram: The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Jivesh Sharma, Advocate For the Respondents: Mr. Kulbhushan Khajuria, Advocate Per R.B.Misra, J.(Oral) Heard Mr. Jivesh Sharma, learned counsel for the petitioner and Mr. Kulbhushan Khajuria, learned Central Government Counsel for the respondents. 2. The present writ petition has been preferred under Articles 226/227 of the Constitution of India against the order dated 12.2.1997 passed by the Learned Central Administrative Tribunal in OA No. 247/HP/96 , whereby prayer for quashing charge-sheet dated 7.7.1992, order dated 26.8.1994 passed by disciplinary authority, order dated 14.12.1995 of learned appellate authority along with prayer for getting promotion w.e.f. 29.12.1992 to the post of Senior Audit Officer and for treating the period of absence from 29.7.1990 to 23.8.1990 on duty were declined and the petitioner’s prayer for promotion w.e.f. 29.11.1993 to the 1 Whether reporter of local papers are allowed to see the judgment ? No.. 2 post of Senior Audit Officer was rejected. Petitioner has also challenged the order dated 6.5.1997, whereby, the review application No. 37/1996 preferred in the order dated 12.2.1997 has been rejected. 3. In order to adjudicate the present writ petition, it is necessary to deal with the relevant facts. The petitioner while working as Audit Officer was charge sheeted with three charges as indicated below: i) He as an Audit Officer while entrusted with the supervision of Audit Party comprising of S/Sh. R.K. Gupta, Assistant Audit Officer and Bhoop Ram Sharma, Senior Auditor at Keylong w.e.f. 20.7.1990 remained absent from Keylong Camp from 29.7.1990 to 23.8.1990 and in order to claim to have been present at Keylong, he issued back dated audit memo in respect of the audit objection; ii) In the TA claim, he showed himself to be on casual leave on 6th and 7th August, 1990 but no leave application for the said period was on record and he did not combine 5.8.1990 (Sunday) with his causal leave and had claimed his presence at Keylong Camp on that date. iii) He did not report the fact of absence/leave of Sh. R.K. Gupta, Assistant Audit Officer for the period 4.8.1990 to 18.8.1990 but reported it very date on 29.8.1990. 4. The Inquiry Officer was appointed under Central Civil Services (Classification, Control and Appeal ) Rules, 1965 ( in short “CCS (CCA) Rules ). The charge sheet was submitted to the petitioner and the Inquiry Officer relying on the documentary evidences and after examining the witnesses adduced on behalf of the department as well as defence, has found charge No.(i) proved and report dated 25.1.1994 accordingly submitted by Sh. C. Angrup Bodh, Inquiry Officer/Deputy Accountant General (Admn), wherein charge No. (ii) was said not to have been proved. The petitioner has however accepted the charge No (iii) during the course of preliminary 3 hearings. In reference to such inquiry report, the Disciplinary Authority, i.e. Accountant General (Audit) vide his order dated 26.8.1994 has withheld the petitioner’s promotion for a period of one year and directed that the period of absence from duty from 29.7.1990 to 23.8.1990 be treated as dies non without entailing break in service. In the appeal, the above order was upheld by the Deputy Comptroller & Auditor General of India, the Appellate Authority vide his order dated 14.11.1995. 5. Mainly four grounds were taken before the learned Tribunal for and on behalf of the petitioner. Firstly that the Deputy Accountant General (Admn) being incharge of the Establishment section remained associated with the stages of fact finding inquiry, issuance of charge-sheet, acting as Inquiry Officer and awarding punishment and thus has played double role of prosecutor and the judge, thereby vitiating the inquiry proceedings. The learned Tribunal has arrived at its finding that the inquiry was conducted by Dy. Accountant General ( Admn ) while the Disciplinary Authority was the AG (Audit) as such the DAG (Admn) has not played a double role of prosecutor and judge , accordingly the first point of the petitioner was found not legally sustainable. In respect of second point that the Inquiry Officer acted arbitrarily in relying upon the evidence of PW-1 Sh. R.K. Gupta (more so, when the petitioner hade made a complaint against him) and on the testimony of Sh. Bhoop Ram Sharma, PW-2, though the latter being an independent witness was ignored, thereby vitiating the inquiry proceedings. The learned Tribunal while observing that Sh. Bhoop Ram Sharma cannot be said to be independent witness as he 4 himself was held guilty for making his absence, as such making reliance over such witness cannot be said to be fatal to the disciplinary proceedings. In respect of third point that Rule 14 (16) of CCS (CCA) Rules was violated as the petitioner was called upon to enter into defence witness first and the prosecution witnesses later and then closing the inquiry, as such vitiating the inquiry proceedings. The learned Tribunal has however held that by examining defence assistant of the petitioner firstly cannot be said to be prejudice the proceedings. . In respect of fourth point that there is non adherence of Rule 14(18) of CCS (CCA) Rules so much so when the petitioner was not examined by the Inquiry Officer and was not questioned on the witness appearing in the evidence to enable him to explain the same, learned Tribunal has observed that if the petitioner was willing to clarify any of the circumstances in the evidence appearing against him, it was always open to him to have come forward before the Inquiry Officer to make statement and since the petitioner had not chosen to avail such occasion, therefore, there was no violation of Rule 14 (18) of CCS (CCA) Rules and on that aspect the inquiry proceedings are not vitiated. 6. The learned Tribunal has, however, observed that certain irregularities which occurred during inquiry process and disciplinary proceeding shall not cause prejudice to the petitioner. On appreciation of the materials and on appraisal of the evidences, the Tribunal has not interfered in the decision of disciplinary authority which imposed punishment indicated above. The learned Tribunal has 5 also not interfered in the decision of the appellate authority dated 14.11.1995. 7. It appears from the records that the Dy. AG (Admn) Sh. Angrup Bodh, incharge of establishment section joined as Dy.AG (Admn) on 9.10.1992, whereas Sh. P.P. Singh, Dy. AG (Inspection) under whom the petitioner was then working, remained associated with the fact finding inquiry who recommended to the Accountant General (Audit ) on 28.8.1991 that prima-facie there was a case wherein the petitioner needs to be proceeded against for acting in a manner unbecoming of Government servant. Petitioner, therefore, was issued Memorandum under Rule 16 of CCS (CCA) Rules to show cause as to why disciplinary proceedings may not be initiated against him. Petitioner vide letter dated 30th April, 1992 denied the charges whereupon the disciplinary authority directed to hold inquiry under Rule 16 (i) (b) of CCS (CCA) Rules. Accordingly, petitioner was served charge sheet on 7.7.1992 i.e. much before the date of joining of Sh. Angrup Bodh as Dy. Accountant General (Admn). Since initially, Dy. Accountant General (Inspection ) was appointed as Inquiry Officer, however, he showed his inability to conduct inquiry on health ground. Thereafter, Sh. Angrup Bodh Dy. Accountant General (Admn), at no point of time was associated with the fact finding inquiry, however, was appointed as Inquiry Officer on 27.1.1993, who has conducted the regular inquiry 8. It has also come to our notice that the petitioner had neither alleged bias or prejudice against the Inquiry Officer nor had made any request for change of Inquiry Officer during the process of inquiry . It was the disciplinary authority who after going through the inquiry report and representation of the petitioner dated 30.3.1994, 6 decided to impose the penalty on 26.8.1994 which was affirmed by the Appellate Authority vide his orders dated 14.11.1995. 9. In view of the facts and circumstances, it becomes clear that the Dy. Accountant General has not played double role of prosecutor and judge and inquiry cannot be said to be vitiated on this ground. 10. It has also been brought to our notice that an inquiry was also made against Sh R.K. Gupta, Asstt. Audit Officer and Sh. Bhoop Ram Sharma, Senior Auditor, separately of their absence from duty 4.8.1990 to 18.8.1990 and the disciplinary authority has also imposed penalty of withholding of one increment without cumulative effect for one year against them. In these circumstances, it cannot be said that the Inquiry Officer has acted in arbitrary manner by relying the testimony of PW-1 Sh. R.K. Gupta. It has been brought to our notice that in fact prosecution as well as the petitioner were given due opportunity to produce oral and other evidences. Sh. Bhoop Ram Sharma, Sr. Auditor cannot be said to be an independent witness as he himself was involved in the case and the disciplinary proceedings were also initiated against him wherein he was found guilty, as such Sh. Bhoop Ram Sharma cannot be termed as independent witness. 11. It has also been brought to our notice by the learned counsel for the petitioner that period of more than 2 ½ years is spent in concluding the inquiry vitiating the inquiry. On the other hand, learned counsel for the respondents has submitted that the period of 2 ½ years in concluding the inquiry is just an allegation. The inquiry was completed in a period of nine months and not within 2 ½ years as alleged by the petitioner. 7 12. After hearing learned counsel for the parties, we are of the considered view that the departmental proceedings are not like a criminal trial and standard of proof required in both are different. The required formalities which were necessary for arriving at conclusion which were observed by the respondents were observed, therefore, such inquiry and the findings of disciplinary authority cannot be said to be vitiated. 13 In (2006) 4 Supreme Court Cases 348, A. Sudhakar Vs. Postmaster General, Hyderabad and another, the Supreme Court has held that the non observance of some of the formalities in a given case cannot be said to be the denial of justice, where substantial compliance of procedure has been made in the facts and circumstances. The court or the Tribunal has also not to interfere in the fact finding of disciplinary authority on the ground of improper disciplinary proceedings. In the present facts and circumstances, non observance of some of the norms and principles has not resulted in denial of justice and nothing has been brought to our notice specifically that the petitioner has been prejudiced by non observance of some of the procedures indicated for making inquiry in consonance to the provisions of CCS (CCA) Rules. To strengthen this view, it is necessary to refer paragraph 26 of the judgment supra: “26. It is well settled that those principles of natural justice are not embodied principles. The requirements contained in Article 311 (2) of the Constitution in view of the decision of this Court in Khem Chand V. Union of India- ( 1958 SCR 1080) are held to be as a part of the principles of natural justice. The courts in the aforementioned situation are required to see as to whether non observance of any of the said principles in a given case has resulted in denial of justice. If there had been 8 substantial compliance with the procedure, the court may not interfere. (See State of U.P. V. Om Prakash Gupta (1969) 3 SCC 775) and Kuldeep Singh V. Commissioner of Police (1999) 2 SCC 10. 14. It is also well settled that in the matters of disciplinary proceedings, the High Court has not to make reappraisal or re- appreciate the evidences adduced during disciplinary proceedings and the High Court has not to sit as an appellate authority in reference to the fact finding report of disciplinary authority . In fact, in our considered view, the fresh appreciation of evidence and testing sufficiency of evidences in departmental proceedings is beyond the scope of judicial view of this court in exercise of our power under Article 226 of the Constitution of India. We find no illegality in the impugned order dated 12.2.1997 and the order dated 6.5.1997, the writ petition being devoid of merits, is dismissed 15. In view of the dismissal of the writ petition, pending applications, if any, are also dismissed. ( R.B.Misra ),J. ( Sanjay Karol),J. 2nd June, 2008 (sl)