1 WP 8949 of 2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8949 of 2004 Madhukar G. Wagh, ) Age 71 years, lastly working as ) Scientific Officer/Engineering (SG) ) as Additional Chief Engineer in BARC, ) Department of Atomic Energy ) Anushakti Bhavan, Appollo Bunder, ) Mumbai – 400 001, And ) residing at Pushkaraj, 10, Sarasbaug, ) Deonar, Mumbai – 400 088. )..... Petitioner V/s. 1. Union of India, ) through the Secretary, ) Dept. of Atomic Energy, ) Govt. of India, Anushakti ) Bhavan, C.S.M.Marg, ) Appollo Bunder, ) Mumbai – 400 039. ) 2. Union Public Service Commission, ) Dholpur House, Shahajahan Road, ) New Delhi – 110 001. ).... Respondents Mr.Ramesh Ramamurthy, for the petitioner. Ms. Rajani Iyer, Senior Advocate, i/by Mr. Jaydeep Deo, for the respondents. CORAM :P.B.MAJMUDAR & R.M.SAVANT, JJ. JUDGMENT RESERVED ON : 29TH JULY, 2010. JUDGMENT PRONOUNCED ON : 13TH AUGUST, 2010. 2 WP 8949 of 2004 JUDGMENT : (PER P.B.MAJMUDAR, J.) : 1. This petition is directed against the judgment and order passed by the Central Administrative Tribunal, dated 22-06-2004 in Original Application No.995 of 2004. By the aforesaid order, the Tribunal dismissed the Original Application filed by the petitioner and confirmed the order passed by the Disciplinary Authority, imposing the punishment of dismissal from service against him. 2. The petitioner was initially appointed in May 1958 as Senior Scientific Assistant in the Bhabha Atomic Research Centre, Government of India. Later on, the petitioner was promoted from time to time and in August 1986, he was promoted as Additional Chief Engineer (SO/SG). The petitioner was placed under suspension in August 1987, as he was subjected to a departmental inquiry and was served with the chargesheet on 03-08-1988 containing four articles of charges. At the time when the petitioner was working in Nuclear Power Board, he was placed under suspension by an order dated 24/26th June, 1987. The first charge levelled against the petitioner was that while working as Scientific Officer, he was delegated the powers of Executive Engineer during the period between 1984-85, 1985-86 and 1986-87, the petitioner, in connivance with the subordinate officers Shri K.N.Sabhnani, Shri R.P.Sahni and a Private Contractor Shri B.G.Mistry, cheated the Government to the tune of 3 WP 8949 of 2004 Rs.1,58,801.40/- by technically sanctioning non-existent works and thereby committed fraud. It is alleged against the petitioner that he issued tender notice calling upon sealed tenders for the said non-existent works and got comparative statements based on the quotations received in respect of the said non-existent works and issued work orders for the said non-existent works. It is also alleged against the petitioner that the first and final bills were sanctioned by him in respect of the said non-existent works in favour of Shri B.G.Mistry, Contractor. It is also alleged that the aforesaid eight works were not actually carried out and were not in existence at site. 3. The second article of charge which was levelled against the petitioner, was that while functioning as Scientific Officer during the period between 1984-85, 1985-86 and 1986-87, he grossly misused the powers delegated to him and in connivance with Shri B.G.Mistry, Contractor and his subordinate officers, cheated the Government to the tune of Rs.2,60,667/- by technically sanctioning the estimates of non- existent works and by issuing tender notices, calling for the sealed tenders for the said works. It is also alleged against the petitioner that false inspection and completion certificates were recorded in respect of the said non-existent works and first and final bills were also passed in favour of Shri Mistry, Contractor, in respect of the 13 works which were non- 4 WP 8949 of 2004 existent. 4. Article/charge No.3 was in connection with the misusing of financial powers delegated to the petitioner during the period 1986-87, by cheating the Government to the tune of Rs.34,114/- by fraudulently passing the final bill of Shri Mistry regarding providing and fixing 167 Godrej Make Mortice Locks on the basis of the false measurements which were got recorded in connivance with the aforesaid two Engineers and that false certificates were also prepared regarding the completion of the said work and that is how the petitioner has shown lack of integrity. 5. The forth charge levelled against the petitioner was in respect of issuing gate passes in favour of Shri Mistry, during the period between 29-03-1984 to 07-02-1987 and allowed the Contractor to remove 80.965 empty scrap out of the BARC on the basis of the gate passes issued by the petitioner. 6. The petitioner denied the aforesaid charges levelled against him vide his reply dated 22-08-1988. The Inquiry Officer after considering the evidence on record, reached the conclusion that the Articles/charges No.1, 2 and 3 are proved against the petitioner. The Inquiry Officer held that charge No.4 is not proved. The Inquiry Officer thereafter submitted his report to the Disciplinary Authority. A copy of the Inquiry Officer’s report finds place at Page 218 in the compilation. The petitioner 5 WP 8949 of 2004 thereafter, gave his reply to the Inquiry Officer’s report, which is at page 269 in the compilation. The Disciplinary authority thereafter, taking into consideration the report of the Inquiry Officer and the explanation submitted by the petitioner, agreed with the Inquiry Officer’s report and passed an order of dismissal dated 31-05-1993 against the petitioner. The Union Public Service Commission (respondent No.2) was also consulted as required by the provisions of Civil Services Rule and Article 320 of the Constitution of India and thereafter, an order of imposing the aforesaid penalty was passed by the Disciplinary Authority. The petitioner thereafter, preferred a revision application against the order of punishment, which was also dismissed. Against the said order, the petitioner filed Original Application No.995 of 2004 before the Central Administrative Tribunal. The Tribunal by its order dated 22-06-2004 dismissed the said Original Application filed by the petitioner. 7. Previously, in the present Writ Petition, the Division Bench of this Court has passed an order dated 03-04-2008 and allowed the writ petition by setting aside the order of dismissal on the ground that the Disciplinary Authority while obtaining advise from the Union Public Service Commission, sent six documents to the UPSC which were not part of the record of the departmental inquiry. The copies of the same were not furnished to the petitioner. The six documents/files which were not 6 WP 8949 of 2004 part of the record of the departmental inquiry, were forwarded to the UPSC and the UPSC has, while giving its opinion, considered the record of the departmental inquiry. The Division Bench held that the Disciplinary authority is required to seek fresh opinion of the UPSC, excluding the six files or if the Disciplinary authority wants to rely on those documents, it will have to follow the law by taking the said documents on record and thereafter, forward the same to the UPSC for the purpose of seeking its opinion. The Division Bench accordingly set aside the order of the Disciplinary Authority as well as the order passed by the Tribunal and the Disciplinary authority was permitted to pass fresh order in accordance with law. Accordingly, the petitioner was ordered to be reinstated in service and it was held that he shall be entitled to receive subsistence allowance till his retirement and on his retirement, till a fresh order is passed, he shall be entitled for provisional pension in accordance with law. The said order was passed as in the meanwhile the petitioner had already attained the age of superannuation. 8. The respondent No.1 challenged the aforesaid order before the Supreme Court of India by way of Civil Appeal No.854 of 2010 arising out of SLP(C) No.22430 of 2008. The Supreme Court by an order dated 22-01-2010 set aside the order of the Division Bench of this Court and remitted the matter back to the High Court for de novo consideration in 7 WP 8949 of 2004 accordance with law. It has been observed in the said order that the High Court was required to examine whether the delinquent was prejudiced by non-supply of six files? It was also observed that the High Court ought to have given a finding as to whether the files supplied to the UPSC for obtaining its advise under Article 320 of the Constitution of India, had any relevancy to the charges levelled against the delinquent. The Supreme Court in the aforesaid order also observed that there is no finding as to how non-supply of the administrative files has caused prejudice to the delinquent. That is how the matter has been placed before us for deciding the above petition de novo, in the light of the directions given by the Supreme Court in its order. 9. So far as the point regarding non-supply of six documents/files which were sent by the Disciplinary Authority to the UPSC for seeking its opinion is concerned, the learned counsel for the petitioner, has not pressed this point seriously. However, in view of the directions of the Supreme Court, at the time of remanding the matter back to the High Court, we have heard the learned counsel for the petitioner as well as the learned Senior Counsel for the respondents, on this point. 10. In this connection, it is pertinent to note that the aforesaid six documents/files are also made available for the perusal of the Court and the same were also shown to the learned counsel for the petitioner. It 8 WP 8949 of 2004 is also required to be noted that the departmental inquiry was initiated against the petitioner in connection with the four articles of charges. The charge No.4 was not proved against the petitioner and rest of the charges were held to be proved. The charges levelled against the petitioner were in connection with inviting tenders and giving civil engineering works to a contractor, and on physical inspection of the same, it was found that the such work was not in existence. The Inquiry Officer after considering the evidence on record found that the three charges were proved against the petitioner, which finding was accepted by the Disciplinary Authority and passed the impugned order of dismissal. It is no doubt true that while seeking the advise of UPSC, the Disciplinary authority had sent service record of the petitioner in the form of the aforesaid six files. So far as these documents are concerned, the same are in connection with the past service record of the petitioner. The Inquiry Officer’s report is not based on such past record of the petitioner, which was sent to the UPSC at the time of seeking its advise. It is required to be noted that if any documents on which reliance has been placed before the Inquiry Officer by the department, the same are required to be given to the delinquent. If any documents which are not forming part of the inquiry proceedings, naturally they are not required to be given to the delinquent, as the material on which reliance has been placed in an inquiry, such documents 9 WP 8949 of 2004 are required to be given to the delinquent. It is required to be noted that the finding of the Inquiry Officer is neither based on any past service record of the petitioner, nor penalty order is passed by considering the past service record of the petitioner. After the conclusion of the inquiry, the Inquiry Officer submitted his report as per the evidence led before him and the Disciplinary Authority accepted the said report. While seeking the opinion of the UPSC, certain documents were sent only in connection with the past service record of the petitioner, which has no bearing with the disciplinary proceedings in any manner. It is required to be noted that the Disciplinary Authority recommended the penalty of dismissal on the basis of the charges levelled and proved against the petitioner. It is not the case where the UPSC recommended any enhanced punishment on the basis of the service record of the petitioner placed before it. In such an eventuality, perhaps a different consideration may arise. But when the UPSC agreed with the punishment suggested by the Disciplinary Authority on the basis of the evidence led before the Inquiry Officer, in our view, simply because the service record of the petitioner was sent to the UPSC, which has no connection with the department inquiry in any case, cannot vitiate the order of disciplinary authority in any manner. Since the so-called six documents/files have no relevancy in the departmental proceedings in any manner, nor the punishment order is passed on the basis of the said 10 WP 8949 of 2004 documents, in our view, simply because at the time of taking opinion, six documents/files were sent to the UPSC, is no ground for coming to the conclusion that the non-supply of such documents/files to the petitioner, vitiates the order passed by the disciplinary authority. At the time of seeking opinion, service record of the petitioner was sent in the form of six files to the UPSC and the UPSC has agreed with the suggested punishment. It is not the case where any additional penalty suggested by the disciplinary authority, is recommended by the UPSC on the basis of the said documents. In our view, it cannot be said that simply because additional documents were sent to the UPSC and since the same were not brought to the notice of the petitioner, the order of the disciplinary authority is vitiated in any manner. Even otherwise, in our view, by not furnishing copies of such documents, it can never be said that any prejudice is caused to the petitioner, as the said documents were not part of the departmental proceedings and the order is passed on the basis of the documents and evidence on record produced before the Inquiry Officer. It cannot be said that the advise of the UPSC is based on any new material and in fact, it had agreed with the penalty of dismissal for which its opinion was sought for by the disciplinary authority. The learned counsel for the petitioner is not in a position to point out as to how any prejudice is caused to the petitioner in any manner by non-supply of the 11 WP 8949 of 2004 aforesaid six documents. As pointed out earlier, the learned counsel for the petitioner has not seriously pressed this point, still we have referred the same, in view of the directions of the Supreme Court to consider the said aspect at the time of deciding this petition. 11. The learned counsel for the petitioner has mainly assailed the order of disciplinary authority, which was confirmed by the Central Administrative Tribunal, on the following grounds : (i) It is a case of no evidence and from the evidence on record, it can never be said that the petitioner had committed misconduct as alleged against him in connection with the charge Nos.1 to 3. (ii) The Inquiry Officer could not have conducted a joint inquiry and by holding a joint inquiry, the petitioner was denied opportunity to effectively cross-examine the witnesses. No joint inquiry could have been held as there is no provision under Rule 18 for holding a common inquiry. The disciplinary authority did not allow the petitioner to produce certain documents in order to substantiate his case. (iii) The order of the dismissal passed by the disciplinary authority is not a speaking order. (iv) The petitioner was not afforded fair opportunity to defend his case during the inquiry. 12 WP 8949 of 2004 (v) The penalty is in any case disproportionate to the charges levelled against the petitioner. (vi) The finding of the Inquiry Officer is based on hearsay evidence. 12. On the other hand, Ms.Rajani Iyer, the learned Senior Counsel appearing for the respondents, has supported the findings of the disciplinary authority as well as the order passed by the Central Administrative Tribunal. It is submitted by her that by conducting a simultaneous inquiry, no prejudice can be said to have been caused to the petitioner, nor the petitioner had raised any objection/grievance in this behalf and infact, he participated in the inquiry and now at this stage, such ground is not available to the petitioner. It is submitted by the learned counsel for the respondents that it cannot be said that it is the case of no evidence. According to her, there is ample evidence on record and even during the personal verification, it is noticed that the work in question was not in existence at all. It is submitted by her that in its limited jurisdiction under Articles 226 and 227 of the Constitution of India, this Court cannot reappreciate the evidence on record and even if there is some evidence on record, this Court cannot interfere with the decision of the disciplinary authority, though, in her submission, there is ample evidence against the petitioner in connection with the misconduct alleged and proved against 13 WP 8949 of 2004 him. It is submitted by the learned counsel for the respondents that the point regarding holding of joint inquiry was not taken before the Inquiry Officer and the petitioner submitted to the jurisdiction of the Inquiry Officer and therefore, it can never be said that any prejudice is caused to the petitioner in any manner in this behalf. The petitioner was adopting dilatory tactics, he was allowed to inspect necessary documents and the Inquiry Officer’s conclusion is based on the available material on record. The learned counsel for the respondents has relied upon the documentary evidence in the form of letter written by Chief Security Officer. It is submitted by the learned counsel for the respondents that at the time of commencing inquiry, the petitioner had requested for giving him voluntary retirement, but later on, he was transferred at some other place. The learned counsel for the respondents submitted that even if the letter/report of the Chief Security Officer is to be ignored on the ground that the same was not forming part of the inquiry proceedings, still there is ample evidence on record by which the guilt of the petitioner can be said to have been proved. It is submitted by her that the petitioner wanted to rely upon irrelevant documents which were not form part of the inquiry proceedings and he was only interested in delaying the proceedings. It is submitted by the learned counsel that no prejudice is caused to the petitioner and he was given full opportunity to defend his case and the 14 WP 8949 of 2004 Tribunal has considered this aspect in great detail, this Court may not interfere with the findings of the disciplinary authority in its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. The learned counsel for the respondents has rightly pointed out that the report of the Inquiry Officer is not based on documents which were sent to the UPSC. She submitted that since the petitioner is involved in financial irregularities and is found to be guilty of serious misconduct, the penalty imposed by the disciplinary authority is not required to be interfered with by this Court. 13. We have heard the learned counsel for the petitioner and the learned Senior Counsel for the respondents at great length and have gone through the report of the inquiry officer and the order passed by the disciplinary authority as well as the order passed by the Central Administrative Tribunal. We have also gone through the evidence forming part of the inquiry proceedings. 14. Insofar as the submission of the learned counsel for the petitioner that this is a case of no evidence, is concerned, it is required to be noted that during the inquiry, the inspection report was placed on record by which it was found that the work in question was not in existence. On behalf of the Department, 20 witnesses were examined and on behalf of the petitioner, two witnesses were examined as defence 15 WP 8949 of 2004 witnesses. The Inquiry Officer has assessed the evidence in detail in Para No.4 of its report. The Inquiry Officer has considered the documents in the form of measurement book (Ex.S-32) and has also considered the fact about passing of the bills by the petitioner while submitting inspection certificate at (Ex.S-25). It was found that laying the cast iron pipe were recorded without even caring to compare the lengths of the trenches and the laid pipes and ultimately, bill was passed by the petitioner while submitting the inspection certificate. Regarding some of the work, the observations of the Inquiry Officer reads as under : - 5.7 For work order Ex.S-39, the Shri R.P.Sahni, entered the measurements on 18-09-1985, also signed the abstract and the certificates for the items of excavation and fixing RCC pipe sleeves on 18-09-1985 on page 63 and 64 of MB NO. 698 (Exh.S-40), but the date of completion has been recorded as 03-10-1985 on page No.63 before starting the entry of measurements on 18-09-1985. How can the date of completion of a work be certified 15 days in advance? The quantities of items in the MB (Exh.S-40) for this work order again tally with the estimated quantities (Exh.S-35). The Co. signed the inspection report (Ex.S-41) and passed this bill on 24-10-1985. 15. The Inquiry Officer considered the evidence of Shri T.J.Asnani, Head Personnel Division, who was examined as Witness No.1. In his evidence, he has clearly stated that by clear physical inspection as well as checking with the staff posted at Vashi Complex, that no such 16 WP 8949 of 2004 works were in existence. The Inquiry Officer also considered the evidence of Mr.K.G.R.Nair, then Head Accountant, who has stated that during their visit along with Shri T.J.Asnani and Shri S.Chellappa, it was found that none of the works for which work orders were carried out and the payments have been made for non existing works and this aspect was also verified on questioning the site staff as well as physical inspection. Another witness Shri G.S.Rao (Witness No.4) also confirmed the said aspect. The Inquiry Officer has considered this aspect in para No.5.8 of the inquiry report. It has also been observed by the Inquiry Officer in para No.5.9 of its report, as under : - 5.9 As per the letter dated 10-06-1987 (Ex.S-71) from Shri M.M.Ganu, Chief Security Officer, BARC, Shri B.G.Mistry, Civil Engg. Contractor, does not appear to have worked in the Vashi site during the period from December 1986 to March 1987 on the examination of the record held by the Security Section Vashi Complex, BARC. Shri M.N.Kasbekar, then Head, CED (SW-7) has also stated during his cross- examination that there is a Security Post at Vashi Complex and it was checked from the security that none of the labourers and materials of Shri B.G.Mistry, contractor, had entered the Vashi Complex. Against the two work orders for public health works and miscellaneous works, Shri R.P.Sahni entered the measurements in the MB on 29-01-1987 and 26-02-1987 giving the date of start of work as 08-01-1987 and 02-02-1987 respectively (Ex.S-56 and Ex.S-65). Co. gave the inspection reports certifying completion of works and passed the bills also. In both these work orders, the site of the work has not been written in the MB as well as the estimates as per the statements of the prosecution witnesses and the letter from the Chief Security Officer (Ex.S-71) Shri Mistry, contractor, did not carry out 17 WP 8949 of 2004 any work at Vashi site during the said period. 16. On the basis of the evidence on record, a conclusion was drawn by the Inquiry Officer that it is proved that the petitioner had sanctioned the estimates, issued tender notices, signed the work orders, recorded false inspection reports and had passed the first and final bills for the 8 non-existing works. Accordingly, charge No.1 was held to be proved against the petitioner. 17. The charge No.2 is in connection with