IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 10042 of 2008 Date of Decision: October 1, 2008 Deepak Kumar …Petitioner Versus Union of India and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. H.S. Saini, Advocate, for the petitioner. Mr. Namit Kumar, Advocate, for respondent Nos. 1 to 5. 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The petitioner has approached this Court with a prayer for quashing order dated 8.2.2008 (P-4) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’) in OA No. 231/PB/07. The Original Application filed by the petitioner has been dismissed by the impugned order wherein the petitioner had challenged the issuance of charge sheet, punishment of censure and further order of de novo enquiry by the appellate authority. C.W.P. No. 10042 of 2008 2. Brief facts of the case which have led to the filing of instant petition are that the petitioner had joined service as Lower Division Clerk on 23.5.1989 in the Department of Posts and Telegraph. He opened his savings bank account Account No. 817494. One Mr. Roshan Lal had taken a loan of Rs. 12,500/- from him, which was paid back through Cheque No. 021183, dated 27.2.2001 of the Punjab National Bank, Phagwara. The petitioner stated to have deposited the said cheque in his savings bank account on 14.7.2001 and thereafter withdrew an amount of Rs. 10,500/- on the basis of entry in his passbook on 5.9.2001. The amount was directed to be withdrawn by the official concerned after verifying the balance in his account as well as passbook of the petitioner. The petitioner was transferred to Phagwara in September 2001 and he got his savings bank account closed on 7.9.2001 by withdrawing the balance amount at his credit. 3. The petitioner was issued a charge sheet on 3.11.2003 (A-1) under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for brevity, ‘the Rules’). According to the charge sheet three charges were leveled against him and then departmental enquiry was held. The Enquiry Officer came to the conclusion that the charges were not proved. The punishing authority i.e. Senior Superintendent of Post Offices, Kapurthala, did not act upon the enquiry report. The petitioner was transferred to Ludhiana in March/April 2005 and the file relating to disciplinary proceedings against him was sent to the Senior Superintendent of 2 C.W.P. No. 10042 of 2008 Post Offices, Ludhiana. The file was put up to the Director, Postal Services in April 2006. Thereafter a copy of the enquiry report was furnished to the petitioner alongwith the note of disagreement dated 5.7.2006. After considering the reply submitted by the petitioner, the disciplinary authority inflicted upon him the punishment of ‘censure’, vide order dated 30.8.2006 (A-2). On further appeal preferred by the petitioner the appellate authority, vide order dated 21.3.2007, found a lacuna in the enquiry report, inasmuch as, the Presenting Officer did not give his written brief and the enquiry report has been submitted without receiving those written briefs. He ordered de novo enquiry from the stage of submission of listed documents. 4. The petitioner made a grievance before the Tribunal that the punishment has been awarded to him after two years which had adversely affected his right to get TBOP scale on completion of 16 years of service in 2004. He also complained that on account of de novo enquiry the benefit which would arise to him would be further delayed without any fault on his part. Accordingly, he prayed for quashing the offending charge sheet dated 3.11.2003 (A-1), the order of punishment dated 30.8.2006, passed by the punishing authority (A-2) and also sought quashing of order dated 3.4.2007 (A-3) passed by the appellate authority directing holding of de novo enquiry. The Tribunal on its part upheld the holding of de novo enquiry by placing reliance on Rule 126 of the Post and Telegraph Manual Volume III and the judgment of Hon’ble the Supreme Court in the case of Union of India v. P. Thayagarajan, JT 1998 (8) SC 179. 3 C.W.P. No. 10042 of 2008 5. Before we deal with the merits of the controversy, it would be appropriate to take notice of the order passed by the appellate authority when it directed holding of de novo enquiry. Paras 8 and 9 of the order contained the reasons, which reads as under:- “8. A perusal of the record of the case indicates that certain aspects of the case have not been taken care of properly. Inquiry officer has mentioned in his inquiry report that Sh. Sucha Singh the then ASPO (Central) Jalandhar who was nominated Presiding Officer in the case failed to get the listed documents exhibited as detailed in annexure-III of charge sheet during the course of enquiry. Secondy, the Presenting Officer also did not submit his written briefs on completion of inquiry. The Presenting Officer was directed by the inquiry officer vide Daily Order Sheet no. 11 dated 23.08.2004 to send his written briefs within 10 days with one copy to the charged official under registered post, but the Presenting Officer failed to end the same as directed by the Inquiry officer. The charged official had submitted his written briefs without receiving the Presenting Officer’s briefs and Inquiry Officer had also prepared and submitted inquiry report to the disciplinary authority without the Presenting Officer’s briefs, which resulted in deviation of laid down procedure. 4 C.W.P. No. 10042 of 2008 9. In view of the foregoing discussion and in exercise of powers conferred under Rule-27 of CCS (CCS) Rules, 1965, I hereby remit back the case to the disciplinary authority to initiate denovo proceedings against the said shri Deepak Kumar P.A.SBCO, Ludhiana HO from the stage of examination of listed documents. In the circumstances the penalty of ‘Censure’ imposed vie Director Postal Services, Punjab, Circle, Chandigarh order no. Vig./4-23/06 dated 30.8.2006 is set aside.” 6. A perusal of the file would show variety of reasons for ordering de novo enquiry. The first reason is that the Presenting Officer failed to get the listed documents exhibited as per the detail in Annexures-III of the charge sheet during the course of enquiry. The second reason is that the Presenting Officer did not submit his written brief on the completion of enquiry. However, the basic reason for upholding the order of appellate authority, which has prevailed upon the Tribunal, appears to be that although the cheque for a sum of Rs. 12,500/- was deposited by the petitioner, which had been issued by a bona fide account holder but it was not clear whether holder of the account maintained a sufficient balance on the date of issuance of the cheque. 7. We have heard learned counsel for the parties at a considerable length and perused the paper book with their able assistance. When the matter came up for consideration before this 5 C.W.P. No. 10042 of 2008 Court on 18.9.2008, arguments were heard in some detail and the following order was passed:- “ During the course of arguments it has transpired that appellate authority in purported exercise of power under Rule 27 of the CCS/CCA Rules 1965 (hereinafter referred to as ‘the Rules’) has remitted the case to the disciplinary authority to initiate de novo proceedings against the petitioner from the stage of exhibition of listed documents. The penalty imposed by the Director of postal services vide order dated 30/8/2006 has been set aside. A perusal of Rule 27 of the Rules explains the extent of power vested in the appellate authority and what considerations should weigh with him while passing appellate order. Apart from other, Rule 27(2)(c)(ii) postulates remitting of the case by the appellate authority to another authority which imposed or enhanced the penalty or to any other remedy with such direction as it may deem fit in the circumstances of these cases. Learned counsel for the respondents has not been able to explain as to how while invoking this Rule the appellate authority could set aside the finding recorded by the Enquiry Officer setting the stage for enquiry at exhibition of listed documents which means that the findings recorded by the earlier Enquiry Officer 6 C.W.P. No. 10042 of 2008 are set at naught and those very witnesses are to be examined before the Enquiry Officer all over once again. It is not understood as to how a witness who has already been subjected to cross-examination by the delinquent employee could be permitted to be re-examined and on that basis finding be recorded. Moreover, we are not sure of the power of the appellate authority which has been assumed in pursuance to Rule 27(2)(c)(ii). At this stage, Mr. Namit Kumar, learned counsel for the respondent seeks an adjournment to study the import of Rule 27(2)(c)(ii) and then make submissions.” 8. After hearing learned counsel for the parties we find that the order dated 3.4.2007 (A-3) passed by the appellate authority is not sustainable in view of the specific provisions made by Rule 27(2)(c) (ii) of the Rules, which reads thus: “27. Consideration of appeal (1) In the case of an appeal against an order f suspension, the appellate authority shall consider whether in the light of the provisions of Rule 10 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or 7 C.W.P. No. 10042 of 2008 enhancing any penalty imposed under the said rules, the appellate authority shall consider- (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass order- (i) confirming, enhancing, reducing, or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of these cases: Provided that- ………” 9. A perusal of Rule 27(2) of the Rules would show that the appellate authority is obliged to consider (i) whether the procedure laid down in the Rules has been complied with and if not then (ii) whether non observance of the procedure has resulted in violation of 8 C.W.P. No. 10042 of 2008 any provisions of the Constitution (iii) or in failure of justice. It further provides (iv) whether the findings of the disciplinary authority are warranted by the evidence on record (v) and whether the penalty is adequate, inadequate or severe. It is also clothed with the power by clause (ii) to remit the case to the authority which imposed or enhanced the penalty or any other authority with such direction as it may deem fit in the circumstances of the case. 10. When the facts of the present case are examined in the light of Rule 27(2) it becomes evident that the appellate authority has failed to discharge its duty inasmuch as, it has not examined the effect of not exhibiting listed documents. It was required to be ascertained that if the documents were exhibited the findings were to be overturned or would have remained unaffected. In that regard reliance may be placed on the judgment of Hon’ble the Supreme Court in the case of R.P. Bhatt v. Union of India, (1986) 2 SCC 651. Whether non-observance of this procedure has resulted in failure of justice. In the absence of such an exercise, remand of the enquiry was not warranted. When an enquiry is remitted then it has a cascading effect. The order of punishing authority of ‘censure’ is set aside, the dissenting note is also nullified and the findings of Enquiry Officer would also be set aside. Such a course is totally unwarranted and does not have statutory support. Moreover, the defence f a delinquent officer is already disclosed when he has cross-examined earlier witnesses and remitting the enquiry to the stage of listing of documents would result into examination of all witnesses afresh. 9 C.W.P. No. 10042 of 2008 Therefore, we are of the view that order passed by the appellate authority cannot meet our approval and is, thus, liable to be set aside. 11. As a sequel to the above discussion, the order dated 8.2.2008, passed by the Tribunal and order dated 21.3.2007 passed by the appellate authority are set aside. One course open to us is to direct the appellate authority to pass fresh order. However, in the present case we are not inclined to follow such a course because the nature of allegation and the enormity of charges is not such that such a course would be warranted. The amount involved is small and no loss has been caused to the department. Accordingly, we hold that it would meet the ends of justice if the punishment of ‘censure’ awarded by the punishing authority is maintained. Accordingly, we hold that punishment of ‘censure’ be inflicted upon the petitioner. (M.M. KUMAR) JUDGE (JORA SINGH) October 1, 2008 JUDGE manju/Pkapoor 10