WP(C) 1445/2009 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (CAV) The legality and validity of the order of dismissal of the petitioner fr om service dated 24.11.97 issued by the Disciplinary Authority in exercise of po wers conferred by Rule 12 of the Central Civil Services (Classification, Control and Appeals) Rules, 1965 (hereinafter to be referred to as the ’CCS (CCA) Rules ’) and affirmed by the Appellate Authority dated 22.01.98 under Rule 23 of the a foresaid Rules are under challenge in the instant writ petition invoking power under Article 226 of the Constitution of India. 2. A few material facts, giving rise to this writ proceeding, are narrated hereinbelow: The petitioner herein was originally appointed as Superintendent, Buildi ngs and Roads Grade II on 21.04.87 and posted at 408 Road Maintenance Platoon ca re 72 RCC GREF c/o 99 APO on 21.10.89. While he was serving as such he was put under suspension vide order dated 27.7.92 issued by respondent No.3 in exerci se of power conferred by Sub-Rule (1) of Rule 10 of the CCS (CCA) Rules for al leged misuse of government property/stores and accumulation of Rs. 1,09,344/- b y unfair means as per investigation/inquiry. The said order of suspension was re voked by the respondent in exercise of power under clause (c) of Sub-Rule (5) of the Rule 10 of the CCS(CCA) Rules vide order dated 14.11.94. During the intervening period from the date of suspension to the date of revocation of the suspension order, the Director General of Border Roads (’DGBR ’ for short) vide order dated 30.09.94 initiated the disciplinary action under t he Army Act, 1950 (for short ’Army Act’) by way of hearing of charges/summary of evidence. In the summary of evidence the allegation against the petitioner coul d not be substantiated relating to purchase of goods from government stores by t he civilians. The said summary of evidence initiated under the Army Act could no t be concluded being time barred case. However, the respondents switched over fr om the Army Act and proceeded under the CCS (CCA) Rules wherefor a disciplinary proceeding was initiated and a charge memo was issued on 23.12.95 alongwith the statement of Articles of charges directing him to submit his written statement o f defence within 10 days. There were three charges which are quoted hereunder- Article I- That the said Sri Rengarajan, Supdt B/R Gde II, GS-166217Y, while functioning as Super Incharge in various Deptts and also worked in office of the erstwhile 73 RCC from June 90 to May 92, found in illegal possession of Rs., 1,09,344/- (Rupees One lakh nine thousand three hundred forty four) only on 10th June ’92 which is disproportionate to his known source of income. Thus he failed to maintain absolute integrity and violated Rule 3(1) (i) of CCS (Conduc t) Rules, 1964. Article II- That during the period from August 91 to May 92 while functi oning as Supervisor In-charge for execution of permanent works between km 28 to km 60 on Thenzawl-Bunghmun Road, the said Shri S. Rengarajan Supdt B/R GDE II mi sappropriated the Government stores by faulty construction/fictitious booking i .e. construction of lesser dimension than those shown in the work diaries. Thu s, he did not maintain absolute integrity and devotion to duty and violated Rule 3(1)(i) and (ii) of CCS (Conduct) Rules, 1964. Article III- That during the aforesaid period while functioning as Supd t B/R Gde II in various Deptts, the said Shri S. Rengarajan Supdt B/R Gde II am assed money by gambling. Thus he committed an act unbecoming of a Government ser vant and violated Rule 3(1)(iii) of CCS (Conduct) Rules, 1964. 3. Before the disciplinary proceeding was initiated a criminal case was reg istered in Serchhip Police Station being case No. 9/94 on 19.04.94 under Section 408 IPC which, however, the respondents had withdrawn on the ground that the di sciplinary proceeding was under contemplation vide order dated 05.11.94. The pol ice at Serchhip Police Station had submitted final report on 14.11.94 in the cou rt of ADM(J) Aizawl. The final report contains the following: i) The civilians of Thenzawl have also been examined but they denied to have purchased anything from S. Rengarajan. ii) All the officers of BRTF under whom the alleged accused S. Rengaraja n worked have also been examined but no one could come forward with any evidence against the alleged accused. iii) Since the FR No. 10/94 dated 14.11.94 of Serchhip Police Station ca se no. 9/94 under section 408 IPC submitted by police case investigated but for insufficient evidence against the alleged accused the FR is accepted by ADM (J) Aizawl. 4. The petitioner submitted his written statement in defence denying the al legations of misconduct attributed against him contending inter alia that he had not concealed any money which was observed by Maj. PK Mehta who was a member of the vigilance team at the time of seizure of the amount and the source of incom e was specified at Appendix A alongwith the written statement. Relating to charg e No. 2, the petitioner contended that he had not made any confessional statemen t admitting to have sold government stores like cement, diesel and explosives as charged. The petitioner had further contended that during the preliminary enqui ry, it was alleged that the statement of civilians Abdul Rouf, Bholanath Pathak and Shri DS Giri was recorded and he was taken by the court of inquiry to Thenza wl Police Station on 05.07.92, where he was shown the statement of the aforesaid three witnesses who were also present at the Police Station. Thereafter Lt. Col . RK Guha asked him whether he was aware about AR180. When he replied in negativ e, Lt. Col. Guha asked him to go through AR 180 which envisages that the petitio ner has right to cross-examine them. The officer asked him whether he was willin g to cross-examine the witness Abdul Rouf and in fact he had started to cross-ex amine Abdul Rouf, which, however, could not be completed due to severe headache and the officer allowed him to take rest and ultimately they came back to 73 RCC location in the jeep. On the next day, i.e. on 06.07.92, the parties to the cou rt of inquiry alongwith the petitioner went to Thenzawl Police Station wherein only one witness was present and the petitioner was asked to cross-examine Shri Bholanath Pathak by the court of inquiry to which the petitioner refused since h is statement relating to alleged misconduct was not specific. But the court of inquiry failed to produce Shri Abdul Rouf and Shri DS Giri for cross-examination till 18.07.92. The petitioner had further contended that Shri Bholanath Pathak gave two contradictory statements. In the preliminary enquiry he had stated that he used to purchase the government stores from various General Reserve Engineer ing Force (’GREF’ for short) personnel including the petitioner. Whereas he had given another statements during summary of evidence (pre-trial) under AR 22 deny ing to have received any government stores from the petitioner, though the copy of the statement was not given to him by the inquiry officer inspite of demand b y the petitioner. In fact the statement of Bholanath Pathak was recorded by Capt MV Sasidhar in presence of the petitioner denying to have received government s tores from the petitioner. The petitioner had further contended that during the preliminary inquiry measurements relating to charge No. II were done by BR IN K rishanan, petitioner and overseer Promode Kumar Sarma on 17.07.92 in presence of court of inquiry after collapse of structures, though the petitioner had not pr epared the quantity statement. But they want to prove variation in the quantity booked and actual quantity based on ground measurements, inspite of the fact tha t the bookings were checked daily by officers in charge who were responsible off icers. All his bookings were accepted at Platoon level and RCC level. There was no observation/reservation/objection on his booking/construction, thereby refute d the charge No. II. In regard to charge No. III, the petitioner contended in hi s written statement of defence that though there is no mention of gambling in th e confessional statement recorded during court of inquiry even though the charge memo speaks of confession in regard to gambling and the statement recorded in t he court of inquiry were not corroborated by any other witnesses and the finding s of the court of inquiry demolished the charge No. III thereby denied the charg e. 5. During the inquiry, the Inquiry Officer relied on documents marked as Ex t-I to VI and four witnesses examined viz., Pramod Kumar Sarma, Major PK Mehta, Shri DS Giri, and LDC K Vasudevan. The Inquiry Officer submitted its report on 0 4.10.97 holding that the charge No.I and the charge No. II are proved on the bas is of documentary and oral evidence, whereas charge No. III was not proved again st the petitioner. The inquiry officer while analyzing the charge No.I had held that an amount of Rs.1,09,344/- was seized from the possession of the petitioner in presence of PW 2 Major PK Mehta and the amount seized was disproportionate t o the known source of his income and the petitioner had given the confessional s tatement on 18.06.92, six days after the seizure wherein he admitted to have ind ulged in selling government stores and thus the part of the amount was accumulat ed though the petitioner subsequently refuted and disowned the confessional stat ement and came to a finding that the confessional statement was not made under t hreat or coercion and the statement of income at Appendix A was disbelieved and therefore, the inquiry officer had held that there was suspicion in regard to ac cumulation of money in illegal manner and not satisfactorily accounted for. In r egard to change No. II the inquiry officer based its findings on confessional st atement wherein the petitioner admitted to have sold government stores, inasmuch as, during preliminary inquiry Shri Abdul Rouf of Thenzawl village deposed tha t he has purchased 50 bags of cement from the petitioner@ Rs.120/- per bag and t he said witness was cross-examined during the preliminary inquiry by the petitio ner though Shri Abdul Rouf could not be brought during the departmental inquiry. Referring the statement of PW 3, Shri DS Giri who had stated that he took 10 ba gs of cements from the charged officer, however denied to make payment to the ch arged officer, which would go to show that the petitioner was in habit of giving government stores free or on payment without any authority. In regard to measur ement done during preliminary inquiry, it was held that the same was carried out in presence of the petitioner and there he found a lot of variation in the quan tity booked and quantity based on ground measurements which would go to show tha t the measurement was done to his satisfaction and he had not raised any objecti on at any stage thereby holding the charge Nos. I and II are proved. 6. The petitioner on receipt of the inquiry report submitted his representa tion on 03.11.97 with reference to the letter dated 16.10.97 issued by the Disci plinary Authority clarifying the analysis and assessment of evidence by the inqu iry officer relating to the charges. The sum and substance in the form of clarif ications may be summarized hereinbelow: i) The petitioner refutes the confessional statement as used in the depa rtmental enquiry which he had already denied before the court of inquiry vis-à-v is in the departmental inquiry contending that Capt. PK Mehta was made a witness whereas he was a member of vigilance team who had searched and confiscated the money and he was a part of prosecution right from the beginning. He was taken to CE(P) Pushpak on 15.06.92 and confessional statement was obtained on 18.06.92 w hile search was carried out by the vigilance tram at Serchhip. The confessional statement was not corroborated by any independent witness whereas Capt PK Mehta during cross-examination had admitted that he was unable to remember the exact d etails of the documents and in his presence the confessional statement was recor ded by Lt Col RK Guha who was left out in the enquiry to justify the veracity of the confessional statement and the inquiry report would amply prove that only t he suspicion was raised which cannot be termed as proved in the inquiry and on t his ground alone the inquiry report was vitiated. In regard to accumulation of m oney which is disproportionate to the known source of income the petitioner draw n the attention of the disciplinary authority contending that Shri Abdul Rouf wa s cross-examined but it could not be completed and the disciplinary authority ha d failed to bring him in the inquiry and the entire court of inquiry proceedings was listed as documents to charge memorandum. Moreover the statement recorded d uring the preliminary enquiry of Shri Abdul Rouf and Shri Bholanath Pathak canno t be construed as evidence in the departmental inquiry, which is inadmissible in evidence, more so, when Shri Bholanath Pathak had changed his statement in cour t of inquiry during summary of evidence. Further, PW 3 Shri DS Giri had deposed in the course of inquiry that he had taken 8 bags (not ten bags as mentioned in the inquiry) of cement from the petitioner at free of cost i.e. no money was pai d to him, whereas in his statement he had averred that he requested for cement f rom AEE (Civ) KV Appa, whereas from AEE KV Appa’s statement in the court of inqu iry, he denied to have obliged any government stores to any civilians, more so, when DS Giri had changed his statement than given in the court of inquiry, which contradicts the letter, thus cannot be relied upon. In regard to measurements a s contained in charge No. II he has stated that the measurement taken by the Boa rd of Officers during the preliminary inquiry cannot be accepted as only witness PW 1 Sri Pramod Kumar Sarma, Supdt. BR II deposed during disciplinary proceedin g that he could not remember anything regarding the measurement taken during pre liminary inquiry because everything was done by the Board of Officers and the wi tness PW 1 measured only the collapsed structures and therefore, it cannot be ta ken into consideration until and unless the same is proved during the disciplina ry proceedings, more so, when his bookings were accepted by his superiors during the time of execution and hence, requested to drop the proceedings with a reque st to return the money amounting to Rs. 1,09,344/-. 7. The disciplinary authority considered the inquiry report alongwith the r epresentation in the form of clarification submitted by the petitioner and came to a finding that the charge No. I and Charge No II had been proved beyond reaso nable doubt that major part of the amount seized might have been earned through illegal, dubious means which had not been satisfactorily accounted for by the pe titioner thereby misappropriated government stores and had resorted to faulty co nstructions, construction of permanent work comprising lesser dimensions than th ose shown by him in works diaries and carried out fictitious booking in works di aries. Consequently thereupon in exercise of power conferred by Rule 12 of CCS ( CCA) Rules 1965 the disciplinary authority imposed the penalty of dismissal from service with effect from the afternoon of the date on which the order is served upon him. 8. Being dissatisfied with the award of punishment of dismissal, the petiti oner preferred a statutory appeal under Rule 23 of the CCS (CCA) Rules before th e appellate authority on 19.12.97. The grounds taken before the appellate author ity in addition to the grounds furnished in the representation dated 3.11.97 are summarized hereinbelow: a) That order of disciplinary authority is vitiated because no show caus e notice was issued before imposing the major penalty as required under the law, b) The evidence on record would show that the witnesses examined on beha lf of the disciplinary authority had miserably failed to prove that the money se ized had been earned by illegal means without taking into consideration the expl anation furnished in detail during enquiry, more so, when save and except the st atement of the officer who seized the money with regard to the seizure, nothing has been proved with regard to the source of income. c) The disciplinary authority has miserably failed to consider that when the criminal case initiated against him was ended in Final Report, the award of punishment of dismissal from service was not warranted, d) The name of the witness shown in the charge memo would show that two witnesses Shri BR II PK Sharma and Shri DS Giri turned hostile and not supported the case of the department relating to charge No. II. The other two witnesses S hri Abdul Rouf and Shri Bhola Nath Pathak did not attend the inquiry and subsequ ently Shri Abdul Rouf issued a communication contending that the original statem ent given before the authorities were not true since the statement was recorded under threat and a copy of the aforesaid communication was placed before the app ellate authority for consideration, moreover, the petitioner solely cannot be he ld responsible for the alleged fault/construction/fictitious booking if any, lea ving others from the team itself proves a case of victimization of the attended circumstances requesting to allow the appeal by setting aside the order of dismi ssal from service imposed by the disciplinary authority. 9. The appellate authority considered the appeal preferred under Rule 23 of the CCS (CCA) Rules by the petitioner and on consideration of facts, records, v arious rules/regulations and procedures on the subject was satisfied that the pe nalty imposed by the disciplinary authority does not require to be interfered wi th being legal and no injustice had been caused against him thereby rejected the appeal vide order dated 22.01.98. 10. The legality and validity of the order dated 24.11.97 and affirmed by th e appellate authority vide order dated 22.01.98, whereby and whereunder the peti tioner was dismissed from service was questioned before the Madras High Court be ing WP(C) No. 12677 of 1998 which culminated in dismissal on 03.08.07. The order of dismissal of the writ petition was taken on the file of Division Bench of th e said High Court being Writ Appeal No. 761 of 2008. The Division Bench vide ord er dated 11.12.09 set aside the order of the learned Singe Judge and directed th e petitioner to ventilate the grievances before the appropriate High Court and h ence the instant writ petition before this Court. 11. Heard Shri S. Rengarajan, appearing as petitioner in person. Also heard Shri N Baruah, learned Central Government Counsel appearing for the respondents. 12. Opening the argument, the petitioner appearing in person has contended t he following points: a) The vigilance team of Project Pushpak has seized a sum of Rs.1,09,344 /- on 12.06.92 from the petitioner after conducting the court of inquiry under t he Army Act and the Rules and accordingly put him under suspension with effect f rom 27.07.92 by the order of DGBR on the basis of court of inquiry and the disci plinary action initiated against him under the Army Act and as the trial under A rmy Act was ruled out by the competent authority being time barred case, charge memo under Rule 14 of the CCS (CCA) Rules was issued which is not permissible un der the law being switched over from one authority under the Army Act to another authority under CCS (CCA) Rules, 1965. b) During the inquiry the presenting officer has failed to prove the pos session of amount of Rs.1,09,344/- was obtained by illegal means though the amou nt seized was duly accounted for, which was not rebutted by the presenting offic er and therefore the charge held to be proved is not sustainable requiring inter ference. c) The penalty of dismissal from service was awarded on the basis of pre liminary inquiry, which is not admissible under the law, moreover, there was lac k of evidence in the preliminary enquiry and as such the award of dismissal from service requires interference. d) The vital witnesses Shri Bholanath Pathak and Shri Abdul Rouf, who we re examined at the preliminary inquiry were not made available in the disciplina ry inquiry for cross-examination and the witness Shri DS Giri had retracted his statement in the preliminary inquiry and the witness Shri Bholanath Pathak had a lso given another statement during the course of summary of evidence thus retrac ting his previous statement and the presenting officer failed to produce the wit nesses as shown in the list alongwith the charge memo dated 12.12.95 and on the basis of statement recorded during the preliminary inquiry the inquiry officer s ubmitted his report holding that the charge I and II have been proved which requ ire interference to uphold the administrative fair play in action in the matter of disciplinary proceeding. e) The order affirming the award of dismissal from service imposed by th e disciplinary authority lacks application of mind while disposing the statutory appeal preferred under Rule 23 of the CCS (CCA) Rules by the appellate authorit y which violates Rule 27(2) of the CCS (CCA) Rules requiring interference with i n the facts and circumstances of the case. 13. In support of his contentions the petitioner has cited the following dec isions, viz., 1. AIR 1983 SC 658 (R. Viswan Vs. Union of India), 2. Order dated 31.1.08 passed by Division Bench of the Delhi High Court in WP(C) No. 743 of 1983 (Pratap Singh (GREF) Vs. Director General, Border Roads Organisation.) 14. Justifying the award of dismissal from service in the disciplinary proce eding initiated under Rule 14 of the CCS (CCA) Rules, Shri N Barua, learned Cent ral Govt. Counsel appearing for the respondents would urge that since the petiti oner was found in possession of Rs.1,09,344/- which was beyond his known source of income and he could not justify the amount found in his possession and the ch arges framed against the petitioner being fully substantiated after a detailed e nquiry, the same do not require to be interfered with in exercise of power under Article 226 of the Constitution of India. 15. Shri Barua has further contended that since the case was time barred for trial under the Army Act, the disciplinary proceeding was initiated under the C CS (CCA) Rules, which cannot be termed as lack of jurisdiction in view of the fa ct that the members of GREF are governed by the provisions of CCS (CCA) Rules th ough certain provisions of the Army Act are also applicable for the purpose of d iscipline and hence further contended that judicial review in the matter of disc ipline of GREF members which has proved the imputation of misconduct in a duly c onstituted disciplinary proceedings would not be available in exercise of power under Article 226 of the Constitution of India. 16. Heard the arguments advanced by the parties. Perused the entire evidence on record including the inquiry report, the award of punishment order issued by the disciplinary authority and affirmed by the appellate authority. Also peruse d the record produced by the learned CGC. 17. In order to answer the first question raised by the petitioner regarding switched over of the proceeding from Army Act to CCS (CCA) Rules, it may be not ed that admittedly the vigilance team had seized a sum of Rs.1,09,344/- on 12.06 .92 from the petitioner after conducting the court of inquiry under the Army Act and the Rules and accordingly