DIRECTOR GENERAL INDIAN COUNCIL OF

MEDICAL RESEARCH AND ORS.

DR. ANIL KUMAR GHOSH AND ANR.

AUGUST 6, 1998

[MRS. SUJATA V. MANOHAR AND M. SRINIVASAN, JJ.]

Service Law :

C House Rent Allowance (HRA)-Entitlement when annual rental value of house owned by employee is more then l 0% of salary-Excess value entered which was different from value in Municipal Register and certificates to this effect obtained-D1stinct charges, statement of imputation and list of documents furnished-Departmental Enquiry-Removal from service ordered D by the Disciplinary authority-Writ Petition filed alleging violation of principles of natural justice-Single Judge struck down order of removal- Division Bench upheld the finding and observed even if charges proved it would amount to indiscreetenes but not misconduct-On appeal Held, view • taken Shocking and wrong-In the departmental proceedings principles of natural justice not violated-Central Civil Services (classification, control E and appeal) Rules, 1965-Rule 14 (3).

Departmental Enquiry-Conduct-Ample opportunity to peruse documents and prepare defence-Permission to examine any witness, but not availed-Serial numbers given to exhibits at conclusion of enquiry instead of numbers-Held, objections to report of Enquiry Officer untenable- F Principles of natural justice not violated ~-

Departmental Enquiry-Proportionality of Punishment-Held, detection of falsi/ity of claim, after l 0 years will not help reducing punishment.

G The respondent had wrongly claimed House Rent Allowance (HRA) for a period of ten years. The employees were entitled to HRA if they reside in their own houses and their annual rental value for municipal purposes was more than 10% of their salaries. He entered the said value as less than 10% for tax purposes, but obtained certificates to the contrary from high officials of the municipality. This discrepency was detected and a departmental H enquiry was conducted. The memorandum of charges was set out with a

DIRECT. GENE. IND. COUN. OF MED. RES. v. DR. A.K. GHOSH 1035 ' statement of imputation and list of documents. The department did not examine A any witness but the respondent was permitted to examine any person as his own witness. But he did not. The daily proceedings were recorded and he had signed them. He perused every document and made submissions on the basis

~ of the materials on record. The Enquiry officer found the charges to be proved and the respondent was req1oved from service.

B The order of removal from Service was challenged in a writ petition contending that principles of natural justice had been violated; that necessary witnesses were not examined; that after conclusion of enquiry documents were marked as exhibits; and that there was bias. Single Judge allowed the petition holding that principles of natural justice had been violated. Division Bench upheld this order and further held that even if charges were true it C would only prove that respondent was indiscreet and there was no misconduct.

Aggrieved by this the appellant appealed to this Court.

The respondent contended that principles of natural justice had been violated; that Rule 14 (3) of the Central Civil Services (Classification, control and appeal) Rules were violated; that rental value as regards HRA D need not be same as annual value entered in Municipal register: and that the 1 punishment awarded is disproportionate.

Allowing the appeals, this Court

HELD : I. The View expressed by the Division Bench of the High Court E that even if charges were true, there was no misconduct is shocking especially when benefits have been obtained from out of public funds on false certificates.

[1037-D-E]

2. I. The objections raised in the writ petition found favour with the Single Judge as well as the Division Bench, but none of those have any p substance. There is absolutely no justification in the allegation that principles of natural justice have been violated. [1039-D-E]

2.2. There is no material on record to support the contention that the Enquiry Officer was biased. The record shows that he acted impartially and without any kind of bias whatever. [ 1040-C-D] G

2.3. The Enquiry Officer appears to have given serial numbers to the exhibits taken on file at the conclusion of the enquiry, instead of giving numbers. Such procedure is not violative of the principles of natural justice.

(1040-8-C]

3. Rule 14 (3) ofC.C.S. (CCA) Rules was not viol:.ted as the memorandum H

A of charges issued contained distinct articles of charge alongwith a statement of imputation and list of documents. I 1040-Fl

4. The H.R.A. Rules refer to gross rental value as assessed for municipal purposes. An official memorandum produced during the enquiry, clarified that grant of H.R.A. should be invariably regulated on the basis of B gross rental value assessed by the Municipality. The claim of the respondent on the basis of certificates from the Chairman, Vice-Chairman and Secretary of the Municipality to the effect that rental value of the premises may be safely committed at a particular amount, when the value entered in the assessment register was different, was in violation of the relevant rules. c

[1041-C-D]

5. The punishment awarded is not disproportionate to the offence. The fact that the concerned authorities did not detect the falsity of the claim for about ten years and allowed the same does not help him to contend that punishment should be reduced. (1041-E-Fl

6. High Court is clearly in error in interfering with the order of D punishment passed by Disciplinary Authority. The judgments and orders of the High Court are set aside. (1041-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4073 of 1991.

E From the Judgment and Order dated 19.2.91 of the Calcutta High Court in Appeal from Original Order Tender No. 2773 of 1989.

Raju Ramachandran and V.K. Rao, (Arun K. Thiruvengadam) for Ms.

Madho Sikri for the Appellants.

N.B. Shethye, D.P. Mukherjee, Sanjay Kr. Ghosh and Ms. Nandini F Mukherjee for the Respondents.

The Judgment of the Court was delivered by

SRINIVASAN, J. The first respondent who was a senior officer in the Cholera Research Centre (now known as National Institute of Cholera and G Enteric Disease) had for over a period of ten years wrongly claimed House Rent Allowance to the tune of Rs. 16,819.95. Under the relevant Rules, an officer or employee residing in his own house could claim House Rent Allowance only if the annual rental value as assessed for municipal purposes was more than I 0% of the salary. The annual rental value of the house occupied by the first respondent which was his own as assessed for tax H purposes and entered in the municipal Registers was much less than 10% of

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DIRECT.GENE. IND. COUN. OF MED. RES.' DR. A.K. GHOSH [SRINIVASAN, J.] 1037

yr his salary. However, he obtained certificates from the Chairman, Vice-chairman A and Secretary of the Municipality that the rental value of the premises "may be safely committed" at a particular amount per month which was in excess of 10 % of his salary, He produced such certificales in support of his slalement that the monthly rental value actually assessed for municipal purposes was in excess of 10% of his salary and claimed House Rent. Allowance. B Unfortunately for him the Internal Audit Party found out the game which lead to a departmental enquiry against him. He was found guilly and removed from

?-- service with a disqualification from future service under the council.

2. The first respondent challenged the order in a writ petition before the Calcutta High Court. A learned Single Judge held that the enquiry against him was vitiated by violation of principles of natural justice and quashed the c

order. On appeal, a Division Bench affirmed that finding. But strangely, the Bench went one step further and held that even if the charges were true, it would only prove that the first respondent was indiscreet and there was no misconduct on his part. It is that judgment which is assailed in !his appeal.

3.' Even at the outset, we wish to point out that the view expressed by D

' the Div it ion Bench of the High Court that even if the charges were true, there .,

was no misconduct is shocking especially when benefits have been obtained from out of public funds on false certificales. Fortunately, learned counsel for the first respondent appearing before us did not justify that view of the E Bench. Hence, it is unnecessary to dwell upon it for long. Suffice it to hold that the view of the Division Bench of the High Court is obviously wrong and it is hereby overruled.

4. Now we shall advert to the question whether the principles of natural justice were violated and the departmental enquiry was vitiated. The F :.. memorandum of charges issued to the first respondent set out the following two charges :-

"ARTICLE OF CHARGE - I

That the said Dr. A.K. Ghosh declared in 1964 that the rental value G of his own house in 284, Mudially Road; Calcutta -24, was Rs. 160 p.m. (or Rs. 1920 per annum) as 'actually assessed for municipal purposes .. while in actual fact the annual value of the house as assessed by the Garden Reach Municipality for the house of Dr. Ghose for the year

1961-62 to 1965-66 was Rs. 235 for the years 1966-67 to 1970-71 Rs: 260 and for the years 1972-73 to 1976-77, Rs. 290 only.

ARTICLE OF CHARGE II

That Dr. Ghosh claimed house rent allowance of Rs. 16,819.95 which was not admissible to him for .the period from August 1964 to August 1975 by submission of false documents,"

5. A statement of imputation was attached to it. A list of documents by which the articles of charges were proposed to be sustained. was appended.

There was no list of witnesses as the department did not propose to examine any witness. The enquiry was held in seven session commencing from 31.12.76 and ending with 4.6.77. The daily proceedings were recorded and shown to the first respondent who signed the same. The first respondent did not submit C any list of witnesses. In fact , he stated on more than one occasion that he had no witness to be summoned on his.behalf. In the course of the enquiry he made a request orally for summoning the Administrators and other authorities of the Municipality and the Acounts Officer of the Council to testify the statements made by them. The Enquiry Officer expressed his view that they D were not necessary but permitted the first respondent to produce them on his

own, as his witnesses. The latter did not avail of that opportunity.

l . 6. The copies of the proceedings were handed over to the respondent as and when ready and he himself deposed on all points referred to in the statement of defence . It should be mentioned here that the defence taken by E the first respondent in the enquiry was that he claimed HRA on the basis of certificates issued by the Municipal authority and the same had been granted.

He contended that the assessment of the annual value for municipal purposes was only for the assessment of taxes levied by the Municipality and the assessment of rental value for claiming HRA was entirely different. According

F to him the rental value could even be assessed by the Special Land Acquisition Officer, 24 Parganas, Alipore.

7. During the enquiry he had opportunity to peruse every document' that was sought to be used in evidence. Apart from the certificates produced by himself of claiming H.R.A., copies of the Municipal assessment register G for the relevant period certified to be true copies by the Secretary, Garden Reach Municipality and issued under the seal of Administrato.r of the Municipality were marked as exhibits. A perusal of the list of exhibits shows that they consi, ted only of the official correspondence. and the certificates produced by the first respondent and the certified copies issue.ct. by the .Municip-ality. At the conclusion of the enquiry the first respondent made his H submission on ihe basis of the materials on record. The Enqiry Officer after

considering the matter in detail gave his findings in his report on 21.7.77. He A held that both charges stood proved.

8. The Disciplinary Authority accepted the report as he found that the material on record was sufficient to sustain the findings. The main grievance put forward by the first respondent before the High Court in the writ petition with regard to the alleged violation of the principles of natural justice was that B the witnesses whom he wanted to be examined by the Enquiry Officer were not examined. Secondly, it was alleged that the documents were marked as exhibits only on July 21; 1977 after the conclusion of the enquiry. Thirdly, it was urged that the Enquiry Officer was biased against the first respondent.

The fourth objection was that the Municipal Authorities who had issued C certified copies of the municipal assessment register had not been examined and consequently those documents were not admissible in evidence.

9. Unfortunately, the above objections found favour with the Single judge as well as the Division Bench of the High Court. In our opinion, none of the objections has any substance.

I 0. The. entire record of the enquiry proceedings have been placed before us. We have gone through the same and we find that there is absolutely no justification in the allegation that principles of natural justice have been violated. We have already referred to the fact that the first respondent did not E furnish any list of witnesses and only in the course of enquiry he requested the Enquiry Officer to examine the officials of the Municipality who had issued the certificates produced by him in support of his claim of H.R.A. It is surprising that the High Court overlooked the simple fact that the said certificates were produced by the first respondent himself as having been issued by the high officials of the Municipality and unless the factum of such F issuance was in dispute there was no necessity to examine those officials. At another stage the first respondent challenged the authenticity of the internal audit report and wanted the author thereof to be examined in order to substantiate the same. The Presenting Officer stated that the said report was not necessary for the case""llnd the same was not introduced in evidence. G Hence, there was no necessity to examine the Accounts Officer who prepared the internal audit report. If the first respondent wanted to examine any witness on his side he was given sufficient opportunity to produce witnesses and examine them but he did not do so. The record shows that he was permitted to reopen his defence and present further defence even on 28.3.1977. On that date as well as on 7.5.77 he had categorically stated that he did not have any H

A witness to be called as defence witness on his behalf.

11. The second objection is equally meaningless. The documents were taken on file during the course of the enquiry and the first respondent perused everyone of them before the conclusion of the enquiry. Copies were also furnished to him and as requested by him he was given seven days' time B for presenting his defence after the receipt of copies of documents though under the rules only three days' time was permitted. Instead of giving numbers to the exhibits as and when the documents were taken on file, the Enquiry Officer would appear to have given serial numbers to the exhibits at the <J conclusion of the enquiry on 21.7.77. The adoption of such procedure by the C Enquiry officer was not violative of the principles of natural justice.

12. There is no material on record whatever to support the contention that the Enquiry Officer was biased against the first respondent. The record of proceedings of the enquiry shows that the Enquiry Officer has acted impartially and without any kind of bias whatever.

13. The objection that the certified copies of the assessment register

should not have been marked without examining the concerned officials of the Municipality is untenable. The genuineness of the documents was never in dispute. In fact, the case of the first respondent is that the assessment in the municipal register was only for the purpose of taxation and it is not relevant for the claim of HRA.

14. We are fully satisfied that there was no violation of any principles of natural justice in the Departmental Enquiry conducted against the first respondent. A faint attempt was made before us to contend that Rule 14(3) of the Central Civil Services (classification, control and appeal) Rules was violated. The rule is in the following terms:

"14(3) where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up:-

( i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;

(ii) A statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain -

(a) a statement of all relevant facts including any admission or confession made by the Government servant,

(b) A list of documents by which, and a list of witnesses A by whom, the articles of charge are proposed to be sustained."

15. We have already referred to the fact that the memorandum of charges issued to the first respondent contained distinct articles of charge and was accompanied by statement of imputation and list of documents. Hence, there B is no substance in the above contention.

16. It is sought to be argued that the rental value for the purpose of HRA Rules need not be the same as the annual value as entered in the Municipal register. There is no merit in this contention. The relevant rule C refers to gross rental value of the house as assessed for municipal purposes.

An Official Memorandmn dated 26.5.69 marked as Ex. P-22 in the enquiry has clarified that if a house is situated within a Municipality, the grant of H.R.A. should invariably be regulated on the basis of gross rental value as assessed by the authorities of the municipality. Hence, we hold that the claim of HRA by the first respondent on the basis of the certificates obtained from the D Chairman, Vice-chairman and Secretary of the Municipality to the effect that the rental value of the premises may be safely committed at a particular amount when the value entered in the assessment register for municipal purposes was different was in violation of the relevant rules. Consequently, the first respondent was guilty of the charges framed against him.

17. The punishment awarded to him is claimed to be disproportionate to the offence committed by him. We do not agree. The fact that the concerned authorities did qot detect the falsity of the claim for about ten years and allowed the same does not help the first respondent to contend that the punishment should be reduced.

18. The High Court is clearly in error in interfering with the order of punishment passed against the first respondent by the Disciplinary Authority.

In the result, the appeal is allowed, the judgment and order of the High Court dated 19.2.1991 in appeal from Original Order, Tender No. 2773of1989 and

the Judgment and order dated 15.9.89 in Civil Rule No. 212 (w) of 1979 are G set aside. The writ petition filed by the first respondent in Civil Rule No. 212

(w) of 1979 on the file the High Court at Calcutta stands dismissed. There will be no order as to costs.

Appeal allowed.