Full Judgment Text
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PETITIONER:
K. R. DEB
Vs.
RESPONDENT:
COLLECTOR OF CENTRAL EXCISE, SHILLONG
DATE OF JUDGMENT07/04/1971
BENCH:
SIKRI, S.M. (CJ)
BENCH:
SIKRI, S.M. (CJ)
MITTER, G.K.
HEGDE, K.S.
GROVER, A.N.
REDDY, P. JAGANMOHAN
CITATION:
1971 AIR 1447 1971 SCR 375
1971 SCC (2) 102
ACT:
Service Rules-Central Civil Services Classification-Control
and Appeal Rules 1957-Rule 15 contemplates only one
inquiry--Inquiry Officer can be asked to record further
evidence-Disciplinary authority can reconsider evidence
itself and come to its own conclusion under r. 9.
HEADNOTE:
The appellant was a sub-Inspector of Central Excise. A
departmental inquiry was held against him in respect of a
charge of misappropriation of Government money. The Inquiry
Officer exonerated him. The Collector Central Excise,
ordered another Inquiry Officer to make a report after
taking further evidence. The second Inquiry Officer at
first exonerated the appellant but later, after taking some
more evidence as directed by the Collector, reported that
although the charge against the appellant was not proved his
conduct may not be above board. Dissatisfied with the
report the Collector ordered a fresh inquiry to be held by a
third officer. This time a verdict of guilty was given and
the appellant was dismissed. The appellant’s writ petition
in the Court of the Judicial Commissioner Tripura having
failed he appealed to this Court by special leave. The
question for consideration was whether the multiple
inquiries held against the appellant were in accordance with
r. 15 of the Classification and Control Rules. Allowing the
appeal,
HELD : Rule, 15 on the face of it really provides for one
inquiry but it may be possible if in a particular case there
has been no proper inquiry because some serious defect has
crept into the inquiry or some important witnesses were not
available at the time of the inquiry or were not examined
for some other reason, the Disciplinary Authority may ask
the Inquiry Officer to record further evidence. But there
is no provision in r. 15 for completely setting aside
previous inquiries on the ground that the report of the
Inquiring Officer or Officers does not appeal to the
Disciplinary Authority. The Disciplinary Authority has
enough powers to reconsider the evidence itself and come to
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its own conclusion under r. 9. [379 H]
The rules do not contemplate an action such as taken by the
Collector in appointing a third Inquiry Officer. It seems
that the Collector instead of taking responsibility himself
was determined to get some officer to report against the
appellant. The procedure adopted was not only against the
rules but also harassing to the appellant. [380 B]
In the result it must be held that no proper inquiry has
been conducted in the case and, therefore, there has been a
breach of Art. 311(2) of the Constitution. [380 E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 612 of 1967.
Appeal by special leave from the judgment and order dated
February 16, 1966 of the Judicial Commissioner Court,
Tripura in Writ Petition No. 12 of 1962.
376
M. R. Ramamurthi and Vineet Kumar, for the appellant.
O. P. Malhotra, Ram Panjwani and S. P. Nayar, for the res-
pondent.
The Judgment of the Court was delivered by
Sikri, C.J This is an appeal by special leave from the
judgment of the Judicial Commissioner for Tripura and
Agartala dismissing the petition under Art. 226 of the
Constitution filed by the appellant, K. R. Deb.
The relevant facts are these: The appellant was appointed as
a Sub Inspector of Central Excise in a temporary vacancy on
September 20, 1958 and he reported for duty on October 15,
1958. On May 30, 1959 he was alleged to have detained five
maunds of onion from the house of one Sayed Ahmad at Ramendr
anagar. It is further alleged that one Siddique Ahmad
handed over a sum of Rs. I 00 to the appellant, through one
Harendra Kumar Dutta, on May 31, 1959, but the appellant did
not mention the realisation of this amount in his seizure
report.
The following charge was framed against the appellant by
Shri R. C. Mehra, Collector, Central Excise & Land
Customs, Shillong:
"That Shri K. R. Deb. Sub-Inspector, was found guilty for
concealing the fact of realisation of Rs. 100 from Shri
Siddique Ahmed on 31-5-1959 and not reporting the, matter in
the seizure report or in his diary and thus misappropriated
Govt. money of Rs. 100."
The allegations regarding this charge were supplied to the
appellant. The appellant applied for copies of certain
documents on December 28, 1960. On March 30, 1961 he
submitted his written statement of defence. In this written
statement the appellant denied the charge. The Collector,
by his letter dated May 11, 1961, appointed Shri B. P.
Barua, Examiner of Accounts, Central Excise and Land
Customs, as Inquiry Officer Shri Barua held an inquiry and
submitted a report, dated July 3, 1961, holding that the
charge framed against the appellant was not proved. The
Inquiry Officer concluded :
"There is no conclusive evidence to establish the charge of
misappropriation of Govt. money. It is only established
that the goods (5 mds. of onions) were seized from the house
of Sri Siddique Ahmed but in his diary and seizure report
Sri K. R. Deb concealed the fact and seizure was shown to
have been made on border. The charge does not include such
concealment of fact."
377
By order dated August 22, 1961, the Collector, Shri R. C.
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Mehra, appointed Shri R. K. P. Sinha, Superintendent,
Central Excise & Land Customs, as Inquiry Officer to conduct
a supplementary open inquiry in the disciplinary proceedings
instituted ,against the appellant. The reason for
conducting this inquiry is stated in order thus:
"Shri B. P. Barua, Examiner of Accounts, Customs & Central
Excise, was previously appointed Inquiry Officer in this
case, but he had not recorded an evidence of the prosecution
witnesses viz., S/Shri Harendra Kr. Dutta, Jagabandhu
Patwari, Syed, Ahmed and Siddique Ahmed during the course of
open enquiry."
In his report dated October 12, 1961, the Inquiry Officer
reported that "there is nothing on record to prove the
alleged acceptance of Rs. 100 by Shri K. R. Deb, Sub-
Inspector." In his report he stated that Shri Harendra Kumar
Datta did not appear in the Inquiry though he acknowledged
the receipt of summons issued to him. It appeared to the
Inquiry Officer that Shri Dutta was not willing to attend
the inquiry. In the course of the -report he observed:
"Thus the entire story of handing over the money to Sri
Harendra Kumar Dutta in the presence of the Sub-Inspector on
31-5-59 topples down. It is also evident that
the Sub-Inspector could not have demanded the
money on 30-5-1959 as the seizure it appears
was made in the absence of Shri Siddique
Ahmed. The whole episode, it appears,
therefore, is a cooked up and fabricated to
implicate the sub-Inspr. for the seizure he
effected."
After this report one would have thought that the Collector
would make up his mind, but instead the Collector wrote on
Dec. 20, 1961, to Shri R. K. P. Sinha, complaining that the
report submitted by him had been found to be very sketchy
and that he had failed to appreciate the importance of the
evidence of Harendra Kumar Dutta, a prosecution witness in
the case. The Collector further observed that "in case he
had failed to respond to the summon you would have taken
steps to send somebody at his house." -He pointed out some
further defects and drew the attention of the Inquiry
Officer to the statement of Sepoy Monoranjan where from it
appeared without any shadow of doubt that a sum of ’Rs. 100
was given to Shri K. R. Deb in the presence of this sepoy.
’The Collector further observed that "in the face of
overwhelming .evidence regarding this allegation of
corruption, it is difficult to minimise the importance of
the witnesses." The Collector then proceeded to direct the
Inquiry Officer to examine Harendra Kumar Dutta, Jagabandha
Patwari had Sepoy Monorajan Ghosh without
378
further delay, and to submit the final report before January
10, 1962.
The Inquiry Officer in his report dated January 20, 1962,
stated: ."From the various statements given to me in my
enquiry dated 20-9-61, 4-1-62 and 12-1-62, it may kindly be
seen that no conclusive proof is, forthcoming to establish
the charge of acceptance of money (Rs. 100) by Sri K. R.
Deb. But in view of the previous enquiry and statements
given by witnesses, evading reply of Sri Dutta, the conduct
of Shri K. R. Deb, may not be above board."
On February 13, 1962 the Collector passed the following
order
"In supersession of this office letter O. No. II(10) A/I/
Con/60 and 0. No. II(10) A/3/Con/61, dated 12-
5-1961 and 22-8-61 respectively, the
undersigned considers that another
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Inquiry Officer should be appointed to inquire
afresh into the charge framed against Sarbasri
K. R. Deb, Sub-Inspector of Central Excise,
Shillong Collectorate.
Now therefore the undersigned in exercise of the powers
conferred by rule 15(4) of the C.C.S. (C.C.A.) Rules 1957
hereby appoints Shri K. P. Patnaik, Examiner of Accounts,
Customs and Central Excise, Shillong as an enquiry officer
to inquire into the charges framed against the said Sarbasri
K. R. Deb."
On March 6, 1962, Shri Patnaik reported that it was proved’
that "Shri K. R. Deb did not bring into account the sum of
Rs. 100 realised on May 31, 1959 from Siddique Ahmad of
Ramendranagar. The amount has therefore been
misappropriated. The charge of misappropriation of Rs. 100
is therefore proved against Sri K. R Deb."
On March 15, 1962 a notice was issued to the appellant to
show cause why he should not be dismissed from service. On
March 20, 1962 he filed an application giving the list of
documents copies of which he wanted. He gave his
explanation on, May 21, 1962 and asked for personal hearing.
On June 4, 1962, he was dismissed from service and on June
14, 1962, he filed the, writ petition out of which this
appeal arises.
A number of points have been raised before us but we need
only mention one point, viz., that the Collector had no
authority to appoint Shri K. P. Patnaik to inquire into the
charge after the Inquiry Officers had reported in his
favour. it was urged before us that such an inquiry is not
contemplated by the Central Civil’
379
.lm0
Services (Classification, Control and Appeal)
Rules, 1957. It was contended that rule 15 of
the ’Classification and Control Rules did not
contemplate successive inquiries, and at any
rate, even if it contemplated, successive
inquiries there was no provision for setting
aside earlier inquiries without ’giving any
reason whatsoever. It was further contended
that the order dated February 13, 1962 was
mala fide.
Rule 15(1) of the Classification and Control
Rules reads as follows:
.lm15
"(1) Without prejudice to the, provisions of;
the Public Servants (Inquiry) Act, 1850, no
order imposing on a Government servant any of
the penalties specified in clauses (iv) ’to
(vii) of rule 13 shall be passed except after
an inquiry, held, as far as may be,2 in.
manner hereinafter provided."
Clause (2) of. rule 15 provides for framing of charges and
communication in writing to the ’government servant of these
charges With the statement of .allegations on which they
are based, and it also provides for a written statement of
defence. Under cl. (3) the government servant is entitled
to inspect and take extracts from such official records as
he may specify, subject to certain exceptions.Under clause
(4) on receipt of the written statement of defencethe
Disciplinary Authority may itself enquire into such. of thecharges
as are not admitted, or if it considers it necessary so to
do, appoint a Board of Inquiry or an Inquiring Officer for
the purpose. Clause (7) provides that at the conclusion of
the inquiry, the Inquiring Authority shall prepare a report
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of the inquiry, recording its findings on each of the
charges together with reasons therefore. If in the opinion
of such authority the proceedings of the inquiry establish
charges different from those originally framed it may record
findings on such charges provided that findings on such
charges shall not be recorded unless the Government servant
has admitted the facts constituting them or has bad an
opportunity of defending himself against them. Under cl.
(9) "the Disciplinary Authority shall, if it is not the
Inquiring Authority, consider the record of the inquiry and
record its findings on each charge." Clause (10) provides
for issue of show-cause notice.
It seems to us that Rule 15, on the face of it, really
provides for one inquiry but it may be possible if in a
particular case there has been no proper enquiry because
some serious defect has crept into the inquiry or some
important witnesses were not available at the time of the
inquiry or were not examined for some other reason, the
Disciplinary Authority may ask the Inquiry Officer to record
further evidence. But there is no provision in rule 15 for
380
completely setting aside previous inquiries on the ground
that the report- of, the Inquiring Officer or Officers does
not appeal to the disciplinary, Authority-. The
Disciplinary Authority has enough powers to reconsider the
evidence itself and come to its own conclusion under rule 9.
In our view the rules do not contemplate an action such as
was taken by the Collector on February 13, 1962. It seems
to us that the Collector, instead of taking responsibility
himself, was determined to get" some officer to report
against the appellant. The procedure adopted was not only
not warranted by the rules but was harassing to the
appellant
Before the Judicial commissioner the point was put slightly
differently and, it was urged that the proceedings showed
that the Disciplinary Authority had made up its mind to
dismiss the appellant. The Judicial Commissioner held that
on the facts it could not be said that the Disciplinary
Authority was prejudiced against the appellant. But it
seems to us that on the material on record a suspicion does
arise, that the Collector was determined to get some Inquiry
Officer to report against the appellant.
In the result we hold that no proper inquiry has been con-
ducted in the case and, therefore, there has been a breach
of art. 311(2) of the Constitution. The appeal is
accordingly allowed and the order dated June 4, 1962
quashed. and it is declared that the appellant should be
treated as still continuing in service. He should be paid
his pay and allowances for the period he has been out of
office. The appellant will have his costs here and in the
Court of the Judicial Commissioner. Fees shall be payable
by the appellant to his advocate and be allowed on taxation.
G. C. Appeal allowed.
381