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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