PETITIONER:
MINISTRY OF FINANCE & ANR.
Vs.
RESPONDENT:
S.B. RAMESH
DATE OF JUDGMENT: 02/02/1998
BENCH:
K. VENKATASWAMI, A.P. MISRA
ACT
HEADNOTE
JUDGMENT
JUDGMENTK.Venkataswami. J.
The appellants impugn the order of the Central Administrative Tribunal, Hyderabad Bench, dated 9.8.94 in O.A. No. 27/94.
Before proceeding to consider the issues, we want to observe the following:
This Court while granting special leaven on 28.2.95 expedited the hearing of the appeal and directed the counsel to complete the paper books within ten weeks. In spite of passing of nearly three years after the leave was granted, no steps have been taken to complete the paper books and we have to go only by order of the Tribunal. In the SLP paper book, only a copy of the judgment of the Tribunal, apart from the special Leave Petition and the Counter Affidavit filed by the appellant before the Tribunal. Is available and no other documents were included. Hence, leave was granted by this Court to complete the paper book. Even then the appellants did not care to avail the opportunity.
Now on merits.
The respondent in this appeal was working as an Income Tax Officer, Group ‘B’, during the relevant period. He was proceeded departmentally by filing a charge-sheet dated 7.5.87 for alleged irregularities in the income-tax assessment. For reasons with which we are not concerned, that was not pursued after certain stage dater on, the respondent was served with another charge-sheet dated 25.3.88. The article of charge reads as follows:-
"Shri S.B. Ramesh. Income Tax
Officer. Group-B. Andhra Pradesh
(now under suspension) has
contracted a second marriage with
Smt. K.R. Aruna while his first
wife. Smt. Anusuya is alive and the
first marriage has not been
dissolved. By this act, Shri S.B.
Ramesh has violated Rule 21(3) of
CCS (Conduct) Rules. 1964. In any
case, Shri S.B. Ramesh has been
living with Smt. K.R.Aruna and has
children by her. Thereby Shri S.B.
Ramesh has exhibited a conduct
unbecoming of a Government servant
and has accordingly violated rule
3(1) (iii) of the CCS (Conduct)
Rules 1964."
As the respondent denied the charge, an Enquiry was conducted in which the respondent did not participate. The Report of the Enquiry Officer was to the effect the first part of the charge was not proved and that the second part of the charge, namely, that the respondent, by living with Smt. K.R. Aruna and having children by her, Exhibited a conduct unbecoming of a Government servant violating Rule 3(1) (iii) of CCS (Conduct) Rules, 1964 was established. This report of the Enquiry Officer was accepted by the Disciplinary Authority, who by his order dated 23.4.92 imposed on him the punishment of compulsory retirement from service. Aggrieved by that, the respondent preferred an appeal on 4.6.92 which was kept pending without disposal for an unduly long time which obliged the respondent to file an application before the Tribunal challenging the punishment of compulsory retirement.
Before the Tribunal, the respondent challenged the order of compulsory retirement by contending that the Enquiry has not been held unconformity with the principles of natural justice, that the findings of the Enquiry Authority, which were acceded by the Disciplinary Authority, were all absolutely perverse and based on no evidence and that sub-rule (18) of rule 14 of the CCS (CCA) Rules was not complied with. It also appears that the respondent raised a preliminary point before the Tribunal contending that his conduct, which has no relation to the discharge of official duties, cannot form a basis for departmental proceedings to charge him under rule 3(1)(iii) of the Conduct Rules. This as without merit in the light of a judgment of this Court in Govinda Menon Vs, Union of India (AIR 1967 SC 1274).
The argument advanced on behalf of the appellants before the Tribunal were to the effect that all resonable opportunity was given to the delinquent officer and all rule shave been followed and complied with. According to the learned counsel for the Department, the findings rendered by the Enquiry Officer, accepted by the Disciplinary Authority, were all based on evidence and, therefore, well-founded.
The Tribunal, on a consideration of the pleadings and documents placed before it, found that the findings were rendered on surmises and presumptions and the documents marked as exhibits were not properly proved and the nonexamination of Smt. Aruna was also fatal to the case of the prosecution. The Tribunal was aware of the well settled position that the degree of proof required in the departmental disciplinary proceedings need not be of the same standard as the degree of proof required for establishing the guilt of an accused in a criminal case. However, the Tribunal found that there was a total dearth of evidence to bring home the charge that the delinquent Officer has been living in a manner unbecoming of a Government servant or that he has exhibited adulterous conduct by living with Smt. K.R. Aruna and begetting children. On that basis the Tribunal set aside the order impugned before it, namely, the order of compulsory retirement of the delinquent officer. The Tribunal could have rested its decision on the basis of the conclusion as set out above. Instead the Tribunal, purporting to give additional reason, inter alia, observed as follows:-
"Though it would be ideal if sexual
relationship is confined to legal
wedlock, there is no law in our
country which makes sexual
relationship is confined to legal
wedlock, there is no law in our
country which makes sexual
relationship of two adult
individuals of different sex.
unlawful unless the relationship is
adulterous or promiscuous. If a man
and woman are residing under the
same roof and if there is no law
prohibiting such a residence, what
transpires between them is not a
concern of their employer. Such a
life, if accepted by the society
at large, without any displeasure
or grudge, then it cannot be said
that there is any moral turpitude
involved in their living in this
case, there is no case that on
amount of the applicant living with
Smt. K.R. Aruna, his reputation
among the general public has been
lowered or that, the public has
been looking down on his conduct as
immoral one, Therefore, even if
factually, the allegation that the
applicant who is already married to
another woman is living with Smt.
KR Aruna is proved to be true, we
are of the considered view, that,
that alone will not justify a
finding that the applicant is
guilty of misconduct deserving
departmental action and
punishment."
Immediately we prefer to record our total disapproval with the above observations of the Tribunal. We propose to deal with and rest our decision on the merits with reference to the findings of the Tribunal rendered on the basis of the facts relating to the case.
Against the order of the Tribunal which set aside the punishment of compulsory retirement, this appeal has been filed.
The learned counsel appearing for the appellants placed strong reliance on the latter part of the judgment of the Tribunal, extracted above, which related to additional/alternative reason given by the Tribunal to its decision. We have already expressed our disapproval to the later part of the judgment of the Tribunal.
We must observe that no serious attempt was made by the learned counsel for the appellants to attack the findings of the Tribunal rendered in the first part of the judgment. The respondent. who appeared in person. presented his case by pointing out the portions of in the first part of the judgment of the Tribunal and also placed his written arguments.
It is necessary to set out the portions from the order of the Tribunal which gave the reasons to come to the conclusion that the order of the Disciplinary Authority was based on no evidence and the findings were perverse. The Tribunal, after extracting full the evidence of SW-1. the only witness examined on the side of the prosecution. and after extracting also the proceedings of the Enquiry Officer dated 18.6.91. observed as follows:-
"After these proceedings on
18.6.91 on the Enquiry Officer has
only received the brief from the PO
and then finalised the report. This
shows that the Enquiry Officer has
not attempted to question the
applicant on the evidence appearing
against him in the proceedings
dated 18.6.91. Under Sub-Rule 18 of
Rule 14 of the CCS (CCA) Rules. It
is incumbent on the Enquiry
authority to question the officer
facing the charge, broadly on the
evidence appearing against him in a
case where the officer does not
offer himself for examination as
witness. This mandatory provision
of the CCS (CCA) Rules has been
lost sight of by the Enquiry
authority. The learned counsel for
the respondents argued as the
applicant did not appear in
response to notice. It was not
possible for the Enquiry authority
to question the applicant. This
argument has no force because. on
18.6.91 when the inquiry was held
for recording the evidence in
support of the charge, even if the
Enquiry officer has set the
applicant ex-parte and recorded the
evidence, he should have adjourned
the hearing to another date to
enable the applicant to participate
in the enquiry hereafter/or even if
the inquiry authority did not
choose to give the applicant an
opportunity to cross-examine the
witness examined in support of the
charge, he should have given an
opportunity to the applicant to
appear and then proceeded to
question him under sub-rule 18 of
Rule 14 of CCs (CCA) Rules. The
omission to do this is a serious
error committed by the enquiry
authority. Secondly, we notice that
the enquiry authority has marked as
many as 7 documents in support of
the charge. while SW-1 has proved
only one document: namely, the
statement of Smt. K.R. Aruna
alleged to have been recorded in
his presence. How the other
documents were received in evidence
are not explained either in the
report of the Enquiry authority or
in the proceedings. Even if the
documents which were produced along
with the charge sheet were all
taken on record. unless and until
the applicant had requested the
Enquiry officer to mark certain
documents in evidence on his side.
the enquiry authority had no
jurisdiction in marking all those
documents which he had called for
the purpose of defending himself on
the side of the applicant while he
has not requested for making of
these documents on his side. It is
seen that some of these documents
which is marked on the side of the
defence not at the instance of the
applicant. has been made use of by
the enquiry authority to reach a
finding against the applicant. This
has been accepted by the
disciplinary authority also. We are
of the considered view that this is
absolutely irregular and has
prejudiced the case of the
applicant. These documents, which
were not proved in accordance with
law should nor have been received
in evidence and that, any inference
drawn from these documents is
misplaced and opposed to law, we
further find that the enquiry
authority as well as, the
disciplinary authority have freely
made use of the statement alleged
to have been made by the statement
alleged to have been made by Smt Kr
Aruna in the presence of SW1 and it
was on that basis that they reached
the conclusion the applicant was
living with Smt. K.R. Aruna and
that, he was the father of the two
children on Smt. K.R. Aruna. The
S.W.1 in his deposition which is
extracted above, has not spoken to
the details contained in the
statement of Smt. K.R. Aruna which
was marked as Ex.1. Further it is
settled law that any statement
recorded behind the back of a
person can be made use of against
him in a proceeding unless the
person who is said to have made
that statement is made available
for cross-examination, to prove his
or her veracity. The disciplinary
authority has not even chosen to
include Smt. K.R. Aruna in the list
of witnesses for offering her for
being cross-examined for testing
the veracity of the documents
exhibited at Ex.1 veracity of the
documents exhibited at Ex.1 which
is said to be her statement.
Therefore, we have no hesitation in
coming to the conclusion that the
enquiry authority as well as, the
disciplinary authority have gone
wrong in placing reliance on Ex.1
which is the alleged statement of
Smt. K.R. Aruna without offering
Smt. K.R. Aruna as a witness for
cross-examination. The applicant’s
case is that the statement was
recorded under coercion and duress
and the finding based on this
statement is absolutely
unsustainable as the same is not
based on legal evidence. The other
documents relied on by the Enquiry
authority, as well as by the
disciplinary authority for reaching
the conclusion that the applicant
and Smt. K.R. Aruna were living
together and that they have
begotten two children have also
been not proved in the manner in
which they are required to be
proved."
Then. again after extracting the relevant portions from the disciplinary authority’s order, the Tribunal observed as follows:-
"We have extracted the fore-going
portions from the order of the
disciplinary authority for the
purpose of demonstrating that the
disciplinary authority has placed
reliance on a statement of Smt.
K.R. Aruna. without examining Smt.
K.R. Aruna. without examining Smt.
Aruna as a witness in the inquiry
and also on serval documents
collected from somewhere without
establishing the authenticity
thereof to come to a finding that
the applicant has conducted himself
in a manner unbecoming of a
Government servant. The nomination
form alleged to have been filed by
Sri Ramesh for the purpose of
Central Government Employees’
Insurance Scheme, was not a
document which was attached to the
memorandum of charges as one on
which the Disciplinary Authority
wanted to rely on for establishing
the charge. This probably was one
of the documents which the
applicant called for, for the
purpose of cross-examining the
witness or for making proper
defence. However, unless the
Government servant wanted this
document to be exhibited in
evidence, it was not proper for the
Enquiry Authority to exhibit it and
to rely on it for reaching the
conclusion against the applicant.
Further, an inference is drawn that
S.B.R.Babu mentioned in the school
records (admission registers and
Sh.Ramesh mentioned in the
Municipal records was the
applicant, on the basis of a
comparison of the hand-writing or
signature or telephone numbers are
only guess work. which do not
amount to proof even in a
disciplinary proceedings. It is
true that the degree of proof
required in a departmental
disciplinary proceedings, need not
be of the same standard as the
degree of proof required for
establishing the guilt of an
accused in a criminal case.
However, the law is settled now
that suspicion, however strong,
cannot be substituted for proof
even in a departmental disciplinary
proceeding. Viewed in this
perspective we find there is a
total dearth of evidence to bring
home the charge that the applicant
has been living in a manner
unbecoming of a Government servant
or that, he has exhibited
adulterous conduct by living with
Smt. K.R.Aruna and begetting
children."
On a careful perusal of the above findings of the Tribunal in the light of the materials placed before it. we do not think that there is any case for interference, particularly in the absence of full materials made available before us in spite of opportunity given to the appellants. On the facts of this case, we are of the view that the departmental Enquiry conducted in this case is totally unsatisfactory and without observing the minimum required procedure for proving the charge. The Tribunal was, therefore, justified in rendering the findings as above and setting aside the order impugned before it.
In the result, the appeal fails and is dismissed accordingly with no order as to costs.