While partly upholding the order passed by the Central Administrative Tribunal to the extent of setting aside the inquiry proceedings along with the penalty order since the Department failed to examine relevant witnesses, the Delhi High Court held that it is a settled legal position that once the Court sets aside an order of punishment on the ground that the inquiry being not properly conducted, the Disciplinary Authority was to conduct the inquiry from the point it stood vitiated.

The Division Bench of Justice V. Kameswar Rao and Justice Anoop Kumar Mendiratta observed that “In the present case, the respondent allegedly would not be qualified or eligible for recruitment in service on account of producing a forged certificate, which entails serious consequences. A premium cannot be given to a person who allegedly committed forgery, by directing re-instatement on account of procedural faults in the inquiry proceedings”.

While noting that the statement of the Respondent recorded in defence had not been placed on record or even discussed in the Inquiry Report, the Bench observed that “Rule 14(18) of CCS (CCA) Rules, 1965 has been formulated for enabling the delinquent official to rebut and explain the circumstances appearing against him in evidence. The Inquiry Officer, as such, is obligated to put the incriminating evidence to the respondent in order to give him a proper opportunity of explaining the circumstances appearing against him unless he is examined in defence.”

Senior Advocate N.K. Aggarwal appeared for the Petitioner, whereas Advocate Nilansh Gaur appeared for the Respondent.

Going by the background of the case, it was the case of Petitioner that the Respondent was appointed as a Caretaker in Safdarjung Hospital in 1986 as per Recruitment Rules based on matriculation certificate, and was promoted in the course of his service to the post of Chief Sanitary Superintendent in 2000. It was alleged that the Respondent had failed in the Higher Secondary Examination and had got the Job in the Hospital by forging the results and marks in the Mark Sheet submitted with the department. The departmental inquiry was challenged by the Respondent/delinquent official before the Tribunal primarily on the ground of violation of principles of natural justice, on account of failure to examine the relevant witnesses to prove the documents and follow the procedure as contemplated in Rule 14 of CCS (CCA) Rules.

After considering the submission, the High Court noted that the disciplinary proceedings were initiated by the department only on receipt of complaint from the Central Vigilance Commission wherein the identity of the complainant was directed to be kept confidential in view of Public Interest Disclosure Resolution.

While disagreeing with the observations of the Tribunal that some of the questions put to the Respondent in any manner shifted the burden of proof to the Respondent to prove his innocence, the High Court elucidated that if the Inquiry Officer conducts the inquiry proceedings as a Prosecutor and puts leading questions on prosecution witnesses exposing a prejudiced or biased mind or in any manner conducts the inquiry proceedings ignoring the principles of natural justice, the inquiry would be considered to be opposed to principles of natural justice.

However, the High Court clarified that the Inquiring Authority is entitled to put questions to the witnesses for clarification if it becomes necessary, so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiry Officer questions the witnesses.

The Bench stated that the Tribunal had upheld the contentions raised on behalf of the Respondent finding deficiencies in the conduct of inquiry, in violation of provisions of Rule 14 of CCS (CCA) Rules on the ground that instead of examining the concerned Administrative Officer (AO) as a witness on behalf of the department, one Ram Niwas, AO had appeared as a witness without issuing of any formal order by the Disciplinary Authority.

“It needed to be kept in perspective that for purpose of proving the verification report qua the certificate in question, the Inquiry Officer was required to prove the same by examining the official from the Board or by examining the official from the department who may have obtained the verification report from the concerned Board. This could have ensured a fair and proper opportunity to the respondent for furnishing his defence/explanation, if any, qua the certificate in question. The substitute AO, who had not participated in obtaining the verification report, could not have proved the verification report received from the Board, on record”, added the Bench.

The Bench further observed that in terms of Rule 14(18) of CCS (CCA) Rules, after the prosecution evidence was over, the charged officer was required to submit his statement of defence indicating his line of defence, if any. The evidence was to be led in the same manner giving an opportunity of cross- examination to the Presenting Officer.

“Thereafter, the Inquiring Authority would have enquired the charged officer if he wished to appear as his own witness and in case the charged officer declined to do so, the Inquiring Authority was required to generally question him to explain any circumstances appearing against him”, added the Bench.

The High Court therefore set aside the order passed by the Tribunal directing re-instatement of the Respondent with back wages, and remitted the case back to the Disciplinary Authority to conduct the inquiry from the point it stood vitiated.

Cause Title: Union of India and Ors. v Surender Kumar [Neutral Citation: 2023: DHC: 3999-DB]

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Delhi High CourtJustice V. Kameswar RaoJustice Anoop Kumar Mendiratta

Pankaj Bajpai