Judgment:
1. The applicant challenges the orders dated 28.6.96 of the disciplinary authority imposing penalty of reduction by five stages for the period of five years and the order dated 25.1.99, affirming the same by the appellate authority.
2. The facts in brief are; while the applicant was working as Assistant Engineer (Maintenance of Civil Works) in the office of the Chief Postmaster General, Hyderabad, was served with the charge memo under Rule 14 of the CCS (CCA) Rules (for short Rules), on 28.11.90 containing five articles of charge alleging inter-alia, that he violated the orders of the higher authorities, failed to obtain the prior approval of the competent authority for executing minor civil works, split the works so as to bring them into his financial powers.
On his denial of the charges, the inquiring authority after an enquiry concluded that all the Articles except IV were proved. The said findings were accepted by the disciplinary authority awarding penalty as stated supra.
3. The learned Counsel for the applicant, Mr. Y. Appala Raju canvasses the validity of the orders on more than one ground. It was argued that the charge memo was issued belatedly in 1990 in respect of the alleged lapses committed in 1983, 1984 and 1985; the charges were not specific; even the listed documents were not supplied, no opportunity was afforded at least to inspect the documents and take notes, the inquiry has been held ex parte without affording any opportunity to the applicant to defend his case, hence the enquiry was vitiated as violative of principles of natural justice; and lastly that the findings arrived at by the Inquiry Officer were not based on admissible evidence.
4. The contentions were controverted in the reply and it has been averred that the inquiry has been held in conformity with the rules and that the applicant was afforded adequate opportunity in the inquiry.
The endeavour of the applicant was only to drag on the enquiry and that inspite of several opportunities granted, he had not inspected the listed documents, nor cross examined the witnesses.
5. Having heard the learned Counsel for the applicant and the respondents, we find that this case could be disposed of on the question of non-supply of the listed documents or inspection thereof leading to infraction of principles of natural justice.
6. To appreciate the above contention, it is necessary to notice the conduct of the inquiry. The first hearing was fixed on 5.12.91 at Chennai for the purpose of denial/acceptance of the charges and also for inspection of the listed documents (An. VIII). The applicant was on leave from 25.7.90 upto 31.12.91 on health grounds which was duly sanctioned. Inspite of it, the first hearing was fixed on 5.12.91. The applicant informed the Inquiry Officer by fax message about his inability to attend the inquiry on 5.12.91 and sought for postponement.
Instead of postponing the inquiry having received the fax message, the Inquiry Officer fixed the schedule for inspection of listed documents unilaterally even before the charges were put to him and denied. On that date itself, the applicant was directed to nominate his Defence Assistant. The Inquiry Officer, in his letter dated 17.2.92 directed him to inspect the listed documents on or before 28.2.92. This letter, however, reached the applicant on 3.3.92 i.e., much later to the date fixed for inspection. He, therefore, urged by telegram dated 5.3.92 (An. X), informing the above fact and requested to provide another date for verification of the listed documents and the letter An. XI, also was followed on the same date, seeking supply of the copies of the documents, time to inspect the originals and for nomination of the Defence Assistant. The Inquiry Officer without complying with the request and even without responding to the telegram or the letter, unilaterally, fixed dates for enquiry from 21.6.93 to 24.6.93, by this letter dated 7.5.93 (An. XII). In the inquiry held on 21.6-93, he again made written representation seeking time for nomination of Defence Assistant and to postpone the regular inquiry. But, the Inquiry Officer had proceeded with the inquiry and completed the examination of prosecution witnesses, SW.1 and SW.2 on the same date and compelled the applicant to examine the witnesses. On 22.6.93, the request for postponement of the inquiry to facilitate nomination of Defence Assistant so as to enable him, in an effective way, to cross examine the witnesses, was turned down and SW.3 to SW.5 were examined. The inquiry was continued on 23.6.93 to examine SW.6. In all, 136 bulky documents cited by the disciplinary authority to substantiate the charge were taken on record without formal approval of any identified witness. The inquiry was closed on 23.6,93 itself amidst protestations An. XIII and XIV, of the applicant.
7. Annexure-III is the list of documents by which articles of charge were sought to be established. The list contains 11 witnesses and 136 documents comprising of files running into many pages, letters and extracts of measurement books and also xerox copies of the statements of the applicant and others. The instances in respect of which the applicant was charged, related to the years 1983, 1984 and 1985. The imputation of the charges reveals that numerous instances of commissions and omissions were alleged against each charge. Admittedly, none of the listed documents were supplied to the applicant. The enquiry involving 11 witnesses and 136 huge files extracts etc., was completed in just 3 days.
8. From a careful look at the above undisputed facts, it appears to our mind that the enquiry officer has hastened the enquiry without allowing sufficient time for inspection. The rule which was consistently followed, in domestic enquiries is to supply copies of the listed documents. If the listed documents are huge and are not amenable for taking out extracts of the same, at least the delinquent officer should be given sufficient opportunity to inspect and take out notes with the help of his steno or in some cases the Supreme Court had even come down very heavily when a steno was not provided to take notes (see Kashinath Dikshita's case, 1986(2) SLR 62=1986(2) SLJ 279 (SC), what was sufficient opportunity for inspection or whether the copies of the documents should be supplied or not, is a matter to be decided on the facts of each case.
9. The applicant was on leave from 25.7.90 till 31.12.91 is not in controversy. Then it beats one's comprehension, who the first meeting was fixed on 5.12.91 and unilaterally, in the absence of the applicant, time was fixed for inspection of documents and appointment of defence assistant. Thus the enquiry was commenced even without asking the applicant generally as to the denial or acceptance of the allegations, as mandated by Rule 14 of CCS (CCA) Rules.
10. Be that as it may, as evident from Annexure-IX, the letter dated 17.2.92, the applicant was asked to inspect the documents by 28.2.92 with the prior appointment of the Presenting Officer. This letter was sent from Delhi by the Inquiry Officer. It is also significant to notice in this case, that the Inquiry Officer was stationed at Delhi and the enquiry was held at Hyderabad. Unless, the Presenting Officer was clearly directed to show the documents, the applicant has no way to inspect them, Annexure-X is a telegram issued by the applicant to say that the letter dated 17.2.92 was received by him only on 3.3.92, hence he could not attend on 28.2.92 for inspection of the documents. It is at this point, the Inquiry Officer had committed a serious error.
Having granted the opportunity till 28.2.92 for inspection of documents, when that opportunity could not be availed of by the applicant as the letter did not reach him in time, the Inquiry Officer should have given an opportunity for inspection of documents. His right for inspection of the documents was foreclosed and the inquiry schedule was fixed to June 1993. When the enquiry was fixed after one year hence there was no reason for not allowing time. It was not as though he straightaway proceeded with enquiry. After fixing the date of his enquiry, the Inquiry Officer went to Delhi and returned to Hyderabad only in June 1993, completed the enquiry in 3 days and went back. It is also not a case hastening of the enquiry, it was a case of conducting the enquiry at the convenience of the Inquiry Officer and at the risk of and serious prejudice to the delinquent.
11. From Annexure-XIII and XIV, it is evident that the applicant had been making persistent demands, when the witnesses were to be examined, for inspection of the documents and for appointment of the Defence Assistant as without availing them, it was simply impossible for him to cross examine the witnesses, but his request was not acceded to, without any ostensible reason and on 23rd the evidence was closed. Thus the applicant was not only not supplied with the listed documents but also not given opportunity to inspect the files. The explanation given in the reply and the contention of the learned Counsel for the respondents Shri V. Rajeswara Rao that the applicant had not availed opportunity given from 5.12.91, is wholly misconceived. The only time, the applicant did not avail opportunity for inspection of the documents was from 28.12.91 till January 1992 for a period of one month. No other opportunity was really given to him. In fact it was the Inquiry Officer who was responsible for the delay of the enquiry from June 1992 to June 1993 when no sittings were held. It is also important to notice that the receipt of the letter on 3.3.92 for inspection of documents was not disputed in the reply. In the subsequent docket orders of the Inquiry Officer, no mention was made by him as regards to this aspect of the matter. The Inquiry Officer straightway fixed the inquiry without giving any further time thereafter to 21.6.93.
12. It should be kept in mind that quite a large number of documents were listed along with the charge memo and all of them have been marked in the case. There is no explanation from the respondents that at least the copies of some listed documents, which could be supplied, were not supplied. We have noted the nature of the documents. Though there were number of extracts of files and letters, there was no reason for not supplying their copies. In a case where 136 documents were filed and 11 witnesses were examined, it is a herculean task for the delinquent officer to martial various items of works, their values and formulate his defence and prepare for cross examination. Against each article of charge, various instances omissions and commissions have been alleged relating to the years 1983 to 1985 and, unless documents were allowed to inspect and copies of some were supplied and given sufficient time for the applicant to appoint his Defence Assistant in whom he has got faith and confidence and also allow sufficient time for cross examination of the witnesses, there will not be effective and adequate opportunity to the delinquent officer, who is not acquainted with the art of martialling the facts and cross examining the witnesses. He should also be provided with sufficient scope to take notes from the files. In our view, this was not a case where inquiry should be completed within three days, amidst protests of the applicant and to compel to cross examine the witnesses without Defence Assistant. It should also be kept in mind that the Inquiry Officer was stationed at Delhi and the applicant was working at Hyderabad. Unless clear directions are given by the Inquiry Officer, the files and the documents would not be shown to him by the Presenting Officer. Though the Inquiry should be held as expeditiously as possible, it should not, however, be done to the serious prejudice of the delinquent officer.
After all the inquiry was initiated to arrive at the truth of the allegations which in this case could not have been successfully arrived at without thorough cross examination of the witnesses, after an extensive examination and study of the documents with the help of the Defence Assistant.Kashinath Dikshita v. Union of India and Ors. (supra)", the Hon'ble Supreme Court observed thus: "10. And such a stance was adopted in relation to an inquiry whereat as many as 38 witnesses were examined, and 112 documents running into hundreds of pages were produced to substantiate the charges. In the facts and circumstances of the case we find it impossible to hold that the appellant was afforded reasonable opportunity to meet the charges levelled against him. Whether or not refusal to supply copies of documents or statements has resulted in prejudice to the employee facing the departmental inquiry depends on the facts of each case. We are not prepared to accede to the submission urged on behalf of the respondents that there was no prejudice caused to the appellant, in the facts and circumstances of this case. The appellant in his affidavit (page 309 of the SLP Paper book) has set out in a tabular form running into twelve pages as to how he has been prejudiced in regard to his defence on account of the non-supply of the copies of the documents. We do not consider it necessary to burden the record by reproducing the said statement.
The respondents have not been able to satisfy us that no prejudice was occasioned to the appellant.
11. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter was have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself." The instant case stands on a better footing as there was denial of even inspection of listed documents, violating all cannons of natural justice.
14. As a result, the inquiry held was found vitiated. The impugned orders are accordingly quashed and set-aside. In view of the facts and circumstances of the case and the time which elapsed from 1983-1985 in respect of these years, the allegations in the charge memo are related and as the charge memo also having been issued about 11 years from now, we are of the opinion that no fresh inquiry should be held against the applicant on the charges in question.