In a landmark Judgment a Two Judge Bench of the Supreme Court comprising of Justice J.Chelameswar and Justice A.K.Sikri held that right to judicial remedies for the redressal of either personal or public grievances is a constitutional right of the subjects (both citizens and non-citizens) of this country and employees of the State cannot become members of a different and inferior class to whom such right is not available.
The Supreme Court was considering an appeal filed by an IAS officer Mr.Vijay Shankar Pandey against Disciplinary Proceedings taken against him by the Government for filing a PIL which ultimately resulted in the formation of SIT in the Black money Case [Ram Jethmalani & Others v. Union of India & Others, (2011) 8 SCC 1].Allowing the Appeal Justice Chelameswar held that “We are at a loss to comprehend how the filing of the writ petition containing allegations that the Government of India is lax in discharging its constitutional obligations of establishing the rule of law can be said to amount to either failure to maintain absolute integrity and devotion to duty or of indulging in conduct unbecoming of a member of the service”. Even otherwise, the IMPUGNED order, in our opinion is wholly untenable. The purpose behind the proceedings appears calculated to harass the appellant since he dared to point out certain aspects of mal-administration in the Government of India. The action of the respondents is consistent with their conduct clearly recorded in (2011) 8 SCC 1[6]. The whole attempt appears to be to suppress any probe into the question of blackmoney by whatever means fair or foul. The present impugned proceedings are nothing but a part of the strategy to intimidate not onlythe appellant but also to send a signal to others who might dare in future to expose any mal-administration. The fact remains, that this Court eventually agreed with the substance of the complaint pleaded in Writ Petition No.37 of 2010 and connected matters; and directed an independent inquiry into the issue of black money”.
The Constitution declares that India is a sovereign
democratic Republic.
The requirement of such democratic
republic is that every action of the State is to be informed
with reason.
State is not a hierarchy of regressively
genuflecting coterie of bureaucracy.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9043 OF 2014
(Arising out of Special Leave Petition (C) NO.12019 of 2014)
Vijay Shankar Pandey
... Appellant
Versus
Union of India & Another
Dated;September 22, 2014
CHELAMESWAR, J.
1. Leave granted.
2. The unsuccessful petitioner in the Writ Petition
No.87(S/B)/2014 on the file of the High court of Allahabad is
the appellant herein.
By the impugned judgment dated
3.4.2014 the said writ petition was dismissed by a Division
Bench of the Allahabad High Court.
1
Page 1
3.
The
appellant
is
an
officer
of
the
Indian
Administrative Service. On 22.7.2011 he was served with a
chargesheet consisting of five charges. All the charges are
to the effect that the conduct of the appellant is contrary to
Rule-3, 7, 8 and 17 of The All India Services (Conduct) Rules,
1968 (hereinafter called “CONDUCT Rules”). After certain
correspondence, (the details of which are not necessary for
the present purpose), the disciplinary authority appointed an
Enquiry Officer on 27.2.2012.
The appellant submitted his
reply on 5.3.2012. The appellant challenged the chargesheet
before the Central Administrative Tribunal in O.A.No.623 of
2012
which
was
eventually
dismissed
on
29.8.2012.
Aggrieved by the same, the appellant filed a writ petition in
the
Allahabad
subsequently.
High
Court
but
withdrew
the
same
The order of the Central Administrative
Tribunal became final.
4.
The Enquiry
Officer
submitted
his
report on
30.8.2012 exonerating the appellant of all the charges. The
copy of the said report is not served on him.
2
Page 2
5.
On
9.9.2012,
the
meeting
of
a
Selection
Committee for considering the cases of officers of the Indian
Administrative Service for promotion to the Super Time
Scale-II (ASTS-II) was held. The case of the appellant was
considered and the decision was kept in a sealed cover. The
appellant, therefore, submitted a representation to the Chief
Secretary of the State of Uttar Pradesh on 11.9.2012
requesting that in view of exoneration by the Enquiry Officer,
he be promoted to the Super Time Scale-II (ASTS-II).
As
there was no response to the representation, he approached
the Central Administrative Tribunal on 26.9.2012 once again
in O.A.No.381 of 2012 with prayer as follows:
“a) to issue an order or direction commanding the
respondents to take a final decision on the enquiry
report which has already been submitted by the
enquiry officer;
b) to issue an order or direction commanding the
respondents open the sealed cover of the
recommendations of the selection committee and to
forthwith issue promotion orders in respect of the
applicant;
c) Such other orders as this Tribunal may deem just, fit
and proper be also passed in the interest of justice.”
On the same day 26.9.2012, an order (hereinafter referred
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Page 3
to as the “IMPUGNED Order”) invoking Rule 8(3) of the All
India
Services
(Discipline
and
Appeal)
Rules,
1969
(hereinafter referred to as “DISCIPLINE Rules”) came to be
passed by the State of U.P. rejecting the Enquiry Report
dated 30.8.2012 (referred to supra). The relevant portion of
the order reads as under:
“2. Enquiry Officer Sri Jagan Mathews sent the enquiry
report vide his letter dated 30.08.2012. On examining the
enquiry report of the Enquiry Officer at government level it
was found that the Enquiry Officer had submitted a
cursory report without observing the mandate
of Rules -8(15), 8(16), 8(20) and 8(24) of All
India Service (Discipline & Appeal) Rules, 1969
as criticism has been leveled in the writ petiion of the
Central Government filed through Sri Vijay Shankar Pandey
before the Hon'ble Supreme Court and as such it is a clear
violation of Rule-3(1), Rule-7, Rule-8(1) and Rule-17 of the
All India Service (Conduct) Rules, 1968. Therefore the
Enquiry Officer has failed to properly investigate
the facts in the enquiry proceedings.
3.
Therefore, in the matter of Sri Vijay Shankar Pandey
IAS-1979, the Hon'ble Governor, after rejecting the enquiry
report of Enquiry Officer, Sri Jagan Mathews, constitute in
his place a 2 member Inquiry Board under sub-rule (3) of
Rule-8 of All India Service (Discipline & Appeal) Rules,
1969, comprising of Sri Alok Ranjan, Agricultural
Production Commissioner, Govt. of U.P. and Sri Anil Kumar
Gupta, Infrastructure and Industrial Commissioner, Govt.
of U.P. in order to enquire into the charsges imposed
against him.”
6.
Challenging
the
order
dated
26.9.2012,
the
4
Page 4
appellant again approached the Central Administrative
Tribunal
by
filing
O.A.No.381/2012
an
was
O.A.No.395/2012.
dismissed
by
The
the
earlier
Central
Administrative Tribunal on 16.4.2013 on the ground that it
had
become
infructuous.
O.A.No.395/2012
was
also
dismissed on 20.12.2013 with certain directions. The later
decision was challenged by the appellant herein in Writ
Petition No.87(S/B) of 2014, in which the order under appeal
herein (hereinafter referred to as the Order under APPEAL)
came to be passed dismissing the writ petition.
7.
The background facts of this case are that a Writ
Petition (C) No.37 of 2010 titled “Julio F. Ribero and others
vs. Govt. of India including the appellant herein, came to be
filed under the name and style of India Rejuvination
Initiative, a non-Government Organisation (NGO).
The said
Writ Petition along with another culminated in a judgment of
this Court in Ram Jethmalani & Others v. Union of India
& Others, (2011) 8 SCC 1. All the charges against the
appellant are in connection with the filing of the said Writ
Petition on the ground that the conduct of the petitioner is
5
Page 5
violative of the various CONDUCT Rules. Charge No.1 is on
account of certain statements made in the said Writ Petition
against certain senior officers of the Government of India.
The second charge is that the appellant failed to comply
with the requirement of Rule 13 of the CONDUCT Rules
whereunder he is obliged to give information to the
respondent within one month of becoming a member of the
such organization (NGO). The third and the fourth charges
are based on the allegation made in the Writ Petition (Civil)
No.37 of 2010. The substance of the charges is that those
allegations tantamount to criticism of the action of the
Central as well as State Governments and of giving evidence
without the previous sanction of the government and,
6
Page 6
therefore, contravention of Rules 71 and 82 respectively of
the CONDUCT Rules.
Charge No.5 is that the appellant
violated Rule 173 of the CONDUCT Rules.
Charge No.1
1
Rule 7. Criticism of Government.—No member of the Service shall, in any Radio
Broadcast or communication over any public media or in any document published
anonymously, pseudonymously or in his own name or in the name of any other
person or in any communication to the press or in any public utterance, make any
statement of fact or opinion,—
i.
Which has the effect of an adverse criticism of any current or recent
policy or action of the Central Government or a State Government; or
ii.
which is capable of embarrassing the relations between the Central
Government and any State Government; or
iii.
which is capable of embarrassing the relations between the Central
Government and the Government of any Foreign State:
Provided that nothing in this rule shall apply to any statement made or
views expressed by a member of the service in his official capacity and in the due
performance of the duties assigned to him.
2
Rule 8 Evidence before committees, etc.—(1) Save as provided in sub-rule (3), no
member of the Service shall except with the previous sanction of the Government,
give evidence in connection with any inquiry conducted by any person, committee or
other authority.
(2)
Where any sanction has been accorded under sub-rule (1) no member
of the service giving such evidence shall criticize the policy or any action of the
Central Government or of a State Government.
(3)
Nothing in this rule shall apply to—
(a) evidence given at any inquiry before an authority appointed by the
Government, or by Parliament or by a State Legislature; or
(b) evidence given in any judicial inquiry; or
(c) evidence given at departmental inquiry ordered by any authority
subordinate to the Government.
(4) No member of the Service giving any evidence referred to in sub-
rule (3) shall give publicity to such evidence.
3
Rule 17. Vindication of acts and character of members of the service:—No
member of the service shall, except with the previous sanction of the Government
have recourse to any court or to the press for the vindication of official act which has
been the subject-matter of adverse criticism or attack of a defamatory character.
Provided that if no such sanction is conveyed to by the Government
within twelve weeks from the date of receipt of the request, the member of the
service shall be free to assume that the sanction sought for has been granted to him.
7
Page 7
Writ Petition No.37(Civil)/2010 Julio F. Ribero and Others v.
Govt. of India and others has been filed through India
Rejuvenation Initiative, NGO before the Hon’ble Supreme
Court wherein you are also a petitioner.
In the
aforementioned writ petition on behalf of the petitioners
(which also included you) an additional affidavit has been
filed by Sri Jasbeer Singh wherein para 4 of the allegations
made by Sri S.K. Dubey against senior officers of the
Enforcement Directorate in his letter to the Hon’ble Prime
Minister have been endorsed, which was not expected of
you being a member of the All India Services.
This conduct of yours is contrary to Rule-3 of the All
India Service (Conduct) Rules, 1968 and you have violated
the aforesaid rule.
Charge No.2
Before becoming member of the institution named India
Rejuvenation Initiative, you did not inform the government,
whereas as per Rule-13 of the All India Service (Conduct)
Rules–1968 information is to be given within one month of
becoming a member.
This conduct of yours is contrary to Rule-3 of the All
India Service (Conduct) Rules-1968 and you have violated
the aforesaid rule.
Charge No.3
In the writ petition No.37(Civil)/2010 Julio F. Ribero and
others v. Govt. of India and others filed by you before the
Hon’ble Supreme Court, by way of an additional affidavit
filed by the petitioners (which also included you), senior
officers of the Government of India were criticized, whereas
the members of the All India Service are prohibited from
criticizing, in the media or in the press, the actions of both
the Central as well as the State Government, either in their
own or in another person’s name. as such you violated
Rule-7 of the All India Service (Conduct) Rules-1968.
Explanation.—Nothing in this rule shall be deemed to prohibit a
member of the Service from vindicating his private character or any act done by him
in his private capacity. Provided that he shall submit a report to the Government
regarding such action.
8
Page 8
This conduct of yours is contrary to Rule-3 of the All
India Service (Conduct) Rules-1968 and you have violated
the aforesaid rule.
Charge No.4
In Writ Petition No.37(Civil)/2010 Julio F. Ribero and Others v.
Govt. of India and others filed before the Hon’ble Supreme
Court, by way of an additional affidavit filed by the
petitioners (which also includes), officers of the Enforcement
Directorate of Government of India were criticized, whereas
as per Rule-8 of the All India Service (Conduct) Rules-1968,
members of the All India Service are not allowed to depose
in any enquiry wherein the Central or the State government
may be criticized.
This conduct of yours is contrary to Rule-3 of the All
India Service (Conduct) Rules-1968 and you have violated
the aforesaid rule.
Charge No.5
In Writ Petition No.37(Civil)/2010 Julio F. Ribero and Others v.
Govt. of India and others filed before the Hon’ble Supreme
Court, no permission of the State Government was sought
for filing the additional affidavit which was filed by the
petitioners (which also includes you), whereas members of
the All India Service are not allowed to give any such
information without prior permission of either the Central or
the State Government which brings disregard to the Central
or the State Government. As such you failed to observe
Rule-17 of the All India Service (Conduct) Rules, 1968.
This kind of your conduct is against Rule-3 of the All
India Service (Conduct) Rules-1968 and you are guilty for
violating the aforesaid provision.
8.
The appellant herein never disputed the fact that
he was one of the petitioners in Writ Petition (Civil)
No.37/2010 (referred to supra) nor did he disown statements
(allegations) made in the said writ petition.
The Enquiry
9
Page 9
Officer exonerated the appellant of all the charges.
The
second respondent rejected the report of the Enquiry Officer
on two grounds;
that the Enquiry Officer submitted a
cursory report without observing the mandate of Rules-
8(15), 8(16), 8(20) and 8(24) of the DISCIPLINE Rules; and
failed to properly investigate the facts.
Interestingly, the
IMPUGNED order, states that the conduct of the appellant as
recorded in the charge-sheet “is in clear violation of Rules-
3(1), 7, 8(1) and 17 of 1969 Rules”. Therefore, the second
respondent ordered to constitute a two member Inquiry
Board to again enquire into the charges framed against the
appellant.
9.
Mr. Pallav Shishodia, learned senior counsel appearing
on behalf of the appellant attacked the IMPUGNED order
dated 26.09.2012 on two grounds:
(A)
That invocation of Rule 8(3) of the DISCIPLINE
Rules is wholly illegal. It is submitted that the said rule
only enables the State to make a choice between the
two courses of action available in case it decides to
conduct an enquiry contemplated under the rules;
1
0
Page 10
(i)
Appointing
an
officer
to
enquire
into
the
misconduct of the Public Servant; or
(ii)
Appoint an authority or board under the Public
Servants (Inquiries) Act, 1850.
10. It is further submitted that the State cannot resort to
the provisions of the 1850 Act after having had appointed an
Enquiry Officer under the DISCIPLINE Rules merely because
the State is not able to agree with the report submitted by
the Enquiry Officer.
11. Learned senior counsel further argued that the reason
given (by the State for rejecting the Enquiry Officer’s report)
that the enquiry was conducted in violation of the mandate
contained
in
Rules-8(15),
8(16),
8(20)
and
8(24)
of
DISCIPLINE Rules, is wholly unsustainable in law - for the
reason that the Order dated 26.9.2012 fails to specify the
exact violations of above mentioned rules, committed by the
Enquiry Officer. On the other hand, none of these provisions
are attracted in the case on hand as each one of the above
mentioned rules pertain to the procedure to be followed
1
1
Page 11
while conducting an enquiry. Rules 8 (15) and 8(16) of the
DISCIPLINE Rules, incorporate the rule of audi altem partem
to enable both the delinquent officer as well as the State to
adduce evidence in support of their respective stands on the
various charges set out in the chargesheet.
Rule 8(20) of
the 1969 Rules only enables the Enquiry Officer to either
receive written briefs or hear both the Presenting Officer and
the delinquent. The Rule does not mandate either causes of
the action unless the parties desire so. It is not the case of
the State at any stage that the Presenting Officer either
wanted to be heard in person or to file a written brief,
therefore, there cannot be any infraction of Rule 8(20) of the
1969 Rules.
Lastly, it is submitted that Rule 8(24) of the
DISCIPLINE Rules only prescribed the format in which the
report is to be submitted. The non-compliance, if any, with
the format (because the appellant is unable to make any
submission as the copy of the report itself is not made
available to the appellant), is not fatal to the validity of the
report. According to the learned counsel Rule 8 (24) of the
DISCIPLINE Rules is to be construed only as recommendatory
1
2
Page 12
but not as mandatory.
(B)
The ultimate conclusion of the State in rejecting
the Enquiry Report dated 30.08.2012 is that the
“Enquiry Officer has failed to properly investigate the
FACTS”.
The learned counsel submitted that there are
no facts in dispute which require to be investigated. All
facts alleged in the chargesheet against the appellant
are admitted by the appellant.
The Enquiry Officer is
required only to record a conclusion whether, in his
opinion, the admitted facts constitute any misconduct
under any of the CONDUCT Rules referred to in the
chargesheet.
12. On the other hand, Shri K.V. Vishwanathan, learned
senior counsel for the respondent submitted that the Order
under APPEAL does not call for any interference as the order
of the Enquiry Officer is in utter non-compliance with Rule
8(15), (16), (20) and (24) of the DISCIPLINE Rules.
Learned
counsel also submitted that the decision of the State is well
within the authority conferred under Rule 8, sub-Rule (3) of
1
3
Page 13
the DISCIPLINE Rules.
13. The Division Bench based its conclusion, that the
IMPUGNED order dated 26.9.2012 cannot be faulted, on two
factors. They are:
(i)
that the Enquiry Officer submitted his Report dated
30.8.2012
without following the procedure prescribed by
law under Rule 8 of the DISCIPLINE Rules; (ii) More
interestingly, the High Court accepted the submission on
behalf of the State that the initial order of the appointment
of Enquiry Officer under Rule 8 is unsustainable in law. Such
a flaw was realized by the State only at the stage of
considering the said Enquiry Officer’s report.
14. The High Court, therefore, came to the conclusion that
the State Government is justified in law to appoint a Board of
Enquiry, contemplated under Rule 8(3) of the DISCIPLINE
Rules.
15. Now, we proceed to consider the submissions.
16. The first submission of the appellant is to be examined
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4
Page 14
in the light of Rule 8(1), (2) and (3) of the DISCIPLINE Rules.
Rule 8 as far as is relevant is extracted:
Rule 8. Procedure for imposing major penalties – (1) No order
imposing any of the major penalties specified in Rule 6 shall be made
except after an inquiry is held as far as may be, in the manner provided in
this rule and Rule 10, or, provided by the Public Servants (Inquiries) Act,
1850 (37 of 1850) where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are
grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against a member of the Service, it may appoint under this
rule or under the provisions of the Public Servants (Inquiries) Act, 1850,
as the case may be, an authority to inquire into the truth thereof.
(3) Where a Board is appointed as the inquiring authority it shall consist
of not less than two senior officers provided that at least one member of
such a Board shall be an officer of the service to which the member of the
service belongs.
17. It is apparent that Rule 8(1) prohibits imposition of any
major
penalty
without
holding
an
enquiry
either
in
accordance with the procedure prescribed under the Rules or
under the provisions of the Public Servants (Inquiries) Act,
1850.
18. Rule
8(2)
specifically
authorises
the
disciplinary
authority to appoint an authority to enquire into the truth of
any imputation of misconduct or misbehaviour against a
member of the service if the disciplinary authority is of the
1
5
Page 15
opinion that there are grounds to inquire into.
Such an
authority could be appointed either in exercise of the power
conferred under Rules or under provisions of the Public
Servants (Inquiries) Act, 1850.
19. Rule 8(3) contemplates appointment of a Board as an
Inquiring Authority and stipulates that such Board shall
consist of not less than two senior officers of whom at least
one should be an officer of the service to which the
delinquent officer belongs. The expression “Board” is not
defined under the Rules.
The only conclusion that can be
drawn from the scheme of Rules 8 (2) & (3) is that the
expression ‘Enquiring Authority’ implies either a single
member authority or Board consisting of two or more
members.
20. All the parties - the appellant, the respondents and the
Central
Administrative
proceeded
on
the
Tribunal
basis
that
and the High Court
the IMPUGNED order
constituting a two member Enquiry Board under Rule 8(3) of
the DISCIPLINE Rules is an order constituting such a Board
1
6
Page 16
under the provisions of the Public Servants (Inquiries) Act,
1850.
We do not see any basis for such a conclusion.
The
IMPUGNED order nowhere refers to the Public Servants
(Inquiries) Act, nor there is anything in Rule 8(3) which
suggests that whenever a multi-member Board is appointed
as an Enquiring Authority, such a Board could be appointed
only under provisions of the Public Servants (Inquiries) Act.
The language of Rule 8(2) is wide enough to enable the
disciplinary authority to appoint either a single member
Enquiring Authority or a multi-member Board to inquire into
the misconduct of a delinquent officer.
21. Be that as it may, the question is whether the
disciplinary authority could have resorted to such a practice
of abandoning the Enquiry already undertaken and resort to
appointment of a fresh Enquiring Authority (multi-member).
The issue is not really whether the Enquiring Authority
should be a single member or a multi member body, but
whether a second inquiry such as the one under challenge is
permissible.
A Constitution Bench of this Court in K.R. Deb
v. The Collector of Central Excise, Shillong, (1971) 2
1
7
Page 17
SCC 102, examined the question in the context of Rule 15(1)
of the Central Civil Services (Classification, Control and
Appeal) Rules, 1957.
ordered
against
a
It was a case where an enquiry was
sub-Inspector,
appellant before this Court).
Central
Excise
(the
The inquiry officer held that
the charge was not proved. Thereafter the disciplinary
authority appointed another inquiry officer “to conduct a
supplementary open inquiry”.
Such supplementary inquiry
was conducted and a report that there was “no conclusive
proof” to “establish the charge” was made.
Not satisfied,
the disciplinary authority thought it fit that “another inquiry
officer should be appointed to inquire afresh into the
charge”.
22. The Court held that:
“12. 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 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 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.
1
8
Page 18
13. 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.”
(Emphasis supplied)
and allowed the appeal of K.R. Deb.
23. It can be seen from the above that the normal rule is
that there can be only one Enquiry.
This Court has also
recognized the possibility of a further Enquiry in certain
circumstances enumerated therein.
The decision however
makes it clear that the fact that the Report submitted by the
Enquiring Authority is not acceptable to the disciplinary
authority, is not a ground for completely setting aside the
enquiry report and ordering a second Enquiry.
24. The scheme of Rule 8 of the DISCIPLINE Rules and Rule
15 of the Central Civil Services (Classification, Control and
Appeal) Rules, 1965 are similar. Therefore, the principle laid
down in Deb’s case, in our opinion, would squarely apply to
the case on hand.
25. Therefore, it becomes necessary for us to examine the
1
9
Page 19
legality of the IMPUGNED order in the light of the law laid
down in Deb’s case i.e. whether a further enquiry is really
warranted on the facts of the case. We shall proceed for the
purpose of this case that such further enquiry need not be by
the same officer who initially constituted an enquiring
authority and could be by a multi-member board.
26. The respondents recorded four reasons for ordering a
fresh inquiry by a Board, under the IMPUGNED order.
(i)
The Inquiry Report dated 30th August, 2012 is
cursory.
(ii)
The inquiry was conducted in violation of
Rules 8(15), (16), (20) and (24) of the
DISCIPLINE Rules.
(iii) The contents of Writ Petition (C) No. 37 of
2010 on the file of this Court constitutes a
criticism of the Central Government, and
therefore, is a clear violation of Rule 3(1),
Rule 7, 8(1) and 17 of the CONDUCT Rules.
(iv) That the Inquiry Officer failed to properly
investigate the facts before submitting his
2
0
Page 20
report.
27. The legality of the IMPUGNED order depends on the
tenability of the above.
We shall deal with the last of the
above-mentioned four reasons:
4th Reason:
It is an absolutely untenable ground, since there was
nothing for the Enquiry Officer to investigate regarding the
facts of the various allegations in the charge-sheet.
The
appellant herein never disputed the factual correctness of
the allegations. He admitted that he was a petitioner in Writ
Petition (C) No. 37 (supra).
He never disowned any one of
the allegations made in the said Writ Petition.
Therefore,
there were no facts to be investigated into.
Ist Reason:
Coming to the first reason - that the report is a cursory
report. A copy of the report is not made available to the
appellant. The content of the said report is not known. The
only admitted fact about the report is that the appellant was
exonerated of all the charges made against him. If such a
2
1
Page 21
conclusion is otherwise justified, whether the report is
cursory or elaborate, should make no difference to the
legality of the report. What matters is the correctness of the
conclusions recorded, not the length or the elegance of the
language of the report which determines the legality of the
conclusions recorded in it. Therefore this ground is equally
untenable.
2nd Reason:
The second reason stated is that the Enquiry Officer did
not observe the mandate of Rule 8(15), (16) and (24) of the
DISCIPLINE Rules.
We deem it appropriate to examine the
content and scope of these rules 4 and record our conclusion
4
(15) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge
are proposed to be proved shall be produced by, on behalf of, the disciplinary authority. The witness shall
be examined by, or on behalf of, the Presenting Officer and may be cross-examined by, or on behalf of, the
member of the Service. The Presenting Officer shall be entitled to re-examine the witnesses on any points,
on which they have been cross-examined, but not on any new matter, without the leave of the inquiring
authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
(16) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the
inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in
the list given to the member of the Service or may itself call for new evidence or recall and re-examine any
witness and, in such case, the member of the Service shall be entitled to have, if he demands it, a copy of
the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days
before the production of such new evidence, exclusive of the day of adjournment and the day to which the
inquiry is adjourned. The inquiring authority shall give to the member of the Service an opportunity of
inspecting such documents before they are taken on the record. The inquiring authority may also allow the
member of the Service to produce new evidence, if it is of opinion that the production of such evidence is
necessary in the interests of justice.
NOTE.- New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any
gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the
evidence which has been produced originally.
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regarding the applicability of each of the rules to the facts of
the case on hand.
28. Rule 8(15) provides that both the oral and documentary
evidence by which the articles of charge are proposed to be
proved by the disciplinary authority shall be produced on the
date fixed for the Enquiry; witnesses on behalf of the
disciplinary authority may be examined both in chief as well
as cross etc.
It is obvious from the Rule that the rule
cannot have any application where the delinquent officer
admits the correctness of the factual allegations against him.
29. Rule 8(16) speaks of adducing additional evidence and
the procedure thereof.
For the reasons mentioned in the
context of sub-Rule (15), sub-Rule (16) will equally have no
application, where the delinquent officer does not contest
the factual correctness of the allegations made against him.
30. Rule 8(20)5 enables the Enquiring authority to hear both
the presenting officer on behalf of the disciplinary authority
5
Rule 8(20). The inquiring authority may, after the completing of the production of
evidence, hear the Presenting Officer, if any appointed, and the member of the
Service or permit them to file written briefs of their respective cases, if they so
desire.
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3
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and the delinquent officer, after recording of the evidence is
complete.
In addition, it enables the Enquiring Authority to
permit written briefs by both the parties, in case they desire
so.
31. Application of Rule 20 thus depends upon the existence
of two factors.
(i) the appointment of a presenting officer.
(ii) the presenting officer desires to file a written brief.
32. We could not find any categorical assertion on the
record by the State that a presenting officer was in fact
appointed and such officer desired to file a written brief or
make oral submissions, but was prevented from doing so by
the Enquiring Authority.
Therefore, even this reason must
fail.
33. Coming to Rule 8(24), the sub-Rule reads as follows:-
“(24)(i) After the conclusion of the inquiry, a report shall be
prepared and it shall contain-
(a) the articles of charge and the statement of imputa-
tions of misconduct or misbehaviour;
(b) the defence of the member of the Service in respect
of each article of charge;
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4
Page 24
(c) an assessment of the evidence in respect of each arti-
cle of charge; and
(d) the findings on each article of charge and the reasons
therefor.
Explanation.-If in the opinion of the inquiring authority
the proceedings of the inquiry establish any article of
charge different from the original articles of charge, it may
record its findings on such article of charge.
Provided that the findings on such article of charge
shall not be recorded unless the member of the Service has
either admitted the facts on which such article of charge is
based or has had a reasonable opportunity of defending
himself against such article of charge.
(ii)
The inquiring authority shall forward to the
disciplinary authority the records of inquiry which shall
include-
(a) the report prepared by it under clause (i);
(b) the written statement of defence, if
submitted by the member of the Service;
(c) the oral and documentary evidence produced in
the course of the inquiry;
(d) written briefs, if any, filed by the Presenting
Officer or the member of the Service or both
during the course of the inquiry; and
(e) the orders, if any, made by the disciplinary
authority and the inquiring authority in regard to
the inquiry.”
any,
34. It stipulates as to what should be the content of the
report.
From a reading of the above Rule, it is clear that the
rule will have virtually no application to a case where the
delinquent
employee
does
not
dispute
the
factual
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5
Page 25
correctness of the allegations contained in the articles of
charge. Therefore, it follows that this reason also is wholly
untenable.
3rd Reason:
Coming to the 3rd reason given in the IMPUGNED Order
that the content of the Writ Petition (C) No. 37 of 2010 is
critical of the Government of India, and therefore, violative of
Rule 3(1), 7, 8(1) and 17 of the CONDUCT Rules, we are of
the opinion that this ground is equally untenable.
35. Rule 17 of the CONDUCT Rules reads as follows:
“17. Vindication of acts and character of members of the service.—No
member of the service shall, except with the previous sanction of the
Government, have recourse to any Court or to the press for the vindication
of official act which has been the subject-matter of adverse criticism or
attack of a defamatory character.
Provided that if no such sanction is conveyed to by the Government
within twelve weeks from the date of receipt of the request, the member of
service shall be free to assume that the sanction sought for has been
granted to him.
Explanation.—Nothing in this rule shall be deemed to prohibit a
member of the Service from vindicating his private character or any act
done by him in his private capacity. Provided that he shall submit a report
to the Government regarding such action.”
We fail to understand how this Rule could be said to have
been violated, in the background of the allegations contained
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in the charges framed against the appellant. In our opinion,
this rule has no application whatsoever to the allegations
contained in the charge-sheet.
The rule only prohibits a
member of the service from having recourse either to a
Court or to the press for vindication of the official acts of
such member which have been the subject matter of
adverse criticism or a defamatory attack.
It is not the
content of any one of the charges against the appellant that
he sought to vindicate any one of his official acts by filing WP
(C) No. 37 of 2010.
36. Rule 7 of the Conduct Rules reads as follows:
“7. Criticism of Government.—No member of the service shall,
in any Radio Broadcast or communication over any public media
or in any document published anonymously, pseudonymously or in
his own name or in the name of any other person or in any
communication to the press or in any public utterance, make any
statement of fact or opinion—
(i) which has the effect of an adverse criticism of any current
or recent policy or action of the Central Government or a
State Government; or
(ii) which is capable of embarrassing the relations between the
Central Government and any State Government; or
(iii) which is capable of embarrassing the relations between the
Central Government and the Government of any Foreign
State:
Provided that nothing in this rule shall apply to any
statement made or views expressed by a member of the service in
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7
Page 27
his official capacity and in the due performance of the duties
assigned to him.”
37. Clearly this Rule only prohibits criticism of the policies
of the Government or making of any statement which is
likely to embarrass the relations between the Government of
India and a Foreign State or the Government of India and the
Government of a State. Allegations of mal-administration, in
our opinion, do not fall within the ambit of any of the
abovementioned three categories.
The entire burden of
song in the Writ Petition (C) No.37 of 2010 is regarding mal-
administration.
38. Rule 8 of the Conduct Rules reads as follows:
“8. Evidence before committees, etc.—(1) Save as provided in sub-rule
(3), no member of the service shall, except with the previous sanction of
the Government, give evidence in connection with any inquiry conducted
by any person, committee or other authority.
(2)
Where any sanction has been accorded under sub-rule (1)
no member of the service giving such evidence shall criticize the policy or
any action of the Central Government or of a State Government.
(3) Nothing in this Rule shall apply to—
(a) evidence given at any inquiry before an authority appointed
by the Government, or by Parliament or by a State
Legislature; or
(b) evidence given in any judicial inquiry; or
(c) evidence given at departmental inquiry ordered by any
authority subordinate to the Government.
In substance the Rule prohibits a member of the service to
give evidence in connection with any inquiry conducted by
any person, committee or other authority except with the
previous sanction of the Government. However, sub-rule (3)
(b) makes a categorical declaration that nothing in the Rule
shall apply to evidence given in any judicial inquiry.
Writ
petition filed in public interest before the highest court of the
country cannot be an inquiry contemplated under Rule 8(i).
This is apart from the fact that sub-rule (3)(b) expressly
excludes evidence given in any judicial inquiry. Dehors such
an exception, Rule 8 would be subversive of the basic
freedom of the citizens of this country, detrimental to the
norms of good governance and antithetical to the liberal
democratic structure of the Constitution.
39. Rule 3(1) reads as follows:
“3. General.—(1) Every member of the service shall, at all
times, maintain absolute integrity and devotion to duty and
shall do nothing which is unbecoming of a member of the
service.”
40. We are at a loss to comprehend how the filing of the
writ petition containing allegations that the Government of
India is lax in discharging its constitutional obligations of
establishing the rule of law can be said to amount to either
failure to maintain absolute integrity and devotion to duty or
of indulging in conduct unbecoming of a member of the
service.
41. Even otherwise, the IMPUGNED order, in our opinion is
wholly untenable. The purpose behind the proceedings
appears calculated to harass the appellant since he dared to
point out certain aspects of mal-administration in the
Government of India. The action of the respondents is
consistent with their conduct clearly recorded in
(2011) 8
SCC 16. The whole attempt appears to be to suppress any
6
Ram Jethmalani & Others v. Union of India & Others, (2011) 8 SCC 1 - 40. We must express our
serious reservations about the responses of the Union of India. In the first instance, during the earlier
phases of hearing before us, the attempts were clearly evasive, confused, or originating in the denial mode.
It was only upon being repeatedly pressed by us did the Union of India begin to admit that indeed the
investigation was proceeding very slowly. It also became clear to us that in fact the investigation had
completely stalled, inasmuch as custodial interrogation of Hasan Ali Khan had not even been sought for,
even though he was very much resident in India. Further, it also now appears that even though his passport
had been impounded, he was able to secure another passport from the RPO in Patna, possibly with the help
or aid of a politician.
41. During the course of the hearings the Union of India repeatedly insisted that the matter
involves many jurisdictions, across the globe, and a proper investigation could be accomplished only
through the concerted efforts by different law enforcement agencies, both within the Central Government,
and also various State Governments. However, the absence of any satisfactory explanation of the slowness
of the pace of investigation, and lack of any credible answers as to why the respondents did not act with
respect to those actions that were feasible, and within the ambit of powers of the Enforcement Directorate
itself, such as custodial investigation, leads us to conclude that the lack of seriousness in the efforts of the
respondents are contrary to the requirements of laws and constitutional obligations of the Union of India.
It was only upon the insistence and intervention of this Court that the Enforcement Directorate initiated and
secured custodial interrogation over Hassan Ali Khan.
probe into the question of blackmoney by whatever means
fair or foul. The present impugned proceedings are nothing
but a part of the strategy to intimidate not only the appellant
but also to send a signal to others who might dare in future
to expose any mal-administration.
The fact remains, that
this Court eventually agreed with the substance of the
complaint pleaded in Writ Petition No.37 of 2010 and
connected matters; and directed an independent inquiry into
the issue of black money.
42. The Constitution declares that India is a sovereign
democratic Republic.
The requirement of such democratic
republic is that every action of the State is to be informed
with reason.
State is not a hierarchy of regressively
genuflecting coterie of bureaucracy.
43. The right to judicial remedies for the redressal of either
42. The Union of India has explicitly acknowledged that there was much to be desired with the
manner in which the investigation had proceeded prior to the intervention of this Court. From the more
recent reports, it would appear that the Union of India, on account of its more recent efforts to conduct the
investigation with seriousness, on account of the gravitas brought by this Court, has led to the securing of
additional information, and leads, which could aid in further investigation. For instance, during the
continuing interrogation of Hassan Ali Khan and the Tapurias, undertaken for the first time at the behest of
this Court, many names of important persons, including leaders of some corporate giants, politically
powerful people, and international arms dealers have cropped up. So far, no significant attempt has been
made to investigate and verify the same. This is a further cause for the grave concerns of this Court, and
points to the need for continued, effective and day-to-day monitoring by an SIT constituted by this Court,
and acting on behalf, behest and direction of this Court.
personal or public grievances is a constitutional right of the
subjects (both citizens and non-citizens) of this country.
Employees of the State cannot become members of a
different and inferior class to whom such right is not
available.
44. The respondents consider that a complaint to this Court
of executive malfeasance causing debilitating economic and
security concerns for the country amounts to inappropriate
conduct for a civil servant is astounding. There is another
factor which brings the respondent virtually within the ambit
of legal malice, to say the least Mr. Jasveer Singh, another
employee of the respondent was also a co-petitioner in the
Civil Writ filed in this Court.
against him.
However, no action is taken
This leaves much to be desired and makes
bonafides of the respondents suspect.
45. The appeal is allowed. The judgment under appeal is
set-aside. Consequently, the O.A. stands allowed as prayed
for. The respondents are liable jointly and severally to pay
costs to the appellant which is quantified at Rs.5,00,000/-
(rupees five lakhs).
those who
It is open to the respondents to identify
are responsible for
the initiation
of such
unwholesome action against the appellant and recover the
amounts, if the respondents can and have the political will.
..............................J.
[ J. CHELAMESWAR ]
..............................J.
[ A.K. SIKRI ]
New Delhi
September 22, 2014
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