Dr. Sanjiv Kumar, Member (Ad.)

1. This Original Application is filed under section 19 of the Central Administrative Tribunal Act, 1985 seeking relief to quash the impugned order dated 09.09.2003 and to direct the respondents to make the payment of full gratuity to the applicant within a period of two weeks along with the compound interest @ 18% and to direct the respondents to make the full payment of pension to the applicant regularly ignoring the impugned orders contained in Annexure No. 1 to this Original Application. Prayer has also been made to direct the respondents to implement the recommendations of the Departmental Promotion Committee held in the month of September, 1997 and accordingly pass appropriate orders promoting the applicant to the post of Director General of Police w.e.f. the date person junior to him was promoted i.e. from 1.10.1997 with all consequential benefits and accordingly the entire pensionary benefits of the applicant may also be revised and paid to him with the payment of arrears within some reasonable time which may be one month along with the interest @ 18% and the respondents be also directed to pay leave encashment amount to the applicant with interest within aforesaid time and also issue direction which this Tribunal may deem fit and proper and grant all the consequential benefits to the applicant and also award costs.

2. The brief fact of the case is that vide this Original Application, the applicant is challenging the punishment order dated 09.09.2003 and impugned order dated 23.10.2003 passed by the Central Government directing to reduce his pension by 50% and forfeit the entire gratuity permanently in the purported exercise of powers under Rule-6 of All India Service (Death cum retirement benefit) Rules, 1958. The said order has been passed on the basis of the disciplinary proceedings and the charges, which are unfounded and based on no evidence. The charges have been treated as proved on imaginations and speculation and the same cannot stand without any substance. The entire disciplinary proceedings being violative of the principles of equity, fairplay and natural justice are void ab initio.

3. It is argued by learned counsel for the applicant that the applicant having been duly selected was initially appointed as Assistant Superintendent of Police (A.S.P.) being incumbent of 1964 I.P.S. Batch - direct recruitment. He was ultimately promoted to the post of Additional Director General of Police in the year 1994 on account of merit, eligibility and commendable performance. He was duly selected and recommended by the Departmental Promotion Committee for promoting him to the next higher post of Director General of Police in the month of September, 1997 on account of 09 outstanding character roll entries and the most commendable and spectacular service record and best amongst others, yet the promotion order could not be issued in favour of the applicant due to malicious and fabricated institution of the disciplinary proceedings.

4. It is further argued that while the applicant was posted as Additional Director General of Police, department of Anti-Corruption Uttar Pradesh, Lucknow he was issued a charge sheet dated 17.10.1995 which was taken as basis for not issuing the promotion order to the applicant on the post of Director General of Police. But since it was done in malicious exercise of powers, the charge sheet dated 17.10.1995 was subsequently cancelled after superseding the applicant. As a matter of fact after cancellation of the said charge sheet the promotion order ought to have been issued in favour of the applicant in accordance with the recommendation of the Departmental Promotion Committee. The documents related to the charges leveled against the applicant were not supplied to him but then he sent reply to the charge sheet within the stipulated period of 15 days. The applicant was not informed about it for more than 2 and ½ years, he believed that his reply to the charges has been accepted and further proceedings in pursuance of the said charge sheet dated 17.10.1995 were dropped. In view of this, the applicant was expecting the issuance of the promotion order for which he was already duly selected and recommended by the D.P.C. but nothing was done in the matter nor the promotion order was issued and the junior namely Sri K.L.Gupta was promoted to the said post of Director General of Police on 01.10.1997 superseding the applicant. Aggrieved by this, the applicant filed an Original Application No. 502 of 1997 in this Tribunal. Vide the said OA, the applicant challenged the validity of the inquiry proceedings initiated in pursuance of the charge sheet dated 17.10.1995 and further requested for opening the sealed cover and implementing the recommendations of the D.P.C. kept therein and request was also made for issuing promotion order w.e.f. the date person junior to him was promoted. Having received the notice of the aforesaid Original Application, the respondents felt bad and in annoyance and retaliation the applicant was placed under suspension vide order dated 01.12.1997 in terms of the disciplinary proceedings already instituted vide charge sheet dated 17.10.1995. Thereafter, the applicant challenged the suspension order dated 01.12.1997 by filing another Original Application No. 64 of 1998 in this Tribunal. Both the Original Applications No. 64 of 1998 and 502 of 1997 were subsequently clubbed and heard together.

5. It is further contended that despite suspending the applicant, the respondents did not stop harass him and in the same stroke issued a IInd charge sheet mechanically on 30.12.1997 almost containing the same charges as were mentioned and levelled vide 1st charge sheet dated 17.10.1995. Simultaneously a F.I.R. was also lodged against the applicant with the Police Station Mahanagar on 01.12.1997 on the basis of which a case crime no. 459 of under Section 13 (1) (E) read with Section 13(2) of Prevention of Corruption Act 1988 was registered alleging that the applicant possess properties in disproportion to the known source of income the applicant has not been informed anything in this regard till date and it appears that the allegations having been found baseless and fabricated were dropped. The IInd charge sheet dated 30.12.1997 was not containing the complete material and the documents as well as the statement of witness on which the charges were framed and proposed to be sustained, the applicant made a representation for supplying the copies of the same, which were never supplied in time. Ultimately, some of the documents were made available and the applicant was constrained to submit his written statement to the charge sheet. The applicant having no alternative submitted his written statement to the IInd charge sheet within stipulated time vide representation dated 03.12.1998, the applicant denied the charges and requested vide aforesaid written statement that he will cross-examine the witnesses who have been relied upon and will also avail all the opportunities available to him at various stages of the inquiry proceedings including submission of his defense.

6. It is further argued that, after receiving the written statement to the charge sheet submitted by the applicant, the inquiry officer started inquiry in the most peculiar manner and treated all the charges as already proved and started to see as how the charges can be disproved. In order to do this, the inquiry officer did not ask the department to substantiate the allegations/charges leveled against the applicant and started cross-examining the witness. The procedure adopted by the Inquiry Officer was contrary to the procedure contemplated in All India Services (Discipline and appeal) Rules, 1969. In the first charge sheet dated 17.10.1995 (Annexure-A2) the article of charges as well as the statement of imputation of misconduct or misbehavior was given in enclosure No. 1 without disclosing the material on which the same was raised and proposed to be sustained. However a list of witnesses proposed to be orally examined to sustain the charges was given in enclosure No. 3 to the said charge sheet. In the list the name of the wife of the applicant Smt. Beena Singh was also mentioned indicating that she will establish as if she had acquired the said land on her own or through her husband. Similarly in the IInd chargesheet dated 30.12.1997, contained in Annexure No.4 the detailed article of charges were given in the enclosure no. 1 shown that the statement of misconduct without disclosing the evidences or material on which the same has been framed and proposed to be sustained. However in enclosure no. 3 a list has been given indicating as to what part of allegation is proposed to be substantiated on which document. In enclosure no. 4 a list of witnesses has been given indicating the part of the charges to be substantiated by them in the inquiry proceedings. It is submitted that the list of documents on which the charges were proposed to be sustained in first charge sheet and the IInd chargesheet were different albeit the allegations were the same. The witnesses were also not examined in the manner they were cited in the enclosure for substantiating the various segments of the charge(s) leveled against the applicant. The wife of the applicant namely Smt. Beena Singh was not cited in the IInd chargesheet as a witness to substantiate the source of the land acquired and involved in the episode. It is further contended that Smt. Beena Singh was the material witness because the property in question was belonging to her and she was in a position to disclose the source of the property acquired by her. Her statement was also relevant to examine the connection of the applicant with the property in question. Smt. Beena Singh had however submitted her statement in writing to the inquiry officer giving the details regarding the acquisition of the property in question with specific averments that she sold her property given to her before marriage in Bihar and thereafter purchased the property against those funds. It was obligatory for the Inquiry Officer to conduct the departmental inquiry in accordance with Rule-8 of 1969 rules. Under Sub rule-2 the disciplinary authority is empowered to appoint inquiry officer to conduct the inquiry either under 1969 rules or under the provisions of Public Servant (Enquiries) Act 1950. The charge sheet is framed under Sub-rule-4 and is delivered to the delinquent employee under Sub-rule-5. The written statement of defence is submitted under Sub-rule-6. The delinquent employee/member of service is require to appear in person before the inquiry authority on the time and date fixed for the purposes. The member of the service is required to be given an opportunity to take assistance of other government servant. Thereafter, the inquiry is conducted against the article of the charge not admitted by the member of service. Under Sub-rule-13 the inquiry authority shall arrange the documents to sustain or assail the charges by affording an opportunity to the member of service to make a requisition to this effect. Under Sub-rule-15 the inquiry authority is required to prove the charges on the basis of the documentary/oral evidence on which the Article of charges are proposed to be proved. For this purposes the relevant material is required to produce before the inquiry officer on behalf of the disciplinary authority. The opportunity is thereafter given to the presenting officer to prove his Case. Under Rule-17, the disciplinary authority will close the prosecution i.e. the case of the disciplinary authority to substantiate the charge and shall require the member of service to submit his defence orally or in writing. The member of service may proceed to assail the allegations to establish his innocence. Under Sub-rule-18 the defence witnesses are allowed to be produced and cross-examined. Under Sub-rule 19 the inquiry authority is require to ask member of service to get examined himself or to explain any circumstance appearing in the evidence against him. At this stage the procedure regarding production of evidence is closed and thereafter an opportunity is given to submit the brief submissions. The inquiry report is thereafter prepared in the manner contemplated in Sub-Rule-24. It was also submitted that all these procedure were not followed while conducting the departmental inquiry against the applicant and the inquiry authority straightaway started questioning the applicant and the witness by assuming the role of persecuting officer because he had taken the charges already proved and was only conducting inquiry with the angle and expectation from the applicant to disprove the charges. The inquiry officer thereafter submitted the inquiry report on 25.11.1999 which was served on the applicant on 02.02.2000 along with the covering letter dated 02.02.2000 that the applicant may make representation against the inquiry report within a period of 15 days.

7. It is further contended that the aforesaid document of inquiry report were never supplied to the applicant and were taken into account and used against the applicant for the first time, the applicant requested to supply those documents. He was orally advised that he might peruse the documents and enclosures of the inquiry report in secretariat. Pursuant to this, the applicant went to the secretariat and examined the inquiry report and he notices that his statement dated 09.06.1999 and 23.07.1999 were not on record. He submitted the photocopy of these documents and requested for fresh consideration vide representation dated 08.05.2000. He also requested that the copies of the enclosures no. 23, 24 & 30 of the inquiry report be also supplied to him to enable him to furnish proper and categorical reply by way of representation.

8. The applicant in his representation against the inquiry report submitted that no charges are made out against him on the basis of the material on record. The documents demanded have not been supplied to him and as such he is submitting the representation tentatively reserving his right for making detailed representation after getting the documents if required. He also submitted that in case the applicant is not exonerated of the charges, he might be afforded an opportunity to submit his defence and assail the allegation by supplying the documents demanded by him. The suspension order of the applicant was revoked on 29.12.2000. Thereafter, the applicant retired from service on attaining the age of superannuation w.e.f. 31.12.2000 vide order dated 30.12.2000.

9. Furthermore, the applicant was served with an office order dated 2.07.2003 issued by the State Government by which the first chargesheet dated 17.10.1995 issued against him was cancelled. It was said in that order that this will not have any adverse effect on the IInd charge sheet dated 20.12.1997. The impugned order dated 09.09.2003 was passed thereafter imposing punishment on the applicant. It was recited in that order that all the 6 charges leveled against the applicant were found proved but it was not disclosed as to whether these charges were related to 1st charge sheet or the IInd charge sheet. It was also mentioned in the said order that the matter was referred to Central Vigilance Commission who recommended an imposition of a stringent major penalty on the applicant. It is also submitted that the impugned order has been passed by considering the recommendation of the Central Vigilance Commission and also the recommendation of Central Vigilance Commission was not forming the part of the record of the disciplinary proceedings and was extraneous and foreign material which could not be used against the applicant without affording any opportunity.

10. Furthermore, a perusal of the impugned order also reveals that the case of the applicant was referred to the Union Public Service Commission vide letter dated 18.12.2000. By that time the 1st Charge sheet dated 17.10.1995 was not cancelled and was forming the part of the record. The said impugned order dated 09.09.2003 also reveals that earlier the Union Public Service Commission was not convinced hence the proposal was again sent vide letter dated 14.02.2001 with the approval of competent authority for providing statutory advise and only thereafter the advise dated 19.06.2002 was given. Ultimately, vide impugned order dated 09.09.2003, the penalty of 50% reduction from the monthly pension with forfeiture of entire gratuity permanently was imposed on the applicant. The said punishment has been imposed on the applicant by treating all the 6 charges proved against him whereas the UPSC has opined differently vide letter dated 19.06.2002(Annexure-12). According to it the charge no. 1, 4, 5 & 6 were found proved. The charge no. 2 &3 were found not proved. It is submitted that the disciplinary authority who has passed the impugned order dated 09.09.2003 has not applied his independent mind and stated that all the 6 charges were found proved.

11. It is further argued that the entire proceedings against the applicant has been drawn with predetermined mind maliciously and as such the applicant was not heard at any stage of the disciplinary proceedings and the mind was not applied by the competent authority as if there is any prima facie case existing for initiating the proceedings. The charges leveled are imaginary and speculative found on no evidence. The 1st charge sheet was issued to the applicant on 17.10.1995 and after issuing this charge sheet nothing further was done and this charge sheet was kept pending as long as upto the year 2003 when it was cancelled without prejudice to the IInd charge sheet. There is no provision of law under which such action may be sustained. If this charge sheet would not have been issued the recommendations of the DPC could not have been kept in sealed cover. The applicant submitted written statement to the 1st charge sheet on 01.11.1995 but it was found that the charges leveled were not correct hence taking the advantage of the reply submitted by the applicant and to cover-up the pitfalls, the IInd charge sheet was issued by framing the same charges in different words.

12. Vide IInd charge sheet, 6 charges were framed against the applicant. The 1st charge was raised against the applicant on the basis of the letter of the applicant dated 19.04.1988 which was misread and said that the information given in this letter was incomplete tantamounting to concealment of facts. The applicant submitted reply to the charge no. 1 vide his representation dated 23.07.1999 and also submitted that he was legally not required to furnish any details about the STRIDHAN under the conduct rules however the information given by him vide letter dated 19.04.1988 was complete and correct. It is also submitted that the applicant was entitled to get the complete copy of the inquiry report for making the effective reply but he was never served with the said documents and several documents were also removed from the record maliciously to damage the defence of the applicant. As a result of it, the representations made by the applicant and the other documents supplied by him were never considered and taken into account either by the inquiry officer or by the others at any point of time. The facts narrated by the applicant in his representation dated 23.07.1999 to the effect that the applicant has no concern with the said STRIDHAN and he was also not bound to submit any information about the STRIDHAN has been kept aloof. The Union Public Service Commission started dealing with the sale deeds executed by Smt. Beena Singh and without considering the fact that the STRIDHAN was not within the domain of the All India Services (Conduct) Rules, 1968, the violation of Rule-16 of which was presumed. The charge no. 2 and 3 have been proved by the Inquiry Officer without taking into account the documents referred by the applicant. The applicant further submitted reply to the charge no. 2 & 3 vide his representation dated 22.05.2000. In charge no. 3, it was alleged that one Head Constable namely Sri Mahendra Pratap Singh had fixed the signature as a witness on the Sale deed, and it was alleged that Shri Mahendra Pratap could not have gone to Tahsil Fatehpur and his signature were not genuine although he accepted that he witnessed the execution of the Sale deed. Sri Mahendra Pratap Singh categorically stated that he was on leave on the relevant date and had gone to Fatehpur for his personal work where he made signature as a witness on the sale deed also. There is no material on record to establish this charge against the applicant otherwise. Similarly, the Inquiry Officer found charge no. 4 proved against the applicant without considering the defence submitted by the applicant. The Inquiry Officer narrated a detailed story on his own imaginations leaving the central point that the wife of the applicant was in possession of only such land, which was purchased by her and was transferred to her by the seller. In reply to this the applicant submitted a representation dated 22.05.2000 giving full detail that he was not involved at any stage of purchasing the said land or taking the possession of the said land by the wife of the applicant. Vide charge no. 5, it was alleged that the applicant indirectly participated in the auction of the government Jeep through Constable Sri Ram Khelawan and also alleged that the applicant actually paid the cost. The applicant denied the said charge and stated that he has absolutely no concern with the alleged auction and the purchaser had himself conceded and confirmed the purchase made by him. Vide charge no. 6, it has been alleged that the applicant got arrested one Sri Muneer Ahmad, Village Amarsanda through Head Constable Mahendra Pratap Singh, Constable Ram Khelawan and 3 other police officials and demanded Rs. 20,500/- failing which said Sri Muneer Ahmad was illegally detained at the residence of the applicant throughout night and was released in the morning after receiving the demanded money. The applicant denied this charge and pointed out that Shri Muneer Ahmad himself stated that he got prepared forged sale deed in the name of Smt. Beena Singh in respect of the land pertaining to Harijan and when she asked to return the money, the same was refunded. There was no list between the applicant and Sri Muneer Ahmad and as such there was no motive for ill-treating the said Muneer Ahmad as alleged. However, on 06.01.1999, Shri Muneer Ahmad stated before the Inquiry Officer that no policemen threatened him and the earlier statement given by him was not correct and was coached. Also, the statement given by Sri Ram Lotan was not properly read and considered and the distorted view was endeavoured to be take out with the sheer intention to establish the charge by hook or by crook. The inquiry officer did not consider that the responsibility of establishing charge lies on him as such he had to prima facie make out a case beyond shadow of doubt on the basis of the material available on record. The inquiry officer was not at liberty to use the extraneous material not belonging to the record of the inquiry proceedings. The disciplinary proceedings were initiated against the applicant vide memorandum dated 30.12.1997 in respect of the charges annexed there to. The disciplinary authority has said that after all the 6 charges were found proved, the matter was referred to Central Vigilance Commission which was never disclosed to the applicant earlier.

13. It is further argued that, a perusal of the impugned order reveals that the entire gratuity of the applicant has been forfeited which is wholly without jurisdiction, null and void in eye of the law. After the retirement from service the disciplinary proceedings was continued Under Rule-6 of the All India Services (Death cum retirement Services) Rules, 1958. A perusal of Rule-6 of 1958 rules reveals that the same is pertaining to recovery from pension. It contemplates that the Central Government reserves to itself the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified periods and the right of ordering the recovery from pension of the whole or part of any pecuniary loss caused to the Central Government or the State Government, if the pensioner is found in the departmental or judicial proceedings to have been guilty of grave misconduct or have caused pecuniary loss to the Government. It is submitted that the Central or the State Government has not been caused any pecuniary loss on account of any conduct of the applicant. It is further submitted that the applicant has never been found guilty of grave misconduct by any competent authority either in any judicial proceedings or in departmental proceedings and as such the pension of the applicant cannot be withheld. In any case the Central Government is empowered to withhold or withdraw only pension of the applicant and the gratuity cannot be withheld in any manner. Rule-6 of 1958 rules explicitly speaks about the powers of the Central Government to withhold or withdraw the pension. The word pension has been defined in Rule-2(h) of 1958 rules, which means the amount payable monthly under Rule-18 to a person who has retired from service in recognition of his services rendered to the government. The entire gratuity of the applicant cannot be forfeited under Rule-6 of 1958 rules and as such the impugned order forfeiting the entire gratuity of the applicant is wholly without jurisdiction and not tenable in the eye of the law. The applicant argues that as far as, withholding of 50% pension permanently is concerned, the same can also not be done because the applicant has not committed any grave misconduct. The recovery being made to the extent of 50% from the pension already paid to the applicant is also without jurisdiction, illegal and arbitrary. Hence, the impugned order is illegal and perverse and it should be set aside.

14. The respondents have filed short counter affidavit where they have raised that no representation/appeal dated 20.02.2004 reported to have been made against the order dated 09.09.2003 is pending with the respondents as mentioned in para 6 of the O.A. They wanted that at the admission stage itself, the present OA should be dismissed, as the applicant has not exhausted alternative Departmental remedy available to him.

15. Later on, they have also argued that this appeal is purported to be pending, the applicant should have waited and exhausting all the remedies before approaching this Court but the applicant had argued that as in his case when he retired the order is passed by and in the name of President. There is no further appeal and his representation dated 20.02.2004, already six months had passed, hence he had no alternative but to approach this Court as per Central Administrative Tribunal, Rule 6 and hence this OA was maintainable.

16. The respondents have further filed their counter affidavit wherein they have in general specifically denied the most of the contention of the applicant and contended that all the six charges were substantiated against the applicant. The matter was referred to the Central Vigilance Commission, who recommended imposition of a stringent major penalty on the applicant. Since the applicant was due for retirement on 31.12.2000, the case was processed under rules of All India Services (DCRB) Rules 1958. On seeking advice, Union Public Service Commission opined that the charges established against the applicant, constitute grave misconduct on the part and ends of justice would be met in this case if 50% of monthly pension of the applicant and his entire gratuity, if not already released, is forfeited permanently. Accordingly, Govt. of India, Ministry of Home Affairs, New Delhi have passed order dated 09.09.2003. The general facts of the case are agreed but the contention of defence is completely rejected and the respondents contended that there is no case for the applicant. The six charges leveled against him is proved and ample opportunities were given to the applicant at every stage. The Union Public Service Commission has considered all the facts, materials and evidences and then only given its opinion on the charges and the quantum of punishment and accordingly order is imposed. Hence, there is no irregularity in the case and the OA should be dismissed, accordingly.

17. Rejoinder has been filed by the applicant wherein he reiterated the facts as in the OA and refuted the statements of respondents in the counter.

18. Further, written submission on behalf of the applicant is furnished wherein many case laws have been dealt with and various contentions have been taken reiterating the stand of the applicant as in the OA.

19. The case came up for final hearing on 19.07.2023. Shri B D Tiwari, learned counsel for the applicant and Shri K P Singh and Shri M K Sharma, learned counsel for the respondents were present and heard.

20. We have carefully gone through the records and considered the rival contentions.

21. From the records, it is evident that the applicant has taken many contentions important of which are following:-

(i) that quantum of proof were not sufficient and without adequate appreciation of evidence on record the inquiry officer and the disciplinary authority has jumped to the conclusion.

(ii) that certain procedural defects in the proceeding have been pointed out, and important of them being following:-

a) that the chargesheets were simultaneously continuing one from 1995 and another from 1997 which the applicant contended to be illegal and against the law.

(b) the second type of procedural irregularity he pointed out is that the certain types of documents they were not furnished when they had requested for and hence they were not given ample opportunities of being heard.

(c) the third type of procedural irregularity is that they wanted to show is that the inquiry officer has added some of his own ideas which he did not cover in the inquiry in the open court while conducting the inquiry but collected and picked from elsewhere by his own experiences and also tried to buttress the case conclusion.

(d) they say that some vigilance report is relied to make the second set of charges. The said vigilance report is not made available to the applicant.

(e) the applicant had submitted certain replies that no where the inquiry officer or the disciplinary authority explained how he has appreciated or rejected those statements of the applicant as it is evident by the record.

(f) whatever advice was given by UPSC is also not properly appreciated and on their advice on certain charges not proved were rejected, which is not forthcoming from the record. They further contended that the consultation with Central Vigilance Commission, the relevant information was not given to the applicant, whereas it finds as part of the final order.

(g) The next contention is that gratuity could not have been forfeited as per law but it is imposed to be forfeited.

(h) And as the first charge sheet was dropped his DPC sealed cover proceeding for promotion should have been implemented, as on the date of DPC he was not facing any charges.

(i) That his wife was a material witness and she was not examined.

22. Hence, broadly, the applicant's contention can be classified as those related to adequacy of proof and quality of proof and whether the charges framed were with proper and adequate proof; to arrive at proper conclusion; and whether the quantum of punishment was right Regarding these, there are large catena of judgments from the Apex Court wherein broadly it has been held that in the cases of Disciplinary Proceedings before the Tribunal, there is limited scope of judicial review as the proceeding before the Tribunal was not an Appellate Proceeding. So power of Tribunal is very limited of judicial review and it cannot substitute its opinion regarding either framing of charges or appreciation and adequacy of evidence or quantum of punishment unless there is something gravely malicious, perverse and erroneous:-

(A) In the case of Indian Oil Corpn. Ltd. v. Ashok Kumar Arora, (1997) 3 SCC 72 [LQ/SC/1997/199] the Hon'ble Supreme Court has held as under:-

"At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic inquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz. State of A.P. v. S. Sree Rama Rao (1964) 3 SCR 25 [LQ/SC/1963/105] : AIR 1963 SC 1723 [LQ/SC/1963/105] : (1964) 2 LLJ 150 [LQ/SC/1963/105] ], State of A.P. v. Chitra Venkata Rao (1975) 2 SCC 557 [LQ/SC/1975/315] : 1975 SCC (L&S) 349 : (1976) 1 SCR 521 [LQ/SC/1975/315] ], Corpn. of the City of Nagpur v. Ramchandra (1981) 2 SCC 714 [LQ/SC/1981/117] : 1981 SCC (L&S) 455 : (1981) 3 SCR 22 [LQ/SC/1981/117] ] and Nelson Motis v. Union of India (1992) 4 SCC 711 [LQ/SC/1992/573] : 1993 SCC (L&S) 13 : (1993) 23 ATC 382 : AIR 1992 SC 1981 [LQ/SC/1992/573] ]".

(B) In the case of Lalit Popli v. Canara Bank, (2003) 3 SCC 583 [LQ/SC/2003/243] the Hon'ble Supreme Court has held as under:-

"17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority.

In OAs challenging the orders in disciplinary proceedings, the scope of interference of the Tribunals is very limited. In a catena of judgments by the Hon'ble Apex Court, it has been held that the judicial review in the disciplinary matters should not be in the form of re-appreciation of evidence. The Courts should only look at the correctness of process and not get into re-evaluation of evidence before the Inquiry Officer. The findings recorded by the Disciplinary Authority which are affirmed or diluted by the Appellate Authority should not be interfered with unless the applicant shows that the order is without jurisdiction; or that there is procedural irregularity in conducting the inquiry. The Hon'ble Apex Court in the case of S.R.Tewari vs. Union of India 2013(7) Scale Page 417 has held that "The role of the court in the matter of departmental proceedings is very limited and the Court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice".

In a large number of cases including the case of Bank of India v. Apurba Kumar Saha; (1994) 2 SCC 615, [LQ/SC/1993/1075 ;] State Bank of India and Others v. Ramesh Dinkar Punde (2006) 7 SCC 212, [LQ/SC/2006/709] State of Andhra Pradesh v. Sree Rama Rao; AIR 1963 SC 1723 [LQ/SC/1963/105] ,Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup; AIR 1957 SC 82 [LQ/SC/1956/87] , State Bank of Bikaner and Jaipur v. Prabhu Dayal Graver, 1995(6) SCC (L&S) 279 : 1996(1) SLJ 145 (SC), Deokinandan Sharma v. UOI and Ors., 2000 SCC (L&S) 1079, State Bank of India vs. Ram Lal Bhaskar & Another 2011 STPL (web) 904) and Union of India & Ors. Vs. Raghubir Singh and another, CWP No. 1154/2014 decided on 06.05.2014 by Punjab and Haryana High Court, the underline theme is that the High Court/tribunal does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. They have to see whether there is violation of natural justice and fair play or any procedural irregularity committed by the inquiry officer, Disciplinary authority and due procedure was adopted strictly in accordance with the service rule.

(C) Recently, the Hon'ble Apex Court in the case of Union of India versus P.Gunasekaran 2015 (2) S.C.C. Page 610) in paras 12, 13 & 20 has held as follows:-

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

a. the inquiry is held by a competent authority;

b. the inquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

13. Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.

Xx xx xx

19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re- appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India.

20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."

(D) The Hon'ble Apex Court in the case of B.C.Chaturvedi v. Union of India & Ors. Reported in 1995 (6) SCC 749 [LQ/SC/1995/1057] again has been pleased to observe that the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence. In this regard, the Hon'ble Apex Court has been pleased to observe as under:-

"The Inquiry Officer submitted his report holding the charges against the appellant to have been proved. After consultation with the UPSC, the appellant was dismissed from service by an order dated 29.10.1986.The Tribunal after appreciating the evidence, upheld all the charges as having been proved but converted the order of dismissal into one of compulsory retirement. The delinquent filed an appeal challenging the finding on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with the punishment imposed by it. Allowing the appeal of the Union of India and dismissing that of the delinquent.

Per Ramaswamy and Jeevan Reddy, JJ

"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."

(E) In another case the Hon'ble Apex Court in the case of Union of India v. Upendra Singh reported in 1994(3)SCC 357 has been pleased to observe that the scope of judicial review in disciplinary inquiry is very limited. The Hon'ble Apex Court has been pleased to observe as under:-

"In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be."

(F) Not only this the Hon'ble Apex Court has even pleased to observe in regard to scope of judicial review as well as in regard to the quantum of punishment and in the case of State of Rajasthan Vs. Md. Ayub Naaz reported in 2006 (1) SCC 589 [LQ/SC/2006/9] . The Hon'ble Apex Court has been pleased to observe as under:-

"10. This Court in Om Kumar and Others vs. Union of India, (2001) 2 SCC 386 [LQ/SC/2000/1753] while considering the quantum of punishment / proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant materials and, therefore, in our view, the interference by the High Court on reduction of punishment of removal is not called for."

(G) In the case of Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 [LQ/SC/2017/6] the Hon'ble Supreme Court has held as under:-

"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary inquiry or the resultant orders passed by the competent authority on that basis if the inquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the inquiry officer or the disciplinary authority, non- recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the inquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the inquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority."

(H). It is settled principle that if any material is sought to be used in an inquiry, the copies of material must be supplied to the party against whom such an inquiry is held. The Disciplinary Authority as well as Appellate Authority did not consider this aspect of the matter and expressed their concurrence to the finding of the Inquiry Officer, without applying their independent and free mind. The Appellate Authority while considering the appeal of the petitioner failed to appreciate the fact that the Inquiry Officer at the back of the petitioner had proved charges without affording reasonable opportunity to controvert the same. Therefore, the order of Appellate Authority is bad in law and cannot be sustained. As regards the opportunity before passing of the final order, the Hon'ble Apex Court has discussed in detail in the case of B.N. Kansal Vs. State of U.P. reported in 1988 Suppe. SCC 761.

(I) In Commissioner of Income-tax, Bombay & Ors. v. Mahindra & Mahindra Ltd. & Ors., AIR 1984 SC 1182 [LQ/SC/1983/230] , this Court held that various parameters of the court's power of judicial review of administrative or executive action on which the court can interfere had been well settled and it would be redundant to recapitulate the whole catena of decisions. The Court further held: "It is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same."

The court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The court may be justified in exercising the power of judicial review if the impugned order suffers from mala fide, dishonest or corrupt practices, for the reason, that the order had been passed by the authority beyond the limits conferred upon the authority by the legislature.

Thus, the court has to be satisfied that the order had been passed by the authority only on the grounds of illegality, irrationality and procedural impropriety before it interferes. The court does not have the expertise to correct the administrative decision. Therefore, the court itself may be fallible and interfering with the order of the authority may impose heavy administrative burden on the State or may lead to unbudgeted expenditure. (Vide: Tata Cellular v. Union of India, AIR 1996 SC 11 [LQ/SC/1994/685] ; People's Union for Civil Liberties & Anr. v. Union of India & Ors., AIR 2004 SC 456 [LQ/SC/2003/1287] ; and State of N.C.T. of Delhi & Anr. v. Sanjeev alias Bittoo, AIR 2005 SC 2080 [LQ/SC/2005/441] ).

(J) In Air India Ltd. v. Cochin International Airport Ltd. & Ors., AIR 2000 SC 801 [LQ/SC/2000/214] , this Court explaining the scope of judicial review held that the court must act with great caution and should exercise such power only in furtherance to public interest and not merely on the making out of a legal point. The court must always keep the larger public interest in mind in order to decide whether its intervention is called for or not. 16. There may be a case where the holders of public offices have forgotten that the offices entrusted to them are a sacred trust and such offices are meant for use and not abuse. Where such trustees turn to dishonest means to gain an undue advantage, the scope of judicial review attains paramount importance. (Vide: Krishan Yadav & Anr. v. State of Haryana & Ors., AIR 1994 SC 2166 [LQ/SC/1994/542] ).

The court must keep in mind that judicial review is not akin to adjudication on merit by re- appreciating the evidence as an appellate authority. Thus, the court is devoid of the power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the court cannot arrive on its own independent finding. (Vide: High Court of Judicature at Bombay through its Registrar v. Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors.,AIR 1997 SC 2286 [LQ/SC/1997/688] ; Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah Khan, AIR 2006 SC 1214 [LQ/SC/2006/78] ; and Union of India & Ors. v. Manab Kumar Guha, (2011) 11 SCC 535) [LQ/SC/2011/335] .

23. Considering the above ratio of judgments, we are adequately clear in our mind that we should not get into the areas of deficiency pointed out in framing of charges, adducing evidences, adequacy of evidences and proper appreciation of evidences and coming to conclusion and imposition of commensurate punishment. As from the records, we do not find it to be something which is so incongruous to be shocking or completely malicious or perverse or without any evidence at all. Non-examining of material witness, the wife of the applicant is not such a defect, as the applicant had option to make her, his defence witness, which probably he failed to do.

24. The second part of the contention of the applicant is related to the procedural defects in the disciplinary proceeding which needs our utmost attention and which are following:-

First of all is that the first charge sheet which was issued in 1995 was still continuing and the applicant had already replied to the first charge sheet. Subsequently, when he asked for his promotion, he was precipitously kept under suspension by the respondents' authorities. And also another charge sheet with almost similar facts was issued to him in the year 1997. The applicant has contended that there is no provision under which the second charge sheet may be issued on the same charges, in different language, when the first charge sheet is pending and that it was wholly without jurisdiction and against the provisions of All India Services (Discipline & Appeal) Rules, 1969. Rules-8 of these rules which have been completely violated by the respondents and they get the case law of R K Deb Vs. Collector, Central Excise reported in AIR 1971 SC 1447 [LQ/SC/1971/240] Or 1971 (1) SLR 29. [LQ/SC/1971/240] In the said order, it is generally examined that Central Civil Services (Classification, Control and Appeal) Rules (1957), Rule 15 - Rule 15 does not contemplate successive enquiries- If there is some defect in the inquiry conducted by the Inquiry Officer, the Disciplinary Authority can direct the Inquiry Officer to conduct further enquiries in respect of that matter but it cannot direct a fresh inquiry to be conducted by some other Officer. Wherein, finally the court Ruled that 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 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 reasons, 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 enquiries 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.

25. Although, the facts in the present case is slightly different as in the instant case, two parallel enquiries which had been continuing, one since 1995 and other since 1997 and after conduct of part of the inquiry of 1995 the second one in 1997 was instituted and continued and concluded and the second one has culminated in the impugned order of reduction of pension and forfeiture of the gratuity of the applicant. Whereas, in this Apex Court order it appeared that the disciplinary authority was instituting and conducting disciplinary enquiries successively through different officers to purportedly get specific type of finding from the inquiry officer as the proceeding shows that the disciplinary authority had made up its mind to dismiss the appellant and prejudiced authority went ahead to get the inquiry conducted afresh with some other officers as in the said case it seemed 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 and quote rule which reads as :- " In the result we hold that no proper inquiry has been conducted in the case and, therefore, there has been a breach of Article 311(2) of the Constitution. The appeal is accordingly allowed and the order dated 04.06.1962 is 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 Judicial Commissioner. Fees shall be payable by the appellant to his advocate and be allowed on taxation.

26. It is clear that two enquiries cannot be simultaneously going on the same facts and the first inquiry was subsequently closed much later, certainly the continuance of first inquiry was vitiating the initiation of second inquiry and the strange situation of two inquiries on the same set of charges gives us the prima facie suspicion that the authorities were to an extent prejudiced against the applicant as he was eligible for promotion in 1997 and as his DPC was held on 01.10.1997 for making promotion to the next higher post of DGP and his candidature was kept in sealed cover, and they were encountering problems in concluding the said inquiry as the charges were not getting substantiated, and had they closed the inquiry then on the ground that they were in the process of collecting more evidences and would reinstitute the same when they have enough evidence with them; then they would have to promote the applicant, and faced with the situation they went ahead to continue the first inquiry and subsequently collecting some more evidence initiated a second inquiry, without closing the first one.

27. Another charge sheet dated 30.12.1997 was issued which tried to refine evidences, but the same was issued without withdrawing the first charge sheet to most probably avoid giving technical promotion to the applicant which he may be otherwise eligible to. This anomaly was tried to be corrected by their order dated 02.07.2003 when the first charge sheet dated 17.10.1995 was cancelled after a lapse of eight years. But on simple perusal one can say therein, that it does not disclose any specific reason why it was closed and why second charge sheet was instituted or continued but it only says that the closure of the said would not affect the effectively of the second inquiry and charge sheet. Immediately and subsequently on 09.09.2003, the impugned order was passed imposing major penalty on the applicant. We have no doubt in our mind that two charge sheets successively were issued on the same charges and continued simultaneously to scuttle the promotion of the applicant which appears to be due at that point of time, and it cannot be an innocent mistake or bonafide exercise of authorities' discretion.

28. The second procedural defect pointed out by the applicant is that certain documents which he had asked for in the first inquiry as well as subsequent inquiry at different stages were not furnished to him. If we see para 4.12 of the OA where the applicant alleges that the second charge sheet was not containing the complete material relied to frame charges etc., and only some documents were made available due to which applicant was constrained to submit his written statement. In the counter at page 16 we do not find any denial of the averments of para 4.12 of OA, or any statement that the information supplied by the authorities was sufficient. Later on at the fag end of the DE process in 1999-2000, the authorities had directed him to just peruse and examine the record in the office and make notes and then prepare his defence, and he was not provided with the relevant documents which could have been relied for preparing his defence. Although on record content of para 4.21 of OA is denied in para 20 of the counter, but the respondents fail to categorically clarify if they made available all the records asked by the applicant or if they failed to do so, why it was so. The applicant particularly mentions that in the impugned order dated 09.09.2003 (Annexure 1) to the O.A compilation 1 at 4 mentions that whereas the matter was referred to the Central Vigilance Commission who recommended imposition of stringent major penalties on Shri J.K.P. Singh (para 4.27 of OA). In para 22 of the counter, although para 4.27 of OA is denied, but again no explanation is forthcoming to justify why the documents on consultation with the Vigilance Commission was withheld from the applicant The applicant contends that copy of this material was not supplied to the applicant and so he has no basis and opportunity to defend himself against the said move. Hence, the applicant contends that the punishment was imposed considering extraneous material and he refers to the material forming record of the inquiry has been mentioned in Rule-8(24)(i) of AIS (D&A) Rules, 1966. He quotes the case law 1989(7) Lucknow Civil Decisions Page- 1999; Avtar Singh Vs. State of U.P. and Others. Not giving access to materials relied by the respondents to the applicant compromises the rule of natural justice and right to fair hearing where the respondents had right to access to all such documents so that he could have adequately replied to them. Hence, procedurally this also keeps compromised the case of the department and the inquiry remains in contravention of rules of natural justice to that extent. In a complex inquiry like this an accused cannot just rely on short duration perusal of the record, his counsel also needs to examine and discuss the contents of the record to avail opportunity to defend the accused government servant. The respondents have not been able to explain their conduct in this regard convincingly.

29. The 3rd line of procedural defect pointed out by the applicant is that the inquiry officer has added some of his own ideas which he did not gather in the inquiry in the open court while he was conducting the inquiry but collected and picked up from elsewhere from his own experiences and is used to buttress the case of the respondents and for drawing conclusions. The said extraneous imports of facts or impressions will also compromise the quality of inquiry to that extent as it is against the rules of natural justice and the principles of Audi Alteram Partem. Further, the applicant says that the second set of charges which were framed against him in 1997 were largely based on some vigilance report but the said vigilance report has not been made available to the applicant to make his defence and hence such imports also vitiates the purity and compromises the principles of natural justice. As an example the inquiry officer mentions Rule 16(5) of Conduct Rule while dealing with Charge No. 1 on internal page-5 of the inquiry report and held applicant responsible for violation of the same, whereas the applicant contends that the imputation was not part of the Charge-1, of the second report. Yes, technically it was not part of the imputation and its import by the officer at the stage of inquiry report shows prejudices, and pre-disposition and inclination to conclude that charge was serious and proved. Whereas if we see the charge-1, which is about giving wrong information. If officer explained that he believed his wife and whatever information she gave, I furnished. And when officer showed rules that he was not even liable to furnish such information or transaction in immovable property by his wife out of her own STREEDHAN, the authorities should have given him opportunity to furnish correct information. If authorities have no evidence to assert that the officer spent any of his funds, it is difficult to believe, how mere giving of certain information supplied by wife, that also voluntarily will constitute a serious misconduct, unless there were other evidences on record to show that it was mischievous with some ulterior motive. Prejudices of the authorities are evident on record.

30. Further, the applicant pointed out that he had submitted certain replies and those when he was allowed to inspect the case file after the inquiry had been completed were not found on record and were illegitimately removed and nowhere in the appreciation of evidence either the inquiry officer or the disciplinary authority or any other intermediate authorities have appreciated his contention or tried to give reason why they differed or rejected the same and this shows prima facie that the authorities had made up their mind before and they were taking the case of the applicant as proved with closed minds, and did not bother to examine, controvert and refute each of his major defence contentions. The respondents have not been able to show and convince us that they actually substantively appreciated the contention and defence of the applicant by their reasoned and speaking order.

31. The next line of argument of the applicant on procedural defect is that whatever advice were given by UPSC also particularly kept out the proof of charges and as there certainly was no proof for the charge nos. 2 & 3, the UPSC advised that these were not proved. And the applicant argues that their right advice was also not appreciated by the respondents as they have not even mention in their order why do they differ from the conclusions of the UPSC, an independent body. And thus, the applicant showed that the authorities had closed mind and they were pre-determined to pass certain adverse order. We have examined the record and we are also in agreement with the opinion of UPSC about the two charges which they said to be not proved (charge nos. 2- not conclusively proved & charge no. 3- not proved). On page 207-208 of OA detailed records are given thereof but in the authorities findings we do not find anywhere these advice of UPSC being re-examined and refuted to reconclude that charges were proved. And in the absence of any such exercise the authorities action will be non application of mind, mechanical and unreasonable conclusion without any evidence and basis.

32. Further, the applicant pointed out that procedurally the gratuity could not have been forfeited as per rules of the All India Services relevant to it and as the respondents were prejudiced and pre-determined to impose the hardest possible punishment on the applicant. They went ahead to forfeit his entire hard earned gratuity. Hence, they went ahead and imposed the said penalty of forfeiture of his entire gratuity which he had earned after serving for long years with merit. Under Rule-6, the gratuity as per him cannot be forfeited and he shows us the Annexure 15 of OA compilation 2 wherein we can see that forfeiture of recovery of gratuity made under Rule 6 which reads as follows:-

"6. Recovery from pension- (1) The Central Government reserves to itself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from pension of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner if found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence during his service, including service rendered on re-employment after retirement.

2 Provided that no such order shall be passed without consulting the Union Public Service Commission."

Then, in All India Services Manual at page 227 of the OA, "gratuity" is defined which means the lump sum specified in [sub-rule (1) of Rule 18] which may be granted to a person retiring from the service before completion of 10 years of qualifying service and (h) of same page defines the "pension" which means the amount payable monthly under Rule 18 to a person who has retired from the Service, in recognition of the services rendered by him to Government. And at page 281 which is page 279 of ALL India Services manual substituted by No. 25011/30/77-AIS (II), dated 10.07.1978 it reads following :-

"Provided that where disciplinary proceeding has been instituted against member of the Service before his retirement from service under Rule 10 of the All India Services (Discipline and Appeal) Rules, 1969, for imposing any of the penalties specified in clauses (i), (ii) and (iv) of sub-rule (1) of Rule 6 of the said rules and continuing such proceeding under sub-rule (1) of this rule after his retirement from service, the payment of gratuity of Death-cum-Retirement gratuity shall not be withheld."

33. Parallely, we can see in the Payment of Gratuity Act, 1972 which is applicable to the workmen outside the Government wherein the section 13 reads:- Protection of gratuity.-No gratuity payable under this Act 39 [and no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under section 5] shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court and Section 14 says Act to override other enactments which also gives general purport and understanding of gratuity that it is hard earned old age social security of the employee which ordinarily without due process of law cannot be forfeited.

34. Section 4(6) in The Payment of Gratuity Act, 1972, reads following:-

(6) Notwithstanding anything contained in sub-section (1),-

(a) the gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused;

(b) the gratuity payable to an employee may be wholly or partially forfeited-

(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.

From the simple reading of this, it flows that forfeiture of the gratuity is generally associated with termination of service or to the extent of damage or loss caused to the employer etc but not, otherwise, under the said Act. Furthermore, in the case of Chairman Cum Managing Director Vs. Shri Rabindranath Choubey on 27.05.2020, the Hon'ble Apex Court ruled that "employer has a right to withhold the gratuity during the pendency of the disciplinary proceedings and the disciplinary authority has power to impose the penalty of dismissal/ major penalty upon the respondent even after his attaining the age of superannuation" and in the said case mentions that "The mandate of Section 4(6) of recovery of loss provided under Section 4(6)(a) and forfeiture of gratuity wholly or partially under Section 4(6)(b) is furthered by the Rules 34.2 and 34.3. If there cannot be any dismissal after superannuation, intendment of the provisions of Section 4(6) would be defeated." In view of the provisions of Rules 34.2 and 34.3 of the CDA Rules, "the inquiry can be continued given the deeming fiction in the same manner as if the employee had continued in service and appropriate punishment, including that of dismissal can be imposed apart from the forfeiture of the gratuity wholly or partially including the recovery of the pecuniary loss as the case may be." In another case Civil Appeal No. 7437-7438 of 2021 of the Hon'ble Apex Court at para 17... "Rule 3 provides that the word 'pension' did not include DCRG and, thus, liabilities could be recovered from DCRG only after giving the employee a reasonable opportunity to explain. Ruling 3 clarified that consent was not necessary from the employee before recovering the same and only a communication of such liability was necessary." And in para 18, it says that "In view of the aforesaid, it was held that the recovery under Rule 3 could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down." Hence, generally in the cases of forfeiture of gratuity, the employer has to be considerate as it is old age social security of the employee and generally it insists that in the case of dismissal and removal from service, the same is done in the instant case as the punishment is only reduction in pension by 50%; associated forfeiture of gratuity may essentially appear to be out of place and excessive.

35. The next contention of the applicant is that no sooner the first charge sheet was dropped as the effect of that is that till date of the second charge sheet i.e. 30.12.1997 there was no inquiry initiated against the applicant and technically there was no charge sheet effective against the applicant. Hence, the respondents could not have withheld his promotion due as on 01.10.1997 when the DPC was held for making promotion to the next higher post of DGP and his junior Shri K L Gupta was promoted as DG on 01.10.1997. The contention of the applicant is absolutely correct and there is no justification to withhold his promotion if otherwise he was found suitable by the DPC and to give him proforma promotion and all the consequential benefits. No sooner the administration decided to drop the first charge sheet dated 17.10.1995 against the applicant on 02.07.2003 and not giving him his due promotion also shows the respondent authorities in bad light and being prejudiced against the applicant. Hence, due to these multiple procedural defects of omissions and commissions, by the respondents, the inquiry vitiates and remains as colourable exercise of power and hence we have no doubt in our mind that balance of convenience remains in favour of the applicant and we are convinced that the said inquiry is not conducted as per law and procedure following principles of natural justice and affording ample opportunity of hearing to the applicant in any inquiry means of procedure has to be as pure as the end, and if the means vitiates, so is the end.

36. The benefits of which must go to the applicant and accordingly we pass the following orders:-

The OA is allowed and the impugned order dated 09.09.2003 is set aside and the respondents are directed to give all consequential benefits to the applicant within a period of four months after the receipt of the certified copy of this order. All arrears shall carry a simple interest of 6% from the date of their due date. The forfeited gratuity may be released in a lump sum with interest and forfeited part of pension shall also be released forthwith. He may be considered for promotion from the date it was due, if the sealed cover proceeding recommends, and all other consequential benefits shall flow accordingly.

37. We are in dilemma, as ordinarily cases with major procedural and technical defect should be remanded back to the authorities for re-examining the same as to- "If they still found a case to be instituted and conducted against the accused government servant." But we are afraid that after more than two decades of the retirement of the accused any fruitful purpose is served to save the liberty to that effect with the respondents; as the balance of convenience due to latches in the inquiry (for which respondents themselves are responsible) and efflux of time lies with the applicant.

38. All associated MAs stand dispose of accordingly. No order as to costs.