J P SRIVASTAVA Vs. UNION OF INDIA AND

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India the petitioner has sought a writ of certiorari to quash the order dated 6th October, 1962 passed by the Vice-Admiral, Flag Officer Commanding-in-Chief, Eastern Naval Command, Naval Base, Vishakhapatnam and the order dated 29th June, 1973 passed by the Director of Civilian Personnel, Naval Headquarters, New Delhi. The petitioner, J. P. Srivastava, was a lower division clerk in the Naval Armament Inspectorate, Kanpur. On 2-12-1971 the Naval Army Inspecting Officer issued a charge-sheet to the petitioner. The substance of the imputation of misconduct in respect of which the inquiry was proposed to be held was sent to the petitioner. The inquiry was sought to be held under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, hereinafter referred to C. C. S. (C. C. A.), Rules, 1965. After holding the inquiry, inquiry report was submitted to the Flag Officer Commanding-in-chief, Eastern Naval Command, Vishkhapatnam. A show cause notice was issued by the Flag Officer Commanding-in-chief. Ultimately on 6th October, 1972 the Flag Officer Commanding-in-chief ordered the imposition of the penalty of removal from service. The petitioner filed an appeal to the President of India which was rejected on 29th June 1973. The orders dated 6th October, 1972 and 29th June, 1973 have been challenged in the present petition. The only submission raised by the counsel for the petitioner is that there has been a violation of rule 14, sub-clause 16 of the C. C. S. (C. C. A.) Rules, 1965. The contention of the petitioner is that after the case for the disciplinary inquiry was closed the petitioner should have been given an opportunity to state his defence orally or in writing. This opportunity was not afforded to the petitioner hereby he was denied opportunity of hearing. Rule 14 (16) of the C. C. S. (C. C. A.) Rules, 1965 is in the following terms: "When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed." In order to consider the submission made by the learned counsel it is necessary to state some relevant facts. On 2nd December, 1971 a charge-sheet was issued to the petitioner as required by rule 14 of the Rules. The petitioner was informed that the inquiry was proposed to be held in respect of charges and he was further directed to submit within ten days of the receipt of the charge-sheet a written statement of his defence and also state whether he desired to be heard in person. The petitioner was further intimated that in case he does not submit his written statement of defence or does not appear in person before the inquiry authority the inquiry authority will be entitled to hold the inquiry against him ex parte. The petitioner had received the charge-sheet dated 2nd December, 1971. On 31st December, 1971 the petitioner wrote to the inquiry officer that the charge-sheet is time barred and as such it cannot be sustained. He further wrote that the allegations made in the charge-sheet are vague in so far as no mention has been made about infringement of any specific rules of the C. C. S. (C. C. A.) Rules, 1965 to establish misconduct. It may be stated that the petitioner did not specifically reply to the charge-sheet but only raised the technical objections. Since the petitioner did not submit any reply to the charge-sheet the inquiry officer passed an order on 5th January, 1972 that the inquiry would be held on 17th January, 1972. A copy of this order sent to the petitioner was received by him on 10th January, 1972. The petitioner again sent reply on 11th January 1972, Annexure VIII to the petition, wherein again he stated that the inquiry cannot be held and did not submit reply to the charge-sheet. In view of the fact that the petitioner refused to participate in the inquiry scheduled to be held on 17th January, 1972 the inquiry was again adjourned to 27th January, 1972. On 17th January, 1972 the inquiry officer wrote to the petitioner about the fact that (he inquiry has been adjourned to 27th January, 1972 and he was clearly intimated that in the event of his failure to attend the inquiry on 27th January, 1972 the inquiry will be held ex parte. After the receipt of the letter dated 17th Jan., 1972 the petitioner did not file a reply to the charge-sheet. Neither did he appear before the inquiry officer on 27th January, 1972, but instead wrote on 25th January, 1972 Annexure IX to the petition, reiterating his technical pleas. On 27th January, 1972 the inquiry officer proceeded ex parte as the petitioner neither gave a reply to the charge-sheet nor took part in the inquiry proceedings. The inquiry officer accordingly requested the prosecuting officer to produce all the documents by which the charges framed against the petitioner were proposed to te proved. On the same date all the documents by which the charges framed against the petitioner were proposed to be proved were produced before the inquiry which were allowed to be taken on record. The inquiry was adjourned for 29th January, 1972 in order to enable the prosecuting officer to file a written brief as required by sub-rule 19 of Rule 14 of the C. C. S. (C. C. A.) Rule, 1965. Thereafter the inquiry report was submitted. It is clear from the above facts that inspite of repeated opportunity afforded to the petitioner to participate in the inquiry he neither submitted his written explanation nor participated in the inquiry. The petitioner did not request the inquiry officer for any further opportunity for stating his defence, either orally or in writing. The result was that the inquiry proceeded ex parte and after the case for the disciplinary authority was closed the inquiry officer submitted his report. Since the inquiry proceeded ex parte it was not necessary for the inquiry officer to again ask the petitioner to state his defence orally or in writing. Clause 16 of Rule 14 of the C. C. S. (C. C. A.) Rules, 1965 would apply to a case where the Government servant against whom inquiry is being conducted participates in the inquiry after submitting his written explanation. It does not apply to a case where the Government servant concerned does not participate in the inquiry and the inquiry has proceeded ex parte. In Bhag Singh v. Union of India a single Judge of the Delhi High Court had occasion to consider the scope of rule 14, clause 16 of the C. C. S. (C. C. A.) Rules, 1965. The learned single Judge held as follows: "Obviously the provision can be complied with when the official against whom disciplinary proceedings are being held takes part in these proceedings. As the petitioner had chosen not to take part in the inquiry proceedings the question of his being required to state his defence orally or in writing at that stage did not arise.'' We are in respectful agreement with the view taken by the learned single Judge of the Delhi High Court. In this view, we are of the opinion that the contention raised by the petitioner has no substance and the inquiry proceedings are not vitiated in law. In the result the petition fails and is dismissed. Parties are directed to bear their own costs.