Central Administrative Tribunal - Delhi
Prem Singh vs Government Of Nct Of Delhi Through on 30 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.709/2008 This the 30th day of September, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Prem Singh, D-1/Kitchen, Ground Floor, Tibbia College Campus, Karol Bagh, New Delhi-5. Applicant ( By Shri O. P. Gehlaut, Advocate ) Versus Government of NCT of Delhi through Joint Director, A & U Tibbia College, Karol Bagh, Delhi-5. Respondent ( By Ms. Jyoti Singh, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Prem Singh, a petty employee in the A&U Tibbia College, the applicant herein, who also happens to be general secretary of the employees union of the Tibbia College and Hospital, is aggrieved of memorandum dated 8.8.2007 (Annexure A-1) vide which, it has been proposed to hold an enquiry against him under rule 14 of the CCS (CCA) Rules, 1965. He takes serious exception to departmental proceedings envisaged against him vide memorandum referred to above, and states that even though, this Tribunal may have limited jurisdiction in setting at naught the departmental proceedings at the very threshold, this may be a case where even this limited jurisdiction may be exercised and the charge memo and further proceedings against him be quashed and set aside. The answer to the question as to whether it is indeed such a rare case where this Tribunal may interfere at this stage and grant the prayer made by the applicant, as mentioned above, would lie in the facts of the case.
2. The applicant came to be appointed as a ward boy in A&U Tibbia College and its allied units on 19.8.1987. He is the general secretary of Tibbia College and Hospital Employees Union, of which one Ashok Prashad, also a ward boy, is the president. Besides, there are other office bearers of the union, stated to be registered and recognized to deal with the authorities. Being general secretary of the union, the applicant is stated to be carrying out such functions as are entrusted to him upon a decision of the union and its executive body. It is the case of the applicant that the union worked for getting ACP to its eligible members, and as a result of the efforts of the union, ACP was granted to its eligible members, and that since the union at times holds gathering of its members in order to promote fraternity, unity and cordiality and to share views and to apprise the members of the activities of the union, it was decided to hold a gathering and celebrate fructification of the unions efforts in getting ACP to its members. President of the union Shri Ashok Prashad, appealed in writing on 8.2.2007 (Annexure A-2) under his signatures requesting the members to contribute Rs.100/- each for this purpose. The appeal contains signatures of 33 members and the applicants signatures appear at serial number 31 in approval of the proposal. It is the case of the applicant that the gathering as above and the collection therefor was open and was well known to higher authorities right from the date appeal Annexure A-2 came to be made by the president of the union, Ashok Prashad. Some time thereafter, i.e., about four months after the appeal Annexure A-2, the union made a charter of demands by writing a letter on 26.6.2007 to the Principal/Head of the Institute (Annexure A-3). Copies of the charter of demands were also sent to the Lt. Governor, Delhi, Minister for Health & Family Welfare, Government of NCT of Delhi, Chief Secretary, Labour commissioner etc. This letter was signed both by the applicant and Ashok Prashad as general secretary and president of the union. The demands in the charter were for grant of pension and gratuity to superannuated employees expeditiously, to remove anomalies in pay scales at various levels, to increase staff strength proportionate to bed strength, holding of DPC for every post, framing of recruitment rules, issuance of DGHS cards to all, etc. It was also mentioned that these demands were made earlier too, but the authorities showed an obdurate attitude in not granting anything. It is the case of the applicant that the respondent got enraged by the aforesaid letter dated 26.6.2007 and suspended him on 30.6.2007 (Annexure A-4), but realizing that the order of suspension was not in consonance with the provisions of law, the same was revoked within a month, i.e., on 30.7.2007. The applicant was, however, issued the impugned charge memo on 8.8.2007 (Annexure A-1). It is the case of the applicant that the chargesheet is a mere concoction and fabrication, which contains allegations which are not only false and baseless but are also beyond the purview of the respondent. On the one hand, it says that the applicant along with Ashok Prashad (president of the union) had demanded and collected money illegally from those who had got their first and second ACP, while on the other it mentions that certain employees were paying the amount under the impression that they received their arrears owing to efforts of the president and general secretary of the union. In the statement of imputation to support/prove the charges, it is mentioned that the applicant and Ashok Prashad are very much involved in union politics and that they threaten their colleagues and other superiors, and that one Rajan Bhatnagar, Office Superintendent, on being threatened by them, got himself transferred to Education Department. It is then recited in the impugned statement of imputation that the term of office bearers is only for two years and if no elections are held, the office bearers have to quit, and, therefore, the functioning as general secretary by the applicant is illegal being violative of the rules. It is the case of the applicant that issuance of this vague and unwarranted chargesheet by respondents is in furtherance of their vendetta and ill will so as to thwart his promotion ordered by the Government vide order dated 24.5.2007 (Annexure A-6), for which vigilance clearance, integrity certificate, work and conduct report etc. were also given vide letter dated 1.6.2007 (Annexure A-7). However, when the government issued orders for posting in various schools in respect of promoted officials including the applicant on 2.8.2007, they issued the impugned chargesheet dated 8.8.2007, thus tendentiously preventing the applicant from joining the post to which he was promoted, constraining him to file OA No.1772/2007 before this Tribunal seeking a direction to the respondent for giving him posting to the promotional post and relieving him from the present post to enable him to join the promotional post. The chargesheet was not challenged in that OA, though mention thereof was made so as to bring all facts before this Tribunal. The said OA has since been allowed vide order dated 4.3.2008.
3. Pursuant to notice issued by this Tribunal, the only respondent so arrayed, has entered appearance and filed counter reply contesting the cause of the applicant. By way of preliminary objections, it is pleaded that the OA is barred on the principles of constructive res judicata; that no fresh cause of action has arisen in favour of the applicant after disposal of his earlier OA wherein the Tribunal had observed that disciplinary proceedings should be brought to logical and reasonable conclusion and, therefore, the applicant should have waited till the disciplinary proceedings are concluded; that the OA is premature inasmuch as correctness of the charges is yet to be looked into by the authorities; and that in the enquiry full opportunity will be given to the applicant to defend his case. Insofar as the cut and dry facts, as mentioned in the Application are concerned, there is no dispute. While, however replying on merits, it is pleaded that insofar as promotion of the applicant is concerned, his name was at S.No.36 in the list. The promotion was against the vacancies for the year 2002 and actual posting orders were to be issued on receipt of integrity certificate, work and conduct report and vigilance clearance. Even though the applicants certificate was sent on 1.6.2007 by the head of office to the Directorate of Education, but before he could be given posting and promotion orders, he was placed under suspension on 30.6.2007. Though his suspension was revoked on 30.7.2007 for having not been reviewed on 26.7.2007 by the suspension review committee in terms of rule 10 of the Rules of 1965, but in the meantime the applicant was served with chargesheet on 4.8.2007 and enquiry was ordered against him for illegally collecting money from class IV employees, which amounted to misconduct and violation of rule 3(1)(i) and (iii) of CCS (Conduct) Rules, and as such his promotion/posting was kept in abeyance. Reference is then made to the order passed by this Tribunal in OA No.1772/2007. There is a mention of the observations made by this Tribunal that the respondents should bring the disciplinary proceedings to a reasonable and logical conclusion as early as possible. It is mentioned that the department has already written to the education department to promote the applicant as per directions of this Tribunal. It is pleaded that this Tribunal after examining the whole issue had left it to the respondent to bring the disciplinary proceedings to logical end, meaning thereby that the Tribunal did not intend to interfere with the chargesheet. It is then pleaded that it is well settled that courts/tribunals should not interfere at the stage of chargesheet. It is then stated that ACP is granted as per rules and it is incorrect to state that the same was granted due to efforts of the union, and further that the so called appeal to the members made on 8.2.2007 regarding contribution of money was never brought to the notice of higher authorities, and the authorities were also not informed about the collection of money from the union members of the College. The chargesheet, it is stated, has been issued in accordance with the Rules of 1965.
4. The applicant has filed rejoinder wherein, in addition to contesting the preliminary objections raised by the respondents, the facts in his endeavour to show that the Joint Director is not the authority competent to initiate disciplinary action, have been given. It is pleaded that the applicant was appointed by the Principal Secretary of the College as per Tibbia College Regulations at the relevant time as per Annexure A/3 (a-b) dated 31.8.1987 and 14.3.1988, and that it is only that authority who under the rules is competent to impose penalty and initiate proceedings. This position would be clear from the provisions of Tibbia College Take Over Act of 1997. It is also pleaded that the Director has been given powers of superintendence, direction, control and management of the College and as per rule 3(f) of Delhi Tibbia college (Take Over) Rules, 2006, the Director is to appoint the staff and it is he only who is authorised to initiate action under rule 11 of the said Rules.
5. During the course of hearing on 18.8.2008, learned counsel representing the applicant while addressing the arguments, in his endeavour to show that the respondents were biased against him, made a mention that despite the fact that the action of respondents in withholding promotion of the applicant was held to be unjustified and unwarranted by this Tribunal in OA No.1772/2007 vide orders dated 4.3.2008, the applicant has not been promoted as yet. The matter was adjourned on the request of the learned counsel to 25.8.2008. The counsel has handed over to us an affidavit of the applicant, which we hereby order to be taken on record. The applicant has sworn in the affidavit aforesaid stating that he had filed OA No.1772/2007 wherein Secretary as well as Joint Director, Department of Education were arrayed as respondents, and that the OA was allowed on 4.3.2008 ordering promotion of the applicant, and further that despite the aforesaid order of the Tribunal and lapse of more than five months, the applicant has not yet been promoted. It is also stated that non-promotion of the applicant is willful, intentional and in deliberate defiance of the order of this Tribunal. It is further stated that the conduct of the respondents would be contemptuous. Since Smt. Reena Ray, Secretary, Department of Education; Shri Chander Bhushan, Director (Education); and Shri K. K. Jindal, Director of ISM & H, Government of NCT of Delhi, have failed to comply with the orders of the Tribunal, the applicant prays that these contemnors may be punished as per law.
6. We have heard the learned counsel representing the parties and with their assistance, examined the records of the case.
7. In the context of the facts of the case, as fully detailed above, we would like to take into consideration, in the first instance, the preliminary objections raised by the respondents. The respondents would plead for dismissal of this Application being barred on the principle of constructive res judicata. Ms. Jyoti Singh, learned counsel representing the respondents, contends that when the applicant filed OA No.1772/2007, disciplinary proceedings against him had since already been initiated, and that being so, the applicant ought to have challenged the said proceedings in the same very OA. It appears that the learned counsel is conscious that since the issue tried and determined in OA No.1772/2007 was entirely different, the plea raised by the counsel is based upon Explanation IV to Section 11 of the Code of Civil Procedure, which reads as follows:
Explanation IV Any matter which might and ought to have been made ground defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The plea raised is thus of constructive res judicata. We find no merit whatsoever in the aforesaid contention of the learned counsel. The plea of res judicata arises on two grounds the first relates to public policy and the necessity which makes the State to protect its interest that there should be end to litigation (interest republicae ut sit finish jitum), and the other relates to the hardship on the individual that he should not be vexed twice for the same cause (nemo debet bis veraxai pro eaden causa). The plea can be raised on either or both the grounds, as mentioned above. Whether the two principles as mentioned above are applicable, it has to be established that the case or issue has been directly and substantially in issue and determined. We find no direct issue involved in OA No.1772/2007 pertaining to the disciplinary enquiry against the applicant. Whereas, it may be true that while giving the facts of the case in OA No.1772/2007, there may be a reference to suspension, revocation of suspension and disciplinary proceedings against the applicant, but what was directly and substantially in question, was the promotion of the applicant, which was withheld. The basic or rather the only question raised in the OA aforesaid was as to whether the promotion of the applicant ordered before initiation of disciplinary proceedings could be kept in abeyance. On the contention raised as mentioned above, the Tribunal observed as follows:
Be that as it may, we are of the considered view that the respondents action in withholding the promotion of the applicant appears to be neither justified nor warranted, particularly as he had been found fit and had been empanelled for promotion. The counsel representing the applicant may have also urged that the chargesheet is unsustainable, frivolous and mala fide, but surely, that was not a question directly in issue. It was, at the most, a factual background, but, in the ultimate analysis, the only prayer of the applicant was that his promotion could not be withheld simply because of a pending enquiry, inasmuch as he was promoted against the vacancy for the year 2002 and actual posting orders were to be issued on receipt of integrity certificate, work conduct report and vigilance clearance. It is thereafter only that the applicant was issued the memorandum for disciplinary proceedings. Even though, it has not been urged, but we may mention that the case would not fall within the provisions of Order 2 Rule 2 of the Code of Civil Procedure, as the claim in OA No.1772/2007 was only with regard to promotion. In fact, we are of the considered view that if the applicant was to pray setting aside of disciplinary proceedings against him as well, the OA would have been bad for mis-joinder of causes of action. The two reliefs asked by the applicant the one in OA No.1772/2007 and the other in the present OA, are based upon different causes of action. The preliminary objection of the respondents with regard to res judicata is thus repelled.
8. Another plea raised during the course of arguments only that the applicant has forged the documents and, therefore, this Tribunal may not proceed on the basis thereof, is equally devoid of any merit. The argument is in the context of the statements of the same very persons on the basis whereof the respondents would like to prove the charge against the applicant, is that signatures of the witnesses in the statement at pages 71 and 72 (Annexure AR 2) were not genuine, and, therefore, the Tribunal should take their signatures to tally whether the statements filed by the applicant in his support were genuine or forged. We note that signature tallying is the job of relevant forensic expert, and neither we have the facility of such an expert nor we are ourselves conversant in such a technical function. In our view, such check of signatures in the statements filed by the applicant is not materially necessary and relevant to decide this case. The applicant, we may mention, is basing his entire case on the statements of witnesses recorded by the department itself and it is on that basis it is primarily urged that no case of any delinquency or misconduct is made out against the applicant.
9. With a view to appreciate the contention of the learned counsel that the charge framed against the applicant is totally frivolous and there would not be a semblance of success of the same, it would be necessary to make a mention of statement of article of charge framed against the applicant, appended as Annexure-I with the memorandum dated 8.8.2007. The same reads as follows:
That the said Sh. Prem Singh, A & U Tibbia College working as ward boy had committed certain amount of money from Class IV employees who had been given 1st & IInd Assured Career Progression Scheme. He collected @Rs.100/- for those who got 1st installment and @Rs.200/- from those who got 1st and IInd installments. Certain number of employees are paying the amount thinking that they got the amount of the arrears due to the efforts of the employees Union which is headed by Sh. Prem Singh and Sh. Ashok Kumar, Ward Boys. The Acts of Shri Prem Singh, Ward boy amount to misconduct which are violative of the provisions of Rule 3 (1) (i) and (iii) of the CCS (CCA) Rules 1965. The statement of imputation of misconduct or misbehaviour in support of the article of charge framed against the applicant, appended as Annexure-II with the memorandum aforesaid, would read as follows:
1. Whereas Sh. Prem Singh, A & U Tibbia College, while working as Ward boy has committed as many misconducts by failing to maintain devotion to duty and also illegally demanding & collecting a certain same of money out of the arrears of ACP Ist & IInd up gradation received by the class IV employee for A & U Tibbia College which Sh. Prem Singh and Sh. Ashok Prasad, Ward boys had not head the write to demand & collect from the class IV employees. Shri Prem Singh & Shri Ashok Prasad, both Ward Boys were very much involved in the employees union politics by threatening their colleagues as well as their Superior Officers. It may not be out of place to mention that when Shri Rajan Bhatnagar, Office Superintendent joined this office on_________ he was threatened by the so called Union Leaders Shri Prem Singh and Shri Ashok Prasad, Ward Boys that they are the Union Leaders and he had to obey and do the work whatever they said. Though Shri Rajan Bhatnagar, Office Superintendent is hard working, obedient and his integrity was beyond doubt he had to leave this office and was transferred to Education Department. The actions committed by Shri Prem Singh and Shri Ashok Prasad, Ward boys are not for the welfare and interest of the employees of A & U Tibia College but are detrimental and unwarranted for the class IV employees and office of the A & U Tibbia College.
2. When the information was received regarding the activities certain class IV employees were called and they stated that they illegally demanded a certain amount of money stating that they are getting the arrears of ACP due to their efforts. The money illegally collected by them for which no receipt has been given by them to the class IV employees. When confronted Shri Prem Singh and Shri Ashok Prasad, Ward Boys they stated that they were collecting the said amount for employees union fee for which no Executive Committee of the Employee Union was called nor was there any Executive Committee Resolutions in these collection. The actions commuted by Shri Prem Singh and Shri Ashok Prasad, Ward Boys are clearly violated the provisions of Rule 3 of CCS (CCA) Rules 1965.
3. The Employees Union Election was not held four and half years before. After the lapse of 2 years the terms of the office bearers of the employees union has automatically lapsed and a new election would have been held after the lapse of 2 years otherwise no one could claim as office bearers of the Union Employees Association. However they are still claiming to be the Employees Union Leaders which is illegal, unwarranted and against the rules & procedure violative of the Union Election Rules. Now there is no Union Leaders and nobody can claim to be the Union Leader and collect money in the name of the Employees Union Fund. The action of Shri Prem Singh and Shri Ashok Prasad are violative of Conduct Rules. Annexure-III with the memorandum aforesaid is the list of documents by which articles of charge framed against the applicant are proposed to be sustained. It would be interesting to note that there is no mention of any document whatsoever. The mention, however, is only of the statements of employees, namely, Smt. Murti Devi, sweeper; Smt. Vidyawati, Sweeper; Smt. Maya Devi, Masseurs; Smt. Luxmi Devi, Masseurs; Shri Shiv Poojan, Masseurs; Shri Rajender Kumar, Helper; Shri Shyam Lal, Wardboy; and Shri Shiv Shankar, Wardboy. In the list of witnesses by whom the articles of charge are proposed to be sustained, appended as Annexure-IV with the memorandum aforesaid, contains the names of following nine employees:
Shri Ranjan Bhatnagar, superintendent Smt. Murti Devi, Sweeper Smt. Vidyawati, Sweeper Smt. Maya devi, Masseurs Smt. Luxmi Devi, Masseurs Shri Shiv Poojan, Masseurs Shri Rajender Kumar, Helper Shri Shyam Lal, Wardboy Shri Shiv Shankar, Wardboy The applicant has placed on record the statements of Smt. Murti Devi, Smt. Maya Devi, Smt. Luxmi Devi, Smt. Vidyawati, Shri Shiv Shankar, Shri Rajender Kumar, Shri Shyam Lal and Shri Shiv Poojan. It is the positive case of the applicant that the statements of all these persons were recorded by the same person, i.e., Jagdish Chander, Cashier, and have identical language. It is the case of the applicant that the witnesses were called by the Joint Director in his office on 30.6.2007 after receipt of the charter of demands and they were made to sign on pre-recorded statements. It is further the case of the applicant that when witnesses aforesaid came to know about the mischief of the Joint Director, they represented against this to the Principal/HOD and desired the applicants immediate reinstatement. In the representation and individual statements, they stated that they were forced by the Joint Director in his office to sign on the statements to misuse the same and that their contribution was voluntary for union purposes. The statements given by these witnesses have been annexed with the rejoinder as Annexure AR/1 collectively. We may mention at this stage only that even though, it is the case of the applicant that the witnesses were forced to make their statements and the said witnesses had made representation as mentioned above, it is the defence projected by the applicant which we may not take into consideration at all while examining the legality and propriety of the charge framed against him. As mentioned above, we may also not take into consideration at all the allegations made by the applicant against the Joint Director that the witnesses were called by him after receipt of the charter of demands and they were made to sign on pre-recorded statements. We will go strictly by the statements of these witnesses, and further that the statements made by them are true.
10. The statement of Murti Devi dated 30.6.2007 relied upon by the respondents to prove the charge against the applicant, when translated into English, reads as follows:
I, Murti Devi, am working as Sweeper in the office. Prem Singh, secretary of the union, has taken from me Rs.100/- for getting ACP arrears. Statement of Maya Devi, when translated into English, reads as follows:
I, Maya Devi, am working in the post of Masseurs in the office. Prem Singh, secretary of the union, had demanded Rs.100/- from me in lieu of grant of ACP, and I gave Rs.100/- to him. In verbatim is the statement of Luxmi Devi. Statement of Vidyawati, when translated into English, would read as follows:
I, Vidyawati, am working in the post of Sweeper in the office. Prem Singh told me that I would have to give Rs.100/- for getting ACP arrears. Statement of Shiv Shankar, when translated into English, would read, thus:
I, Shiv Shankar, am working as Wardboy in the office. Prem Singh demanded Rs.100/- from me for getting ACP arrears, but I did not give the same to him. The statements of Rajender Kumar, Shyam Lal and Shiv Poojan are similar to the one made by Shiv Shankar.
11. Reverting to the statement of articles of charge as reproduced above, it would be seen that the allegation against the applicant is that he had demanded and illegally collected certain amount of money from class IV employees who had been given first and second ACP, and that he collected @ Rs.100/- from those who got first installment and @ Rs.200/- from those who got first and second installments. It is further mentioned that certain number of employees paid the amount thinking that they had got the ACP arrears due to the efforts of the employees union headed by the applicant and Ashok Prashad. There is not even a hint in the statement of articles of charge that the applicant or for that matter, Ashok Prashad had threatened any of the employees to contribute Rs.100/- or Rs.200/-, in view of the efforts made by the union for getting them ACP arrears. In the statement of imputation of misconduct or misbehaviour, of course, it is mentioned that the applicant had demanded and collected certain sum of money out of the ACP arrears received by class IV employees, by threatening their colleagues as well as their superior officers. We will deal with the statement of imputation of misconduct or misbehaviour insofar as, threatening to Shri Rajan Bhatnagar, Office Superintendent, and transfer sought by him, and the employees union election not being held for four and a half years, in the later part of the judgment. Suffice it to say at this stage that even though there is a mention that the applicant and Ashok Prashad threatened their colleagues in order to collect certain sum of money from class IV employees, but such is not the statement of the witnesses. We have already reproduced the statements of all the witnesses. Some of the employees whose statements have been recorded would make no mention of any threat whatsoever. They simply stated that the money was demanded and paid. Some of the witnesses of course stated that the applicant had told them that they would have to pay the money, but it is interesting to note that all those who stated that the applicant told them that they had to pay the money, had actually paid no money whatsoever. It is the positive case of the applicant that it was a simple case of members of the union celebrating an occasion when the employees were released arrears of ACP and it is in connection of the celebration for which even a written appeal had been issued for collection of money, but we would not go into that defence projected by the applicant. In our considered view, there is no threat so extended to any of the employees who paid the money. Surely, the department cannot go beyond the statements of witnesses in proving the charge against the applicant. It is, therefore, absolutely clear that those employees who actually paid the money, and that is the charge against the applicant, were extended no threat whatsoever. It is quite apparent from the statements made by them that they had voluntarily paid the money. Some of the witnesses, as mentioned above, of course, have stated that the applicant told them that they had to pay the money, but we may reiterate that none of them paid anything whatsoever to the applicant. The charge against the applicant that he extracted money out of them by threat is thus not made out from the statements made by any of the witnesses. That being so, even if the statements made by the witnesses are taken to be gospel truth, no case of misconduct against the applicant would be made out. It is the case of the applicant that the misconduct alleged against him has nothing to do with discharge of the duties entrusted to him. Even if the said argument is to be repelled and the version of the department is to be accepted that extracting money from the employees by threatening them would be misconduct in discharge of duties by the applicant, as mentioned above, no case of extracting money by threatening the employees would be made out, even if the statement of the employees, on the basis of which the said allegation is sought to be established, are taken to be true. The statements, we may reiterate, would clearly show voluntary payment by some of the employees, whereas others who were asked necessarily to pay, had not paid at all and, therefore, no money was extracted from the employees. Insofar as, the charges that may relate to threatening Rajan Bhatnagar, who had to seek his transfer, and there being no election of the union after lapse of two years, are concerned, the same were common to the applicant and Ashok Prashad, president of the union. Admittedly, the charges against Ashok Prashad have been withdrawn. There is not a word mentioned in the reply as to why the applicant alone is being proceeded for the charges that were common to him and Ashok Prashad. The facts and circumstances of the case that the applicant despite his promotion and vigilance clearance as also posting order, was not actually promoted on the illegal plea that disciplinary proceedings initiated after promotion and posting of the applicant would provide justification for not actually promoting him, despite clear orders passed by this Tribunal in OA No.1772/2007 decided on 4.3.2008; the applicant having not been promoted till date; and that the applicant only being tried for the common charges framed against him and Ashok Prashad, do create an impression that the applicant is indeed being targeted. The applicant appears to have a case that it was a simple case of collection of funds for celebrating grant of benefits of ACP to the members of the union, on an appeal issued by the president on 8.2.2007 on that behalf, which fact is admitted, even though it is stated that the same was not brought to the notice of higher authorities and they were also not informed of the collection of money from members of the union, the issuance of receipt of all the collection that was made by the applicant, and other attending circumstances, but even if one is not to go by his case, as mentioned above, the allegation made against the applicant that he extracted money from employees by threatening them would not be supported by any evidence on the basis of which the said allegations/charges were sought to be proved. That being so, it would be travesty of justice to keep the disciplinary proceedings pending which may take years to complete. Whereas, the employer may have every right to punish an errant employee by prosecuting or trying him departmentally, but persecution cannot be allowed.
11. We are fully aware of the Tribunals jurisdiction in the matter of disciplinary proceedings. It is well settled by catena of decisions of the Honble Supreme Court that courts and tribunals should not ordinarily entertain writs/applications against show cause notice or chargesheet. However, if the charge may be totally frivolous and there would be no semblance of success, or where it may be actuated on extraneous considerations, in our view courts/tribunals would be duty bound to protect the employee from untold miseries and hardships that he might have to face in going through a grueling departmental enquiry which may last for several years.
12. The applicant was departmentally tried on the allegations mentioned above under rule 3 (1) (i) and (iii) of CCS (Conduct) Rules, 1964. The same reads as under:
(1) Every Government servant shall at all times
(i) maintain absolute integrity;
(ii) xxx xxx xxx
(iii) do nothing which is unbecoming of a Government servant. The following acts or conduct of a government servant may amount to misconduct, in view of Notes on CCS (Conduct) Rules, 1964 3rd Edition, 1980, published by the Government of India, MHA, DP&AR, below rule 3-C of the 1964 Rules:
(23) Acts and conducts which amount to misconduct. The act or conduct of a servant may amount to misconduct (1) if the act or conduct is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master;
(2) if the act or conduct is inconsistent or incompatible with the due or peaceful discharge of his duty to his master;
(3) if the act or conduct of a servant makes it unsafe for the employer to retain him in service;
(4) if the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;
(5) if the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;
(6) if the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly;
(7) if the servant is abusive or if he disturbs the peace at the place of his employment;
(8) if he is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant;
(9) if the servant is habitually negligent in respect of the duties for which he is engaged;
(10) if the neglect of the servant though isolated, tends to cause serious consequences.
The following acts and omissions amount to misconduct. (1) Wilful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior.
(2) Infidelity, unfaithfulness, dishonesty, untrustworthiness, theft and fraud, or dishonesty in connection with the employers business or property.
(3) Strike, picketing, gherao Striking work or inciting others to strike work in contravention of the provisions of any law, or rule having the force of law.
(4) Gross moral misconduct Acts subversive of discipline Riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline.
(5) Riotous and disorderly behaviour during and after the factory hours or in business premises.
(6) Habitual late attendance.
(7) Negligence or neglect of work or duty amounting to misconduct Habitual negligence or neglect of work.
(8) Habitual absence without permission and over-staying leave.
(9) Conviction by a Criminal Court. The acts of omission and commission, as reproduced above, may not be exhaustive and thus may be illustrative, but surely, the misconduct alleged against the applicant may not fall in any of the aforesaid acts of omission and commission. Before adverting to the scope of interference by this Tribunal in the matter of quashing the chargesheet, we may see what misconduct means. It has been defined in Blacks Law Dictionary, Sixth Edition at page 999, thus:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct in office has been defined as:
Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. In P. Ramanatha Aiyars Law Lexicon, 3rd edition, at page 3027, the term misconduct has been defined as under:
The term misconduct implies, a wrongful intention, and not involving error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct.
13. We need not refer to judicial precedents on the issue, as it is common case of the parties, canvassed through their respective counsel, that the courts or tribunals would not ordinarily interfere with departmental proceedings at the stage of chargesheet, but there is no absolute bar for the same as well. The Honble Supreme Court in State of Punjab v V. K. Khanna & Others [(2001) 2 SCC 330] held that:
The concept of fairness in administrative action has been the subject matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependant upon the facts and circumstances of each matter pending scrutiny before the Court and no straight-jacket formula can be evolved therefor. As a matter of fact fairness is synonymous with reasonableness and on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed - it is the appreciation of this common man's perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not. Similarly the existence of mala fide intent or biased attitude cannot be put on a strait-jacket formula but depends upon facts and circumstances of each case. If one may have regard to the picturesque language used by the Honble Supreme Court, as quoted above, it can be said without any hesitation that quashing of a charge is dependent upon appreciation of a common mans perception in its proper perspective. If, therefore, common sense may clearly guide the courts or tribunals that a charge framed against a government officer would have no legs to stand and in ultimate analysis, would be only humiliation to the said officer, there would be no embargo on the powers vested with the courts and tribunals to quash the charge and put to an end the departmental proceedings at its very threshold. We may also quote the following observations made by a Division Bench of the Punjab & Haryana High Court, which were approved by the Honble Supreme Court in V. K. Khanna (supra):
Indisputably, duty is like debt. It must be discharged without delay or demur. A civil servant must perform his duties honestly and to the best of his ability. He must abide by the Rules. He should live by the discipline of the service. He must act without fear or favour. He must serve to promote public interest. He must carry out the lawful directions given by a superior. In fact, the Constitution of India has a chapter that enumerates the Duties of the Citizens of this country. Art. 5l-A contains a positive mandate. It requires every citizen to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. This provision can be the beacon light for every citizen and the mantra for every civil servant. So long as he performs this duty as imposed by the Constitution and strives towards excellence, he has none and nothing to fear. Even God would be by his side.
At the same time it is undeniably true that whenever there is a dereliction in the performance of duties by the civil servant, the State Government has the right to intervene and punish the guilty. This is the undoubted prerogative of the State. But, to borrow the words of Professor Wade, this power has to be used for the public good. The action of the authority must be fair and reasonable. It should be bona fide. It should not be arbitrary. It should not be based on extraneous considerations. It should be for public good. Bias or personal malice should not taint it. Bias is like a drop of poison in a cup of pure milk. It is enough to ruin it. The slightest bias would vitiate the whole action.
14. We are of the opinion that the State has indefeasible right to proceed against a government employee, but the said right has to be exercised in a reasonable manner. In totality of the facts and circumstances of this case, we are of the firm view that the respondents have exercised this right in the present case in a wholly arbitrary manner, which would be violative of provisions contained in Article 14 of the Constitution of India. The applicant who has an unblemished service career spanned over a decade, pursuant to an appeal in writing by the president of the employees union Ashok Prashad under his signatures, which was signed by 33 members of the union including the applicant, collected rupees 100 each from the members. As observed above, the respondents in their endeavour to prove the charge against the applicant, recorded statements of only eight persons. Some of the persons, whose statements were recorded, did not mention a word about the threat extended by the applicant. A simple reading of their statements would make it a case of payment having been made voluntarily. Others, who stated that they were asked to necessarily pay, did not further mention that if they were not to pay, what threat might have been extended to them. Still further, such persons who were asked necessarily to pay did not pay at all. The applicant thus extracted no money from those who stated that they were asked that they shall have to pay. The applicant having simply asked them that they shall have to pay, without anything further, like what consequences would follow if they were not to pay, would not, we may reiterate, amount to extracting money from them by extending threats. The impugned memorandum of charge dated 8.8.2007 (Annexure A/1) is, therefore, not sustainable in the eyes of law and deserves to be quashed. We order so.
15. Before we may part with this order, we may mention that the judgment in this case was reserved on 29.8.2008. Learned counsel representing the respondents, who, during the course of arguments, stated that the applicant would be promoted any day, was asked to intimate the Tribunal if he has actually been promoted. Till such time we have today pronounced the order, there is no intimation as to whether the applicant has indeed been promoted or not. We, however, leave the matter of promotion of the applicant at that, with liberty to him to seek his remedy for non-implementation of the directions issued by this Tribunal in OA No.1772/2007 decided on 4.3.2008.
16. This Application is allowed with costs quantified at Rs.10000/- (Rupees ten thousand).
( Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/