Central Administrative Tribunal - Hyderabad
Dr. A.M. Sirish vs State Of Haryana & Ors (1989(2) Scc 177) ... on 29 January, 2015
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL : :HYDERABAD BENCH::AT HYDERABAD O.A.No.1278 /2013 CAV On:21.01.2015 Date of Order : 29 . 01 .2015 BETWEEN: Dr. A.M. Sirish, S/o. A.M. Krishna, Aged about 43 years, Occ: Assistant, Regional Passport Office, Hyderabad, R/o. H.No. 12-13-309, St. No. 19, Tarnaka, Hyderabad. ..Applicant A N D 1. Union of India Rep. by its Officer on Special Duty (CPO & Haj), Ministry of External Affairs, Patiala House Annexe, Tilak Marg, New Delhi; 2. The Union of India, Rep. by its Joint Secretary, (CPO) & Chief Passport Officer, Ministry of External Affairs, Patiala House Annexe, Tilak Marg, New Delhi; 3. The Regional Passport Officer, Regional Passport Office, Hyderabad, 8-2-215 to 219, Adj. to Prashanth Theatre, Kummarguda, Secunderabad. .. Respondents Counsel for the Applicant : Mr. K. Sudhakar Reddy Counsel for the Respondents : Mr.G.Jaya Prakash Babu, Sr. CGSC CORAM:- THE HONBLE MR. B.VENKATESWARA RAO, MEMBER (JUDL.) THE HONBLEMRS.RANJANA CHOWDHARY, MEMBER (ADMN.) ORDER
(Per Honble Mr. B.Venkateswara Rao, MEMBER (J)) Applicant has filed the O.A. seeking the following relief:-
"to call for the records pertaining to impugned proceedings dated 03.04.2013 and 05.07.2013 issued by the 2nd and 1st Respondents respectively and quash or set aside the same as bad, illegal, arbitrary, unconstitutional, amounting to violation of principles of natural justice, amounting to non-application of mind and orders issued with bias, vendetta and proceedings undertaken without any basis, evidence and consequently promote the applicant as superintendent with all consequential benefits."
2. Brief facts of the case according to the applicant are that he was initially appointed as LDC in the 3rd Respondent office with effect from 18.06.1993 and was promoted to the post UDC with effect from 19.10.2001. A charge memo dated 21.5.2009 was issued to the applicant. The applicant submitted his explanation to the said charge memo vide his representation dated 27.06.2009 along with evidences as enclosures. It is submitted that the power of the Disciplinary Authority to initiate disciplinary proceedings is one aspect of the matter and utilization of the said power in an inappropriate manner is another and most important aspect. It is the case of abuse of power and colorable exercise of power in initiating the very disciplinary proceedings against the applicant. The disciplinary authority at that particular time did not choose to exercise its discretion in a proper manner. As the very initiation of disciplinary proceedings was only to harass the applicant, as if there was no chance for the disciplinary authority to drop the whole proceedings. Inquiry Officer and Presenting Officers were appointed. The Inquiry was conducted on 10.5.2011 and 11.5.2011. Whatever steps was taken by the Presenting Officer to produce Sri Bala Bhaskar, the then Regional Passport Officer, found to be not fruitful and the prosecution gave up the said witness. On 10.5.2011 prosecution produced three witnesses and they were examined. There was no necessity for the applicant to produce defense witnesses in as much as prosecution witnesses have not spoken anything against the applicant. The evidence on record as produced by the prosecution "proved No Charge" against the applicant. In view of the failure on the part of the prosecution to prove the charge, the Inquiry Officer ought to have held the charge as not proved. The presenting officer submitted his brief on 26.5.2011. The applicant submitted his defence brief on 6.6.2011 once again furnishing the relevant documents and explaining as to how the charges are not being proved. Though the Inquiry was completed in May 2011 and the report was alleged to be submitted to the Disciplinary Authority in July, 2011 nothing was communicated to the applicant, therefore, he submitted a representation to the Disciplinary Authority to furnish a copy of the Inquiry Report and to finalize the issue. Disciplinary Authority vide letter dated 16.3.2012 furnished a copy of the enquiry report dated 12.07.2011 and sought for written submission of the applicant within 15 days on the Inquiry Officer's report. The Inquiry Officer held the charges 1, 2 and 4 as proved and charge 3 as partly proved. Whereas the disciplinary authority held the charges 1as proved and charges 2 and 3 as partly proved and charge 4 was dropped. It is contended by the applicant the D.A. himself did not agree with the IO, also there cannot be anything like partly proved, either the charge is proved or not proved. Applicant received the Disciplinary Authority's letter dated 16.3.2012 along with copy of the Enquiry Officer's report dated 12.07.2011 on 30.3.2012 and he submitted his representation dated 12.4.2011 discussing about the merits and de-merits of the each of the charge. The 2nd respondent without discussing any of the issues raised by the applicant, imposed the punishment of reduction to a lower stage in the time scale for a period fo three years with effect from 1.4.2013 with cumulative effect. Applicant filed appeal against the said orders dated 3.4.2013 vide his appeal dated 01.5.2013,which was rejected vide order dated 05.07.2013. The applicant challenged the above two proceedings dated 3.4.2013 and 05.07.2013 issued by the Respondent Nos. 2 and 1 respectively in the present O.A. seeking the aforesaid relief.
3. Respondents contested the O.A. by filing reply stating that after careful and thorough scrutiny of the applicant's explanation to the charge memorandum, the disciplinary authority had initiated departmental inquiry under Rule 14 of the CCS (CCA) Rules, 1964 vide proceedings dated 21.5.2009. The Presenting Officer submitted his brief on 26.5.2011 and the Inquiry Officer submitted his report on 6.6.2011 holding the Charges I, II and IV as proved and Charges III as partly proved. However, the Disciplinary Authority held the charges I as proved, Charges II & III as partly proved and dropped the charges IV. Respondents further states that the applicant was on unauthorized absence from duty from 20.09.2007 to 11.12.2008. A Memorandum was issued to him by the Disciplinary Authority after his reporting for duty vide proceedings dated 09.1.2009. Thereafter, applicant made an appeal on the penalty imposed by the Disciplinary Authority to the Appellate Authority on 1.5.2013. After going through all the relevant documents , the appeal was rejected vide order dated 5.07.2013 by the appellate authority and confirmed the penalty imposed by the disciplinary authority i.e. reduction to lower stage in the time scale of pay for three years with effect from 1.4.2013 with cumulative effect. Respondents further submitted that in view of the facts and circumstances stated in the reply statement the O.A. is liable to be dismissed and prayed to dismiss the same with costs.
4. Applicant filed rejoinder and the same is perused.
5. Heard learned counsel on both sides and perused the documents and material on record
6. Mr. K. Sudhakar Reddy, learned counsel for the applicant submits that the issues raised as allegations/charges pertaining to 2006 and 2007. The Charge Memo was issued on 21.5.2009. The whole proceedings starting from 21.5.2009 deserve to be set aside on the grounds of inordinate delay. Applicant at that time was the Secretary of the All India Passport Employees Association and had given no room for then Regional Passport Officer, Sri Bala Bhaskar to complain. He started developing animosity only for the reason that the applicant was asserting his rights and the rights of others as the Secretary of the Association. Almost all the staff members are victims of his attitude which led to filing of compliant before the "Hon'ble Andhra Pradesh State Human Rights Commission. and as the issue was getting out of hand, the good offices of the New Delhi prevailed and he was "transferred' from Hyderabad and posted in the Head Office at New Delhi and the complaint was also closed. The revengeful attitude of Sri Bala Bhaskar continued even after getting transferred to New Delhi against the employees of the Hyderabad Office. He by putting influence and obviously got the baseless, concocted trivial charge memo against the applicant dated 21.05.2009 being issued by the Disciplinary Authority. This is a clear case of victimization and a case where the superior officer haunting the subordinate officer, misusing his power and position. On this ground also the whole proceedings deserve to be set aside.
7. He further contends that the applicant was eligible for promotion with effect from 09.1.2009 as Assistant in as much as his name was cleared for promotion as Assistant from the category of UDC. He was found as unfit by DPC which was conducted on 09.2.2009. He approached the Tribunal in OA No. 351/2010, which was allowed in as much as the charge memo dated 21.5.2009 cannot come in the way of his "promotion"which was considered in February 2009 and accordingly Review DPC was constituted for reconsideration of the claim of the applicant. Only when the applicant filed C.P. 78/2011, then only he was promoted as Assistant with retrospective effect. That the respondents are against the applicant in denial of his promotion to the post of Superintendent. Despite the fact that the applicant is senior most to be promoted as Superintendent, he was denied promotion to the said cadre and many of his juniors were promoted through proceedings dated 11.4.2013. Obviously, the applicant's claim was not considered on the ground of pendency of disciplinary proceedings. It is the contention of the applicant that initial promotions i.e. promotion to the post of Assistant was denied even before issuance of charge memo and the subsequent promotion i.e. promotion to the cadre of Superintendent was denied on the ground of pendency of disciplinary proceedings though the fault and wanton delay lies with the respondents. Applicant filed O.A. 531/2011 before the Tribunal and there was an interim direction on 26.4.2013 directing the respondents to consider the case of the applicant for promotion to the post of Superintendent without reference to the disciplinary proceedings by conducting DPC and if he found to be fit, he be promoted or adopt the procedure of sealed cover by order dated 23.4.2013. Respondents have finally issued punishment order dated 03.4.2013 which was received by the applicant on 27.4.2013 i.e. after the applicant obtained interim directions on 23.4.2013. That the very intimation of the disciplinary proceedings in 2009 was only to see to it that the applicant would not get his promotion at the right time. It is the contention of the applicant that respondents tried at the first instance failed i.e with regard to promotion to the Assistant and they are successful to the extent of denying the promotion to the applicant as Superintendent by inflicting the punishment, just "two days before the date of DPC".
8. Learned counsel for the applicant has stated the merits of the four charges. In so far as the first charge is concerned, he submitted before the disciplinary authority and enquiry officer as to why he could not got to Kozhikode. The employer/disciplinary authority cannot expect an employee to obey forcefully all the orders despite his health condition. In a given situation if an employee is not in a position to travel to the far off place of where he was asked to go and request time and/or leave, "the same cannot be totally refused and hold the employee as a person with disobedience nature.". As a matter of fact, some other employees/staff who were supposed to go along with the applicant, when they could not go alternative arrangements were made and only when it comes to the applicant the officer was rigid. This "clearly shows that the applicant was being victimized". What is important for the Inquiry Officer to see the circumstances under adverse situation. The Inquiry Officer was expected to see the record and conduct of the applicant that he was making correspondence with the then officer seeking for a little time and he never refused or was contemplated to disobey the orders. The Inquiry Officer was expected to look into these factors in a proper and impartial perspective instead he has held the charge as proved. The Inquiry Officer held the charge as proved only on the ground that the leave of the applicant was refused and that the applicant has no right and cannot seek for leave as a matter of right. His finding was that the applicant did not go to Kozhikode therefore, the charge is proved.
9. In so far as the second charge is concerned, it is contended by the learned counsel for the applicant that it consists of three facets. As per the Inquiry Officer, all the three facets are proved. The Disciplinary Authority held that the said charge No.2 is partly proved. As per the Disciplinary Authority, the second charge can be split into two aspects i.e. aspect of resignation and aspect of unauthorized absence. In so far the facets dealing with the resignation is concerned, they are not proved and therefore, there is no necessity for the applicant to explain those issues. However, the second portion of the second charge i.e with regard to alleged unauthorized absence, the Inquiry Officer held the same as proved and Disciplinary Authority accepted the same. As the applicant's resignation letter dated 3.10.2006 was not accepted, he withdrew the same on 20.10.2006. The applicant was supposed to be taken back by the then Regional Passport Officer, but he did not even allow the applicant to join, despite accepting the joining report. To prove that the applicant was given posting but he still did not join there has to be some oral and documentary evidence, which is lacking. No memo or charge was ever issued by the office or the Ministry to the applicant to state that the leave was unauthorized, while clearly the applicant produced Ministry letters addressed to Passport Officer, informing they had received the representation from applicant and whether he has joined office or not. Not allowing the applicant into the office and not allowing him to perform his duties itself speaks about the vindicative attitude of Sri Bala Bhaskar. The prosecution witness did not speak about this at all. Therefore, as far as the unauthorized leave is concerned, it has to be treated as there is no oral and documentary evidence in this regard. Though the applicant has explained as to how there is no unauthorized absence, this was ignored by the Inquiry Officer and by the Disciplinary Authority also.
10. Learned counsel for the applicant submits that in so far as the third charge, there are three facets. This according to the Inquiry Officer were held as partly proved. The Disciplinary Authority also held the charge as partly proved. As per the Inquiry Officer, the issues with regard to Waves Foundation without permission and obtaining Ph. D without any proof and was dropped. However the applicant submitted false medical grounds for unauthorized absence is proved according to Inquiry Officer as well as Disciplinary Authority. This the Inquiry Officer held it to be as proved without any discussion and basis, there are no witnesses and there are no documents. On the contrary, the applicant produced the relevant certificates/documents to show that the certificates produced are genuine issued by the CGHS and recognized Doctors.
11. In so far the charge No.4 is concerned, Enquiry Officer held the same as proved, the Disciplinary Authority dropped it. Therefore, there is no necessity to discuss about it.
12. Learned counsel for the applicant submits that as the Inquiry Officer's findings are perverse and based on no evidence, the whole proceedings deserved to be set aside. Such an Inquiry Officer's report should not have been the basis to issue show cause notice and impose punishment. That the Disciplinary Authority failed to appreciate the points raised by the applicant and though certain facets were dropped by the Disciplinary Authority, the purpose of the Disciplinary Authority being somehow to give some punishment. The very imposition of punishment is a sheer attempt to deny promotion of the applicant some way or the other. That as many of the issues raised by the applicant has not been discussed, the order of the Disciplinary Authority is non-speaking. The Disciplinary Authority proceedings deserves to be set aside. That the Appellate Authority also failed in its duty in as much as the contentions raised by the applicant both factual and legal has not been discussed by a non-speaking order, the order of the Disciplinary Authority was affirmed. He further prayed to allow the O.A. by granting the relief as prayed for in the O.A.
13. Mr. G. Jaya Prakash Babu, Learned Senior Standing Counsel for the respondents argued the matter and strongly opposed the submissions and contentions raised by the learned counsel for the applicant.
14. He mainly contends that respondents after following the procedure and due process of law, issued charge memorandum and conducted departmental inquiry wherein the applicant was given fair and reasonable opportunity to defend his case. The Disciplinary Authority after giving a careful consideration to the Inquiry Officer's report had imposed the penalty of reduction to lower stage in the time scale of pay for three years with effect from 1.4.2013 with cumulative effect on the applicant. He further contends that against the penalty imposed by the Disciplinary Authority, applicant preferred an appeal to the appellate authority and the Appellate Authority, after considering the grounds taken by the applicant in his appeal, rejected the same vide order dated 5.07.2013. Since the respondents/disciplinary authority conducted the departmental inquiry in accordance with rules and imposed the penalty basing on the inquiry report and after considering the facts and circumstances of the case, there is no need to interfere with the orders passed by the disciplinary authority and appellate authority and he further prayed to dismiss the O.A. with costs. Learned counsel for the respondents further relied on the decision in the case of Shri Parma Nanda Vs. State of Haryana & Ors (1989(2) SCC 177) wherein the Hon'ble Supreme Court held that Tribunal could exercise only such powers which the Civil Courts or High Courts could have exercised by way of Judicial Review.
15. We have considered the submissions and arguments of both the counsel and carefully gone through the documents and material on record and judgments cited by them.
16. The only issue to be decided in the O.A. is whether the impugned proceedings dated 3.4.2013 and 5.07.2013 issued by the 2nd and 1st respondents respectively are legally valid?
17. Before answering the issue, we feel it necessary to reproduce the charges framed against the applicant which are as under:-
"ARTICLE OF CHARGE-I: Sh. Sirish, UDC, while working at PO, Hyderbad was deputed on the instruction of the Ministry to PO, Kozhikode for temporary duty from 11.09.2006 to 29.9.2006 vide Order No. HYD/578/2/1/08 dated 4.9.06. The order was sent to the residential address of Sh. Sirish by telegram on 06.09.2009 since he remained absent from office without approval from 4.09.2006. Shri Sirish sent fax to the PO, Hyderabad on 5.09.2006 stating that he was going on leave from 4.09.2006 which was however not granted. Sh. Sirish subsequently submitted his resignation on 3.10.2006 to the JS (CPV) & Chief Passport Officer through proper channel i.e Passport Officer, Hyderabad.
ARTICLE OF CHARGE II: The resignation submitted by Sh. Sirish on 3.10.2006 was, however, withdrawn by him vide his letter dated 20.10.2006 which was faxed to the Ministry on 9.11.2006 and 18.12.2006. Though, it was mentioned in the letter that it was being sent through proper channel, the same was not received through the Passport Officer, Hyderabad. Whereas in his resignation letter he mentioned reasons for resignation i.e lack of promotion opportunities and ill health, he mentioned about non grant of leave, posting to Kozhikode attitude of the PO as reasons for withdrawal of resignation. After joining on 10.09.2007, he again absented himself for 4 days and thereafter reported for duty only for three days i.e. from 17.09.2007 to 19.9.2007. He absconded again from his duties from 20.09.2007 till 11.12.2008. It is therefore evident that Sh. Sirish submitted his resignation only to avoid temporary duty of sending resignation and later its withdrawal without valid reasons is unbecoming of a Government Servant. His subsequent action in remaining unauthorizedly absent for a long period indicates lack of devotion to duty. On 12.12.2008, he reported for duty and though advised to await instructions from the Ministry regarding his joining, he forcibly entered into the Administration Section and signed the attendance register. He thus joined the office without proper permission.
ARTICLE OF CHARGE III: Shri Sirish at the time of joining on 12.12.2008 submitted a medical certificate from a private doctor falsely claiming himself to have been under medical treatment from 20.9.2007 to 11.12.2008 whereas during the same period he was reportedly active in pursuing higher studies and in organizing activities of an NGO "Waves Foundation"of which he is a founder member. As per the details available on the website of "Waves Foundation", Shri Sirish claimed to be from the MEA and thereby tried to promote the organization abusing his official position. Being a Government Servant, he was expected to have taken requisite approval from the office to establish a Non Governmental Organization and to involve himself in its activities which he failed to do.
ARTICLE OF CHARGE IV:
During the year 2004, Shri Sirish was office bearer of AIPEA Local Unit, Hyderabad and being its Secretary, Shri Sirish was instrumental in arranging a canteen sponsored by the Pepsi to be run by the Passport Office Staff Cooperative Credit Society. Vide their letter dated 15.3.2004, the AIPEA local unit under his signature as Secretary asked the Society to enter an agreement between the staff and the Pepsi. In response, the Society informed the Association's local unit regarding their compliance and the fact that they had made profit of Rs. 3,40,000 which was to be distributed among the staff members. Further, the records pertaining to minutes of Welfare Society/Association and AIPEA Association, Hyderabad Local Unit indicate that Shri Sirish was part of its Executive Committee. The minutes of Executive Committee indicate that Shri Sirish had the knowledge of illegal collection of money form Ex-Servicemen and restaurant. All the operations of Society were with a view to make illegal gains for themselves which was not the objective of the Society. Therefore by his involvement in the above activities, Shir Sirish in the capacity of the Secretary, AIPEA Local Unit, Hyderabad encouraged the proliferation of illegal activities by the Society with a view to appropriate more profits.
Thus, Sri A.M. Sirish, UDC, Passport Office, Hyderabad failed to maintain absolute integrity and devotion to duty and exhibited conduct unbecoming of a Government Servant thereby violating Rule 3(i), (ii), and (iii) of the CCS (Conduct) Rules, 1964.
18. We see that the Inquiry Officer held the charges I, II and IV as proved and Charge -III as partly proved, whereas, the Disciplinary Authority held the charges I as proved and Charge -II and III as partly proved and Charge IV as dropped. We have also seen that the Appellate Authority rejected the appeal vide order dated 5.7.2013 and confirmed the penalty imposed by the disciplinary authority.
19. We are well aware regarding the judicial review in respect of the departmental proceedings. In catena of judgments, the Hon'ble Apex Court and High Courts held that normally courts and Tribunal s cannot sit as forum of appeal unless the punishment imposed by the Disciplinary Authority is shockingly disproportionate, excessive or the findings based on no evidence. In view of the dictum laid down by the Hon'ble Supreme Court and High Courts, we carefully gone through the Charges framed against the applicant, Inquiry Report, Disciplinary Authority's order and Appellate Authority's order. Having seen the Inquiry Officer's report, we find no material or piece of evidence on record to prove the charges against the applicant. We see no reasons are given by the Inquiry Officer to hold the charges are proved. We also find that the Inquiry Officer failed to consider the explanation to the charge memorandum submitted by the applicant and facts and circumstances existed on that particular period. After careful reading of the Inquiry Officer's report, we cannot understand how the Inquiry Officer held the charges are proved without any evidence or material.
20. We have also found that the Inquiry Officer misdirected himself by dividing one complete charge into several charges. The Disciplinary Authority vide the impugned memorandum of charges dated 21.05.2009 framed four Articles of Charges. The Inquiry Officer in his report held that the Charges 1, 2 and 4 as proved and Charge No.3 is partly proved and, whereas, the Disciplinary Authority held Charge No.1 as proved, Charges 2 & 3 as partly proved and dropped the Charge No.4. The Disciplinary Authority vide the memorandum of charges, framed a complete four Articles of charges. The Inquiry Officer held the Charge No.3 as partly proved and the Disciplinary Authority held the Charge No.2 and 3 partly proved. As per the judgment of the Hon'ble High Court of Calcutta in the case of Raya Bhattacharjee vs. The Punjab National Bank & Ors. in W.P. No. 19540(W) of 1999 dated 3.5.2005 held that the inquiry officer has no authority or power to divide or segregate a sole Article of Charge into parts like a, b, c & d . In a similar case, where the inquiry officer segregated one sole artilce of charge into parts and held as one part proved, some parts partly proved, the Hon'ble High Court of Calcutta observed as under:-
2. At the relevant point of time she was working as an Officer in New Bank of India that subsequently merged with the respondent bank (The Punjab National Bank). The proceeding was initiated by charge sheet dated August 16, 1994 on the following sole Article of Charge.
on account of laxity on the part of Ms. Bhattacharjee, in exercising control required on the functioning of the Day Book Department at BO. Ezra Street, Cal. Fraudulent transactions were made by Sri Dhaneshwar Rai, Officer (U/s.). She failed to maintain books properly as per guidelines. As a result, the fraud could not come to light earlier and banks fund to the tune of Rs. 45.00 lacs approx is in jeopardy. The inquiry officer submitted an undated report recording his findings, which are :
I find that the above charges have not been proved due to the following reasons:
1)It could not be proved that the concerned Long Book was in the custody of the CO and it was destroyed/tampered by her or at her instances.
2)It could also not be proved by the PO that the maintenance of the Transfer Journal was the responsibility of the CO.
I summarize my findings on charges against Ms. Raya Bhattachargee as under:-
Charge 1(A) (i). Article 1: Partly proved Charge 1(A) (ii). Article 1: Not proved Charge 1(B) (i & ii) . Article 1: Not proved. I agree with counsel for the petitioner that the inquiry officer misdirected himself by dividing one complete whole charge into several charges, when a mere reading of the sole Article of Charge would show that it did not admit of segregation. Charge 1(A)(i) of the sole article of charge as compartmentalized by the inquiry officer reads as follows:-
i) Ms. Bhattacharjee failed to ensure that in most of the days the number of the vouchers were not mentioned against some ledgers and number of vouchers for a large number of days has not been mentioned at all. Total of vouchers was not checked/tallied with other Books of Records e.g. Cash Book. Transfer Analysis Clearing Long Book etc. From the findings of the enquiry officer it will appear that according to him only this Charge 1A(i) was partly proved and the other charges as classified by him were not proved at all. At this stage I think it will be useful to mention that the guidelines which were referred to in the article of charges are as follows:-
The Day Book is the permanent record of each day's transactions under the general ledger heading. It should be complied from the vouchers themselves except where the totals of Long Book are transferred to it under the respective headings (sic) the Day Book writer must see before entering them that all vouchers are in order, that the signatures on the drafts etc have been cancelled and that all the debit vouchers have been branded with a cash or transfer date stamp bearing the current day stamp.
The Day Book will be checked daily from the vouchers and Subsidiary Register by an authorized official. It is important to note that the petitioner all along contended that the guidelines were not being followed by any branch of the bank, and hence even assuming that while dealing with the particular books of account she had not ensured strict compliance with them there was no scope to regard her such act of non-compliance as a misconduct. As to this the enquiry officer said:
It is true that specimen of Day Book of branch of ENBI(DE 60.61.62.63) as produced by the CO indicates that there was no system of recording the number of vouchers in the Day Book but this should be treated as a deviation from the prescribed procedure.
3. In my view counsel for the petitioner is absolutely right in saying that though non-compliance with the guidelines was the foundational fact for leveling the charge, bereft or evidence showing nexus between the act of non-compliance and the alleged fraud committed by Dhaneswar Rai, there was no scope to view the mere act of non-compliance as a misconduct.
4. Not only, I acknowledge the force of the submission, but I must also record that counsel for the respondent bank finds little to resist its force. He could not show me any evidence or material to substantiate that the petitioner's non-compliance with the guidelines had any nexus with the alleged fraud committed by Dhaneswar. Hence, I agree with counsel for the petitioner that the findings of the enquiry officer as to the partly proved aspect are perverse.
21. In the present case also, though the Disciplinary Authority framed four Articles of charges, the Inquiry Officer held in the Inquiry Report that the Charge No.3 is partly proved and the Disciplinary Authority held Charge Nos. 2 and 3 are partly proved. Hence, by applying the ratio of the judgment referred to above, we hold that the Articles 2 and 3 are not proved and the disciplinary authority itself dropped the charge No.4 and charge No.1 only remains and proved as per the inquiry officer and also the disciplinary authority.
22. With regard to Charge No.1 also, after giving careful consideration to the submissions of learned counsel for the applicant and after perusal of the material on record like the Inquiry Officer's report and the other connected documents, we are of the considered view that the Inquiry Officer ought not to have held charge No.1 as proved as there is no evidence or material on record. The Inquiry Officer has failed to consider the representations and the correspondence in between the applicant and the employer in respect of sanction of leave, the inquiry officer also failed to consider the facts in respect of the medical certificate submitted by the applicant duly issued by the C.G.H.S. Dispensary.
23. We have also seen the impugned proceedings dated 03.4.2013 and 5.07.2013 issued by the 2nd and 1st respondents by which penalty was imposed and confirmed. The disciplinary authority in a routine and mechanical way without applying the mind simply accepted the inquiry officer's report and findings and imposed the penalty without any independent assessment and discussion. The Appellate Authority also simply rejected the appeal vide order dated 05.07.2013 without considering the grounds taken by the applicant by confirming the disciplinary authorities decision.
24. After giving a careful consideration and submissions of the learned counsel for the applicant and after careful reading of the enquiry officer's report and impugned proceedings, we are of the considered view that the impugned proceedings dated 03.4.2013 and 05.07.2013 issued by the 2nd and 1st Respondents respectively are illegal, arbitrary and unconstitutional and against the principles of natural justice and hence they are legally not valid. The issue is answered accordingly.
25. For the foregoing reasons and discussions made above and in view of the facts and circumstances of the case, the impugned proceedings dated 03.4.2013 and 05.07.2013 issued by the 2nd and 1st Respondents respectively are quashed and set aside and applicant is entitled for all consequential benefits such as promotion etc. In the result the O.A. is allowed. There shall be no order as to costs.
(RANJANA CHOWDHARY) (B.VENKATESWARA RAO)
MEMBER (ADMN.) MEMBER (JUDL.)
avsa