Central Administrative Tribunal - Ernakulam
Sumathi Ravichandran vs D/O Post on 21 July, 2017
1 0A298&278of2017
Central Administrative Tribunal
Ernakulam Bench
0A1180/00298/2017
and
OA/1 80/00278/2017
215t day of July, 2017
Friday this the
C 0 RAM
Hon'ble MrU.Sarathchandran, Judicial Member
Hon'ble Mr.E.KBharat Bhushan, Administrative Member
0A1180/00298/2017
Smt Sumathi Ravichandran, aged 55 years
W/o R.Ravichandran
Postmaster General, Central Region, Kochi.
Residing at 11 B, Jalvayu Vihar
Panampilly Nagar
Cochin 682 036. Applicant
(By Advocate: Mr.Shafik MA.)
Versus
Union of India represented by
the Secretary
Department of Posts/Director General, Posts
Ministry of Communications
New Delhi -110 001
2. The Asst. Director General (Vig.I)
Department of Posts,
Ministry of Communications & IT
Dak Bhawan, Sansad Marg,
New Delhi-i 10001. Respondents
(By Advocate: Mr.N .Anilkumar, Sr.PCGC)
OA/i 80/00278/2017
Smt Sumathi Ravichandran, aged 55 years
W/o R.Ravichandran
Postmaster General, Central Region, Kochi.
Residing at 11 B, Jalvayn Vihar
Panampilly Nagar
Cochin-682 036. Applicant
(By Advocate: Mr.Shafik MA.)
• 2
Versus
Union of India represented by
the Secretary
Department of Posts/Director General, Posts
Ministry of Communications
New Delhi -110 001
2. The Director (Staff)
Personnel Division, Department of Posts,
Dak Bhawan, Sansad Marg,
New Delhi-i 10 001. Respondents
(By Advocate: Mr.N.Anilkumar, Sr.PCGC)
These two Original Applications having been taken up and heard together
on 17th July, 2017, the Tribunal delivered the following common order
July, 2017:
ORDER
By E.K.Bharat Bhushan, Administrative Member OA No.298/2017 is filed by Ms.Sumathi Ravichandran against charge sheet issued as per memo No.! 1-12/CBI/2010-Vig dated 15.3.2017 by second respondent proposing to initiate Rule 14 inquiry for violation of various provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. She seeks to get Annexure Al charge sheet quashed as illegal and arbitrary.
2. Ms.Sumathi Ravichandran has also filed OA No.278/2017 by which she seeks to get Annexure Al order, transferring her from Kerala Circle to West Bengal Circle, quashed.
3. As the issues in the two OAs are inter-connected and the cause of action one and the same, these two OAs are dealt with together and disposed of by this common order.
3 0A298&278of2017
4. The facts of the case are as follows:-
Ms.Sumathi Ravichandran, the applicant in the two OAs, is presently working as Postmaster General, Central Region, Kochi. She was on deputation to the Ministry of External Affairs and worked as Regional Passport Officer, Chennai during the period 2005-09. During 2009, three cases were booked against her by the CBI, Chennai Unit as RC 201A/2009, RC 67/A/2009 and RC 211A12009. The first case was charged for the reason that she had worked in league with certain individuals in order to obtain illegal gratification by giving undue favours to certain applicants for passports under the Tatkal Scheme. The second charge sheet filed by the CBI alleged that she had amassed assets disproportionate to her known sources of income. The third charge sheet was similar to the first one, alleging that she had worked in close league with certain individuals including her husband by which illegal gratification was demanded and accepted for fast tracking Tatkal applications for passports.
5. In the case of the first charge sheet, registered as RC 20/A/2009, the trial was completed and orders issued by Principal Sessions Judge for CBI Cases, Chennai on 3rd March 2017 wherein the applicant was acquitted of all charges. In the case of the second charge sheet, registered as RC 67/A/2009, the complainant i.e., the CBI, moved to close the FIR and their prayer was accepted by the Principal Sessions Judge for CBI Cases, Chennai as per orders dated 7th October, 2011. The third charge sheet, registered as RC 21/A/2009 is in the trial stage before the Court of Principal Sessions Judge for CBI Cases, Chennai.
6. At this point in time, the second respondent has issued the memo impugned here as Annexure Al. As per the Articles of Charges attached as Annexure Al, the applicant is alleged to have entered into a strategy with private 4 0A298&278of2017 persons including her own husband -- DtR.Ravichandran and 18 other individuals to issue Tatkal passports to some private individuals on monetary consideration. Article II alleges that she entertained 5 intermediaries including her own husband for the purpose of verification and issuance of passports under Tatkal Scheme. Article III alleges that she utilized the services of her PA, one Shri Murali over and above normal channels for processing of passport applications. Also she is alleged to have utilized the services of 5 individuals mentioned in Article II for verification and issuance of passports. By the impugned order, the applicant has been called upon to submit her written statement of defence failing which an inquiry will be proceeded with in the case.
7. The applicant alleges in the OA that the offences she is charged with pertain to 2009 and are the subject matter for the third case booked by the CBI. On being reinstated after her suspension period, she was posted as Director, PMU, Postal Directorate, New Delhi on 18.9.2009. Facing harassment at the hands of the respondents as they had kept her case under 'sealed cover' and refused promotion to her, she had approached the Principal Bench of this Tribunal by way of filing OA No.392 of 2010 and it was only through intervention of the Principal Bench, a review DPC was held and she was granted Senior Administrative Grade. Thereafter she joined as Director (Mails & BD) at Trivandrum on 25.4.2013. Thereupon she was again transferred to Kochi as Postmaster General, Central Region, Kochi by order dated 15.9.2015.
8. It is maintained in the OA that the impugned order has been issued by the respondents after more than 8 years from initiation of the CBI cases, which is the very same subject matter of the said charge memo. One of these cases had ended in acquittal as perjudgment at Annexure A3 dated 3.3.2017 and another case was closed at the instance of the investigation agency itseelf. The third is under trial 5 0A298&278of2017 and is in the final stage of proceeding. The present charge memo is not warranted. On receipt of the said charge memo, the applicant filed a detailed reply denying the charges and requested that the proceedings may be dropped.
9. As part of the OA,, the applicant has discussed the details of the cases charged by the CBI against her. She also cited a catena of judgments such as Meera Rawther Vs. State of Kerala; Union of India & Anr v Han Singli as well as the judgment of the Principal Sessions Judge in her own case, acquitting her. Reinforcing her arguments about the inappropriate tuning of the charge memo, she has referred to the judgment in Kusheshwar Dubey Vs. Bharat Coking Coal Ltd & Ors.,the decision of the Hon'ble Supreme Court in Capt. M Paul Anthony Vs. Bharat Goidmines Ltd & Another as well as the decision of the Apex Court in G.M Tank Vc. State of Gujarat and another. She further argues that guidelines of the Central Vigilance Commission laid down in Circular at Annexure A1O have all been breached in the instant case. Based on the above, she seeks quashing of the impugned order.
10. By way of reply, the respondents have described the background of the cases including the circumstances of the CBI action against the applicant. It is emphasized that the conduct of the officer was called into question when she was on deputation to another department. Subsequently the case required to be forwarded to CVC for examination. The CBI had investigated the matter thoroughly. On the advice of the CVC, major penalty was proposed against the applicant vide OM No.010IP&T/137-332210 dated 23.12.2016. Thus no inordinate delay can be claimed to have occurred in the case. Further it is stated that the applicant figures in a list of officers of the Department of Posts as having dubious integrity. The officer had been promoted to Senior Administrative Grade and, therefore, cannot accuse her superiors of harassment on this score. It is 6 0A298 & 278 of 2017 stated in the reply that the case is of a multi departmental nature involving another Ministiy and the premier investigating agency of the country and the respondent department's role is only of a formal nature.
11. OA No.278/2017 is filed by the same applicant against the transfer order issued by the 2nd respondent as per order No. 1-3/20 17-SPG dated 29.3.2017 posting her from Kochi to Kolkata, alleging that it has been issued on extraneous considerations. She has given a brief account of the cases filed against her before the CBI Court at Chennai and also the fact that only in one case of these three, the trial is pending whereas the other two have been concluded in her favour. She has also mentioned her efforts to obtain Senior Administrative Grade and the fact that she had obtained favourable orders from the Principal Bench of CAT. According to her, while she was waiting for a favourable conclusion in the remaining criminal case, she has been served with the transfer order posting her to Kolkata.
12. She alleges that this transfer has been made in order to oblige another officer who has been transferred to Kochi in her place and has not been on account of any administrative reasons. She has learned that the Vigilance Wing under the Postal Directorate has opined that she needed to be transferred from a sensitive post to a non-sensitive one although she is at a loss as to how this categorization has been done. The Transfer Policy at Annexure A3 specifies that the normal station tenure is 4 years which may be extended to 6 years in individual cases. Despite the fact that she has not even completed half of this period in Kochi, she has been served with marching orders. Clearly the impugned order is meant to harass her.
13. On behalf of the respondents, a reply statement has been filed denying her 7 0A298 & 278 of 2017 contentions. It is stated therein that the department had identified sensitive and non-sensitive posts as per letter of Vigilance Division No.4-6/2009-Vig., dated 7.10.2016 and it was found necessary to move her to a non-sensitive post in Kolkata, given her background. Although the Transfer Policy for IPS (Indian Postal Service) (Group-A officers) prescribes a normal tenure of 4 years, it is also clearly mentioned in the Policy that deviation to the same can be effected with the approval of the Hon'ble Minister. The details of the CBI cases also find detailed mention in the reply statement.
14. In the additional reply statement, the respondents have cited the judgment in B. Ramarao vs. MI)., Food Corporation of India, 1993 (6) SLR 667 permitting such premature transfers. It is further stated that the department has served a show cause notice for imposition of major penalty proceedings on the applicant (impugned order in OA 298/2017). This being so, it is neither prudent nor advisable to keep her in Kochi. Respondents have also drawn the attention of the Tribunal to the judgment of Hon'ble Apex Court in State of Punjab vs. Joginder Singh Dhatt 1993 AIR SCW 3167 wherein the Court had expressed its disapproval of judicial interference in the matter of transfers. In the rejoinder as well as in the additional rejoinder, the contentions of the respondents have been strongly countered.
15. Mr. Shafik M.A., the learned counsel for the applicant as well as Mr. N.Anilkumar, Sr.PCGC for the respondents were heard and all pleadings, oral and documentary, examined. In OA 278/2017, an interim order was issued on 30.3.2017 staying the operation of Annexure Al order dated 29.3.2017. This has been continued from time to time.
16. The applicant has been proceeded against under criminal law on the basis of an investigation report of the CBI. As pointed out, three separate cases were • 8 charged in the designated Court at Chennai. Out of these, one has ended in the acquittal of the applican1, while in the second, the investigating agency chose to withdraw the charges. In the remaining case, it is reported that the trial is in its final stage. It is at this point that the respondents have chosen to initiate proceedings against the applicant as per Annexure Al in OA No. 298/2017. Mr. Anilkumar, Sr. PCGC representing the respondents points out that the charges involved are of a grave nature and if proved, would reveal complete lack of integrity on the part of the charged official. Even in the first case, the applicant had only been discharged due to lack of evidence and it was not an honourable acquittal. There is a catena of judgments to the effect that there is no bar to initiate departmental proceedings when criminal proceedings on the very same issue is in progress. In so far the delay in initiating departmental action is concerned, it is pointed out that the respondent-department is only a secondary agency to the reported incidents and they employed inputs from CBI, CVC and MEA before initiating the action. From this perspective, the delay was unintentional and unavoidable. It is clear from the service record of the applicant that she had a chequered past. In so far as the transfer is concerned, (dealt in OA 278/2017), Mr. Anilkumar argued that this was necessitated because of the intervention of the Vigilance Wing of the Postal Directorate. As a person against whom action for imposition of a major penalty is in progress, it was necessary to shift her from a sensitive post she is currently holding. It was due to this fact that she had to be transferred.
17. Mr. Shafik, the learned counsel for the applicant, strongly argued that both these actions namely, initiation of disciplinary proceedings as well as her premature transfer, are testimony to unfair treatment and harassment the applicant has been facing at the hands of the respondents. Two of the cases S 9 0A298 & 278 of 2017 charged by the CBI have been settled favourably for the applicant. The third one is in progress and in the final stage. It is at this point of time, respondent No.2 has chosen to serve the charge sheet on the officer and also transfer her out of the present station prematurely. The learned counsel draws the attention of the Tribunal to the fact that the allegation or charges raised against the applicant in the case filed by the CBI in which she has been acquitted is more or less the same as the one contained in the Articles of Charges. He particularly invites our attention to Annexure A7 in OA 298/2017, which is a comparative chart showing the charges and the documents relied upon in the departmental proceedings as well as in the criminal case. These reveal that they are of of an identical nature. He goes on to point out that the transfer is only meant to harass the applicant.
18. It is stated on behalf of the respondents that the transfer is due to administrative reasons. However, the order of transfer at Annexure Al in OA 278/2017 mentions that the officer posted to Kochi is being transferred at her own cost, which is clearly at her own request. When there is a policy, it can be breached only in rare and exceptional cases with adequate justification but such justification is conspicuous by its absence.
19. While examining the prayer in OA 298/2017, it is necessary to reiterate that this Tribunal does not wish to place itself in the role of a disciplinaiy authority or to interfere with the proceedings or to comment on the necessity or otherwise for initiation of proceedings. We are required to step in only if, after completion of the same, any procedural infirmity has occurred or the punishment ordered is disproportionate to the charges proved. In this case, the proceedings under the departmental regulations are only at a preliminary stage. Hence, judicial propriety requires that we do not comment either on the merits or demerits of either side. The applicant will get an opportunity to defend herself 10 0A298 & 278 of 2017 satisfactorily when the proceedings continue. However, the fact that the very same charges are subject matter of criminal proceedings has also to be taken into account. In our view, the most significant factor would be whether proceedings in one would adversely impact the reasoning and conclusion in the other. Hon'ble Supreme Court in CapL M PaulAnthony, reported in 1999 3 SCC 376 has laid down the law on the question of simultaneity of proceedings. The following quote may be pertinent:
"Since the basis of action in both the cases, namely, the departmental proceedings and the criminal case, was the raid conducted by the Superintendent ofFolice at the residence of the appellant from where a recoveiy was also allegedly made, the departmental proceedings were liable to be stayed as the facts and the evidence in both the proceedings were common. In these circumstances, the appellant, it is contended, was justified in requesting the respondents to stay the departmental proceedings and on the reftsal of the respondents to stay the proceedings, the appellant was justified in not participating in those proceedings as his defence was likely to be prejudiced."
20. In yet another decision of the Apex Court in G.M Tank Vs. Stale of Gujarat 2006 (3) KLT 514 (SC) - (2006) SCC (L&S) 1121, it has been held that when the facts and evidences in departmental and criminal proceedings are identical and witnesses the same, a contrary recording of the finding of departmental proceedings would be unfair and oppressive. In other words, the defence which the applicant would be required to adduce before the disciplinary authority in the event departmental proceedings are to continue, would prejudice her chances in criminal proceedings, simultaneously in progress and vice versa. Natural justice would then entail that departmental proceedings may wait until criminal proceedings are concluded. The respondents have been in no hurry to institute departmental action, having waited for 8 years and it would not be greatly to their disadvantage if they wait for a little longer for the conclusion of the criminal proceedings, which are reported to be in its final stage. Thus the ) S 11 0A298&278of2017 prayer in OA 298/2017 is partly allowed. It is ordered that the departmental proceedings as evidenced in the charge memo at Annexure Al will remain suspended till the proceedings before the designated CBI Judge are concluded in RC 21/A12009.
21. In so far as the relief sought in OA 278/2017 is concerned, despite protestations on the part of the respondents, they have failed in presenting any valid justification for transferring the applicant prematurely. Administrative reasons cannot be a veil for arbitrariness. It is clear that the order was brought out for the purpose of accommodating another officer. There is no record of any misdoing by the applicant at her present station. There is no evidence brought before us on the parameters considered while designating sensitive and non- sensitive posts. This kind of opaque criteria cannot be used to harass or pamper individual incumbents. In the event the applicant is to be transferred in exception to the extqnt Transfer Policy, it may be done only after a proper case is made out in justification of the transfer and not otherwise. On a careful consideration of various factors, this Tribunal is of the view that the applicant has merit on her side. Hence Annexure Al in OA 278/2017 is quashed. Both the Original applications are disposed of accordingly. No order as to costs.
(E.K.Bharat Bhushan) (U. Sarathehandran)
Administrative Member Judicial Member
aa.
12 0A298 & 278 of 2017
Aiuiexures referred to by the applicant in 0A1180/00298/2017 Annexure Al: True copy of the memorandum No.11-12/CBI/2010.-Vig dated 15.3.2017 issued by the respondent.
AimexureA2: True copy of the order dated 7.10.2010 passed in CrLM.P.No.6196/2011 in R.C.No.67/A/2009 of the Principal Sessions Judge, Chennai. Aimexure A3: True copy of the judgment dated 3.3.2017 in CC No.37/2011 of the Principal Sessions Judge for CBI Cases, Ixth Add!. City Civil Court, Chennai. Annexure A4: True copy of the charge sheet framed by the Principal Sessions Judge for CBI cases Chennai in C.C.No.29/2011 in R.C.No.2 1/A/2009. Annexuie A5: True copy of the order dated 5.4.2011 of the Principal Bench of this Tribunal in OANo.392/2010.
Annexure A6: True copy of the representation dated 27.3.20 17 submitted by the applicant Annexure A7: True copy of the Tabular Statement prepared by the applicant regarding the charges.
Aimexure A8: True copy of the order No. 1-3/2017-SPG dated 29.3.2017 issued by the Director (Staff).
Annexure A9: True copy of the Tabulated form of the APAR of the applicant from 2009-2016.
Annexure A1O: True copy of the O.M.No.000/VGL/18 dated 23'' May 2000 issued by the CVC.
Aimexures with reply statement:
Annexure 111(a) True copy of the order No. V.Vig.II/843/03/09 dated 5.5.2009. Annexure Rl(b) True copy of the order No.VVig.II/843/3/09 dated 20. 8.2009. Annexure Rl(c): True copy of the order No.V.IV/575/01/2005 dated 20.8.2009. Annexure Rl(d): True copy of the letter dated 22.11.2010. Annexure Rl(e): True copy of the sanction dated 28.3 .2011. Annexure Rl(f): True copy of the letter dated 13.4.2017. Annexure Rl(g) true copy of the OM dated 23.12.20 16.
Annexure 111(h) True copy of the DoPT OM dated 14.9.1992. Annexure Rl(i) True copy of the DOPT OM No.110 12/6/2008-Estt(A) dated 7.7.2008.
Annexures with additional rejoinder:
Annexure All: True copy of the order No.V.Vig.111843/3/09 dated 20.8.2009 of the Joint Secretaiy (CPV) & CPO.
Annexure Al2: True copy of the order No. 1-2/2009-SPG dated 10.6.2009 issued by the 1 respondent.
Annexure A13: True copy of the OM No.24-3-2009-EO (SM II) dated 13.4.2009 of Secretariat of the Appointment Committee of the Cabinet, Department of Personnel & Training, New Delhi.
Annexures referred to by the applicant in 0A1180100278/2017 Annexure Al: True copy of the order No.1-3/2017-SPG dated 29.3.2017 issued by the 2'' respondent.
Annexure A2: True copy of the order No. 1-3/20 15-SPG dated 15.9.2015 issued by the ADG(SGP) of the 1 respondent.
Annexure A3: True copy of the OM No.4-9/2011-SPG dated 4.4.20 11. Annexure A4: True copy of the order dated 5.4.2011 of the Principal Bench of this Tribunal in OANo.392/2010.
Annexure A5: True copy of the representation datd 27.3.20 17 submitted by the applicant.
13 0A298 & 278 of 2017 Annexures with Rejoinder Annexure A6: True copy of the order dated 7.10.2010 in Cr1.M. P. No.6196/2011 in RC 67/A/2009 of Principal Special Judge for CBI Cases Chennai.
Annexure A7: True copy of the judgment dated 3.3.2017 in CC No.37/2011 of the Principal Special Judge for CBI cases IXth Add!. City Civil Court, Chennai. Annexure A8(a) True copy of the circular No.17.4.2008 dated 1.5.2008 issued by the Central Vigilance Commission.
Aimexure A8(b) True copy of the circular No.03/09/13 dated 11.9.20 13 issued by the CVC Annexure A9(a) True copy of the order No.4-7/2009-Vigdated 13.9.20 10 isseud by the Department of Posts.
Annexure A9(b) True copy of the order No.4-7/2009-Vig dated 7.10.2016 issued by the Department of Posts.
Aimexure A1O: True copy of the letter dated 22.11.2010 of the Head of Branch SPE.CBI:ACB Channai.
Annexure All: True copy of the acknowledgment card of the Department of Posts. Annexure Al2: True copy of the releant extract of he OM No. 130/1/66-AVD dated 5.5.1966 of the Ministiy of Home Affairs Annexures with Additional Rejoinder Aimexure A13. True copy of the letter No.43-58/20 12-PE-il dated 28.11.2013 issued by the Postal Directorate.
Aimexure A14: True copy of the letter No.33-1/2012-PE.11 dated 27;7.2017 issued by the Postal Directorate.