Central Administrative Tribunal - Delhi
Dr. V.N.Pandey vs Union Of India Through on 5 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No. 1482/2009 New Delhi this the 5th day of July, 2011 Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Dr. V.N.Pandey, Director, Central Council for Research in Ayurveda and Siddha, R/o A-50, South Extension Part-1, New Delhi-110049 Applicant (Through Shri K.K.Rai, Senior Advocate with Shri Manish Mohan and Shri K. N. Sinha, Advocates) VERSUS 1. Union of India through Secretary, Department of Indian System of Medicine and Homeopathy, Ministry of Health and Family Welfare, Red Cross Building, Red Cross Road, New Delhi-110001 2. The Governing Body of the Central Council for Research in Ayurveda and Siddha Through its President, Union Minister for Health and Family Welfare, Vice-President, Governing Body of the Central Council No. 61-65 Institutional Area, Opposite D Block, Jankapuri, New Delhi 110058. 3. Mr. Saleem Iqbal Shervani Honble Minister of State for Health and Family Welfare, Vice-President, Governing Body of the Central Council for Research in Ayurveda and Siddha, Nirman Bhawan, New Delhi-110011. Respondents (Through Shri V.K.Rao, Senior Advocate with Ms. Nidhi Bisaria) O R D E R Mr.L.K.Joshi, Vice Chairman (A):
The Applicant had filed a Writ Petition (Civil) No. 4337/1996 before the Delhi High Court, which was transferred to this Tribunal by order dated 6th October 2009 on the Tribunal being vested with the jurisdiction over the service matters of the Respondent, Central Council for Research in Ayurveda and Siddha (CCRAS). It has been renumbered as TA 1482/2009.
2. The Applicant is assailing the order dated 21st October 1996 passed by the third Respondent, Minister of State for Health and Family Welfare, by which he has been inflicted the punishment of compulsory retirement from service, on the ground that it is without jurisdiction, without the authority of law, arbitrary, illegal, passed in colourable exercise of power and without any application of mind. The prayer of the Applicant is to quash and set aside the above order of punishment.
3. The facts giving rise to the present OA have been mentioned in relevant details hereafter. The Applicant applied for the post of Director of CCRAS pursuant to an advertisement issued by the second Respondent, CCRAS, in the year 1981. He was selected for the said post, which he joined on 31.05.1982. A Memorandum of Charge dated 24.04.1992, containing 61 Articles of Charge, was served on him by the Respondents. The said Memorandum was signed by the Minister of State for Health and Family Welfare, Smt. D.K. Tara Devi Siddhartha. Shri S.C. Gupta, Commissioner for Departmental Enquiries in the Central Vigilance Commission (CVC) was appointed as the inquiry authority by order dated 31.03.1993. In the inquiry report dated 24.07.1996, out of the 61 charges the inquiry authority held eight charges to have been proved partly, six charges to be fully proved and 47 charges as not proved. The Central Vigilance Commission (CVC) forwarded the report of the inquiry authority to the Ministry of Health and Family Welfare on 24.07.1996, with the advice to impose major penalty on the Applicant. The Applicant submitted his detailed representation against the report of the inquiry authority on 29.08.1996. An urgent meeting of the Governing Body of the CCRAS was convened on 15th October 1996 to consider the case of the Applicant. The Governing Body authorised the third Respondent, Minister of State for Health and Family Welfare, to take a decision on the matter. The third Respondent imposed the punishment of compulsory retirement on the Applicant by order dated 21.10.1996, which has been impugned in this TA.
4. The learned senior counsel for the Applicant has raised manifold contentions to challenge the order of compulsory retirement.
5. It was submitted that the Memorandum of Charge for major penalty, issued on 24.04.1992, was illegally signed by the Minister of State for Health and Family Welfare. The CCRAS is an autonomous body constituted by the first Respondent and is a registered society registered under the Societies Registration Act, 1960. The management of the affairs of the CCRAS is entrusted to a Governing Body, comprising the following:
1.President Union Minister of Health and Family Welfare
2. Vice-President Union Minister of State for Health and Family Welfare OFFICIAL MEMBERS
3. Secretary Indian System of Medicine and Health or his nominee
4. Joint Secretary In charge of Indian System of Medicine and Homeopathy (hereinafter called ISM & H) or his nominee, Ministry of Health and Family Welfare
5. Joint Secretary Financial Adviser, Ministry of Health and Family Welfare NON-OFFICIAL MEMBERS 6-11 Six experts in Ayurveda to be nominated by the President of the Council 12-14 Three Scientists to be nominated by the President of the Council 15-16 Two experts in Siddha to be nominated by the President of the Council.
Director, National Institute of Ayurveda, Jaipur
18. Director, National Institute of Siddha/Central Research Institute for Siddha The Director of the Central Council shall be the Member-Secretary of the Governing Body. Rule 2 of the Rules and Regulations of the CCRAS provides that:
"2. The Minister for Health and Family Welfare shall be the President."
Rule 3 ibid provides that:
"3. The Minister of State for Health and Family Welfare shall be the Vice-President."
Rule 19 ibid is extracted below:
"19. The first members of the Governing Body of the Central Council shall be those mentioned in clause 6 of the Memorandum of Association. They shall hold office until a new Governing Body is appointed according to these Rules. Subsequently the Governing Body shall consist of the following:
1. President Union Minister for Health and F.W.
2. Vice-President Union Minister for Health and F.W."
The learned senior counsel would contend that the Minister of State for Health and Family Welfare had no competence to issue the Memorandum of Charge against the Applicant. She was not the appointing authority of the Director of the CCRAS. Rule 4 ibid provides that:
"4. The Director of the Central Council who shall be appointed by the Governing Body with the prior approval of the Central Government, shall be the Member-Secretary of the Governing Body."
Further, only the Minister of Health and Family Welfare could issue the Memorandum of Charge in the light of the delegation provided in Rule 49 ibid :
"49. Nothing in these rules shall prevent the President from exercising any or all the powers of the Governing Body in case of emergencies for furtherance of the objects of the Central Council and the action taken by the President on such occasions shall be reported to the Governing Body subsequently for ratification."
It was emphatically contended that only the Minister for Health and Family Welfare could have issued the Memorandum of Charge under the delegated powers under Rule 49 ibid, quoted above, subject to the subsequent ratification by the Governing Body. The power could not have been delegated legally to the Minister of State, an authority subordinate to the Minister. It was submitted that on 24th April 1992 Shri M.L. Fotedar was the Cabinet Minister for Health and Family Welfare and as such he was the President of the Governing Body. Smt. Tara Devi Siddharth was the Minister of State for Health and Family Welfare and in that capacity she was the Vice-President of the CCRAS. Only Shri M.L. Fotedar was competent to issue the Memorandum of Charge on 24.04.1992 and that too was subject to the ratification by the Governing Body later on. It was submitted by the learned counsel that the Applicant had at the outset raised the question of the competence of the Minister of State to issue the Memorandum of Charge. The representation of the Applicant has been placed at Annex-V. However, the disciplinary authority did not apply itself to the issue raised by the Applicant. The learned senior counsel would seriously dispute the contention of the Respondents in the counter affidavit that the Minister of State was competent to take such action because of the distribution of work effected by order dated 05.07.1991 by the orders of the Minister, by which, inter alia, the work relating to the indigenous system of medicine and homeopathy was allocated to her. The said delegation has been reproduced below:
"1. All work relating to indigenous systems of medicine and homeopathy and ISH & H institutions/organisations (including the Presidentship/ Chairmanship of Governing Bodies of those institutions, where rules and regulations provide for Presidentship/ Chairmanship of Union Minister of Health."
It was contended that the administrative order issued by the Minister was dehors the Rules and Regulations. The source of power to delegate has to be located in the statute/bye-laws and nowhere else. Furthermore, even the above allocation of work, though illegal, does not speak of disciplinary matters. Such delegation would, in any case, not empower the Minister of State to act qua President in the disciplinary matters. It was argued that such delegation was bad in law in the absence of any statutory provision for the same. It was further contended that only authority to provide delegation by the Governing Body was contained in Rule 43 ibid, which has been extracted below:
"43. The Governing Body made by resolution delegate to the Director of the Central Council such of its powers for the conduct of business as the Governing Body may deem fit."
It was further pointed out that the CCS (CCA) Rules, 1965 were applicable to the employees of the CCRAS. As per the Annexure to the Bye-Laws, the President was competent only to impose minor penalty and major penalty to Group 'A' employees could be imposed only by the Governing Body. The relevant portion of the aforesaid Annexure has been reproduced below:
" A N N E X U R E ( BYE-LAW 46)
___________________________________________________
Authority empowered to impose
Penalties and the penalties which
may be imposed.
Particulars of the post Appellate authority
Minor Major Minor Major
Penalties penalties penalties penalties
(1) (2) (3) (4) (5)
_____________________________________________________
Group A (1) in the President Governing Governing for both
Council Body Body
It has further been contended that the Governing Body further compounded the confusion by delegating the power to impose penalty on the third Respondent, Minister of State for Health and Family Welfare. It was urged that the competent authority to pass the order of dismissal from service in case of the Director of CCRAS was the Governing Body. The authority did not even vest in the President, who could at the most pass the order of minor penalty. The Vice-President did not have any authority whatsoever to punish the officer of the grade of Director. The Annexure to Bye-Law 46 clearly states that major penalty could only be imposed by the Governing Body on Group `A officer of the CCRAS. The Governing Body could not have delegated its powers to either the President or Vice-President. Reliance has been placed on Marathawada University Vs. Shesrao Balwant Rao Chavan, (1989) 3 SCC 132. In this case the respondent, Deputy Registrar in the Marathawada University, was entrusted with the work of Controller of Examinations, when the incumbent of the post proceeded on leave. A controversy arose about payment of the bill of a printer, who had complained that the payment had been delayed by the respondent. The Executive Council of the University appointed a committee to examine the matter, which gave a clean chit to the respondent. The report was discussed in the Executive Council, which did not take any decision and entrusted the Vice-Chancellor to look into the matter. Purporting to act under the power given to him by the Executive Council, he directed departmental inquiry against the respondent. He appointed the inquiry officer and on receiving the report of the latter, after giving notice to the respondent, he passed an order dismissing the respondent from service. When the matter came up before the High Court in the Writ Petition, the High Court directed that the matter be placed before the Executive Council for taking an appropriate decision. As per this observation the matter came up before the Executive Council, which passed a resolution ratifying the decision taken by the Vice-Chancellor. However, when the matter came up before the High Court for final disposal, it examined the merits of the case. The High Court held that the action taken by the Vice-Chancellor was without authority of law. It further held that such action could not be rectified by the resolution of the Executive Council. It is in these circumstances that the appellant approached the Honourable Supreme Court. After examining the relevant rules, the Honourable Supreme Court held that:
20. Counsel for the appellant argued that the express power of the Vice-Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under Section 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice-Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of England (Vol. I, 4th end., para 32) summarises these principles as follows :
"32. Sub-delegation of powers.- In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind."
The Honourable Supreme Court also considered the effect of the subsequent ratification by the Executive Council and held that:
27. These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. The Supreme Court also considered with approval the observation of Lord Denning in Barnard V. National Dock Labour Board, which reads thus:
While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication. In Local Government Board v. Arlidge the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that. They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers to be responsible for one week at a time.
Next, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has already done. The effect of ratification is to make it equal to a prior command, but as a prior command, in the shape of delegation, would be useless, so also is a ratification.
6. It was argued that the charges which were partly proved or proved against the Applicant amounted at the most to administrative lapses and none of the findings involved any question of moral turpitude or failure to maintain integrity. The findings regarding the first charge have been reproduced below:
Shri Mal Singh, SW-3, who was supposed to have driven the vehicle from Delhi on this trip has specially denied that that any of the family members traveled on this trip. Shri M.R.Uniyal (SW. 4), Shri A.K. Khullar (SW. 5) and Shri Bachi Singh, Driver (SW.12), have also denied that any family members travelled on this trip with the CO and his associates. While issuing the charge-sheet to the CO, the Rest House in-charge of Badrinath and Kedarnath and the District Collector of Chamoli were cited as witnesses but these were not produced. In view of this, it cannot be held that the family members of the CO and his associates travelled with CO in official vehicle on this trip.
Although there is a mention of Badrinath in the log book at page No. 43 of Ex. S.258 but there are cuttings and overwritings in the log book, which make the entries unreliable. However, SW-3, who was the driver of the vehicle has especially stated that the CO travelled up to Badrinath and Kedarnath in that trip. In view of this, it is held that the CO might have travelled to Badrinath and Kedarnath (Gaurikund, the nearest motorable place to Kedarnath) in official vehicle. However, there is no evidence regarding the family members travelling in the vehicles. There is also evidence that there was sufficient official reasons for travelling to various places in this trip other than Badrinath and Kedarnath.
The charge is held as partly proved. The fifth charge against the Applicant was that three jeeps purchased for use in Tribal Research Centres at Tarikhet Unit, Imphal and Jagdalpur were used extensively in Delhi for one year and huge expenditure on their maintenance was incurred. The finding in this regard is as follows:
5. There is evidence that out of three jeeps purchased in March, 88, one was sent to CRI Delhi as per the COs directions and was sent to Tribal Research Centre, Imphal in April, 89 (Page 11 of Ex.S.259). This jeep was also utilized in the H.Q. The other jeep was kept at the H.Q. Office and was sent to Jagdalpur only in Feb.89 as per Ex.S-258. There is evidence about utilization of jeeps in Delhi to the extent of 9,597 Km and 13,694 Kms respectively as per Ex.S.258 and S.259 although these were meant for tribal research centre. If these jeeps were purchased for tribal research centres, these should have been sent there and not utilized in Delhi and therefore the action of the CO is not justified. The above evidence also shows that the jeeps were used extensively in Delhi. So this part of the charge is held as proved.
However, there is no evidence of huge expenditure on repairs of these jeeps and therefore this part of the charge is held as not proved.
Article 5 is held as partly proved. The ninth charge against the Applicant was that he by-passed the Senior Assistant Director (Ayurveda) in the distribution of work and the entire clinical research programme was being handled by the Statistical Assistant and one Lower Division Clerk under the supervision of the Applicant. This charge was held to be proved. The tenth charge against the Applicant, which has been held to be proved, is that he posted one Dr. S.N. Pandey, Research Assistant, as Assistant Research Officer (Ayurveda), on ad hoc basis at Jhansi, although he had been promoted on the understanding that he would be given out of turn promotion if he opted to join a Tribal Research Centre. The charge number 13 alleged that the Applicant acted in some cases as reporting, reviewing and accepting authorities in recording the Annual Confidential Reports of certain officers by by-passing the intermediate officers in order to give adverse remarks to those officers. The conclusion of the inquiry authority in this regard is as follows:
The CO was not competent to review the ACRs of the officers for the year 1985, when he did not supervise their work as Director. As such, the action of the CO was not justified and the charge to this extent is held as proved.
The PO has argued that the ACRs of the Research Officers Dr.M.R.Uniyal (Year 1987-Ex. S.218) and Dr. D.S. Jaykaran (year 1985 Ex.S.229) were written by the ADs but reviewed by the CO and not by the DD (Tech). No instruction or circular had been pointed out by the PO to establish as to who should be the reporting officer or reviewing and counter signing officer.
It is also alleged that the grading of Dr.P.C.Sharma was changed by the CO without recording any reason. It is seen from Ex.230 the overall performance was very good by the CO in the ACR for the calendar year 1983 and 1984. There are no signatures of the person who changed the grading in 1983 but it is clear that the grading was changed by the CO in 1983 as it bears the signatures. The comparison of 1983 and 1984 shows that grading of 1983 was also changed by the CO himself. The change of the grading without any reason in the ACR was not appropriate and therefore the action of the CO was not justified.
The CO in his brief has pointed out number of irregularities in respect of the ACRs of various officials which were written and reviewed by others. As the action of others are not subject-matter of this inquiry, no comments are being made regarding the correctness or otherwise of the actions of others.
In view of the above discussions, the charge under Article 13 is held as partly proved. The 14th charge against the Applicant related to the fact that one employee who had been promoted against the leave vacancy, was continued in the higher grade even after the return of the person in whose leave vacancy he had been appointed, by transferring him to another vacant post. The finding of the inquiry authority in this regard is as follows:
14. In the statement of imputation there was changes that action taken by the CO could not have been taken without the approval of Ministry, but no such rules have been pointed out.
However, Dr.S.K.Singh was promoted after following the procedure of having a Selection Committee and after considering their recommendation where the Committee placed Dr.Singh as No. 1. However, the promotion was only against leave vacancy and he was to revert back after Dr. P.R.Sharma joined back his post after return from Study leave. But Dr. S.K.Singh was not reverted contrary to his term of promotion and instead was transferred to Lucknow against the vacant post of ARO in RRI Lucknow.
This action was not justified and to this extent the charge is held as proved.
In view of above discussion, the charge under article 14 is held as partly proved. The 16th charge against the Applicant is that he postponed a seminar in order to be able to go abroad for another seminar, which has resulted in huge expenditure going waste. It has further been alleged that the selection of the participants in the seminar was based on the whims of the Applicant. The finding in this regard is as follows:
16.xxxxxxxxxx. The PO has not been able to produce any evidence regarding any amount spent on making arrangements for Lucknow conference. Similarly, no evidence has been pointed out to show if any officer reached Lucknow, the place of seminar. The Officers deputed for making arrangements etc. there were selected in view the exigency of work.
There is no evidence that huge amount was spent in making arrangement at Lucknow for the conference to be held in January, 89., however, it is seen that the CO got the permission from the Ministry of Health and F.W. on 19.12.88 to participate in an International seminar at Milan in Italy from 10.1.89 (Ex.S.3 page 16). The visit was to be in his private capacity as no expenditure was to be borne by the Ministry or the council but the CO could avail of the air travel and other expenses offered by the organizers of the International seminar. On the same date i.e. 19.12.88, the CO made a request to Kumari Saroj Khaparde, the then Union Minister of State for Health and F.W. to postpone the Lucknow Seminar to February, 89 although it was scheduled to be held from 9th to 10th Jan. 89 there is nothing in the file to justify the request for the postponement of the seminar although certain reasons were given to the Minister. There is no noting in the file to justify the issuance of such a letter to the Minister. From this, it is most probable that the postponement was sought only to accommodate the CO to attend the International Seminar abroad. It is seen from Ex. S.158 (1) that lot of expenditure was incurred for the cancellation of the tickets due to the postponement of the seminar to be held in January, 89.
Dr. Acharya from RRC Mandi, Dr. Singh RRC Itanagar, Dr. H.C. Pandey, ARO from RRC Itanagar, Dr. Bansal from Tribal Health Care and Research Project Chinchpara, Distt. Dhule, actually reached Lucknow and then only came to know about cancellation (page 8,9,10,11,14,15 and 16 of Ex. S.158 (i). It is also seen that in some cases the intimation was not sent in advance by way of telegram etc. The intimation was sent by way of ordinary letter issued on 27.12.88 as per page 39 of Ex.S. 158 (i).
So, it is held that the conference to be held in Jan 89 was got postponed by the CO only to accommodate his own trip abroad and sufficient care was not taken to intimate all the participants which led to some people coming to know of the postponement only after reaching Lucknow. Wasteful expenditure had to be incurred in cancellation of tickets by others who came to know of the postponement before leaving their head quarters.
So this part of the article of charge is held as proved.
It is further alleged that some Sr.Officers like Dr. K. Raghunathan and others were not invited to participate in the seminar which was finally held in July, 89. It is alleged that the selection was based on the whims of the CO, the PO has pointed out that Dr. Rahhunathan and Shri R.S. Yadava were not invited in the Seminar although they were the invitees for the Seminar to be held in January, 89.
The CO has not been able to explain as to what were the exigency of work for not selecting Sr. Officers to attend the seminar which was finally held in August, 89. Keeping in view the fact, that the seminar was being held to discuss the future strategy of development of Ayurveda, it was important that the Sr. Officers of the Council participated in the seminar but the CO excluded them for no plausible reason. So this part of the charge is also held as proved.
In view of this, Article 16 is held as proved. The charge number 22 has been held to be proved by the inquiry authority by making the following observations:
22. Dr.Tiwari was transferred from Varanasi in May 80 and was posted to Bhuwaneshwar because the office in Varanasi had been closed down with the order of the Council. It is seen from the comments made on Mr.Tiwaris representation page 66/c of Ex. S.16 Vol.III that he wanted to remain in Varanasi for personal reasons ( page 87-88/c Ex. S.156 (ii) and he got his case recommended from different persons of BHU Varanasi and thay by various means was able to remain there till Feb. 1981. The order of Shri S.K.Karthak in regularising his stay upto 30.9.81 itself may not be tenable because the unit had been closed with the express directions of the Council and when Dr. Udupa had no locus standi in relieving Dr. Tiwari from Varanasi. The representation of Dr. Tiwari was examined by various officers of the Council and his stand was not recommended by any of the official. Despite this the CO ordered that Dr. Tiwari may be treated on duty till he was relieved by Dr. Udupa. As Dr. Udupa had no lucus standi in retaining or relieving Dr. Tiwari after the unit in Varanasi had been closed and Dr. Udupa had no supervisory capacity over Dr. Tiwari, there was no justification in treating Dr. Tiwari as on duty from October, 80 to 3rd Feb 81, the Councils comments show that Dr. Tiwari wanted to remain in Varanasi and he was not only allowed to remain in Varanasi but he was also paid salary without doing any work and despite defying the orders of the Council.
In view of above, the charge under Art.22 is held as proved. The charge number 26 against the Applicant is that the Research Assistant (Chemistry) was promoted as Assistant Research Officer in the Publication Division against the post of Research Officer. The charge has been held to be proved thus:
26. It is seen from note sheet on page 9 and 10 of Ex. S.64 that it was proposed to consider Shri Jain and other willing candidates in different discipline for temporary adhoc promotion as ARO to look after the work of RO Publication till recruitment rules were changed to fill up this post by deputation. However, the CO made noting dt.12.7.86 wherein a committee was appointed to examine the adhoc promotion of Shri D.K. Jain only. It would have been more appropriate if the committee had considered the candidature of other willing candidates also alongwith the candidature of Shri D.K.Jain as the promotions and even adhoc promotion for temporary period are of great importance to a government servant. The charge number 40 relates to harassment of one Shri R.S. Yadav, Assistant Director, Documentation and Publication Division, by alleging that he was not allowed to function as Assistant Director and was made to work under the honorary Librarian. His telephone was removed and given to an L.D.C. He was not sanctioned advance from G.P.F. also. The charge has been held to be partly proved by observing that:
40. Although there is no financial loss to Shri Yadava, however the loss of prestige and power is an important factor in the morale of a government employee and effects the working of an organization. It was not proper to divest Shri Yadava from his administrative powers as contained in the order dt. 5.10.82 (page 55 of Ex.S.52). It was also not appropriate to divest Shri Yadava AD Incharge from Administrative responsibilities as per order dated 11.6.87 (page 183, Ex.S.52) order dt. 21.6.88 (page 232, Ex.S.52). It was also not appropriate to put him on under the supervision of a part-time Honorary Editor for the library work. The charge number 44 relates to undermining the position of one Dr. K. Raghunathan, Deputy Director (Technical), who was the second person in the hierarchy below the Applicant. The allegation is that he was completely isolated in the organisation, ignored for the meetings of senior officers and for participation in seminar, not given opportunity to officiate during the absence of the Applicant and that the direct telephone to his office was withdrawn. The inquiry authority has held that it was not appropriate for the Applicant to have excluded Dr. Raghunathan from conferences and seminar, writing the ACRs of the officers working under Dr. Raghunathan, not permitting Dr. Raghunathan to be a faculty member of Benaras Hindu University although it did not involve any financial implications, not sanctioning the leave of one Mrs. Hemrajani who was attached to the said Dr. Raghunathan and disconnecting the telephone of the same officer. The charge number 52, held to be partly proved, was that the Applicant allowed one Dr. Sachidanad to participate in a seminar on cancer in Varanasi, although the aforementioned person had not worked in the field of cancer and that the said person belonged to Varanasi. The inquiry authority has held that it was not proper to permit the said Dr. Sachidanad to participate in the seminar on cancer, the field in which he did not work, but has also held that the said person did not belong to Varanasi. The charge number 54 alleged that Dr. V.N.K. Ramdas, Assistant Director (Ayurveda) handling Drug Standardisation Program was not taken into confidence while organising a seminar on the subject and the Applicant overloaded the above mentioned officer with a lot of work deliberately to make him inefficient. The inquiry authority held thus:
54. No evidence have been produced to show that Dr Ramdas ever became inefficient. Attention in this connection is invited to Article 27 of charge-sheet where it is stated that 4 Assistant Directors Hqrs. Office did not have enough work when Dr. Prem Kishore was brought to Delhi from Bhuwaneshwar. Dr.V.K.N.Ramdas was among one of the four Asstt. Director ( p.56-57/n, Ex.S.19 part II) who is now alleged to have been overloaded with work. The allegation in Article 27 and 54 are contradictory.
It is seen from Ex.S.94, that the proposal for organizing Silver Jubilee Celebration of the Institute in Madras were mooted in January, 87. Dr. Ramdas handled the file in the initial period from 5.1.87 to 19.2.87 when the agenda note was prepared for obtaining the approval of the Governing Body for organizing the Silver Jubilee function. There is no evidence that Dr. Ramdas was associated with the organization of Silver Jubilee function of this institute from Feb.87 onwards and the functions were held finally in Nov.87. The CO has not controverted the argument of the PO that Dr. Ramdas was handling Drug Standardization Programme but was not associated in a Seminar held on the same subject. In view of this, the action of the CO cannot be held as justified.
In view of this, the charge is held as proved. The charge number 56 alleged that Shri K.K. Subramaniam, Assistant Director (Administration) was ignored and the person junior to him used to carry the files directly to the Applicant. He was also not considered for promotion although the post was upgraded and the recruitment rules were approved by the Governing Body. The first part of the charge about keeping the said Shri Subramaniam ignored in the matters of administration was not held to be proved. The inquiry authority has, however, held the charge to be partly proved by observing that the Applicant kept on dragging his feet in so far as the matter regarding promotion of the said Shri Subramaniam was concerned.
7. The learned senior counsel would contend on the basis of above discussion regarding the charges, which have been proved or partly proved that at the most these could be called administrative lapses and did not merit imposition of the penalty of compulsory retirement. The Applicant has reproduced Government of India's instructions under Rule 14 of the CCS (CCA) Rules, 1965 regarding the cases, which merit imposition of major penalty. The instructions have been reproduced below:
The types of cases involving moral turpitude and failure to maintain integrity are indicated in the Annexure which is reproduced below:
ANNEXURE Type of cases which may merit action for imposing one of the major penalties.
1. Cases in which there is a reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forth-coming is not sufficient for prosecution in a court of law, e.g.,
(a) Possession of disproportionate assets;
(b) obtaining or attempting to obtain illegal gratification;
(c ) misappropriation of Government property, money or stores;
(d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate.
2. Falsification of Government records.
3. Gross irregularity or negligence in the discharge of official duties with a dishonest motive.
4. Misuse of official position or power for personal gain.
5. Disclosure of secret or confidential information even though it does not fall strictly within the scope of the official Secrets Act.
6. False claims on the Government- like T.A. claims reimbursement claims, etc. Relying on the judgement of the Honourable Supreme Court in Bhagat Ram Vs. State of Himachal Pradesh and others, (1983) 2 SCC 442, the learned counsel would contend that dismissal on trivial charges, which resulted in no loss to the Government would be considered to be disproportionate and too harsh. In this case the appellant was a Forest Guard, who was accused of not being careful in allowing the felling of trees, which could not be properly hammer-marked. He was, inter alia, charged for being a person of doubtful integrity. It was noted that the person who felled the trees had deposited the amount by paying compensation for the trees. It is in these circumstances the Honourable Supreme Court held that dismissing a low paid class IV employee was disproportionate to the charges, in the facts and circumstances of that case.
8. It was further submitted that the relevant documents asked for by the Applicant was not supplied to him in spite of the fact that the inquiry authority had allowed the supply of those documents. The order of the inquiry authority to this effect has been placed at Annex- VI b. However, the Respondent did not supply these documents by noting that the files were not readily available (Annex- VII). The Applicant has pleaded in paragraph 5 (V) of the TA that he has thus been deprived of sufficient and reasonable opportunity to defend himself.
9. It has also been contended that one Shri S.T. Gujjar, who appeared as a witness against the Applicant in the departmental enquiry, also participated in the meeting of the Governing Body. It was argued that it was in clear violation of the principles of natural justice as the same person cannot be a witness as well as a judge. Reliance has been placed on Institute of Chartered Accountants of India Vs. L.K. Ratna, (1986) 4 SCC 537 and Mohd. Yunus Khan Vs. State of UP, (2010) 10 SCC 539. In Institute of Chartered Accountants of India (supra) the issue was as follows:
22.The question is whether the respective findings of the Council holding the three members guilty of misconduct can be said to be vitiated by bias because the members of the Disciplinary Committee participated in those proceedings. As has been pointed out, Section 17 of the Act provides for a Disciplinary Committee, consisting of the President and the Vice President ex officio of the Council, who will be the Chairman and Vice-Chairman respectively of the Disciplinary Committee, and three other members of the Council, two of them being elected by the Council to the Committee, and the third being nominated by the Central Government from amongst the persons nominated to the Council by the Central Government. Therefore, all the five members of the Disciplinary Committee are drawn from the Council. It was then held in paragraph 29 of the judgement that:
29. Accordingly, we concur with the High Court that the finding of the Council holding the respondents Ratna, Behl and Bhoopatkar guilty of misconduct is vitiated by the participation of the members of the Disciplinary Committee. In Mohd. Yunus Khan (supra) it was held that it was impermissible that an authority being a witness in a disciplinary inquiry could impose punishment. The Honourable Supreme Court observed in paragraph 28 as follows:
28. In Arjun Chaubey v. Union of India a Constitution Bench of this Court dealt with an identical case wherein an employee serving in the Northern Railway had been dismissed by the Deputy Chief Commercial Superintendent on a charge of misconduct which concerned himself, after considering by himself the explanation given by the employee against the charge and after thinking that the employee was not fit to be retained in service. It was also considered whether in such a case, the Court should deny the relief to the employee, even if the Court comes to the conclusion that the order of punishment stood vitiated on the ground that the employee had been guilty of habitual acts of indiscipline/misconduct. This Court held that the order of dismissal passed against the employee stood vitiated as it was in utter disregard of the principles of natural justice. The main thrust of the charges against the employee related to his conduct qua the disciplinary authority itself, therefore, it was not open to the disciplinary authority to sit in judgment over the explanation furnished by the employee and decide against the delinquent. No person could be a judge in his own cause and no witness could certify that his own testimony was true. Anyone who had a personal stake in an enquiry must have kept himself aloof from the enquiry. The Court further held that in such a case it could not be considered that the employee did not deserve any relief from the Court since he was habitually guilty of acts subversive of discipline. The illegality from which the order of dismissal passed by the authority concerned suffered was of a character so grave and fundamental that the alleged habitual misbehaviour of the delinquent employee could not cure or condone it.
10. It has further been submitted that the disciplinary authority did not consider any of the points raised by the Applicant in his detailed representation against the report of inquiry authority. It was argued that this betrayed total non-application of mind. The impugned order contained a reference to the representation of the Applicant, yet none of the issues raised by him have been considered. Reliance has been placed on G. Vallikumari Vs. Andhra Education Society and others, (2010) 2 SCC 497 to buttress the argument that the order of the disciplinary authority has to be a speaking order. It was held thus in the aforementioned case by the Honourable Supreme Court:
19. In his order, the Chairman of the Managing Committee did refer to the allegations levelled against the appellant and representation submitted by her in the light of the findings recorded by the enquiry officer, but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120 (1) (d) (iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned.
11. The learned senior counsel for the Respondents, on the other hand, would rely on the distribution of the work between the Minister and the Minister of State, wherein the work of the CCRAS has been entrusted to the latter, to justify the issuance of the charge sheet by the Minister of State. The punishment order passed by the Minister of State has also been justified on the same ground. Rule 13 of the CCS (CCA) Rules, 1965 has been quoted to justify the action initiated by the Minister of State as also the punishment inflicted by the same authority. The said Rule has been extracted below:
13. (1) The President or any other authority empowered by him by general or special order may-
(a) institute disciplinary proceedings against any Government servant;
(b) direct a Disciplinary Authority to institute disciplinary proceedings against any Government servant on whom that Disciplinary Authority is competent to impose under these rules any of the penalties specified in Rule 11.
(2) A Disciplinary Authority competent under these rules to impose any of the penalties specified in Clauses (i) to (iv) of Rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in Clauses (v) to (ix) of Rule 11 notwithstanding that such Disciplinary Authority is not competent under these rules to impose any of the latter penalties. The other argument advanced by the learned counsel for the Respondents is that the Applicant rushed to the High Court without availing all the available opportunities to him inasmuch as no appeal against the order of punishment was preferred by him. The learned senior counsel would also contend that the punishment meted out to the Applicant was proportionate to the charges proved against him. No other argument was advanced on behalf of the Respondents.
12. We have given our utmost consideration to the rival contentions and have carefully gone through the record placed before us.
13. Article 311 (1) reads thus:
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Rule 4 provides that the appointing authority of the Director would be the Governing Body with the prior approval of the Central Government. The Annexure to the Bye-Law, which has been adverted to above, provides that major penalty on Group A officers of the CCRAS can be imposed only by the Governing Body. There is no provision in the Rules and Regulations of CCRAS for delegation of disciplinary powers by the Governing Body. The only delegation provided in the said Rules and Regulations is under Rule 43, which provides that the Governing Body may delegate powers to the Director for the conduct of business. The delegation of work made by the Minister by the administrative order, quoted above, has not been made under the Rules and Regulations of the CCRAS. This delegation, therefore, would not vest the Minister of State to exercise the powers of the President, that is, the Minister, to issue the Memorandum of Charge. Even the Minister could do so only in urgent circumstances subject to the later ratification by the Governing Body. There has been no ratification of the Memorandum of Charge by the Governing Body. In any case the Memorandum of Charge issued by the Minister of State was beyond her competence and could not have been rectified by the Governing Body as held by the Honourable Supreme Court in Marathawada University case (supra). Similarly, the Governing Body had no competence whatsoever to delegate its power of punishment to the Minister of State, because, as we have seen above, there is no such provision for such delegation by the Governing Body. Therefore, in our considered opinion the action of the Minister of State in issuing the Memorandum of Charge and passing the order of punishment is patently illegal and cannot be sustained. There is no force in the argument of the Respondents that the delegation of powers by the Minister justify the action of the Minister of State. The advertence to Rule 13 of the CCS (CCA) Rules, 1965 has no relevance in the facts of this case. It has no application whatsoever. If the appointing authority is the President of India, the President of India has to exercise the powers of disciplinary authority and cannot delegate it. The Rule 13 only states that the President may direct a disciplinary authority to institute disciplinary proceedings against a government servant. The reference in Rule 13 (1) to "any other authority" is to the disciplinary authority in a certain case. Its import is that the President, if he is the disciplinary authority, or in case he is not the disciplinary authority, the relevant disciplinary authority in that case, would be competent to order initiation of disciplinary proceedings. It does not say that the President can delegate the powers of disciplinary authority on any person. We also agree with the contention that participation of Shri S.T. Gujjar in the meeting of the Governing Body, after being a witness in the disciplinary inquiry against the Applicant, would vitiate the proceedings of the Governing Body, as held by the Honourable Supreme Court in the case of Institute of Chartered Accountants of India. We have perused the order of the disciplinary authority and find that it is completely bald and non- speaking. The only reason given by the disciplinary authority for imposing punishment on the Applicant has been stated in paragraph 3 of the order of punishment, which has been extracted below:
3. AND WHEREAS on careful consideration of the report of an independent agency viz. Commissioner for Departmental Inquiries and also the submission of the Charged Officer and the views of the Governing Body of the Council which met on 15.10.96 and expressed their view in the matter and decided unanimously to authorize the undersigned to take a decision, and other facts and circumstances, the undersigned does not find any substance in disagreeing with the Inquiry Officer. Improper exercise of administrative power has been proved in 6 charges and has been partially proved in 8 charges. The undersigned, therefore, orders imposition of Major Penalty on the Charged Officer. This is far from satisfactory. The disciplinary authority has to pass a speaking order giving cogent reasons for his decision especially when the employee has been dismissed from service. It would seem that the attitude of the disciplinary authority has been nonchalant and lacking in application of mind. We have gone into the charges against the Applicant threadbare to determine whether the punishment meted out to him is disproportionate to the charges levelled against him. It is difficult to escape the conclusion that on careful perusal of the charges and the findings of the inquiry authority, it could be established that the misdemeanour of the Applicant was so serious as to merit the drastic punishment of compulsory retirement. The disciplinary authority has, as mentioned above, not gone into the aspect of the gravity of charges and has passed the order of dismissal from service without assigning any reason for the same. In our considered opinion the punishment would seem to be very harsh compared to the charges levelled against the Applicant and proved and partly proved in the inquiry.
14. We find that the disciplinary inquiry suffers from so many irregularities and illegalities that the order of the disciplinary authority cannot be sustained. There is no force in the argument of the Respondents that the Applicant has not availed the remedy of appeal, because the inquiry would seem to be ab initio void inasmuch as it has been initiated by the incompetent authority and, therefore, could be challenged at any stage of the proceedings. Almost 19 years have elapsed since the Memorandum of Charge was issued to the Applicant. There would be no point after a lapse of nearly two decades to direct the Respondents to hold a fresh proceeding, especially considering the nature of the charges against the Applicant.
15. In the light of the above discussion the TA is allowed and the impugned order of punishment compulsorily retiring the applicant from service is quashed and set aside. The Applicant would be reinstated in service, if he has not attained the age of superannuation, and would be entitled to all the consequential benefits which may accrue to him as a result of the above directions, that is, increments in the various grades, which he would have occupied had he remained in service and promotion to which he would have been eligible. If he has retired his pension would be re-calculated in accordance with the increments given to him and promotions, if any. We make it clear, however, that he would not be eligible for back wages because he has not performed any work during this period. However, since the applicant has suffered great injustice at the hands of the Respondents, he would be entitled to costs of litigation, which we compute to be Rs. 50,000/-. The above directions shall be complied with by the Respondents within a period of four months from the receipt of a certified copy of this order.
( L.K.Joshi ) (V.K.Bali ) Vice Chairman (A) Chairman sk P.S.
This judgment has been authored by my learned brother Shri L.K.Joshi, Vice-Chairman (A). I have gone through the same and am in total agreement therewith. Brother Joshi has recently undergone a major surgery and is on leave up to end of July, 2011. I am given to understand that he shall be discharged from hospital within a couple of days. This judgment is being pronounced under my signatures, as awaiting brother Joshi would delay finalization of the case. Principal Registrar would depute an officer to obtain signatures of brother Joshi as early as possible when he is discharged from hospital. Meanwhile, if any party may apply for copy of the judgment and there be urgency to obtain the judgment, the same be supplied even without signatures of brother Joshi.
( V.K. Bali ) Chairman 05.07.2011