Central Administrative Tribunal - Delhi
Smt. Raman Munjal W/O P. P. Munjal vs Union Of India Through on 13 January, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.834/2008 This the 13th day of January, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. VEENA CHHOTRAY (A) Smt. Raman Munjal W/O P. P. Munjal, Retd. Superintendent Grade-I (DASS), G.B.S.S., D Block, Janakpuri. New Delhi, and R/O C-4/E-30, Pocket-8, Janakpuri, New Delhi-110058. Applicant ( By Shri G. D. Bhandari, Advocate ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi. 2. Chief Secretary, Government of NCT of Delhi, Delhi Government Secretariat, Players Building, IP Estate, New Delhi-110003. 3. Secretary, U.P.S.C., Dholpur House, Shahjahan Road, New Delhi. 4. Additional Secretary, Directorate of Vigilance, Government of NCT of Delhi, Level-4, C Wing, Delhi Secretariat, New Delhi-110002. Respondents ( By Shri Ajesh Luthra for Respondents 2 & 4, and Shri B. K. Berera for Respondents 1 & 3, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Smt. Raman Munjal, a retired Grade-I (DASS) official, applicant herein, while working as STI in ward 81, is said to have conducted survey of M/s Alpha International. On 21.9.2000, she received a memorandum that after conducting the survey, she submitted normal survey report on 30.6.1997. It was alleged in the memorandum aforesaid that by that time the dealer had submitted ST-2 account of the statutory forms received by him, but the applicant did not suggest for cross verification of the purchase and sales made by the dealer while submitting the survey report, and that she failed to detect the dubious and nefarious activities of the dealer and did not make cross verification of the transactions of the dealer before submitting normal survey report. It was further alleged that her negligence had put the government to huge revenue loss since the up to date assessments had been finalized and the huge demand created remained unfulfilled till date. The survey report, it was further alleged, had been submitted on plain paper, whereas it should have been submitted in the prescribed format as per the normal set procedure of the department for submitting the survey report. The applicant was accordingly directed to explain her position and as to why disciplinary proceedings be not initiated against her. She responded to the memorandum aforesaid vide her letter dated 14.11.2000 inter alia mentioning that on receipt of specific instructions to conduct survey on account of specific issue, she visited the business premises of the dealer and reported that the dealer was found functioning at the given address. In order to ascertain the functioning of the dealer, she had also gone through the books of accounts and some vouchers which were available at that time, and from the test checks thereof she could extract that the business activities were going on in normal way of business dealings. She further mentioned that the STO had not asked her to submit detailed survey report, otherwise she would have also examined the details of business transactions and would have reported the same as per her observations on that account. After submission of report by the applicant, the STO did not ask her any question, and, therefore, it was clear that she was never ordered to furnish her report with regard to the issue of forms to the dealer, nor she was asked to report about the quantum of business dealings. The applicant then mentioned that in fact the business dealings were very much before the STO as he had been receiving details of the purchases in utilization account and the details of sales in the form of returns being filed from time to time. She also mentioned that her performance was well within the notice of then CST, who had also appreciated her hard working and courageous steps to exercise checks on dealers. It was on records, she stated, that she had collected lakhs of rupees from tax evaders and booked them for further necessary action against them. As regards submission of survey report on plain paper, the applicant submitted that there was no survey book available in the stores branch of the department and that no such book was issued to her despite repeated requests and visits to that branch, and that during those days even STIs of wards 82 and 83 had also been submitting their reports on plain papers due to non-availability of survey book. She, however, regretted her failure in that regard and submitted that it was not a deliberate action on her part. It appears that her reply was not found to be satisfactory and, therefore, chargesheet dated 11.3.2002 for major penalty proceedings was issued to her in connection with the survey report dated 30.6.1997. The applicant at the time she was issued the memorandum referred to above was in service, but during pendency of the disciplinary proceedings, superannuated on 31.8.2002. The proceedings against her culminated into order dated 4.3.2008 imposing 10% cut in her monthly pension for a period of five years. The applicant takes strong exception to the initiation of disciplinary proceedings against her culminating into the order aforesaid. Her prayer in the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 is to set aside the penalty order dated 4.3.2008 (Annexure A-1) along with UPSCs advice dated 19.12.2007 (Annexure A-3), and in consequence thereof to direct the respondents to restore her full pension and make payment of the resultant arrears with interest at the rate of 24% per annum.
2. Brief facts of the case as projected in the Application reveal that the applicant was appointed on 14.10.1966 as Steno-Typist in the Delhi Administration. She claims that her work performance had been of the desired level and that her confidential reports had been without any adverse remarks, and there had been no disciplinary proceedings ever initiated or pending against her, and further that no material penalty, which could operate as a bar in her career advancement had ever been imposed upon her, and her service record had been unblemished throughout. She was promoted in the higher post and grade in July, 1995 and was posted as Sales Tax Inspector, on which post she worked up to 31.1.1999, whereafter she was further promoted to Grade-I (DASS) in June, 1999. She was issued memorandum dated 21.9.2000 to which she responded vide her letter dated 14.11.2000, as mentioned above. She received a memorandum dated 11.3.2002 proposing to hold a departmental enquiry against her under rule 14 of the CCS (CCA) Rules, 1965. The statement of articles of charge framed against her, Annexure-I with the memorandum aforesaid, reads as follows:
While functioning as STI in Ward-81, Smt. R. Munjal committed misconduct inasmuch as she conducted survey of M/s. Alfa International formerly known as Fine Printers and submitted normal survey report. The report was submitted on 30.6.97. The registration enquiry was also conducted by Smt. R. Munjal when the dealer was manufacturing printing material and reseller in chemicals, printing ink etc. Subsequently, he got added other items including petroleum products of which, mention has been given in the survey report dated 30.6.97. This should have caused suspicion in the mind of the STI as the dealer had totally changed the functioning viz. from manufacturing of printing material to trading of lubricants and petroleum products along with other diversified items. The dealer got issued a large number of statutory forms before and after the survey dated 30.6.97, worth crores of rupees. Had Smt. R. Munjal reported the activities of the dealer correctly it would have been difficult for the dealer to obtain the statutory forms from the Department and the Department would have been saved from further revenue loss which occurred due to negligence and active connivance of Smt. R. Munjal, the then STI with the dealer.
Thus, Smt. R. Munjal has not only shown negligence on her part and dereliction to duty but had shown active connivance with the dealer. She failed to maintain absolute integrity and devotion to duty and thereby acted in a manner which is unbecoming of a government servant and her conduct was in violation of provision of rule 3 of CCS (Conduct) Rules, 1964. The enquiry officer after recording statements of two witnesses and relying upon some documents produced during the course of enquiry, vide his report dated 10.2.2003, held that the article of charge stood proved against the applicant. Non-submission of report covering all the survey points even after having the knowledge about the format as admitted by the applicant in her reply, it was observed, amounted to intentional concealment of information about the activities of the dealer which proved her active connivance with the dealer. It appears that when the enquiry report came to be examined by the disciplinary authority, the said authority after considering the same and representation of the applicant, remitted the enquiry to the enquiry officer for general examination of the applicant, vide order dated 30.1.2006. The enquiry officer submitted fresh enquiry report on 23.2.2006. On fresh assessment of the issues involved, the enquiry officer held that it was clear that the applicant had not concealed the facts about M/s Alfa International trading in petroleum products and lubricants, but inasmuch as, she had also conducted the registration enquiry and submitted a report on 26.10.1995, her subsequent survey report dated 30.6.1997 should have made her see the departure in trade, and as she had failed in maintaining this basic precaution, it was gross negligence on her part. Insofar as, the allegation of active connivance with the dealer is concerned, the same was held not substantiated. The enquiry officer in his report inter alia mentioned as follows:
The other allegation with regard to her active connivance with the dealer could not be substantiated in the light of records and submissions produced before the enquiry. The type of trade of the dealer has been correctly mentioned by her i.e., dealing in petroleum products and lubricants. Had the survey report been submitted on the prescribed proforma, this question which remained unanswered could have come out in the open and thereby established that the dealer had been indulging in un-authorized activities entailing loss of revenue to the government. However, since this was not done, the gap in information remained. Being the subordinate official, she submitted her report which was subsequently seen by the Assessing Authority and others. The issue of connivance, therefore, is not clearly brought out. But clearly she has been negligent in her duties inasmuch as she did not submit her survey report on the prescribed proforma, which would have brought out the full circumstances and incidence of change in trade. This disclosure would have helped the department in detecting the activity of the trader and thereby plug the loss of government revenue in time.
It is, therefore, established that Smt. Munjal has failed to perform her duty as expected and is found to be guilty of negligence. The disciplinary authority on reaching a tentative conclusion with regard to complicity of the applicant on the charges as proved against her, recommended imposition of 2% cut in pension for a period of two years, and referred the matter to UPSC for advice. The UPSC while agreeing with the view of the disciplinary authority insofar as proof of charges as mentioned above, however, advised on 19.12.2007 for imposing 10% cut in pension for five years as against 2% cut for two years, as tentatively thought proper by the disciplinary authority. It is against this advice of UPSC and the order dated 4.3.2008, as mentioned above, that the present Application has been filed.
3. Shri Bhandari, learned counsel representing the applicant, vehemently contends that it is a case of no evidence. In fact, on available and existent evidence, it is urged that a positive finding ought to have been returned that the charge against the applicant was disproved, and yet, while ignoring the points raised by the applicant and the positive evidence existing on records, finding of negligence has been returned, which cannot sustain. It is also urged by the learned counsel that the order by the concerned authority asking the applicant to give a survey report, never saw the light of the day. It is only from the contents of the order, if at all, that the charge could be proved against the applicant. If the order given to the applicant was not of general survey, the applicant cannot be faulted for the kind of survey that she had done. He also contends that in the advice of UPSC for 10% cut in pension for five years, the Presidential order suggesting a cut of 2% for two years was not even referred to by the UPSC nor any reasons were given for recommending higher punishment.
4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and by filing their counter reply contested the cause of the applicant. There would be no need at all to refer to the pleadings made in the reply. The factual matrix of the case as given in the Application with regard to dates and events and outcome of the same, is admitted. The plea raised by the learned counsel representing the applicant, as noted above, however, has been contested. It is urged on behalf of the respondents that every aspect of the case has been taken into consideration; the finding of guilt is based upon positive evidence; and the quantum of punishment, in which the courts may interfere only in rarest of rare cases, is also, in any case, commensurate to the guilt of the applicant.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. We find considerable merit in the contention of learned counsel representing the applicant, as noted above. It may be seen that at the very outset that even though, memorandum dated 21.9.2000 alleged negligence on the part of the applicant for the reason that the survey report had been submitted on plain paper whereas, it ought to have been submitted in prescribed format, the same, however, was not a charge framed against the applicant. The statement of articles of charge framed against the applicant has since already been reproduced in the earlier part of the judgment. It may be recalled that the applicant had responded to the memorandum dated 21.9.2000 and clearly mentioned that the STO had not asked her to submit detailed report, otherwise she would have also examined details of the business transactions and would have reported the same as per her observations on that account. She also mentioned that in fact the business dealings were very much before the STO as he had been receiving details of purchases in utilization accounts and details of sales in the form of returns being filed from time to time. In addition to her achievements enlisted in the reply aforesaid, with which we may not be much concerned, the applicant also mentioned that there was no survey book available in the stores branch, and as such no book was issued to her despite repeated requests and visits to the said branch, and that during those days even the STIs of wards 82 and 83 had also been submitting their reports on plain paper due to non-availability of the survey book. She regretted her failure in that regard, but it was mentioned that the same was not deliberate action on her part. It appears that from the very inception the applicant was projecting two-fold defence. It was her case that the business dealings of the concerned dealer were very much before the STO, as he had been receiving the details of purchases in utilization accounts and the details of sales in the form of returns being filed by the dealer from time to time, and further that in any case, the survey book was not available in the stores branch of the department nor the same was issued to her despite repeated requests, and that during those days reports were being submitted by others as well on plain paper. Be that as it may, as mentioned above, the enquiry officer recorded statement of two witnesses, namely, Babu Lal, ASTO Ward-81, and Mrs. Kiran Sharma, UDC (Record Keeper, Ward 81). The enquiry officer himself mentioned that the statement of Mrs. Kiran Sharma was of no relevance. Shri Babu Lal who appeared as PW-1, in his cross examination clearly stated that there was nothing wrong in the report submitted by the applicant except that the same was not submitted in the prescribed format. We may reproduce relevant part of the cross examination adverted to Babu Lal, which is in question and answer form:
Question 1: Is there anything wrong in my report in which I had informed the S.T.O. that the dealer had entered into the sale and purchase of the petroleum products & lubricants?
Answer: Nothing wrong in this report expect the survey report was not submitted in the format, which covers the other points also in r/o the surveying dealer.
Question 2: Is there any evidence to prove that the dealer was not found functioning at the given address in the day of my visit i.e. 30.06.1997?
Answer: As per STI report dated 30.06.1997 the dealer was functioning on the given address. No there is no evidence to prove that the dealer was not functioning at the given address.
Question 3: Is there any evidence to show that the dealer was not engaged in the sale purchase of petroleum products and lubricants at the time or prior to visit of the charged officer?
Answer: As per record available in the file the dealer was dealing in the petroleum products and lubricants w.e.f. 01.04.1997 as per amendment made in R.C. Question 8: Is it not before the assessing authority concerned, it allowed the resale of petroleum products and lubricants on the R.C.? Whether, in preliminary it was recorded that the dealer was engaged in the manufacturing and resale of printing goods? Does it not indicate the change of nature of business?
Answer: After seeing the R.C. and the report it is proved that all facts are available before the assessing authority for change in the items of business. It may be recalled that the allegation against the applicant was that had she given her survey report in the printed format, changes in business carried out by the dealer would have been known. It is rather strange to note that this fact, i.e., change in business, was known to the department, for the dealer himself had already informed the department before the applicant conducted survey and submitted her report. We are surprised, rather distressed, to note that this significant aspect of the case was not gone into by either the enquiry officer, or for that matter, the disciplinary authority or the UPSC, despite the applicant screaming from the rooftop that once, the change in business carried out by the dealer was known, having been informed to the department by the dealer himself, the loss, if at all that accrued to the department, could not be because of her negligence. The plea raised by the applicant that the printed survey books were not available and other officers were also submitting survey reports on plain paper, has also not been gone into. Even if we may not go into the technical plea that the charge framed against the applicant does not mention that the applicant had submitted her report on plain paper instead of printed format, the plea raised by the applicant that the same was not available even in the department nor was supplied to her and others, and that other officers were also submitting survey reports on plain paper, ought to have been gone into. It appears that the disciplinary authority was conscious with regard to non-availability of printed survey books, and that may be the reason that whereas, even in the memorandum dated 21.9.2000 negligence of not submitting her report in the printed format has been mentioned, in the charge that came to be framed, it has not been mentioned. We find merit in the contention raised by the learned counsel representing the applicant that it is a case where the enquiry officer and the disciplinary authority have not taken into consideration and thus totally ignored the relevant evidence which goes to the roots of the case. The findings returned by the enquiry officer, in our view, are totally perverse. The disciplinary authority does not also seem to have applied its mind nor even dealt with the points raised by the applicant, in its order. When on an earlier occasion the matter came up before us, we asked the respondents to produce the order vide which the applicant was asked to conduct the survey. The same has not been produced before us. On the other hand, what has been produced is a register, and counsel representing the respondents has referred to entry No.978 in the said register, which would show that orders were issued to the applicant to have complete survey (puran survey). The contention of the learned counsel based upon the entry aforesaid is that the applicant was to conduct general survey. Counsel for the applicant would, however, contend that there is interpolation in the entry bearing No.978 by adding a line pertaining to complete survey of M/s Alfa International. We need not go into this question, and suffice it to mention that if the original order is available, as the same ought to have been, evidence of its contents cannot be given by producing on record entries based thereupon. Non-production of the order, when it is not the case of the respondents that it was to be destroyed after some time or had actually been destroyed, would lead to drawing an adverse inference against the respondents. The second contention of the learned counsel, i.e., in the advice of UPSC for 10% cut in pension for five years, the Presidential order suggesting a cut of 2% for two years was not even referred to by the UPSC nor any reasons were given for enhancing the quantum of punishment, also appears to have substance. The disciplinary authority even though, of tentative view, thought it proper to impose a cut of 2% in pension for two years, but the UPSC would not even remotely refer to the same and would give no reason whatsoever to form an opinion that the quantum of punishment should be 10% cut in pension for five years. We need not go into the question as to whether UPSC in exercise of its power to give advice, may opine with regard to quantum of punishment and to enhance it, but surely, if the UPSC gives an opinion different than the one expressed by the disciplinary authority, though tentatively, particularly to enhance the punishment, in our considered view, it must give reasons for the same. As mentioned above, the UPSC has not even mentioned that the disciplinary authority was of the view that the quantum of punishment could be 2% cut in pension for two years. We may mention that as per rule 9 of the CCS (Pension) Rules, 1972, a cut in pension can be imposed if in the departmental proceedings an employee is found guilty of grave negligence. Once, a finding of connivance of the applicant with the dealer was ruled out, the mere fact that the applicant had submitted her report on plain paper and not in the printed format, in any case, could not be a case of grave negligence.
6. For the reasons as mentioned above, we set aside and quash the UPSCs advice dated 19.12.2007 as also order dated 4.3.2008 imposing 10% cut in pension payable to the applicant for five years. Vide order dated 28.5.2008 the Bench then seized of the matter had ordered status quo in the matter of payment of pension. On retirement of the applicant, it appears, full pension was made over to her and the cut was made effective from the date of passing of the order. It appears that the order of cut in pension was stayed and that being so, there would be no need to issue directions to make over to the applicant the amount of pension that may have been deducted. However, in case, any amount has been deducted, the same shall be made over to the applicant.
7. The Application is allowed in the above terms. There shall, however, be no order as to costs.
( Veena Chotray ) ( V. K. Bali )
Member (A) Chairman
/as/