Central Administrative Tribunal - Patna
Ram Pujan Singh vs Union Of India (Uoi) And Ors. on 15 February, 2007
Equivalent citations: 2008(2)SLJ74(CAT)
ORDER
P.K. Sinha, J. (Vice Chairman)
1. The applicant who was working under the respondents as Attendant-cum-Cook in Food and Nutrition Board at Ranehi has come up before this Tribunal for quashing Annexures-A/and A/13, the former being the order of the Disciplinary Authority (one R.N. Chakravorty, Dy. Technical Advisor) dated 31.07.1985, on consideration of the inquiry report in which the charge was found to be proved, punishing the applicant/proceedee with removal from service, and the latter being the order of the Appellate Authority recorded on re-consideration of the matter, in compliance of the direction of this Tribunal recorded in O.A. 616 of 1997, dated 07.10.2004,
2. First a glance over the facts which are not in dispute.
(i) Annexure-A/3 is order by the Disciplinary Authority (Shri R.N. Chakravorty) dated 26.11.1984 placing the applicant under suspension in contemplation of a departmental proceeding against him, with immediate effect.
(ii) Annexure-A/4, dated 05.12.1984 is a memorandum of charges against the applicant under signature of the same Disciplinary Authority charging the applicant that on 22.10.1984 he had misbehaved with his superior officer, one R.S.C. Sharma, Food and Nutrition Extension Officer, Ranehi and also had physically assaulted the superior officer when he was asked to do a particular work. This memo gives details of the charge and also mentions the documents under Schedule-Ill upon which the prosecuting agency was to rely, which also include a preliminary investigation report of Shri R.N. Chakravorty, Dy. Technical Advisor, Kolkata on the charges as made against the delinquent employee by Shri R.S.C. Sharma, A part of the report is also reproduced in which the officer had, on the basis of the evidences, held that there was a prima facie case which needed to be enquired into. He also opined that the delinquent employee should be placed under suspension till the case was finally disposed of in accordance with law. The also contains a list of witnesses in which the name of R.N. Chakravorty is not mentioned.
(iii) Annexure-A/1 relates to the same incident for which the applicant had filed an application before the Officer Incharge, Argora P.S. alleging abuses and assault upon him by none other than the aforesaid R.S.C. Sharma.
(iv) Annexure-A/2 is the report of the Police Officer submitted in that regard to the Sub-Divisional Police Officer. However, it does not appear that any action on that basis was taken. It is also admitted fact that R.S.C. Sharma also had lodged a FIR relating to the incident on that date, against the applicant.
(v) Annexure-A/5 is the inquiry report in which the Inquiry Officer has mentioned as to how the inquiry was conducted and on earlier sitting how the statements of three eye witnesses and R.S.C. Sharma were recorded in present of the proceedee and his defence helper who also had cross-examined them. According to this, in order to accommodate the defence helper, the next dated for inquiry were fixed from 25th to 27th June, 1985 of which information was given in advance by registered post with A/D but the proceedee, nor his defence helper appeared on that date, on which date statement of three more witnesses was recorded. The Inquiry Officer came to the conclusion, on the basis of the evidence of witnesses, that the charge framed against the proceedee was proved.
(vi) As already mentioned, Annexure-A/6 dated 31.07.1985 is the order of the Disciplinary Authority punishing the applicant with removal from service. Significant it is to note, as pointed out by the learned Counsel for the applicant, that in the last of the order it was mentioned-"A copy of the inquiry report is also enclosed."
(vii) Annexure-A/7, dated 12.01.1987 conveys the order of the Appellate Authority holding the punishment to be justified.
Annexure-A/8 is the detailed order of the Appellate Authority dated 01.09.1987 (Shri V.K. Duggal, Joint Secretary to the Govt. of India, in the Ministry of Food and Civil Supplies).
These facts were necessary to be mentioned in view of the arguments that have been made on behalf of the applicant. Some more facts also need to be mentioned.
(viii) Annexure-A/9 is the order of this Tribunal dated 08.01.1990 in O.A. 376 of 1988 preferred by the same applicant against the orders of the Disciplinary Authority, Appellate Authority as well of the Revisional Authority dated 01.09.1987. In the order the contentions of both the sides were mentioned. Without entering into the merits of the case his Tribunal, however, noticed that the Appellate Authority had not considered all the points raised in the memo of appeal which should have been done, nor the Revisional Authority had fully considered the nature of allegations and the evidences on record. This Tribunal under its order quashed the orders of the Appellate Authority and of the Revisional Authority and remitted the matter back to the Appellate Authority to pass an order taking into consideration the points raised in the appeal, including on the quantum of penalty. Though two months period, from the date of receipt of the copy was allowed for the exercise, it appears that when nothing was done the applicant again travelled to this Tribunal with O.A. 616 of 1997 stating therein that the appeal still had remained undecided, which O.A. was disposed of by order dated 07.10.2004. The respondents had given grounds as to why the order could not be implemented earlier and the appeal could not be disposed of which we need not go into at present. However, that was not found to be satisfactory by the Tribunal which noted that the applicant also had preferred a memo of appeal by way of supplementary representation to respondent No. 3, the Director (Administration), Department of Women and Child Development, Ministry of Human Resources Development, Govt. of India, though receipt of that was denied by the respondents. This Tribunal gave direction to the respondent No. 3, the aforesaid Officer, to treat the O.A. as an appeal and to pass a reasoned and speaking order as per law and as per direction given by this Tribunal O.A. 376 of 1998.
(ix) Annexure-A/11 was another representation filed by the applicant dated 01.11.2004. Annexure-A/12 is a memo prepared by the applicant as to what had transpired between him and the Appellate Authority when he was given an opportunity to be heard in person. Thereafter, Annexure-A/13 was recorded in which the Appellate Authority, taking into consideration various facts placed before him, reduced the penalty of removal from service with that of compulsory retirement. It was also ordered that the applicant would be entitled to compensation pension equivalent to two-third of such pension under Rule 40(1) of the CCS (Pension) Rules from the date the penalty of removal from service was given effect to.
3. In the backdrop of these facts the learned Counsel for the applicant has hammered following points:
(i) The applicant while facing departmental proceeding was not paid subsistence allowance for the entire period but only for January and February, 1985 on the ground that non-employment certificate, as claimed by the respondents, was not given. The applicant admittedly was under suspension w.e.f. 26.11.1984 to 31.07.1985. Learned Counsel argued that this would vitiate the entire departmental proceeding as nonpayment of subsistence allowance would amount to denial of reasonable opportunity to the applicant to place his defence. To substantiate this argument, the learned Counsel has relied upon a decision of the Punjab and Haryana High Court in the case of P.L. Mehta v. State of Haryana and Ors. 2001(1) SLJ 165.
(ii) That though the applicant had demanded, from the Inquiry Officer, a copy of the preliminary inquiry report conducted by R.N. Chakravorty and the statement of witnesses recorded by him, but those were never supplied to him which had prejudiced in defence. In this regard the learned Counsel has pointed out the order at Annexure-A/13 is which the Appellate Authority has mentioned that there was no preliminary inquiry held. However, the learned Counsel for the applicant pointed out the memo of charges at Annexure-A/4, in the Schedule of which the report of the preliminary inquiry conducted by R.N. Chakravorty was mentioned as one of the documents to be relied upon. It was argued that, therefore, the inquiry report was admitted reality and on this score alone the order of punishment should be quashed, also taking into account that the Appellate Authority had wrongly mentioned that no preliminary inquiry was held.
(iii) Mr. M.P. Dixit, the learned Counsel for the application also argued that, admittedly, vice Annexure-A/4, a preliminary inquiry was held by the Disciplinary Authority himself who also had signed and issued the memo of charges and, after inquiry, also had ordered for punishment. Learned Counsel submitted that the Disciplinary Authority acted not only as a prosecutor but also as a Judge which had vitiated the entire inquiry. For this, the applicant has relied upon a decision of the Principal Bench of CAT in the case of Sugan Chand and Ors. v. Govt. of NCT of Delhi and Ors. 2005(3) ATJ 451, and order of the Allahabad Bench of CAT in the case of J.N. Shukla v. Union of India and Ors. 1997(36) ATC 164; and, in the case of Shankar Lal Meena v. Union of India 2006(2) SLJ (CAT) 159. (Jodhpur).
(iv) Learned Counsel also submitted that the copy of the inquiry report was not given to the applicant before punishment was awarded, hence on that ground also the order of punishment was vitiated.
4. Now, we will take up these points one by one.
In so far as point of non-payment of subsistence allowance is concerned, the respondents claim that since the applicant had failed to file non-employment certificate, could not be paid subsistence allowance for the entire period of his suspension. In that regard learned Counsel pointed out Rule 53 of Fundamental Rules which deals with the grant of subsistence allowance in Sub-rule (1) of Rule 53. However, Sub-rule (2) of Rule 53 runs as follows:
(2). No payment under Sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.
There is proviso to Sub-rule (2) also which states that if the Government servant ultimately is removed or compulsorily retired from service, he would be entitled to the subsistence allowance if he has failed to produce such a certificate for any period or periods during which he had continued under suspension, with certain conditions. However, this proviso is altogether a different matter which would relate to the entitlement of the applicant to receive amount by way of subsistence allowance after he has been removed or compulsorily retired from service. But before that, to get subsistence allowance he has to comply with the provisions under Sub-rule (2) of Rule 53 of the FRs. Nothing has been brought on the record that he had provided such a certificate. Therefore, not having complied with the condition for receiving subsistence allowance which burden was upon the applicant, he cannot now be heard to accuse the respondents for non-payment of subsistence allowance and taking that as a ground of prejudice having been caused to him. Therefor, this ground is not available to the applicant.
5. In so far as non-supply of copy of preliminary inquiry report and the statement of witnesses is concerned, if there had been a preliminary inquiry (which appears to have been done in this case) and if copy of the inquiry report and/or statements of witnesses were desired by the delinquent, and if that was not supplied to him during the inquiry but used by the Inquiry Officer, that would be deemed to have caused prejudice to the applicant and to have vitiated the inquiry. In that regard the decision of the Allahabad Bench of CAT in the case of J.N. Shukla (supra) may be referred to. In that case reliance was placed on Board of Inquiry report to prove the charges but since the applicant was not given opportunity to cross-examine the author of the report, that was held to be illegal. It was also held that principle of natural justice was violated with non-supply of documents to the applicant relied upon by the Disciplinary Authority.
6. While considering this point and other points raised by the applicant, we have to keep in mind certain background facts.
This is the third round of litigation. The memo of charge was issued as back as in the year 1984 and punishment was awarded by the Disciplinary Authority by his order dated 31.07.1985. This matter, from the date of initiation of the departmental proceeding, is now more than two decades old. When in such circumstances one claims violation of the principles of natural justice or even of some extant rules, then he must also prove that prejudice was caused to him. Principle of natural justice is, as is often repeated, not panacea to all the ills. If by any act of the other side no prejudice has been caused, then the principles of natural justice, as by now is well settled, cannot be invoked just as a technical ground in order to seek relief.
For this, we will advert to the earlier litigation in O.A. 616 of 1997. That record is annexed with the record of the present applicant and we have gone through that in order to reach at a final conclusion on all contentious points. In Para 5(xi) of the applicant in O.A. 616 of 1997 it has been claimed that the applicant had wrote a letter to the Deputy Technical Advisor, Kolkata requesting him to give Hindi translation of memo of charges as also Hindi translation of other documents supplied to him. The applicant also requested to supply a copy of the written statement of the witnesses taken during the preliminary inquiry. The applicant has also claimed here that he was supplied with the Hindi translation of charge memo but statement of witnesses was not supplied. This has been replied to in Para 9 of the written statement of the respondents. This claims that the applicant was supplied with the Hindi version of all the demanded documents including of the statement of witnesses. In the rejoinder to the written statement, in Para 5 this assertion has simply been denied. Therefore, more proof was needed to be placed on behalf of the applicant to show that the assertion made in Para 9 of the written statement was incorrect. Even statement in Para 5(xi) of that application does not say that a copy of the inquiry report was also required to be supplied. This, thus, appears to be a new point.
7. Moreover, though the preliminary inquiry had been mentioned in the memo of charge, but from a perusal of the inquiry report it would be amply clear that the Inquiry Officer had not considered the preliminary inquiry report in any way while coming to a conclusion abut the guilt, nor had considered the statements of witnesses made in course of preliminary inquiry.
In view of such averments and non-use of the preliminary inquiry report by the Inquiry Officer for coming to a conclusion about the guilt of the proceedee, it cannot be held that any prejudice in fact had been caused to the applicant in that regard.
8. Now, coming to the point of prosecutor being the Judge, we agree that an officer who had conducted a preliminary inquiry into the allegation or if is a witness in the departmental inquiry, he should not ordinarily act as the Disciplinary Authority as the prosecutor being a Judge would tend to violate the principles of natural justice. But, again for this, an order cannot be based just on presumption of prejudice but what has to be seen is whether by such action of the Disciplinary Authority the applicant had actually been prejudiced.
So far this point is concerned, the learned Counsel for the respondents has pointed out that this was not even taken as a ground in O.A. 616 of 1997 which obviously shows that before coming to the Tribunal in O.A. 616 of 1997 the applicant did not consider that to have prejudiced him in any manner. Obviously, since no such point was placed against the Disciplinary Authority, this Tribunal in the order only quashed the orders of the Appellate Authority and of the Revisional Authority but not the order of the Disciplinary Authority nor made any order as to whether on this point the disciplinary proceeding itself was vitiated.
9. The Disciplinary Authority and the Appellate Authority have based their findings on the basis of the inquiry report submitted by the Inquiry Officer. That report is based strictly upon the evidences brought on the record in course of departmental inquiry, in which four witnesses were cross-examined also, including the complainant R.C.S. Sharma. If on the basis of such evidence the charge is found to be proved, then the punishment of dismissal or of compulsory retirement can hardly be said to be excessive or wrong since the charge against the applicant was abusing and physically assaulting his superior officer.
10. Learned Counsel for the applicant argued that a point of law not taken earlier can always be taken in subsequent litigation. True. But point of law in such cases essentially are based on a deliberation of the facts obtaining in a particular case. If on consideration of the facts as obtaining in a particular case it is not found that any particular deemed impropriety of the prosecution had caused prejudice the applicant, or such deemed action was not considered by the applicant to have caused prejudice to him earlier, that can hardly be a ground to grant relief in a subsequent litigation.
11. Moreover, the Tribunal in O.A. 616 of 1997 had directed the Appellate Authority to treat the O.A. as memo of appeal and to take a decision thereupon. When in that main application this specific ground was not taken, then the Appellate Authority was hardly expected to grant any relief on such a ground. In the peculiar circumstances of this case, in our opinion, at this stage the applicant cannot be granted relief on such a plea.
12. In so far as the point of non-supply of the inquiry report is concerned, this also appears to be a belated revelation. It will appear that the applicant vide his application dated 04.07.1994 had filed a supplementary memo of appeal in which in the main he nowhere had claimed that a copy of the inquiry report was not given to him though in the last in Para 31 (M) he cursorily mentioned that the department had issued the order of removal from service on the basis of the findings of the Inquiry Officer without affording any opportunity to the applicant against the report of the Inquiry Officer and against the quantum of punishment.
13. It is clear that the order of the Appellate Authority was set-aside and the applicant was afforded a fresh opportunity for having his appeal reconsidered, also giving him an opportunity to make his submissions in person. Obviously, by that time he was very well aware of the inquiry report and its contents, supposing that he was not supplied the inquiry report before awarding punishment, as in the aforesaid supplementary memo of appeal he had attacked various aspects of the inquiry report. Therefore, if any lacuna had remained on that Court, that was subsequently cured by giving him an opportunity to be heard in person and to have his O.A. 616 of 1997 to be treated as a memo of appeal. Therefore, this ground is now not available to the applicant.
14. Some minor points were also raised relating to lacunas in the departmental proceeding as to how he was deprived of remaining present in the second round of hearing in the departmental proceeding but that has been replied to by the respondents in written statement as well Annexure-A/13, that the dates of the inquiry were made known to him still he chose not to participate further in the departmental inquiry.
15. In view of the aforesaid points, we do not think that, under particular circumstances of the case, the applicant is entitled to any relief. It has also been noticed that his punishment has already been reduced under order of the Appellate Authority as at Annexure-A/13.
In that view of the matter, this application is dismissed. No costs.