Central Administrative Tribunal - Delhi
Dr. Laxman Singh Meena S/O Tej Ram Meena vs Union Of India Through on 6 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1433 of 2010 This the 6th day of January, 2012 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. (MRS.) VEENA CHHOTRAY, MEMBER (A) Dr. Laxman Singh Meena S/o Tej Ram Meena, Scientist, E-I, Institute of Genomics & Integrative Biology, Delhi University Campus, Mall Road, Delhi-110007. Applicant ( By Shri Malaya Chand and Shri S. P. Mitra, Advocates ) Versus 1. Union of India through Secretary, Ministry of Science & Technology, Department of Science & Technology, Technology Bhawan, New Mehrauli Road, New Delhi-110016. 2. President, Council of Scientific & Industrial Research, Government of India, P.M.O., New Delhi-110001. 3. Vice-President, Council of Scientific & Industrial Research, Anusandhan Bhawan, Rafi Marg, New Delhi-110001. 4. Council of Scientific & Industrial Research through its Director General, Anusandhan Bhawan, Rafi Marg, New Delhi-110001. 5. Institute of Genomics & Integrative Biology through its Director, Delhi University Campus, Mall Road, Delhi-110007. 6. Dr. Yogendra Singh, Supervisor, Institute of Genomics & Integrative Biology, Delhi University Campus, Mall Road, Delhi-110007. Respondents ( By Shri Rajeshwar Rao, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Dr. Laxman Singh Meena, Scientist (E-I), Institute of Genomics & Integrative Biology, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking to quash and set aside order dated 08.11.2006, vide which, sequel to a departmental enquiry held against him under rule 19(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965), he has been inflicted minor penalty of withholding of one increment in the pay scale of Rs.10000-15200 for a period of one year without cumulative effect, as also order dated 06.01.2009, vide which his revision against the order dated 09.04.2007 was dismissed as not competent. We may mention at the very outset that against the order dated 08.11.2006, it appears that the applicant filed an appeal, which was dismissed vide order dated 09.04.2007. Even though, there is no specific prayer for setting aside the order in appeal, there is no serious objection taken by the respondents for this technical flaw, particularly when the order dated 06.01.2009 rejecting revision against the order passed by the appellate authority has been challenged. Accompanying the OA is a misc. application seeking condonation of delay in filing the OA. Inasmuch as, the controversy on merits would need adjudication only if the application seeking condonation of delay is allowed, we will first deal with the same. It is inter alia pleaded in the application seeking condonation of delay that the applicant had to undergo a series of unfortunate events, because of which he was not able to file the OA within the prescribed period of limitation. Such events have been mentioned by the applicant in the misc. application as follows:
A. In 2009 itself the applicants father was detected with cancer and the applicant had to run from pillar to post to get his fathers treatment and to make other suitable arrangements for his ailing father.
B. On 21/12/2008 the applicant got bitten by a street dog and he had to undergo the extremely painful treatment till 21/01/2010.
C. On 08/01/2010 the applicant was hit by two buses on the road because of which he was under extreme pain and had to take proper medication and rest. The applicant has supported the grounds which prevented him to file the OA earlier in point of time, by medical record issued by Safdarjung Hospital, as Annexure A-23 (colly.).
2. Pursuant to notice issued by this Tribunal, the respondents do not appear to have filed separate reply to the application seeking condonation of delay, even though the plea as regards the OA being barred by time has been taken in the preliminary objections in the written statement filed on their behalf. It is mentioned in para 2 of the preliminary objections that the applicant has not given satisfactory explanation for the day to day delay, and, therefore, the OA would be liable to be dismissed on the ground of delay alone.
3. On an earlier occasion, we heard the arguments in this case on 21.09.2011 and reserved the judgment. On 27.09.2011 we required the applicant to place on records typed copies of the documents as regards his treatment when he was bitten by a street dog. The documents had already been placed on records, but nothing could be made out therefrom. Pursuant to our directions, the applicant has placed on records typed copies of the documents.
4. We may mention at the very outset that a citizen is entitled to decision on merits. Unless the conduct of a litigant may be contumacious or totally negligent in pursuing his remedies, the delay should be condoned. Further, if a litigant may not have to gain by delaying the remedy as regards redressal of his grievances, once again, normally, delay should be condoned. Even though, the applicant has calculated the delay from 06.01.2009 when his revision against the order dated 09.04.2007 was rejected being not maintainable, but the counsel representing him, when confronted with the position that limitation may have to be counted from 09.04.2007, when appeal against the order dated 08.11.2006 was rejected, would contend that the applicant was bona fide pursuing his remedy, and the lack of knowledge of law of the applicant may not come in his way. During the course of arguments, the respondents would indeed oppose the prayer of the applicant for condonation of delay, but it could not be countered on any serious objections. In totality of the facts and circumstances of the case, we thus condone the delay in filing the OA.
5. Brief facts as set out in the Application reveal that the applicant was selected for participation in the group training course in industrial biotechnology organized by the Government of Japan under its technical cooperation program. On 17.7.2001 the applicant was promoted from Scientist Grade IV(1) to Scientist Grade IV(2). He applied for BOYSCAST (Better Opportunity for Young Scientists in Chosen Areas of Science and Technology) Fellowship under Department of Science & Technology through proper channel, which was approved by the Department vide OM dated 5.9.2003. Accordingly, the 5th respondent Institute issued OM dated 22.3.2003 granting deputation of the applicant. He then left for Florida, USA for pursuing the said Fellowship. It is the case of the applicant that the respondent No.6 had sent an e-mail to him to take up some additional work during his Fellowship at the University of Central Florida, USA, as the same would be helpful for his research work in India. In the month of November, 2004, supervisor of the applicant at the University of Central Florida, namely, Prof. Kolattukudy, wrote a letter to the 6th respondent to extend the tenure of the applicant. It is further his case that on 21.3.2005 at 02:45 a.m., his supervisor at the University of Central Florida, Prof. Kolattukudy sent an e-mail to the applicant directing him to return the samples, if any, under his possession, on which the applicant was working/doing research by 12o clock in the noon of 22.3.2005. As per the directions of the supervisor, the applicant returned most of the samples by 21.3.2005 and contacted the 6th respondent over phone, who directed him to return all the lab materials in his possession. On 22.3.2005 at about 08:00 a.m. when the applicant reached the research center of the University of Central Florida to return the samples, he was arrested by the police. On 12.4.2005, the 5th respondent wrote a letter to the supervisor of the applicant at the University of Central Florida mentioning therein that the applicant had no intention to bring any material out of the laboratory of the latter without MTA. On 3.6.2005 the said supervisor suggested the 6th respondent vide a e-mail that an out of court settlement would be a better option for both the parties, and in case that is arrived at, then there would be no permanent legal blemish in the record of the applicant. On 7.6.2005, the 6th respondent and other higher authorities in India asked for an out of court settlement through an e-mail to the University of Central Florida, USA. On 30.6.2005 the attorney of the applicant in USA sent a legal notice to the said University mentioning that he was going to file a civil suit which made the situation regarding an out of court settlement. On 25.7.2005 the 6th respondent wrote to the Deputy Consul General in USA for an out of court settlement. In August, 2005 due to the efforts of one Mr. Swadesh Chatterjee, an NRI, who negotiated on behalf of the 5th respondent with the University of Central Florida, the matter was settled out of court. On 10.10.2005 the applicant returned to India and resumed service under the 5th respondent Institute. On 2.12.2005, the 5th respondent, however, issued a memorandum informing the applicant that it had decided to award appropriate penalty upon him under rule 19 of the CCS (CCA) Rules, 1965 taking into account the gravity of the criminal charges levied against him in USA. The applicant was directed to appear before the committee constituted on that behalf for personal hearing, along with relevant documents in his defence on 6.12.2005. The applicant appeared before the committee for personal hearing, but, as per the case set out in the OA, he was forced to sign on dictated terms. He was assured that in case he signed on the dictated terms and tendered an unconditional apology, he would be absolved of all the charges, and it was only upon the assurance of the disciplinary authority that he tendered an unconditional apology and put his signatures on the dictated terms. On 8.11.2006, the 5th respondent issued an order stating therein that it had found the applicant guilty of the lapses/charges. The penalty, as mentioned above, was imposed upon the applicant. The applicant filed an appeal against the order aforesaid which was dismissed on 9.4.2007. The review of the applicant was also dismissed vide order dated 31.12.2007. His second appeal/revision also came to be dismissed as incompetent, vide order dated 6.1.2009. It is against these orders, as mentioned above, that present Original Application has been filed.
6. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. It is inter alia pleaded that on or around completion of his tenure of research the supervisor of the applicant at the University of Central Florida asked for extension of his tenure to complete the research project he was working upon, but the extension could not be granted due to rules and regulations of the Department of Science and Technology. It is averred that the applicant with the intention to steal plasmids, conveyed to the 6th respondent vide his e-mail dated 17.2.2005 asking, Should I carry them (the plasmids) without telling anybody here (in USA), to which his supervisor objected and said that he would get the MTA ready, but the applicant would not heed to his supervisor and would commit the offence there and was arrested in consequence. On 22.3.2005, the applicant was arrested by the Florida Police on charges of violation of copyright laws and stealing seven vials of DNA and two computer diskettes containing research details. This incident was widely reported in newspapers and on the website in India and abroad. Copies of such news from newspapers as well as printouts from the website are annexed with the counter reply as Annexure R-1. It is pleaded that the respondents took all possible steps to get the applicant out of jail in USA and also arranged for an attorney to contest his case. However, the applicant opted to settle the matter out of court and pleaded guilty. He was awarded a sentence of 24 days giving credit for 24 days he had spent in jail. Copies of e-mail exchanges between the supervisor of the applicant in India, copies of communication regarding appointment of attorney, and bills for payment to the attorney are annexed with the reply as Annexure R-2. It is further pleaded that since the applicant was jailed for a period of 24 days in connection with a criminal case, action against him as per rule 19 of the Rules of 1965 was taken. A memorandum dated 2.12.2005 was issued to the applicant informing him of the proposed action, giving him an opportunity of personal hearing to explain the facts and circumstances leading to his conviction. He appeared before the committee consisting of the disciplinary authority and other members on the scheduled date. Based on record of the personal hearing, taking into consideration the defence submitted by the applicant and the facts and circumstances, the disciplinary authority decided to take a lenient view and a minor penalty of withholding of one increment was proposed vide OM dated 31.8.2006. The applicant was given an opportunity to make representation, if any, on the proposed penalty, to which he submitted representation dated 9.9.2006. It is pleaded that after analyzing the documents and the submissions of the applicant and on careful consideration of his statement and facts and circumstances of the case, following due process the proposed minor penalty as mentioned above was imposed upon the applicant. One of the preliminary objections raised in the reply is that the OA is barred by limitation.
7. The applicant has filed rejoinder to the counter reply filed on behalf of the respondents.
8. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The records placed before us would manifest that as per the orders of the Circuit Court of Ninth Judicial Circuit, In and for Orange County, Florida, USA dated 17.08.2005, the defendant (applicant) withdrew his previously entered plea of not guilty and pled guilty to lesser included offence of 815.04(4)(A) Offence against Intellectual Property (level F Degree T). He was waived a pre-sentence investigation and was adjudicated guilty for which he was ordered to serve 24 days in the Orange County jail with credit for 24 days time served with fines totaling to US $ 390. Disciplinary proceedings were initiated against the applicant under rule 19 (i) of the Rules of 1965 vide memorandum dated 02.12.2005 for his conviction on criminal charge. The said memorandum reads as follows:
WHEREAS Dr. L. S. Meena, Scientist C Gr. IV(2) has been convicted on criminal charge under section 815.04(4)(A) Offence against Intellectual Property during his stay in USA under BOYSCAT Fellowship and has been awarded a sentence to serve 24 day(s) in the Orange County Jail with credit for 24 day(s) time served w.e.f. 22nd March, 2005 by the CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA, USA.
AND WHEREAS, the undersigned proposes to award an appropriate penalty under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 taking into account the gravity of the criminal charges.
AND WHEREAS, before coming to a decision about the quantum of penalty, Dr. L. S. Meena is hereby given an opportunity of personal hearing to explain the facts and circumstances leading to his conviction.
NOW accordingly, Dr. Meena is hereby directed to appear before me/duly constituted committee for a personal hearing along with all the relevant document documents in his defence at 11.30 AM on 6th December, 2005 in Room No.104 (Conference Room) of IGIB.
The receipt of this Memorandum should be acknowledged. Perusal of the memorandum dated 02.12.2005 would clearly manifest that the applicant was to be proceeded departmentally only as regards his conviction on a criminal charge of offence against intellectual property during his stay in USA. The applicant was asked to appear before a duly constituted committee for personal hearing in his defence on 06.12.2005. The records would reveal that the applicant indeed appeared as ordered, and made his statement (Annexure A-13, p.40 of the paper book). While admitting certain lapses on his part which led to his arrest, the applicant also explained the circumstances under which he acted in such a manner. The matter was referred to CVC for its advice, and the advice was for imposition of a suitable minor penalty. After receipt of advice of CVC, the disciplinary authority proposed to impose a minor penalty of withholding one increment without cumulative effect vide OM dated 31.08.2006 and the applicant was given an opportunity to represent against the said order, which he availed. It is on the facts as mentioned above that the disciplinary authority returned a finding of guilt and inflicted the punishment upon the applicant as mentioned above. The disciplinary authority before arriving at the conclusion as mentioned above, examined the charging affidavit filed against the applicant by the University of Central Florida authorities with the UCF police department with alleged offence against intellectual property, the order of the Circuit Court of the Ninth Judicial Circuit In and For Orange County, Florida dated 17.8.2005, and copies of the correspondence entered between the applicant and his supervisor in Florida. The submissions made by the applicant and the related documents furnished thereon were also examined. On the basis of documents as mentioned above, the disciplinary authority observed as follows:
As per the charging affidavit filed by the UCF authorities on 22nd March, 2005, Dr. Meena was asked on different occasions to return all the items from the study because they belong to the University. However Dr. Meena denied having any items that belong to the university. Dr. Meena also agreed to the visit of the University employees to his home in search of the items of the study. Dr. Meena returned some items as per demand. Dr. Meena was further told that taking University property without permission was a criminal offence. On 22nd March, 2005 when Dr. Meena was preparing to return to India after conclusion of his study at UCF he went to the lab with whatever material available with him out of which the UCF employee took out three items of samples claiming to be the University property. Having found these items of University property from his possession, he was charged for criminal offence against intellectual property.
As per the orders of the Circuit Court of Ninth Judicial Circuit, In and For Orange County, Florida, USA dated 17.8.2005, the defendant (Dr. Meena) withdrew his previously entered plea of not-guilty and pled guilty to lesser included offence of 815.04(4)(A) Offence against Intellectual Property (level F Degree T). The Defendant was waived a pre-sentence investigation and was adjudicated guilty for which he was ordered to serve 24 day(s) in the Orange County Jail with credit for 24 day(s) time served with fines totaling to US $390.
In terms of the statement made by Dr. L.S. Meena during the personal hearing as accorded by the undersigned on 6th Dec.2005, relationship of Dr. Meena with his Supervisor and other co-workers at the UCF was strained because of developments and issues relating to his research work including authorship of a research paper, use of research samples by co-workers etc. etc. He worked on three projects at UCF of which two were the on-going projects of the Prof. Kolattukudys Laboratory at UCF and one was his fellowship project. For working on the first two projects he was also paid an amount of US $ 1000 per month with effect from May, 2004, which he did not inform to IGIB/CSIR. Since within the time limit of the fellowship it was not possible to complete fellowship work, he decided to bring some samples such as clones, and his laboratory record for the work done by him at UCF, which were necessary to continue his work back in his Country/Institute. Some of these samples were sent to India and remaining were kept with him with the impression that, as is the usual practice, the official formality to regularize the transfer of research material (MTA), which he had already initiated, could be completed even after his reaching back to India. On the request of his laboratory colleagues and Supervisor he had returned all the materials what he felt could be property of UCF. He still retained some of the samples and lab. note books, despite advice from his Indian supervisor to return all the materials to UCF, out of his eagerness to continue his research work which he admitted as a lapse on his part.
Analyzing the documents and the submissions of Dr. Meena it is found that Dr. Meena got his otherwise good relationship strained with his Supervisor and other co-workers at UCF on minor issues/developments relating to sharing of credit for the research work/publication of research paper. Subsequently Dr. Meena retained some of the samples of his own research work to be brought to India to continue with his research work which he was pursuing in India and at UCF. The UCF authorities already annoyed with him, opposed to his carrying his own research materials, which otherwise is a routine matter when the Scientists from one laboratory work in another laboratory. But the UCF authorities took a drastic step of filing a criminal case against Dr. Meena leading to his conviction. Since Dr. Meena was also working on a project which he started in IGIB in addition to other projects, he should have been allowed to bring the samples which he made. Also the work he carried out there is a global issue for public good and that is why the research in that area is heavily supported by public authorities in India and abroad. The genome sequence of the tuberculosis work has been provided to the world free by Sangers Centre (UK) (already in public domain) and using this sequence the clones, retaining of which for D. Meena was charged, could be created in any routine bio-technology lab and hence their retention could not be termed as violation of intellectual property. Besides this, the Supervisor at UCF was requested for executing the Material Transfer Agreement much in advance for transfer of these samples, to which he never responded. Finally when Dr. Meena went to return the samples, instead of accepting them, he was got arrested by the police on charges of theft and was also charged of potential Bio-terrorism, a sheer fabrication of charges and case of personal vindication. Even after knowing well that Dr. Meena had come on a Govt. of India Fellowship and works for the Government, UCF neither took his employer into confidence nor informed about their action to anyone including Indian Consulate. The issue could have been settled amicably by discussing with Director, IGIB. The action of UCF authorities was unwarranted, inappropriate.
When Dr. Meena realized that the case was getting prolonged despite the efforts made by IGIB/CSIR through diplomatic sources for his early release, even after the advice for not to plead guilty, he insisted for the same out of fear of continued interrogation, the resultant trauma and hardship while in jail. Dr. Meena was punished for a lesser included offence. Although Dr. Meenas attempt to retain the samples and the records was in the interest of his research work and in the overall interest of Science, but he should have returned the materials/samples and records immediately on demand from UCF authorities, for which they had made repeated demands, and also as advised by his Supervisor in IGIB which he failed to do. He has also failed to inform about all the facts and developments at UCF, USA during his fellowship to Director, IGIB well in time including receipt of US $1000 p.m. by him from UCF which has caused a lot of embarrassment to the Institute. I have found him responsible for these lapses on his part.
AND WHEREAS on careful consideration of his statement, facts and circumstances, judgement of the Circuit Court and other records of the case, the undersigned found that Dr. Meena has committed misconduct in as much as he disobeyed the directives of his supervisors both in UCF and IGIB leading to a complex situation and his conviction under criminal charges and also that he failed to keep the Director, IGIB informed of all the developments took place at UCF on time causing embarrassment to the Institute. However, taking into account the circumstances of the case and the fact that he has already undergone a jail term of 24 days and a continued stay abroad in a traumatic situation of more than 6 months for himself and his family which by any means is in excess of the gravity of his offence, the undersigned is of the view that to award even the minimum of penalty as listed under the major penalty clause (Rule 11) shall be harsher. Hence, the undersigned proposed to pass imposition of a minor penalty of withholding of one increment for a period of one year without cumulative effect upon Dr. L.S. Meena.
9. It may be recalled that the applicant was issued memorandum dated 02.12.2005 only as regards his alleged conviction in a foreign country. There were no other allegations for which the applicant was to appear before the duly constituted committee to give his explanation. In the impugned order, however, number of allegations have been mentioned which were not subject matter of the memorandum aforesaid at all. As regards the criminal case and his consequent conviction, it has been the consistent case of the applicant that it is only because of some strained relations that he had with the persons working with him in the university that a case came to be planted against him. He was all through stating that the case was a frame-up. While dealing with the said issue in the impugned order, the stand of the applicant has been virtually accepted. It has been observed that since within the time limit of the fellowship, it was not possible to complete the fellowship work, the applicant decided to bring some samples such as clones, and his laboratory record for the work done by him at the university, which were necessary to continue his work back in India, and that some of these samples were sent to India and remaining were kept by the applicant with him with the impression that, as was the usual practice, the official formality to regularize the transfer of research material (MTA), which he had already initiated, could be completed even after his reaching back to India, and on the request of his colleagues and supervisor, the applicant had returned all the materials what he felt could be property of the university, but retained some of the samples and lab note books, despite advice from his Indian supervisor to return all the materials to the university, out of his eagerness to continue his research work, which he admitted as a lapse on his part. It is also mentioned that the university authorities, already annoyed with the applicant, opposed to his carrying his own research materials, which otherwise would be a routine matter when scientists from one laboratory work in another laboratory, but the university authorities took the drastic step of filing criminal case against the applicant, leading to his conviction. It is also observed that since the applicant was also working on a project which he started in IGIB in addition to other projects, he should have been allowed to bring the samples which he made, as also that the work he carried out there was a global issue for pubic good and that is why the research in that area was heavily supported by public authorities in India and abroad. It is further mentioned that the genome sequence of the tuberculosis work has been provided to the world free by Sangers Centre (UK) (already in public domain) and using this sequence the clones, for retaining of which the applicant was charged, could be created in any routine bio-technology lab, and hence their retention could not be termed as violation of intellectual property. It is also observed that besides this, the supervisor at UCF was requested for executing the Material Transfer Agreement much in advance for transfer of the said samples, to which he never responded, and that finally when the applicant went to return the samples, instead of accepting the same, he was got arrested by police on charges of theft and was also charged of potential bio-terrorism, a sheer fabrication of charges and case of personal vindication. It has further been observed that even after knowing well that the applicant had come on a Government of India fellowship and was working for the Government, UCF neither took his employer into confidence nor informed about its action to anyone, including the Indian Consulate. It is observed that the issue could have been settled amicably by discussing with Director, IGIB, and that the action of UCF authorities was unwarranted and inappropriate.
10. With the observations as made above, it appears to be a case where the stand of the applicant that he was a victim of frame-up should have been accepted. However, while so observing, the applicant has been still held guilty by further observing that although the applicants attempt to retain the samples and the records was in the interest of his research work and in the overall interest of science, but he should have returned the materials/samples and records immediately on demand from UCF authorities, for which they had made repeated demands, and also as advised by his supervisor at IGIB, which he failed to do. It is then observed that the applicant failed to inform about all the facts and developments at UCF, USA during his fellowship to Director, IGIB well in time including receipt of US $1000 per month by him from UCF which caused a lot of embarrassment to the Institute, and that the applicant had been found responsible for these lapses on his part.
11. The observations on which the applicant has been held guilty, it may be recalled, were not subject matter of the memorandum dated 02.12.2005, on which the applicant gave his explanation by making his statement before the duly constituted committee. The only charge the applicant was to answer was as regards his arrest and conviction, and on that, it is practically the finding recorded in the impugned order that it was a case of sheer fabrication of charges and case of personal vindication. The disciplinary authority has even gone to the extent of saying that the action of the UCF authorities in neither taking the employer of the applicant into confidence nor informing about their action to anyone, including the Indian Consulate, would be unwarranted and inappropriate. Even though, the attempt on the part of the applicant to retain the samples and records has been stated to be in the interest of his research work and in the overall interest of science, it has been observed that he should have returned the materials/samples and records immediately on demand to the UCF authorities, for which they had made repeated demands, which, again, was not subject matter of charge. Still further, that the applicant had failed to inform about all the facts and developments at UCF during his fellowship to Director, IGIB well in time, including receipt of US $1000 per month by him from UCF, was also not subject matter of charge. What we thus find is that some such allegations and materials that may be available with the respondents have been relied upon for coming to a finding of guilt against the applicant, which were not subject matter of charge. Learned counsel representing the applicant would vehemently contend that the applicant could not be punished for such allegations which were not even put to him, and that had the said material been put to the applicant, he would have been in a position to show by documentary evidence that all the necessary information was given to the employer and he was acting upon their advice. We are conscious that the applicant is stated to have admitted about certain lapses on his part, but it may be recalled that it is the positive case of the applicant that he was assured of no action against him, and, therefore, he signed on the dotted lines. For the lapses as mentioned above, the applicant also had given his explanation. It may be difficult for us to return a finding on this issue. However, what we find as absolutely objectionable and against the principles of natural justice is that some such material has been taken into consideration against the applicant in awarding the punishment to him which was not even put to him, and for that reason, the orders are flawed and have to be set aside.
12. In the facts and circumstances as mentioned above, we will set aside the order dated 08.11.2006 passed by the disciplinary authority, as also the orders dated 09.04.2007 and 06.01.2009 passed in appeal and revision/review respectively. The disciplinary authority is directed to re-examine the issue only as regards the allegations contained in the memorandum dated 02.12.2005 (Annexure A-12), for which alone the applicant was asked to give his explanation. If as regards the allegations made in the memorandum aforesaid alone, it be the finding of the concerned authority that the applicant has indulged in some delinquency, then only he may be punished, as otherwise the facts and circumstances of the case are such that the applicant may not deserve any punishment at all.
13. In view of the observations/directions, as mentioned above, this Original Application is disposed of. However, since a period of about six years has gone by when the applicant was proceeded against, we expect the concerned authorities to take a final call in the matter as expeditiously as possible and preferably within six weeks of receipt of this order. There shall, however, be no order as to costs.
( Dr. Veena Chhotray ) ( V. K. Bali )
Member (A) Chairman
/as/