Central Administrative Tribunal - Delhi
B.L. Sinha vs Union Of India Through Secretary on 13 July, 2009
Central Administrative Tribunal Principal Bench OA No.2277/2007 MA No.1039/2009 New Delhi this the 13th day of July, 2009. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) B.L. Sinha, S/o late Shri Rajendra Nath Sinha, R/o M-2808, D-II Type, Netaji Nagar, New Delhi. -Applicant (By Senior Counsel Shri G.D. Gupta and Shri M.K. Bhardwaj, Advocate along with him) --Versus- 1. Union of India through Secretary, M/o Corporate Affairs, 5th Floor, A Wing, Shastri Bhawan, New Delhi. 2. Union of India through Secretary, UPSC, Dholpur House, Shahjahan Road, New Delhi. 3. Sri Ranvir Singh, Inquiring Authority & CDI, Satarkata Bhawan, Block-A, GPO Complex, INA, New Delhi-110023. 4. Sri C.D. Paik, Ex-Member, CLB, Western Region, Flat No. 2/202, 2nd Floor, P.C. Plaza, Cuttack Road, Bhubaneshwar-751006. 5. Sri Pawan Kumar, Director (Administration), Ministry of Corporate Affairs, Shastri Bhawan, 5th Floor, A Wing, New Delhi. 6. Sri Rakesh Chandra, Regional Director, Northern Region, A-14, PDIL Bhawan, Noida (U.P). 7. Ms. Seema Pendharkar (Chartered Accountant), 401, SMIT Smt. Sharaddha Condominium, 99, Ajmal Road, Vile Parle (East), Mumbai-400 057. -Respondents (By Advocate Shri H.K. Gangwani with Ms. Lata Gangwani Advocate) O R D E R (ORAL) Mr. Shanker Raju, Member (J):
Applicant through this OA impugns Presidential order dated 30.8.2007, whereby pursuant upon major penalty proceedings under Rule 14 of the CCS (CCA) Rules, 1965, a major penalty, on the advice of the Union Public Service Commission (UPSC), of reduction to lower stage in the time scale of pay by one stage for one year with cumulative effect has been imposed upon him.
2. Earlier the OA on a single ground of no misconduct was allowed by an order dated 6.2.2009 with a direction to the respondents to open the sealed cover pertaining to promotion of applicant to SAG with all consequences. The aforesaid was challenged before the High Court of Delhi in Writ Petition (Civil) No.8656/2009, wherein taking cognizance of the fact that one of the articles of charge of non-disposal of applications under Section 297 of the Companies Act, as per the Citizen Charter within 30 days when not pressed in the enquiry the second component of the charge of raising irrelevant queries not germane to the subject matter of Section 297 of the Companies Act and thus delayed the disposal of applications it is found that the respondent, i.e., applicant in OA had an arguable case on this aspect and has not been examined or considered by the Tribunal. Hence the matter was remitted back for fresh consideration on the entire issue.
3. A brief factual matrix, which is relevant, transpires that applicant a Joint Director (JD) in Grade-I while working on technical side in Mumbai was entrusted with the Cell dealing with Section 297 of the Companies Act, a complaint made by one Chartered Accountant led to holding of a preliminary enquiry on the basis of which a major penalty proceeding was instituted against him on 14.11.2005 on the allegation that while working as JD (Inspection) in the office of Regional Director, Mumbai he had not adhered to the citizen charter, which provides a time limit of 30 days for disposing of the applications received under Companies Act. Further it is alleged that while processing the applications received under Section 297 of the Act, applicant raised irrelevant queries not germane to the subject matter and thus delayed disposal of the applications. However, before the chargesheet a DPC was held for filling up the posts of SAG level, which declared the applicant unfit. The enquiry proceeded with examination of witnesses and defence witnesses and on submission of the statement of the applicant and also in consultation with the UPSC applicant was imposed a major penalty on the ground that he had delayed disposal of the applications under Section 297 of the Act on account of raising irrelevant queries and also tempered with the official documents by antedating the notes in the file on professional integrity.
4. Learned Senior counsel Shri G.D. Gupta along with Shri M.K. Bhardwaj states that disposal of applications under Section 297 of the Companies Act, as per Sections 600 and 601 of the Companies Act the power has been delegated only to Regional Directors and it cannot be sub-delegated. As such, the applicant who is not authorized to dispose of the applications, delay in disposal of the applications is not imputed to him and hence the charge levelled against him cannot be imputed against him and proved. Learned counsel would also contend that whereas applicant in the statement of articles of charge has been alleged to have raised irrelevant queries but during the course of the enquiry an extraneous charge of manipulating the record on tempering with it by antedating the notes in the file has been established in consultation with the UPSC. This extraneous charge when not put to the applicant and does not find mention in the chargesheet amounts to taking into consideration an extraneous matter to sustain the charge, which cannot be sustained in the light of the decision of the Apex Court in M.V. Bijlani v. Union of India & Ors., 2006 (3) SLR SC 105. Learned counsel would also contend taking the various factual details that without dealing with the contentions of the applicant and irrelevant queries having not been established, the finding of the enquiry officer (EO) is non-speaking and violates Rule 14 (23) of the CCS (CCA) Rules, 1965.
5. Learned senior counsel would contend that when most of the queries put-forth by the applicant were necessary in facilitating disposal of applications under Section 297 by the RO and has the approval of the Regional Director, who has also been charge-sheeted and an order post-retirement passed against him the enquiry has been filed, holding that the Act does not amount to grave misconduct, as such proving the same against the applicant would amount to invidious discrimination, violative of Articles 14 and 16 of the Constitution of India.
6. Learned senior counsel has also relied upon plethora of cases to contend that applicant has not committed any misconduct and as the alleged misconduct, assuming it to be negligence, which is not culpable and a sheer negligence would not entail any punishment. Reliance is placed on a decision of the Apex Court in Union of India v. J. Ahmed, AIR 1979 SC 1022. Further reliance has been placed on a decision of the Apex Court in Inspector Prem Chand v. Govt. of NCT of Delhi and others, 2007 (5) SCALE 421 to contend that a judgment of error or innocent mistake do not constitute misconduct.
7. Alleging misconduct in award of punishment it is stated that the same has an underlined object of withholding promotion of applicant in SAG, which is due to him right from the year 2005.
8. Learned Senior Counsel had taken us to the chargesheet and stated that insofar as the charge of irrelevant queries is concerned, except in the case of M/s KPMG India Ltd. where question of irrelevant query has been raised, there is no iota of allegation levelled against the applicant. The EO did not record any specific finding as to what were the irrelevant queries, which delayed disposal of the applications. As such for want of any specific particulars in the chargesheet this component of charge has not been established against the applicant.
9. Learned senior counsel would also contend that the DA while imposing the punishment has also not recorded any finding as to the irrelevant queries levelled against the applicant, the queries have not been specifically established against the applicant.
10. Learned senior counsel has taken an additional plea as to one Rakesh Chandra who conducted the preliminary enquiry (PE) was competing for promotion as a candidate along with applicant and has also appeared as a witness, as such being an interested person, his PE report, which has formed basis of the enquiry, has vitiated the punishment.
11. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that the power of Regional Director cannot be further sub-delegated and the Joint Director has to perform the role of support system for Regional Director. As the applicant was instrumental in delaying the applications under Section 297 by raising illegal and irrelevant clarifications and it has been found that certain notes have been antedated in the official record, the charge against applicant has been amply proved against the applicant by the EO, which has been relied upon by the DA, which does not suffer from any legal infirmity.
12. We have carefully considered the rival contentions of the parties and perused the material on record, including the departmental record produced by the respondents.
13. Insofar as the charge of non-disposal of applications under Section 297 of the Companies Act as per the Citizen Charter is concerned, though it was not pressed in the enquiry, yet as per Section 297 ibid, which provides that a company having a paid up share of not less than Rs. one crore is precluded from entering into any contract for sale, purchase or supply of goods without the prior approval of the Central Government and for other companies if a Director or relative is a partner in such a firm or private company shall also not enter into any contract with the company except with the consent of the Board of Directors. This power of grant of approval under Section 297 (1) is referred to in Section 637 is exclusively provided to the Regional Director and cannot be sub-delegated. Accordingly, the disposal of an application being the jurisdiction of Regional Director, non-disposal cannot be imputed against the applicant. Moreover, as per the citizen charter the standards provide that the applications submitted to Department of Company Affairs, Regional Directors, are to be processed within the time frame and in this view of the matter as per Schedule-II application for approval of contracts under Section 297, 30 days time is accorded for processing. It is not a charge against applicant that he failed to process the application. Assuming that disposal is to be made by Regional Director, however this charge being misconceived and vague, holding applicant guilty of a charge, which constitutes allegations on an infraction of the procedure to which jurisdiction is entrusted to some other authority would amount to penalizing the applicant on an act of others, which cannot be countenanced even applying the rule of preponderance of probability, yet it is vitiated on applying the test of a reasonable common prudent man.
14. We also find that the Regional Director when proceeded against for non-disposal, the enquiry continued post-retirement against the Regional Director on finding no misconduct for any pension cut, filing the enquiry against the Regional Director on the main allegation of non-disposal of applications under Section 297 when has been done away with on a subsidiary and secondary charge of delayed processing, it is very illogical and irrational to sustain the punishment against the applicant. It is a case where rather on a more severe charge once the Regional Director, who is similarly situated, as on whose approval the queries have been put-forth when DE has been filed in his case, punishing the applicant would amount to invidious discrimination, violative of Article 14 of the Constitution of India. In a misconduct one cannot be held guilty of misconduct on the behest of the superiors, as held by the Apex Court in Chandra Vilas Roy v. State of Bihar, 2004 SCC (L&S) 532. Moreover, an error of judgment or error by an authority is not misconduct, as held in Reference under Article 317 of the Constitution of India, 2009 (1) SCC 337.
15. As regards second component of the charge of irrelevant queries put-forth by the applicant to delay disposal of applications, we find on record that the charge is vague, indefinite and inconclusive. In the memorandum issued to the applicant no such irrelevant queries have been imputed in respect of the companies except M/s KPMG, where a bald statement of irrelevant queries has been levelled, yet the EO in his report has not held applicant guilty by stating as to what are those queries which had delayed disposal of the applications. As such, for want of specific irrelevant queries raised by the applicant and more particularly when these queries when put by the applicant have been approved by the Regional Director. As such the aforesaid charge could not be established against the applicant.
16. Another aspect of the matter, which requires consideration is that nowhere in the case of the respondents is that even assuming for the sake of argument the misconduct amounted to negligence in case of applicant, yet this negligence has not resulted in culpable damage, it is trite that any misconduct on account of negligence, which per se is negligence, without any repercussion, and an innocent mistake and judgment of error would not constitute misconduct to be punished. The Apex Court in Inspector Prem Chand (supra) made the following observations:
9. Before adverting to the question involved in the matter, we may see what the term 'misconduct' means.
10. In State of Punjab and Ors. vs. Ram Singh Ex. Constable [1992 (4) SCC 54], it was stated:
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
11. In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under:
"The term 'misconduct' implies, a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."
[See also Bharat Petroleum Corpn. Ltd. vs. T.K. Raju, [2006 (3) SCC 143].
12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was willful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating:
"Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct." [Emphasis supplied]
13. The Tribunal opined that the acts of omission on the part of the appellant was not a mere error of judgment. On what premise the said opinion was arrived at is not clear. We have noticed hereinbefore that the appellate authority, namely, the Commissioner of Police, Delhi, while passing the order dated 29.8.2003 categorically held that the appellant being a raiding officer should have seized the tainted money as case property. In a given case, what should have been done, is a matter which would depend on the facts and circumstances of each case. No hard and fast rule can be laid down therefor.
14. The Criminal Court admittedly did not pass any adverse remarks against the appellant. Some adverse remarks were passed against the Investigating Officer, who examined himself as PW-4 as he had handed over the tainted money to the complainant PW-2.
15. A finding of fact was arrived at that the accused did not make demand of any amount from the complainant and thus no case has been made out against him. This Court in Zunjarrao Bhikaji Nagarkar vs. Union of India & Ors., [1999 (7) SCC 409], has categorically held:
"Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty."
16. We, therefore, are of the opinion that in the peculiar facts and circumstances of this case, the appellant cannot be said to have committed any misconduct.
17. Having regard to the above, at best a judgment of error and a bonafide mistake when in the capacity of Joint Director the applicant has raised queries without any proof of ulterior motives, ill motives and corrupt motives, the punishment imposed is in its name sake to deprive applicant of his legitimate promotion in SAG, which cannot be countenanced.
18. Resultantly, OA is allowed. Impugned order is set aside. Respondents are directed to open the sealed cover pertaining to promotion of applicant in SAG and to give effect to it from the date the others have been accorded with all consequences, within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.