Central Administrative Tribunal - Delhi
Nawal Kishore Rai vs Secretary To Govt. Of India on 22 December, 2011
Central Administrative Tribunal Principal Bench O.A.No.1479/2011 New Delhi, this the 22nd day of December, 2011 Honbe Mrs. Meera Chhibber, Member (J) Honble Shri Shailendra Pandey, Member (A) Nawal Kishore Rai Farash DoT (Hqrs.) Sanchar Bhawan New Delhi r/o 638, Sector-2, R.K.Puram New Delhi. . Applicant (By Advocate: Shri Pratap C Mishra) Versus Secretary to Govt. of India Ministry of Communication & IT Department of Telecommunications Sanchar Bhawan, 20, Ashoka Road New Delhi 110 001. Director, Administration (III) Department of Telecommunications Ministry of Communication & IT Sanchar Bhawan, 20, Ashoka Road New Delhi 110 001. Respondents (By Advocate: Shri A.K.Singh) O R D E R By Shailendra Pandey, Member (A):
The applicant, in this OA, has challenged the order of the disciplinary authority dated 13.08.2010, imposing on him a penalty under Rule 11 of the CCS (CCA) Rules, 1965 and also the order of the Appellate Authority dated 07.01.2011, confirming the said punishment.
2. The brief facts of the case, as set out in the OA, are that the applicant, who is working as Farash in the respondents Department, was issued a chargesheet dated 27.05.2005 on 7 Articles of Charge. The inquiry officer in his report dated 21.01.2010 held that out of the 7 charges, only Charge No.IV was proved partially. Thereafter, the disciplinary authority, after serving upon the applicant a copy of the inquiry report and after considering the representation of the applicant dated 15.07.2010 thereto vide order dated 13.08.2010, imposed on him the penalty of reduction of pay by one stage from Rs.6170/- plus Grade Pay 1800 to Rs.5930 plus Grade Pay 1800 in the Pay Band-I for a period of one year with effect from the date of issue of the order and further that he shall not draw any increment for such period, which will have the effect of postponing his future increment. The appeal of the applicant dated 1.11.2010 against the disciplinary authoritys order was also rejected by the appellate authority vide his order dated 07.01.2011. Hence, the applicant has filed the present OA, seeking quashing of the aforesaid orders of the disciplinary authority and the appellate authority.
3. The main grounds raised, in support of his relief claimed, are:
That when the raid was conducted by the police in the night on 26.6.2001 the applicant was not there and he was on leave. However, malafidely the police filed a false case against the applicant in which he was discharged by Honble Metropolitan Magistrate, New Delhi on 8.2.2007 and it is amply clear that there was absolutely no evidence even for framing charges.
That the respondents illegally framed seven article of charges vide charge memo. dated 27.05.2005 and during the enquiry none of the charges could be proved but, with a view to punishing him, the enquiry officer held on presumption that Article IV is proved partially. In the law as per norms of departmental enquiry either a article of charge is proved or not proved. Thus, this is not a specific finding as required as per provision of Sub-rule 23(1)(d) of Rule 14 of CCS (CCA) Rules, and, therefore, the report is vitiated to this extent.
That although the disciplinary authority agreed with the report of the inquiry officer, which means that in the opinion of the disciplinary authority also Article IV of the charge is proved partially, he held that the Article IV of the charge as proved, and that too without serving any note of disagreement on the applicant. Therefore, the finding of the disciplinary authority is unsustainable in the eyes of the law.
That the findings of the disciplinary authority is based on inadmissible evidence u/s 161 Cr.P.C. such as the statement of the co-accused and thus is based on mere presumption.
That even presuming that Article IV of the charge is proved fully or partially, the imposing of a major penalty of reduction by one stage with cumulative effect is highly disproportionate to the gravity of the misconduct.
4. The respondents have opposed the OA and have stated that out of 7 charges, only Charge No.IV has been partially proved by the inquiry officer. The disciplinary authority after going through the inquiry report agreed with the findings of the inquiry officer and a copy of the report was sent to the applicant vide Memorandum dated 28.06.2010 and he was given an opportunity of making his submissions in the matter, and after considering his reply dated 15.-07.2010, the disciplinary authority came to the conclusion that Article IV of the charge stood proved and since this was a grave matter and possibility of the applicants active involvement could not be ruled out, the punishment ought to be commensurate with the gravity of the matter so as to serve as a deterrent for others. The disciplinary authority accordingly imposed the penalty of reduction by one stage in the time scale of pay being drawn by him vide its order dated 13.08.2010. The appeal filed by the applicant dated 1.11.2010 also rejected by the appellate authority vide its order dated 07.01.2011 observing that as the applicant had not raised any new point in his defence and penalty imposed upon him by the disciplinary authority was in order and commensurate with the gravity of the matter.
It is further stated that the applicant has stated that he was not on duty in the evening of 26.06.2001 and had informed the Caretaker in the morning about his intention of not coming to office in the evening due to some domestic affairs. Sh. Sanchar Singh, co-accused, was apprehended by the Police Party but the applicant appears to have slipped out of Sanchar Bhawan somehow on the same date. It is further stated that though according to the applicant, he came on duty in the morning of 27.06.2001, he did not come to office thereafter and was eventually arrested on 13.07.2001. According to the applicant he was present in the office in the morning of 27.06.2001 and as per records he vanished thereafter, and failed to produce any leave application for his absence in support of his defence. The respondents, therefore, pray that the OA be dismissed.
5. We have heard the counsel for both the parties and have been through the pleadings on record.
6. At the very outset, it would be useful to refer to the legal position relating to judiciary interference in departmental proceedings, particularly with regard to the admissibility of evidence and the findings of the administrative authorities in disciplinary matters. The law in this regard has evolved through a series of pronouncements on this issue and may be summarized as follows:
(i) a departmental inquiry/proceeding is distinct from a criminal trial where the Evidence Act or Criminal Procedure Code is strictly applicable. The technical rules of evidence are not applicable in a departmental inquiry and the standard of proof required in a departmental proceeding is preponderance of probability as opposed to proof beyond doubt in a criminal proceeding [See: N. Rajarathinam v. State of Tamil Nadu, (1997) 1 Lab LJ 224 (SC) and State bank of Bikaner and Jaipur v. Srinath Gupta, (1997) 1 Lab LJ 677; and High Court of Judicature, Bombay v. Udaysingh (1997) 5 SCC 129; Noida Entrepreneurs Association v. Noida & Ors., (2007) 10 SCC 385]. In most departmental proceedings the act on the part of the Government servant concerned relates to dereliction of duty and the punishment imposed is with a view to maintaining discipline and efficiency of performance of a public service, as opposed to an act in a criminal trial which is one of violation of law.
(ii) the scope of judicial review in departmental proceedings is limited and a Tribunal/Court should ordinarily not interfere in them by re-appreciating the evidence adduced by the inquiry officer and substituting their own findings/conclusion for that of the administrative authorities, unless the findings/conclusion arrived at are based on absolutely no evidence or are totally perverse in the sense that no man of ordinary prudence could possibly arrive at such findings/conclusion in the facts and circumstances of the case. This is so because the power of imposing an appropriate punishment on a Government employee is within the discretion of the administrative authorities. The only exception to this general principle is if it is found that the inquiry proceedings have not been conducted fairly and are vitiated because of non-observance of the relevant rules and regulations or principles of natural justice (such as affording of reasonable opportunity to defend, etc.) or if the punishment is shockingly disproportionate to the proved misconduct of the Government servant concerned [See: State of T.N. v. S.Subramaniam, (1996) 7 SCC 509; State of Tamil Nadu v. T.V.Venugopalan, (1994) 6 SCC 302; U.P.S.R.T.C. v. Ram Chandra Yadav, JT 2000 (8) SC 198; M.P.State Agro Industries Development Corporation Ltd. V. Jahan Khan, (2007) 10 SCC 88].
In this connection, the following relevant extracts from two Apex Court Judgments may also usefully be referred to:
(i) In B.C. Chaturvedi Vs. Union of India & Ors. reported in AIR 1996 SC 484, it was held as under:-
When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of that case.
(ii) In Chairman and Managing Director, United Commercial Bank & Ors. Vs. P.C. Kakkar reported in 2003 (4) SCC 364, Honble Supreme Court has held as follows:-
11. It is settled that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision - making process and not the decision.
7. We proceed to examine the case in the present OA in the above backdrop. The following facts are noticed in the departmental proceeding against the applicant:
The orders passed in this case (which are impugned in this OA) have been passed by the authorities competent to do so.
The inquiry in this case was held after following due procedure and affording full opportunity to the applicant to defend his case. Therefore, there has been no violation of rules of natural justice.
A perusal of the disciplinary and the appellate orders reveals that the conclusions of the administrative authorities (inquiry officers report/disciplinary order/appellate order) have been arrived at and the orders passed after due application of mind.
The findings cannot be said to be perverse or based on no evidence as some evidence was in existence in the case as seen from the following:
While the main charge (Article of Charge No.I) framed against the applicant viz., that he illegally misused on regular basis the STD/ISD facilities provided on telephone numbers installed in the room of Senior Officers working in Sanchar Bhawan during night time and enabled telephonic conversation among various parties in West Asian Countries with their relatives, friends and business associates in India, and thus caused huge loss of revenue to Government. has not been held to be proved by the inquiry officer, including the other charges No.II, III, V, VI and VII, the Charge No.IV framed against the applicant viz., that he failed to discharge the duties of Farash allotted to him sincerely and with devotion to duty. has been held to be proved partially. In respect of this Charge, the specific observations of the inquiry officer in his report are extracted below:
In view of the facts and circumstances of the case, regarding charge under Article IV, the said charge is proved partially as even if it be taken that the CO was not directly involved in making these calls, it cannot be denied that there had been large scale misuse of ISD and STD facilities on these telephone connections. It has also been seen that most of the calls were made before and after office hours illegally. It is the duty of the Farash to see that no unauthorized person remains in the office after office hours and the rooms are properly locked. The submission of the applicant that as the Inquiry Officer had held the charge in Article IV to be partially proved and the Disciplinary Authority held the charge to be proved, this amounted to a disagreement, is not tenable. The Article IV relates to failure to discharge duties sincerely and with devotion and so degree of failure in this regard would not be very material. We do not, therefore, agree that there was any need to record a formal note of disagreement.
In any case, the applicant was given an opportunity to make his submissions on the tentative opinion of the disciplinary authority, vide its order dated 28.06.2010, and after considering his reply dated 15.07.2010, the disciplinary authority concluded that the Charge No.IV is proved and accordingly imposed the aforesaid punishment on the applicant.
e) The disciplinary authority, in his order dated 13.10.2010, also observed as under:
(i) The Charged Officer has stated that he was not on duty in the evening of 26.6.2001 and had informed the Caretaker in the morning about his intention of not coming to office in the evening due to some domestic affairs. Though he knew about his preoccupation beforehand, he did not submit any leave application in writing. This excuse on the part of the Charged Officer is not easily acceptable particularly keeping in view the fact that his co-accused Shri Sansar Singh also took a similar ground about his absence in the evening of 26.6.2001. Whereas the co-accused, Sh. Sansar Singh was apprehended by the Police Party from the Sanchar Bhavan on the same date, the Charged Official appears to have slipped out of Sanchar Bhawan somehow.
(ii) Though according to the Charged Officer, he came on duty in the morning of 27.6.2001, he did not come to office thereafter and was eventually arrested on 13.7.2001 (or according to him he was present in the Court for hearing on 13.7.2001). It appears that the Charged Officer somehow came to know about the fact that the arrested persons had revealed to the Police party about his involvement in the matter and therefore went underground. Subsequently, he appeared in the Court on 13.7.2001 just to avoid arrest and being sent to judicial custody. This points towards his probable involvement in the whole matter.
(iii) According to the Charged Official he was present in the office in the morning of 27.6.2001, and as per records he vanished thereafter. He has failed to produce any leave application for his absence in support of his defence or any reasonable or justifiable grounds for his absence. A govt. servant is expected to send his leave application immediately or inform his superiors about his absence. He should have been particular in his case keeping in view the sensitive nature of his duty which was to lock and open the rooms of the Sanchar Bhawan. This also points towards his probable involvement in the whole matter.
(iv) Further, a question arises as to why did other accused persons, who were arrested by the Police Party in the raid conducted on 26.6.2001, take his name only when there were other Farashes working in the Sanchar Bhawan. Even if it be assumed that the other arrested persons had named him in the matter out of animosity, what about his own confessional statement before the police party which was signed by him also on 13.7.2001. The confessional statement by the Charged Official proves beyond doubt about his involvement in the matter.
(v) Though Shri Naval Kishore Rai has subsequently denied that his confessional statement does not bear his signatures, yet on a cursory look at the signatures on the defence brief and the confessional statement, i.e., a lay man can figure out that both the signatures are of the same person, even if the signatures on the confession statement are somewhat different from the signature on the defence brief. But this is an established fact that signatures in different circumstances and at different points of time do differ to some extent. The Charged Official, with a view to prove his point, could have taken the help of a handwriting expert in support of his defence but perhaps since he knew that he had signed the confession statement he could not do so. This also points towards his probable involvement in the whole matter.
From the order it is clear that keeping in view the principle of preponderance of probability and also the facts and circumstances of the case, the disciplinary authority, after due application of mind, formed the opinion that Article IV of the Charge, against the applicant, is proved and accordingly imposed the aforesaid punishment.
The appellate authoritys order also states that there are no new points raised by the applicant in his appeal (a copy of his appeal has not been attached to the OA by the applicant), and he agrees with the decision of the disciplinary authority, and confirmed the punishment.
We find nothing amiss or arbitrary in the orders issued.
8. Taking into account the above discussion, based on the principle of preponderance of probability which is applicable in departmental proceedings, the findings/conclusions of the inquiry officer and the Disciplinary Authority/Appellate Authority in this case cannot be said to be perverse or based on no evidence at all and as per the settled that executive authorities should be allowed considerable discretion in arriving at findings in disciplinary matters provided due procedure followed, no interference in these findings/conclusions is warranted.
We also do not accept that the punishment in this case is disproportionately so harsh or shocking as to warrant our interference.
9. The present OA would, therefore, need to be dismissed being bereft of merit. We order accordingly. No costs.
(Shailendra Pandey) (Meera Chhibber) Member (A) Member (J) /nsnrsp/