Central Administrative Tribunal - Bangalore
Dr J Harsha vs Central Water Commission on 25 November, 2024
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OA.No.170/00152/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00152/2023
ORDER RESERVED ON: 09.09.2024
DATE OF ORDER: 25.11.2024
CORAM:
HON'BLE MR. JUSTICE B.K. SHRIVASTAVA, MEMBER(J)
Dr. J. Harsha, S/o Shri Jade Puttaswamy,
Aged about 48 years, Director,
Monitoring Directorate,
Monitoring South Organization,
Central Water Commission,
Bangalore - 560 013. ... Applicant
(By Advocate Shri T.C. Gupta)
Vs.
1. Union of India, through the Secretary,
Ministry of Jal Shakti,
Shram Shakti Bhawan, Rafi Marg,
New Delhi - 110 001.
2. Chairman, Central Water Commission,
Sewa Bhawan, R.K. Puram,
New Delhi - 110 066.
3. R.K. Jain, Chairman CWC (Retired),
R/o C- 4/1 M S Flats,
Near Palika Bhawan, Sector - 13,
mikashamikasha suneja
CAT Bangalore
suneja 2024.11.28
10:01:39+05'30'
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OA.No.170/00152/2023/CAT/BANGALORE
R.K. Puram, New Delhi - 110 066. ...Respondents
(By Shri S. Sugumaran, Sr. Panel Counsel)
ORDER
PER: JUSTICE B.K. SHRIVASTAVA, MEMBER (J)
This OA has been filed on 10.04.2023 for quashment of the charge sheet dated 29.01.2021 (Annexure - A1) and penalty order dated 02.02.2023 (Annexure - A2).
2. These facts are not disputed in this case: -
(a) The applicant is working as Director (Central Water Engineering Group 'A' Service), the only organized cadre in the field of water resources in Government of India.
(b) The applicant published two articles in the newspaper "The Hindu", one article titled "Not many lessons learnt from water planning failure" published on 13.12.2019 which is Annexure - A3 and the second article titled "Playing catch up in flood forecasting technology" published on 08.10.2020 is at Annexure - A4.
(c) A charge sheet (Annexure - A1) was issued on 29.01.2021 under Rule 16 of Central Civil Service (Classification, Control and mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 3 OA.No.170/00152/2023/CAT/BANGALORE Appeal) Rules, 1965 to the applicant by the Under Secretary to the Government of India (by order and in the name of the President).
(d) The applicant submitted the reply of the charge sheet on 05.02.2021 (Annexure - A5).
(e) The respondents took the advice from Public Service Commission (UPSC) and the advice dated 21.06.2022 (Annexure
- A6) was received.
(f) After receiving the advice from UPSC, the penalty order dated 02.02.2023 (Annexure - A2) was passed by which the punishment of "reduction to one stage lower in the time-scale of pay for a period of one year without cumulative effect and not adversely effecting his pension" was awarded to the applicant.
3. The applicant challenged the aforesaid charge sheet and the punishment order by filing this OA. As per applicant, there was no any requirement for taking the prior permission or permission for publishing any document, article or book. The respondents did not specify as to under which Rule prior permission was required. As per Rule 9(1) of CCS (Conduct) Rules, 1964, no government servant shall, in any radio broadcast, telecast through any electronic media or in any document mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 4 OA.No.170/00152/2023/CAT/BANGALORE published in his own name ............ which has the effect of an "adverse criticism" of any current or recent policy or action of the Central Government or a State Government. As per aforesaid rule, only adverse criticism of current or recent policy is violative of the rule. The applicant did not criticize any policy or programme of the Government.
4. It is again submitted by the applicant that in the articles published by the applicant, he did not criticize any government policy or the programme and the articles are according to the relevant clause 1.3(vii) and clause 12.4 and also according to the clauses 15.1 and 15.5 of the aforesaid policy. The publishing of any article has no concern with the integrity or devotion towards the duty of the applicant while in the charge sheet the respondents mentioned that he violated Rule 3(1)(i) and Rule 3(1)(ii) of CCS (Conduct) Rules, 1964. The charge sheet has been issued due to bias and malafides of Respondent No.3, Shri R.K. Jain.
5. Some other grounds are also taken by the applicant. As per applicant, the case of minor penalty under Rule 16, the final order should be passed within 2 months from the date of receipt of defence statement which was submitted in this case on mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 5 OA.No.170/00152/2023/CAT/BANGALORE 05.02.2021. While the final order was not passed on or before 05.04.2021. The final order was passed on 02.02.2023.
6. Another ground has been taken by the applicant that the charge sheet has not been approved by the Minister. The approval given by the Minister is not absolute but incomplete. The charge sheet was not issued or even approved by the Minister. Therefore, Annexure - A1 is not legal.
7. The respondents opposed the claim of the applicant by filing the reply statement on 20.10.2023. It is submitted by the respondents that the punishment order has been issued after taking the advice from UPSC. The articles published by the applicant contained materials which come into purview of criticizing the government policies. The appropriate action has been taken against the applicant. The Minister of Jal Shakti approved the draft charge sheet with a remark that "approved as discussed". Further clerical action on the memorandum has been taken on the basis of approval of disciplinary authority. It is also submitted that the articles published by the applicant contain several wrong facts and the articles have been published only for criticizing the government policies. Hence, the OA is liable to be dismissed. mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 6 OA.No.170/00152/2023/CAT/BANGALORE
8. The case is related to the article (Annexure - A3) published on 13.12.2019 and article (Annexure - A4) published on 08.10.2020 in the newspaper "The Hindu". The charge sheet was issued in relation to the contents of aforesaid articles. Therefore, it will be proper to mention the aforesaid two articles as it is: -
"Annexure - A3 Not many lessons learnt from water planning failures J. Harsha DECEMBER 13, 2019 00:05 IST UPDATED: DECEMBER 13, 2019 07:31 IST In the absence of scientific planning and implementation, measures like Jal Shakti Abhiyan may not be successful Following the massive water crisis across India in the summer of 2019, the Central government hurriedly launched the Jal Shakti Abhiyan (JSA), a time-bound, mission-mode water conservation campaign to be carried out in two phases, across the 255 districts having critical and over- exploited groundwater levels. This campaign, however, was not intended to be a funding programme and did not create any new intervention on its own. It only aimed to make water conservation a 'people's movement' through ongoing schemes like the MGNREGA and other government programmes.
The JSA is partly modelled and driven by some sporadic success stories such as NGO Tarun Bharat Sangh's experiment in Alwar, Rajasthan and Anna Hazare-led efforts in Ralegan Siddhi Maharashtra. These projects primarily involved building tanks and ponds to capture rainwater and building recharge wells to recharge groundwater. However, it is unclear whether they were based on reference to watershed management or groundwater prospect maps.
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 7 OA.No.170/00152/2023/CAT/BANGALORE Planning scientifically Water planning should be based on hydrological units, namely river basins. And, political and administrative boundaries of districts rarely coincide with the hydrological boundaries or aquifer boundaries. However, contrary to this principle of water management, JSA was planned based on the boundary of the districts, and to be carried out under the overall supervision of a bureaucrat. This resulted in the division of basins/aquifers into multiple units that followed multiple policies. There was no data on basin-wise rainfall, no analysis of run-off and groundwater maps were rarely used. As a result, one never came to know whether water harvested in a pond in a district was at the cost of water in adjoining districts.
The JSA also fundamentally ignored the fact that most of India's water-stressed basins, particularly those in the peninsular regions, are facing closure, with the demand exceeding supply. Hence, groundwater recharge happened at the cost of surface water and vice versa. This is where an absence of autonomous and knowledge-intensive river-basin organisations is acutely felt.
As on date, the JSA's portal displays impressive data, images and statistics. For example, it claims that there are around 10 million ongoing and completed water conservation structures; 7.6 million recharge structures. The website also says that one billion saplings have been planted and that six million people participated in awareness campaigns. But, data and statistics can deceive or lie, as claimed by journalist Darrel Huff in his 1954 book How to Lie with Statistics.
For example, the data displayed on JSA portal do not speak anything about the pre-JSA water levels, the monthly water levels and impact of monsoon on the water levels across the 255 districts with critical and over-exploited blocks. They also don't convey anything about the quality of the structures, their maintenance and sustainability. Even if the water levels had been measured, it is unknown whether the measurement was accurate. Many such queries remain unanswered and hidden behind these data and statistics. The results for a 2016 study conducted by the Central mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 8 OA.No.170/00152/2023/CAT/BANGALORE Groundwater Board showed that water levels always increase post-monsoon. Therefore, it will require long-term monitoring of water level data to determine the actual impact of a measure like JSA. At present, there is no such parameter to measure the outcome of such a mission-mode campaign. The rat race among districts for ranking has turned out to be meaningless.
Facile assumptions True, the aim and intent of JSA are noble. But the assumptions are distorted. For example, it assumes that common people in rural areas are ignorant and prone to wasting water; on the Contrary, they are the ones who first bear the brunt of any water crisis. The per capita water allocation to those living in rural areas is 55 litres, whereas the same for urban areas like Delhi and Bengaluru is 135- 150 litres.
Therefore, the JSA's move to reach out to poor people and farmers, asking them to 'save water', appears hypocritical, particularly when district administrations blatantly allow the sewage generated from towns and cities to pollute village water sources such as tanks, ponds and wells.
Moreover, it is difficult to say whether measures like JSA can provide long-term solutions. Most of the farm bunds built with soil can collapse within one monsoon season due to rains and/or trespassing by farm vehicles, animals and humans. Further, there are issues like lack of proper engineering supervision of these structures, involvement of multiple departments with less or no coordination, and limited funding under MGNERGA and other schemes. Finally, there have hardly been many efforts undertaken to dissuade farmers from growing water-intensive crops such as paddy, sugarcane, and banana, when it is widely known that agriculture consumes 80% of freshwater.
The summer water crisis has not led to our policymakers learning many lessons, and the country just seems to have returned to a business-as-usual situation.
(J. Harsha is Director, Central Water Commission. Views expressed in the article are personal.) mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 9 OA.No.170/00152/2023/CAT/BANGALORE Annexure - A4 Playing catch up in flood forecasting technology J. Harsha OCTOBER 08, 2020 00:02 IST UPDATED: OCTOBER 08, 2020 00:51 IST India needs a technically capable workforce that can master ensemble weather and flood forecast models Have you ever wondered how a local agency makes a decision if a flood forecast merely uses the words "Rising"
or "Falling" above a water level at a river point? Especially when the time available to act is just 24 hours, there is no idea of the area of inundation, its depth, and when the accuracy of the forecast decreases at 24 hours and beyond? There are many times this happens in India during flood events, when the end users (district administration, municipalities and disaster management authorities) receive such forecasts and have to act quickly. These compelling scenarios are often experienced across most flood forecast river points, examples readers will be familiar with - in Assam, Bihar, Karnataka, Kerala or Tamil Nadu. Compare this with another form of flood forecast (known as the "Ensemble forecast") that provides a lead time of 7-10 days ahead, with probabilities assigned to different scenarios of water levels and regions of inundation. An example of the probabilities ahead could be something like this: chances of the water level exceeding the danger level is 80%, with likely inundation of a village nearby at 20%. The "Ensemble flood forecast" certainly helps local administrations with better decision-making and in being better prepared than in a deterministic flood forecast. The United States, the European Union and Japan have already shifted towards "Ensemble flood forecasting"
alongwith "Inundation modelling". India has only recently shifted towards "Deterministic forecast" (i.e. "Rising" or "Falling" type forecast per model run).
The shortcomings with Indian flood forecasting are glaring.
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 10 OA.No.170/00152/2023/CAT/BANGALORE A case of multiple agencies The India Meteorological Department (IMD) issues meteorological or weather forecasts while the Central Water Commission (CWC) issues flood forecasts at various river points. The end-user agencies are disaster management authorities and local administrations.
Therefore, the advancement of flood forecasting depends on how quickly rainfall is estimated and forecast by the IMD and how quickly the CWC integrates the rainfall forecast (also known as Quantitative Precipitation Forecast or QPF) with flood forecast. It also is linked to how fast the CWC disseminates this data to end user agencies.
Thus, the length of time from issuance of the forecast and occurrence of a flood event termed as "lead time" is the most crucial aspect of any flood forecast to enable risk-based decision-making and undertake cost-effective rescue missions by end user agencies.
Technology plays a part in increasing lead time. Reports suggest that the IMD has about 35 advanced Doppler weather radars to help it with weather forecasting. Compared to point scale rainfall data from rain gauges, Doppler weather radars can measure the likely rainfall directly (known as Quantitative Precipitation Estimation or QPE) from the cloud reflectivity over a large area; thus the lead time can be extended by up to three days.
But the advantage of advanced technology becomes infructuous because most flood forecasts at several river points across India are based on outdated statistical methods (of the type gauge-to-gauge correlation and multiple coaxial correlations) that enable a lead time of less than 24 hours. This is contrary to the perception that India's flood forecast is driven by Google's most advanced Artificial Intelligence (AI) techniques! These statistical methods fail to capture the hydrological response of river basins between a base station and a forecast station. They cannot be coupled with QPF too. Google AI has adopted the hydrological data and forecast models derived for diverse river basins across the world for mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 11 OA.No.170/00152/2023/CAT/BANGALORE training AI to issue flood alerts in India. This bypasses the data deficiencies and shortcomings of forecasts based on statistical methods.
Not uniform across India A study by the National Institute of Technology, Warangal, Telangana shows that it is only recently that India has moved to using hydrological (or simply rainfall-runoff models) capable of being coupled with QPF. So, a lead time of three days is sporadic in India, and at select river points. Just as the CWC's technological gap limits the IMD's technological advancement, the technological limitations of the IMD can also render any advanced infrastructure deployed by CWC infructuous. Here is another example. The United States which is estimated to have a land area thrice that of India, has about 160 next generation S-band Doppler weather radars (NEXRAD) with a range of 250-300 km. India will need at least an 80-100 S-band dense radar network to cover its entire territory for accurate QPF. Else, the limitations of altitude, range, band, density of radars and its extensive maintenance enlarge the forecast error in QPF which would ultimately reflect in the CWC's flood forecast. Conspicuously, the error margin is always away from the public gaze.
Therefore, outdated technologies and a lack of technological parity between multiple agencies and their poor water governance decrease crucial lead time. Forecasting errors increase and the burden of interpretation shifts to hapless end user agencies. The outcome is an increase in flood risk and disaster.
Ensemble technology Global weather phenomenon is chaotic. For instance theoretically, "the flap of a butterfly's wings in Chennai can create a Tornado in Tokyo" according to MIT's Edward Lorenz. In simple terms and scientifically, any small change in the initial conditions of a weather model results in an output that is completely unexpected. Therefore, beyond a lead time of three days, a deterministic forecast becomes less accurate.
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 12 OA.No.170/00152/2023/CAT/BANGALORE The developed world has shifted from deterministic forecasting towards ensemble weather models that measure uncertainty by causing perturbations in initial conditions, reflecting the different states of the chaotic atmosphere. Probabilities are then computed for different flood events, with a lead time beyond 10 days.
India has a long way to go before mastering ensemble model-based flood forecasting.
Although, the IMD has begun testing and using ensemble models for weather forecast through its 6.8 peta flops supercomputers ("Pratyush" and "Mihir"), the forecasting agency has still to catch up with advanced technology and achieve technological parity with the IMD in order to couple ensemble forecasts to its hydrological models. It has to modernise not only the telemetry infrastructure but also raise technological compatibility with river basin-specific hydrological, hydrodynamic and inundation modelling. To meet that objective, it needs a technically capable workforce that is well versed with ensemble models and capable of coupling the same with flood forecast models. It is only then that India can look forward to probabilistic-based flood forecasts with a lead time of more than seven to 10 days and which will place it on par with the developed world. With integration between multiple flood forecasting agencies, end user agencies can receive probabilistic forecasts that will give them ample time to decide, react, prepare and undertake risk-based analysis and cost- effective rescue missions, reducing flood hazard across the length and breadth of India.
(J. Harsha is Director, Central Water Commission, Government of India. The views expressed are personal)"
9. In this case, the charge sheet was issued on 29.01.2021. Looking to the controversy involved in this case, it will be proper to mention the charge sheet and Statement of imputation of misconduct in support of the article of charge which are as under:-
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 13 OA.No.170/00152/2023/CAT/BANGALORE "Statement of article of charge framed against Shri J. Harsh, Director, Central Water Commission ARTICLE I That Shri J. Harsha, while holding the post of Director (Monitoring), Cauvery & Southern Rivers Organization (CSRO) at Coimbatore, CWC, published an article titled "NOT MANY LESSONS LEARNT FROM WATER PLANNING FAILURES" in the Hindu, on 13.12.2019, through which he has criticised the Government initiatives, in the field of Water, especially "JAL SHAKTI ABHIYAN" (JSA), without taking prior permission from the Government, which amounts to misconduct and thus, violated Rule 9 (i) of CCS (Conduct) Rules, 1964.
Despite a show cause notice issued by CWC, Shri J. Harsha, Director has published another article titled "PLAYING CATCH UP IN FLOOD FORECASTING TECHNOLOGY", in 'The Hindu' on 08.10.2020, which criticized the Government policies and programme, without taking prior permission from the Government, which amounts to misconduct and thus, violated Rule 9
(i) of CCS (Conduct) Rules, 1964, ARTICLE II By way of the aforesaid actions mentioned in ARTICLE-
I, Shri J. Harsha, Director, has failed to maintain integrity & devotion to his duties and has thus acted in a manner that is unbecoming of a Government Servant and thus, violated Rule 3(1)(i) and Rule 3(1)(ii) of CCS (Conduct) Rules, 1964."
"Statement of imputation of misconduct in support of the article of Charge against Shri J. Harsha, Director, Central Water Commission.
ARTICLE I That Shri J. Harsha, while holding the post of Director (Monitoring), Cauvery & Southern Rivers mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 14 OA.No.170/00152/2023/CAT/BANGALORE Organization (CSRO) at Coimbatore, CWC, published an article titled "NOT MANY LESSONS LEARNT FROM WATER PLANNING FAILURES" in the Hindu, on 13.12.2019 criticizing the Government Initiative in "JAL SHAKTI ABHIYAN" (JSA).
2. That Shri J. Harsha, has presented factually incorrect information and raised questions on the credibility of the JSA by asserting arguments such as the selection of geographies for the JSA was non-scientific and raised doubts about the quality of the structures constructed under the JSA, etc. CWC issued an OM, dated 13.12.2019 to Shri J. Harsha, Director, calling for an explanation, as to why disciplinary proceedings should not be initiated against him, for publishing of the article, which criticized the Government policies and programme, without taking the prior permission from the Government.
3. That Shri Harsha had submitted his explanations to CWC, in response to the aforesaid O.M. and claimed that the aforesaid article was written in his personal capacity and not in his official capacity, which is in line with the CCS (Conduct) Rules, 1964. He also claimed that the aforesaid article is nothing more than a feedback or suggestion instead of criticism. It has been observed from the reply of Shri Harsha that it is completely devoid of substantiation/justification and fails to stand to the scrutiny of reasoning. It is, further seen that the article is entirely and holistically, a criticism of the Government, thereby contravening the provisions contained in Rule 9 (i) of CCS (Conduct) Rules, 1964.
4. That despite, a show cause notice issued by CWC as indicated above, Shri J. Harsha, Director has published another article titled "PLAYING CATCH UP IN FLOOD FORECASTING TECHNOLOGY" in 'The Hindu' on 08.10.2020, criticizing the technology/models used by India for weather and flood forecasting, without taking the prior permission from the Government.
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 15 OA.No.170/00152/2023/CAT/BANGALORE
5. The article has reference of the functioning of Indian Meteorological Department (IMD) and Central Water Commission (CWC). The Director General of Meteorology had expressed his displeasure stating that the Shri Harsha has presented many misconception and factually incorrect information regarding IMD and CWC.
6. That Shri J. Harsha, Director, through his articles published in his name in the widely circulated Newspaper, has criticized the Government policies and mechanism, thereby contravening the provisions of Rule 9 (i) of CCS (Conduct) Rules, 1964.
ARTICLE II That Shri J. Harsha, while holding the post of Director in CWC, is repeatedly criticizing the Government, in which he is serving, and presenting misinformation for consumption of general public to mislead the public in general about the programmes, policies and organisations of the Government, which are part of Government Machinery and thereby he has failed to maintain integrity & devotion to his duties and acted in a manner which is unbecoming of a Government Servant, thereby violating provisions of Rule 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964."
10. As per applicant, the order of minor penalty under Rule 16 should be passed within 2 months from the date of receipt of defence statement. In this case, the defence statement (Annexure
- A5) was filed on 05.02.2021. Therefore, the order was required to be passed by 05.04.2021, while the present order (Annexure - A2) has been passed on 02.02.2023. According to the applicant, the order has not been passed within the prescribed limitation and mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 16 OA.No.170/00152/2023/CAT/BANGALORE unexplained delay has vitiated the proceedings. The applicant draws attention towards CVC Instructions dated 23.05.2000 (Annexure - A9). If we peruse the aforesaid letter dated 23.05.2000 issued by Central Vigilance Commission, Government of India, then in the first paragraph it is stated: -
" Delays in disposal of disciplinary cases are a matter of serious concern to the Commission. Such delays also affect the morale of the suspected/charged employees and others in the organisation. The Commission has issued instructions, vide its communication No. 8(1)(g)/99(3) dated 03.03.1999, that departmental inquiries should be completed within a period of six months from the date of appointment of Inquiry Officers. Regarding other stages of investigation/inquiry, the time-schedule, as under, has been laid down in the Special Chapters on Vigilance Management in Public Sector Banks/Enterprises, which are applicable to the employees of public sector banks / enterprises. The Commission desires that these time- limits should also be adhered to by the Ministry/Departments of Government of India, autonomous organisations and other Cooperative Societies, in respect of their employees, so as to ensure that the disciplinary cases are disposed of quickly."
11. After the aforesaid para one table has been given in which at Serial No.10 it is mentioned that "issue of final order in minor penalty cases": - "two months from the receipt of defence statement". The language of first paragraph shows that it is only an advice. Any mandatory order has not been issued. In mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 17 OA.No.170/00152/2023/CAT/BANGALORE some cases, it is not possible to pass the aforesaid order within the prescribed period. Therefore, only delay will not vitiate the entire proceedings. Therefore, the objection in this regard is not maintainable. In view of this Tribunal, the order has been passed after the period of two months, but only upon this ground it cannot be said that the proceedings are vitiated.
12. Another ground has been taken by the applicant in para 5(J) of the OA which is related to the approval of charge sheet. As per applicant, the charge sheet has not been approved by the Minister because the Minister mentioned "approved as discussed". It is submitted by the applicant that it is not clear with whom the matter was discussed. Therefore, the approval given by the Minister is not absolute but incomplete. The charge sheet was not issued or even approved by the Minister. As per order sheet, the Minister gave alleged approval on 27.01.2021. After the approval, one Deputy Secretary on 27.01.2021 directs to submit a draft memo as per Rule 16. On 28.01.2021, one Assistant Section Officer mentioned "as directed, a draft memo has been attached for consideration and approval". Thereafter, on 29.01.2021, the Deputy Secretary directs to send the charge sheet to the applicant through e-mail, speed post and also through Secretary CWC. Draft mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 18 OA.No.170/00152/2023/CAT/BANGALORE memo which was sent to the applicant was neither approved nor signed by anyone, least the Minister and was sent. Therefore, such memo is apparently illegal and non-est.
13. The respondents opposed the aforesaid contention and submitted that the charge sheet has been duly approved by the competent authority i.e. Minister of Jal Shakti. After discussion and perusal of the record, the Minister approved the charge sheet.
14. In support of the aforesaid objection, the applicant placed reliance upon the B.V. Gopinath case.
15.(a). In the case of Union of India v. B.V. Gopinath, 2013 SCC OnLine SC 801 = (2014) 1 SCC 351 = (2014) 1 SCC (L&S) 161 = 2014[1] SLJ 1[SC] the central issue was for consideration "whether the charge-sheet issued against the respondents is without jurisdiction, in view of the fact that the disciplinary authority i.e. the Finance Minister, had not given approval for issuing the charge memo, even though he had given approval for initiation of major penalty proceedings against the respondents." In the aforesaid case the applicant B.V. Gopinath was working upon the post of Additional Commissioner of Income Tax. On 7-9-2005/8-9-2005, Mr Gopinath was served with a mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 19 OA.No.170/00152/2023/CAT/BANGALORE charge-sheet under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [hereinafter referred to as "the CCS (CCA) Rules"]. CAT quashed the charge-sheet on the ground that there was nothing on record to show that the Finance Minister approved the charge-sheet. Delhi High Court dismissed the said writ petition. The Supreme Court examine the matter in detail and come to the conclusion that the charge-sheet / charge memo having not been approved by the disciplinary authority was non est in the eye of the law. The Supreme Court observed that Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all-India service can be dismissed or removed by an authority subordinate to that by which he was appointed. To effectuate the guarantee contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2), the Government of India has promulgated the CCS (CCA) Rules, 1965.
15(b). The Supreme Court did not approve the contention of the State that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge-sheet can be mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 20 OA.No.170/00152/2023/CAT/BANGALORE drawn up by an authority other than the disciplinary authority. Supreme Court said in para 41 that; -
"41. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge-sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge-sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge-sheet. Such a charge-sheet can only be issued upon approval by the appointing authority i.e. Finance Minister."
15(c). In Para 44, 45 and 46, the Supreme Court highlighted the provision regarding approval and issuing the chargesheet and said When the decision is taken by the Finance Minister that the departmental proceedings are to be held, the mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 21 OA.No.170/00152/2023/CAT/BANGALORE department would thereafter complete the necessary formalities and then place the file before the Finance Minister, for "approval of" charge memo. The Court said: -
"44. Under Clause (9), the department firstly puts up the file before the Finance Minister seeking "approval for issuing charge memo/sanction of prosecution". The department is seeking an order as to whether the officer is to be proceeded against departmentally or criminal proceedings are to be initiated or both proceedings are to be commenced simultaneously. When the decision is taken by the Finance Minister that the departmental proceedings are to be held (initiation), only then the question of approval of charge memo arises. The department would thereafter complete the necessary formalities and then place the file before the Finance Minister, for "approval of" charge memo. This provision is in harmony with the mandate contained under Articles 311(1) and (2) that no civil servant shall be dismissed or removed by an authority subordinate to that by which he was appointed. The second limb of the same direction is that punishment on a public servant of dismissal, removal or reduction in rank can only be imposed when the charges have been proved against him in a departmental enquiry held in accordance with the rules of natural justice.
45. ............. So the intention is clearly manifest that all decisions with regard to the approval of charge memo, dropping of the charge memo, modification /amendment of charges have to be taken by the Finance Minister.
49. We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer.
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 22 OA.No.170/00152/2023/CAT/BANGALORE Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC's second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officer's report; tentative decision after CVC's second stage advice on imposition of penalty; final decision of penalty and revision /review /memorial have to be taken by the Finance Minister.
16. In the case of Sunny Abraham v. Union of India, (2021) 20 SCC 12 : 2021 SCC OnLine SC 1284 the appellant was an Assistant Commissioner of Income Tax. The authorities issued a memorandum of charges (charge memorandum) proposing to hold an inquiry against him on 18-11-2002 for major penalty under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Disciplinary proceeding was initiated against the appellant with the approval of the disciplinary authority, the Finance Minister on 19-9-2002. On 18-11-2002, the charge memorandum was issued to the appellant. Charge memorandum was however not specifically approved by the Finance Minister. The Supreme Court placed the reliance upon Union of India v. B.V. Gopinath, (2014) 1 SCC 351 : (2014) 1 SCC (L&S) 161 and set aside the judgment [Union of India v.
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 23 OA.No.170/00152/2023/CAT/BANGALORE Sunny Abraham, 2017 SCC OnLine Del 12879] of the High Court and restore the judgment of the Principal Bench of the Central Administrative Tribunal delivered on 20-4-2015 in Sunny Abraham v. Union of India [Sunny Abraham v. Union of India, 2015 SCC OnLine CAT 3067]. The Court did not approve ex post facto sanction of the charge memorandum or charge-sheet which was given when the departmental proceeding was pending.
17. In the light of the aforesaid observations by the Hon'ble Supreme Court, if the present matter is examined then it appears that Annexure - A12 is the copy of the official note sheet which was submitted before the disciplinary authority / Minister of Jal Shakti Department. The note sheet starts from 12.01.2021.
Thereafter, on 13.01.2021, the Note No. 35 was submitted for the Minister's approval by departmental authorities. Note No. 36 was written by Additional Secretary on 13.01.2021 and the matter was submitted to the Minister. For better appreciation it will be useful to refer Note No. 35 and Note No. 36 which are as under: -"Note No. # 35
The file is regarding instituting penalty proceedings against Shri J. Harsha Director, CWC for criticizing the Government initiatives by publishing different articles two times in "The Hindu" Newspaper on 13.12.2019 and 9.10.2020.
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 24 OA.No.170/00152/2023/CAT/BANGALORE Pl see the Note #34 It seems prior permission has not been taken by the officer before publishing the articles. Rule (9) of the CCS (Conduct) Rules, 1964 prohibits Govt officers from any kind of criticism of the government and its policies. Similarly Rule (3) of the Conduct Rules prescribes certain norms to be followed by the govt officers. Perused the matter. Overall it seems, it would be appropriate to go for summary inquiry against the officer under Rule (16) of the CCS (CCA) Rules for a Minor penalty.
Submitted for Minister Approval.
13/01/2021 2:03 PM SUBODH YADAV (JS(IC & GW)) Note No. #36 We could have taken a lenient view if there was a single instance of publications critical of Government functioning. This is the second time. While the points raised may be valid, it is inappropriate for a serving Government servant to criticize Government policies / actions in public. He can and should raise it in internal for a. I therefore, recommend the course of action suggested by JS(A). For orders/approval of the Minister, please. 13/01/2021 2:21 PM DEBASHREE MUKHERJEE (ADDITIONAL SECRETARY)"
18. The aforesaid noting was submitted to the Minister of Jal Shakti. On 25.01.2021 the file was returned by the PS of Hon'ble Minister with the remark for putting up afresh. Thereafter, on 27.01.2021 the Minister mentioned "approved as discussed". mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 25 OA.No.170/00152/2023/CAT/BANGALORE After the approval of Minister on 27.01.2021, the matter again reached to the Department. Note No. 41 dated 27.01.2021 written by DS (E-1) shows that in the aforesaid note the direction was given to submit the draft memo as per Rule 16 of CCS (CCA) Rules, 196 quickly. Thereafter, Note No. 43 shows that the draft memo was submitted for consideration and approval by ASO and the Note No. 45 written by DS (E-1) on 29.01.2021 shows that the aforesaid officer gave the direction to send the aforesaid charge sheet through e-mail, speed post and through Secretary, CWC to the applicant Dr. J. Harsha. The aforesaid entire note sheet (Annexure - A12) shows that after preparation of the charge sheet / draft memo the matter was not submitted for approval of the Minister of Jal Shakti. Note No. 35 & 36 shows that previously the Minister gave the approval for taking the appropriate summary inquiry. But the charge sheet was never put up before the Minister for approval. Without approval of the Minister the charge sheet was issued. Therefore, the matter is squarely covered with the B.V. Gopinath (supra) case and the aforesaid charge sheet cannot be held a valid charge sheet in the light of aforesaid pronouncement of the Hon'ble Supreme Court.
mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 26 OA.No.170/00152/2023/CAT/BANGALORE
19. As per the respondents' case and Annexure - A12, the action was taken upon the ground that without prior permission the applicant published the articles and Rule 9 of CCS (Conduct) Rules, 1964 prohibits government officers from any kind of criticism of the government and its policies. It is also mentioned in the Note No. 35 that Rule (3) of the Conduct Rules prescribed certain norms to be followed by the government officer. The Rule 9 of the CCS (Conduct) Rules, 1964 says: -
9. Criticism of Government No Government servant shall, in 1[any radio broadcast, telecast through any electronic media] or in any document published in his own name or anonymously, pseudonymously or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion -
(i) which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government:1
[Provided that in the case of any Government servant included in any category of Government servants specified in the second proviso to sub-rule (3) of Rule 1, nothing contained in this clause shall apply to bona fide expression of views by him as an office-bearer of a trade union or association of Government servants for the purpose of safeguarding the conditions of service of such Government servants or for securing an improvement thereof ]; or mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 27 OA.No.170/00152/2023/CAT/BANGALORE
(ii) which is capable of embarrassing the relations between the Central Government and the Government of any State; or
(iii) which is capable of embarrassing the relations between the Central Government and the Government of any foreign State:
Provided that nothing in this rule shall apply to any statements made or views expressed by a Government servant in his official capacity or in the due performance of the duties assigned to him.
Therefore, it appears that the aforesaid rule prohibits the government servants from adverse criticism of any current or recent policy or the action of the Central Government or a State Government. The Rule does not say that in each and every case the prior permission is required and the government servant cannot publish any article without taking the prior permission. If the article has no criticism, then in view of this Tribunal, prior permission is not required.
20. In the present case, the applicant submitted the copy of the information dated 15.01.2020 and 18.11.2020 in which the information has been provided in reply to the application submitted by applicant under Right to Information Act, 2005. In the letter dated 18.11.2020, Question Nos. 3 & 4 were related to the aforesaid subject and the information was sought regarding the mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 28 OA.No.170/00152/2023/CAT/BANGALORE specific words, sentences in the articles which are treated as criticism of the Government policy. Question Nos. 3 & 4 are as under: -
"3. Kindly provide information about the specific words, sentences in the article titled/ Playing catch up in flood forecasting technology/wherein Director-
General, India Meteorological Department (IMD), Central Water Commission (CWC) or any Government agency has regarded them as criticism of the government mechanism.
4. Kindly provide information about the specific words, sentences in the article titled/ playing catch up in flood forecasting technology/ that mentions functioning of the technical organization."
21. The answers of the aforesaid questions were given by the government in the following words: -
"No information is available with the undersigned CPIO".
Therefore, it appears that under the RTI Act, the government was unable to give the information about the specific word or sentence which were treated by the government as criticism of the government policy.
22. In addition to the aforesaid, if we peruse the Statement of Imputation of Misconduct in support of the article of charge sheet then it is also transpired that in the entire document no any specific mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 29 OA.No.170/00152/2023/CAT/BANGALORE word or sentence has been mentioned by the concerned authority which has been taken as a "criticism". In paras 3 & 4, it is only mentioned that "the article is entirely and holistically, a criticism of the Government" and "criticizing the technology / models used by India for weather and flood forecasting, without taking the prior permission from the Government". The aforesaid sentence is not sufficient for establishing the charge. Rule 9 specifically says that the government servant cannot criticize the current or recent policy or the action of the Central Government or the State Government. Therefore, it should be specifically mentioned in the charge sheet or in the statement of Imputation that which words or sentences are taken as a criticism and come under the purview of Section 9 of the CCS (Conduct) Rules, 1964. The charge sheet is not complete. The main reason for initiating the charge sheet i.e. particular words or sentences are not mentioned in the aforesaid "charge sheet" and "Statement of Imputation".
23. Annexure - A5 dated 05.02.2021 is the reply of charge sheet filed by the applicant. After serving the charge sheet, the applicant submitted the aforesaid reply. The reply runs up to 8 pages and also annexed with various documents. He explained the particular portions of the articles and gave the reasons for mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 30 OA.No.170/00152/2023/CAT/BANGALORE mentioning the aforesaid, facts but in the punishment order dated 02.02.2023 (quoted earlier) the competent authority did not mention any portion of the reply submitted by the applicant. Only shortcut method has been adopted and the punishment of minor penalty has been awarded. If the evidence has not been recorded in any proceeding, then it is the duty of the concerned officer to mention the important grounds raised by the applicant in his reply and the reasons for not believing the aforesaid reply. But the present case does not qualify the requirement. Reply of applicant has not been considered and the punishment order has been passed.
24. It also appears from the perusal of the charge sheet that the disciplinary authority did not apply his mind before issuing the charge sheet. Any basis of issuing the charge sheet is not mentioned in the charge sheet or the Statement of Imputation. In para 5, it is mentioned that "the Director General of Meteorology has expressed his displeasure stating that the Shri Harsha has presented many misconception and factually incorrect information regarding IMD and CWC."
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25. Any portion of the concerned article showing misconception or incorrect information has not been mentioned in the article of charge. It appears from the record that the action was based upon press release dated 14.12.2019 by the Press Information Bureau, Government of India, Ministry of Jal Shakti and a letter dated 09.10.2020 written by Dr. Mrutyunjay Mohapatra, Director General of Meteorology. In the aforesaid letter dated 09.10.2020 in the last para, the concerned officer has mentioned that articles contributed by the applicant is found factually incorrect and unwarranted. In the entire letter, it is not mentioned that the articles have any adverse criticism to the government policies. Therefore, the concerned authority / disciplinary authority was required to apply its own mind and draw the conclusion whether the aforesaid facts were correct or not. But he relied only upon the letter and press release and without applying his own mind the charge sheet was issued in which any portion of the article was not clearly mentioned. In the aforesaid letter, only "suggestion" was given that the employees "should suitably advice" to restrain from writing such type of articles and suggest that he should write a rejoinder in the paper. Only suggestion was given but the department initiated the proceedings mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 32 OA.No.170/00152/2023/CAT/BANGALORE of departmental inquiry. In the press release dated 14.12.2019, the Government explained its own version.
26. If we read the entire articles Annexures - A3 and A4 then, prima facie it appears that no any criticism has been made. The applicant was a research scholar conducting research on the topic of 'Integrated Water Resources Management' at the time of publishing the two articles. In the year 2022, he completed his degree of Doctor of Philosophy. The applicant was also working as Director, Central Water Engineering Group - A Service and was having 20 years' experience in the field of water resources management. The applicant had written and published about 42 articles on water management since 2011. In both the articles, he drew attention towards some lacunas and difficulties in the implementation of the policies. The applicant expressed his own views. It appears that any "intentional criticism" is not found. The applicant did not criticize any of the act of government. If an employee or officer gave some suggestions for improvement of the government work and pointed out the lacunas then it should be appreciated and it cannot be treated as criticism of the government policy. For better improvement, all suggestions should be given mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30' 33 OA.No.170/00152/2023/CAT/BANGALORE proper consideration. It cannot be said that in each and every case the government is always correct.
27. Some policies have some lacunas and after receiving some suggestions for better implementation, time to time government also change their policies. Hence, the suggestions should be encouraged and should be accepted. The government employees should not be demoralized by saying that he criticized the government policy. In the entire language of both the articles, the Tribunal did not find any sentence which comes under the purview of criticizing the government policies. For better implementation, the applicant pointed out the lapses and lacunas and also gave important suggestions. The government officers should be given full freedom to express their views without intentional criticism. The applicant rightly mentioned in para 5(G) of the OA as under:-
"Because, the term 'criticism' of Government policy is a subjective term. It can be used as suited to the person using the term. To have a differing view or to point out the shortcomings of the policy is for betterment and improvement of the policy for welfare of the pubic. To restrict a person, even in technical services and belonging to premier technical organization in the field of water resources, to express his differing view will stifle the morale and public good. The Government is always open to new ideas and initiatives."
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28. Therefore, it appears that the charge sheet was not approved by the competent authority and the charges were incomplete. No any fact relating to Rule 9 of CCS (Conduct) Rules, 1964 were specifically mentioned in the charge sheet or statement of imputation. The reply of the applicant was not considered. The articles were not examined by the respondent authority in the light of Clause 1.3(vii) & 12.4 and Clause 15.1 & 15.5 of the "National Water Policy - 2012". Action was initiated only upon the press note and Letter of D.G. of Meteorology and the authority did not apply his mind independently.
29. Therefore, the OA is allowed and the charge sheet dated 29.01.2021 (Annexure - A1) and the penalty order dated 02.02.2023 (Annexure - A2) are quashed and set aside.
30. Parties shall bear their own costs.
(JUSTICE B.K. SHRIVASTAVA) MEMBER (J) /ms/ mikashamikasha suneja CAT Bangalore suneja 2024.11.28 10:01:39+05'30'