Central Administrative Tribunal - Delhi
Sudha Midha vs M/O Statistics on 18 April, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.3586/2015
Order Reserved on:05.04.2016
Pronounced on:18.04.2016.
Hon'ble Mr. Justice M.S. Sullar, Member (J)
Hon'ble Mr. K.N. Shrivastava, Member (A)
Ms. Sudha Midha,
W/o Shri V.K. Midha,
Presently ADG, Ministry of Statistics
& Programme Implementation,
R/o B6, Tower-5,
New Moti Bagh,
New Delhi-110023.
-Applicant
(By Advocate Shri Ashish Nischal)
-Versus-
Union of India through
Secretary, Ministry of Statistics & Programme
Implementation, Sardar Patel Bhawan,
Sansad Marg,
New Delhi-110001.
-Respondents
(By Advocate Shri Gyanendera Singh)
ORDER
Mr. K.N. Shrivastava, Member (A):
This O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985. The specific reliefs prayed for in the OA read as under:
"(a) Quash the impugned Charge Sheet issued vide Memo No.12011/28/2014-APAR dated the 7th September, 2015 and grant all consequential benefits 2 (OA No.3586/2015) including promotion to the applicant with a time bound direction.
(b) Award exemplary cost as the applicant has been compelled to undergo second round of litigation for no fault of her.
(c) Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."
2. The brief facts of this case are as under. 2.1 The applicant joined the Indian Statistical Service (ISS) in 1979 and is presently holding the post of Additional Director General (ADG) and is due to superannuate on 31.07.2016.
2.2 On 01.05.2015 a minor penalty charge-sheet was issued to her under Rule 16 of CCS (CCS) Rules, 1965, in which the following Articles of charges were levied against her:
"ARTICLE I Smt. Sudha Midha, ISS presently posted as Additional Director General, CSO, SSD, MOSPI, New Delhi, while working as Adviser (Horticulture), Ministry of Agriculture submitted her APAR for the period 2011-12 along with her self-resume on 03.05.2012 for Reporting, Reviewing and Acceptance by the respective Reporting, Reviewing and Accepting Officers. After completion of the APARs by the respective Reporting and Reviewing Officers, Smt. Sudha Midha unauthorizedly made entries under her signature dated 15.03.2013 in Part-V of the APAR which was meant for entry by the respective 3 (OA No.3586/2015) Accepting Authority in the Ministry of Agriculture. And on the very next page of the APAR, she certified under her signature also dated 15.03.2013 about having gone through the assessment given by the respective Reporting/Reviewing Officers in the APAR.
Thus Smt. Sudha Midha, ADG, CSO, SSD, MOSPI unauthorisedly made entries in Part-V of the APAR for the period 2011-12 and thereby indulged in mischief and fraud. Mischief and fraud in the ACRs/APARs, in which the culpability of the officer concerned is well borne out, and the culpability is self-evidently for the purpose of undue benefit in the fundamental record for promotion, is a serious misconduct. This is unbecoming of a Government servant and thus she has violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
ARTICLE II Smt. Sudha Midha, ISS, presently posted as Additional Director General, CSO, SSD, MOSPI, New Delhi while working as Deputy Director General, Ministry of Water Resources submitted her APAR for the period 01.04.2012 to 31.01.2013 with self-resume dated 31.01.2013 using the pre- revised APAR form, which does not contain the Part-V for acceptance by the Accepting Authority. It is significant that Smt. Sudha Midha had used the revised form for APAR of 2011-12 i.e. for the APAR of the immediately preceding year.
Thus Smt. Sudha Midha, ISS, presently posted as Additional Director General, CSO SSD, MOSPI, who had submitted APAR for the year 2011-12 in the revised form, deliberately submitted the pre- revised format of APAR for the period 01.04.2012 to 31.01.2013 which was without Part-V for acceptance by the Accepting Authority, Smt. Sudha Midha, Additional Director General, CSO, SSD, MOSPI has thus indulged into activity which is unbecoming of a Government servant and thus she has violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964."4
(OA No.3586/2015) 2.3 The applicant, on receipt of the said charge sheet, submitted her reply on 05.06.2015, denying commission of any misconduct, and requesting the Disciplinary Authority to exonerate her of the charges by accepting her reply to the show cause notice. An additional reply was also filed by the applicant on 09.07.2015. The Disciplinary Authority, however, did not take any decision on the reply as well as the additional reply filed by the applicant. 2.4 The applicant challenged the said charge-sheet in OA-2846/2015 before this Tribunal. The said OA was allowed vide order dated 10.09.2015 (Annexure A-2).
2.5 The applicant has been issued another minor penalty charge-sheet dated 07.09.2015 (Annexure A-1) in which two Articles of charges have been levied. The said charge-sheet is impugned in this OA. The gist of these charges is as under:
"ARTICLE-I Smt. Sudha Midha, ADG, while working as DDG in NSSO (FOD), Faridabad, submitted her self- appraisal of the APAR for the period August 2006 to December 2006 without the requisite and mandatory entry and certification of Administration Section in Part I Personal Data.5
(OA No.3586/2015) The date of submission of the self-appraisal was changed by use of whitening fluid to make it read as 22/23/1/2007. The whitening fluid was used to erase one digit in the figure of the month. In place of '10' or '11' or '12', the month was made to read as '1' by erasing the latter digit in the figure with whitening fluid.
ARTICLE-II Smt. Sudha Midha, ADG, while working as DDG in NSSO (FOD), Faridabad, submitted her APAR for the period 2007-2008 in two parts (first part April 2007 to September, 2007, second part September 2007 to March 2008. Self-appraisal of the APAR for the period April 2007 to September, 2007 was without the requisite and mandatory certification of Administration Section in Part I - Personal Data. In the APAR for the period April-September, 2007 Smt. Sudha Midha used two different sets of APAR forms by merging them together. Whitening fluid was used to change the date of report on the front page."
xxx xxx xxx xxx xxx xxx xxx xxx Smt. Sudha manipulated submission of her APAR for the period September, 2007 to March, 2008 by pasting her signature page of her self-appraisal with the next page. She also manipulated an irregular and unauthorised 'no review certificate' dated 19.07.2008 from the Reporting Officer. She further manipulated to ensure no review by the Reporting Officer.
"Thus Smt. Sudha Midha, ADG committed misconduct of deliberately tampering with official record of APAR, which is the fundamental record for assessing the suitability of officers for 6 (OA No.3586/2015) promotion, empanelment, etc., and thereby acted in a manner violative of professional integrity and conduct, failed to maintain high ethical standards and honesty, and did not refrain from doing anything which is or may be contrary to any law, rules, regulations and established practices, which is unbecoming of Government Servant and violative of the provisions of Rule 3 (1)(i), (ii), (iii), (vi), & (xviii) of CCS (Conduct) Rules, 1965."
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply. The applicant filed her rejoinder thereafter. With the completion of the pleadings, the case was taken up for hearing of arguments on 05.04.2016. Shri Ashish Nischal, learned counsel for the applicant and Shri Gyanendra Singh, learned counsel for the respondents argued the case.
4. The learned counsel for the applicant, besides highlighting the issues raised in the OA and the rejoinder, submitted that the impugned charge-sheet is almost identical to the earlier charge-sheet issued on 01.05.2015, which was quashed by this Hon'ble Tribunal vide order dated 10.09.2015 in OA- 2846/2015 on the ground that no misconduct on the part of the applicant has been made out. The learned counsel further submitted that the charge-sheet has been issued after an unexplained long delay of 09 years 7 (OA No.3586/2015) and that all these years the applicant's ACRs were in the custody and knowledge of the respondents. The learned counsel vehemently argued that the ACR for the year 2007-08 had been considered by the respondents while granting Non-Functional Selection Grade (NFSG) to her vide order dated 16.08.2012 (page 213 of the paper-book). The learned counsel further stated that the applicant was promoted from Senior Administrative Grade (SAG) to Higher Administrative Grade-II (HAG-II) vide respondents' order dated 04.02.2013 (page 215 of the paper-book) after a DPC meeting was held by the UPSC on 05.10.2012. The learned counsel drew our attention to Annexure A-4 OM dated 20.03.2015 issued by the respondents in which the ACR for the year 2007-08 has been considered. The alleged irregularities committed by the applicant in the writing of her ACR/APAR have never been brought out. He stated that in connection with the earlier charge-sheet dated 01.05.2015, the respondents had made a reference to the UPSC seeking its advice. The UPSC vide its letter dated 19.08.2015 (page 218 of the paper-book) inter alia, had advised as under:
8
(OA No.3586/2015) "the charge regarding the CO using an old APAR form cannot be held against her. In any case, if there was a mistake, the same could have been pointed out at any stage and the CO could have been asked to resubmit her self-appraisal in the relevant form."
In furtherance of his arguments, the learned counsel for the applicant placed reliance on the following judgments:
a) State of Bihar v. Ram Singh, [(1992) 4 SCC 54] in which the Hon'ble Apex Court has explained the misconduct as follows:
"The term misconduct may involve moral turpitude, it must be improper or wrong behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgement, carelessness or negligence in performance of duty."
b) In the case of J. Ahmed v. Union of India, [AIR 1979 SC 1022], the Hon'ble Apex Court while dealing with the definition of misconduct has observed that there may be negligence in performance of duty or a lapse in performance of duty, or error of judgment in evaluating the developing situation may be negligence in discharge of duty, but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be 9 (OA No.3586/2015) irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.
c) In the case of Union of India v. Vineet Ohri [WP (C) No. 7914 of 2009, decided on 10.07.2009], the Hon'ble High Court of Delhi has observed that one has to be particularly circumspect, when pseudonymous/ innocuous complaints are received at a time when a public servant is due for promotion.
d) In the case of Union of India & Ors. V. Rajeev Bhargava, [WP(C) No.5859/2010, decided on 08.10.2010], the Hon'ble High Court of Delhi has observed that instances are not far and rare where charge-sheets are issued against the officers who were nearing the destination of their career, and dug out from the cupboards something, with a view to deprive such officers, who have consistently good service record, of their promotion to the higher cadre.
5. Concluding his arguments, the learned counsel for the applicant submitted that the applicant has not committed any misconduct, the ACR/APAR of the applicant for the year 2007-08, which is subject matter in the impugned Annexure A-1 charge-sheet, has been with the respondents for many years but they never 10 (OA No.3586/2015) pointed out any irregularity in it purported to have been committed by the applicant all these years and the applicant has been issued the impugned charge- sheet only to block her next promotion and that too at the fag end of her career. The learned counsel prayed for allowing the OA and for granting the prayers made therein.
6. Per contra, learned counsel for the respondents stated that the disciplinary proceedings are governed by the CCS (CCA) Rules, 1965. A delinquent official gets adequate opportunities to defend himself and in the instant case no rules or instructions have been violated by instituting the disciplinary inquiry against the applicant. The learned counsel further argued that the applicant has pre-maturely approached this Tribunal without exhausting her departmental remedies. He also drew our attention to the judgment of the Hon'ble Apex Court in the case of Union of India v. Ashok Kacker, [1995 Supp. (1) SCC 180] in which the Hon'ble Apex Court has observed that it is pre- mature for a Court to consider a challenge to the charge-sheet when the employee has just rushed to the Court on receiving the charge-sheet. The learned 11 (OA No.3586/2015) counsel vehemently argued that the charge-sheet is based on objective and record based evidence and no act of subjectivity or highhandedness has been indulged into by the respondents. He said that a large number of irregularities have been noticed by the respondents in the APAR of the applicant for various years from which the culpability of the applicant is clearly visible. The learned counsel stated that the applicant must be directed to face the disciplinary inquiry and put-forth all the arguments that she has now put before this Hon'ble Tribunal, before the Inquiry officer to defend herself. Concluding his arguments, the learned counsel submitted that the OA is pre-mature and devoid of merit and as such is liable for dismissal.
7. We have considered the arguments put-forth by the learned counsel for the parties and have also perused the pleadings and documents annexed thereto. We have come to the conclusion that the OA deserves to be allowed for the following reasons:-
i) We find that there are tremendous amount of similarities between the impugned Annexure A-1 charge-sheet dated 07.09.2015 and the charge-sheet 12 (OA No.3586/2015) dated 01.05.2015, which was set aside by this Tribunal vide order dated 10.09.2015 in OA-2846/2015 filed by the present applicant.
ii) Further the respondents have acted upon the relevant years' ACRs/APARs of the applicant, which are subject matter in the impugned charge-sheet, and have granted NFSG to the applicant on 16.08.2012 and later granted her promotion to HAG-II on 04.02.2013. The main APAR in question pertained to the period 2007-
2008, i.e., 01.04.2007 to 30.09.2007 and 10.09.2007 to 31.03.2008.
iii) These APARs have been with the respondents all these years and they have never pointed out any fault or misdemeanour on the part of the applicant saying that these ACRs/APAR have been manipulated by the applicant. Now at this late stage when the applicant is due for her last promotion before she superannuates in another two months, it is absolutely unethical, untenable and illegal to allege that she has manipulated her ACRs. We also take cognizance of the UPSC letter dated 19.08.2015 wherein the UPSC has clearly advised the respondents that no action can be contemplated against the applicant for using the old APAR form. As a matter of fact, issuing blank APAR 13 (OA No.3586/2015) form in the beginning of the financial year asking the officers to fill up their particulars in part-I of the APAR so that the same could be sent to the concerned Reporting/Reviewing/Accepting Authorities is the prime responsibility of the Administrative Division of a Ministry/Department. The respondents have neither stated nor have produced any evidence to show that such an action was indeed taken by their Administrative Division. Such being the factual position, no fault can be attributable to the applicant for using an old APAR form.
8. For the reasons stated in the pre-para, we observe that the impugned A-1 charge-sheet deserves to be quashed and set aside and the same is accordingly done. The OA is allowed.
9. No order as to costs.
(K.N. Shrivastava) (Justice M.S. Sullar) Member (A) Member (J) 'San.'