Central Administrative Tribunal - Delhi
Shri Gorakh Thakur vs Union Of India on 21 March, 2014
Central Administrative Tribunal Principal Bench OA No. 3329/2012 Order Reserved on:28.01.2014 Order Pronounced on: 21.03.2014 Honble Mr. Justice Syed Rafat Alam, Chairman, Honble Dr. B.K. Sinha, Member (A) Shri Gorakh Thakur, Director, Central Water Commission, Sewa Bhawan, R.K. Puram, New Delhi R/o W-32, HUDCO Place, Andrews Ganj, New Delhi-110049 -Applicant (By Advocate: Shri B.K. Berera) -V E R S U S- 1. Union of India, Through Secretary, Ministry of Water Resources, Sharam Shakti Bhawan, New Delhi-110001 2. Chairman, Central Water Commission, Sewa Bhavan, New Delhi-110066 3. Secretary, Union Public Service Commission, Dholpur House, New Delhi -Respondents (By Advocate: Shri D.S. Mahendru) O R D E R Dr. B.K. Sinha, Member (A):
In the instant Original Application, the applicant assails the order dated 08.07.2010 of the respondents imposing minor penalty of withholding of one increment for one year without cumulative effect under Rule 16 of CCS(CCA) Rules, 1965 (hereinafter referred to as Rules, 1965). The applicant is further aggrieved by charge-sheet issued vide memo dated 16.10.2003 on account of non-application of mind based upon the stale and anomalous allegations pertaining to the year 1997-98.
2. The applicant has prayed for the following reliefs:-
(a) Quash and set aside the impugned Order dated 8th July, 2010 imposing minor penalty of withholding of one increment for one year without cumulative effect under Rules 16 of the CCS(CCA) Rules.
(b) Declare that the action of the respondents in issuance of the Charge sheet/memorandum No.7/10/2003-Vig.dated 16-10-2003 after lapse of 5 years illegal and bad in law.
(c) Pass such other or further order as this Honble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case and in the interest of justice.
3. The facts of the case, in brief, are that the applicant was posted as Executive Engineer, N.E. Investigation Div., C.W.C. Itanagar, Arunachal Pradesh from September,1997 to October,1998. He was subsequently promoted to the post of Director in May, 2000 and continues as such. During the course of his positing at Itanagar, on the basis of a source information, police personnel along with the officials of the Forest Department visited the NEID-III, CWC, Itanagar on 8/9.5.1998 and had seized the hand sawn timber from the CWC Godown. On the basis of complaint filed by Range Forest Officer, Banderdewa Range, Arunachal Pradesh, a criminal case was lodged against the applicant, the then EE, NEID-III, CWC, Itanagar and one Lokham Bhai under Sections 49 & 40(b) of Assam Forest Regulation Act, 1891 read with Section 379 IPC. The Criminal Court vide its order dated 07.09.1998 acquitted the applicant as the charges were not substantiated against him. Subsequently, a charge-sheet was issued against the applicant vide Memo dated 16.10.2003 under Rule 16 of Rules, 1965. The following charges were leveled against the applicant:-
IMPUTATION-I On the basis of a source information, Shri A.K. Chakravorty, CE, B7BB informed the Member (RM), CWC, vide his letter dated 03.06.1998, that police personnel along with the officials of Forest Department visited the office and the residential compound of NEID-III, CWC, Itanagar on 8th and 9th May 98 and had seized the hand-swan timber from CWC Godown. The investigation in the matter has revealed that on the basis of the complaint filed by Range Forest Officer, Banderdewa Range, Arunachal Pradesh, a criminal case was lodged against Shri Gorakh Thakur, the then Executive Engineer, NEID-III, CWC, Itanagar, and one Shri Lokham Bhai u/s 9 and 40(b) of Assam Forest Regulation Act 1891 read with Section 379 IPC. The Honble Court vide its order dated 07.09.98 acquitted Shri Thakur as the charges could not be proved against him. However, from the order of the Honble Court, it is observed that Shri Thakur was only given the benefit of doubt. The Court has held that once the goods are acknowledged to have been seized from the office complex and individual responsibility cannot be clearly affortioned, the provisions of Section 197 Cr.PC come into play and as the complainant party did not obtain prosecution sanction, the court is barred from taking cognizance of the offence under Section 40(b) of AFR. However, the Court has observed in their order that the responsibility of Shri Thakur u/s 40 (b) is passive.
From the judgment of the Court dated 07.09.1998, it is noticed that the CWC complex, Chimpu, Itanagar is an official establishment and being the overall incharge of the said premises, Shri Gorakh Thakur was required to ensure that no illegal activities take place in the said premises. However, it has been established that Shri Gorakh Thakur failed in his statutory duty as the Supervisory Officer as Forest Wood was found in unlawful and unauthorized possession in the CWS office complex on 8th and 9th May 1998 by the Forest Department in utter violation of the Section 40(b) of the Assam Forest Regulation Act, 1891, thereby causing serious damage to the reputation of the organization.
By his aforesaid acts, Shri Gorakh Thakur contravened the provisions of Rule3(1)(ii)&(iii) of the CCS(Conduct) Rules, 1964.
IMPUTATION-II On the scrutiny of some cash vouchers, it was observed that Shri Gorakh Thakur is responsible for lack of supervision in so much as while passing the imprest and temporary advance bills of Shri B.Syaman, the then AE, NEID-III, CWC, Itanagar, Shri Thakur failed to notice that in few cases, timbers etc. were being purchased without following the purchase procedure, as the purchase made by the AEE exceeded his financial powers and proper quotations were not called for before the purchase were made. The cases where the said lapse on the part of Shri Thakur occurred are listed below:-
SI.No. From Temporary Advance of Rs.10,000/- drawn on 20.11.97 (C.V. No.80 dated 19.01.98) Expenditure Incurred (in Rs.)
1. Hand Receipt-CV No.3 dated 20.11.97 (supply of bamboo) 900.00
2. Hand Receipt-CV No.6 dated 21.11.97 (supply of 2 m3 of 20mm aggregate) 1000.00
3. Hand Receipt-CV No.12 dated 24.11.97 (supply of bamboo) 825.00
4. Hand Receipt-CV No.28 dated 02.12.97 (supply of bamboo) 660.00 SI.No. From Temporary Advance of Rs.5,000/- drawn on 18.02.98 (CV.No.169 dated 31.03.98) Expenditure Incurred (in Rs.)
1. Hand Receipt-CV No.5 dated 24.02.98 (labour charges) 750.00
2. Hand Receipt-CV No.11 dated 28.02.98 (supply of bricks) 1270.00
3. Hand Receipt-CV No.13 dated 28.02.98 (supply of 2 m3 river boulder) 660.00 As per CWCs OM No.4(3)/83-O&M&WS dated 23.08.1984 vide para 5.37, the AEE has been delegated with the power for making payment in cash not exceeding Rs.500.00 in value for work done or supplies made. While passing the above imprest and temporary advance bills of Shri B.Syaman, Shri Thakur should have pointed out that no purchase procedure was being followed and that the AEE had exceeded his financial powers. But Shri Thakur failed to do so, thus showing lack of supervision over his subordinates.
By his aforesaid acts, Shri Gorakh Thakur contravened the provisions of Rule3(1)(ii)&(iii) of the CCS(Conduct)Rules, 1964. The applicant submitted his explanation on 27.11.2003 denying all the charges.
4. In respect of charge No.1, the applicant submitted that the Division had four sub-divisions, out of which three were located outside Itanagar and the fourth one was in the same campus. He was frequently remained out of Division office i.e. CWC Itanagar for supervision purposes and it was not possible for him to keep a close watch over all offices and the entire campus. Moreover, location of the CWC Complex comprising office and residence was contiguous to Chimpu village, which was inhabited by local tribes who had access to forest. A local contractor was awarded contract to complete one residential building. The hand sawn timber was found in one room of this building and Forest Department had held him personally responsible for the stolen timber being there. In the resultant, a criminal case was lodged where nothing was found against him and he was absolved from all charges leveled against him.
5. In respect of Charge No.2, the applicant submitted that bills had been cleared after due scrutiny and he could not have been held accountable for it. However, nothing was heard on the subject, but after 7 years of issuance of charge-sheet, impugned order of punishment dated 8.7.2010 was issued against the applicant under Rule 16 of the Rules, 1965 holding the aforesaid charges to be substantiated.
6. During the course of the arguments, learned counsel for the applicant principally relied on the following grounds for his OA to succeed:-
(A) There has been inordinate delay separating the incident and award of punishment. The alleged incident has taken place during his posting at Itanagar in 1997-98 while punishment has been awarded in the year 2010. In this regard, the applicant has relied upon a decided case in Union of India & Anr. Vs. Hari Singh by the Honble Delhi High Court in WP(C) No. 4245/2013 & CM No. 9885/2013 decided on 23.9.2013.
(B) That the charge in respect of financial irregularities does not stick against the applicant, as his financial competence to pass bills extended to Rs.10,000/- at the given point of time while he had only cleared bills up to Rs.500 to Rs.600/-, the total being Rs.6,000/-. The above bills were paid by the Assistant Engineer and he had only approved the vouchers following specific examination by the Division Accounts Office and their recommendations.
(C) That charge of supervisory lapse does not hold good against applicant as the raid had been conducted while he was out of headquarters and the entire Campus extended to a large area. He further submitted that the Criminal Court, while taking cognizance of this fact, has exonerated the applicant on the ground that there was nothing to link the finding of forest wood in the campus to his personal culpability.
(D) The impugned penalty order dated 8.7.2010, which was passed after seven years of issuance of charge-sheet, has affected his promotion, as he has been sanctioned non-functional scale effecting from the year 2011, while others have been given the same from the year 2007. Therefore, it has had a continuing effect upon his career prospects and upon his emoluments.
7. The respondents have submitted counter affidavit wherein it has been stated that admittedly, the applicant was tried in a criminal case bearing No.CR 53/98 under Section 49 & 40(b) of Assam Forest Regulation Act, 1891 read with Section 379 IPC and was acquitted on a technical ground i.e. benefit of doubt, yet the court had found him passively responsible and as such, charge-sheet was issued on the basis of incriminating substance found against him by the disciplinary authority being the President.
8. The respondents have challenged the OA on ground of limitation. It is submitted that the applicant had made an appeal on 12.5.2011 which was disposed of vide letter dated 1.7.2011. Accordingly, period of limitation expired on 30.6.2012 while this OA was filed on 21.9.2012.
9. The respondents have also questioned the contention of the applicant regarding his clean exoneration and have submitted that he was exonerated on the basis of benefit of doubt. It was submitted by learned counsel for the respondents that illegal felling of forest was taking place in Arunachal Pradesh and part of stolen timber was being used for construction of houses. The stolen timber wood was being paid by Assistant Engineer, who had exceeded his financial capacity while passing those bills. It was duty of the applicant to properly scrutinize those bills before ratifying the same. Had the applicant been vigilant enough, the act of purchase and utilization of stolen timber wood in construction of Government building within his charge could have been avoided. Rule 3(2)(ii) of CCS(Conduct) Rules, 1965 provides that no Government servant shall in performance of his official duty, or in exercise of powers conferred on him, act otherwise than his best judgment. The applicant, however, failed to discharge his duties in that capacity and he has been rightly charged.
10. Learned counsel for the respondents has further submitted that copy of the UPSC advice had been furnished to the applicant along with the penalty order dated 8.7.2010. Judgment of the Apex Court in Union of India Vs. S.K. Kapoor, 2011(11) SLJ 63 is of a later date and hence not applicable. The applicant failed in his statutory duty since stolen timber wood was found within his charge.
11. Learned counsel for the respondents has further submitted that no personal hearing was given to the applicant, as proceeding had been conducted under Rule 16 of the Rules, 1965 wherein there was no provision for a personal hearing. Moreover, the applicant had never asked for a personal hearing.
12. On the issue of delay in issuance of charge-sheet, the respondents submitted that explanation was sent to the Ministry along with the comments in May, 2003 and disciplinary authority took a decision for initiating minor penalty proceeding under Rule 16 of the Rules 1965 after having sought mandatory advice of the CVC. After receipt of CVC advice on 24.11.2008, the case was referred to the UPSC. Copy of the advice tendered by the UPSC was furnished to the applicant along with penalty order dated 8.7.2010. Moreover, the respondents have further submitted that punishment would hold good only for a period of one year from its date till 8.7.2011. It has already been served out. It does not have any other effect. The grant of non-financial scale is not a promotion. There is no denial of promotion to the applicant. He has not pleaded any other prejudice that has caused to him.
13. The applicant has submitted a rejoinder reiterating the same points as have already been averred in the OA.
14. We have carefully examined the pleadings of the parties and the documents submitted by them. We have also patiently heard the arguments advanced by the respective learned counsels for the parties and on the basis thereof, we find that following three issues are germane for arriving at the decision in this case:
(1) Whether the impugned order is hit by the delay in awarding punishment?
(2) Whether the proceeding is vitiated by non-supply of copy of the UPSC advice?
(3) What reliefs, if any, can be provided to the applicant?
15. In so far as issue of maintainability of the OA on account of delay is concerned, we have taken cognizance of the fact that a Miscellaneous Application has been filed by the applicant for condonation of delay stating therein that the applicant had filed Memorial/Appeal to the President of India being the disciplinary authority in his case and it was only on 01.07.2011, he was informed that no appeal would lie against any order made by the President. We find this explanation plausible, and therefore, condone the delay. The MA is accordingly disposed of.
16. In so far as the first issue is concerned, the judgment in Union of India & Ors Vs. Hari Singh (supra), the Honble High Court of Delhi has taken stock of the previous judgments on the subject of the delay. It is an admitted position that the inordinate delay separating the occurrence and the award of punishment would amount to violation of natural rights. The aforementioned judgment of the Honble High Court takes a stock of the earlier decision in the State of Madhya Pradesh Vs. Bani Singh & Anr., 1990(supp) SCC 738 wherein the Supreme Court upheld the decision of the Tribunal in quashing the proceedings following delay of two years. However, in the case of State of Andhra Padesh Vs. N.Radhakishan, 1998(4) SCC 154, the Honble Supreme Court has clearly provided that:
19. It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer enterusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the Court is to balance these two diverse considerations.
17. Thus, it boils down to the fact that while it is not possible to lay down a standard yardstick for delay, each case would depend upon its own merit and would constitute its own authority. Here we find that sequence of events governs the occurrence and the infliction of punishment:-
DATES EVENTS 08.05.1998 Conduct of raid in the NEID-III , CWC, Itanagar by the officials of Forest Deptt. and Police personnel 07.09.1998 Date of decision of the Court in a criminal May, 2003 Forwarding the recommendation for initiating departmental proceedings to the Ministry 16.10.2003 Service of memorandum upon the applicant 27.11.2003 Reply of the said memorandum 14.8.2008 Reference to the CVC 24.11.2008 Receipt of CVC advice 07.09.2009 Reference to the UPSC 08.03.2010 Receipt of advice from UPSC 08.07.2010 Order of punishment served upon the applicant
18. It is to be noted that there is no doubt that fulfillment of procedures has taken time. However, it has also to be acknowledged that once the matter has been referred to the Ministry, it is not within the control of the respondent No.2 to take action. Likewise once the matter has been referred to the CVC or to the UPSC, again it is beyond the competence of the respondent No.1 or respondent No.2 to take action. We find from the above Table that majority of the time has been spent in consultations. We have also to look to the enormity of impact of the act with which the applicant is charged. State of Arunachal Pradesh is one of the North-eastern States inhabited by total number of 29 tribals. It is full of forest wealth. However, admittedly, a good deal of forest wealth is being stolen. It would be an act irreconcilable with the act of basic governance if stolen timber wood is used in Government works right under the nose of its authorities. Thus, the authorities were right in acting against the applicant. Once the mode of consultation is prescribed, the matter shifts beyond the control of the respondents organization. It has also to be admitted that such is the pressure of work, as submitted by the learned counsel for the respondents, upon the respondent No.3 that being the UPSC and upon the CVC for giving their opinion, which takes good amount of time. However, it does not detract from the gravity of the act of the applicant. Therefore, it is not right to say that the respondent Nos. 1 and 2 alone are responsible for the delay. It is our entire system of corruption in public places that leads to the chocking of the institutions like CVC and the UPSC which have been burdened with the job of checking corruption in the country. Certainly in conclusion we can say that though the delay is there, but defused responsibility of the different parties does not warrant that the applicant should be exonerated only on the ground of delay. It is true that a time-limit has been provided by the Government for different activities. However, it is equally true that if this time-limit were to be rigidly imposed, there would not be even one case where a guilty official would be held accountable for his misdeeds. Therefore taking this fact into account that in the present case there has been delay, the same does not serve to vitiate the proceeding.
19. We take a note of the fact that the UPSC advice was given to the applicant along with order of punishment. We note that in the order of punishment, the advice of the UPSC has been referred to and that the judgment of the S.K.Kapoor (supra) had not been pronounced by this point of time. In S.K. Kapoors judgment, the Honble Supreme Court has held as under:-
6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785. We do not agree.
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8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
20. In the case of Union of India vs. T.V.Patel, (2007) 4 SCC 785, the Honble Supreme Court had held as under:-
12. If the provisions of Art. 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary. If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate, in the terms in which it stands. That does not amount to saying that it is open to the Executive Government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiassed advice and opinion on matters vitally affecting the morale of public services. It is, therefore, incumbent upon the Executive Government, where it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it, not by way of a mere formality, but, with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art. 320(3)(c) could have the effect of nullifying the final order passed by the Government.
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15. ...In view of the law settled by the Constitution Bench of this Court in the case of Srivastava (supra) we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law. In the view that we have taken we allow these appeals. The orders of the High Court and the Tribunal, to the extent indicated above, are set aside. This takes us to consider as to whether the matter be remitted back to the High Court or the Tribunal to deal with the other various grounds raised by the delinquent government officers.
21. The Honble Supreme Court has reviewed the above in S.K. Kapoors case. However, before the pronouncement of the decision in S.K. Kapoors case (supra), the Honble Supreme Court held that the order of T.V. Patels case (supra) was to be binding and good. In the case of Union of India & Anr. Versus Biswabijoyee Panigarihi and Anr [WP(C) No. 4539/2012 decided on 15.07.2013], the Honble Delhi High Court, relying upon the decisions of Honble Supreme Court in S.K. Kapoors case (supra), State of UP Vs. Manbodhan Lal Srivastava [AIR 1957 SC 912] and Union of India Vs. T.V. Patel (supra), interpreted the law to mean as under:-
19. Now, the constitutional vision pertaining to the role of UPSC is to confer upon it an advisory jurisdiction pertaining to disciplinary matters, which is evidenced from the use of the expression may in sub-Article 3 of Article 320 of the Constitution of India. Opinions by UPSC on disciplinary matters are not binding on the Disciplinary Authority which has to apply its own independent mind as was explained in T.V.Patels case (supra). Now, logic and commonsense guides us that where an opinion has to be sought after Inquiry Officer records evidence and pens a report it would better serve the purpose of the person likely to be affected by such an opinion i.e. the charged officer, if before seeking the opinion his version is obtained and placed before the opinion maker. This would also be a better compliance with the principles of natural justice. That natural justice demands that it be made known to a person whose interest is in issue as to what is the material which would be used by the decision maker would not be attracted in a situation of the kind i.e. the decision maker who is seized with the report of an Inquiry Officer seeks advice of UPSC and the said advice sought is on the report of the Inquiry Officer without the response of the charged officer thereon. This Tribunal is to abide by the interpretation given by the Honble High Court of Delhi in respect of these decisions. Therefore, we are of the considered opinion that furnishing of the UPSC advice along with order of penalty does not serve to vitiate the proceedings, particularly, when we consider the fact that this is a proceeding under Rule 16 of the Rules, 1965 and not under Rule 14 where there is a larger opportunity to interface, exchange of documents and examination of witnesses. The judgment of the Honble Supreme Court in the case of S.K. Kapoor in not having been delivered at the time of passing the impugned order, the judgment in T.V. Patel (supra) would apply.
22. Coming to the third of the issues, we take a note of the submissions made by the learned counsel for the respondents that punishment is a simple one and has been served out and that it does not prejudice the applicant in any other way. Granting of non-functional scale is a different story and we are in agreement with the learned counsel for the respondents that it has not been influenced by the instant punishment. We find that there is a merit in the instant argument. The punishment has a limited impact of one year from 8.7.2010 to 8.7.2011. There is no averment of any other prejudice being caused to the applicant. We also take note of resolution of two aforementioned issues and hold further that since punishment has already been served out, there is no merit in the application. The same is, therefore dismissed with the parties being left free to bear their costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/