Central Administrative Tribunal - Ernakulam
K.Kunhikrishnan vs Union Of India Represented By on 21 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A. NO. 733/2006 Tuesday, this the 21st day of April, 2009 C O R A M: HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER K.Kunhikrishnan Retired Deputy Director General Doordarshan (Prasar Bharati) H.No. 169-E Silver Line, PTP Nagar, Thiruvananthapuram-695 043 ..Applicant By Advocate Dr K.P. Satheesan Vs. Union of India represented by the Secretary, Ministry of Information & Broadcasting "A" wing, Shastri Bhavan New Delhi-110 001 ..Respondent By Advocate Mr.T.P.M. Ibrahim Khan, SCGSC The Application having been heard on 4.3.2009 the Tribunal delivered the following:- O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant challenges Annexure A-1 order dated 20.9.2006 imposing the penalty of withholding of 10% of the monthly pension and witholding of retiral benefits.
2. The applicant entered the service of the Doordarshan as Group-A Officer in 1977 and retired as Deputy Director General in 2004. After retirement from service he was imposed with a punishment of withholding of 10% of the monthly pension for a period of two years. While the applicant was working as the Deputy Director General disciplinary proceedings under Rule 14 of the CCS (CCA) Rules 1965 were initiated by OM dated 28.11.2003 on the following Article of Charges:
ARTICLE-I Shri K. Kunhikrishnan while functioning as Deputy Director General (C&S) along with the Deputy Director General (Finance) processed the proposals dated 20.9.99 and 29.11.99 from M/s Rainbow Productions Pvt. Ltd. And approved increase in the duration and periodicity of the programme "KHAS KHABOR" on DD-1 (regional network) and and DD-7 channels of DDK, Kolkatta against the decision of the Prasar Bharati Board.
That the said Shri K. Kunhikrishnan while functioning as Deputy Director General (C&S) along with Deputy Director General (Finance) also gave the consent of Doordarshan for withdrawal of the writ petition accepting the pleading of the producer for continuance of his programme which facilitated the producer in obtaining leave to withdraw the writ petition. These decisions were obviously contrary to the decisions of the Prasar Bharati Board and the stand of Doordarshan on the writ petition pending before the Kolkata High Court.
ARTICLE-II Shri K. Kunhikrishnan during his tenure as DDG(C&S) while approving the increase of the duration and periodicity of the programme Khas Khabor had also deviated from the Rate Card in finalizing the commercial terms which is beyond his power.
ARTICLE-III That the said Shri K. Kunhikrishnan while functioning as Deputy Director General (C&S) also approved utiliszation of cross channel transfer of banked FCT of DD-I programmes "FASKA GERO' 'MANUSHIL' and AMADER KATHA' and "SINGHA BAHINI" to the programme ' "KANAKANJALI" which is a DD-2 programme of DDK, Kolkata without the approval of the competent authority.
3. The applicant submitted written statement of defence. No enquiry was conducted. When repeated reminders were sent to complete the disciplinary proceedings failed, he filed O.A. 274/2004 before the Principal Bench of the Tribunal which was disposed of directing the respondent to complete the disciplinary proceedings within six months. The respondent did not act with promptitude. However, the respondent appointed an Inquiriy Officer to enquire into the articles of charges framed against him. According to the applicant, the proceedings were purposely delayed so as to defeat the claim of the applicant for further promotion. Under the above circumstances, the applicant decided for premature retirement in terms of FR 56(K) read with Rule 48 of the CCS Pension Rules 1972. Though the notice period of three months expired on 6.1.2005, respondent did not give any reply. Subsequently, the respondent issued a copy of the enquiry report dated 26.7.2004, giving him an opportunity to make representation / submission within 15 days. The applicant submitted his objections.
4. Since the notice period of voluntary retirement was over and the respondent did not pay the terminal benefits or pension to the applicant even after notice period, he approached the Tribunal through O.A. 237/05 which was finally disposed of on 10.6.2005 directing the respondent to release the terminal benefits within a period of three months. As the respondent did not release the pensionary benefits he filed CPC 54/2005 upon which the respondent paid a part of terminal benefits and also provisional pension. The respondent withheld DCRG, commutation of pension and leave encashment stating that disciplinary proceedings are pending against him. When personal appearance of respondent were directed, it was challenged before the Hon'ble High Court which granted stay of all further proceedings. Pursuant to the directions of the Hon'ble High Court the respondent passed Annexure A-1 order.
5. The applicant challenged A-1 on the ground that it violates the rules of procedure as well as the principles of natural justice of giving an opportunity of being heard, none of the explanations were considered, there is no finding that the applicant caused any loss to Government, the proposal for "KHAS KHABAR" was recommended to the CEO, Prasar Bharati by the concerned department and approved by the CEO, during the period of assignment of the applicant from 1999 to 2002 the DDK earned highest earning, an erroneous interpretation of the rate card has resulted in the framing of the charges, the approval of cross channel transfer of banked FCT was not in violation of any circular or guidelines, no charge is proved in the enquiry, before inflicting the punishment the delinquent officer should have been given an opportunity to defend the same, the applicant has more than 34 years unblemished service, no formalities were followed by the respondent to quantify any loss to the government by the act of the applicant and that the applicant was denied the consideration of promotion to the post of Director General. Hence, he filed this O.A. to set aside Annexure A-1 order, to declare that no amount shall be deduced from the pension and to pay the entire pension and other terminal benefits with 18% interest.
6. The respondent has filed reply statement opposing the O.A. The respondent submitted that disciplinary proceedings against the applicant were initiated, on receipt of the denial of the charges, an inquiry was ordered an Inquiry Officer was appointed. The applicant approached the Tribunal through O.A. 274/04. The Inquiry Officer submitted report on 26.7.2004. The CVC was consulted for advice The inquiry report and CVC's advice were forwarded to the applicant for submitting his explanation. Applicant submitted two representations against the proposal. Rejecting the above mentioned representations, the disciplinary authority decided to impose penalty of cut in pension and referred the case to UPSC for advice who advised to cut 10% of monthly pension for a period for two years. They have submitted that the charges established against the applicant constitute grave misconduct on his part. They further submitted that the application of the applicant for retirement was accepted by the respondent on 6.1.2005 but the orders in this regard could be issued only on 20.7.2005 in view of the pending disciplinary proceedings against him. The applicant at no stage has filed any application or representation regarding biased conduct towards him, he has at no point of time requested for an opportunity for perusal of any records or to verify the documents relied upon by the respondent. Immediately on completion of the disciplinary proceedings instructions have been issued for release of withheld retirement dues.
7. The applicant filed rejoinder to the reply statement reiterating that the proposal for increased duration of the programme "Khaskhabar" was approved by the Chief Executive Officer but no action is initiated against him. The proposal for punishment was not given to the applicant. He further submitted that Disciplinary Authority deviated from the findings of the enquiry officer.
8. The respondent filed additional reply statement reiterating their stand in the reply statement.
9. The applicant in his additional rejoinder contended that as regards the proposal submitted by M/s Rainbow Productions for Khas Khabar, in O.A. 668/2007 filed by Dr. P.K. Seth, the Principal Bench of the Tribunal vide the order dated 8.10.2007 set aside the penalty as the actions were ratified by the highest authority of Prasar Bharati and that the applicant was not responsible for the withdrawal of the court case which was withdrawn by the party themselves.
10. Heard learned counsel for the parties and perused the documents produced before us.
11. The learned counsel for the applicant reiterated the contentions raised in the O.A. and argued that the punishment was imposed on the applicant without giving an opportunity of being heard, violating the principles of natural justice and that none of the explanations were considered by the appropriate authority. Instead, profit of DD went up considerably. The counsel argued that there is no charge of financial loss to the exchequer. Instead, profit of DD went up considerably. The counsel further argued that the inquiry proceedings are not completed within the period stipulated by the Tribunal. Hence the punishment order is vitiated. The counsel submitted that in O.A. 668/2007 filed by Dr. P.K. Seth, the Deputy Director General (Finance), theTribunal has set aside the penalty and quashed the charges as the actions were ratified by the highest authority of Prasar Bharati. The counsel also relied on the following judgments:
(i) Kuldeep Singh Vs. Commissioner of Police & Others ( JT 1998(8)SC 603)
(ii) Union of India Vs. Kuldeep Singh (2004(2) SCC 590)
(iii) Damoh Panna Sagar Rural Regional Bank and another Vs. Munna Lal Jain (2005 (10)SCC 84
(iv) Kesavan Vs. State of Kerala (1989 (1) KLT 135)
(v) Vikraman Nair Vs. State of Kerala &Others (2008(4) KHC 412)
12. The learned counsel appearing for the respondents argued that the disciplinary authority after taking into account the facts and circumstances of the case, examining the findings of the Inquiry Officer in detail, observing all the procedures prescribed under the CCS (CCA) Rules, 1965, the advice tendered by the CVC and UPSC and following the principles of natural justice imposed the punishment for the charges that were proved against the applicant. The counsel submitted that the inquiry proceedings have been completed within the time frame stipulated by the Tribunal. The counsel relied on the judgment in AIR 2007 SC 705 in support of his contention.
13. In a judicial review of disciplinary proceedings though it is not allowed in law to reappraise the facts or substitute a view over the view expressed by departmental authorities yet, when the punishment is inflicted in contravention of the laid down substantive procedure and when the findings arrived at do not qualify the test of a common reasonable prudent man i.e. either based on no misconduct or perverse, Court can always interfere in the matter, as ruled by the Apex Court in Kuldeep Singh Vs. Commissioner of Police and Others (JT 1998 (8) SC 603)
14. In a disciplinary proceeding a public functionary being an administrative authority acts as a quasi-judicial authority. The discretion vested in such an authority has not to be exercised on its ipsi dixit but in accordance with rules, law and in a judicious manner, as laid down by the Apex Court in Union of India V. Kuldeep Singh (2004) 2 SCC 690).
15. Three articles of charges were framed against the applicant out of which according to the inquiry report the first and third charges were proved and a verdict of "not proved" wsgiven in respect of second charge.
16. The first charge against the applicant relates to DD News Channel Programme "Khas Khabar" which commenced from 15.8.1999 as a news and current affairs programme. The Prasar Bharati Board in its meeting held on 11.3.1999 passed a resolution to the effect that no news bulletin produced by the private producer will be telecast in Doordarshan. The notice issued to M/s Rainbow Productions Pvt. Ltd. to discontinue their programme was challenged before the Kolkata High Court and they obtained an injunction in their favour on 31.3.1999. The applicant submitted that he dealt with only the commercial aspects of the programme and the legal aspect of the case was dealt with by DDG(F&V. ). It is a fact that the applicant participated in the discussions with the Rainbow Productions Ltd. to sort out the issue as proposed by DDG(ER) treating it as "news based current affairs programme." The suggestions and recommendations made in such meetings have to be placed before the CEO for his approval with the due concurrence of the DDG(F). The issuance of a post facto approval by the Chief Executive Officer absolves the action of the subordinate officer. The Principal Bench of the Tribunal by its order in O.A.668/2007 filed by Dr. P.K. Seth, the Deputy Director General (Finance), set aside the penalty imposed on the applicant therein and quashed the charge as the alleged actions were ratified by the highest authority of Prasar Bharati.
17. An "approval on ratification" is to approve and accept formally. It is confirmation of an act when the aforesaid is "post facto". It ratifies and approves from a retrospective date the action taken by a person. (See High Court of Judicature for Rajasthan Vs. P.P.Singh & another (2003 SCC (L&S) 424), State Govt. Of NCT of Delhi and another Vs. R.C. Anand and another (2004) 4 SCC 615, Rattan Lal V. The State of Punjab (AIR 1965 SC 444) We notice that the CEO has approved the action of the CO by granting "post facto approval". We do not therefore agree with the contention of the respondents that the charge No.1 is tenable.
As regards withdrawal of the court case, it is upto the party who approached the Court to seek leave of the Hon'ble Court to withdraw the case moved by it and it is for the Hon'ble Court to grant or not to grant leave.
18. The second charge is not proved by the Enquiry Officer.
19. As regards the third charge, the applicant argued that the circulars relied on by the respondents dated 30.11.98 and 1.8.99 pertained to the banking norms for DD1 (National Network) and DD2 (Metro Network) and not to Regional Kendras and that when the proposal was submitted by the Commercial Wing duly endorsed by the Controller of Sales with logical and rational reasoning, the applicant agreed with the same and endorsed it to DDG (Finance) who also concurrred with the same and that there are ample precedents for adopting similar course of action. What the charged officer did was to allow the Producer to use the banked Free Comercial Time which belonged to the Producer and was already paid for. Since the Free Commercial Time was oawned by the Producer it could not be said that undue favour was shown to the Producer nor any financial loss was caused to DD. The existing delegation as per order dated 24.8.98 clearly stated that DG and in his absence DDG in charge of the subject -DDG (C&S) as in this case can exercise all the financial and administrative powers of DG. Therefore, there was no requirement to get the prior approval of the CEO in the case of transfer of Banked FCT which has already been paid for. While approving the cross channel transfer of banked commercial time, the applicant has not violated any norm of the organisation or caused any loss to the Govt. The lnquiry Officer held that since there are no guidelines for the Regional Kendras, a case to case clearance should have the approval of the CEO. In the absence of approval by the CEO, the charge was held to be proved.
20. Prasar Bharati generates revenue by charging fee for telecasting programmes through Doordarshan Kendras. The Producers of the programmes utilise the Free Commercial Time during the course of the telecasting of the programme for recovering his production and other costs. The producers are also allowed to save Free Commercial Time and utilise the same in future. There are different Wings of the organisation looking after different items of work. The Commercial Wing is in charge of the work relating to determination of commercial terms of the programmes. The applicant is the Deputy Director General in charge of the Commercial Wing. The Director General and in his absence the Deputy Director General (C&S) enjoys vast financial and administrative powers. There are certain areas of operation where DDG(C&S) can take independent decisions, while for some approval of the CEO is taken after discussions and deliberations with all concerned officers and with due concurrence of the DDG(F). In this particular case, the producer mentioned has already paid the fee to the DD. Only orders relating to banking norms for National and Metro Network were circulated. In the absence of any circular for Regional Kendras, he agreed to the proposal of Controller of Sales with the financial concurrence of DDG(F) in his capacity as DDG(C&S).
21. We do not find any allegations of "misconduct" of the applicant involving any corrupt motive or any favour to the party with ulterior motive. Misconduct is a generic term not caplable of a definition in straight jacket formula. However, the facts and circumstances of each case would have to be examined to define what is a misconduct against a government servant. The definition of "misconduct" has been examined and laid down by the Apex Court in Union of India V. Ahmed (1979) 2 SCC 286) wherein negligence per se without culpability has not been ruled to be a misconduct.
22. The Inquiry Officer concluded the inquiry report stating that:
"the CO may not be directly responsible, however, he cannot be absolved of his responsibility of being party to the decision."
23. The above conclusion by the Inquiry Officer shows that the applicant is not directly responsible, but held vicariously responsible for being party to the decision. That being the conclusion of the Inquiry Officer, there is no specific charge proved against the applicant. Unless there is a specific charge against the charged employee which is proved in the inqury, the employee cannot be punished. The applicant contended that there is no charge that the alleged action of the applicant caused any loss to the Government of India. There is no specific charge of any financial mismanagement or fraud or financial loss to the Government. The lnquiry Officer held that the charged Officer may not be directly responsible, however, he cannot be absolved of his responsibility of being party to the decision.
In our considered opinion in view of the fact that he contributed to substantial increase in revenue by his action, benefit of doubt can be given for his bonafides in decision making.
24. The learned counsel for the applicant drew our attention to the decision of the the Hon'ble High Court of Kerala in Union of India and Others Vs. Mohandas and another (2005 (2) KLT 534) which observed as follows:
"As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding, the President is without of law to impose penalty of withholding pension as a measure of punishment either in whole in part permanently or for a specified period or to order recovery of the pecuniary loss in whole or in part from the pension of the employee subject minimum of Rs. 60/-."
25. In view of what is stated above and following the decision of the Principal Bench of the Tribunal in O.A. 688/2007, the order dated 20.9.2006 (Annexure A-1) imposing the penalty of withholding of 10% of the monthly pension admissible to the applicant for a period of two years is set aside and quashed. The respondent is directed to pay the applicant all the retiral benefits and the withheld amount of pension within two months from the date of receipt of this order. As regards payment for interest on delayed disbursement of retiral benefits, we observe that in normal circumstances, the respondents were expected to disburse the pensionary benefits as early as possible. But in the facts and circumstances of the case, we do not find that the applicant is eligible to get interest on the delayed payment of retiral benefits. Therefore, we are declining the prayer of the applicant for granting interest for the delayed payment of retiral benefits.
Dated 21st April, 2009.
K. NOORJEHAN GEORGE PARACKEN ADMINISTRATIVE MEMBER JUDICIAL MEMBER kmn