Central Administrative Tribunal - Madras
H K Sharma vs M/O Commerce on 31 August, 2018
t 1 0.A.No.375/2017. CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH, CHENNAI. Date of decision : 31.08.2017 ORIGINAL APPLICATION NO. 375/2017 MrH.K.Sharma ~Applicant (By Advocate M/s Menon, Karthik, Mukundan & Neelakantan) Versus Union of India & anr. ~Respondents. (By Advocate Mr.V.Chandrasekaran) Coram: HON'BLE SHRI K.ELANGO, MEMBER (J) HON'BLE MS. B. BHAMATHI, MEMBER(A) a) To be referred to the Reporters or not? | Mb) Library? ¥v(c) To be uploaded or not? 2 O.A.No.375/2017, CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH, CHENNAI ORIGINAL APPLICATION No.375/2017 Dated this Thursday, the 31* day of August, 2017 CORAM: HON'BLE SHRI K.ELANGO, MEMBER (3) & HON'BLE MS. B.BHAMATHI, MEMBER (A) Mr.H.K.Sharma, Assistant Salt Commissioner, Ii Block, II Floor, Shastri Bhavan, 26, Haddows Road, Chennai 600 006. .-. Applicant (By Advocate M/s Menon, Karthik, Mukundan & Neelakantan) Versus, 1. Union of India rep. By its Secretary, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion, Government of India, Udyog Bhawan, New Delhi 110 011. 2.Salt Commissioner, O/o the Salt Commissioner, Government of India, No.2A Lavan Bhawan, Lawan Marg, Jhalana Doongari, Jaipur 302 004. ...Respondents. (By Advocate Mr. V. Chandrasekaran) a Reserved on . 14.07.2017: t Pronounced on 3] "BS" Roly 3 0.4.No.375/2017. ORDER PER:-HON'BLE MS.B. BHAMATHI, MEMBER (A)
This OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"To call for the records and quash the Charge Memorandum issued by the Respondent bearing No.C- 14011/2/Admn-Vig/2014-l1/76 dated 12.08.2015."
2. The factual matrix of the applicant's case is that while working as Assistant Salt Commissioner he was issued charge memorandum dated 12.08.2015 under Rule 14 of CCS (CCA) Rules, leveling allegations of misconduct. The charge memorandum contained two articles of charges pertaining to the period 2013-2014 when the applicant was working as Deputy Commissioner (Adhoc), Mumbai. The applicant has challenged the impugned order dated 12.08.2015 on the following grounds:
(a) That the Disciplinary Authority (DA) being the Minister for Commerce & Industry has not approved the initiation of the disciplinary proceedings and the framing of charges as required under Rule 14 of the CCS (CCA) Rules. The copy of the relevant notings obtained under the RTI Act reveals that the DA purportedly approved the suspension of the applicant and thereafter had not granted specific approval for initiation of major penalty proceedings. The Hon. 4 0.A.No.375/2017. Supreme Court in UOI Vs. B.V.Gopinath (2014 1 SCC 351i) has clearly laid down that DA has to give separate approval for both initiation of disciplinary proceedings and framing of charges and failure to do the same would render the charge memo non-est in law.
(b) That the DA failed to apply his mind independently by considering "the materials on record and also failed to take an independent decision as to whether to approve the articles of charges as proposed. She has merely initialed without application of mind and hence failed to take independent decision regarding the tenability of the articles of charges and hence acted in contravention of Rule 14 of CCS (CCA) Rules. Such a decision without assigning any reason and merely initialing a note put up by the subordinates has been held by the Hon. Supreme Court in Coal India Vs Anantha Saha (2011 (5) SCC 142) to be illegal as it amounts to non application of mind.
(c) The authorities who take a decision would have to append their full ' signature on the right hand side of the note as per extant instructions.
The DA has merely initialed on the left hand side of the note without appending full signature, and that too without indicating any reasons for her decision.
(d) Further, Rule 14(2) requires that the DA should be of the opinion that there are grounds for enquiry into the truth of any imputation of misconduct. However,the same has to be decided independently upon 5 0.A.No.375/2017, consideration of all the material on record and the same cannot be fulfilled by merely accepting whatever has been placed before the DA.
(e) Even though the charge memorandum has been issued in the year 2015, the proceedings has not been concluded till date causing immense prejudice to the applicant. The Hon. Supreme Court in Premnath Bali Vs. Registrar, High Court Delhi, reported in (2015) 16 SCC 415 has categorically held that every employer, whether State or private, must conclude the disciplinary proceedings, once initiated against the delinquent employee, within a period of six months as an outer time limit. In the instant case, the above proceedings are pending for more than one and a half years.
(f) A perusal of the gist of the charges shows that applicant is alleged not to have taken steps to file a Caveat petition before the Bombay High Court to avoid an interim order against the respondent whereas infact no Caveat can be filed for the WP as the Hon. High Court has granted stay against Government order even waiving the service of the case papers. 'The said charge leveled against the applicant does not disclose any misconduct.
3. In the reply to the OA, the respondents have denied all the averments made in the OA. It has been submitted that as per Rule 13 of CCS(CCA) Rules, the DA has applied her mind to the detailed notes submitted by every designated authority up to the Secretary of the 6 0.A.No.375/2017, Department to the DA In the light of the extant guidelines, rules and due procedure was followed. There was no necessity on the part of the DA to reiterate the facts recorded by designated authorities and hence she has given her approval by signing the proposal and hence the allegation that DA has not applied her mind ts emphatically denied. 3.1 : The memorandum of charge was served on the applicant by the office of the Salt Commissioner, Jaipur (R-2). The applicant's reply was received in the department on 28.10.2015. The entire record was examined in detail in the department and a decision was taken to hold a regular enquiry as per CCS (CCA) Rules, 1965. With the approval of DA, the Inquiry Officer(IO) and the Presenting Officer(PO) were also appointed to conduct the enquiry. Considering that the applicant is due to retire on 31.08.2017 on attaining the age of superannuation, the IO was advised to complete the proceedings by April 2017. The IO conducted the preliminary hearing in the proceedings on 25.05.2017 and the next date of hearing was given as 19.06.2017. Hence the averment of the applicant that no enquiry has been conducted is denied. | 3.2 The contention that the charge memorandum is issued without jurisdiction and initiation of proceedings suffer from non- application of mind does not hold merit as the charge memorandum was {issued on appreval by the DA as per provisions of CCS (CCA) 7 0.A.No.375/2017. Rules, 1965. The initiation of disciplinary proceedings is an administrative procedure wherein allegations made against the Government servants are examined by the designated authorities. The charged Government servant will be provided ample opportunity to place his side before the 10, who is bound to conduct the inquiry as per prescribed procedure and give his findings on whether the charges are proved or not. Therefore, the present OA is premature and not maintainable.
3.3 Further, the disciplinary proceedings having been initiated should be allowed to continue till it reaches its logical conclusion. The applicant will get ample opportunity to place his side and defend himself before the IO.
3.4 The contention of the applicant regarding filing of Caveat petition is denied, as a Caveat is filed u/s 148-A CPC. It is a prayer to the Court not to pass any adverse order without affording an opportunity of hearing the applicant. There was also a prima facie case of misconduct on the part of applicant, attracting initiation of departmental action as per CCS (CCA) Rules, 1965.
3.5 The applicant is not co-operating with the DA by not giving proper acknowledgment, so far, to receipt of charge memorandum dated 12.08.2015, despite four reminders sent by R-2.
' , 5 O 8 O0.A.No.375/2017. 3.6 The respondents have filed WP No.2684/2017 before the Hon. High Court of Madras challenging the Tribunal order (in another OA) dated 13.07.2016 directing the department to promote the second respondent (the applicant in present OA) to the post of Deputy Salt Commissioner on regular basis w.e.f 22.07.2014 and pay him all the consequential benefits. Keeping the observations of the Hon. High Court at Para 11 to 14 of its order dated 21.02.2017, the applicant has to face enquiry and get exonerated of all the charges In order to get the benefit of promotion.
4. No rejoinder has been filed by the applicant.
5. The Tribunal has gone through the O.A. along with Annexures A-1 to A-3 filed by applicant.
6. The Tribunal has also gone through the Reply filed along with Annexure R-1 to R-4 to the Affidavit and also the original records filed on behalf of the respondents.
7. Heard the learned counsel for the applicant and the learned counsel for the respondents and carefully considered the facts, circumstances, law points and rival contentions in the case,
8. The central issue, which is a law point, that arises for consideration in this OA is whether the charge sheet issued against the applicant is without jurisdiction in view of the fact that the DA, i.e., the v 4 Minister for Industry & Commerce had not given separate approval for 9 0.A.No.375/2017. initiation of major penalty proceedings and another separate approval before issuing the charge memorandum under CCS (CCA) Rules, 1965, If so, whether the impugned order is illegal, vitiated and In violation of Rule 14 of CCS (CCA) Rules, 1965 as interpreted in the fandmark judgment of the Hon. Supreme Court in B.V.Gopinath case (supra) and hence non-est in the eyes of law.
9. A perusal of the original file records produced by the respondents, on the direction of the Tribunal shows that very detailed/elaborate notes of examination of the alleged misconduct of the applicant was recorded by every designated level of the hierarchy in the respondent department. Based on the said examination, the DA approved the proposal for suspension of applicant, being a Group A Officer, at Page 4/n of file record as disciplinary proceedings was contemplated against him under Rule 10 (1) (a) of the CCS (CCA) Rules.
10. Thereafter, in consultation with R-2, under whom applicant was functioning, a draft charge memorandum containing two articles of charge was got prepared and the same was submitted for approval of DA by the respondent department for initiating departmental proceedings as per articles of charge framed in the draft charge sheet forwarded by R-2. The DA approved the said proposal for initiation of ' 4 10 0.A.No.375/2017, disciplinary Proceedings under Rule 14 of the CCS (CCA) Rules for imposing major penalty on 04.09.2014 at Page 12/n of the file record.
11. Thereafter, i.e., after DA's approval, the draft charge sheet was referred to CVC for first stage advice. The CVC approved the draft charges after due vetting and Carrying out some corrections to the draft charge sheet. On receipt of the CVC approvai, the office of respondent no.i (at P.26/n of file record), observed that the approval of the DA has already been given both for initiating disciplinary proceedings and issue of charge sheet under Rule i4 of CCS (CCA) Rules, 1965. The office note, specifically, states that Rule 14(4) does not mention that Minister is the competent authority to issue charge sheet to the applicant, being a Group A officer, Hence, it was proposed that the charge sheet can be Issued by R-2. This note was approved by an officer of the rank of Joint Secretary on 21.07.2015 and R-2 was directed to serve the charge memorandum on applicant, which he did on 12.08.2015. Between July 2015 and January 2017, when the IO/PO were appointed again under the orders of the DA, no further order was also obtained from the DA on the charges framed/issued on applicant. Hence, the order to issue the charge memorandum was taken under the orders of an authority other than the DA, and issued by an authority i.€., R-2 not envisaged under Rule 14 of CCS (CCA) Rules 1965, H 0.A.No.375/2017:
12. In this connection, Rule 14 of the ccs (CCA) Rules mandates two separate stages of decision making by the DA. This is in the fight of the ratio laid down in B.V.Gopinath case (supra) interpreting Rule 14 of the ccs (CCA) Rules. As per the said interpretation of the Hon. Apex Court the first stage of decision making by the DA under Rule 14(2) after application of mind pertaining to whether a prima facie case of misconduct exists warranting initiation of disciplinary (enquiry) proceedings against the Government servant. The second stage pertains to drawing up of charge sheet and approval by the DA for issue of the said charge sheet under Rule 14(3) after due/separate application of mind by the DA to the charges framed. This meant that even if approval is accorded to initiate the enquiry, charge sheet may nor may not be approved by DA at a subsequent stage. Hence, the DA after approving the initiation of proceedings, but before giving approval to the charge sheet, can come to a conclusion that a lesser charge or no charge is made out against the Government servant. This can also include a situation where DA can direct dropping of proceedings. Further, since there was no sub delegation of power in favour of any other Officer, the charge memo ought to be approved by the DA. This also ensures that the charge memo does not get approved even before it attains legal existence.
. a 12 0.A.No.375/2017,
13. It Is evident from the perusal of the record as elaborated earlier in this order that the order of the DA was taken in one go for initiating disciplinary proceedings and for framing of the charges/Issue of charge sheet. After DA's approval, It was even modified, claimed to be not substantial, by CVC as well as by the respondent department before finalization. The contention of the applicant that no separate approval was taken for initiation of departmental proceedings and for framing of charges as per Page 12/n of the file record bears relevance to the note sheet at Page 12/n of the file record which reads as follows:
"In view of the facts stated in para 38-40 above, file is submitted to Hon'ble CIM, being Disciplinary Authority for soliciting the approval for initiating disciplinary proceedings under Rule 14 of CCS (CCA) Rules for imposing major penalty for violation of CCS (Conduct) Rules 3 (1) (ii) & (iti) against Sh. H.K.Sharma, Deputy Salt Commissioner (ad-hoc) (under suspension) as per article of charges framed in the draft charge sheet forwarded by SCO, Jaipur."
14, The above note means that there was no separate approval, accompanied by separate application of mind, as required under law, to each of the twoearlier mentioned Statutory sequential Stages of decision making. Hence, it is deemed that DA's approval did not hold good for either initiation of disciplinary proceedings as well as for approval/issue of charge sheet, since they were envisaged as mutually exclusive procedures in law. Hence the later approval by the JS to 13 0.A.No.375/2017, approve the modified charge sheet (after DA's approval) and serving of the same through R-2, entailed violations, because approval of charge sheet by an authority not competent under law was taken later and such authority being exercised for directing R-2 to serve the charge sheet under R-2's signature. Hence, even though issued in the name of President under law, it was not a Presidential order. The provisions of Rule 14(4) was not correctly understood/appreciated in accordance with the interpretation of Rule 14(2) and 14(3) in B.V.Gopinath (supra). Hence the applicant is correct in relying upon B.V.Gopinath (supra) that approval of the DA for initiation of disciplinary proceedings along with approval of charge memorandum by the DA means that neither orders can be permitted to stay in the eyes of law. Hence in our view Rule 14 as interpreted in B.V.Gopinath (supra) stands violated.
15. The contention of the applicant relying upon the Coal India Vs Anantha Saha (supra) is that the DA has failed to apply her mind to the material record and has merely toed the line made out in the office notings without assigning any reason, €ven as no case of misconduct could be made out. In Coal India Vs Anantha Saha (supra), the CMD approved the notings of the Officer on Special Duty (OSD) proposing revival of disciplinary proceedings for denovo enquiry which required issue of fresh charge sheet. The Apex Court held that the ; 14 0.A.No.375/2017, CMD had merely appended the Signature without applying his mind and without recording any reason. In the present case the matter was examined in great detail at every designated level of the respondent department and on that basts the DA approved the proposal for initiating disciplinary proceedings against the applicant. This is quite different from a note of an "OSD" who Provides assistance to the CMD and who cannot be called a designated authority in the manner that a US/DS/JS/AS etc in a Ministry, who are charged with the responsibility to process files as designated authorities to assist the Department/ Minister/DA to obtain approvals of competent authority in all matters, statutory or administrative, Hence the said judgment is fully distinguishable from the facts and circumstances of the present OA and hence it cannot be heid that the charge memo is liable to be set aside from this perspective or this ground alone. However, notwithstanding the above conclusion of the Tribunal that it cannot be Said that there was no application of mind to the merits of the case, the non fulfillment of the legal requirement, although technical, of two stage decision making, the impugned order is not cured or devoid of the above ills. The respondents cannot be charged with non Coal India Vs Anantha Saha (supra) is not relevant, B.V,Gopinath 15 0.A.No.375/2017; case (supra) shail fully apply to render the Impugned order illegal from that perspective and not from the perspective held in Coal India Vs Anantha Saha (supra),
16. The applicant's next contention relying upon Premnath Bali Vs, Registrar, High Court Delhi supra is that the proceedings initiated should be concluded within six months and In a time bound manner, whereas in the present case it took one anda half years. A perusal of the original file record shows that On obtaining approval of the DA to initiate departmental proceedings/draft charge sheet, the draft charge sheet was referred to CVC as required under law in the case of a Group A officer for vetting/first stage advice. The matter was referred to CVC in September 2014. in April 2015 after making certain corrections to the draft charges, i.e., after approval of DA, the CVC granted its approval. After further changes in the respondent department, the charge memorandum was then served on applicant on 12.08.2015 by R-2: The reply of the applicant dated 24.08.2015, inter alia, denying the charges and seeking personal hearing is stated to have been received in the department only in October 2015. The long and detailed reply of the applicant running into several pages was first examined and submitted vide office note dated 29.06.2016. The IO/PO were appointed in January 2017 with the approval of DA, Following this, the applicant filed this OA in February 2017. Although } 16 0.A.No.375/2017, there appears to have been some delay in the office of CVC as also in the respondent department, a perusal of the file shows that detailed notes examined were Submitted each time, at each designated level! and at each stage as envisaged In the rules for certain statutory approvals. Certain necessary/appropriate Clarifications were called for during senior levels Of examination of files which had to be answered/impiemented, Hence, In the view of the Tribunal, we are not inclined to hold that the matter was kept unduly/unjustiflably pending at any level in the respondent department. Hence, on a perusal of the judgment in Premnath Bali Vs. Registrar, High Court Delhi (supra) the reliance of the applicant does not advance his contention that the charge memorandum is liable to be set aside on the ground of delay, although it is liable to be Set aside on the ground of violation of Rule 14, as interpreted in B.V.Gopinath (supra).
17. The final contention of the applicant is that the charges leveled do not disclose any misconduct. The prima facie case of the respondent department is that there was a compromise in the Ownership of valuable and large stretches of salt pan land for opening up salt works in Bhandup, due to inaction on the part of the applicant and non compliance of instructions of R-2 by the applicant to handle the matter with greater alacrity, in order to protect the interests of the Central Government. In the view of the respondent department, the t 17 0.A.No.375/2017 applicant was only.wasting time by making references back and forth, which would have helped encroachers to complete the construction before the department could approach the courts to establish its Ownership over the land. The non-filing of the Caveat petition before the Hon'ble High Court of Bombay by the applicant to avoid the interim order was seen from this perspective by the respondent department. Given the fact that the correspondences and the alleged inaction on the part of the applicant is based on record, the respondents held that it was for the applicant to establish his case based on record in the course of enquiry. But the relevance of the above contention would be applicable only if the impugned order had been declared legal. However since, we hold that the impugned order stands Vitiated in the light of -B.V.Gopinath (supra) no further comments are warranted on the merits of the above rival contentions.
18. Summing up, the only strong and sustainable ground made out by the applicant is that there Was no specific/separate approval of the DA for initiating departmental Proceedings under Rule 14(2) of the CCS (CCA).Rules and no specific/separate approval of the DA under Rule 14(3) for framing of charges as Stipulated under Rules and as interpreted in B.V.Gopinath (supra). On this point of law alone, we hold that the impugned order is held to be illegal and hence liable to .
18 0.A.No.375/2017,be interfered with. Hence the impugned order is quashed and set aside.
19. Accordingly, OA is allowed. No costs.
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